1
EXHIBIT 10.44
CONULTING AGREEMENT
This Consulting Agreement (hereinafter "Agreement") dated as of April
1, 1997, between XXXXXX XXXXXXXXXX, INC., a corporation organized and existing
under the laws of the State of Delaware (hereinafter "Corporation") and COSMIX,
INC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter "Consultant"),
and Xxxxxxxxx Xxxxxxx (hereinafter "Purches"), the President of Consultant
residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, in the past, Consultant's President, Purches has been both
Chairman and Vice Chairman of the Board of Directors of the Corporation and has
from time to time consulted to the Corporation on both business and financial
matters, and
WHEREAS, the Corporation desires to engage the Consultant as its
business and financial consultant, and
WHEREAS, the Consultant desires to accept such engagement, all on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual understanding set forth
herein, the Corporation and the
1
2
Consultant agree as follows:
1. CONSULTANT'S DUTIES: The Corporation hereby engages the Consultant
as its business and financial consultant. The Consultant by Purches shall
continue to serve as a director of the Corporation. Subject at all times to the
control and direction of the Board of Directors and the Chief Executive Officer
of the Corporation, the Consultant shall have the duties as the general advisor
and consultant to management on all matters pertaining to the business and to
render all other services relevant thereto. The Consultant, by Purches, shall
perform all other duties that may be assigned to it by the Board of Directors
provided said duties be consistent with the prestige or responsibility of
Purches' position. The Consultant shall, through its agents, servants and
employees, devote its best efforts at all times necessary to perform its duties
and to advance the Corporation's best interests, subject to reasonable
vacations. The Consultant and the Corporation acknowledge that the Consultant
and its agents, servants and employees has other business interests and shall
not be required to devote its exclusive time and attention to the performance of
its duties hereunder.
2. TERM: Unless sooner terminated as provided in Section 4 below, this
Agreement shall be for a term of three (3) years commencing as of April 1, 1997
and ending on March
2
3
31, 2000; provided however, that the term of this Agreement shall be
automatically extended on the same terms and conditions for a one year period
from year to year thereafter unless either the Corporation or the Consultant
shall give written notice of the termination of this Agreement to the other at
least ninety (90) days prior to the expiration of said term or extended term.
3. COMPENSATION: For all services rendered by the Consultant under
this Agreement, the Corporation shall pay to Consultant as compensation the sum
of $100,000 per annum, payable in equal bi-weekly installments of $3,846.15.
4. HEALTH AND LIFE INSURANCE: The Corporation shall, at no cost to the
Consultant or Purches, provide Purches with full health insurance, basic, major
medical and dental as well as group life insurance. Said coverage shall be
identical to that afforded the Corporations's top executives.
5. EXPENSES: Consultant will be reimbursed by the Corporation for all
reasonable business expenses incurred by the Consultant in the performance of
its duties. Said reimbursement shall be made no less frequently than monthly
upon submission by the Consultant of a written request for same.
3
4
6. EARLY TERMINATION: The Consultant's engagement under this Agreement
may be terminated prior to the expiration or termination of this Agreement as
set forth in Section 2 above only as follows:
a. The Consultant's engagement under this Agreement shall
automatically terminate upon the death of Purches.
b. If Purches shall be disabled because of illness, injury,
mental incapacity or other reason and is substantially unable
to perform the duties of the Consultant duties under this
Agreement for a period of six consecutive calendar months, the
Corporation may, by written notice given after the end of the
sixth month, elect to terminate the Consultant's engagement
under this Agreement.
c. The Consultant's engagement under this Agreement may be
terminated by the Corporation for Cause (as defined below)
by giving written notice thereof to the Consultant. Such
termination shall be effective as of the termination date
specified in such notice. "Cause" shall mean only (i) the
breach or violation of any of the terms, covenants or
conditions of this Agreement
4
5
in any respect, (ii) the failure or refusal of the Consultant to perform the
duties reasonably assigned to it under this Agreement or by the Board of
Directors of the Corporation, and (iii) the filing of a voluntary petition in
bankruptcy by the Consultant or Purches (which petition shall not have been
discharged within 30 days after its filing), an assignment by the Consultant or
Purches for the benefit of creditors, or any proceeding under any law for the
relief or readjustment of indebtedness shall have been commenced involving the
Consultant or Xxxxxxxx (which proceeding involving the Consultant shall not have
been vacated or discharged within 60 days after its commencement).
7. SAVINGS CLAUSE: The determination that any provision of this
Agreement is unenforceable shall not terminate this Agreement or otherwise
affect the other provisions of this Agreement, it being the intention of the
parties hereto that this Agreement shall be construed to permit the equitable
reformation of such provision to permit the enforcement thereof, if possible,
and otherwise to permit the enforcement of the
5
6
remaining provisions of this Agreement as if such unenforceable provision were
not included herein.
8. EQUITABLE RELIEF: The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement and
that equitable relief, including specific performance and injunctive relief, may
be used to enforce the provisions of this Agreement.
9. NOTICES: Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given and
received on the date when personally delivered or deposited in the United States
Mail, registered postage prepaid, addressed:
a. if the Corporation to:
Xx. Xxxx Xxxxxx
Xxxxxx Xxxxxxxxxx, Inc.
0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
b. if to the Consultant or Purches to:
Xx. Xxxxxxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the Corporation or the Consultant may designate in
writing.
10. AMENDMENTS: This Agreement may be amended or modified only by a writing.
6
7
11. GOVERNING LAW: This Agreement shall be governed and construed under the laws
of the State of Florida.
12. ENTIRE AGREEMENT: Effective April 1, 1997, this Agreement constitutes the
entire Agreement between the Consultant and the Corporation, with respect to its
subject matter, and all prior and other agreements between them, oral or written
concerning the same subject matter are merged into this Agreement and thus
extinguished.
13. SURVIVAL OF COVENANTS: Any of the provisions which would by their terms
continue after the termination of this Agreement shall be deemed to survive such
termination.
14. ASSIGNABILITY AND BINDING EFFECT: This Agreement shall be binding upon and
inure to the benefit of the Corporation and its successors and assigns. This
Agreement may not be assigned by either party without the written consent of the
other party hereto, provided, however, that the Corporation at its option, may
assign this Agreement in connection with any sale or transfer of its stock,
assets or business or that of its affiliates or subsidiaries.
IN WITNESS WHEREOF, the parties have hereunto
7
8
set their hands and seals as of the date first written above.
XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx, Chief
Executive Officer
Consultant:
COSMIX, INC
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Xxxxxxxxx Xxxxxxx, President
and Xxxxxxxxx Xxxxxxx
Individually
8
