Exhibit 10.2
CONSULTING AGREEMENT
DATE: December 21, 2001
COMPANY: Xxxxxxx Global Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CONSULTANT: Xxxxx X. Xxxxxxx Xx.
Suite 12C
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
RECITALS
A. The Company is engaged in the business of providing, among other
services, investment management advice and services to various clients including
clients.
B. Consultant has considerable experience and ability in Company's
business.
C. The Company desires to retain Consultant as an independent contractor to
assist it from time-to-time in furtherance of its business and Consultant is
willing to provide such services to the Company on the terms herein contained.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. DEFINITIONS:
1.1. "Confidential Information": Is defined in Paragraph 8 herein.
1.2. "Year One": Shall mean the first year of the term of this Agreement
commencing January 1, 2002 and ending December 31, 2002.
1.3. "Year Two": Shall mean the first year of the term of this Agreement
commencing January 1, 2003 and ending December 31, 2003.
1.4. "Year Three": Shall mean the first year of the term of this Agreement
commencing January 1, 2004 and ending December 31, 2004.
1.5. "Effective Date": January 1, 2002.
1.6. "Year One Consulting Fee": One Hundred Thousand ($100,000) Dollars
payable as stated in subparagraph 5.1.
1.7. "Year Two Consulting Fee": One Hundred Thousand ($100,000) Dollars
payable as stated in subparagraph 5.2.
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1.8. "Year Three Consulting Fee": One Hundred Thousand ($100,000) Dollars
payable according to the conditions stated in subparagraph 5.3 herein.
2. ENGAGEMENT: Company hereby engages Consultant as an independent contractor to
render the services described herein to Company and Consultant accepts the
engagement subject to the terms contained herein.
3. TERM: The "Term" of this Agreement shall begin on the Effective Date and
shall continue until December 31, 2004.
4. SERVICES:
4.1. Consultant shall perform the services specified in this Paragraph 4
subject to the terms of this Agreement and such other rules and policies as
Company may from time to time direct, so long as same do not increase the
obligations of Consultant hereunder.
4.2. Consultant shall use his expertise to assist Company in structuring,
operating and growing its invesment management services business.
4.3. Consultant shall advise Company on Company's business when requested
by Company, subject to his availability.
4.3.1. Company acknowledges the unique skills of Consultant and the
significant demands on his time required by other business interests that may or
may not be of a competitive nature with Company. Notwithstanding such
limitations, Company believes the value of the relationship is important to the
development of Company's interests.
4.3.2. In no event shall Consultant's failure to render services be
deemed a breach of Consultant's obligations hereunder.
5. CONSULTANT'S COMPENSATION: In full consideration for all services to be
rendered by Consultant to Company, Company agrees to pay and Consultant agrees
to accept the following, subject to the terms of this Agreement. All payments
shall be made on the due dates by Check payable to order of Consultant, or if
requested by Consultant by wire transfer to Consultant's account.
5.1. Year One Consulting Fee: Company shall pay to Consultant the Year One
Consulting Fee, in four equal quarterly installments on or before March 31, June
30, September 30 and December 31 of Year One.
5.2. Year Two Consulting Fee: Company shall pay to Consultant the Year Two
Consulting Fee, in four equal quarterly installments on or before March 31, June
30, September 30 and December 31 of Year Two.
5.3. Year Three Consulting Fee: Company shall pay to Consultant the Year
Three Consulting Fee, in four equal quarterly installments on or before March
31, June 30, September 30 and December 31 of Year Three.
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5.4. Expenses: Consultant shall bear all of its expenses including but not
limited to unemployment, disability or health insurance payments and social
security, income tax or other withholdings, deductions or payments which may be
required by Federal, State or Local law with respect to any sums paid to
Consultant hereunder.
5.5. No Additional Participation: Consultant acknowledges and agrees that
this Consulting Agreement shall not give or extend to Consultant any rights with
respect to Company's payments to officers, directors and employees, including
contributions by Company to any deferred compensation plan, bonus plans or
fringe benefits not otherwise specified in this Agreement as payable to
Consultant.
6. DEATH OR DISABILITY BENEFIT; LIFE INSURANCE:
6.1. If Consultant dies or is incapacitated during the term of this
Agreement the compensation provided for herein shall nevertheless be due and
payable to Consultant or his estate, in accordance with the payment schedule for
such amount fixed in Paragraph 5 above.
6.2. Company shall have the right, during the Term hereof, to secure a life
insurance policy (or sequential yearly policies) upon Consultant to protect its
interest.
6.2.1. Payment for such policy shall be the sole responsibility of the
Company.
6.2.2. Consultant shall cooperate fully with Company in forwarding the
application for such policy. Failure of Consultant to so cooperate shall be
deemed an Event of Default under this Agreement.
7. NONCOMPETE CLAUSE: Nothing herein shall be deemed to prevent or restrict
Bottom from continuing to pursue his own independent activities whether or not
same may be deemed competitive with the services provided to or by Company.
8. CONFIDENTIAL INFORMATION:
8.1. Except with the prior written consent of Company in each instance or
as may be necessary to allow Consultant to perform his services to Company,
Consultant shall not disclose, use, publish or in any other manner reveal,
directly or indirectly, at any time during or after his employment by Company,
any Confidential Information. The obligation of Consultant under this Paragraph
will survive the termination of engagement by Company.
8.1.1. Consultant hereby agrees to disclose promptly to Company all
Confidential Information obtained or created by Consultant during his employment
by Company, which, upon its creation, shall be the sole property of Company.
8.2. "Confidential Information" as used herein means all information
relating to:
8.2.1. the names and business operations, personnel, activities,
marketing, advertising and financial affairs of and other non-public information
relating to clients, former clients and prospective clients of Company; and
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8.2.2. all operations, systems, services, personnel, financial
affairs, advertising and promotion strategies, techniques, case histories and
marketing plans developed or used by Company in the course of its business.
9. ASSIGNMENT:
9.1. The Company shall not voluntarily or by operation of law assign or
otherwise transfer the obligations incurred on its part pursuant to the terms of
this Agreement without the prior written consent of Consultant. Any attempted
assignment or transfer of its obligation without such consent shall be wholly
void. No assignment or transfer, even with the consent of Consultant, shall
relieve the Company of its obligations incurred pursuant to the terms of this
Agreement.
9.2. The nature of Consultant's services hereunder are personal in nature
and Consultant shall not, without Company's prior written consent, assign or
transfer any of his obligations hereunder.
9.3. Subject to the foregoing this Agreement shall inure to the benefit to
each of the parties, successors, transferees or assigns and shall be binding
upon each of the parties, successors, transferees or assigns.
10. DEFAULTS BY COMPANY:
10.1. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Agreement by the Company:
10.1.1. Any failure by the Company to make the payments due pursuant
to Paragraph 5 herein, if such failure continues for fifteen (15) days after
receipt by the Company from Consultant or Consultant's authorized representative
of written notice thereof.
10.1.2. The making by the Company or any guarantor of the Company's
obligations hereunder of any general assignment for the benefit of creditors;
the filing by or against them of a petition to have them adjudged a bankrupt or
a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against them, the same is
dismissed within sixty (60) days);
10.1.3. The appointment of a trustee or receiver to take possession of
substantially all of the Company's assets if such possession is not restored to
the Company within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of the Company's assets if such seizure is
not discharged within thirty (30) days thereafter.
10.2. In the event of a default by the Company as described in this
Paragraph 10, then in addition to any other remedies available to Consultant at
law or in equity, Consultant shall have the immediate option to declare the
entire balance of Consulting Fees to be made by Company pursuant to Paragraph 5
hereof immediately due and payable, in which event interest shall accrue on such
balance from and after the due date at the rate of seven (7%) percent per annum.
If any payment due the Consultant hereunder is not made, and if the matter is
referred to an attorney for collection, the Company agrees to pay all costs of
collection including, without limitation, reasonable attorneys' fees.
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11. Counsel. The Parties acknowledge that they have been represented by and have
relied on counsel of their own choosing in the negotiations and the preparation
of this Agreement and that they read this Agreement, have had its contents fully
explained to them by such counsel and are fully aware of and understand all of
its terms and legal consequences. It is acknowledged that the Parties, through
their respective counsel, mutually participated in the preparation of this
Agreement, and it is agreed that no provision of this Agreement will be
construed against any of the Parties by virtue of the activities of that party
or their respective attorneys.
12. Integration. This Agreement constitutes a single integrated written
agreement expressing the entire agreement and understanding between the Parties
concerning the subject matter hereof and supersedes and replaces all prior
negotiations or proposed agreements, written or oral.
13. Express & Implied Promises. The Parties acknowledge that no other party, or
any agent or attorney of any other party, has made any promise, representation
or warranty whatsoever, express or implied, not contained herein concerning the
subject matter hereof, to induce them to execute this Agreement, and acknowledge
that they have not executed this instrument in reliance on any such promise,
representation or warranty not contained herein, and further acknowledge that
there are no other agreements or understandings between the Parties relating to
this Agreement that are not contained herein.
14. Non-Disclosure. No Party to this Agreement or any person acting for or on
their behalf, including their respective attorneys, shall directly or indirectly
reveal to any third party any of the terms or conditions of this Agreement, or
any fact or evidence connected hereto, or release any publicity or make any
public statement with respect thereto, except as may be required by law and or
disclosure obligations arising from the issuance of financing documentation or
the exercise of due diligence rights in connection therewith.
15. Additional Documents. The Parties agree that they will execute, or cause to
be executed, such other documents as may be necessary to carry out the purposes
of this Agreement. It is understood that should it develop that there are any
mistakes in this Agreement which would cause the release and discharge of any
party to be defective or less than complete, or if this Agreement is declared
unenforceable by a court or arbitrator, then the Parties will execute any and
all other documents and do any and all things necessary to effect full, final
and complete release of all claims or all possible claims in accordance with the
provisions set forth in this Agreement.
16. Arbitration.
16.1. American Arbitration Association - Any dispute arising out of, in
connection with, or in relation to this agreement or the making of validity
thereof or its interpretation or any breach thereof shall be determined and
settled by arbitration in New York City by a sole arbitrator pursuant to the
rules and regulations then obtaining of the American Arbitration Association and
any award rendered therein shall be final and conclusive upon the parties, and a
judgment thereon may be entered in the highest court of the forum, state or
federal, having jurisdiction. The service of any notice, process, motion or
other document in connection with an arbitration award under this agreement or
for the enforcement of an arbitration award hereunder may be effectuated by
either personal service or by certified or registered mail to the respective
addresses provided herein.
16.2. Submission to Jurisdiction - By execution and delivery of this
Agreement, the parties each respectively accept, for itself and its property,
generally and unconditionally, the jurisdiction of the aforesaid Arbitration
Tribunal, Courts and any related Appellate Court, irrevocably agrees to be bound
by any judgment rendered thereby and in connection with this Agreement, and
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irrevocably waive any objection either party may now or hereafter have as to the
venue of any such action or proceeding. Each party consents to the service of
process in the Arbitration or out of any of the aforementioned Courts by mailing
copies thereof by certified mail, postage prepaid, such service to become
effective three (3) business days after such mailing. Nothing herein shall
effect either party's right to service of process in any other manner prescribed
by law. Any judicial proceeding by either party against the other involving,
directly or indirectly, any matter, in any way arising out of, related or
connected with this Agreement shall be brought only in a Court located in the
City of New York.
17. Notices.
17.1. Any notice to be given hereunder shall be sent by registered or
certified mail, return receipt requested, or telecopy to a facsimile number
provided by the respective party with a copy sent by regular mail, or by
delivering the same personally to the parties at the addresses first set forth
herein. Any party may designate a different address by notice so given. Copies
of all notices shall be sent to the parties as hereto named above and, in
addition:
Copies of all notices shall be sent to:
Beckman, Millman, Barandes & Xxxxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
17.2. Any notice mailed or personally delivered as aforesaid shall be
deemed to have been given on the date of receipt; telecopies shall be deemed
received on the business day after being sent by telecopy.
18. Waiver. This Agreement may be waived, discharged or modified only by an
instrument in writing signed by the party against whom enforcement of any such
waiver, discharge or modification is sought.
19. Modification. This Agreement cannot be modified, altered, amended or
otherwise changed except by an agreement in writing signed by the parties
hereto.
19.1. Severalability: The provisions of this Agreement are severable. To
the extent any provision, portion or extent of this Agreement is determined to
be invalid, illegal or otherwise unenforceable, then that provision, portion or
extent will be limited if possible and only thereafter severed if necessary. Any
such limitation or severing shall only be to the extent necessary to render the
Agreement valid and enforceable. The remaining provisions, portions and extent
of the Agreement will be enforced to give effect to the intention of the parties
insofar as possible.
20. Counterparts. This Agreement may be executed in counterparts, each of which
will be considered an original and all of which together will constitute one and
the same instrument. Copies delivered by facsimile shall be binding.
21. New York Law. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of New York without regard to
choice of law principles.
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IN WITNESS HEREOF, the parties have signed this agreement as of the day and year
first set forth above.
Xxxxxxx Global Corporation Xxxxx X. Xxxxxxx, Xx.
By By
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