Exhibit 10.8.3
CONSULTING AGREEMENT dated and effective
as of August 2, 1999 by and between CUTCO
INDUSTRIES, INC., a New York corporation,
with offices at 0000 Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the "Company") and
XXX XXXXXXXXXXXXX, with an address at 00
Xxxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxx
00000 (the "Consultant").
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Company desires to obtain the benefit of the services of Consultant
as an advisor and consultant in connection with relationships with
franchisees of Company; and
Consultant desires to render such services to Company.
NOW, THEREFORE, the parties agree as follows:
1. TERM. Company hereby engages and retains Consultant, and
Consultant hereby agrees to render services as an advisor and consultant to
Company, for a term commencing on the date hereof and ending two months from
the date hereof (the "Consulting Term").
2. SERVICES. The services to be rendered by Consultant on
Company's behalf shall consist of advice to Company's senior executives as
may be requested of Consultant from time to time during the Consulting Term
with respect to relationships with franchisees of Company, and telephone
calls and correspondence with franchisees of Company, as may be requested of
Consultant. Such advice shall be rendered at Company's place of business in
Syosset, New York during normal business hours.
3. CONSULTING FEE; USE OF LEASED VEHICLES. (a) Consultant shall
receive a fee of $48,000 for all consulting services rendered pursuant to
this Agreement, with $32,000 being payable concurrently with the execution of
this Agreement and $16,000 being due and payable one month from the date
hereof. During the Consulting Term, Consultant, at the expense of Company,
shall continue to use Company leased vehicle provided for his use prior to
commencement of the Consulting Term.
(b) At the termination of the Consulting Term, Consultant, at his
expense, shall continue using the leased vehicle for his personal account,
and continue in effect insurance for the leased vehicle. Consultant shall, on
or before the due date of each monthly rental payment, pay an amount equal to
the rent payment to the Company. The Company shall make the rental payment
directly to the vehicle lessor. Each of the Company and Consultant shall
indemnify the other for any failure to carry out the preceding provisions of
this paragraph.
(c) Upon no less than 45 days advance notice, the Company may
require the Consultant to surrender possession of the leased vehicle to the
Company at the end of any month for which Consultant made a payment to the
Company. In which event, upon surrender of the vehicle, all obligations of
the Consultant to maintain insurance and make payments equivalent to rental
payments under the vehicle lease shall terminate.
4. REIMBURSEMENT OF EXPENSES. Company shall reimburse Consultant
for any reasonable out-of-pocket disbursements and expenses that Consultant
may incur in connection with the performance of its duties hereunder,
subject to the submission to Company of satisfactory documentation in support
thereof.
5. REIMBURSEMENT OF FEES AND EXPENSES OF COUNSEL. Company shall
reimburse Consultant, or pay directly, all reasonable legal fees and other
expenses paid or incurred by Consultant pursuant to any dispute between
Company and Consultant relating to this Agreement or seeking to enforce the
provisions of this Agreement, if Consultant is successful pursuant to a legal
judgment, arbitration or settlement.
6. NON-COMPETITION AND SECRECY.
6.1 NO COMPETING EMPLOYMENT. For the duration of the
Consulting Term and for one (1) year thereafter (such period being referred
to hereinafter as the "Restricted Period"), Consultant shall not, directly or
indirectly, own an interest in manage, operate, join, control, lend money, or
render financial or other assistance to or participate in or be connected
with, as an officer, employee, partner, stockholder, consultant or otherwise,
any individual, partnership, firm, corporation or other business organization
or entity that competes within the United States with Company; PROVIDED,
HOWEVER, that nothing in this Section 6.1 shall prohibit Consultant from
making
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a non-controlling passive investment in a corporation whose shares are
publicly traded.
6.2 NO INTERFERENCE. During the Restricted Period,
Consultant shall not, whether for his own account or for the account of any
other individual, partnership, firm, corporation or other business
organization (other than Company), intentionally solicit, endeavor to entice
away from Company, or otherwise interfere with the relationship of Company
with, any person who is employed by or otherwise engaged to perform services
for Company.
6.3 SECRECY. Consultant recognizes that by reason of his
prior employment by Company and his rendering of services hereunder, he has
and may acquire confidential information and trade secrets concerning the
operations of Company, the use or disclosure of which could cause Company
substantial loss and damages which could not be readily calculated and for
which no remedy at law would be adequate. Accordingly, Consultant covenants
and agrees with Company that he will not at any time, except in performance
of Consultant's obligations to Company hereunder or with the prior written
consent of Company, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with Company. The term "confidential information" includes,
without limitation, information not previously disclosed to the public or to
the trade by management of Company with respect to the services, trade
secrets and other intellectual property, systems, procedures, manuals,
confidential reports, financial information (including the revenues, costs or
profits associated with any of its services), business plans, prospects or
opportunities of Company but shall exclude any information already in the
public domain. Notwithstanding anything to the contrary herein contained,
Consultant's obligation to maintain the secrecy and confidentiality of the
confidential information under this Section 6.3 shall not apply to any such
confidential information which is disclosed through any means other than as
a result of any act by Consultant constituting a breach of this Agreement or
which is required to be disclosed under applicable law.
6.4 INJUNCTIVE RELIEF. Without intending to limit the
remedies available to Company, Consultant acknowledges that a breach of any
of the covenants contained in this Section 6 may result in material
irreparable injury to Company for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely
and that, in the event of such a breach or threat thereof, Company shall be
entitled to seek to obtain a temporary restraining order and/or a preliminary
injunction restraining Consultant from engaging in activities prohibited by
this Section 6 or such other relief as may be required to specifically
enforce any of the covenants in this Section 6.
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7. SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, is declared by
any arbitration panel or court of competent jurisdiction to be invalid or
unenforceable:
(a) Such invalidity or unenforceability shall not affect
the remaining provisions of this Agreement or the application of such
provisions to persons or circumstances other than those to which it is held
invalid or unenforceable; and
(b) If such invalidity or unenforceability is due to the
court's determination that the provision's scope is excessively broad or
restrictive under applicable law then in effect, the parties hereby jointly
request that such provision be construed by modifying its scope so as to be
enforceable to the fullest extent compatible with applicable law then in
effect.
8. ENTIRE AGREEMENT: SCOPE. This instrument contains the entire
agreement of the parties as to the subject matter hereof. No waiver or
modification hereof shall be valid unless in writing signed by the parties.
This instrument independent of, and have no application to or effect upon,
the Termination Agreement and the options to purchase shares of common stock
of Company referred to therein.
9. GOVERNING LAW. This Agreement shall be construed according to the
laws of the State of New York and shall be binding upon the parties hereto,
and their respective successors and assigns.
10. JURISDICTION. Any legal action or proceeding with respect to
this Agreement shall be brought in the courts of the State of New York
situated in the City and County of New York, or of the United States of
America for the Southern District of New York, and, by execution and delivery
of this agreement, Company and Consultant hereby accepts for itself and
himself, and in respect of its or his property generally the exclusive
jurisdiction of the aforesaid courts. Company and Consultant hereby
irrevocably waives, in connection with any such action or proceeding, (a) any
objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum NON CONVENIENS, which it may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions and (b) the right to interpose any noncompulsory
set-off, counterclaim or cross-claim. Company and Consultant irrevocably
consents to the service of
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process of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to it or him at the address set forth in the beginning of this
Agreement.
IN WITNESS WHEREOF, the parties hereunto have caused this Agreement
to be signed as of the day and year first above written.
CUTCO INDUSTRIES, INC.
By: /s/ Xxx Xxxx
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Xxx Xxxx
President and Chief Executive Officer
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Xxx xxxXxxxxxxxxx
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