CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of the 31st day
of January, 1996, between CASS RIVER COATINGS, INC., a Michigan corporation
(hereinafter referred to as "Company"), and XXX XXXX (hereinafter referred to as
the "Consultant");
R E C I T A L S
WHEREAS, concurrently with the execution and delivery hereof, the Company,
Consultant and certain other shareholders of Company have executed a Stock
Purchase Agreement whereby Noble International, Ltd. is purchasing from
Consultant and certain other shareholders all of the issued and outstanding
shares of stock of the Company; and
WHEREAS, Consultant has special talents, knowledge and experience which is
of substantial and material value to the Company, and Company desires to avail
itself of such talents, knowledge and experience; and
WHEREAS, Consultant has acquired from Company certain proprietary and
confidential business and technical information relating to Company, and Company
desires to protect such proprietary and confidential business and technical
information.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements set forth herein between the parties and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
1. Term of Agreement. The term of this Agreement is for seven (7) years.
2. Consulting Agreement. The Company hereby engages Consultant during the
term of this Agreement and the Consultant hereby accepts such engagement as a
consultant upon the terms and conditions set forth herein. During the term of
this Agreement, Consultant shall make himself available by personal or
telephonic presence during reasonable business hours for consultations and the
giving of advice and information with respect to the Company's business as
presently conducted, for a period of not more than one hundred fifty (150) hours
per annum.
3. Compensation. Beginning on the thirtieth (30th) day following the date
hereof, and as compensation for his services as described above, the Company
shall pay the Consultant One Hundred Eighty Thousand and 00/100 Dollars
($180,000.00) which shall be payable in eighty four (84) consecutive monthly
installments as follows: (i) twenty four (24) consecutive monthly installments
of Two Thousand Five Hundred Dollars ($2,500.00); and (ii) sixty (60)
consecutive monthly installments of Two Thousand Dollars
($2,000.00). Such compensation shall be the Consultant's entire compensation due
hereunder, and Consultant shall have no power to incur any debts or obligations
on behalf of the Company. Notwithstanding the foregoing, payments to Consultant
during the first twelve (12) months following the date hereof, shall be made
only: (i) from pre-tax profits over and above the first One Hundred Thousand
($100,000.00) Dollars, if any; or (ii) if gross sales for the same period shall
exceed Five Million Five Hundred Thousand Dollars ($5,500,000.00). The
aforementioned pre-tax profit or gross sales shall be calculated on an
annualized cumulative basis beginning January 1, 1996. To the extent that actual
compensation paid during the first twelve (12) consecutive months falls short of
the required payment, the shortfall amount shall be paid in consecutive monthly
installments of Two Thousand Dollars ($2,000.00) beginning in month eighty-five
(85) and continuing thereafter until such time when the shortfall has been paid
in full.
4. Security. As security for the obligations of Company hereunder, Company
hereby grants to Consultant a security interest in all machinery, equipment and
fixtures of Company which security interest shall be subordinate to any bank or
finance company debt. The security agreement shall be in substantially the form
attached hereto as Appendix I and recorded in applicable UCC financing
statements.
5. Effective Date. The effective date of this Agreement shall be January
31, 1996.
6. Notice to the Consultant Regarding his Tax Duties and Liabilities. The
Consultant agrees to accept full responsibility for any and all taxes that may
be lawfully due to any governmental unit and to hold the Company harmless from
and against any liability for the non-payment of taxes due to any governmental
unit with respect to payment of compensation to the Consultant. The Consultant
waives any and all claims from the Company to any form of workers' compensation
insurance coverage or compensation provided under federal, state or local law
which affects employees and employers, and agrees to carry and provide his own
insurance for injury or sickness or retirement, whether in the form of Social
Security or otherwise.
7. Holding Out to General Public. The Consultant represents and affirms
that he is acting as an independent contractor, holding itself out as such to
the general public, and maintains his office and principal place of business at
his own address, and that this Agreement is not exclusive. Consultant is not
acting as an agent or employee of Company.
8. Claim, Liability, Loss or Damage as a Result of Second Party's
Negligence. The Consultant shall indemnify and hold the Company harmless from
and against any claim, liability, loss or damage, including reasonable
attorneys' fees, arising by reason of the death or bodily injury of persons,
injury to property or other loss or damage resulting from the Consultant's
alleged or actual negligent act or omission.
9. Worker's Compensation. The Consultant shall be responsible for
maintaining and providing his personal worker's compensation insurance.
10. Non-Competition. During the term of this Agreement, Consultant will
not, directly or indirectly, whether as an employee, consultant, director,
shareholder, owner (except for ownership in any corporation listed on the New
York or American Stock Exchange not to exceed one (1%) percent of the issued and
outstanding shares of such corporation's capital stock), invest or otherwise
engage in, or have any interest in, or provide any services to, any corporation,
partnership, proprietorship, financial association or business which competes
directly or indirectly with the business of Company or any affiliates thereof,
as currently being conducted, or may in the future be conducted, in any
geographic area where Company or any affiliate thereof conducts business.
11. Hold Harmless. Consultant hereby agrees to defend, indemnify and hold
harmless the Company and any affiliated company, and their respective present
and former shareholders, officers, directors and employees and their attorneys
and agents, and their predecessors, successors, insurers, assigns, heirs,
executors and administrators (collectively referred to as the "Indemnitee"),
from and against any and all claims, demands, causes of action, actions,
judgments, liabilities, losses, costs and expenses, including attorneys' fees
and costs, as they occur, brought against, imposed upon, or incurred or suffered
by, the Indemnitee which in any way relate to the failure of the Consultant to
comply with the terms and conditions of this Agreement.
12. Assignment. This Agreement is assignable by Company in connection with
the sale of all or substantially all of the assets of Company. This Agreement
may not be assigned by Consultant. This Agreement shall inure to the benefit of
and shall be binding upon Company and its successors and assigns and the
respective heirs and legal representatives of Consultant.
13. Severability. The provisions of this Agreement are severable. If any
article, section, paragraph or provision of this Agreement shall be
unenforceable or invalid, it shall not affect the enforceability or validity of
any one or more of the other articles, sections, paragraphs and provisions.
14. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Michigan.
IN WITNESS WHEREOF, we have affixed our signatures this the date first
above referenced.
COMPANY
Cass River Coatings, Inc.,
a Michigan corporation
By: /s/ XXXX X. XXXXX
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Its: Vice President
CONSULTANT
/s/ XXX XXXX
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XXX XXXX
