EXHIBIT 10.04
CONSULTING & NON-COMPETE AGREEMENT
This agreement ("Agreement"), made and entered into this 20 day of May,
1996, by and between Xxxxxx Xxxx Co., Ltd., an Ohio corporation whose offices
are at 0000 Xxxxxxx Xxx. X.X., Xxxxx Xxxxxx, Xxxx 00000 (the "Company") and Xxxx
Xxxxxx, whose office is 000 Xxxxxx Xx., 000X, Xxxxxxx, X.X. 00000, (the
"Consultant").
WHEREAS, on May 20, 1996 the Company entered into an Asset Purchase
Agreement For the purchase of all assets of The Natural Baby Co., Inc., ("Asset
Purchase Agreement") and
WHEREAS, the Consultant is the President and majority shareholder of The
Natural Baby Co., Inc., and
WHEREAS, the Consultant has expert knowledge in, and has been essential
to, the merchandise selection, copywriting, and production of the Natural Baby
Catalogs ("Catalog"), and
WHEREAS, Consultant has agreed to serve as a full time Consultant and
contractor to the Company on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants made herein, the parties hereto agree as follows:
1. RETENTION AND DUTIES. The Company agrees to and does hereby retain
the Consultant, and the Consultant agrees to and does hereby accept a full time
engagement with the Company for a period of two (2) years commencing from the
date of closing of the Asset Purchase Agreement hereof ("Consulting Period");
subject, however, to earlier termination pursuant to Section 5. During the
Consulting Period, Consultant shall perform such duties as are from time to time
delegated to her Xxxxxx or Xxxx Xxxxxx and limited to the following:
(a) To assist in the development of the annual Catalog Plan
consisting of the analysis of sales patterns, product sales
performance, product profitability, and identification of overall
trends necessary for the merchandising and design of the Catalog.
(b) Plan and select merchandise to be featured in the Catalog;
negotiation of prices, terms, and deliveries with selected
vendors; completion of vendor information sheets required by the
Company to conduct ongoing purchasing activity.
(c) Implement the Catalog Plan by planning, scheduling, obtaining
quotations, and generally supervising activities related to the
creation and production of each Catalog printing.
(d) Supervise the Catalog graphic design and layout; select models
and supervise the photography of products.
(e) Scheduling the printing and production of the Catalog to
completion or assist the Company in such activity should print
production functions be consolidated with other Company activity.
Such duties may also include, among other things, travel from time to time.
During the Consulting Period, Consultant, shall devote her full time and effort
for the benefit of the Company.
2. COMPENSATION.
(a) PAYMENT. During the Consulting Period, the Consultant shall be
compensated at a rate of Sixty Five Thousand Dollars ($65,000)
per year, payable in equal monthly payments of $5,416.67, for
services rendered herein.
(b) BENEFITS. The Consultants agrees to act as an independent
contractor under the terms and conditions of this agreement but
shall be entitled to participate in employee benefit programs
such as group health, accident or life insurance plans, group
medical and hospitalization plans and other similar benefits, as
may be available to consultants and the executive employees of
the Company.
(c) EXPENSES. Company shall pay or reimburse Consultant for
reasonable and necessary expenses incurred by it in connection
with its duties herein, upon submission by the Consultant to the
Company of such written evidence of expense as the Company may
require. Expenses in excess of $250 shall require prior written
approval of the Company.
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3. NON-COMPETITION. Consultant agrees to be bound by the Non-Competition
Agreement Exhibit 1, made a part of this agreement by attachment.
4. INCAPACITY. In the event that Consultant shall become incapacitated
for 60 consecutive days through accident, sickness or otherwise and thereby be
prevented from performing the duties hereunder, Consultant shall not be entitled
to the compensation provided for hereunder for the period in which the
Consultant is incapacitated.
5. TERMINATION. Except as hereinafter provided, this Agreement may be
terminated by the Company only for cause, or by the Consultant, with or without
cause, upon giving one hundred and twenty (120) days written notice to the other
party. In addition, this Agreement shall be terminated immediately upon the
occurrence of any of the following events:
(a) If the Consultant shall completely neglect her duties or devote
all of her time or attention to other interests, for a continuous
period of more than thirty (30) days, after 30 days notice to
remedy.
Further, this Agreement may be terminated by the sole discretion of the Company,
with 30 days notice, upon the occurrence of any of the following events:
(b) If the Consultant shall be in material breach of or default under
any provision of this Agreement; or
(c) If the Seller shall be in material breach of or default under any
provision of the Asset Purchase Agreement; or
(d) If the Board of Directors of the Company determine to sell or
otherwise dispose of substantially all of the assets of the
Company, or distribute the assets of the Company to the
stockholders in liquidation, however, employee shall then receive
her remaining contract compensation; or
(e) In the event the Consultant shall be convincted of a crime or
moral turpitude in the rendering of service on behalf of the
Company.
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If this Agreement is terminated pursuant to Section 5 hereof, Consultant shall
be paid her compensation to the date of such termination.
6. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail to
the residence of Consultant; to Xxxxxx Xxxx Co., Ltd. at their corporate office.
7. ENTIRE AGREEMENT; WAIVER. This Agreement contains the entire
understanding of the parties and may not be changed orally but only by an
agreement in writing; signed by both parties. Waiver of or failure to exercise
any rights provided by this Agreement in any respect shall not be deemed a
waiver of any further or future rights.
8. APPLICABLE LAW. This Agreement shall be governed by and interpreted
under the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
by a duly authorized officer of the Company and Consultant has hereunder set her
hand the day and year first above written.
XXXXXX XXXX CO., LTD.
By:
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Xxxxxxx X. Xxxxxx, President
and
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Xxxx Xxxxxx
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