Exhibit 10.22
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into this _____ day
of ________, 1996 (the "Effective Date"), between Macpherson Meistergram, Inc.,
a North Carolina corporation ("Company") and Xxxx X. Xxxxxxxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, Company, Xxxxxxx & Xxxxx, Inc. ("W&G") and Consultant, among
others, have entered into a Stock Purchase Agreement dated as of November ___,
1996 (the "Stock Purchase Agreement"); and
WHEREAS, Prior to the Closing Date (as defined in the Stock Purchase
Agreement) under the Stock Purchase Agreement Consultant has been employed as a
key employee by Company; and
WHEREAS, the parties are desirous of entering into this Agreement in order
to ensure Company and W&G of Consultant's valuable services pursuant to the
terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT CONDITIONS
a. Company hereby engages Consultant as a consultant and Consultant
hereby accepts such engagement upon the terms and
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conditions hereinafter set forth. Consultant shall perform consulting, oversight
and advisory service to Company at all times reasonably requested by Company and
upon reasonable advance notice by the Company. Company acknowledges that
Consultant is engaged in various other businesses which may require scheduling
flexibility as respects Consultants' services.
b. During the term of his engagement, Consultant shall not be
required to devote all of his business time and attention to providing services
to Company. In no event shall Consultant's services be required for more than
sixty (60) days over the Term (as defined below).
2. TERM.
Subject to the provisions for earlier termination hereinafter
provided, the term of Consultant's employment hereunder shall be for a period of
one (1) year commencing with the date of this Agreement (the "Term").
3. COMPENSATION.
a. For all services to be rendered by Consultant pursuant to this
Agreement, Consultant shall receive from Company a per diem fee in an amount of
$1,000.00.
b. Consultant shall be entitled to reimbursement for all reasonable
business expenses incurred in the performance of his responsibilities under this
Agreement. Consultant shall submit to Company periodic statements of all
expenses so incurred and Company shall reimburse Consultant the full amount of
any such expenses.
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4. BENEFITS. Consultant shall not be entitled to any Company benefits.
5. COVENANTS AND CONFIDENTIAL INFORMATION.
a. Consultant agrees that he will not, directly or indirectly,
whether in the capacity of director, officer, employee, agent, advisor or
otherwise, individually or for, with or through any other person, firm or
corporation, by equity ownership or otherwise, compete with the Company and
Xxxxxxxx X. Xxxxxxxxxx Canada, Inc. ("GEMC") or any subsidiary of the Company or
GEMC (collectively the "Protected Parties") with respect to the business
conducted by the Protected Parties (the "Prohibited Business") during the
Covenant Term (hereinafter defined) during the time period commencing with the
Closing Date of the Stock Purchase Agreement and expiring on the fifth (5th)
anniversary date of the Closing Date (the "Covenant Term") (x) in North America
and (y) in any area of Central and/or South America where the Prohibited
Business is conducted during the Covenant Term. The "Prohibited Business" shall
include the business of the Company and GEMC as of the Closing Date and
technological extensions, enhancements and/or improvements of such business as
conducted by the Company and GEMC on the Closing Date.
b. Notwithstanding the foregoing, during the Covenant Term
Consultant shall be permitted to own not in excess of three percent (3%) of any
class of securities of any public company which is engaged in the Prohibited
Business.
c. During the Covenant Term Consultant agrees not to induce any
person who is an employee or officer of the Protected
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Parties to terminate said relationship, except where such action is taken at the
request of Company in the course of carrying out Consultant's duties for the
Company or GEMC;
d. During the Covenant Term the Consultant agrees not to disclose or
use, in any manner in competition with or contrary to the interests of the
Protected Parties, the customer lists, business methods, product research, or
other trade secrets of the Protected Parties relating to the Prohibited
Business, it being acknowledged that all such information regarding the
Prohibited Businesses, is confidential information and the exclusive property of
the Protected Parties; provided, however, that the foregoing restrictions shall
not restrict the use or disclosure of such confidential information (i) to any
government entity to the extent required by law, or (ii) which is or becomes
publicly known and available through no wrongful act of Consultant, or (iii) in
the course of carrying out Consultant's duties for the Company or GEMC.
e. It is the intention of the parties that if any of the
restrictions or covenants contained herein is held to cover a geographic area or
to be for a length of time which is not permitted by applicable law, or in any
way construed to be too broad or to any extent invalid, such provision shall not
be construed to be null, void and of no effect, but to the extent such provision
would be valid or enforceable under applicable law, a court of competent
jurisdiction shall construe and interpret or reform this Section 5 to provide
for a covenant having the maximum enforceable geographic area, time period and
other provisions (not greater than those contained herein) as
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shall be valid and enforceable under such applicable law. Consultant
acknowledges that any breach of the terms, conditions or covenants set forth in
this Section 5 may cause irreparable damage to the Protected Parties because of
the special, unique, unusual and extraordinary character of their business and
the Protected Parties' recovery of damages at law will not be an adequate
remedy. Accordingly, Consultant agrees that for any breach of the terms,
covenants or agreements of this Section 5, a restraining order or an injunction
or both may be issued against such person, in addition to any other rights or
remedies the Protected Parties may have.
6. TERMINATION AND SEVERANCE COMPENSATION.
The employment of Consultant under this Agreement, and
the Term hereof, may be terminated by the Company with or without cause at any
time without further liability of Company to Consultant. No such termination of
the engagement of the Consultant or the Term hereof shall in any way affect the
Company's obligation to pay any compensation owed to Consultant, as provided for
in Section 3 hereof.
7. SEVERABILITY. The provisions of this Agreement are severable, and if
any one or more provisions shall be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provision to the extent enforceable in any jurisdiction, shall
nevertheless be binding and enforceable.
8. BINDING AGREEMENT. The rights and obligations of Company under this
Agreement shall inure to the benefit of, and
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shall be binding upon, Company and its successors and assigns, and the rights
and obligations of Consultant under this Agreement shall inure to the benefit
of, and shall be binding upon, Consultant and his heirs, personal
representatives and estate.
9. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given (a) on the same day if delivered personally,
(b) three business days after being mailed by registered or certified mail
(return receipt requested) as determined by reference to the postmark; or (c) on
the same day if sent by facsimile, confirmation received, at the address of such
party first above set forth or to such other address as the parties shall
furnish in writing.
10. WAIVER. The failure of any party to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
11. MISCELLANEOUS. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof,
and may not be modified or terminated orally. No modification, termination or
attempted waiver of this Agreement shall be valid unless in writing and signed
by the party against whom the same is sought to be enforced. This Agreement may
be executed in multiple counterparts, each of which
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shall be an original, and all of which, when taken together, shall constitute
one and the same document. This Agreement shall be governed by and construed
according to the laws of the State of New Jersey, without regard to the
principles thereof regarding conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first set forth above.
MACPHERSON MEISTERGRAM, INC.
By: ______________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
__________________________________
XXXX X. XXXXXXXXXX
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Xxxxxxx & Xxxxx, Inc., unconditionally guarantees the
prompt payment and performance of all obligations of Macpherson Meistergram,
Inc. under this Consulting Agreement.
XXXXXXX & XXXXX, INC.
By: ______________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
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