Consulting Agreement - CAP Advisers Ltd. and Richard Trefz
AGREEMENT
This agreement, dated as of November ____, 1997 (this "AGREEMENT") between
CAP ADVISERS LIMITED, a company organized under the laws of Guernsey, Channel
Islands (the "COMPANY"), and RICHARD TREFZ (the "CONSULTANT").
W I T N E S S E T H
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WHEREAS, the Company is an investment advisory company and wishes to engage
the Consultant to provide advisory services to the Company and certain other
designated entities (collectively, "DESIGNATED ENTITIES") with respect to the
business and affairs of Ion Laser Technology, Inc. ("ILT"); and
WHEREAS, the Consultant has been elected and has agreed to serve as a
member of the Board of Directors of ILT and has financial business experience
and is willing to make that experience available to the Company for the benefit
of the designated entities subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Consultancy Services Relating to Ion Laser Technology, Inc. The
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Consultant shall provide the following services to the Company for the benefit
of the Company and designated entities:
(a) the Consultant will familiarize himself with the business and
affairs of ILT and any subsidiary thereof and render such advice
and reports to the Company with respect to the Company's or
designated entities' investment in securities of ILT as the
Company shall reasonably require from time to time; and
(b) the Consultant shall perform such other incidental services as
the Company may reasonably request from time to time.
As the full and complete consideration for the services to be provided by
the Consultant under Section 1 above the Company shall, in addition to the
Options granted under Section 3 below, pay the Consultant a consulting fee at a
rate of $50,000 per annum. Such fee shall be paid in equal quarterly
installments on the 15/th/ day of each January, April, July and October during
the term hereof, commencing January 15, 1998. The amount of any quarterly
payment shall be appropriately adjusted if the period to which any payment
relates is less than a full quarter and by the amount of any cash compensation
received with respect to such quarter by Consultant from ILT for his services as
a director or otherwise. The Company shall also reimburse the consultant for his
documented
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reasonable out-of-pocket costs incurred in the performance of his duties
hereunder to the extent such expenses are not reimbursed by ILT or any other
third party. The Consultant may keep for his own account any stock or options
received by him as a member of the Board of Directors of ILT without any
adjustment to the consulting fee payable hereunder.
2. Term of Agreement. The term of this Agreement shall commence on the
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date hereof and shall continue thereafter until terminated by either party
giving at least 30 days' prior written notice to the other party.
3. Grant of Options. The Company hereby grants to the Consultant an
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option to purchase from the Company or its affiliate 50,000 shares of ILT common
stock at a purchase price of $4.00 per share ("OPTIONS").
4. Adjustment Upon Changes in Capitalization. In the vent of any change
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in the number of shares of outstanding common stock of ILT prior to the
expiration of the Options by reason of stock dividends, split-ups,
distributions, recapitalizations, combinations, exchanges of shares or the like,
the number of shares of common stock or other securities subject to the Options
and the option price for the Options shall be adjusted appropriately.
5. Exercise of the Options.
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(a) Subject to the provisions of Section 5(b), the Options may be
exercised in whole or in part by the Consultant at any time from
the date hereof to and including November 19, 2002.
(b) The Options may be exercised by the Consultant only while he is a
director of ILT or within 30 days after the date he ceases to be
such a director, except that in the event of his death while so
serving or in the event of his death within 30 days after the
date he ceases to so serve, then such option may be exercised by
his executors, administrators or other legal representatives,
heirs, legatees, next of kin or distributees within three months
of his death or if, later within three months after the date of
the legal qualification of the executors or administrators of his
estate. Notwithstanding anything in this "Agreement to the
contrary, the Options herein granted to the Consultant shall in
no event be exercisable after November 19, 2002 or after
Consultant shall have been removed as a director of ILT for
cause. For the purposes hereof, the term "cause" shall mean (i)
indictment for a crime and (ii) gross negligence or willful
malfeasance in the performance of his duties.
(c) The Options herein granted to the Consultant shall not be
transferrable by the Consultant other than by will or the laws of
descent and distribution, and shall be exercisable, during this
lifetime, only by him. The provisions for such Options shall
become null and void and inoperative immediately upon any
attempted sale, assignment, transfer or other disposition by the
Consultant of such Options or any of his right, title and
interest therein; provided, however, that nothing herein shall be
construed as prohibiting the Consultant upon his
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death (at any time while he has the right to exercise such
Options) from providing for the disposition of such Options or
his right, title and interest in it by will or as prohibiting the
transfer of such Options by the laws of descent and distribution.
(d) If the Consultant makes an exercise of the Options which relate
to at lease 15,000 shares of ILT common stock, the Company shall
use its best efforts to cause to be assigned to the Consultant
any registration rights to which the Company or any designated
entities may be entitled relating to such shares.
(e) In the event Consultant wishes to exercise the Options,
Consultant shall send a written notice to the Company specifying
a date (not earlier than 15 business days nor later than 45
business days from the date such notice is given) for the closing
of such purchase the ("Closing").
(f) The Closing shall be at such place in the United States or
Ireland as is reasonably designated by the Company. At the
Closing (i) the Consultant will make payment to the Company of
the aggregate option price of the ILT common stock to be sold by
the Company in immediately available funds by a wire transfer to
a bank designated by the Company at least two business day prior
to such Closing, and (ii) the Company shall deliver to the
Consultant a certificate or certificates representing the ILT
common stock purchased by the Consultant from such shareholder
duly endorsed in blank or accompanied by a stock power duly
signed in blank.
4. Relationship of Parties. The Consultant and the Company are entering
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into this Agreement as principals and nothing herein contained shall be
construed as making either party an agent of the other for any purpose or as
making either party an agent of any third party or as making the Consultant an
employee of the Company. In particular, the Consultant shall have no power to
enter into any contracts on behalf of the Company or to bind the Company in any
way or to require the Company to act in accordance with the advice,
recommendations and other services to be provided by the Consultant to the
Company hereunder.
5. Reports. The Consultant shall prepare and submit to the Company such
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regular periodic reports with respect to the activities undertaken by him in
connection with this "Agreement as the Company may reasonably request from time
to time (consistent with the Consultant's duties as an ILT Director).
6. Confidential Information. The Consultant shall not during the term of
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this "Agreement (otherwise than in the proper performance of his duties) or
thereafter without the prior written consent of the Company divulge to any
person, firm or company, and shall during the term of this Agreement use his
best endeavors to prevent the publication or disclosure of, any information
concerning the confidential aspects and business, accounts or finances of the
Company or any of the designated entities or the identity of their respective
directors, trustees, shareholders or other beneficial owners or any of the
secrets, dealing, transactions or affairs of the Company or any of the
designated entities which have or may come to his knowledge during the course of
this Agreement
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or previously or otherwise. On the termination of this Agreement, the Consultant
shall forthwith surrender to the Company or as it may direct all original and
copy documents in his possession relating to the business or affairs of the
Company and any designated entities.
7. Notices. Any notice or other document to be given hereunder to the
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Company shall be delivered or sent by hand, by first class recorded delivery
post or by telecopier to the Company at its office address at 36 Fitzwilliam
Place, Dublin 2, Ireland, and any notice or other document to be given hereunder
to the Consultant shall be delivered to him or sent by hand, by first class
recorded delivery post or facsimilied to his address at 428 Wheatsheas Road,
Springfield, Pennsylvania 19060. Either party may change the address to which
notices are to be sent by informing the other party in writing of the new
address.
8. Governing Law. This Agreement and the relationships of the parties in
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connection with the subject matter of this agreement shall be governed by and
construed in accordance with the laws of New York without regard to the choice
of law doctrine thereof.
9. General.
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(a) The Company shall notify the Consultant in writing from time to
time of those entities that are "designated entities" for the
purposes of this Agreement.
(b) All payments of money to the Consultant will be subject to such
deductions and withholdings by the Company as the Company is from
time to time required to make pursuant to law or governmental
regulations.
(c) This Agreement constitutes the entire agreement of the parties
hereto with respect to the services to be provided by the
Consultant to the Company and supersedes all prior agreements and
understandings of whatever nature between the parties hereto, and
each of the parties acknowledges that it has not been induced to
enter into this "Agreement by any representation not incorporated
in this Agreement.
10. Representation as to Investment. The exercise of the Options and the
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delivery of the shares subject to it will be contingent upon the Company's being
furnished by the Consultant, his legal representatives, or other persons
entitled to exercise the Options a statement in writing that at the time of such
exercise it is his or their intention to acquire the shares being purchased
solely for investment purposes and not with a view to distribution.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date first written above.
CAP ADVISERS LIMITED
By /s/ CAP ADVISERS LIMITED
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Name:
Title:
/s/ Richard Trefz
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RICHARD TREFZ