1
EXHIBIT 10.2
CONFIDENTIAL
CONSULTING AGREEMENT
AGREEMENT dated as of July 1, 1997 by and between Trident International,
Inc. a Delaware corporation (the "Company"), and R. Xxxx Xxx Xxxxxx of 000
Xxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 ("Consultant").
WHEREAS, Consultant has been the President and Chief Executive Officer of
Trident, a predecessor company, and
WHEREAS, the Company desires to assure itself of the continued services of
Consultant;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company and Consultant agree as follows:
1. Employment and Term. The Company agrees to employ Consultant and
Consultant hereby agrees to work for the Company and any other subsidiary of the
Company as directed by the Company in the capacity of a consultant for a period
commencing on the date of 1 July, 1997 and ending on 30 June, 1998, subject to
renewal and termination as set forth in Section 5 hereof. The Company shall
engage Consultant as a consultant to the Company for a minimum of ten days per
quarter and a maximum of 20 days per quarter at a rate of $1,000 per day.
Employment in excess of 20 days per quarter is permitted by consent of both
parties at the same per diem rate. Such consulting arrangements shall terminate
no earlier than 30 June, 1998. During the period that Consultant is providing
consulting services to the Company, he shall be entitled to reimbursement for
his reasonable out-of-pocket expenses incurred in the performance of such
consulting services, including, without limitation, air travel in accordance
with Company travel policy between Williamsburg, Virginia and the principal
offices of the Company, transportation, lodging and meals, subject to the
Company's procedures regarding substantiation and documentation of such
expenses.
During Consultant's employment, the Company agrees that it will assign
Consultant duties consistent with his current duties as Consultant. The Company
will provide temporary office accommodation while Consultant is engaged in work
for the Company in Connecticut, and will provide accommodations and assistance
in Williamsburg required to perform consulting assignments.
2. Compensation. Consultant's compensation for the period commencing on 1
July, 1997 to the expiration of the Employment Term will be at the rate of one
thousand dollars
1
2
($1,000.00) per day. Said fee shall be payable in arrears in monthly
installments. In the event that any salary or other payments due Consultant
under this Agreement are not made within 30 days after the date such
compensation or other payments are due, such unpaid compensation or other
payments shall bear interest at the rate of 10% per annum from the date such
amount was due to be paid to Consultant until the date on which payment in full
is made.
3. Benefits. Consultant will be entitled to health and hospitalization
insurance benefits at least comparable to the benefits of a senior professional
employee of the Company in accordance with the terms and descriptions of such
plans and benefits as in effect from time to time. Consultant shall be
reimbursed for his reasonable out-of-pocket expenses incurred in the performance
of his duties hereunder, including, without limitation, air travel between
Williamsburg, Virginia and the principal offices of the Company or other
business venue transportation, lodging and meals, subject to the Company's and
Trident's procedures regarding substantiation and documentation of such
expenses.
4. Extent of Service. During Consultant's employment hereunder, Consultant
shall, subject to the discretion and supervision of the Chief Executive of the
Company, devote his business time, best efforts and business judgement, skill
and knowledge to the advancement of the Company's interests and to the discharge
of Consultant's duties and responsibilities hereunder. Consultant shall not
engage in any other business activity, except as may be approved by the Board of
Directors of the Company, provided, however, that nothing herein shall prevent
Consultant from:
(a) Investing Consultant's assets in a manner not prohibited by that
certain Non-Competition Agreement between Consultant and the Company (the
"Non-Competition Agreement"), and in such form or manner as shall not require
Consultant to render any material services with respect to the operations or
affairs of any company or other entity in which such investments are made;
(b) Serving on the Board of Directors of any company or any
committee thereof, subject to the prohibition set forth in the Non-Competition
Agreement and provided that Consultant is not required to render any material
services with respect to the operations or affairs of any such company other
than attendance at meetings of the board of directors or committees thereof of
such company; or
(c) Engaging in religious, charitable or other community or
non-profit activities which do not impair Consultant's ability to fulfill his
duties and responsibilities under the Agreement.
2
3
5. Renewal; Termination
(a) General. Except as otherwise provided herein, this Agreement
shall terminate on 30 June, 1998 unless renewed by the mutual written consent of
the parties hereto. This Agreement and Consultant's employment hereunder may be
terminated at any time by the mutual consent of the parties hereto.
(b) Termination by the Company for Cause. Notwithstanding the
provisions of Section 1 hereof, Consultant's employment hereunder may be
terminated for cause without further liability (except for amounts payable
pursuant to Section 5(f)(i) hereof) on the part of the Company effective
immediately by a vote of a majority of the Board of Directors of the Company
after the Company has provided written notice to the Consultant setting forth in
reasonable detail the nature of such cause and given Consultant the opportunity
to be heard by the Board of Directors of the Company. Only the following shall
constitute "cause" for such termination:
(i) Conviction of Consultant of a crime involving moral
turpitude, deceit, dishonesty or fraud;
(ii) Material failure to perform a substantial portion of
Consultant's duties and responsibilities hereunder, which failure
continues after written notice given to Consultant by the Board of
Directors of the Company;
(iii) Gross negligence or willful misconduct of Consultant
with respect to the Company or any subsidiary or affiliate thereof;
and
(iv) Breach of Consultant's obligations under the
Non-Competition Agreement.
(c) Termination by Consultant. Consultant's employment hereunder may
be terminated by Consultant by written notice to the Board of Directors of the
Company at least six months prior to such termination.
(d) Termination by the Company Without Cause. Subject to the payment
of termination benefits pursuant to Section 5(f)(i), Consultant's employment
with the Company may be terminated by the Company without cause by a vote of a
majority of the Board of Directors of the Company on written notice to
Consultant.
(e) Other Termination Events.
(i) Consultant's employment under this Agreement will
terminate upon his death.
3
4
(ii) In the event of Consultant's permanent physical or mental
disability or incapacity, as evidenced by a certificate of a
physician licensed to practice in any state in the United States,
this Agreement may be terminated by the Company. Upon any
termination under this subsection (e)(ii), Consultant will be
subject to and entitled to benefits under the Company's disability
plan, if any, as then in effect.
(f) Rights of Termination.
(i) In the event of termination of Consultant's employment
with the Company pursuant to Section 5(d), (i) the Company shall
continue to pay Consultant a monthly minimum consulting fee and
provide other benefits to which he may be entitled for the remainder
of the term of this Agreement, said consulting fees to be made on
the same periodic dates as such payments would have been made to
Consultant had Consultant's employment not been terminated.
(ii) In the event of termination of Consultant's employment
with the Company pursuant to Section 5(e)(i), the Company shall pay
to Consultant's wife or estate, as the case may be, a lump sum equal
to Consultant's one minimum quarterly consulting fee at the rate in
effect immediately prior to Consultant's death.
(g) Set-off. Any amounts otherwise payable to Consultant under
Section 5(f) shall be subject to reduction in the amount of any cash
compensation received by Consultant from other employment or self-employment for
services performed during the period in which amounts are payable under such
Section, provided that the Company shall not be entitled to set-off any amounts
otherwise payable to Consultant under Section 5(f)(i) against cash
compensation received by Consultant for services approved in advance by the
Board of Directors of the Company, which approval shall not be unreasonable
withheld. Consultant shall inform the Company of any such amounts of cash
compensation and shall refund to the Company any amounts which the Company has
paid which exceed the amounts due from the Company after application of the
provisions of this paragraph.
(h) Litigation and Regulatory Cooperation. To the extent reasonably
requested by the Company, Consultant shall cooperate fully with the Company in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company which relate to
events or occurrences that transpired while Consultant was employed by the
Company. Consultant's full cooperation in connection with such claims or actions
shall include, but not be limited to, being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Company
at mutually convenient times. To the extent reasonably requested by the Company,
Consultant shall also cooperate fully with the Company in connection with any
examination or review of any federal, state or local regulatory authority with
respect to events or
4
5
occurrences that transpired while Consultant was employed by the company. The
Company shall compensate Consultant for such cooperation with the Company at
rate of $1,000 per day, payable monthly in arrears, and will reimburse
Consultant for any reasonable out-of-pocket expenses, including, without
limitation, air travel between Williamsburg, Virginia and the principal offices
of the Company or other required venues, transportation, lodging and meals,
incurred in connection therewith.
6. Remedies for Breach. In the event that Consultant brings a legal action
against the Company to enforce his rights under this Agreement and Consultant
prevails on the merits of such action, the Company shall reimburse Consultant
the cost of his legal fees in connection with such action.
7. Change of Control. Prior to the termination of Consultant's employment
hereunder, in the event that within 90 days following the completion of any
transaction or series of transactions in which all of the Company's outstanding
capital stock is sold to an unaffiliated third party or upon the sale of all or
substantially all of the assets of the Company to an unaffiliated third party or
upon the sale of greater than 50% of the Company's outstanding capital stock to
any person or persons acting as a group (a "Change of Control") there occurs a
change in Consultant's duties, responsibilities, status or position with the
Company which, in Consultant's reasonable judgement, does not represent a
promotion from or maintaining of Consultant's duties, responsibilities, status
or position as in effect immediately prior to the Change of Control, or any
removal of Consultant from or any failure to reappoint or re-elect Consultant to
such position, except in connection with the termination of Consultant's
employment for cause, disability, retirement or death, Consultant shall be
entitled to terminate this Agreement and the Company shall continue to pay
Consultant a consulting fee and provide other benefits to which he may be
entitled for the remainder of the term of this Agreement, said compensation to
be made on the same periodic dates as such payments would have been made to
Consultant had Consultant's employment not been terminated.
8. Waiver. The failure of the Company to require the performance of any
term or obligation provided for herein, or the waiver by the Company of any
breach of this Agreement, shall not prevent enforcement of such term or
obligation, or be deemed a waiver of any subsequent breach.
9. Binding Effect. This Agreement will be binding upon Consultant and his
heirs, executors, administrators and legal representatives and will be binding
upon and inure to the benefit of the Company and any other subsidiary of the
Company, and its and their respective successors and assigns.
10. Enforceability. If any portion or provision of this Agreement is to
any extent declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of
5
6
this Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, will
not be affected thereby, and each portion and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the Company and Consultant with respect to the subject matter hereof,
and supersedes all prior representations and agreements with respect to such
subject matter. This Agreement may not be amended, modified or waived except by
a written instrument duly executed by the person against whom enforcement of
such amendment, modification or waiver is sought. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, in any particular case will
not prevent any subsequent enforcement of such term or obligation or to be
deemed a waiver of any separate or subsequent breach.
12. Notices. Any notices, requests, demands and other communications
provided for by this Agreement will be sufficient if in writing and delivered in
person or sent be registered or certified mail, postage prepaid, to Consultant
at the last address which Consultant has filed in writing with the Company or,
in the case of any notice to the Company, at their main offices, to the
attention of the Chief Executive Officer, with a copy to the Treasurer.
13. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Connecticut, without regard to the conflicts of laws
provision thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set for above.
TRIDENT INTERNATIONAL, INC.
By:_______________________________
Xxxxxx X. Xxxxxx
President and C.E.O.
CONSULTANT
By:_______________________________
R. Xxxx Xxx Xxxxxx
6
