Exhibit 10.54
CONSULTING AGREEMENT
AGREEMENT made as of this 1st day of May, 1995 by and between Harjac
Consulting Corp., a New York corporation, having a business address of 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter sometimes referred to as the
"Consultant"), and Concord Camera Corp., a New Jersey corporation, having a
business address of 00 Xxxxxx Xxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter
sometimes referred to as "Concord").
W I T N E S S E T H
WHEREAS, the Consultant desires to perform certain services for Concord
pursuant to the terms and conditions of this Agreement; and
WHEREAS, Concord desires to accept the services of the Consultant pursuant
to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PARTIES -- The parties to this Agreement are Harjac Consulting Corp., a
New York corporation, having a business address of 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter sometimes referred to as the "Consultant"),
and Concord Camera Corp., a New Jersey corporation, having a business address of
00 Xxxxxx Xxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter sometimes referred to as
"Concord").
2. NATURE OF AGREEMENT -- This Agreement shall be a consulting agreement by
which the Consultant is to work with, advise, assist and consult with Concord in
the preparation and/or completion of the following projects and such other
matters as may from time to time be requested by Concord. To fulfill its
function, the Consultant has designated the availability of Xxxxx Xxxxxx
("Xxxxxx"). Xxxxxx shall in addition to his other rights, duties and
responsibilities be invited as an observer to Board of Directors meetings except
as prohibited as a matter of law or if Concord is advised by its counsel that
Jackel should not be in attendance at such meetings.
Projects
(a) Develop Business, Financial, Marketing and Strategic Plan(s) for
Fiscal Year ending June 30, 1996 and years thereafter;
(b) Develop Corporate and Branch Structure and Table of Organization;
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(c) Submit, interview and recommend Senior Management Candidates to CEO;
(d) Coordinate and assist in developing International and Domestic Sales
and Marketing Strategy(ies);
(e) Participate and coordinate in final decision on worldwide packaging
program;
(f) Coordinate worldwide information technology plan in the areas of:
(1) Control of inventory
(2) Manufacturing & Sales schedules
(3) Expense control
(4) Accounting
(5) Financial and Operational Reporting and Information;
(g) Year by year Business, Financial, Marketing and strategic plans
through the year 2000;
(h) Consolidation of 1) US, Canadian and Panama branches and 2) European
branches (UK, France, Germany and Hungary);
(i) Locate and recommend acquisitions and corporate opportunities;
(j) Assist with the management of Concord and subsidiaries as requested by
the CEO;
(k) The foregoing list is not intended to represent the only projects to
be undertaken by Consultant. Concord may at its discretion and at any
time and from time to time add or delete projects from the foregoing
list.
The parties acknowledge that the failure to complete one or more of the
foregoing projects does not constitute a breach of this Agreement and such
failure shall have no effect on the payment or other obligations of Concord
hereunder. Consultant acknowledges that Concord is an international company with
branches, customers, vendors and business contacts located throughout the world
and as such in order for the Consultant to perform the services outlined in this
agreement, Consultant will have to travel both domestically and internationally
on behalf of Concord and in performance of Consultant's services to Concord. The
parties further acknowledge that the completion of the foregoing projects is, in
part, dependent upon the financial condition and business status of Concord.
3. EFFECTIVE DATE OF AGREEMENT -- The effective date of this Agreement
shall be May 1, 1995.
4. TERM OF AGREEMENT -- Unless sooner terminated as hereinafter provided,
the term of this Agreement (the "Term") shall be for a period of one year.
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5. CONSULTING FEE -- The Consultant's fee for providing its services
pursuant to the terms and conditions of this Agreement shall be $20,000 payable
at the beginning of each month during the Term and $60,000 payable on September
1, 1995, provided that the Term has not been earlier terminated pursuant to
paragraph 11 of this Agreement.
6. BONUS CONSULTING FEE -- Concord may provide a bonus consulting fee to
the Consultant which bonus shall be related to the Consultant's performance
and/or Concord's financial performance and be based on the same criteria to be
included in Concord's to be established Incentive Compensation Plan. It is
understood and agreed by the parties that such bonus shall be given in Concord's
sole discretion.
7. STOCK OPTIONS -- Upon signing this Agreement, and effective as of May 1,
1995, Consultant shall be granted an option (the "Option") to acquire up to
100,000 shares of common stock of Concord, which Option shall be in form and
substance as set forth on the exhibit to this Agreement.
8. EXPENSES -- Concord agrees to reimburse the Consultant within five (5)
days of receipt of any bills for Consultant's reasonable out-of-pocket costs and
expenses related to the performance of this Agreement by Jackel. Said costs and
expenses shall include but not be limited to the following:
(a) health benefits identical to those currently being maintained by Xxxxx
Xxxxxx in an amount not to exceed Six Hundred Sixty Five Dollars
($665.00) per month.
(b) term life insurance in the face amount of One Million Dollars
($1,000,000.00) with the premium not to exceed Nine Thousand Dollars
($9,000.00) per year.
(c) cost and expenses incurred relevant to Xxxxx Xxxxxx'x use, operation
and garaging of an automobile in connection with the performance of
his duties pursuant to the terms of this Agreement. Such automobile
expenses shall include commutation expenses. The total cost incurred
by Concord pursuant to this subparagraph shall not exceed Two Thousand
Dollars ($2,000.00) per month.
(d) travel and lodging expenses incurred by the Consultant in the
performance of its duties hereunder.
(e) long term disability with the premium amount not to exceed Seven
Thousand Dollars ($7,000.00) per year.
(f) such other expenses as the Consultant may from time to time reasonably
incur in connection with the performance of the Consultant under this
Agreement.
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9. INDEMNIFICATION -- From time to time, upon the request by the Consultant
subject to the exclusions in the following indemnity provisions, Concord agrees
to reimburse the Consultant for all reasonable travel, legal and other
out-of-pocket expenses related to assisting Concord, at its request, to prepare
for or defend against any action, suit, proceeding or claim brought or
threatened to be brought against Concord or by Concord against a third party
arising out of or in any way related to the transactions contemplated herein and
in providing evidence, producing documents or otherwise participating in any
such action, suit, proceeding or claim. In the event the Consultant is required
to appear after termination of this Agreement at a judicial or regulatory
hearing in connection with the Consultant's engagement hereunder, or
Consultant's role in connection therewith, Concord agrees to pay the Consultant
a sum, to be mutually agreed upon by the Consultant and Concord, per diem for
each day of such Consultant's appearance and each day of preparation thereof.
Since the Consultant will be acting on behalf of Concord in connection with
this matter, Concord agrees to indemnify and hold harmless the Consultant and
its affiliates, the respective directors, officers, agents and employees of the
Consultant and its affiliated entities and each other person, if any,
controlling the Consultant or any of its affiliates from and against any losses,
claims, damages, expenses (including reasonable counsel fees) or liabilities
resulting from any actual or threatened legal actions arising out of such
engagement or arising out of the Consultant's role in connection therewith
whether or not the Consultant or any other indemnified party is named as a party
thereto. Concord will not, however, be responsible for any losses, claims,
damages, expenses or liabilities to the extent that they arise out of or result
from actions taken or omitted to be taken by the Consultant or its affiliates
due to the gross negligence, willful misconduct, or failure to act in good faith
in a manner reasonably believed by such person to be in or not opposed to the
best interests of Concord of any such person or persons or for information
utilized by the Consultant which was not authorized by Concord for use by the
Consultant.
Promptly after receipt by the Consultant of notice of any claim or the
commencement of any action or proceeding with respect to which it is entitled to
indemnity hereunder, the Consultant will notify Concord in writing of such claim
or the commencement of such action or proceeding, and Concord will assume the
defense of such action or proceeding and will employ counsel reasonably
satisfactory to the Consultant and will pay the reasonable fees and expenses of
such counsel. Notwithstanding the preceding sentence, the Consultant shall be
entitled to employ counsel separate from counsel for Concord and from any other
party in such action if the Consultant reasonably determines that a conflict of
interest exists which makes representation by counsel chosen by Concord not
advisable. In such event, the reasonable fees and disbursements of such separate
counsel for the Consultant will be paid by Concord.
All of the rights and benefits of indemnification specified herein are
rights and benefits which inure to the benefit of Xxxxx Xxxxxx personally.
10. CERTAIN LEGAL FEES -- The parties agree and acknowledge that if either
party is required to commence any legal action to enforce any of its rights
hereunder and in connection therewith a judgment or award is rendered in such
party's favor, the other party shall reimburse the prevailing party for all
legal fees and expenses incurred by prevailing party in connection with any such
action.
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11. TERMINATION --
11.1. By Concord: Cause. Concord may, at any time during the Term by notice
to Consultant terminate the Term for "Cause". "Cause" shall mean (i) the
continued failure by Consultant or Xxxxx Xxxxxx to substantially perform its
duties with Concord; (ii) Jackel's or Consultant's arrest or indictments for any
felony or any crime involving moral turpitude or theft; (iii) theft, fraud or
embezzlement, at Concord's expense; (iv) the material breach by Consultant of
this Agreement, including any failure of Consultant to make Jackel available to
perform the services to be rendered by Consultant hereunder; (v) the inability
of Jackel to perform his duties as a result of his addiction to alcohol or
drugs, other than drugs legally prescribed and administered by a duly licensed
physician; or (vi) an act of gross neglect or gross misconduct by Consultant or
Jackel. Prior to terminating the Term for Cause for any reason set forth in
clause (i), (iv) or (v) of the preceding sentence, Concord must give Consultant
written notice of the facts and circumstances giving rise to Cause and provide
the Consultant with thirty (30) days to cure, remedy or rectify the situation.
11.2. Disability. During the Term, if, solely as a result of physical or
mental incapacity or infirmity (other than alcoholism or drug addiction), Jackel
shall be unable to perform in any material respect Consultant's duties under
this Agreement for periods aggregating at least ninety (90) days during the
twelve month Term of this Agreement ("Disability Period"), Jackel shall be
deemed disabled (the "Disability") Concord, by notice to Consultant, shall have
the right to terminate the Term. Notwithstanding the foregoing, Concord shall
not be required to pay Consultant during any period when Jackel is unable to
perform the services required of Consultant hereunder, provided however that
Concord shall have the obligation to make payment to the Consultant for the
ninety (90) day Disability Period.
11.3. Death. The Term shall terminate on the date of Jackel's death.
11.4. By Concord Without Cause. Concord may cause the Term to be terminated
at any time, without Cause, by delivery to Consultant of 30 days' prior written
notice of termination.
11.5. Voluntarily by Consultant. Consultant may cause the Term to be
terminated at any time, without Cause, by delivery to Concord of 30 days' prior
written notice of termination.
11.6. Termination Payments. Upon termination of the Term pursuant to the
provisions of any of paragraph 11.1, 11.2, 11.3 or 11.5 above, Consultant's
right to receive payments pursuant to paragraph 5 and paragraph 8 of this
Agreement shall immediately terminate, except for amounts due on account of
services rendered or expenses incurred prior to the date of termination. In the
event of a termination of the Term by Concord pursuant to the provisions of
paragraph 11.4 above, Concord shall continue to be obligated to make the
payments provided for in paragraph 5 and paragraph 8 above through April 30,
1996.
12. CONFIDENTIALITY -- The Consultant will not disclose or use any
information which is not otherwise available to the public which comes into its
possession as a result of this Agreement, except as may be required by law.
Concord will not disclose or use any information which is not otherwise
available to the public which comes into its possession as a result of this
Agreement, except as may be required by law.
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13. ADEQUACY OF DISCLOSURE -- Consultant herein gives Concord the right to
independently examine, inspect and make inquiry with respect to the Consultant
and/or Xxxxx Xxxxxx.
14. NO MITIGATION OF DAMAGES -- In the event of any termination excluding a
termination for Cause of the Term by Concord prior to April 30, 1996, it is
agreed by the parties that the Consultant shall not be required to mitigate any
damages it may sustain by accepting any other consulting position. Any
consulting fee earned by the Consultant in any other capacity either before or
after a termination of this Agreement shall not be offset against or otherwise
reduce amounts due to it under this Agreement.
15. DISPUTE RESOLUTION MECHANISM -- The parties agree that any
disagreements or contests arising out of or relating to this Agreement shall be
brought before an arbitration panel which shall consist of three arbitrators.
The parties agree further that the arbitrators shall be chosen as follows: one
by the Consultant; one by Concord; and the last arbitrator to be chosen by the
other two arbitrators. The parties agree further that they are to have the right
to take discovery in connection with any arbitration proceeding.
16. CHOICE OF LAW; CHOICE OF FORUM -- This Agreement shall be governed by
the laws of the State of New Jersey. Any disagreements, contests or arbitration
proceedings arising out of or relating to this Agreement shall be brought within
the State of New Jersey.
17. ACKNOWLEDGMENT OF REPRESENTATION OF COUNSEL -- The parties hereto
acknowledge that they have been represented by counsel or knowingly waive their
right to be represented by counsel with regard to this Agreement and the subject
matter hereof. Each party agrees and acknowledges that it has not relied upon
any tax advice, legal counsel or business advice provided by the other party.
18. NOTICES -- All notices required hereunder to be sent shall be effective
and binding if sent by certified mail, Federal Express or other similar service
or delivered in person to the addresses of the parties set forth herein with
copies to their respective counsel.
19. EXECUTION OF AGREEMENT AND FURTHER ACTIONS -- This Agreement may be
executed in duplicate each of which shall constitute an original Agreement. The
parties agree to execute such other documents and to take such action as may be
necessary to carry out the intent of this Agreement.
20. VALIDITY -- If any provision of this Agreement or the application of
such provision shall be held invalid, the remainder of this Agreement shall not
be affected thereby. This Agreement may not be modified by the parties except by
a signed writing.
21. ENTIRE AGREEMENT -- This Agreement is intended by the parties to be a
complete, and entire statement of the terms and conditions of their agreements
and understandings with respect to the subject matter referenced herein
exclusive of the other agreements between them which specifically survive this
Agreement as stated herein.
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22. COOPERATION BETWEEN THE PARTIES -- The parties understand that the
success of any financial arrangement will require close cooperation between the
parties. Concord agrees to use its best efforts to furnish and supply all
necessary information and documents to the Consultant (all non-public documents
used in presentations will be approved by Concord), and to make itself and the
appropriate members of its organization, its professionals (including but not
limited to accountants and lawyers) and anyone else the Consultant deems
appropriate, available as the Consultant may require. Concord will provide
Consultant an office at its headquarters located at the above address.
Consultant will provide its services as generally described herein at paragraph
2 at Concord's headquarters.
23. AUTHORITY TO ENTER INTO AGREEMENT -- Concord acknowledges and
represents that it has authority to enter into this Agreement and to be bound by
the terms and conditions of this Agreement.
24. OTHER ACTIVITIES OF CONSULTANT -- It is acknowledged that the
Consultant is an independent contractor. The services to be provided hereunder
by the Consultant shall be exclusively provided by Xxxxx Xxxxxx. Consultant
shall cause Xxxxx Xxxxxx to devote the time reasonably determined by Concord and
Consultant to be necessary to perform the services required to be rendered
pursuant to section two hereof. Consultant shall be fully responsible for all
payments due to Jackel in connection with services rendered by Jackel pursuant
to this Agreement. Consultant shall also be responsible for the payment of any
withholding taxes, FICA, unemployment insurance or any other such amounts with
respect to Jackel. Jackel and the Consultant agree to indemnify and hold Concord
harmless from any claims, amounts due, penalties and/or interest related to
their failure to make such payments. Subject to the foregoing, Concord
acknowledges that the Consultant and Jackel have the right to enter into other
consulting agreements and to perform consulting or other business services for
third parties or for themselves during the term of this Agreement.
25. AGREEMENT TO COOPERATE IN THE FUTURE -- In the event that this
Agreement expires or that the Consultant is terminated, for cause or no cause,
the Consultant agrees that it will assist Concord to the extent requested by
Concord with respect to any lawsuits then existing or which may exist in the
future, or any other matter or investigation about which the Consultant may have
knowledge based upon the services performed pursuant to this Agreement. In the
event that the Consultant so assists Concord, then and in that event, Concord
shall pay the Consultant for the expenses which it incurs with respect to such
cooperation. It is acknowledged and confirmed that to fulfill its function, the
Consultant has designated the availability of Xxxxx Xxxxxx.
26. SURVIVAL OF TERMS -- The terms of this Agreement shall survive the
execution of this Agreement.
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27. HEADINGS AND SYNTAX -- All references made and pronouns used herein
shall be construed in the singular or the plural and in such gender as the sense
and circumstances require. The headings set forth in this Agreement are for
convenience and reference only and are not intended to modify, limit, describe
or affect in any way the contents, scope or intent of this Agreement.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed this Agreement on the date first written above.
CONCORD CAMERA CORP.
By: ------------------------------
Harjac Consulting Corp.
By: ------------------------------
Xxxxx Xxxxxx
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