CONSULTING AGREEMENT
THIS AGREEMENT is made as of May 23, 1997, between Clearview
Cinema Group, Inc., a Delaware corporation (the "Company"), and MidMark
Associates, Inc., a New Jersey corporation ("MidMark").
WHEREAS, the Company is engaged in the business of the
ownership and operation of cinemas, and MidMark is experienced in business and
organizational strategy and financial and investment management; and
WHEREAS, the parties hereto are parties to a Management and
Monitoring Fee Agreement, dated as of May 29, 1996 (the "Monitoring
Agreement"), pursuant to which MidMark has been providing business and
organizational strategy and financial and investment management services to the
Company; and
WHEREAS, the Company is contemplating an initial public
offering (the "Offering") of shares of its Common Stock, $.01 par value,
pursuant to a registration statement on Form SB-2 to be filed with the
Securities and Exchange Commission on May 27, 1997; and
WHEREAS, the parties hereto have been discussing terminating
the Monitoring Agreement in connection with the Offering; and
WHEREAS, the Company desires to retain MidMark after the
Offering to provide business and organizational strategy and financial and
investment management consulting services to the Company, upon the terms and
conditions hereinafter set forth, and MidMark is willing to undertake such
obligations.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment.
From and after the date of the consummation of the Offering,
the Company hereby engages MidMark and MidMark hereby agrees under the terms
and conditions set forth herein to provide certain services to the Company as
described in Section 2 hereof.
2. Duties of MidMark.
MidMark shall provide the Company with business and
organizational strategy and financial and investment management consulting
services. The Company is free to accept or reject any advice rendered to it by
MidMark hereunder.
In addition, officers of MidMark may serve as directors of
the Company following the consummation of the Offering and the Consulting Fee
(as defined below) provided for herein shall serve as full compensation for
such service, in lieu of any separate or additional directors' fees.
3. Compensation of MidMark.
During the term of this Agreement, the Company agrees to pay
MidMark, on a monthly basis, a consulting fee (the "Consulting Fee") in cash at
the rate of $60,000 per year.
4. Term and Termination of Agreement.
This Agreement shall be for a term of six years commencing on
the date of the consummation of the Offering; provided, however, that this
Agreement shall be automatically terminated and the obligation of the Company
to pay the Consulting Fee shall immediately cease if (a) no officer of MidMark
is serving as a director of the Company, and (b) the holders of the Class A
Convertible Preferred Stock, $.01 par value, of the Company no longer have the
right, voting separately as a single class, to elect directors of the Company.
5. Liability.
MidMark is not and never shall be liable to any creditor of
the Company and the Company agrees to indemnify and hold MidMark harmless from
and against any and all claims of alleged creditors and against all costs,
charges and expenses (including reasonable attorneys' fees and expenses)
incurred or sustained by MidMark in connection with any action, suit or
proceeding to which it may be made a party by any alleged creditor in
connection with this Agreement. The Company also agrees to indemnify and hold
MidMark harmless from and against any and all liabilities, losses or damages
suffered, paid or incurred by MidMark arising out of, or in any way connected
with, or as a result of, the execution and delivery of this Agreement, or the
performance by MidMark of services hereunder, except for claims arising out of
or related to the negligence or willful misconduct of MidMark.
6. Assignment.
This Agreement shall be binding upon and inure to the benefit
of the parties' successors. Neither this Agreement nor any of the rights of the
parties hereunder may be transferred or assigned by either party hereto. Any
attempted transfer or assignment in violation of this Section 6 shall be void.
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7. Relationship of the Parties.
Nothing contained in this Agreement is intended or is to be
construed to constitute MidMark and the Company as partners or joint venturers
or either party as an employee of the other party. Neither party hereto shall
have any express or implied right or authority to assume or create any
obligations on behalf of or in the name of the other party or to bind the other
party to any contract, agreement or undertaking with any third party.
8. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be
amended, modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties hereto or, in the case of waiver, by the party waiving compliance.
(b) Notices. Any notice or other communication required
or which may be given hereunder shall be in writing and shall be delivered
personally, telecopied, or sent by certified, registered, or express mail,
postage prepaid, to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice, and shall be
deemed given when so delivered personally or telecopied, or if mailed, two days
after the date of mailing, as follows:
(i) if to the Company, to:
Mr. A. Xxxx Xxxx
Chief Executive Officer
Clearview Cinema Group, Inc.
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: 000-000-0000
(ii) if to MidMark, to:
MidMark Associates, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopy: 000-000-0000
(c) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior contracts and other agreements (including, without
limitation, subject to Section 8(h) below, the Monitoring Agreement).
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(d) Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(e) 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.
(f) Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by, and construed and enforced in accordance with
and subject to, the laws of the State of New Jersey applicable to agreements
made and to be performed entirely within such State. Each of the parties hereto
consents and agrees to the jurisdiction of any State or Federal court sitting
in the County of Xxxxxx, State of New Jersey, and waives any objection based on
venue or forum non conveniens with respect to any action instituted therein,
and agrees that any dispute concerning the conduct of any party in connection
with this Agreement shall be heard only in the courts described above.
(g) Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction or any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(h) Termination. Effective as of the date of the
consummation of the Offering, all rights and obligations of the parties thereto
under the Monitoring Agreement shall terminate and the Monitoring Agreement
shall have no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CLEARVIEW CINEMA GROUP, INC.
By: ________________________
Name: A. Xxxx Xxxx
Title: President
MIDMARK ASSOCIATES, INC.
By: ________________________
Name:
Title:
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