BIRCH FINANCIAL, INC
CONSULTANT AGREEMENT
BIRCH FINANCIAL, INC. a California Corporation whose registered office is
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 hereafter referred to
as the COMPANY, and EFCO, INC., 00000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000,
hereinafter referred to as the CONSULTANT, in consideration of the mutual
promises made herein, agree as follows:
ARTICLE I. TERM OF AGREEMENT
SPECIFIC TERM
Section 1.01 ( a ) - The Company hereby agrees to hire EFCO,
INC. as Consultant and EFCO, INC. hereby accepts agreement with Company for
a period of one (1) year beginning January 1, 2003.
Section 1.01 ( b ) - In addition to the term of agreement
specified in Section 1.01 (a), this agreement shall remain in effect until
December 31, 2003 and shall thereafter continue from year to year unless
ninety days prior to the expiration, either party gives notice to the other
that it does not intend to renew this agreement.
Section 1.01 ( c ) - This consulting agreement remains in effect
so long as the President Xxxxxx Xxxxxx is employed by the consultant and is
available to function in the capacity of Financial Manager.
Section 1.01 ( d ) - This agreement may be terminated earlier
as hereinafter provided.
ARICLE II. DUTIES AND OBLIGATIONS OF EFCO, INC.
TITLE AND DESCRIPTION OF DUTIES
Section 2.01 ( a ) - Consultant shall serve as Financial
Manager of BIRCH FINANCIAL, INC. in that capacity, consultant shall do and
perform all services, acts, things necessary or advisable to fulfill the
duties of a corporate Financial Manager. However, consultant shall at all
times be subject to the policies and directions established by the Board of
Directors.
LOYAL AND CONSCIENTIOUS PERFORMANCE OF DUTIES
Section 2.02 ( a ) - Consultant agrees that to the best of their
ability and experience, they will at all times loyally and conscientiously
perform all of the duties and obligations required of them either expressly
or implicitly by the terms of this agreement. However, both the Company and
the Consultant are aware that proper and conscientious discharge of the
duties of the Consultant hereunder will not require Consultant to devote
their entire productive time, ability and attention during the normal work
day to the business of the Company during the term of this agreement. In
addition, it is understood by the Company that the Consultant may elect to
spend up to a total six (6) weeks per year, in increments not to exceed four
(4) continuous weeks, out of the geographical area of the agreement and will
not, during these time periods, be available to discharge usual duties.
However, Consultant during these periods, shall make all reasonable efforts
to stay in contact with the Company by telephone to assist in that manner in
the discharge of consultant obligations to the best of its ability.
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Section 2.02 ( b ) - A general description of the duties of the
consultant as Financial Manager shall be to, under administrative direction
from the Board of Directors, formulate financial policies and plans,
provide overall direction for accounting, tax, insurance, budget, credit and
treasury functions. Provide overall direction for preservation and
investment of capital and otherwise aid and assist in meeting corporate
financial management objectives to the best of its ability.
ARTICLE III. OBLIGATIONS OF THE COMPANY
GENERAL DESCRIPTION
Section 3.01 ( a ) - The Company shall provide Consultant with
compensation, incentives, benefits and business expense reimbursement
specified elsewhere in this agreement.
Section 3.01 ( b ) - For the purpose of calculation of
Consultants bonus expenses such as management fee, and all such expenses
that are not directly related to running the business, shall be reversed
before any calculation is made.
OFFICE AND STAFF
Section 3.02 ( a ) - Consultant will provide office equipment
and supplies and other facilities and services suitable for the performance
of its duties.
INDEMNIFICATION
Section 3.03 ( a ) - Consultant will provide the Company with a
financial guarantee bond of the limit and nature requested by the Company.
The Company will pay for said bonds.
ARTICLE IV. COMPENSATION OF CONSULTANT
ANNUAL FEE
Section 4.01 ( a ) - As compensation for the services to be
rendered by the Consultant, hereunder, the Company shall pay Consultant an
annual fee of $48,000.00 (paid at $4,000.00/month) and an annual incentive
fee calculated as follows: Ten Percent (10%) of the first One Hundred
Thousand Dollars ($100,000.00) and Twenty Percent (20%) on all amounts
exceeding One Hundred Thousand One Dollars ($100,001.00) of profit based on
the Income Before Income Tax, increased by the amount of management fee, and
all such expenses that are not directly related to the running of the
business, as stated on the audited annual financial statements of the
Company. The annual incentive fee is limited to a maximum of Two Hundred
Thousand Dollars ($200,000.00) in any given year. The fee may be paid in
installments of estimated amounts with adjustments made within ninety (90)
days of each calendar year-end. The annual incentive fee must be approved
by the Board of Directors prior to disbursement.
FEE CONTINUATION
Section 4.02 ( a ) - If consultant for any reason whatsoever
becomes permanently disabled so that they are unable to perform the duties
prescribed herein, the Company agrees to pay Consultant Fifty Percent (50%)
of all Consultant fees and incentives, payable in the same manner as
provided for the payment of fee herein, for a period of ninety (90) days
subsequent to permanent disability.
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TAXES
Section 4.03 ( a ) - Consultant will be responsible to pay all
applicable Federal and State Taxes with regards to the compensation
received.
ARTICLE V. BUSINESS EXPENSES
BUSINESS EXPENSES
Section 5.01 ( a ) - The Company shall promptly reimburse
Consultant for all reasonable business expenses incurred by Consultant in
discharging the business of the Company, including expenditures for
entertainment and travel.
Section 5.01 ( b ) - Each such expenditure shall be reimbursable
only if it is a nature qualifying it as a proper deduction of the Federal
and State Income Tax return of the Company without regard of percentage (%)
accepted by the IRS.
Section 5.01 ( c ) - Each such expenditure shall be reimbursable
only if Consultant furnishes the Company adequate records and other
documentary evidence required by the Federal and State statutes and
regulations issued by the appropriate taxing authorities for the
substantiation of that expenditure as an income tax deduction without regard
of percentage (%) accepted by the IRS.
ARTICLE VI. TERMINATION OF AGREEMENT
TERMINATION
Section 6.01 ( a ) - The Company is reserved the right to
terminate this Agreement at any time "for cause," which shall include any
act or omission of Consultant that involves: (1) any willful breach or
habitual neglect and (2) any act of fraud, dishonesty, misrepresentation or
other act of moral turpitude, in the discharge of its duties hereunder.
Section 6.01 ( b ) - In the event of termination for cause,
Consultant shall be entitled to fees and incentives earned by and vested in
Consultant prior to the date of termination, as provided by in this
Agreement. Consultant shall be entitled to no further compensation as of
the date of termination.
Section 6.02 ( a ) - The Company is further reserved the right
to terminate this Agreement "without cause" for any or no reason, upon prior
written notice to Consultant.
Section 6.02 ( b ) - In the event of Termination without cause,
Consultant shall be entitled to the fees and incentives earned by and vested
in Consultant prior to the date of termination and for an additional period
of ninety (90) days after the date of termination, as provided in this
agreement.
ARTICLE VII. NOTICES AND MISCELLANEOUS PROVISIONS
NOTICES
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Section 7.01 ( a ) - Any notice to be given by either party to the other
shall be in writing and may be transmitted either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the party(s) at the
addresses appearing in the introductory paragraph of this agreement, but
each party may change that address by written notice in accordance with this
section. Notice delivered personally shall be deemed communicated as of the
date of actual receipt; mailed notices shall be deemed communicated as of
the date of mailing.
ARBITRATION
Section 7.02 ( a ) - Any controversy between Company and
Consultant involving the construction and application of any of the terms,
provisions, or conditions of this agreement shall on the written request of
either party served on the other be submitted to arbitration. Arbitration
shall comply with and be governed by the provisions of the California
Arbitration Act.
Section 7.02 ( b ) - The Company and Consultant shall each
appoint one person to hear and determine the dispute. If the two persons so
appointed are unable to agree, then those persons shall select a third
impartial arbitrator whose decision shall be final and conclusive upon both
parties.
Section 7.02 ( c ) - The cost of arbitration shall be borne by
the losing party or in such proportions as the arbitrators decide.
ATTORNEY FEES AND COSTS
Section 7.03 ( a ) - If any legal action is necessary to enforce
or interpret the terms of this agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs, and necessary disbursement in
addition to any relief to that which that party may be entitled. This
provision shall be construed as applicable to the entire contract.
ENTIRE AGREEMENT
Section 7.04 ( a ) - This agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the agreement between Consultant and the Company, and contains
all of the covenants and agreements between the parties with respect to that
agreement in any manner whatsoever. Each party to this agreement
acknowledges that no representations, inducements, promises or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf
of any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this agreement shall be valid or
binding.
MODIFICATIONS
Section 7.05 ( a ) - Any modifications of this agreement will be
effective only if it is in writing and signed by the party to be charged.
EFFECTIVE WAIVER
Section 7.06 ( a ) - The failure of either party to insist on
strict compliance with any of the terms, covenants, or conditions of this
agreement by the other party shall not be deemed a waiver of that term,
covenant, or condition, nor shall any waiver or relinquishment of any right
or power at any one time or times be deemed a waiver or relinquishment of
that right or power for all or any other times.
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PARTIAL INVALIDITY
Section 7.07 ( a ) - If any provision in this agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
LAW COVENANT GOVERNING AGREEMENT
Section 7.08 ( a ) - This agreement shall be governed by and
construed in accordance with the laws of the State of California.
Section 7.09 ( a ) - Consultant is engaged as an independent
contractor. All compensation, including wages, overtime, benefits,
withholding, payroll taxes and other obligations to persons provided to the
Company by Consultant shall remain the sole and exclusive obligation of
Consultant.
COMPANY
BIRCH FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxx
------------------- Date: 2/3/03
Xxxxx X. Xxxxx, Chairman of the Board ------
CONSULTANT
EFCO, INC.
By: /s/ Xxxxxx Xxxxxx
------------------- Date: 2/14/03
-------
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