EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING
AGREEMENT made this 18th of October, 1996, between GENISYS RESERVATION
SYSTEMS, INC., 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000 ("Genisys"), and XXXX
X. XXXXX, residing at 00 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("Consultant").
In consideration of the mutual covenants and agreements set forth below, the
parties agree as follows: ARTICLE I SCOPE OF ENGAGEMENT 1.01. During the term of
this Agreement, Genisys agrees to engage the Consultant to provide, and the
Consultant agrees to provide to Genisys, certain advisory and consulting
services on a non-exclusive basis. The advisory and consulting services to be
provided by Consultant shall include, but shall not be limited to, analysis of
the business, operations and financial condition of Genisys, developing a
strategy and operational plan for expanding the business of Genisys, identify
new markets for the products produced by Genisys and the services offered by
Genisys and providing such other advisory and consulting services as may
reasonably be requested by Genisys in connection with the development and
marketing of Genisys' products and services. Such
advisory and consulting services shall be rendered to the extent reasonably
practicable and
at times and places mutually agreeable
to Genisys and the Consultant. Consultant agrees that he will use his best
efforts to handle promptly and effectively all matters with respect to which
Genisys requests that he render advisory and consulting services and, through
his advice and consulting services, to advance the business goals and objectives
of Genisys. During the term of this Agreement, Consultant shall have the right
to perform services for other companies and businesses, subject to the terms and
provisions of this Agreement. Genisys acknowledges and agrees that the
cooperation of Genisys and its employees and agents with the Consultant is a
necessary condition to Consultant rendering services under this Agreement and,
accordingly, Genisys agrees to cooperate with, work in good faith with, and
provide all reasonable assistance to, Consultant (and cause its employees and
agents to do the same) in connection with Consultant rendering his services
hereunder. Genisys will make available to the Consultant sufficient space in its
premises and a desk, phone, fax machine, photocopying machine and other similar
equipment and support reasonably necessary to permit the Consultant to render
his advisory and consulting services pursuant to this Agreement. ARTICLE II TERM
OF AGREEMENT 2.01. The term of this Agreement shall commence on the date first
set forth above and shall continue indefinitely until this Agreement is
terminated in accordance with the terms and provisions hereof.
ARTICLE III COMPENSATION AND INCENTIVE BONUS 3.01. As
compensation for services rendered under this Agreement, the Consultant shall be
entitled to receive from Genisys a monthly fee of $6,500.00 during the period
from the date of the Agreement through and including February 28, 1997, and a
monthly fee of $8,400.00 from and after March 1, 1997, in each case payable in
arrears on the last day of each month during the term of this Agreement. 3.02.
As additional compensation for services rendered under this Agreement, the
Consultant may receive from Genisys, in any year in which Genisys has net
profits an incentive bonus to be determined in the sole discretion of Genisys.
In determining the amount, if any, of the incentive bonus for the Consultant,
Genisys shall take into account the following factors: a. Genisys's gross sales,
b. Genisys's gross profits, c. Whether Genisys has or will pay dividends on its
common stock, d. The Consultant's experience in his job, e. The Consultant's
abilities, and f. The time which the Consultant has devoted to providing
advisory and consulting services pursuant to this Agreement. If Genisys will be
paying an incentive bonus to Consultant pursuant to this Section 3.02, Genisys
shall pay such bonus to Consultant within ten days after the receipt by Genisys
of the annual audit conducted by its accountants of the preceding fiscal year
of Genisys. The Consultant understands that Genisys
will allocate no more than 20% of the audited pre-income tax profits for the
payment of all bonuses for all employees and consultants, and that bonuses will
be paid only out of available funds without impairing the ability of Genisys to
meet all other obligations, including the payment of bonds, notes, loans and
other obligations. For any fiscal year in which the Consultant has not provided
advisory and consulting services to Genisys for a full twelve (12) months,
Genisys may, at Genisys's discretion, adjust accordingly the incentive bonus to
be paid in accordance with this Section 3.02. As used herein, net profits shall
be determined as the net income from operations after expenses but before taxes
as determined according to generally accepted accounting principles and in
conformity with the prior accounting practices of Genisys. ARTICLE IV
REIMBURSEMENT OF EXPENSES 4.01. Subject to the terms and provisions of Section
4.02 hereof, Genisys shall reimburse the Consultant for ordinary and necessary
business expenses incurred in the performance of his services rendered pursuant
to this Agreement. 4.02. The Consultant is authorized to incur reasonable
business expenses for promoting the business of Genisys, including expenditures
for entertainment and travel in connection with rendering his services pursuant
to this Agreement. Genisys will reimburse the Consultant from time to time for
all business expenses provided that the Consultant presents to Genisys
documentary evidence (such as receipts or paid bills),
stating sufficient information to establish the amount, date, place, essential
character and deductibility for each expenditure. ARTICLE V INDEPENDENT
CONTRACTOR STATUS 5.01. This Agreement is intended to secure the advisory and
consulting services of Consultant as an independent contractor and nothing
herein shall be construed as creating an employer/employee relationship, a
partnership, joint venture or other joint interest between Genisys and the
Consultant. Except as expressly provided herein, the Consultant has no right or
authority to act for or on behalf of Genisys or to assume or to create any
obligation or responsibility, express or implied, on behalf of or in the name of
Genisys, or to bind Genisys in any manner whatsoever without the prior written
approval of Genisys. Consultant shall be solely liable for the payment of any
federal or state self- employment, income or other taxes imposed or arising out
of the payment of fees and other compensation to the Consultant by Genisys as
set forth in this Agreement and there shall be no responsibility for withholding
of taxes or other participation by Genisys. Consultant understands that he will
not be treated as an employee with respect to its advisory and consulting
services under this Agreement for any purposes whatsoever.
ARTICLE VI PROPERTY RIGHTS 6.01. During the term of this Agreement, the
Consultant will have access to and become familiar with various trade secrets
consisting of, among other things, business plans and practices, patents,
devices, secret processes, compilations of information, records, and
specifications that are owned by Genisys and that are regularly used in the
operation of the business of Genisys. The Consultant shall not disclose any of
these trade secrets, directly or indirectly, or use them in anyway, unless
authorized by the Board of Directors of Genisys. All files, records, documents,
drawings, specifications, equipment, and similar items relating to the business
of Genisys, whether prepared by the Consultant or otherwise coming into his
possession, shall remain the exclusive property of Genisys and shall not be
removed from the premises of Genisys under any circumstances whatsoever without
the prior written consent of Genisys. 6.02. During the term of this Agreement,
the Consultant shall not, directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition in any manner whatsoever with
the business of Genisys. During the term of this Agreement and for the period of
one year after the termination of this Agreement, the Consultant shall not,
directly or indirectly, solicit for employment or employ any employee of Genisys
regardless of whether the employee is employed on the date of this Agreement or
at any other time during the term of this Agreement.
6.03. The Consultant hereby acknowledges and agrees that it is important to
Genisys that its goodwill be protected, maintained and increased. Accordingly,
the Consultant covenants and agrees as follows: Upon the termination of this
Agreement, whether for cause or otherwise, the Consultant shall not directly or
indirectly enter into or engage generally in competition with Genisys, whether
as an individual on his own or as a partner or joint venturer, or as an employee
or agent for any person, or as an officer, director, or shareholder or
otherwise, for period of one year after the date of termination of this
Agreement. This covenant on the part of the Consultant shall be construed as an
agreement independent of any other provision of this Agreement; and the
existence of any claim or cause of action of the Consultant against Genisys,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Genisys of this covenant. 6.04. The Consultant
acknowledges that he has read and understood the provisions of this Article, and
that its provisions will not impose an undue hardship upon him. The Consultant
further acknowledges that due to the fact that Genisys's operations are or will
be worldwide in scope, the post-termination restraints set forth herein will
apply worldwide.
ARTICLE VII TERMINATION 7.01. If the
Consultant willfully and materially breaches or habitually neglects his duties
under this Agreement, Genisys may, at its option, elect to terminate this
Agreement by causing a notice to be mailed to the Consultant at his last known
address stating the cause or causes of the termination and giving the Consultant
a period of thirty days to cure the default resulting from such cause or causes.
If at the end of the aforesaid thirty day period the Consultant has not cured
the default resulting from such cause or causes, Genisys may terminate this
Agreement immediately by mailing written notice to such effect to the Consultant
at his last known address and thereupon this Agreement shall immediately
terminate, become null and void and be of no further force or effect. The remedy
set forth in this Section 7.01 shall be without prejudice to any other remedy to
which Genisys may be entitled at law, in equity, or under this Agreement. 7.02.
This Agreement may be terminated at any time by either party at its option upon
the giving of thirty days' prior written notice of termination to the other
party. Termination of this Agreement pursuant to this Section 7.02 shall not
prejudice any other remedy that Genisys may have at law, in equity or under this
Agreement. 7.03. This Agreement may be terminated immediately by either party at
its option and without prejudice to any other remedy available at law, in
equity, or under this Agreement by giving written notice of termination to the
other party if Genisys: (1) has a receiver of its assets or property appointed
because of insolvency; or
(2) makes a general
assignment for the benefit of creditors; or (3) files a petition for bankruptcy
under any chapter of the United States Bankruptcy Code. 7.04. In the event of
the termination of this Agreement, the Consultant shall be entitled to the
compensation earned prior to the date of termination as provided for in this
Agreement, computed pro rata up to and including the date of termination of this
Agreement. 7.05. In the event of a breach of this Agreement by either Genisys or
the Consultant resulting in damages to the other party, the non-breaching party
may recover from the party breaching the Agreement any and all damages that may
be sustained. ARTICLE VIII GENERAL PROVISIONS 8.01. Any notices to be given
under this Agreement by either party to the other may be effected by personal
delivery in writing or by mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the parties at
the addresses appearing in the introductory paragraph of this Agreement, but
each party may adopt a new address by notifying the other party in writing.
Notices posted by mail shall be deemed received as of three days after mailing.
8.02. This Agreement supersedes any and all other agreements, either oral or in
writing, between the parties with respect to the employment or engagement of the
Consultant by Genisys and this Agreement contains all
of the covenants and agreements between the parties with respect to the subject
matter hereof. 8.03. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey. 8.04. If any action at law
or in equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief that may be proper.
8.05. If the Consultant dies prior to the termination of this Agreement, any
moneys that may be due him from Genisys under this Agreement as of the date of
the death shall be paid to the executor, administrator, or other personal
representative of the Consultant's estate.
GENISYS RESERVATION SYSTEMS, INC.
By: XXXXXX XXXXXXX
President
Xxxx X. Xxxxx
