EXHIBIT 10.5
XXXXXXXX ENTERPRISES
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INVESTMENT BANKERS
00000 XXXXXX XXXXXX XXXXX
XXXXXX, XX 00000
(000) 000-0000
FAX (000) 000-0000
CONSULTING AGREEMENT BETWEEN XXXXXXX XXXXXXXX AND
SOLIGEN TECHNOLOGIES, INC.
On September 9, 1996, Xxxxxxx Xxxxxxxx ("Xxxxxxxx") joined the board of
directors of Soligen Technologies, Inc. ("Soligen" or the "Company"). In
addition to, and separate from, those duties that Xxx Xxxxxxxx is to perform in
the normal course of his duties as a director of Soligen, Soligen hereby retains
Xxxxxxxx (through Xxxxxxxx Enterprises "FE") to provide general consulting
services ("Consulting") to Soligen, on a reasonably requested basis. The
rationale for this agreement is the understanding that Soligen expects Xxxxxxxx
to be directly involved with certain activities as outline below, assist the
Company's CEO in certain duties, and be prepared to assume a more active
management role, on an interim basis, in the event that Xxxxxxx Xxxxx is
temporarily or permanently not able to fulfill his responsibilities as Chairman
and CEO of Soligen.
Such Consulting shall include an be reasonably consistent with the following:
1) attendance at Company strategic meetings such as the Xxxxx Xxxxxx'
meetings.
2) assistance in formulating and editing the Company's business plans,
budgets, strategic plans and their respective interim amendments,
3) frequent one-on-one strategy discussions with Xxxxxxx Xxxxx,
4) introduction of possible sales accounts, assisting in high level
discussions with potential strategic partners, customers, joint venture
foundries, joint development partners, and potential licensees of
Soligen's technology or services,
5) introduction of prospective investment bankers to effect a secondary
offering of securities for Soligen,
6) interaction with Soligen's investor relations' firm to address general
strategy, assisting in establishing investor relations plans, and
implementing, as appropriate, such plans,
7) assisting Soligen in management and key personnel staffing decisions
including interviewing of key management personnel, and candidates for
key positions,
8) advise to Soligen with respect to general financial strategy.
As compensation for the Consulting services, Soligen hereby agrees to
immediately sell to Xxxxxxxx, for an aggregate price of ten dollars, warrants to
acquire 500,000 shares of Soligen, with an exercise price of seventy-five cents
per share, subject of the following vesting schedule, and an expiration date for
such warrants of December 31, 2006:
December 31, 1997 200,000
December 31, 1998 150,000
December 31, 1999 100,000
December 31, 2000 50,000
Soligen and FE hereby agree that in the event FE provides investment banking
services to Soligen, such as acting as a finder to seek private debt and equity
capital for Soligen, as well as representing Soligen with respect to prospective
mergers and acquisitions, such services will not be included in the Consulting
role or compensation as delineated above. A decision to engage FE to provide
investment banking services, as well as any decision to accept a financing,
merger or acquisition proposal submitted by FE will be subject to Soligen's
Board of Director approval (on which Xxxxxxx Xxxxxxxx will abstain from voting).
The Consulting services are to be performed over a five-year period of time,
commencing January 1,1997, with the understanding that there is no specific hour
requirement or expectation attached to such services. However, it is clearly
understood by Soligen and FE, that these services are not to be performed on a
full-time basis, and furthermore, that FE has other significant time demands for
other activities.
The Company agrees to indemnify and hold FE harmless against any losses, claims,
damages or liabilities, joint or several, to which FE directly or indirectly may
become subject in connection with or arising out of the services of this
agreement, and Soligen agrees to defend FE, with attorneys who are acceptable to
FE, which acceptance shall not be unreasonably withheld, against any loss,
claim, damage or liability or any action in respect thereof; provided, however,
that the Company shall not be liable under the foregoing indemnity agreement if
any loss, claim, damage or liability to the extent that a court having
jurisdiction shall have determined by a final judgment on the merits that such
loss, claim, damage or liability resulted from the bad faith or gross negligence
of FE. The indemnity agreement in this paragraph shall, upon the same terms and
conditions, extend to and inure to the befit of each person, if any, who may be
deemed to control FE and to its officers, directors and employees, and shall
survive the termination of FE's engagement hereunder.
The term of this agreement shall be for a period commencing form January 1, 1997
and continuing through December 31, 2001 provided, that this agreement may be
terminated, if the board so votes, immediately upon the resignation of Xxx
Xxxxxxxx from the Board of Directors for reasons other than individual board
member wrongdoing, a decision by the Company (except if Xxx Xxxxxxxx agree with
such decision) to eliminate Directors and Officers insurance or to carry less
than one million dollars of such coverage, a board decision, that Xxx Xxxxxxxx
disagrees with, regarding how to address a threatened or actual litigation
against the Company and/or its board members. In addition, the Company's Board
of Directors may terminate Xxx Xxxxxxxx'x status as a consultant hereunder for
"Cause". For purposes of this Agreement, Cause shall be defined as (I) an act
or acts of judicially determined dishonesty, relating to the activities of
Soligen, by Xxx Xxxxxxxx that actually results in his personal enrichment, or
(ii) the conviction of Xxx Xxxxxxxx of a felony. Upon any such termination, as
described in this paragraph, additional vesting of the warrants purchased by FE
hereunder shall be vested pro rata through such termination date.
Any Controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled by arbitration in Los Angles, California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
If any party to this agreement brings an action directly or indirectly based on
this Agreement, the prevailing party shall be entitled to reasonable expenses
therefor, including, but not limited to, attorney's fees and court costs.
Please confirm that the foregoing is in accordance with your understanding by
signing and returning to me the duplicate of this letter attached hereto.
Sincerely,
XXXXXXXX ENTERPRISES
/s/ Xxxxxxx X. Xxxxxxxx June 5, 1997
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Xxxxxxx X. Xxxxxxxx Date
The foregoing has been read, understood and approved.
SOLIGEN TECHNOLOGIES, INC.
/s/ Xxxxxxx Xxxxx June 6, 1997
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Xxxxxxx Xxxxx CEO Date