1
Exhibit 10.58
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), made and entered into as
of this 13th day of March, 1998, by and between The American Materials &
Technologies Corporation, a Delaware corporation ("Employer"), and Xxxxxx
Xxxxxxxx, an individual (the "Consultant"),
W I T N E S S E T H T H A T :
WHEREAS, Employer and Consultant are parties to that certain Consulting
Agreement, dated July 30, 1996 (the "Existing Agreement");
WHEREAS, Employer and Consultant desire to terminate the Existing
Agreement and enter into this Agreement;
WHEREAS, Employer shall from time to time require the knowledge and
expertise of Consultant in regard to financial strategy and implementation; and
WHEREAS, Employer desires to draw upon and benefit from Consultant's
expertise and the availability thereof and Consultant desires to advise and
consult with Employer and to be available therefor;
NOW, THEREFORE, for and in consideration of the foregoing and intending
to be legally bound hereby, the parties agree as follows:
1. Termination of Existing Agreement. In consideration of all amounts
paid under the Existing Agreement, including all amounts received as advances
against future obligations, Consultant and Employer hereby terminate the
Existing Agreement and agree that neither party will have any further obligation
or liability to the other thereunder.
2. Appointment. Employer hereby appoints and employs Consultant to act
as its advisor and consultant upon and subject to the terms and conditions
hereinafter set forth, and Consultant hereby accepts such appointment and
undertakes to advise and consult with Employer during the term of this Agreement
upon and subject to the terms and conditions hereinafter set forth.
3. Term. The services of Consultant under this Agreement shall be for a
term commencing on February 1, 1998 and expiring on July 1, 1999 (the
"Expiration Date"), unless earlier terminated by (i) Consultant for any reason
upon thirty days' written notice to Employer, or (ii) Employer for Cause (as
hereinafter defined) upon thirty days' written notice to Consultant. For the
purposes of this Agreement, "Cause" shall mean the happening of any of the
following with respect to Consultant: (a) the conviction of, or pleading nolo
contendere to, embezzlement or any other act of dishonesty against the company,
(b) conviction of, or pleading nolo contendere to, a felony, or (c) willful
failure or gross negligence in the performance of duties hereunder.
1
2
4. Duties of Consultant. Consultant shall furnish consulting and
advisory services to Employer in connection with acquisition strategy and
implementation. Such services shall be rendered at such times and in such manner
as shall be mutually agreeable to Employer and Consultant.
5. Compensation. Consultant shall be paid $10,000 per month during the
term of this Agreement.
6. Relationship of the Parties. In performing its services under this
Agreement, the Consultant shall be an independent contractor and, as between
Employer and Consultant, Employer shall not be responsible for withholding,
collection or payment of income taxes or for other taxes of any nature on behalf
of Consultant. Nothing contained herein shall make Consultant the agent,
employee, joint venturer or partner of Employer or provide Consultant with the
power or authority to bind Employer to any contract, agreement or arrangement
with any individual or entity except with the prior written approval of
Employer.
7. Assignment. Neither party hereto may assign, without the other
party's prior written consent, this Agreement, or any right or obligation
hereunder, and any and all assignments without such prior written consent shall
be null and void.
8. Indemnification. The Employer shall indemnify, defend and hold
Consultant harmless from and against any and all losses, claims, damages or
liabilities, joint or several, in connection with any pending or threatened
action, proceeding or investigation to which Consultant may be subject in
connection with the performance by Consultant of his services hereunder; in
addition, the Employer will reimburse Consultant periodically for any reasonable
legal or other expenses (including the cost of any investigation and
preparation) incurred by Consultant and arising from or in connection with any
pending or threatened action, proceeding or investigation, which might give rise
to a claim for indemnification hereunder, whether or not actually resulting in
any liability; provided that Employer shall not be liable under this Section 8
to the extent that a court of competent jurisdiction shall have determined by
final judgment that any such losses, claims, damages, or liabilities resulted
from Consultant's gross negligence or willful misconduct in the performance of
such services; and further provided that (i) Consultant shall have promptly
provided Employer written notice of the commencement of any action, proceeding
or investigation and shall provide reasonable cooperation, information and
assistance in connection therewith, and (ii) Employer shall have sole control
and authority with respect to the defense, settlement, or compromise thereof.
The indemnity contained in this Section 8 shall extend upon the same terms and
conditions to each person, if any, who may be determined to control Consultant
and to any employee or agent of Consultant performing services hereunder. The
provisions of this Section 8 shall survive termination of this Agreement.
9. General Provisions.
9.1 Amendment of this Agreement. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any of the provisions of this Agreement shall
operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as
2
3
specifically provided herein, no failure to exercise or any delay in exercising
any right or remedy hereunder shall constitute a waiver thereof.
9.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, spouses, heirs, and personal and legal
representatives.
9.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
9.4 Notices. Any notice required or permitted by this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery or, if mailed, upon deposit with the United States Post Office
by certified mail, return receipt requested, postage prepaid, to the address for
the recipient set forth on the signature page hereto or to such other address as
the recipient shall hereafter have noticed the sending party in the manner set
forth above.
9.5 Headings. Descriptive headings contained herein are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
9.6 Severability. Any provision of this Agreement which is
unenforceable in any jurisdiction shall be ineffective in such jurisdiction to
the extent of such unenforceability without invalidating the remaining
provisions of this Agreement, and any unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
9.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8 Applicable Law. The rights and obligations under this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware applicable to contracts between Delaware residents made
and to be performed entirely within such State.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
set forth above.
CONSULTANT: EMPLOYER:
XXXXXX XXXXXXXX THE AMERICAN MATERIALS &
TECHNOLOGIES CORPORATION
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxxxx Xxxx X. Xxxxxxx, President
3
