Consulting Agreement, dated as of June 1, 1994 (this "Agreement"), by
and among AIM TECHNOLOGY, INC., a Delaware corporation whose address is 0000
Xxxxx 00, Xxxxx Xxxxxxx, Xxx Xxxxxx 00000 (the "Company"), KSW, Inc., a Delaware
corporation whose address is 00-00 00xx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
("KSW"), and XXXXXX X. XXXXXX (the "Consultant"), whose address is 00 Xxxxxx
Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
1. CONSULTATION SERVICES
The Company hereby engages the Consultant and the Consultant hereby
agrees to make himself available during the Consulting Period (as hereinafter
defined) to render, at the request of the Company, to the Company and its
present subsidiaries, including KSW, nonexclusive independent advisory and
consulting services to the best of his ability, and subject to the terms and
conditions set forth herein.
2. TERM OF AGREEMENT
The period during which the Consultant shall be required to render
independent advisory and consulting services shall be from September 1, 1994
through August 31, 1997 (the "Consulting Period").
Notwithstanding the length of the Consulting Period, the consulting
arrangement provided for by this Agreement may be terminated for "Good Cause."
"Good Cause" shall mean and be limited to the following events: (1) the
Consultant's conviction in a court of law of any crime involving money or other
property of the Company and which constitutes a felony in the jurisdiction
involved; or (ii) a determination by a physician licensed in New York State that
the Consultant is a chronic alcoholic; or (iii) a determination by a physician
licensed in New York State that the Consultant is dependent upon controlled
substances, as that term is defined in the Mental Hygiene Law of the State of
New York, as amended, or any successor statute; or (iv) continuing, repeated,
willful failure or refusal by the Consultant to substantially perform his duties
in accordance with this Agreement (other than any such failure or refusal
resulting from the Consultant's incapacity due to physical or mental illness);
provided, however, that such failure or refusal shall not be deemed to
constitute Good Cause under this subdivision (iv) unless the Consultant shall
have first received written notice by certified mail or personal delivery from
Xxxxx Xxxxxx or Xxxxxx Xxxxx advising the Consultant of the specific acts or
omissions alleged to constitute a failure or refusal substantially to perform
his duties, and such failure or refusal continues after the Consultant shall
have had a reasonable opportunity to correct the acts or omissions so complained
of. Such termination may be affected by either AIM as set forth above or the
Consultant for any reason on fifteen (15) days prior notice to the other party,
in writing, by certified mail or personal delivery to the address set forth in
the preamble of this Agreement effective on the last day of any quarterly
period, commencing with the quarter ending November 30, 1994. Upon the
effectiveness of such termination the Company shall not be obligated to make any
further payments to the Consultant pursuant to Section 4 hereof and the
Consultant shall not be obligated to furnish any of the services to be provided
by the Consultant pursuant to this Agreement. The Company's right to terminate
the consulting arrangement provided for by this Agreement may only be exercised
by Xx. Xxxxx Xxxxxx, the President and Chief Executive Officer of KSW
("Warkol"). Should Warkol no longer be employed with KSW, the Company, or any
affiliate or subsidiary thereof, or successor thereto, during the Consulting
Period for any reason whatsoever, the responsibilities of Warkol shall be
assumed by Xx. Xxxxxx Xxxxx who is hereby irrevocably appointed by the parties
as the designee of Warkol for purposes hereof. Additionally, the Company or any
of its subsidiaries agrees not to instruct either Warkol or Xxxxx to terminate
the consulting arrangement or this Agreement, but may advise them of the
specific conduct and/or acts of the Consultant.
3. DUTIES
If requested by the Company, the Consultant will consult with Warkol
(who may be directed by the Company's Chairman) concerning matters of the
Company relating to the acquisitions, consolidations of operations and strategic
planning for the Company or any of its present subsidiaries.
The consultant agrees to render such services conscientiously and to
devote his reasonable efforts and abilities to such services. Additionally, the
Consultant's services shall be on a non-exclusive basis. The Consultant shall
not be required to render services in excess of five (5) working days in any
month. In addition to making himself available for five (5) working days, the
Consultant shall be available by telephone to render services hereunder for such
periods of time as may be mutually acceptable to the Consultant and the Company.
4. PAYMENT TO CONSULTANT
(a) During the Consulting Period, the Company will pay the Consultant a
quarterly consulting fee of $20,000 per quarter in United States currency,
payable quarterly in advance on the 1st day of each quarter, commencing
September 1, 1994. The Consultant will also be paid for reasonable out-of-pocket
expenses as provided in Section 7.
(b) The Company shall also pay the Consultant during the Consulting
Period, in United States currency, the sum of $3,750 in lieu of medical
coverage, on a quarterly basis, payable quarterly in advance on the first day of
each quarter, commencing September 1994.
(c) The consultant acknowledges receipt of the sum of $23,750
representing payments due under 4(a) and 4(b) for the quarter commencing
September 1, 1994. KSW shall pay $50,000 in cash for prior services upon signing
this Agreement.
5. GUARANTY, ETC.
KSW hereby unconditionally guarantees the payment to the consultant by
the Company of its obligations under Section 4 and 6 of this Consulting
Agreement. Such guaranty shall be a guaranty of payment and not of collection.
Should the Consultant not be paid any amounts owing to him hereunder, as when
such payments would be due and payable hereunder, immediately after written
demand therefore, KSW shall make such payments to the Consultant regardless of
any defenses that the Company may have to the making of such payments and
without requiring the Consultant to pursue any remedies against the Company.
Upon the making of any such payment, KSW shall be subrogated to the rights of
the Consultant against the Company.
6. EXPENSES
The Consultant shall be reimbursed for all reasonable and necessary
business out-of-pocket expenses incurred by the Consultant during the term of
the Agreement on behalf of the Company in the performance of services hereunder,
including, but not limited to, ordinary living expenses if travel is requested
by the Company.
7. INDEPENDENT CONTRACTOR
It is agreed that the Consultant will act as an independent contractor
in the performance of his duties under this Agreement. Accordingly, the
Consultant shall be responsible for payment of all taxes including federal,
state and local taxes arising out of the Consultant's activities in accordance
with this Agreement, including, but not limited to, federal and state income
tax, social security tax, unemployment insurance tax, and any other taxes or
required business license fees, as required.
8. CONFIDENTIAL INFORMATION
The Consultant agrees that any information received by the Consultant
during the furtherance of the Consultant's obligations under this Agreement,
which concerns the personal, financial or other affairs of the Company and its
present subsidiaries, will be treated by the Consultant in full confidence and
will not be revealed to any other persons, firms or organizations except: (a)
pursuant to subpoena or other legal proceeding, or (b) if such information is
generally available to the public.
9. SUCCESSORS AND ASSIGNS; BINDING AGREEMENT
This Agreement shall be binding and shall inure to the benefit of the
parties hereto and the heirs, personal representatives and estate of the
Consultant, and the successors and permitted assigns of the parties; PROVIDED
HOWEVER, that the duties of the Consultant hereunder are personal to the
Consultant and may not be delegated or assigned by him; AND PROVIDED FURTHER
that the Company may assign its rights and obligations hereunder to any entity
which agrees to comply with the provisions hereof, which is the assignee or
successor by merger, stock sale or asset sale to the business of the Company not
withstanding anything herein contained to the contrary. Such assignment by the
Company shall not relieve it from its obligations, representations and
responsibilities under this Agreement nor release KSW under Section 5.
10. FURTHER ASSURANCES
The parties hereto agree to perform any further acts and to execute and
deliver any documents which may be necessary or appropriate to carry out the
purposes of this Agreement.
11. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, invalid
or illegal by any court of competent jurisdicition, such unenforceable, invalid
or illegal provisions shall not offset the remainder of this Agreement.
12. ATTORNEY'S FEES
If any legal action or any arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach
or default in connection with any of the provisions of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and disbursements incured in this action or proceeding in
addition to any other relief to which it may be entitled.
13. LAWS
The validity of this Agreement and the interpretation of all of its
terms shall be governed by the laws of the State of New York without regard to
its principles of conflicts of laws.
14. WAIVER
The failure of either party hereto to insist upon strict compliance of
any of the terms, covenants and conditions hereof, shall not be deemed a waiver
or relinquishment of any similar right or power hereunder at any subsequent time
or any other provision hereof.
15. CONSENT TO JURISDICTION
The parties hereto irrevocably and unconditionally consent to the
exclusive jurisdiction of the Courts of the State of New York or the United
States of America sitting in New York County and the State of New York over any
suit, action or proceeding arising out of or relating to this agreement or any
agreement executed in connection herewith. Each of the parties agree that the
prevailing party of any such action, suit, or proceeding shall be indemnified
for such party's legal costs and expenses incurred in connection therewith. Each
of the parties hereto irrevocably waives the right to a trial by jury in any
such action, suit or proceeding. Each such party hereby irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
or based upon the grounds of FORUM NON CONVENIENS which such party may now or
hereafter have to the bringing of any such action, suit or proceeding in any
such court and irrevocably agrees that process in any such action, suit or
proceeding may be served upon that party personally or by certified or
registered mail; return receipt requested.
16. ENTIRE AGREEMENT, ETC.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings (whether written or oral) with respect to such
subject matter. This Agreement may not be amended, modified, changed, waived or
altered, except by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company, and KSW have caused this Agreement to
be signed by their duly authorized officers, and the Consultant has signed this
Agreement, all as of the date first above written.
KSW, Inc.
By: /S/ XXXXX XXXXXX
XXXXX XXXXXX
By:/S/ XXXXXX X. XXXXXX
XXXXXX X. XXXXXX
AIM Technology, Inc.
By:/S/ XXX XXXXXX
XXX XXXXXX
ASSIGNMENT AND ASSUMPTION
HELIONETICS, INC., a California corporation having an office at 0000
Xxxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("Helionetics" or the
"Assignor"), for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, does hereby assign and transfer to KSW, INC., a
Delaware corporation, its successors and assigns ("KSWI" or the
"Assignee") all of its right, title, interest and obligation arising out of and
pursuant to that certain Consulting Agreement (the "Consulting Agreement"),
dated as of June 1, 1994, by and among Helionetics, KSWI and Xxxxxx Xxxxxx (the
"Consultant").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, KSW, INC. hereby assumes all
right, title, interest and obligation of Helionetics arising out of and pursuant
to the Consulting Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption as of the 7th day of December, 1995.
HELIONETICS, INC.
By: /S/ XXXXXXX X. XXXX
Xxxxxxx X. Xxxx
Chairman of the Board of
Directors
KSW, INC.
By: /S/ XXXXX XXXXXX
Xxxxx Xxxxxx
President
AMENDMENT TO CONSULTING AGREEMENT
This Amendment (the "Amendment"), dated February 13, 1997, is by and
between KSW, Inc. ("the Company"), with offices at 00-00 00xx Xxxxxx, Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000, and Xxxxxx Xxxxxx, a consultant to the Company (the
"Consultant").
WHEREAS, the Company and Consultant are parties to a Consulting
Agreement dated as of June 1, 1994 (the "Consulting Agreement");
WHEREAS, the Consulting Agreement provides that the Consultant shall be
compensated for his services to the Company by payment in United States
currency;
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for the Consultant to
hold an equity position in the Company.
NOW, THEREFORE, it is agreed that Article 4 of the Consulting Agreement
is hereby amended by the addition of a new paragraph (d), as
follows:
(d) The Company, with the consent of the Consultant,
may make payment to the Consultant under Section 4(a) of this
Agreement in shares of Common Stock of the Company (the
"Shares"), valued at the fair market value thereof as reasonably
determined by the Company; provided, however, that such Shares
shall not be issued to the Consultant until the services with
respect to which such Shares are to be issued have been performed
by the Consultant. The Company shall exercise its best efforts to
cause the offering of such shares to be registered under the
Securities Act of 1933, as amended, under a Registration
Statement on Form S-8 or on such other form as shall be
appropriate.
IN WITNESS WHEREOF, the Company has caused this Amendment to be signed
by its duly authorized officer, and the Consultant has signed this Amendment,
all as of the date first above written.
KSW, INC.
By:/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx
Chief Executive Officer
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
