Exhibit 10.9
CONSULTING AGREEMENT
AGREEMENT made as of this _____ day of __________, 1997 by and
between Jazz Photo Corp. ("JAZZ"), a corporation organized under the laws of the
State of New Jersey and having its place of business at 0000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, X.X.X.; and Xxxxxx Xxxxxx ("Consultant") residing at 000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
WITNESSETH
WHEREAS, JAZZ is engaged in the design, development, marketing,
distribution and sale of cameras and other photographic products worldwide; and
WHEREAS, Consultant has expertise in marketing and sale of camera
and related products; and
WHEREAS, JAZZ wishes to retain Consultant to assist in sales and
marketing on the terms and conditions hereinafter set forth;
NOW, THEREFORE, it is hereby agreed by and between the parties
hereto as follows:
A. Consultant agrees to assist JAZZ:
1) with respect to all aspects of the marketing and sale of
its products in the U.S. and other markets, designing a broad marketing plan,
defining and developing plans for market sectors and in supporting sales to
customers, in each case at the request of the senior executives of the Company
and its Board of Directors.
Consultant shall make available his services for the purpose of consulting
directly in person and/or by telephone with Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx"),
the Chief Executive Officer of JAZZ. Such consultations may take place in the
offices of JAZZ or in the offices of Consultant or in such other location or
locations as may be mutually agreed to the parties.
B. Consultant will render its services as contemplated in this
Agreement directly to Xxxxxxxxx or to other personnel of JAZZ who may from time
to time be designated by Xxxxxxxxx or JAZZ's Board of Directors. JAZZ shall
clearly identify Consultant to its customers, vendors and financing sources as
its consultant, and not an employee of JAZZ. Any written disclosure by either
party to persons not parties to this Agreement of its relationship to the other
party will be subject to mutual approval by the parties. The parties will agree
to terms and conditions with respect to oral descriptions of their relationship.
In no event will Consultant be characterized as an officer, director, partner or
employee of JAZZ.
C. The relationship of Consultant and its employees to JAZZ shall be
that of independent contractors during the term hereof. Nothing herein shall be
construed to create any partnership, joint venture, employment, agency or
similar relationship or subject JAZZ or Consultant to any implied duties or
obligations not expressly stated herein. Consultant shall not have any right,
express or implied, to assume or create any obligation or duty, on behalf of, or
in the name of JAZZ, or to bind JAZZ in any respect whatsoever.
2
2. Compensation. Consultant shall be paid a consulting fee of $1,500 per
week. As additional compensation for the consulting services rendered hereunder,
JAZZ shall pay Consultant an amount equal to 1.00% of the Net Sales for products
of JAZZ shipped during the preceding month, payable on the 10th business day of
each calendar month during the term of this Agreement to customers whose names
are listed on the annexed Schedule A or whose names are added thereto by mutual
agreement. "Net Sales" shall mean Gross Revenues from all products and services
of JAZZ less returns, discounts and allowances.
In addition to the foregoing Consultant shall be reimbursed for any actual
out-of-pocket expenses reasonably incurred by Consultant in connection with
travel or otherwise for the performance of his consulting services hereunder.
The parties may from time to time amend this Agreement with respect to
additional compensation to be paid to Consultant
3. Term. This Agreement will continue in effect until December 31, 1997
(the "Term") unless sooner terminated by the Company or Consultant on thirty
(30) days advance written notice by the terminating party to the other.
4. In addition to the foregoing general expense reimbursement, JAZZ shall
reimburse Consultant for the costs and expenses incurred relevant to
Consultant's use, operation and garaging of an automobile in connection with the
performance of his duties pursuant to the terms of this Agreement. The total
cost incurred by JAZZ therefor shall not exceed Six Hundred ($600.00) per month.
3
5. Exclusivity. During the term of this Agreement and, if the Agreement is
terminated by JAZZ, for three months thereafter, without the prior consent of
JAZZ, Consultant will not perform consulting services of the kind contemplated
by this Agreement for any other entity engaged in a business which competes
directly with the business of JAZZ as now or hereafter conducted.
6. Non-Solicitation. Consultant will not solicit or enable others to
solicit any customers of JAZZ for Consultant or others to provide products or
services to them during the term of this Agreement.
7. Confidentiality. It is understood that in the course of performing its
consulting services under this Agreement, Consultant will become privy to
confidential and proprietary information about the customers, vendors and
business of JAZZ. Consultant agrees that such information will be kept
confidential and not used by or divulged to any person except with the express
prior written consent of JAZZ.
8. Assignability: Either party hereto may assign its rights and
obligations under this Agreement to an entity controlled by, controlling, or
under common control with such party.
9. Governing Law: Arbitration of Disputes. This Agreement is made in, and
shall be interpreted in accordance with the laws of, the State of New Jersey,
U.S.A. Any disputes arising under or in connection with the interpretation or
performance of this Agreement shall be submitted to arbitration before a single
arbitrator of the American Arbitration Association in New Jersey, in accordance
with the rules thereof, unless the parties mutually agree to use some other
forum for resolution of such
4
disputes. Each party hereby consents to the jurisdiction of such arbitration
panel and to entry and enforcement of the final award thereof in any court of
competent jurisdiction.
10. Representations and Warranties.
A. JAZZ represents and warrants to Consultant that it is authorized
to enter into and perform this Agreement; that its signatory is authorized to
execute and deliver this document on its behalf.
B. Consultant represents and warrants to JAZZ that he is under no
legal disability or contractual restraint which precludes him from entering into
and performing this Agreement and that he is not aware of anything which would
limit or impair his ability to furnish his services to JAZZ, as contemplated
hereby.
11. Miscellaneous.
A. This Agreement may be executed in more than one counterpart, all
of which shall be deemed to be one and the same Agreement.
B. This Agreement constitutes the entire agreement of the parties
hereto on the subject matter hereof, and may not be modified except by a writing
signed by both parties.
C. Any notice permitted or required hereunder shall be made to the
address of such party as set forth at the beginning of this Agreement, or such
other address as such party shall notify the other party in writing.
5
IN WiTNESS WHEREOF, the parties have signed this Agreement as of the
_______ day of [Illegible}, 1997.
JAZZ PHOTO CORP.
By /s/ [illegible]
---------------------
/s/ Xxxxxx Xxxxxx
----------------------
Xxxxxx Xxxxxx
6
