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EXHIBIT 10.7
CONSULTING AGREEMENT, made the 22nd day of July, 1996, by and
between Westbury Alloys, LLC, a New York limited liability company having its
principal offices at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx (the "Company"), and
Xxxxxxxx Xxxxxx ("Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant has considerable knowledge and
experience in business matters regarding the business of refining (the
"Business"); and
WHEREAS, the Company desires to obtain the benefit of
Consultant's special knowledge and experience in the Business to assist the
Company in retaining its clients and increasing its business; and
WHEREAS, the Company's manager has determined that it would be
in the best interest of the Company to make use of the Consultant's knowledge
and experience; and
WHEREAS, Consultant desires to serve as a consultant to the
Company;
NOW THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained the Company and Consultant hereby
agree as follows:
1. Term. The Company hereby engages Consultant to render the
consulting services as hereinafter set forth, and Consultant hereby agrees to
render such services (the "Term") for a period of five (5) years beginning on
the date hereof.
2. Consulting Services. The Company hereby retains the
Consultant, and the Consultant agrees to render consulting and advisory services
to the Company during the Term hereof in connection with the conduct of the
Business, from time to time, as the President or manager of the Company may
reasonably request. Consultant shall not be required to expend any minimum
number of hours hereunder and the rendering of all consulting services shall be
subject in priority to Consultant's own business interests. Notwithstanding the
foregoing, the Company shall have the right to meet with Consultant
semi-annually if it shall so elect, at times agreeable to the Company and
Consultant.
3. Fees. In consideration for (a) the availability of
Consultant to render the services, (b) the services to be rendered by Consultant
during the Term, (c) the other provisions of this Agreement, the Company will
pay to the Consultant a fee of $ 50,000.00 payable in sixty (60) monthly
installments of $833.34.
The payment due in respect of any month shall be paid on the
first business day of that month, except that the first month's payment shall be
made the date hereof and shall not be pro-rated.
In the event that the Company shall fail to pay any such
installment and failure to pay such installment shall continue for a period of
five (5) days after receipt by the Company from Consultant of written notice of
such failure to pay, then all remaining payments hereunder shall become
immediately due and owning to Consultant.
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In the event of death or disability of the Consultant, the fee
will continue to be paid to Consultant (or his estate, heirs or legal
representatives).
4. Expenses. Upon submission of proper vouchers or other
similar evidence of expenditures, the Company shall, upon request by Consultant,
reimburse Consultant for all reasonable travel and out-of-pocket expenses
incurred by him in connection with services requested and rendered hereunder.
Any single expense item over $100 requires the prior approval of the Company.
5. Benefits. During the entire five (5) year period, whether
or not payment is accelerated pursuant to Section 3 above, the Company will
provide the Consultant, at no cost to the Consultant (subject to the next
sentence below), with long term disability insurance coverage and with family
health coverage, in each case equal to the coverage of executives (which term
includes managers) of the Company and in no event less than the coverage
provided to Consultant by Westbury Alloys, Inc. Notwithstanding the prior
sentence, the Company shall not be required to pay premiums in excess of the
premium amount for Consultant's coverage under the plans provided by Westbury
Alloys, Inc. during the twelve months prior to the date hereof (the "Old
Premium") except to the extent the premium it pays for its executives exceeds
the Old Premium. Consultant will have the options, during such five (5) year
period, to receive the amount of the premium for such health insurance coverage
and to obtain his own health insurance; provided, however, that this option can
only be exercised once during such period and, once exercised, is irrevocable.
As long as a "cafeteria plan" is available to the Company's employees, the
Company will deem any amount of the benefits provided, that would be considered
compensation to the Consultant, as being provided under the cafeteria plan, to
the extent possible.
6. Non-Competition. (a) The Consultant agrees and covenants
that during the term of this Agreement, in any of New York, the six New England
states, Pennsylvania, Delaware, New Jersey and Maryland, not to engage in or
carry on, directly or indirectly, either for itself or as a member of a
partnership or as a stockholder or investor (except for ownership of securities
not exceeding five percent (5%) of any class of the issued and outstanding
voting securities of a corporation any class of whose equity securities are
traded on a national securities exchange or on the over-the-counter market) or
as an agent or consultant of a corporation or other business or entity (other
than the Company, or a parent, subsidiary or affiliate of the Company), a
precious metal refining business similar to or competing with any business
carried on by the Company.
(b) The Consultant and the Company agree that the remedies
available at law for any breach by the Consultant of this Section 6 will be
inadequate and the Company shall be entitled to injunctive relief in any action
or proceeding to enforce the same.
(c) The provisions of this Section 6 shall have no force and
effect if and from the time when the Company has defaulted as to a material
provision of the Assets and Business Purchase Agreement between the Company, the
Consultant and Westbury Alloys, Inc., dated July 3, 1996, the Company has
received notice of such default and has not cured such default within 20
business days from receipt of such default notice, or an Event of Default
(including
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Notice and passage of time) as to the Company has occurred under the Lease or
Option Agreement.
7. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when either served personally or one (1) business day after being
sent priority delivery by a nationally recognized courier or three (3) days
after being mailed by certified or registered mail, return receipt requested:
to the Company at:
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
to Consultant at:
Xx. Xxxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
and to such address or to such persons as the Company, on the one hand, or
Consultant, on the other hand, shall have last designated by written notice to
the other.
8. Assignability. This Agreement shall inure to the benefit of
and be binding upon the parties, their successors and permitted assigns.
Consultant may not assign this Agreement or its rights or obligations hereunder
without the prior written consent of the Company. The Company may assign its
right and obligations hereunder to any affiliate or any person or entity which
acquires all or substantially all of the assets of or interest in the Company,
or with or into which the Company is consolidated or merged, upon assignment
shall be subject to the express terms and conditions hereof, and provided,
further, however, that a condition to such assignment, the assignee shall
specifically assume any and all obligations of the Company pursuant to this
Agreement and the Company shall nevertheless continue to remain severally liable
hereunder.
9. Entire Agreement. This instrument contains the entire
agreement between the parties as to the subject matter herein and supersedes all
prior agreements whether oral or written between the parties hereto. This
Agreement may be modified only by a written instrument signed by the parties.
10. Governing Law. This Agreement shall be governed by and
construed (both as to validity and performance) and enforced in accordance with
the laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction.
11. Counterparts. This Agreement may be executed in
counterparts each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
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12. Default. In the event that the Consultant shall commit a
breach of this Agreement, the Corporation shall be required to give the
Consultant a written notice thereof and an opportunity to cure such default
within a sixty (60) day period.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
WESTBURY ALLOYS, LLC
By: _____________________________
Xxxxxx Xxxxxxx, President
By: _____________________________
Xxxxxxxx Xxxxxx
