EXHIBIT 10.4
CONSULTING AGREEMENT
AGREEMENT made as of the 13th day of November 1996 by and between ASTA
FUNDING, INC., a Delaware corporation (hereinafter referred to as the
"Company"), and XXXXXX XXXXX (hereinafter referred to as the "Consultant").
RECITALS
The Company and the Consultant desire to enter into this Agreement
whereby the Company will be assured of the right to the Consultant's services
for the period and on the terms and conditions hereinafter set forth, and the
Consultant will be assured of his engagement on such terms and conditions.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants contained in this Agreement, the Company and the Consultant hereby
agree as follows:
1. Engagement.
(a) Subject to the terms and conditions hereinafter set forth, the
Company hereby retains the Consultant and the Consultant hereby agrees to render
services to the Company in such capacities as the Board of Directors of the
Company may, from time to time, designate. The Consultant shall hold, without
additional compensation therefor, such offices and directorships in the Company
and/or any subsidiary of the Company to which, from time to time during the term
of his retention, the Consultant may be elected or appointed. Nothing contained
in this Agreement shall restrict the right of the Consultant to serve as an
employee,
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officer, agent or member of the boards of directors of corporations which are
engaged in businesses which are not competitive with any businesses then
conducted or contemplated by the Company or any of its subsidiaries, if any, or
the right of the Consultant to manage his private investments, if such
directorships or such investment activities do not interfere with the
performance by the Consultant of his duties under this Agreement. The Consultant
shall render his services with due regard for the prompt, efficient and
economical operation of the business of the Company and its subsidiaries to the
end of maximizing the profitability of the Company and its subsidiaries.
(b) The Consultant agrees that when called upon he will render a
reasonable amount of services to the Company with due regard to the nature of
the services to be performed, the extent of his other business commitments and
the amount of his compensation hereunder.
2. Term.
The term of the engagement of the Consultant by the Company pursuant
to this Agreement shall be for a period commencing on the date hereof and
terminating on the first anniversary of the date hereof, subject to earlier
termination by the Company or the Consultant as provided in paragraph 4 hereof.
3. Compensation.
In consideration of the services to be rendered by the Consultant
pursuant to this Agreement, including, without limitation, any services rendered
by the Consultant as an officer
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or director of the Company or any subsidiary of the Company, the Company agrees
to pay to the Consultant monthly in arrears fixed compensation at the rate of
seventy-five Thousand ($75,000.00) Dollars per annum.
3. Expenses.
During the term of this Agreement, the Company will reimburse the
Consultant, upon written authorization by the Company prior to incurring such
expenses, for all travel, entertainment and other out-of-pocket expenses which
are reasonably and necessarily incurred by the Consultant in the performance of
his duties hereunder.
4. Termination.
(a) This Agreement may be terminated upon thirty (30) days written
notice to the other party (i) by the Consultant for any reason or no reason or
(ii) the Company, if the Consultant dies or becomes disabled or fails to
diligently perform the services the Company requests him to perform under
Paragraph 1 hereof; provided, that the Company has given the Consultant written
notice of such failure and the Consultant does not within thirty (30) days
thereafter adequately perform the required services in the reasonable opinion of
the Company.
(b) In the event that at any time during the stated term of this
Agreement, this Agreement is terminated for any reason, including the
Consultant's death or disability, the Company shall pay to Consultant, his
estate or his legal representative, as the case may be, the Consultant's
compensation through the end of
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the month in which his employment is terminated. Thereafter, the Company shall
have no obligation to the Consultant to make any further payments to him, his
estate or legal representatives hereunder.
5. Non-Disclosure of Confidential Information
and Non-Competition.
(a) The Consultant acknowledges that it is the policy of the Company
to maintain as secret and confidential all valuable and unique information
heretofore and hereafter acquired, developed or used by the Company relating to
the business, operations, employees, suppliers, dealers and customers of the
Company, which gives the Company or its subsidiaries a competitive advantage in
its industry (all such information is hereinafter referred to as "Confidential
Information"). The parties recognize that the services to be performed by the
Consultant pursuant to this Agreement are special and unique, and that by reason
of his retention by the Company, the Consultant has acquired and will acquire
Confidential Information. The Consultant recognizes that all such Confidential
Information is the property of the Company. In consideration of the Consultant's
retention by the Company pursuant to this Agreement, the Consultant agrees that:
(i) except as required by his duties hereunder, the Consultant
shall never, directly or indirectly use, publish,
disseminate or otherwise disclose any Confidential
Information obtained during the term of this Agreement
without the prior written consent of the Board of Directors
of the Company acting independently, it being understood
that the provisions of this subparagraph (a) (i) shall
survive the termination of this Agreement; and
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(ii) during the term of this Agreement, the Consultant shall
exercise all due and diligent precautions to protect the
integrity of business plans, customer, supplier and dealer
lists, statistical data and compilations, agreements,
contracts, manuals or other documents of the Company and
embodying any Confidential Information and, upon termination
of this Agreement the Consultant shall return to the Company
any and all such documents (and copies thereof) which are in
the possession or under the control of the Consultant.
The Consultant agrees that the provisions of this Paragraph (a) are
reasonably necessary to protect the proprietary rights of the Company and the
subsidiaries of the Company in the Confidential Information and their trade
secrets, good will and reputation.
(b) During the term of this Agreement, the Consultant shall not, in
any manner, be engaged, directly or indirectly, within the United States of
America (its territories and possessions) and Canada (or for such lesser
geographical area as may be determined by a court of law or equity to be a
reasonable limitation on the competitive activities of the Consultant) as an
employee, partner, officer, director, representative, consultant, agent or
stockholder of any corporation, partnership, proprietorship or other form of
business entity which is engaged in a competitive business to that of the
Company. The Consultant shall not, either during or subsequent to the term of
this Agreement, seek to persuade any director or officer or employee of the
Company or any subsidiary or affiliate of the Company to discontinue that
individual's status or employment with the Company, nor to become employed in
any activity similar to or
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competitive with the activities of the Company or any subsidiary or affiliate of
the Company, nor will the Consultant hire or retain any such person, nor will he
solicit (or cause or authorize), directly or indirectly, to be solicited, for or
on behalf of himself or any third party, any business from others who are, at
any time within three (3) years prior to the cessation of his employment
hereunder, customers of the Company or any subsidiary or affiliate of the
Company.
(c) The Consultant acknowledges that any breach or threatened breach
or alleged breach or threatened alleged breach by the Consultant of any of the
provisions of Paragraph 5 of this Agreement can cause irreparable harm to the
Company, for which the Company would have no adequate remedy at law. In the
event of a breach or threatened breach or an alleged breach or alleged
threatened breach by the Consultant of any of the provisions of paragraph 5, the
Company, in addition to any and all other rights and remedies it may have under
this Agreement or otherwise, may immediately seek any judicial action which the
Company may deem necessary or advisable including, without limitation, the
obtaining of temporary and preliminary injunctive relief.
6. Notices.
Any notice, request, instruction or other document to be given under
this Agreement to any party hereunder by any other party hereunder shall be in
writing and delivered personally, or sent by registered or certified mail,
postage prepaid, to the following addresses:
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If to the Company:
Asta Funding, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Consultant:
Xx. Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
or to such other address as a party hereto may hereafter designate in writing to
the other party, provided that any notice of a change of address shall become
effective only upon receipt thereof.
7. Benefit; Assignment
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns, and the Consultant and his
heirs, legal representatives, successors and permitted assigns.
(b) This Agreement is personal to the Consultant and the Consultant
may not assign any of his rights or delegate any of his duties under this
Agreement.
8. Entire Agreement; Amendment.
This Agreement contains the entire understanding between the Company
and the Consultant with respect to the retention of the Consultant and
supersedes all prior negotiations and understandings between the Company and the
Consultant with respect to the retention of the Consultant by the Company. This
Agreement may not be amended or modified except by a written instrument signed
by both the Company and the Consultant.
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9. Severability.
In the event any one or more provisions of this Agreement is held to
be invalid or unenforceable, such illegality or enforceability shall not affect
the validity or enforceability of the other provisions hereof, and such other
provisions shall remain in full force and effect, unaffected by such invalidity
or enforceability.
10. Governing Law.
This Agreement shall be construed and governed in accordance with the
laws of the State of New Jersey.
11. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ASTA FUNDING, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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