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EXHIBIT 10.18
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into effective as of _______________
by and among Provant, Inc., a Delaware corporation (including, for purposes of
Sections 5(c) and (d), 7, 8, 9 and 12(a), its direct and indirect subsidiaries,
the "Company"), and Xxxxxxx X. Xxxxxx of Mokton, Maryland (the "Consultant").
In consideration of the mutual promises, terms, provisions and
conditions set forth in this Agreement, the parties hereby agree as follows:
1. ENGAGEMENT. Subject to the terms and conditions set forth in this
Agreement, the Company hereby engages the Consultant as an independent
contractor and the Consultant hereby accepts such retention by the Company.
2. TERM. Subject to earlier termination as hereafter provided, the
Consultant's engagement hereunder shall be for a term of three (3) years,
commencing effective upon the closing of the Company's initial public offering
(the "IPO") of its common stock, $.01 par value per share (the "Effective
Date"). The term of this Agreement, as from time to time extended or renewed, is
hereafter referred to as "the term of this Agreement" or "the term hereof."
3. SERVICES.
(a) During the term hereof, the Consultant shall provide
business development and acquisition related services to the Company.
The Consultant shall perform such reasonable additional services as may
be requested by the Company from time to time. In addition, and without
further compensation, the Consultant shall serve as a director of the
Company if so elected or appointed from time to time.
(b) During the term hereof, the Consultant shall devote his
best efforts, business judgment, skill and knowledge to the advancement
of the business and interests of the Company and to the provision of
the services contemplated hereby.
(c) During the term hereof, the Consultant shall report to and
the services he provides shall be directed by the Chief Executive
Officer of the Company.
(d) During the term hereof, the Consultant shall not be
required to devote more than five (5) days in any week to the provision
of the services contemplated hereby.
(e) The Company shall not require the Consultant to relocate or
reassign the Consultant to any location beyond a fifty (50) mile radius
of the
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location of the Consultant's place of residence as of the date hereof,
nor shall the Consultant's duties hereunder be materially changed,
without the Consultant's prior written consent.
4. COMPENSATION AND BUSINESS EXPENSES. As compensation for all
services performed by the Consultant under and during the term hereof and
subject to performance of the Consultant's duties and obligations, pursuant to
this Agreement or otherwise:
(a) CONSULTING FEE. During the term hereof, the Company shall
pay the Consultant a consulting fee at the rate of One Hundred
Twenty-Five Thousand Dollars ($125,000) per annum, payable in
accordance with the payroll practices of the Company for its
consultants and subject to increase from time to time by the Board or a
compensation committee of the Board in its sole discretion. Such
consulting fee, as from time to time increased, is hereafter referred
to as the "Consulting Fee."
(b) BUSINESS EXPENSES. The Company shall pay or reimburse the
Consultant for all reasonable and necessary business expenses incurred
or paid by the Consultant in the performance of his duties and
responsibilities hereunder, subject to any maximum annual limit and
other restrictions on such expenses set by the Board and to such
reasonable substantiation and documentation as may be specified by the
Company from time to time.
5. TERMINATION OF SERVICES AND NON-RENEWAL FEE. Notwithstanding the
provisions of Section 2 hereof, the Consultant's retention hereunder shall
terminate prior to the expiration of the term hereof under the following
circumstances:
(a) DEATH. In the event of the Consultant's death during the
term hereof, the Consultant's engagement hereunder shall immediately
and automatically terminate. In that event, the Company shall pay to
the Consultant's designated beneficiary or, if no beneficiary has been
designated by the Consultant, to his estate, any earned and unpaid
Consulting Fee, prorated through the date of his death.
(b) DISABILITY.
(i) The Company may terminate the Consultant's
engagement hereunder, upon notice to the Consultant, in the event
that the Consultant becomes disabled during his engagement
hereunder through any illness, injury, accident or condition of
either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and
responsibilities hereunder for ninety (90) days
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during any period of three hundred sixty-five (365) consecutive
calendar days.
(ii) If any question shall arise as to whether, during
any period, the Consultant is disabled through any illness,
injury, accident or condition of either a physical or
psychological nature such that he is unable to perform
substantially all of his duties and responsibilities hereunder,
the Consultant may, and at the request of the Company shall,
submit to a medical examination by a physician selected by the
Company to whom the Consultant or his duly appointed guardian, if
any, has no reasonable objection, to determine whether the
Consultant is so disabled, and such determination shall for the
purposes of this Agreement be conclusive of the issue. If such
question shall arise and the Consultant shall fail to submit to
such medical examination, the Company's determination of the issue
shall be binding on the Consultant.
(c) BY THE COMPANY FOR CAUSE. The Company may terminate the
Consultant's engagement hereunder for Cause at any time upon notice to
the Consultant setting forth in reasonable detail the nature of such
Cause. The following, as determined by the Board in its reasonable and
good faith judgment, shall constitute Cause for termination: (i)
conviction in a court of law of any felony or a plea of NOLO CONTENDERE
to such an offense, (ii) commission of any act involving theft,
embezzlement, fraud, dishonesty or moral turpitude which act relates to
or otherwise has an adverse effect (including through publicity) on the
Company, (iii) material breach of any of the material provisions of
this Agreement (other than breaches of the nature described in clause
(iv) below) or of any other material agreement between the Consultant
and the Company, or (iv) repeated and consistent willful misconduct or
dereliction of duty in the performance of his duties under this
Agreement, which conduct or failure continues for more than thirty (30)
days after notice given to the Consultant, such notice to set forth in
reasonable detail the nature of such conduct or failure. Upon the
giving of notice of termination of the Consultant's engagement
hereunder for Cause, the Company shall not have any further obligation
or liability to the Consultant, other than for Consulting Fees earned
and unpaid and unreimbursed business expenses outstanding at the date
of termination.
(d) NON-RENEWAL FEE UPON EXPIRATION. If the Consultant shall
cease to be engaged by the Company upon the expiration of this
Agreement, the Consultant shall be entitled, subject to the immediately
following sentence, to receive as a non-renewal fee periodic payments
in an amount equal to his Consulting Fee in effect at the date of such
expiration divided by the number of payroll periods per year then
applicable to
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consultants of the Company (hereinafter, "Non-renewal Fee"), for a
period of six months from and after the date of such expiration. The
Consultant's right to receive Non-renewal Fee hereunder is conditioned
upon (X) the Consultant's prior execution and delivery to the Company
of a general release of any and all claims and causes of action of the
Consultant against the Company and the Company's and its subsidiaries'
officers and directors, excepting only the right to any Consulting Fee
and/or reimbursable expenses then accrued and unpaid under Section 4 of
this Agreement, and (Y) the Consultant's continued performance of those
obligations hereunder that continue by their express terms after the
termination of his consulting relationship with the Company, including
without limitation those set forth in Sections 7 and 8. Any Non-
renewal Fee to be paid hereunder shall be payable in accordance with
the payroll practices of the Company for its consultants generally as
in effect from time to time.
6. EFFECT OF TERMINATION. Upon termination of this Agreement, all
obligations and provisions of this Agreement shall terminate except with respect
to any accrued and unpaid monetary obligations and except for the provisions of
Section 7 through (and inclusive of) 22 hereof.
7. COVENANT NOT TO COMPETE. Provided only that the Company is not
then in default on its payment obligations under this Agreement, for a period of
five (5) years from the Effective Date the Consultant will not engage or become
interested, directly or indirectly, as an owner, employee, director, partner,
consultant, through stock ownership, investment of capital, lending of money or
property, rendering of services, or otherwise, either alone or in association
with others, in the operation, management or supervision of any type of business
or enterprise in any way similar to or competitive with the business of the
Company. In addition, during such period the Consultant will not, directly or
indirectly, whether on his behalf or on behalf of anyone else, (i) solicit or
accept orders from any present or past customer of the Company for a product or
service offered or sold by, or competitive with a product or service offered or
sold by, the Company; (ii) induce or attempt to induce any such customer to
reduce such customer's purchases from the Company; (iii) use for the benefit of
the Consultant or disclose the name and/or requirements of any such customer to
any other person or persons, natural or corporate; or (iv) solicit any of the
Company's employees or consultants to leave the employ of the Company or hire
anyone who was an employee of the Company or a consultant to the Company at any
time within one year prior to the date the Consultant's consulting relationship
with the Company terminated. The foregoing restrictions shall not prevent the
Consultant from hiring or otherwise engaging any professional firm.
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8. CONFIDENTIAL INFORMATION.
(a) The Consultant acknowledges that the Company will
continually develop Confidential Information, that the Consultant may
develop Confidential Information for the Company and that the
Consultant may learn of Confidential Information during the course of
his consulting relationship with the Company. The Consultant agrees
that, except as required for the proper performance of his duties for
the Company, he will not, directly or indirectly, use or disclose any
Confidential Information, as defined below. The Consultant understands
and agrees that this restriction will continue to apply after his
consulting relationship with the Company terminates, regardless of the
reason for termination.
(b) The Consultant agrees that all Confidential Information
which he creates or to which he has access as a result of his
engagement hereunder is and shall remain the sole and exclusive
property of the Company. Except as required for the proper performance
of his duties, the Consultant will not copy any documents, tapes or
other media containing Confidential Information ("Documents") or remove
any Documents, or copies thereof, from Company premises. The Consultant
will return to the Company immediately after his consulting
relationship with the Company terminates, and at such other times as
may be specified by the Company, all Documents and copies thereof and
all other property of the Company then in his possession or control.
9. ENFORCEMENT OF COVENANTS. The Consultant acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
The Consultant further agrees that all goodwill of the Company is its exclusive
property. The Consultant further acknowledges and agrees that, were he to breach
any of the covenants contained in Section 7 or 8 hereof, the damage would be
irreparable. The Consultant therefore agrees that the Company, in addition to
any other remedies available to it, shall be entitled to preliminary and
permanent injunctive relief against any breach or threatened breach by the
Consultant of any of said covenants, without having to post bond, provided the
Company has made a prima facie showing of such a breach or threatened breach.
10. INDEMNIFICATION. Subject to the second sentence of this Section
10, the Company agrees to indemnify the Consultant against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, together with counsel fees, in each case reasonably
incurred by him in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which he may be involved
or with which he may be threatened during the term of this Agreement or
thereafter, in each case to the extent incurred by reason of his serving or
having served (a) as an agent or director of the
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Company, or (b) at its request as a director, officer or agent of any
organization in which the Company directly or indirectly owns shares or of which
it is directly or indirectly a creditor, or (c) at its request in any capacity
with respect to any employee benefit plan. Notwithstanding the immediately
preceding sentence, the Company shall not indemnify the Consultant if the
Consultant (i) did not act in good faith and in a manner the Consultant
reasonably believed to be in or not opposed to the best interests of the
Company, or (ii) with respect to any criminal action or proceeding, had
reasonable cause to believe that the Consultant's conduct was unlawful. The
Company shall purchase and maintain in force directors' and officers' liability
insurance having policy limits and other terms reasonably determined by the
Board.
11. CONFLICTING AGREEMENTS. The Consultant hereby represents and
warrants that the execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other agreement
to which the Consultant is a party or is bound and that the Consultant is not
subject to any covenants against competition or similar covenants that would
affect the performance of his obligations hereunder. The Consultant will not
disclose or use any proprietary information of a third party without such
party's consent.
12. DEFINITIONS. Words or phrases which are initially capitalized or
are within quotation marks shall have the meanings provided in this Section 12
and as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
(a) "Confidential Information" means any and all information,
inventions, discoveries, ideas, research, engineering methods,
practices, processes, systems, formulae, designs, concepts, products,
projects, improvements and developments that are not generally known by
others, developed by or known to the Consultant prior to or during the
term of this Agreement and relating in any material respect to the
Company, including its business, products or services (or learned by
the Consultant after the term hereof from a source known to the
Consultant to be violating an obligation to the Company not to disclose
the same) or that are developed by the Consultant during the term of
this Agreement and that have applicability to the business, products or
services of the Company, including but not limited to (i) products and
services, technical data, methods and processes, (ii) marketing
activities and strategic plans, (iii) costs and sources of supply, (iv)
the identity and special needs of customers and prospective customers
and vendors and prospective vendors, and (v) the people and
organizations with whom the Company has or plans to have business
relationships and those relationships. Confidential Information also
includes such information that the Company may receive or has received
belonging to customers or others who do business with the Company and
any publication or literary creation of the Consultant, developed in
whole or in significant part during the term hereof, in whatever
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form published, whose content in whole or in part is competitive in any
material respect with the products or services offered by the Company
(including as such products or services could reasonably be expected to
evolve or be extended in the foreseeable future).
(b) "Person" means an individual, a corporation, an
association, a partnership, an estate, a trust and any other entity or
organization.
13. ASSIGNMENT. Neither the Company nor the Consultant may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Consultant in the event that the Company shall
hereafter effect a reorganization, consolidate with, or merge into, any other
Person or transfer all or substantially all of its properties or assets to any
other Person unless the Consultant shall object in writing to such assignment
within 60 days following the effective date thereof, in which event the
Consultant's sole remedy shall be to terminate this Agreement, which termination
shall have the effect set forth in Section 6 hereof. This Agreement shall inure
to the benefit of and be binding upon the Company and the Consultant, and their
respective successors, executors, administrators, heirs and permitted assigns.
14. SEVERABILITY. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
15. WAIVER. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of either
party to require the performance of any term or obligation of this Agreement, or
the waiver by either party of any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver of
any subsequent breach.
16. NOTICES. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Consultant at his
last known address on the books of the Company or, in the case of the Company,
at the Company's principal place of business, to the attention of the Chief
Executive Officer, or to such other address as either party may specify by
notice to the other actually received.
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17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Consultant's consulting relationship with the Company, including without
limitation any agreements relating to any consulting relationship between the
Consultant and any corporate predecessor or promoter of the Company, any such
agreement being hereby terminated by the mutual agreement of the parties without
liability to either party.
18. INDEPENDENT CONTRACTOR. No provision of this Agreement shall be
construed to make the Consultant an employee of the Company or to make the
Consultant and the Company partners or joint venturers. The Consultant hereby
acknowledges that he is solely responsible for the payment of all taxes on his
fees under this Agreement.
19. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Consultant and by an expressly authorized
representative of the Company.
20. HEADINGS. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
22. GOVERNING LAW. This Agreement shall be construed and enforced
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without regard to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Consultant and by the Company by its respective duly
authorized representative, as of the date first above written.
CONSULTANT PROVANT, INC.
_______________________________ By: ________________________
Xxxxxxx X. Xxxxxx Name:
Title:
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