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EXHIBIT 10.14
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CONSULTING AGREEMENT
CONSULTING AGREEMENT effective as of October 1, 1995 between A & A
SPECIALTIES CORP., a Delaware corporation (THE "COMPANY"), and DAT CONSULTING,
LLC, a New York limited liability company ("CONSULTANT").
W I T N E S S E T H :
WHEREAS, the efficient conduct of the Company's business operations
and the enhancement of its growth potential require that it have available to
it the services of a suitable chief operating officer and the support of an
organization which can offer the Company, on a consulting basis, a broad range
of administrative, strategic planning, business development, financial analysis
and structuring, licensing, leasing and acquisition-related management
consulting services; and
WHEREAS, Consultant has heretofore entered into a Consulting Agreement
with the Company's affiliate, G.T. Styling, Inc. ("GTS"), pursuant to which
Consultant is to provide to GTS not only the services of Xxxxxxx X. Xxxx (or of
another suitable person) as the chief operating officer of GTS, but also,
through the Company's resources, a broad range of administrative, strategic
planning, business development, financial analysis and structuring, licensing,
leasing and acquisition-related management consulting services; and
WHEREAS, in view of the foregoing, the Company desires to retain
Consultant, and Consultant is willing to be retained by the Company, to provide
the Company with the services described above, on a consulting basis, during
the term of this Agreement, upon the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements set forth below and intending to be legally bound, the parties
hereto agree as
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follows:
1. RETENTION OF CONSULTANT; TERM. The Company hereby agrees to retain
the Consultant, and the Consultant hereby agrees to serve, as an independent
management consultant to the Company, in accordance with the terms and
provisions of this Agreement, during the Retention Period (as hereinafter
defined). The "Retention Period" shall mean the five-year period beginning on
the effective date of this Agreement and ending at the close of business on
September 30, 2000, unless terminated sooner as hereinafter provided; provided,
however, that, on each October 1 after the date hereof, the Retention Period
shall be automatically extended for one (1) additional year unless, at least
six (6) months prior to such October 1, either party hereto shall have notified
the other party hereto that the Retention Period shall not be further extended.
2. CONSULTING SERVICES OF CONSULTANT.
(a) The consulting services to be performed by Consultant as an
independent management consultant to the Company during the Retention Period
shall relate to administration, strategic planning, business development,
financial analysis and structuring, licensing, leasing and acquisitions and
shall, in addition to providing the Company with the managerial services of a
chief operating officer (who may be Xxxxxxx X. Xxxx or another suitable
person), include, but not be limited to, the following:
(i) monitoring of the Company's business operations and
product lines and providing general advice regarding the
administration of the Company and its business;
(ii) analysis of the operations of the Company with a view to
improving the efficiency of its operations and enhancing the
reputation of the Company and its products;
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(iii) development of additional business relationships for the
Company;
(iv) assisting the Company in its labor relations with its
employees (including the hiring of new management personnel) and in
developing appropriate benefit programs for such employees;
(v) analysis of the Company's plant and equipment requirements
and, where necessary, the evaluation and negotiation of new lease
transactions;
(vi) review and evaluation of the Company's capital
expenditure programs;
(vii) assessing the Company's insurance needs and assisting
the Company in negotiating favorable rates with insurance brokers and
in placing such insurance;
(viii) providing the Company with advice regarding its
internal accounting and controls systems and procedures;
(ix) assisting the Company in arranging the restructuring
and/or refinancing of its existing credit facilities and in seeking
other financing sources;
(x) reviewing the Company's accounts receivable and making
recommendations with respect to the extension of credit to customers;
(xi) promoting the reputation of the Company in the investment
community and evaluating opportunities for raising equity capital in
the public or private capital markets;
(xii) assisting the Company in strategic business planning and
in analysis of potential acquisition candidates for the Company;
(xiii) assisting the Company in negotiating and consummating
acquisition transactions which the Company decides to pursue;
(xiv) evaluation of proposed purchasers for assets or
operations of the Company which have been designated for disposition;
and
(xv) evaluation and negotiation of proposed licensing
arrangements.
(b) In performing its services hereunder, Consultant expects to be
utilizing the services of qualified personnel, such as Xxxxxxx X. Xxxx, Xxxxx
X. Xxxxxx and other members, managers, officers, employees, agents and
representatives of Consultant, as well as other persons (which
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may include, directly or indirectly, other consultants and subconsultants) who
may be retained by Consultant from time to time to perform such services. All
members, managers, officers, employees, agents and representatives of
Consultant, as well as any other persons (including direct or indirect
consultants and subconsultants) who may be retained by Consultant from time to
time in connection with Consultant's performance of its services to the Company
hereunder, shall be compensated for their services directly by Consultant and
not by the Company. All staffing decisions with respect to the services to be
provided by Consultant hereunder shall be solely within the discretion of
Consultant and, at any time and from time to time, Consultant may make any
changes in such staffing which it considers necessary or appropriate.
(c) Consultant and the Company acknowledge that the services to be
performed by Consultant pursuant to this Agreement shall be performed by
Consultant, including its members, managers, officers, employees, agents,
representatives and other retained persons (including direct or indirect
consultants and subconsultants) (all of which members, managers, officers,
employees, agents, representatives and other retained persons are hereinafter
collectively referred to as "Consultant's Personnel"), as an independent
contractor and that nothing herein contained shall be deemed to constitute an
employer-employee relationship between the Company, on the one hand, and
Consultant (and Consultant's Personnel), on the other hand.
(d) Although it is not possible to estimate the amount of time that
Consultant's Personnel will be devoting to the performance of Consultant's
services under this Agreement, Consultant agrees that it will cause
Consultant's Personnel (none of whom, with the exception of the person
designated to serve as the chief operating officer of the Company, will be
required or expected to be employed by Consultant on a full-time basis) to
devote such time, during normal business
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hours, to the business and affairs of the Company as shall be reasonably
necessary to enable Consultant to perform the services to be performed by
Consultant hereunder.
(e) The Company and Consultant acknowledge that the services to be
performed by Consultant hereunder will generally not require that Consultant
(or Consultant's Personnel), other than the person designated to serve as the
chief operating officer of the Company, perform such services or otherwise be
present at the Company's business premises in the State of California, though
periodic visits to the Company's California location by one or more of
Consultant's Personnel may be appropriate. Accordingly, it is contemplated that
Consultant's services will generally be performed at such locations as shall be
convenient for Consultant's Personnel and as Consultant from time to time
shall, in its sole discretion consider appropriate, provided, however, that,
when specifically requested by the Company, Consultant will make Consultant's
Personnel available to meet with representatives of the Company at reasonable
times upon reasonable notice.
(f) The Company and Consultant acknowledge that nothing contained in
this Agreement shall prohibit Consultant or Consultant's Personnel from (i)
being a consultant, director, officer, employee, investor, lender, shareholder,
joint venturer, partner, manager or member in, or serving in any other capacity
with, any other enterprise, association, corporation, joint venture,
partnership or company (hereinafter collectively referred to as the "Other
Business"), provided that the business of the Other Business does not directly
compete with the business of the Company, or (ii) serving in any capacity or
having any business relationship with, or being affiliated in any manner with,
the Company or any of its affiliates.
3. CONSULTING FEES. During the Retention Period, as full compensation
for the services
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to be rendered by Consultant pursuant to this Agreement, the Company agrees to
pay to Consultant, and Consultant agrees to accept, consulting fees at an
annual rate equal to the sum of (a) the total annual rate of payroll expense
(including the cost to Consultant of employee benefit plans and programs and
other employee perquisites) which the Company will incur with respect to
Consultant's Personnel (who may include Xxx X. Xxxxxx) who shall be providing
services to the Company on substantially a full-time basis and generally at the
Company's business premises in the State of California, and (b) the amount
which represents four percent (4%) of the Company's "net sales" for the
applicable year. The consulting fees referred to in clause (a) of the preceding
sentence are hereinafter referred to as the "Payroll Fees"; the consulting fees
referred to in clause (b) of the preceding sentence are hereinafter referred to
as the "Revenue Fees".
The Payroll Fees payable hereunder shall be payable in equal monthly
installments in advance on the 1st day of each month or, if such day is not a
business day, on the immediately-preceding business day. The Revenue Fees
payable hereunder shall be payable monthly in arrears, with each such monthly
payment to be made within ten (10) days after the end of the month with respect
to which the Revenue Fees are payable. At the request of Consultant, all
payments of the Payroll Fees and the Revenue Fees (collectively, the
"Consulting Fees") shall be made by wire transfer to such account or accounts
as shall be designated from time to time by Consultant.
For purposes of this Agreement, "net sales" shall be the total of the
invoice prices for all products and services sold by the Company, less all
returns, trade discounts and allowances. Returns, trade discounts and
allowances shall be charged against gross revenues in the month during which
they are accepted or allowed. Within ten (10) days after the end of each month
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during the Retention Period, the Company will provide Consultant with a sales
report for the preceding month which calculates the "net sales" of the Company
for such month. Consultant shall be permitted access at any time to the
Company's sales records for the purpose of verifying the accuracy of the sales
reports so provided to Consultant.
4. REIMBURSEMENT OF EXPENSES. In addition to the Consulting Fees
payable to Consultant as provided above in paragraph 3, Consultant shall be
reimbursed, upon submission to the Company of appropriate vouchers and
receipts, for out-of-pocket expenses (including, without limitation, travel
expenses) reasonably incurred by Consultant in furtherance of the Company's
business. Such reimbursement shall take place promptly after the required
submissions, and in no event less frequently than bi-weekly.
5. INTEREST ON LATE PAYMENTS. Payments of the Consulting Fees and of
any other amounts payable to Consultant under this Agreement which are not paid
when due shall bear interest at the rate which is 2% above the "prime" rate in
effect from time to time.
6. TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate its
retention of Consultant under this Agreement at any time during the Retention
Period for "Cause". For purposes of this Agreement, "Cause" shall mean repeated
breaches by Consultant of Consultant's obligations under this Agreement, which
breaches (a) were demonstrably willful and deliberate on Consultant's part, (b)
were committed in bad faith or without the reasonable belief that such breaches
were in the best interests of the Company and (c) have not been remedied in a
reasonable period of time after receipt of written notice from the Company
specifying such breaches and demanding that they be remedied within a
reasonable period of time.
7. TERMINATION BY CONSULTANT FOR GOOD REASON. Consultant may terminate
its retention
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by the Company under this Agreement for "Good Reason". For purposes of this
Agreement, "Good Reason" shall mean:
(a) the assignment to Consultant of any duties or
responsibilities inconsistent in any respect with the terms of
Consultant's retention hereunder or any other action by the Company
which results in a diminution of Consultant's involvement with the
business of the Company or its authorities, powers, functions or
duties under this Agreement or imposes upon Consultant any requirement
for the performance of its services hereunder which did not exist as
of the date hereof, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof
given to the Company by Consultant;
(b) any failure by the Company to pay when due any payment of
the Consulting Fees or other amounts payable to Consultant hereunder,
other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by Consultant;
(c) any purported termination by the Company of Consultant's
retention other than as expressly permitted by this Agreement;
(d) any failure by the Company to comply with and satisfy
subparagraph (c) of paragraph 15 below, provided that the successor to
which such paragraph applies has received at least ten (10) days'
prior written notice from the Company or the Consultant of the
requirements of such paragraph;
(e) the occurrence of a "Change in Control of the Company" (as
hereinafter defined); or
(f) (i) the filing by the Company of a petition in bankruptcy
or seeking reorganization or arrangement under any federal or state
bankruptcy, insolvency or reorganization law, (ii) the making by the
Company of a general assignment for the benefit of its creditors or of
any other composition or reorganization agreement with its creditors,
(iii) the appointment of a trustee or receiver of the Company or of
the whole or any substantial part of its property or (iv) on a
petition in bankruptcy or seeking reorganization or arrangement under
any federal or state bankruptcy, insolvency or reorganization law
filed against the Company, the adjudication of the Company as a
bankrupt, the failure of the Company to contest such filing, the
admission by the Company of the material allegations of such petition
or the failure of the Company to have such petition vacated, set aside
or stayed within sixty (60) days from the date of the filing thereof.
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Consultant may terminate its retention by the Company under this
Agreement for "Good Reason" at any time during the Retention Period, except
that any such termination pursuant to subparagraph (e) above of this paragraph
7 must take place within twelve (12) months after the occurrence of the "Change
in Control of the Company".
For purposes of this Agreement, any good faith determination of "Good
Reason" made by Consultant shall be conclusive and binding on the Company,
absent manifest error.
For purposes of this Agreement, a "Change in Control of the Company"
shall have occurred (i) if there has occurred a change in control of the
Company as the term "control" is defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Act"); (ii) when the persons
who are the current members of the Company's Board of Directors cease to
constitute at least a majority of such Board of Directors and their
replacements were not persons elected or appointed with the favorable vote or
consent of Consultant; (iii) if the shareholder(s) of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation; (iv) if the shareholder(s) of the Company
approve a plan of complete liquidation of the Company; (v) if the
shareholder(s) of the Company approve an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets; or (vi) if
the Company shall cease to be a member of the affiliated group (within the
meaning of Section 1504(a) of the Internal
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Revenue Code of 1986, as amended) of which The Xxxxx Corporation, a New York
corporation, is the parent corporation.
8. NOTICE OF TERMINATION. Any termination by the Company for Cause, or
by Consultant for Good Reason, shall be communicated by a Notice of Termination
to the other party hereto in accordance with paragraph 16 below. For purposes
of this Agreement, a "Notice of Termination" means a written notice which (a)
indicates the specific termination provision in this Agreement relied upon, (b)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Consultant's
retention under the provision so indicated and (c) if the Termination Date (as
hereinafter defined) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than fifteen (15)
days after the giving of such notice). The failure by Consultant or the Company
to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not constitute a waiver
of any right of Consultant or the Company hereunder or preclude Consultant or
the Company from asserting such fact or circumstance in enforcing Consultant's
or the Company's rights hereunder.
9. TERMINATION DATE. For purposes of this Agreement, the Termination
Date means, whether Consultant's retention is terminated by the Company for
Cause, by Consultant for Good Reason or otherwise by Consultant or the Company,
the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be.
10. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF CONSULTANT.
(a) Prior to a Change in Control of the Company, if Consultant
terminates its retention by the Company for Good Reason or if Consultant's
retention is terminated by the Company for
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any reason other than Cause, the Company shall pay to Consultant, in cash in a
lump sum on the Termination Date, (i) all unpaid Consulting Fees through the
Termination Date, (ii) all unreimbursed expenses payable to Consultant pursuant
to paragraph 4 above and (iii) all Consulting Fees which would be payable to
Consultant through the end of the Retention Period if Consultant were to
continue to perform its services hereunder through the end of the Retention
Period (assuming, for the purpose of this clause (iii), that the "net sales" of
the Company during the remainder of the Retention Period after the Termination
Date would increase at a growth rate of 6% per annum and provided that the
amount representing payment of such future Consulting Fees shall be discounted
to their present value, applying a discount rate equal to 1% below the "prime"
rate as in effect at the close of business on the business day immediately
preceding the Termination Date).
(b) After a Change in Control of the Company has occurred, if
Consultant terminates its retention by the Company for Good Reason or if
Consultant's retention is terminated by the Company for any reason other than
Cause, the Company shall pay to Consultant, in cash in a lump sum on the
Termination Date, (i) all unpaid Consulting Fees through the Termination Date,
(ii) all unreimbursed expenses payable to Consultant pursuant to paragraph 4
above and (iii) as Consultant, in its sole discretion may elect, either (A) all
Consulting Fees which would be payable to Consultant through the end of the
Retention Period if Consultant were to continue to perform its services
hereunder through the end of the Retention Period (assuming, for the purpose of
this clause (A), that the "net sales" of the Company during the remainder of
the Retention Period after the Termination Date would increase at a growth rate
of 6% per annum and provided that the amount representing payment of such
future Consulting Fees shall be
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discounted to their present value, applying a discount rate equal to 1% below
the "prime" rate as in effect at the close of business on the business day
immediately preceding the Termination Date), or (B) as liquidated damages
(which the parties hereto acknowledge to be fair and reasonable in view of the
impossibility of determining the actual damages which Consultant may suffer as
a result of such termination), the sum of $600,000.
(c) At any time during the Retention Period, if Consultant's retention
is terminated by the Company for Cause, the Company shall pay to Consultant, in
cash in a lump sum on the Termination Date, (i) all unpaid Consulting Fees
through the Termination Date and (ii) all unreimbursed expenses payable to
Consultant pursuant to paragraph 4 above.
(d) In the event that, in the case of a termination by the Company of
Consultant's retention for Cause, Consultant shall have notified the Company
(the "Notice of Dispute"), within ten (10) business days after having received
the Notice of Termination, that Consultant disputes whether the Company had
"Cause" for such termination, then, notwithstanding and in addition to the
payment required above by subparagraph (b) of this paragraph 10, the Company
shall continue without interruption the payment of the Consulting Fees payable
pursuant to paragraph 3 above, provided, however, that all such payments of the
Consulting Fees shall be made to an attorney designated by Consultant for such
purpose in the Notice of Dispute, with the aggregate amount of all such
payments (and all interest earned thereon) being held in escrow by such
attorney, pending (i) agreement by Consultant and the Company as to the issue
of "Cause" and the disposition of the escrowed funds or (ii) a final,
non-appealable order of a court of competent jurisdiction determining these
matters (with the prevailing party with respect to such order be entitled to
recover its attorneys' fees and disbursements, court costs and other
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costs and expenses relating to this dispute from the other party).
(e) Upon payment in full of the applicable payments required above by
subparagraphs (a), (b) or (c) of this paragraph 10 (and subject, however, to
subparagraph (d) of this paragraph 10), this Agreement shall terminate and be
of no further force or effect, except that the provisions of paragraph 14 below
shall survive such termination.
(f) Consultant shall not be required to mitigate the payment of any
payments received pursuant to subparagraphs (a), (b), (c) or (d) of this
paragraph 10 by seeking other consulting engagements and, to the extent that
Consultant shall, after the Termination Date, receive compensation from any
other consulting engagements, the payments received hereunder shall not be
adjusted.
11. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Consultant, any of Consultant's Personnel or others.
12. INDEMNIFICATION.
(a) The Company shall indemnify, defend and hold harmless Consultant
and Consultant's Personnel from and against any and all claims, demands,
actions, suits and other proceedings, judgments and awards, and all costs and
expenses thereof (including, without limitation, attorneys' fees and
disbursements, court costs and amounts paid in settlement of such matters),
asserted against Consultant and/or Consultant's Personnel by reason of the
business and operations of the Company or Consultant's duties hereunder,
excluding only such of the foregoing as are determined by a court of competent
jurisdiction (without any further right of
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appeal) to have resulted from the willful and wanton misconduct or fraud of
Consultant or Consultant's Personnel.
(b) Upon Consultant's discovery of any claim by a third party which,
if sustained, would be subject to indemnification pursuant to subparagraph (a)
of this paragraph 12, Consultant shall give prompt notice to the Company of
such claim, provided, however, that the failure of Consultant to so promptly
notify the Company of such claim shall not relieve the Company of any
indemnification obligation under this Agreement unless the Company shall have
been substantially prejudiced thereby. Unless Consultant shall, in its sole
discretion, agree in writing to assume and control the defense of any action
for which indemnification may be sought, the Company shall assume and control
such defense, in which event Consultant shall have the right to employ counsel
at Consultant's expense to represent it in addition to counsel employed by the
Company. If the Company shall fail or refuse to undertake the defense within
fifteen (15) days after receiving notice that a claim has been made, Consultant
shall have the right (but not the obligation) to assume the defense of such
claim in such manner as it deems appropriate until the Company shall, with the
consent of Consultant, assume control of such defense, and the Company shall
indemnify Consultant pursuant to subparagraph (a) of this paragraph 12 from and
against the costs and expenses of such defense. The party hereto handling the
defense of an action shall keep the other party hereto fully informed at all
times of the status of the claim. Neither the Company nor the Consultant, when
handling the defense of a claim for which indemnification may be sought by
Consultant, shall settle such claim without the consent of the other party
hereto (which consent shall not be unreasonably withheld or delayed) unless
such settlement shall (i) impose no additional liability or obligation upon the
party hereto (or its
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shareholders, directors and officers and, in the case of Consultant,
Consultant's Personnel) whose consent would otherwise be required and (ii)
where the Company is handling the defense and settlement of the claim, provide
Consultant and Consultant's Personnel with a general release with respect to
the subject claim.
(c) In any matter with respect to which Consultant may be entitled to
indemnification from the Company pursuant to subparagraph (a) of this paragraph
12, the Company shall, to the extent not prohibited by applicable law, advance
to Consultant and Consultant's Personnel, pending the final disposition of such
matter, all costs and expenses which Consultant and/or Consultant's Personnel
may incur in such matter, including, without limitation, all attorneys' fees
and disbursements, court costs and the fees and disbursements of accountants,
other experts and consultants.
(d) The rights of indemnification provided by this paragraph 12 shall
be in addition to, and not be deemed exclusive of, any other rights and
remedies apart from this Agreement which may be available to Consultant and
Consultant's Personnel, whether by contract, at law, in equity or otherwise.
13. NO JOINT VENTURE, ETC.
(a) Nothing in this Agreement shall be construed as (i) creating a
partnership, joint venture or agency relationship between the Company and
Consultant or (ii) requiring Consultant or Consultant's Personnel to bear or
otherwise be liable for any portion of any losses directly or indirectly
incurred by the Company and arising out of or otherwise connected with the
services performed or to be performed by Consultant pursuant to this Agreement.
(b) Neither Consultant nor Consultant's Personnel shall be liable,
responsible or in any
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way accountable in damages or otherwise to the Company or any other entity or
person for any loss or damage incurred by the Company by reason of any act or
omission to act by Consultant or Consultant's Personnel, except the willful and
wanton misconduct or fraud of Consultant or or Consultant's Personnel in
connection with the performance of Consultant's services hereunder.
(c) Consultant does not represent, warrant, guarantee or ensure any
particular business results from the services which may be performed for, or
the projections, plans, reports or studies which may be prepared for, the
Company pursuant to this Agreement.
(d) In the event that Consultant refers or introduces to the Company,
or arranges for the Company to utilize the services of, third parties such as
attorneys, accountants, investment bankers, brokers, finders, sales or
marketing representatives, contractors or other consultants (who will not be
retained without the consent of the Company, which will not be unreasonably
withheld or delayed), such third parties will be direct contractors for the
Company and not Consultant and their fees, commissions, disbursements and other
charges will be the sole responsibility of the Company.
14. CONFIDENTIAL INFORMATION; RELIANCE ON COMPANY INFORMATION.
(a) Consultant shall hold, and shall use its best efforts to cause
Consultant's Personnel to hold, in strict confidence for the benefit of the
Company, all secret or confidential information, knowledge or data relating to
the Company and its business, which shall have been obtained by Consultant or
Consultant's Personnel during Consultant's retention by the Company and which
shall not be or have become (i) generally available to the public other than as
a result of a disclosure by Consultant, (ii) already known by Consultant on a
non-confidential basis prior
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to having been furnished by the Company to Consultant or (iii) available to
Consultant on a non-confidential basis from a source other than the Company if
such source was not known to be subject to any prohibition against the
transmittal of such information. Consultant will not, without the prior
written consent of the Company or as may otherwise be required by law or legal
process, communicate or divulge any such confidential information, knowledge or
data to anyone other than the Company and those designated by it.
In the event of a breach or threatened breach by Consultant of the
immediately-preceding paragraph of this subparagraph (a) of this paragraph 14,
the Company shall be entitled, upon establishing the existence of such breach
or threatened breach, to an injunction to be issued by any tribunal of
competent jurisdiction to restrain Consultant from committing or continuing any
such violation. In any proceeding for a temporary or permanent injunction,
Consultant agrees that its ability to answer in damages shall not be a bar or
be interposed as a defense to the granting of such a temporary or permanent
injunction against it. Consultant acknowledges that the Company will not have
an adequate remedy at law in the event of any breach by Consultant as aforesaid
and that the Company may suffer irreparable damage and injury in the event of
such a breach by Consultant. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedy or remedies available to
the Company, including, without limitation, the recovery of damages from
Consultant for any such breach.
(b) The Company acknowledges that, in connection with Consultant's
performance of its services hereunder, Consultant and Consultant's Personnel
must at all times rely, as to accuracy and completeness, upon information
furnished to them by the Company's officers, employees and agents. Accordingly,
Consultant and Consultant's Personnel shall have no liability for any
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acts or omissions taken, or reports and documentation produced, in reliance
upon information furnished to them by the Company's officers, employees and
agents, and the Company shall, as provided above in paragraph 12, indemnify,
defend and hold harmless Consultant and Consultant's Personnel from and against
any and all claims, demands, actions, suits and other proceedings, judgments
and awards, and all costs and expenses thereof (including, without limitation,
attorneys' fees and disbursements, court costs and amounts paid in settlement
of such matters), asserted against Consultant and/or Consultant's Personnel,
which are attributable to such reliance by Consultant and Consultant's
Personnel upon information furnished by the Company's officers, employees and
agents.
15. SUCCESSORS.
(a) This Agreement is personal to Consultant and, without the prior
written consent of the Company, this Agreement shall not be assignable by
Consultant. This Agreement shall inure to the benefit of, be binding upon and
be enforceable by Consultant.
(b) This Agreement shall not be assignable by the Company except to a
successor of the Company which has complied with the requirements below of
subparagraph (c) of this paragraph 15. This Agreement shall inure to the
benefit of, be binding upon and be enforceable by the Company and its
successors and assigns who have complied with the requirements below of
subparagraph (c) of this paragraph 15.
(c) The Company will require any successor (whether direct or
indirect, by purchase of assets or capital stock, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if
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no such succession had taken place. As used in this Agreement, the "Company"
shall mean the Company as hereinabove defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by operation of law or otherwise.
16. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without reference to principles of
conflict of laws.
(b) Each party hereto, for itself and its successors and assigns,
hereby consents to personal jurisdiction over it in the courts of the State of
New York, in and for New York County, and in any federal court located in the
State of New York, in and for the Southern District of New York, in connection
with any action, suit or proceeding arising out of or relating in any way to
this Agreement. Each party hereto, for itself and its successors and assigns,
agrees that personal service of process upon it may be made in any manner
permitted by the laws of the State of New York and hereby agrees that service
will be deemed sufficient over it if service is made by registered or certified
mail to the addresses specified below in subparagraph (b) of paragraph 17. The
Company, for itself and its successors and assigns, agrees that no action, suit
or proceeding of any kind may be brought, and no claim may be asserted (whether
by counterclaim, cross-claim or otherwise) by it or them against Consultant or
Consultant's Personnel with respect to any matter arising from, relating to or
in connection with this Agreement except in the courts of the State of New
York, in and for New York County, and the federal courts located in the State
of New York, in and for the Southern District of New York.
17. MISCELLANEOUS.
(a) The captions of this Agreement are not part of the provisions
hereof and shall have
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no force or effect. This Agreement may not be amended, modified, repealed,
waived, extended or discharged except by an agreement in writing signed by the
party against whom enforcement of such amendment, modification, repeal, waiver,
extension or discharge is sought. No person, other than pursuant to a
resolution of the Board of Directors or a committee thereof, shall have
authority on behalf of the Company to agree to amend, modify, repeal, waive,
extend or discharge any provision of this Agreement or anything in reference
thereto.
(b) All notices, requests, demands and other communications which are
required or permitted to be given under this Agreement shall be in writing and
shall be deemed received (i) on the date delivered if personally delivered or
sent by telecopier (with receipt confirmed), (ii) on the first business day
after sent by an overnight air express delivery service guaranteeing next-day
delivery or (iii) on the third business day after being deposited in the United
States mail, if mailed by certified or registered mail, return receipt
requested, with first class postage affixed thereon, and properly addressed as
follows:
(a) if to Consultant, to:
DAT Consulting, LLC
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
FAX: 516/000-0000)
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
(FAX: 212/000-0000)
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(b) if to the Company, to:
A & A Specialties Corp.
000 X. Xxxxx Xx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
(FAX: 714/000-0000)
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
00 Xxxxx Xxxx
Xxx Xxxx, XX 00000
(FAX: 212/000-0000)
or to such other person or address as any party hereto shall have specified by
notice in writing to the other party hereto.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) Consultant's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right which Consultant or the Ccmpany may have hereunder, including, without
limitation, the right of Consultant to terminate employment for Good Reason
pursuant to paragraph 7 above, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(e) This instrument contains the entire agreement of the parties
hereto with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements are merged
herein and superseded hereby.
(f) This Agreement is for the sole benefit of the Company and
Consultant (and, in connection with the indemnification provisions of
paragraphs 12 and 14, Consultant's Personnel), and nothing contained herein,
express or implied, is intended to, or shall, confer on any other
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person or entity any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
(g) Each of the parties hereto represents and warrants to the other
party hereto that this Agreement has been duly authorized by all necessary
corporate or company action, has been duly executed and delivered and
constitutes the legal, valid and binding obligation of such party enforceable
in accordance with its terms.
IN WITNESS WHEREOF, the Company and Consultant have caused this
Agreement to be executed as of the day and year first above written.
A & A SPECIALTIES CORP.
BY: /s/ XXXXXXX X. XXXX
-----------------------------------------------
XXXXXXX X. XXXX, PRESIDENT
DAT CONSULTING, LLC
BY: WAVEROCK CONSULTING, INC.
BY: /s/ XXXXX X. XXXXXX
-----------------------------------------------
XXXXX X. XXXXXX, PRESIDENT
BY: XXXXXXXX, INC.
BY: /s/ XXXX XXXXXXXXX
-----------------------------------------------
XXXX XXXXXXXXX, PRESIDENT
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