CONSULTING AGREEMENT
This Agreement is made as of October 1, 2001 and sets forth the
understandings between Xxxxxxx X. Xxxxx, Xx., 00 Xxxxxx Xxxxxxx, Xxxxxxx, Xxx
Xxxx 00000 ("Ladds"), pursuant to which Columbus XxXxxxxx Corporation, a New
York corporation with offices at 000 Xxxx Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxx
Xxxx 00000-0000 ("CM") engages Ladds as a consultant.
1. BACKGROUND STATEMENT. As a result of his many years of experience with CM,
Ladds possesses specialized knowledge about CM, the industry in which it
operates, and the domestic and international markets it serves. Accordingly,
this Agreement is made in connection with CM's commitment to increasing
shareholder value and with the belief and expectation that Ladds can assist with
that effort.
2. ENGAGEMENT; RELATIONSHIP; NO AGENCY. CM hereby engages Ladds as a
consultant, and Ladds hereby accepts that engagement and agrees to render
services to CM as contemplated by this Agreement in support of and in
conjunction with CM's top management team. Ladds will render services hereunder
as an independent contractor and not as an employee of CM. Neither Ladds nor CM
is an agent of the other, and neither has authority to take action on behalf of
the other or to bind the other to any obligation to any third party whether by
virtue of this Agreement or otherwise.
3. LADDS' OBLIGATIONS
3.1. Insofar as they are related to Ladds' obligations as defined
hereunder, all material aspects of the plans and activities of the Company and
of Ladds concerning this consulting will need to be communicated and coordinated
between CM's CEO or his designee and Ladds on a regular and continuing basis
throughout the term hereof such meetings to occur as agreed between the parties,
at least monthly, to review progress made and planned future activities.
3.2. Ladds will advise CM concerning such matters as CM's board of
directors or CM's chief executive officer may, from time to time, request but
primarily in connection with helping to strengthen international and national
marketing and in connection with investor relations.
3.3. Ladds will be available approximately forty (40) hours a month to
render the services contemplated by this Agreement at mutually agreeable times.
The forty (40) hours per month which Ladds is required to be available shall
include time spent communicating and coordinating Ladds' activities and, in
cases where Ladds is required to travel by air in connection with the provision
of consulting services hereunder, shall include the period of time beginning two
(2) hours prior to the scheduled departure of Ladds' flight and ending upon
arrival of such flight at its ultimate destination. For projects requiring
significantly more time than the forty (40) hours per month contemplated herein,
compensation will be separately and mutually agreed upon between the parties.
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3.4. At the request of CM, Ladds, may be asked to travel up to ten (10)
days in any six (6) month period during the term hereof. Any air travel which is
required to be undertaken by Ladds in connection with his performance of the
consulting services to be performed hereunder shall be in business or first
class accommodations. All expenses payable in connection with any travel which
Ladds may be required to undertake in connection with the performance of the
consulting services to be provided hereunder shall be at CM's expense.
3.5. Nothing in this Agreement is intended to prohibit Ladds from
engaging in any other activity. Notwithstanding the foregoing, nothing in this
Agreement shall affect Ladds' rights or obligations under any agreement he has
with CM.
3.6. In providing services hereunder, Ladds is entitled to rely on all
information CM provides to him and is not responsible to investigate or confirm
any such information; he shall have inquiry access to CM's business information
system.
3.7. Ladds will exercise his best judgment and efforts in rendering the
services contemplated by this Agreement.
4. COMPENSATION REIMBURSEMENT
4.1. In consideration of the services Ladds renders under this Agreement,
CM will pay Ladds $23,750.00 per month for each month that this Agreement is in
effect. The monthly consulting fees which are to be paid to Ladds shall be
payable whether or not the consulting services which CM requests Ladds to
provide require Ladds to provide forty (40) hours of consulting services per
month. However, in the event that Ladds performs consulting services at CM's
request for more than forty (40) hours per month, CM shall pay Ladds $200.00 per
hour for all such hours in excess of forty (40) hours per month. Finally, CM
acknowledges and agrees that in the event that either Ladds or CM terminates
this Agreement prior to December 31, 2003 pursuant to Section 5 below, the
monthly consulting fees to be paid to Ladds as provided for by this Section 4
shall continue to be paid through the end of the sixty (60) day period beginning
on the day following the date either party delivers a notice of termination to
the other.
4.2. The monthly consulting fees to be paid to Ladds pursuant to Section
4.1 above shall be due and payable on the first business day of each calendar
month beginning on and after the date of this Agreement through December 31,
2003 or, if earlier, through the effective date of the termination of this
Agreement pursuant to Section 5 below.
4.3. Ladds will be entitled to reimbursement for reasonable out-of-pocket
travel expenses he actually incurs in rendering services pursuant to this
Agreement without prior authorization upon his submission of vouchers in the
form required by CM evidencing such expenses in accordance with CM's current
corporate travel and other expense policies.
4.4. As an integral component of this Agreement, CM will be responsible
for providing office accommodations with shared or part-time secretarial
assistance for Ladds at the CM corporate headquarters in Amherst, New York, or
such other location as mutually agreed by the parties.
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5. TERM AND TERMINATION. The term of this Agreement will commence on the date
hereof and end on December 31, 2003. Thereafter, the term may be extended by
mutual written agreement of the parties for additional one year terms. Either
party may terminate this Agreement for any reason or for no reason, effective at
the end of the sixty (60) day period beginning on the day following the day the
party desiring to terminate this Agreement delivers notice of his or its intent
to terminate this Agreement to the other. The Agreement will terminate
automatically upon Ladds' inability, by reason of death or disability, to carry
out his obligations as defined herein.
6. ANNUAL REVIEW. At least annually, the Chairman of the Compensation and
Nomination/Succession Committee will conduct a review of the continuing
effectiveness and value of this Agreement with the parties hereto and will
report the results of his review to the Board of Directors.
7. INDEMNIFICATION.
7.1. To the fullest extent permitted by applicable law, CM hereby agrees
to indemnify, defend, and hold Ladds harmless from and against any and all
liabilities and reasonable expenses which Ladds may incur by reason of any acts
he may perform, advice he may render, or recommendations he may make in
connection with the performance of his obligations as defined herein, provided
that no indemnification shall be made in any case in which such acts, advice, or
recommendations are made in bad faith, with deliberate dishonesty or as a result
of gross negligence.
7.2. At the written request of Ladds, CM will, in advance of any
determination (by any court, investigative agency or other third party) that CM
is obligated to indemnify Ladds with respect to any particular action, suit,
proceeding or investigation, pay any attorneys' fees and other litigation costs
which may be incurred by Ladds in connection with any action, suit or proceeding
described in the preceding paragraph as to which Ladds may be made a party or
threatened to be made a party; provided, however, that if it is ultimately
determined that Ladds is not entitled, pursuant to the provisions of the
preceding paragraph, to be indemnified or fully indemnified, Ladds shall be
obligated to repay to CM the amount, or an appropriate portion, of the
attorneys' fees and other litigation costs advanced by CM.
8. CHOICE OF LAW; ARBITRATION.
8.1. The provisions of this Section 7 do not constitute a waiver by
either party hereto of the right to seek a judicial determination or forum where
such a waiver would be void under applicable laws.
8.2. To the maximum extent permitted by applicable law, any controversy
that may arise between the parties concerning any matter arising out of this
Agreement will be governed by the laws of the State of New York without regard
to principles of conflicts of laws and will be determined by an arbitration
proceeding to be held in Buffalo, New York and in accordance with the rules,
regulations and procedures then in effect of the American Arbitration
Association. The award in any arbitration hereunder will be final, and judgment
upon the award may be entered in any court having jurisdiction. The parties
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hereby submit and agree to submit to the jurisdiction of any such court for the
purpose of entering any such judgment.
9. ASSIGNMENT NOT PERMITTED. Neither party may assign its rights or delegate
its obligations hereunder, and any attempted assignment or delegation will be
void.
10. ENTIRE AGREEMENT; AMENDMENTS TO BE IN WRITING. This Agreement constitutes
the entire agreement and understandings of the parties with respect to the
subject matter hereof. No amendment hereto will be binding unless that amendment
is in writing and signed by the party sought to be charged.
11. NOTICES. To be effective, any notice contemplated by this Agreement or
given in connection with the subject matter of this Agreement must be in
writing, given to the receiving party at that party's address set forth at the
beginning of this Agreement. Notice will be deemed to have been given when it is
received. Either party may change its address for purposes of giving notice
hereunder by notifying the other party pursuant to the provisions of this
Section 10.
12. ENFORCEABILITY. If any portion of this Agreement is found to be
unenforceable or invalid, the remaining provisions of this Agreement shall
remain in full force and effect.
13. MISCELLANEOUS. All section headings in this Agreement are for ease of
reference only and shall not govern the interpretation of the other language in
this Agreement.
To evidence their agreement to the foregoing, the parties have caused
this Agreement to be executed as of the date first above written.
COLUMBUS XxXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and CEO
/s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx.
