Consulting Agreement, dated as of January 1, 1996 (this "Agreement"),
by and among KSW, Inc., a Delaware corporation whose address is 00-00 00xx
Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 (the "Company") and Xxxxxx X. Xxxxx
(the "Consultant"), whose address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 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
subsidiaries, nonexclusive independent advisory and consulting services to the
best of his ability to compliance with all applicable laws, 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 January 1, 1996
through December 31, 1998 (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 notice from the Company 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. 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 Chief
Executive Officer of KSWI ("Warkol"). Should Warkol no longer be employed with
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.
3. DUTIES
If requested by the Company, the Consultant will consult with Warkol or
his designee concerning matters of the Company relating to 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 thirty (30) working hours in any
month. In addition to making himself available for thirty (30) working hours,
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
During the Consulting Period of the Company will pay the Consultant a
monthly consulting fee of $6,250.00 per month in United States currency, payable
monthly in advance on the 1st day of each month, commencing January 1, 1996. The
Consultant will also be paid for reasonable out-of-pocket expenses as provided
in Section 6.
5. OPTIONS FOR COMMON STOCK
(a) In consideration of the Consultant entering into this Agreement,
the Company shall issue to the Consultant 15,000 options to purchase shares of
the Company's common stock at $1.50 per share, upon the same terms and
conditions as options are granted to the Company's Executive Officers. The
options shall be exercisable as follows: one third on 12/15/96, one third on
12/15/97 and one third on 12/15/98. The Consultant will forfeit the options to
the Company for no consideration in the event the Consulting arrangement
provided for by this Agreement is terminated by either the Consultant or the
Company pursuant to Section 2 prior to December 31, 1998. Notwithstanding the
foregoing, should the consulting arrangement hereunder be terminated as a result
of the Consultant's death or disability, the options shall not be forfeited to
the Company, and in the case of the Consultant's death, the options shall be the
property of the Consultant's estate, so long as they are exercised within six
months after the Consultant's death.
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.
9. SUCCESSORS AND ASSIGNS: BINDING AGREEMENT
This Agreement shall be binding and shall insure 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.
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 or competent jurisdiction, such unenforceable, invalid
or illegal provisions shall not effect 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 incurred 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 regards 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 of any other provision hereof.
15. CONSENT TO JURISDICTION
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. The parties hereby 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 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.
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 has caused this Agreement to be signed
by its duly authorized officers, and the Consultant has signed this Agreement,
all as of the date first above written.
KSW, INC.
By:/S/ XXXXX XXXXXX
/S/ XXXXXX XXXXX
Xxxxxx X. Xxxxx
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 X. Xxxxx, 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
hereby is amended in its entirety as follows:
(a) During the Consulting Period, the
Company will pay to the Consultant a monthly
consulting fee of $6,250.00 per month in United
States currency, payable monthly in advance on the 1st day of
each month, commencing January 1, 1996. The Consultant will also
be paid for reasonable out-of-pocket expenses as provided in
Section 6.
(b) 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 X. Xxxxx
Xxxxxx X. Xxxxx
