EXHIBIT 10.31
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of September 15, 1995
between MICROFRAME EUROPE N.V., a Belgium corporation having its
place of business at Xxxxxxxxxxxxx 00, 0000 Xxxx, Xxxxxxx (the
"Company") and MARC KEGELAERS, residing at Xxxxxxxxxxxxx 00, 0000
Xxxx, Xxxxxxx (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of
Consultant upon the terms and conditions stated herein; and
WHEREAS, Consultant desires to render such services to
the Company upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Consulting Term. The Company hereby agrees to
retain Consultant, and Consultant hereby agrees to serve in such
capacity, as a general manager of the Company, upon the terms and
conditions set forth below for a five-year term commencing on the
date hereof (the "Term").
2. Duties. (a) Consultant shall, according to the
general instructions of the Company, perform such duties and
exercise such supervision and powers over and with regard to the
business of the Company and its respective present and future
subsidiaries and affiliated entities, consistent with Consultant's
position with the Company as may be established from time to time
by the Board of Directors or the President of the Company,
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including, without limitation, responsibility with respect to the
operations of the Company, including the Company's distribution of
MicroFrame, Inc. products in Europe. Consultant shall be free to
determine his working hours as well as his vacation periods. He
will make himself available to the Company on a daily basis and
during any 49 of the 52 weeks in each year during the Term as
shall be mutually convenient for Consultant, on the one hand, and
the Company on the other.
In general, Mr. Kegelaers shall be present on the premises of
the Company inasmuch as his presence is necessary for the proper
performance of his contract.
Consultant shall report only to the Board of Directors and to
the President of the Company during the Term. Consultant
covenants and agrees that during the Term he will devote his full
time and efforts to the proper performance of his duties hereunder
and to the furtherance of the interests of the business of the
Company and its respective present and future subsidiaries and
affiliated entities.
(b) It is expressly understood that nothing herein
shall be deemed to create an employer-employee relationship
between the parties hereto and that Consultant is acting hereunder
solely as an independent contractor and no partnership, agency,
joint venture or other association between the parties hereto
shall be created or construed herefrom.
(c) The Consultant shall be alone responsible for
effecting his own tax payments and social security contributions.
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3. Consulting Compensation. Subject to compliance
with the terms and conditions contained in the Share Purchase
Agreement of even date herewith ("Share Purchase Agreement"), of
which the Consultant is a party, by the Seller (as defined in the
Share Purchase Agreement), in consideration of the services to be
rendered by Consultant under this Agreement, the Company shall pay
the Consultant, as a consulting fee, the sum of US$ 75,000 per
annum for the first year of the Term, payable against the
submission by Consultant of invoices but at most each month. This
annual fee shall be increased by five percent (5%) over the annual
fee in effect for the immediately preceding year on each of the
first, second, third and fourth anniversaries of the date hereof.
4. Expenses. In addition to the consulting fee
provided for above, the Company shall reimburse Consultant for all
reasonable expenses incurred by him (a) which are necessary for
Consultant to perform his duties under this Agreement, and (b) for
which Consultant has submitted appropriate vouchers and/or receipts.
5. Termination upon Death or Disability. (a) In the
event of the death of Consultant during the Term, this Agreement
shall terminate and come to an end on the date of such death;
provided, however, that the estate of Consultant shall be entitled
to receive, and the Company will pay to such estate, all amounts
Consultant would have been entitled to receive hereunder prior to
his death.
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(b) In the event that Consultant shall be
prevented from rendering substantially all of his services or
performing substantially all of his duties under the Agreement by
reason of illness, injury or incapacity for a period of at least
three (3) consecutive months, or six (6) months during any twelve
(12) month period ("disability"), the Company shall have the right
to terminate this Agreement upon two (2) weeks prior written
notice. Until so terminated, Consultant shall be entitled to
receive his consulting fee pursuant hereto even though he shall be
unable to perform services hereunder by reason of the illness,
injury or incapacity. Upon termination due to illness, injury or
incapacity as hereinabove provided, Consultant shall not be
entitled to receive any additional consulting fees from the month
in which such termination occurred or for any year thereafter.
6. Confidential Information. Consultant recognizes
and acknowledges that information relating to the financial,
business and other affairs of the Company or MicroFrame, Inc. and
their respective subsidiaries and affiliated entities, including
customers lists and other trade secrets, are valuable, special and
unique assets of the Company and MicroFrame, Inc. and are
considered confidential. Accordingly, Consultant will not, during
or after the Term, disclose or cause to be disclosed any of such
confidential information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever,
except as required in furtherance of the business of the Company
or their respective subsidiaries or affiliated entities. The
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provisions of this paragraph shall not apply to information
generally known to the public or the trade. The provisions of
this paragraph 6 shall survive the expiration or termination of
this Agreement.
In the event of a breach or threatened breach by
Consultant of any provision of this paragraph 6, Consultant hereby
consents to the granting of a temporary or permanent injunction
against him by any court or competent jurisdiction prohibiting him
from violating any such provision of this Agreement. In any
proceeding for an injunction and upon any motion for a temporary
or permanent injunction, Consultant agrees that his ability to
answer in damages shall not be a bar or interposed as a defense to
the granting of such temporary or permanent injunction against
Consultant. Consultant further agrees that the Company and
MicroFrame, Inc. will not have an adequate remedy at law in the
event of any such breach by Consultant hereunder and that the
Company and MicroFrame, Inc. will suffer irreparable damage and
injury if Consultant breaches any of the provisions of this
paragraph 6. Nothing contained herein shall be construed as
prohibiting the Company or MicroFrame, Inc. from pursuing any
other remedy or remedies available to them including, without
limitation, the recovery of damages from Consultant.
7. Non-Competition and Solicitation. (a) Consultant
covenants and agrees that, during the Term and for a period of
three years thereafter, he will not, directly or indirectly,
engage in the business of, own or control any interest in, act as
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director, officer or consultant to or be connected in any manner
with, as an employee or otherwise, any person, firm, corporation,
association or other entity other than the Company or MicroFrame,
Inc. or any of their respective subsidiaries or affiliated
entities which is engaged in any business in which the Company or
MicroFrame, Inc. or any of their subsidiaries or affiliated
entities is then engaged; and
(b) covenants and agrees that from and after the
date hereof he will not, directly or indirectly, solicit for the
benefit of any entity other than the Company or MicroFrame, Inc.
or their respective subsidiaries or affiliated entities any of the
customers of the Company or MicroFrame or their respective
subsidiaries or affiliated entities; and
(c) induce or persuade any employee or consultant
of the Company or MicroFrame, Inc. or their respective subsidiaries
or affiliated entities to join him in any activity prohibited by
this paragraph 7.
8. Assignability. This Agreement may not be assigned
by Consultant and all of its terms and conditions shall be binding
upon and inure to the benefit of the Company, Consultant and their
respective heirs, legal representatives, successors and assigns.
9. Entire Agreement; Modification. This Agreement
constitutes the entire agreement between the parties hereto and
may not be modified or amended except by a writing signed by all
the parties hereto.
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10. No Waiver. The failure of any of the parties
hereto to enforce any provision hereof on any occasion shall not
be deemed to be a waiver of any preceding or succeeding breach of
such provision or of any other provision.
11. Notices. Any notice under the provisions of this
Agreement shall be given by registered or certified mail, return
receipt requested, directed to the addresses set forth above,
unless notice of a new address has been sent pursuant to the terms
of this paragraph.
12. Unenforceability; Severability. If any provision
of this Agreement is found to be void or unenforceable by a court
of competent jurisdiction, the remaining provisions of this
Agreement shall, nevertheless, be binding upon the parties hereto
with the same force and effect as if the unenforceable part has
been severed and deleted.
13. Governing Law and Jurisdiction. This agreement
shall be construed and governed by Belgian Law. Any dispute
between the Parties shall be of the exclusive competence of the
Courts of Antwerp.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
/s/ Marc Kegelaers
Marc Kegelaers
Agreed to and accepted
with respect to all
applicable provisions:
The Company
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
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