EXHIBIT 10.25
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this 16th day of November 2001, by and between XXXXXXXX XXXXXXX (the
"Consultant") and MCY MUSIC WORLD, INC. (the "Client"), a Delaware corporation.
WHEREAS, the Consultant is willing and capable of providing various
consulting services, hereinafter defined, for and on behalf of the Client; and
WHEREAS, the Client desires to retain the Consultant as an independent
consultant and the Consultant desires to be retained in that capacity upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consulting Services. The Client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The Consultant shall render to the Client such
services as set forth on Exhibit A, attached hereto and by reference
incorporated herein.
2. Time, Place and Manner of Performance. The Consultant shall be
available for advice and counsel to Client and representatives and agents of the
Client at such reasonable and convenient times and places as may be mutually
agreed upon. Except as aforesaid, the time, place and manner of performance of
the services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined in the sole discretion
of the Consultant.
3. Term of Agreement. The Term of this Agreement shall commence on the
date hereof and shall continue until November 30, 2003, unless terminated
earlier pursuant to the provisions herein. The Term of this Agreement may be
extended as mutually agreed by the parties.
4. Compensation. In full consideration of the services to be provided
for the Client by the Consultant, as fully set forth in Exhibit A, the Client
agrees to compensate Consultant in the manner set forth on Exhibit B.
5. Expenses. The Client shall promptly and in no event later than ten
days after presentation of an itemized account of such expenditures on an
expense report by the Consultant reimburse the Consultant for all reasonable and
necessary expenses incurred while performing services for the Client, and for
all funds advanced on behalf of the Consultant. Reimbursement of any expenses by
the Client are in addition to any expenses incurred by the Consultant on the
Corporate American Express Card in accordance with Exhibit B attached hereto.
6. Termination.
(a) This Agreement shall terminate should Closing of the
Agreement and Plan of Reorganization dated this date by and among
XXX.xxx, Inc., Xxxxxx Xxxx Venture ("Xxxxxx Xxxx"), and certain
shareholders of Xxxxxx Xxxx, should Closing not occur, as "Closing" is
defined therein.
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(b) This Agreement may be terminated at any time by mutual
written agreement of the parties hereto.
(c) This Agreement shall terminate upon the dissolution,
bankruptcy or insolvency of either party.
(d) A party shall have the right and discretion to terminate
this Agreement should the other party violate any law, ordinance,
permit or regulation of any governmental entity which has a material
adverse effect on such party's ability to perform under this Agreement.
(e) A party shall have the right and discretion to terminate
this Agreement should the other party fail to cure, within 15 days
after receipt of notice from such non-breaching party, any of the
following:
(i) Any breach of duty or habitual neglect of duty;
(ii) Any material breach of the obligations in Section
7; or
(iii) Any material acts or events which inhibit either
party from fully performing its responsibilities
under this Agreement in good faith.
7. Confidentiality. The Consultant recognizes and acknowledges that he
has and will have access to certain confidential information of the Client and
its affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. The Consultant will not, during or after the Term of
this Agreement, disclose, without the prior written consent or authorization of
the Client, any of such information to any person, except to authorized
representatives of the Consultant or his affiliates, for any reason or purpose
whatsoever. In this regard, the Client agrees that such authorization or consent
to disclosure may be conditioned upon the disclosure being made pursuant to a
secrecy agreement, protective order, provision of statute, rule, regulation or
procedure under which the confidentiality of the information is maintained in
the hands of the person to whom the information is to be disclosed or in
compliance with the terms of a judicial order or administrative process.
8. Performance of Services by Consultant. The Consultant shall be free
to perform services for other persons.
9. Disclaimer of Responsibility for Acts of the Client. The obligations
of Consultant described in this Agreement consist solely of the furnishing of
information and advice to the Client in the form of services. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. All final decisions with respect to acts and omissions
of the Client or any affiliates and subsidiaries, shall be those of the Client
or its affiliates, and Consultant shall under no circumstances be liable for any
expense incurred or loss suffered by the Client as a consequence of such acts or
omissions.
10. Indemnity. The Client shall protect, defend, indemnify and hold
Consultant and his assigns and attorneys, accountants, employees, officers and
directors harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character resulting
from or relating to or arising out of (a) the inaccuracy, non-fulfillment or
breach of any representation, warranty, covenant or agreement made by the Client
herein; or (b) any legal action, including any counterclaim, to the extent it is
based upon alleged facts that, if true, would constitute a breach of any
representation, warranty,
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covenant or agreement made by the Client herein; or (c) negligent
actions or omissions of the Client or any employee or agent of the Client, or
any reckless or willful misconduct, occurring during the Term hereof with
respect to any of the decisions made by the Client.
11. Notices. Any notices required or permitted to be given under this
Agreement shall be ufficient if in writing and delivered or sent by registered
or certified mail or overnight courier to the principal office of each party.
12. Waiver or Breach. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by any party.
13. Assignment. This Agreement and the rights and obligations of the
Consultant hereunder shall not be assignable without the written consent of the
Client.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. The parties hereto
consent to the jurisdiction of the Southern District of New York or the courts
of the State of New York with respect to all disputes arising out of this
Agreement..
15. Severability and Enforceability. All agreements and covenants
contained herein are severable, and in the event any of them shall be held to be
invalid by any competent court, the Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
16. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the parties.
17. Waiver and Modification. Any waiver, alteration or modification of
any of the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, from time to time, may
waive any of its rights hereunder without effecting a waiver with respect to any
subsequent occurrences or transactions hereof.
18. Counterparts and Facsimile Signatures. This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto shall
constitute a valid and binding execution and delivery of this Agreement by such
party. Such facsimile copies shall constitute enforceable original documents.
19. Voiding Provision. This Agreement shall become null and void and of
no force or effect if the closing of Company's acquisition of Xxxxxx Xxxx does
not occur.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
MCY MUSIC WORLD, INC., A DELAWARE
CORPORATION
/s/ Xxxxxxxx Xxxxxxx By: /s/ X. X. XXXXXX
-------------------- --------------------------------
Xxxxxxxx Xxxxxxx
Its: President
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EXHIBIT A
THE CONSULTANT AGREES TO PROVIDE THE FOLLOWING SERVICES TO THE CLIENT:
The Consultant shall provide services to the Client as an independent management
consultant for the Client. The Consultant shall perform the following duties:
(1) Consultant shall make himself available at his convenience in his sole
discretion to consult with the board of directors, officers, employees
and representatives and agents of the Client at reasonable times,
concerning matters pertaining to the overall business and financial
operations of the Client; and
(2) perform such other services to the Client as mutually agreed upon by
the Client and the Consultant.
XXXXXXXX XXXXXXX MCY MUSIC WORLD, INC., A DELAWARE
CORPORATION
/s/ Xxxxxxxx Xxxxxxx By: /s/ X. X. XXXXXX
-------------------- --------------------------------
Xxxxxxxx Xxxxxxx
Its: President
--------------------------------
Exhibit A
EXHIBIT B
FOR ALL SERVICES TO BE RENDERED BY THE CONSULTANT UNDER THIS AGREEMENT, THE
CLIENT AGREES TO COMPENSATE THE CONSULTANT AS FOLLOWS:
A. The Client shall pay to the Consultant a retainer fee of $8,350 per
month for the Term for all services to be provided hereunder.
B. The Client shall continue to provide to the Consultant that certain
corporate American Express credit card in the name of Consultant for a period of
six (6) months after the date of the execution of this Agreement, and the
Consultant shall be entitled to reimbursement for charges to such credit card at
a rate of up to Three Thousand Dollars ($3,000) per month. At the end of six
months after the date of the execution of this Agreement, the Client agrees to
keep the American Express credit card in the name of the Consultant but the
Consultant alone would be responsible for any charges.
C. The Consultant shall have the right to continue to use that certain
BMW 750iL automobile currently under lease by the Client until October 27, 2002
(the expiration of the current lease, which has been paid in full), and the
right to purchase the vehicle at the expiration of the lease. The Consultant
shall be responsible for all maintenance costs.
XXXXXXXX XXXXXXX MCY MUSIC WORLD, INC., A DELAWARE
CORPORATION
/s/ Xxxxxxxx Xxxxxxx By: /s/ X.X. XXXXXX
-------------------- --------------------------------
Xxxxxxxx Xxxxxxx
Its: President
--------------------------------
Exhibit B
