CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") dated _____________, 1998
(the "Effective Date") is made and entered into by and between IDF
INTERNATIONAL, INC., a New York corporation (the "Company"), and XXXXXX X.
XXXXX (the "Consultant").
WHEREAS, the Consultant is a principal stockholder of the Company and
is a party to a consulting agreement with the Company dated August 25, 1997 (the
"Prior Consulting Agreement"); and
WHEREAS, as of the Effective Date, the Consultant has elected to resign
as a member of the Board of Directors of the Company, and connection therewith,
the Company and the Consultant have elected to restate the terms of the Prior
Consulting Agreement pursuant to provisions of this Agreement.
NOW THEREFORE, in consideration of the promises and the mutual consents
entered herein, the parties hereto agree as follows:
Section 1. Engagement; Termination of Prior Consulting Agreement.
Subject to the terms and conditions set forth in this Agreement, the Company
hereby engages the Consultant, and the Consultant hereby accepts such
engagement. Simultaneous with the execution and delivery of this Agreement, the
Prior Consulting Agreement shall terminate and shall be deemed null and void, ab
initio, and without further force or effect.
Section 2. Duties. The Consultant shall aid and assist the Company,
TechStar and the Hayden/Xxxxxx, Inc. subsidiary of the Company in obtaining
financing and in connection with their general policies and procedures,
including without limitation, ongoing merger and acquisition strategy, new
business development, corporate finance, marketing and positioning in the
marketplace, strategic partnership arrangements and other matters as from time
to time requested by the Board of Directors of the Company and agreed to by the
Consultant. The Consultant shall be required to devote no more than 10% of his
business time to the provision of such services. In addition, the Consultant
shall, at no additional compensation, serve as Chairman of the Board of
Directors of each of the Company, TechStar and Hayden/Xxxxxx, Inc. subsidiaries
of the Company.
Section 3. Compensation. In consideration for the services to be
rendered by the Consultant hereunder, the Company shall pay the Consultant an
annual consulting fee of $75,000. This compensation shall be paid in
installments at such times as the Company customarily pays its senior
management, but in no event less frequently than once per month.
Section 4. Expenses. The Company will pay or reimburse the Consultant
for all reasonable and necessary direct out-of-pocket expenses incurred in
connection with the
performance by the Consultant of his responsibilities hereunder in accordance
with the Company's usual and customary practices.
Section 5. Nature of Relationship. The Consultant's relationship with
the Company shall be that of an independent contractor. This Agreement shall not
be construed as an agreement of employment, partnership or any form of business
entity. The Consultant shall not be an employee of the Company, shall not be
entitled to participate in any employee benefit plan or other similar
arrangement or benefit that may be provided by the Company to its employees and
shall be entitled to compensation only as expressly provided in this Agreement
or pursuant to his services as a director of the Company. The Consultant
understands that he will not be treated as an employee for purposes of any
federal or state law regarding income tax withholding or with respect to
contribution required under any employment, insurance or compensatory program
and he will fully discharge any and all such taxes and contributions related to
his services hereunder.
Section 6. Term and Termination.
(a) The term of this Agreement shall begin as of the date of this
Agreement and shall terminate upon the earliest of (i) the Consultant's death,
(ii) any termination pursuant to paragraph (b) of this Section 6 or (iii) the
date on which shall be three (3) years from the Effective Date of this
Agreement.
(b) The Company shall have the right to terminate this Agreement at any
time for "cause" upon written notice to the Consultant, and such termination
shall be effective upon delivery of such notice. For purposes of this Agreement,
"Cause" shall mean a material breach of this Agreement by the Consultant
determined to have occurred in good faith by a resolution of the Company's Board
of Directors, including willful and deliberate malfeasance or gross negligence.
Section 7. Integrated Agreement: Amendment. This Agreement constitutes
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements between the
parties. This Agreement may be amended or modified at any time in all respects,
but only by an instrument in writing executed by the parties hereto.
Section 8. Severability. Each provision of this Agreement is intended
to be severable. If any provision contained in this Agreement shall be held to
be invalid, illegal or unenforceable, it shall not affect the validity or
enforceability of any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein; provided, however, that no provision
shall be severed if it is clearly apparent under the circumstances that the
parties would not have entered into this Agreement without such provision or
provisions.
Section 9. Waiver. The failure by either party to enforce any rights
hereunder shall
not be deemed to be a waiver of such rights, unless such waiver is an express
written waiver that has been signed by the waiving party. Waiver of any one
breach shall not be deemed to be a waiver of any other breach of the same or any
other provision thereof.
Section 10. Choice of Law. The validity of this Agreement, the
construction of its terms and the determination of the rights and duties of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed wholly
within such State.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IDF INTERNATIONAL, INC.
By:
_________________________________
President
______________________________
XXXXXX X. XXXXX
Each of the undersigned does hereby guaranty the obligations of IDF
International, Inc. under the foregoing agreement.
TECHSTAR COMMUNICATIONS, INC.
By:
_________________________________
President
HAYDEN/XXXXXX, INC.
By:
_________________________________
President
