AGREEMENT
This Agreement dated as of October 26, 1998 by and among SALEX HOLDING
CORPORATION (the "Company"), a Delaware corporation having offices at 00 Xxxxx
Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, XXXXX XXX and XXXXXXXX SUN, each having an
address at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxx Xxxx 00000, HILLCREST
HOLDINGS, L.L.C., a Delaware limited liability company ("Hillcrest"), having an
address at c/x Xxxxxxx & Xxxxxx, P.C., 131 Madison Avenue, Morristown, NJ 07962-
1979, XXXXXXXXX XXXXX, having an address at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000 and XXXXXX XXXXX, having an address at 0 Xxxxxxx Xxxxx, Xx. Xxxxx,
Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, pursuant to a Stock Purchase Agreement dated July 24, 1998,
between Xxxxx Xxx and the Company (the "Stock Purchase Agreement"), the Company
sold and issued to Xxxxx Xxx 125,000 shares (the "Shares") of Series D
Convertible Preferred Stock, par value $.01 per share, of the Company (the
"Series D Preferred Stock") and, in consideration thereof, Xxxxx Xxx issued and
delivered to the Company her Promissory Note dated July 24, 1998 in the
principal amount of $125,000 (the "Sun Note") and paid to the Company $1,250 in
cash.
WHEREAS, the Company and Xxxxx Xxx have entered into a Stock Pledge
Agreement dated as of July 24, 1998 (the "Stock Pledge Agreement") pursuant to
which Xxxxx Xxx has pledged the Shares to the Company as security for her
obligations under the Sun Note.
WHEREAS, pursuant to the Stock Purchase Agreement, the Company and
Xxxxx Xxx have entered into a Registration Rights Agreement dated as of July 24,
1998 (the "Registration Rights Agreement").
WHEREAS, Xxxxx Xxx and the Company have entered into an Agreement dated
as of July 24, 1998 (the "Consulting Agreement") concerning certain consulting
services recited therein, pursuant to which the Company issued and delivered to
Xxxxx Xxx the Company's Promissory Note dated July 24, 1998 in the principal
amount of $126,000 (the "Company Note").
WHEREAS, the Company and Hillcrest entered into a letter agreement
dated July 24, 1998 concerning the sale by the Company to Hillcrest of the
operating businesses and substantially all of the assets of the Company (the
"Hillcrest Letter Agreement").
WHEREAS, the parties hereto wish to provide for the cancellation or
termination of the various arrangements referred to above and for other matters
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto hereby agree as follows:
1. Cancellation of Series D Preferred Stock. Simultaneously herewith
the Board of Directors of the Company shall adopt resolutions cancelling the
Series D Preferred Stock. The Company agrees that the Sun Note is hereby
cancelled and the Company shall return the original thereof to Xxxxx Xxx marked
"Cancelled" together with a check in the amount of $1,250. Xxxxx
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Sun hereby agrees that the Shares are cancelled effective immediately. The
Company and Xxxxx Xxx agree that the Stock Pledge Agreement is hereby terminated
and Xxxxx Xxx hereby directs that any certificates evidencing the Shares pledged
pursuant to the Stock Pledge Agreement be released to the Company and that the
Company shall cancel and retire the Shares. Xxxxx Xxx hereby represents and
warrants to the Company that the Shares are released to the Company hereby free
and clear of any pledge, security interest or other lien or claim whatsoever.
The Registration Rights Agreement is hereby terminated and has no further force
or effect.
2. Cancellation of Consulting Agreement. The Company and Xxxxx Xxx
agree that the Consulting Agreement is hereby terminated and has no further
force or effect and the Company Note is hereby cancelled. Xxxxx Xxx shall return
the original of the Company Note to the Company marked "Cancelled".
3. Termination of Hillcrest Letter Agreement. Hillcrest hereby
withdraws the proposal set forth in the Hillcrest Letter Agreement and the
Company accepts such withdrawal and the parties agree that the Hillcrest Letter
Agreement is hereby terminated and has no further force or effect.
4. New Consulting Agreement between the Company and Xxxxx Xxx. (A) In
accordance with this Agreement, the Company and Xxxxx Xxx (as "Consultant"
thereunder) shall promptly after the execution of this Agreement enter into a
new Consulting Agreement (the "Contract") having the terms and provisions set
forth in Section
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4(B) hereof. If the Contract has not been entered into within 21 days after the
date of this Agreement, the provisions of Section 4(B) hereof shall constitute
the Consulting Agreement between the Company and the Consultant, superseding all
prior consulting agreements between them, until such time as the Contract is
entered into, at which point the Contract shall supersede such provisions.
(B) The Contract shall provide for the following:
(a) A term of one year commencing June 20, 1998 (the "Commencement
Date"). The Contract shall automatically renew for subsequent
one year terms unless terminated by either party prior to the
end of any term. The Contract shall be terminable by either
party at any time by written notice to the other, provided that
if the Contract is terminated by the Company the compensation
provided for in Section 4(B)(b) shall be paid at the times it
would otherwise be payable until the expiration of the then
current term of the Contract.
(b) Compensation of $75,000 for the term of the Contract, payable
in biweekly installments except that the portion of such
compensation that relates to the services rendered by
Consultant from the Commencement Date to the date of this
Agreement shall be payable to the Consultant in a single lump
sum upon the signing of this Agreement.
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(c) A provision that the Consultant shall be permitted to attend
only those portions of any meeting of the Board of Directors of
the Company or committee thereof at which her presence is
required to make any report or recommendation to the Board or
any such committee resulting from her services under the
Contract, provided that her presence at such meeting has been
consented to in writing by both the President and the Chief
Executive Officer of the Company which consent shall not be
unreasonably withheld or delayed and further provided that any
dispute as to whether the Consultant's presence at the meeting
was properly consented to shall be resolved by the Board of
Directors.
(d) A provision that the Consultant shall be present at the offices
of the Company on no more than 12 days in any 28-day period,
provided that in the event the Consultant is engaged in any
special project that is approved in writing by the Chief
Executive Officer of the Company (which approval shall not be
unreasonably withheld or delayed), the Consultant may be
present at the offices of the Company more frequently if
required for completion of such special project and consistent
with any time requirements set forth in the original approval
of such special project.
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(e) Duties shall consist of analysis and advice to the Company, as
follows:
(i) Strategic Relations and Alliances. Review and analysis of
and recommendations to the Company, consisting solely of
internal consultation and advice unless otherwise
authorized by the Board of Directors of the Company, with
respect to proposals related to joint ventures, buyouts,
mergers, corporate affiliations and joint marketing
arrangements. The Contract shall expressly provide that
the Consultant shall not have or participate in any
discussions or negotiations with third parties with
respect to any such proposals (which shall be the sole
purview of the senior management of the Company), but
shall confine her activities solely to reporting to
senior management (in the manner described below) unless
otherwise authorized by the Board of Directors of the
Company.
(ii) Customer and Supplier Relations. Consultation and advice
to the Company with respect to corporate policy
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concerning how employees of the Company should relate to
and deal with customers and suppliers of the Company. The
Contract shall expressly provide that the Consultant
shall not perform analyses or evaluations of the
performance of senior management, including but not
limited to Xxxxxx Xxxxx, but shall confine her activities
to rendering advice to the Company and not to
implementing any of her recommendations. The Consultant
shall be authorized to communicate with third parties in
the course of her duties under this subsection (ii) as
may be reasonably necessary in the performance of those
duties, subject to the provisions of Section 4(B)(g)
hereof.
(iii) Corporate Development and Sales. Review, analysis and
recommendations to senior management with respect to
marketing and advertising plans and other matters that
effect the growth and development of business activity.
The Consultant shall be authorized to communicate with
third parties in the course of her duties under this
subsection (iii) as may be
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reasonably necessary in the performance of those duties,
subject to the provisions of Section 4(B)(g) hereof.
(f) The Contract shall provide that all substantive reports,
recommendations and analyses made by the Consultant shall be in
writing and shall be sent simultaneously to both the President
and the Chief Executive Officer of the Company and that the
Consultant shall take direction from the President or the Board
of Directors of the Company only.
(g) The Contract shall provide that the Consultant is an
independent contractor and not an employee or agent of the
Company and is not authorized to bind or make any commitment on
behalf of the Company in any way.
5. Miscellaneous.
(a) All notices and other communications given with respect to this
Agreement shall be in writing and shall be given to the parties at the addresses
set forth on the first page hereof, or such other address as any party hereto
shall give to the other parties by notice hereunder. Notices shall be deemed
given when delivered by hand or courier or 3 days after deposit thereof in the
United States mail postage paid, certified mail, return receipt requested, and
addressed as provided above.
(b) This Agreement (i) constitutes the entire agreement of the parties
with respect to the subject matter hereof, (ii)
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shall inure to the benefit of and shall be binding upon the parties hereto and
their successors and assigns, (iii) may not be amended except by a writing
signed by all the parties hereto, (iv) may not be assigned by any party hereto
without the prior written consent of the other parties hereto, (v) shall be
governed by the internal law of the State of Delaware and (vi) may be executed
in more than one counterpart each of which shall be an original. No waiver by
any party to this Agreement of such party's right to enforce any provision of
this Agreement shall constitute a waiver of such party's right to enforce such
provision thereafter or to enforce any other provision of this Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
SALEX HOLDING CORPORATION
By: /s/ Xxxxxxxxx Xxxxx
-----------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Executive Officer
HILLCREST HOLDINGS, L.L.C.
By: /s/ Xxxxx Xxx
------------------------
Name: Xxxxx Xxx
Title:
/s/ Xxxxx Xxx
------------------------
Xxxxx Xxx
/s/ Pershing Sun
-------------------------
Pershing Sun
/s/ Xxxxxxxxx Xxxxx
-------------------------
Xxxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
-------------------------
Xxxxxx Xxxxx
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EXHIBIT 2
Statement
The undersigned hereby agree that the Amendment to Schedule 13-D, to
which this Statement is an exhibit, is filed on behalf of each of us.
/s/ Pershing Sun
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Pershing Sun
/s/ Xxxxx Xxx
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Xxxxx Xxx
Dated: December 2, 1998
