EXHIBIT 10.24
CONSULTING AGREEMENT
AGREEMENT, dated as of the 9th day of August, 1999, by and between
XXXXX XXXX, INC., a Delaware corporation with an office at 0000 Xxxxxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000 (the "Corporation") and XXXXXXXX XXXXXX, with an
address at 0 Xxxxxxxx Xxx, Xxxxxxxx, XX 00000 (the "Consultant").
W I T N E S S E T H :
WHEREAS, the Corporation and the Consultant are parties to that certain
Employment Agreement, dated as of January 30, 1997 (the "Employment Agreement");
and
WHEREAS, the Corporation and the Consultant desire to terminate the
Employment Agreement and replace it in its entirety by the terms and conditions
hereof, except as expressly provided otherwise herein; and
WHEREAS, the Corporation desires to retain Consultant to provide the
advisory services to the Corporation described herein, and Consultant is willing
to be retained by the Corporation to provide such services to the Corporation,
all in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter contained, the parties hereto hereby agree as follows:
1. RETENTION OF CONSULTANT; DUTIES. The Corporation hereby retains
Consultant to furnish, and Consultant hereby agrees to furnish,
consulting services to the Corporation to assist the Corporation
in completing an orderly transition to oversight by third parties
of the responsibilities of Consultant under the Employment
Agreement, and such other services as the Corporation shall
reasonably require. Consultant shall furnish such services in
such manner as shall reasonably be requested by the Corporation,
shall be reasonably available to Corporation representatives, and
shall at all times act in accordance with all applicable laws,
rules and regulations.
2. TERM. The retention of Consultant by the Corporation hereunder
shall commence on and as of September 3, 1999 (the "Commencement
Date") and shall terminate on January 30, 2000, provided, that
the Corporation may terminate this Agreement on thirty (30) days'
prior written notice to Consultant. This Agreement shall be
automatically renewed for additional six (6) month year periods
unless one party has provided at least thirty (30) days' written
notice of nonrenewal prior to the expiration of the then
applicable term.
3. INDEPENDENT CONTRACTOR. Consultant at all times shall act and be
an independent contractor, and in no event shall Consultant nor
any of his employees or agents be deemed to be an officer,
employee, agent or representative of the Corporation by virtue of
Consultant's retention hereunder except as expressly provided
herein.
4. REMUNERATION. During the term of this Agreement, the Corporation
agrees to pay Consultant an amount equal to $2,884.62 per week,
payable at the same time as the Corporation shall pay its senior
executives their regular base salary.
5. TERMINATION OF EMPLOYMENT AGREEMENT. The parties agree that the
Employment Agreement be, and it hereby is, terminated in all
respects effective as of the Commencement Date, including without
limitation all right or interest in the Bonus Pool or any
payments or other consideration to be received upon termination
of Consultant's employment pursuant to the Employment Agreement.
Notwithstanding the foregoing, (i) the Company agrees to continue
full health insurance coverage for Consultant and his dependents,
or if such coverage is unavailable, to reimburse him for his
COBRA payments during the term hereof pursuant to such coverage,
(ii) all the provisions of Section 5 of the Employment Agreement
(entitled "Non-competition, Confidentiality and Inventions")
shall remain in effect, and it shall be presumed that
Consultant's termination of employment shall have occurred on the
Commencement Date; and (iii) the Corporation shall continue to
reimburse Consultant for reasonable business expenses incurred on
behalf of the Corporation against invoices therefor. Consultant
agrees that, during the term hereof, he shall not accept any
employment or engagement whatsoever, paid or unpaid, other than
his engagement hereunder, and that it shall be considered a
material breach of the terms hereof for Consultant not to honor
the provisions of this sentence. The parties agree that any
breach of the terms of the previous sentence shall permit the
Corporation to have all rights that it may have upon a breach of
the provisions of Section 5 of the Employment Agreement.
6. CHANGE IN OFFICER TITLE. Consultant hereby resigns as President
and Treasurer of the Corporation, and agrees to accept the office
of Vice-Chairman of the Corporation if so elected by the Board of
Directors during the term hereof.
7. RETENTION OF OPTIONS. The Corporation agrees that all options to
purchase Corporation common stock, whether incentive or
non-incentive, vested or not, shall be retained by Consultant,
and shall vest in accordance with their terms, provided, that no
condition relating to Consultant's employment with the
Corporation shall apply with respect to termination of such
options.
8. SUCCESSORS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that neither party
hereto may assign this Agreement without the prior written
consent of the other party.
9. MISCELLANEOUS. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws rules thereunder.
This Agreement represents the entire understanding and agreement
between the parties hereto with respect to the subject matter
hereof and thereof, and supersede any and all prior agreements
and understandings of the parties with respect thereto. This
Agreement may be amended, modified, or supplemented only by a
written instrument signed by both of the parties hereto. The
provisions hereof shall be severable, so that the
unenforceability or illegality of any one provision shall not
affect the enforceability or legality of any other provision
hereof. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX XXXX, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx,
Executive Vice President
/s/ Xxxxxxxx Xxxxxx
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XXXXXXXX XXXXXX
