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EXHIBIT 99.06
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made as of December 1, 1995
by and between X. X. Xxxxx & Co. (the "Company"), a New York corporation having
an office at Xxx Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx, and Xxxxxx X. Xxxxxxxx
(the "Consultant"), who has an office at 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxxxxx 00000.
1. Services and Performance - The Company does hereby appoint and engage
the Consultant for the term of this Agreement to perform such services
as are specifically assigned and pre-approved by the Company. The
Consultant shall only receive assignments (and/or pre-approvals)
hereunder from the Company's Chief Executive Officer and/or his
designees. The nature of the services that the Consultant may be
required to render include promoting the Company's interest with
officials of the U.S. Government and performing projects related to
the Company's businesses in the Commonwealth of Independent States
(including Russia) and such other projects as the Company shall
request from time to time. The Consultant shall also represent the
Company in the most favorable possible light with customers, community
and academic groups and individuals as well as the public at large.
2. Term - The term of this Agreement shall be for a period of 24 calendar
months commencing on December 1, 1995 and ending on November 30, 1997.
Notwithstanding the preceding sentence, this Agreement shall also
terminate and the Consultant's compensation shall cease to accrue
forthwith upon (i) his death,
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(ii) any failure by him to observe or perform his agreements as
described hereunder (including his voluntary cessation of services
hereunder), (iii) his neglect of the faithful performance of his
duties and responsibilities hereunder, or (iv) his inability to
perform his duties hereunder (other than ordinary temporary inability
due to sickness), as determined by the Company in its sole discretion.
All provisions of this Agreement, except the provisions of Articles 1,
3 and 4 hereof, shall survive any termination of this Agreement.
3. Consultant's Compensation - As full and complete compensation for the
services which Consultant provides hereunder and for the covenants
provided in this Agreement, the Consultant will be paid a monthly
retainer of $5,000.00 for each calendar month during the term of this
Agreement, and such additional fees as are mutually agreeable to the
Company and the Consultant with respect to any specific projects
assigned by the Company to the Consultant. The monthly retainer
payment for each such calendar month shall be made to the Consultant
the first of the month to which the payment relates.
4. Reimbursement Of Out-Of-Pocket Expenses - The Company shall reimburse
the Consultant for reasonable and necessary (which terms shall be
interpreted in accordance with the Company's practices with respect to
its employees) out-of-pocket expenses incurred for travel and other
expenditures directly related to services performed by the Consultant
for the Company pursuant to this Agreement; provided that, no
expenditure in excess of $1,000 shall be reimbursed unless
specifically pre-approved in writing by an authorized representative
of the
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Company. Reimbursement of authorized expenditures will be made only
upon the Consultant's providing to the Company itemized records of
those expenditures and related receipts that are acceptable to the
Company.
5. Independent Contractor Status - The Consultant is and at all times
shall be, during his service as a consultant under the terms of this
Agreement, an independent contractor and shall not be deemed to be an
employee of the Company for any purpose, and no partnership, joint
venture or other joint undertaking between the Company and the
Consultant shall be deemed to be created by reason of this Agreement.
The Consultant is not authorized to (i) represent that the Consultant
is an agent of the Company or any affiliate, (ii) enter into contracts
on behalf of the Company, or (iii) otherwise commit the Company or any
affiliate to any legally binding liabilities or obligations. The
Consultant is permitted to perform services for or become employed by
others during the term of this Agreement, consistent with Section
6.06.
6. Representations, Warranties and Covenants
6.01 The Consultant represents and warrants to the Company
that the Consultant is free to undertake the performance of consulting
services as provided under this Agreement and that the Consultant has
no prior or other commitments of any kind to anyone or conflicts of
interest that would in any way hinder or interfere with the
Consultant's acceptance of, or the full, uninhibited and faithful
performance of, the Consultant's obligations under this Agreement, or
the exercise of his best efforts as a consultant to the Company.
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6.02 The Consultant will not (except in the performance of his
duties hereunder) at any time or in any manner make or cause to be made any
copies, pictures, duplicates, facsimiles or summaries of any reports, studies,
memoranda, correspondence, manuals, records, plans, or other written, printed
or otherwise recorded materials of any kind whatsoever belonging to, or in the
possession of, the Company or any affiliate of the Company. The Consultant
shall have no right, title or interest in any such material, and he agrees that
(except in the performance of his services hereunder) he will not, without the
prior written consent of the Company, remove any such material from any
premises of the Company or any affiliate of the Company, and that he will
surrender all such material to the Company immediately upon the termination of
this Agreement or at any time prior thereto upon the request of the Company.
6.03 Without the prior written consent of the Company, the
Consultant shall not at any time (whether during or after the term of
this Agreement)
(i) use for the Consultant's own benefit or
purposes, or for the benefit or purposes of
any other person, firm, partnership,
association, corporation or business entity,
or
(ii) disclose (except in the performance of the
Consultant's duties under this Agreement) in
any manner to any person, firm, partnership,
association, corporation or business entity,
any trade secrets, data, know-how, knowledge or information
(including, but not limited to, that relating to the costs, products,
equipment, merchandising and
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marketing methods, supplies, customs, personnel training programs,
business expansion plans or financing) belonging to, or relating to
the affairs of, the Company or any affiliate of the Company.
Without limiting the generality of the foregoing, the
Consultant shall not publish, or submit for publication, any material
that includes information with respect to technology owned or used by
the Company or any affiliate of the Company, or with respect to other
matters related to the Company, unless the manuscript has been
reviewed by the Company, and if the Company advises the Consultant
that it believes publication of such information would be detrimental
to its interests, such information shall be deleted from the
manuscript.
6.04 The provisions of Section 6.02 and 6.03 shall not
apply to any information that is available to the public, or becomes
so available through no act or omission of the Consultant.
6.05 The Consultant shall promptly disclose to the Company
in writing (and to no one else) all improvements, discoveries, ideas
and inventions, made or conceived by the Consultant alone or in
conjunction with others (whether or not patentable, and whether or not
made or conceived at the request of or upon the suggestion of the
Company or any affiliate of the Company during or out of the
Consultant's usual hours of work or in or about the premises of the
Company or elsewhere) while a consultant under this Agreement, or made
or conceived within one year after the termination of this Agreement.
All such improvements, discoveries, ideas and inventions shall be the
sole and exclusive property of the
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Company and are hereby assigned to the Company. At the request of the
Company and at its cost, the Consultant shall assist the Company, or
any other person designated by it, in obtaining patents in the United
States and/or in such countries as may be designated by the Company,
covering such improvements, discoveries, ideas and inventions and
shall in connection therewith execute such applications, statements or
other documents, furnish information and data, and take such other
actions (including, but not limited to, the giving of testimony) as
the Company may from time to time request.
6.06 During the term of this Agreement and for a period of
two years after the Consultant has ceased to provide services under
this Agreement, the Consultant shall not
(i) directly or indirectly engage, or
(ii) assist or have an active interest in (whether
as proprietor, partner, stockholder, officer,
director or any type of principal whatever),
or enter the employment of or act as an agent
for or advisor or consultant to, any person,
corporation or business entity that is, or is
about to become, directly or indirectly
engage
in any business (whether in operation or in the planning or
development stage), in the Commonwealth of Independent States
(including, but not limited to, Russia) and any other areas where the
Consultant performs services for the Company under this Agreement
(including, but not limited to, Washington, D.C.), that competes with
or
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is substantially similar to any business that the Company has
operated, or had in the planning or development stage, during the
120-day period immediately prior to the Consultant's ceasing to
provide services under this Agreement; provided that, the restrictions
contained in this Section shall only apply to any business in any area
where the Company shall have operated such business in such area, or
had such business in the planning or development stage therein, during
the 120-day period immediately prior to the Consultant's ceasing to
provide services under this Agreement.
The Consultant hereby acknowledges and confirms that
the length of the period specified in this Section 6.06 (and the
geographic area specified in Exhibit A) is reasonable and necessary
for the protection of the Company against the injurious effects of any
violation of the provisions of this Agreement.
6.07 The Consultant hereby acknowledges and confirms that
the Company's remedy at law for any breach of any of the Consultant's
obligations under Sections 6.02, 6.03, 6.05 or 6.06 of this Agreement
would be inadequate, and that damages would be difficult or impossible
to ascertain, and consents that temporary and permanent injunctive
relief may be granted in accordance with equity in any proceeding
which may be brought to enforce any provision of such Sections without
the necessity of proof of actual damage. The Consultant acknowledges
that (i) the Company has reserved and is to have the right to prove
any damages which the Company is able to prove resulting from any
breach of any of the Consultant's obligations under such Sections, and
(ii) the value of the consideration which the
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Consultant is to receive in connection with this Agreement is not to
be considered as equivalent to, or an evidence of, the amount or
extent of any such damages.
7. General
7.01 Except as provided in the second paragraph of this
Section 7.01, this Agreement sets forth the entire agreement and
understanding of the parties concerning the subject matter of this
Agreement and supersedes all prior agreements, arrangements and
understandings concerning such subject matter between the parties
hereto. No representation, promise, inducement or statement of
intention has been made by or on behalf of any party hereto, or any
related party, that is not set forth in this Agreement.
Notwithstanding any other provision of this Agreement
to the contrary, this Agreement does not supersede, but is in addition
to, any non-competition or confidentiality agreement or understanding
between the Consultant and the Company. The rights and remedies of
the Company and its successors and assigns under this Agreement shall
be independent of, and separate and distinct from, their rights and
remedies under any such other agreement or understanding, and no
default thereunder or termination thereof shall in any way affect the
obligations of the Consultant or the rights and remedies of the
Company under this Agreement.
7.02 This Agreement may be amended, superseded or
cancelled, and any of the terms or provisions hereof may be waived, or
a departure from the terms or provisions hereof may be consented to,
only by a written instrument specifically
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stating that it amends, supersedes or cancels this Agreement, or
waives or consents to a departure from the terms or provisions hereof,
executed by each of the parties, or in the case of a waiver or
consent, by the party granting such waiver or consent.
7.03 The terms and provisions of this Agreement shall be
binding on and inure to the benefit of the Company or any affiliate of
the Company and their respective successors and assigns, including
such successors and assigns that purchase substantially all of the
assets of the Company. The terms and provisions of this Agreement
shall be binding on and inure to the benefit of the Consultant and the
Consultant's legal representatives, but the Consultant's obligations
hereunder shall not be assignable.
7.04 If the scope of any restriction contained in this
Agreement is too broad to permit enforcement of such restriction to
its full extent, then such restriction shall be enforced to the
maximum extent permitted at law and in equity, and in that event the
Consultant hereby consents that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
7.05 The failure of either party to require performance of
the other party's obligations under this Agreement at any time shall
in no manner affect either such party's right to enforce any provision
of this Agreement at a subsequent time, and the waiver by either party
of any right arising out of any breach of this Agreement shall not be
construed as a waiver of any right arising out of any other or
subsequent breach of this Agreement.
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7.06 The Article headings contained in this Agreement are
for convenient reference only, and shall not in any way affect the
meaning or interpretation of this Agreement.
7.07 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, U.S.A.,
other than the conflict-of-laws provisions thereof that would
otherwise require the application of the law of any other
jurisdiction.
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7.08 Notices and instructions under this Agreement shall be
addressed as follows and sent by certified mail:
To the Consultant: Xxxxxx X. Xxxxxxxx
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
To the Company: X. X. Xxxxxxxx
X. X. Xxxxx & Co.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
IN WITNESS WHEREOF, the parties have executed this instrument as of the date
first above written.
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
X. X. XXXXX & CO.
By: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX,
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
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