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Exhibit 10.5
CONSULTING AGREEMENT
1. IDENTIFICATION
This Consulting Agreement (the "Agreement"), dated as of December 7, 1999,
is entered into by and between Diversified Ventures, Inc. d/b/a Forward
Financial Company, a Massachusetts corporation ("Company"), and Xxxx X.
XxXxxxxx, an independent contractor ("Consultant").
2. RECITALS
2.1. Company has acquired Diversified Ventures, Inc. and Ellsmere Insurance
Agency, Inc. (the "Subsidiaries") from Consultant.
2.2. Consultant has extensive experience in the businesses in which the
Subsidiaries are engaged.
2.3. Company desires to engage Consultant as an independent contractor to
render advice and guidance in connection with the businesses of the
Subsidiaries.
3. TERM
3.1. Subject to the terms and conditions set forth herein, Consultant's
service under this Agreement shall be for a term of two (2) years commencing on
the date hereof and expiring at the close of business on the second anniversary
of the date hereof (the "Term").
4. GENERAL TERMS
4.1. Nature of Agreement. The parties acknowledge and agree that Consultant
will be retained by Company as an independent contractor, and not as an
employee, and that, as an independent contractor of Company, Consultant will be
under the control, supervision and direction of Company only as to the results
of the services provided to Company under the terms of this Agreement and not as
to the means by which such services are provided.
4.2. Duties and Services. During the Term, Consultant agrees to perform
such reasonable consulting services as may be assigned to Consultant by the
Company's Chief Executive Officer including, but not limited to, utilizing
Consultant as an insurance agent of Ellsmere for the Term of this Agreement,
providing advice and information to Company on the operations of the
Subsidiaries, providing background and historical information on the records and
operations of the Subsidiaries, attending occasional meetings or participating
in telephonic conferences at mutually agreeable times and locations with
clients, customers or employees of the Subsidiaries. Except as specifically set
forth herein, or as directed by Company, it is agreed that Consultant shall have
no other authority to act on behalf of Company. Consultant, in the rendition of
services under this Agreement, shall not be required to make available any
particular amount of time or to be available at specific times except by
telephone upon reasonable notice.
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5. COMPENSATION
5.1. Compensation for Services. Subject to Consultant's adherence to the
terms and conditions of this Agreement, Consultant shall be paid a quarterly fee
of One Hundred Twenty-Five Thousand Dollars ($125,000). The first payment shall
be due forty-five (45) days after the date of this Agreement (or the first
business day next following such date) and subsequent payments shall be made
every ninety (90) days thereafter (or the first business day next following such
date) until a total of eight (8) payments are made to Consultant, unless the
Agreement is terminated prior to the expiration of the Term, in which case
Consultant shall only be entitled to compensation to the extent provided in
Article 7.
5.2. No Withholding. Because Consultant is retained as Company's
independent contractor and not as an employee, Company and Consultant
acknowledge and agree that no federal or state taxes, social security
contributions or other deductions shall be made by Company from the payments
made to Consultant pursuant to this Article 5, and that Consultant will remain
solely liable for the payment of all such taxes. Consultant further acknowledges
that Company will report compensation paid pursuant to this Agreement on a Form
1099 at the end of each year in which Consultant's services were provided.
Consultant expressly covenants to make such tax payments as may be required by
applicable law and to indemnify and hold Company harmless from and against any
liability Company may incur as a consequence of Consultant's failure to make
such failure to make such payments.
6. BENEFITS
6.1. No Additional Benefits. Consultant shall receive no additional
benefits hereunder, and Consultant acknowledges that Company shall not be
responsible for providing Consultant with health insurance, pension benefits or
any other benefits.
7. TERMINATION
7.1. This Agreement shall terminate in the following circumstances:
(a) Upon the death of Consultant;
(b) Upon the Disability of Consultant;
(c) Upon the termination of Consultant by Company with or without
Cause; or
(d) By mutual agreement of the parties hereto.
7.2. For purposes of this Agreement, the term "Disability" shall mean that,
because of Consultant's physical or mental condition (a) he has been
substantially unable to perform his duties hereunder for twelve (12) weeks in
any twelve (12) month period; and (b) he has utilized any and
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all benefits available to him under state and federal laws, if applicable, and
is either (i) unable to reasonably and effectively carry out his duties with
reasonable accommodation by Company or (ii) unable to reasonably and effectively
carry out his duties because any reasonable accommodation which may be required
would cause Company undue hardship. For purposes of this Agreement, termination
for "Cause" shall mean termination of Consultant's services by Company on
account of (i) fraud, misappropriation or embezzlement by Consultant in
connection with the business of the Company or the Subsidiaries; (ii) any
failure of Consultant to perform consulting services under this Agreement; (iii)
a material breach of the provisions of this Agreement; or (iv) willful
destruction of the property or records of Company or the Subsidiaries or
deliberate falsification of Company or Subsidiary records. Notwithstanding
anything in this Section 7.2 to the contrary, a termination of Consultant's
services for Cause based on clauses (ii) or (iii) above shall not be effective
unless Consultant has first received notice from Company which sets forth in
reasonable detail the manner in which Consultant has failed to perform such
services, in which case Consultant shall have thirty (30) days to cure the same.
7.3. In the event that Consultant is terminated without Cause, Consultant
shall be entitled to the compensation otherwise payable to him through the
expiration of the Term.
7.4. Except as provided in paragraph 7.3 hereof, upon the termination of
this Agreement, Consultant shall be entitled only to compensation accrued
through such date, and to no other payments or benefits.
8. CONFIDENTIAL INFORMATION; NON-SOLICITATION; NON-USE
8.1. Non-Disclosure of Confidential Information. As used herein,
"Confidential Information" means any and all information affecting or relating
to the business of the Company and the Subsidiaries, including without
limitation, financial data, customer lists and data, licensing arrangements,
business strategies, pricing information or product development materials.
"Confidential Information" does not include information that is in the public
domain, information that is generally known in the trade, or information that
Consultant can prove he acquired wholly independently of his relationship with
the Company. Consultant shall not, at any time during the Term or thereafter,
directly or indirectly, disclose or furnish to any other person, firm or
corporation any Confidential Information, except in the course of the proper
performance of his duties hereunder or as required by law (in which event
Consultant shall give prior written notice to Company and shall cooperate with
Company and Company's counsel in complying with such legal requirements).
Promptly upon the expiration or termination of Consultant's engagement hereunder
for any reason or whenever the Company so requests, Consultant shall surrender
to the Company all documents, drawings, work papers, lists, memoranda, records
and other data (including all copies) constituting or pertaining in any way to
any of the Confidential Information.
8.2. Non-Solicitation; Non-Use. Consultant shall not, during the Term and
for a period of two (2) years from the date of any termination or expiration of
his services hereunder, directly or
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indirectly: (a) solicit or hire, or attempt to solicit or hire, any employee of
Company or the Subsidiaries, or assist any person, firm or corporation in doing
so or attempting to do so; or (b) solicit or cause to be solicited the
disclosure of, or use or disclose, any Confidential Information for any purpose
whatsoever or for any other party.
9. NON-COMPETITION
9.1. Non-Competition. Consultant shall not, for so long as he is entitled
to compensation under or pursuant to this Agreement (whether or not he is
actively engaged by the Company hereunder) and for a period of two (2) years
from the date of any termination or expiration of his services hereunder,
directly or indirectly: (a) compete with the Company or the Subsidiaries; or (b)
be interested in, employed by, engaged in or participate in the ownership,
management, operation or control of, or act in any advisory or other capacity
for, any Competing Entity which conducts its business in the Territory;
provided, however, that notwithstanding the foregoing, Consultant may make
solely passive investments in any Competing Entity the common stock of which is
"publicly held," and of which Consultant shall not own or control, directly or
indirectly, in the aggregate securities which constitute more than two (2%)
percent of the voting rights or equity ownership of such Competing Entity; or
(c) solicit or divert any business or any customer from the Company or assist
any person, firm or corporation in doing so or attempting to do so; or (d) cause
or seek to cause any person, firm or corporation to refrain from dealing or
doing business with the Company or assist any person, firm or corporation in
doing so or attempting to do so.
For purposes of this Article 9, (i) the term "Competing Entity" shall mean
any entity which presently or during the period referred to above engages in any
business activity the Company or the Subsidiaries is then engaged in or proposes
to be engaged in; and (ii) the term "Territory" shall mean any geographic area
in which the Company or the Subsidiaries conducts business during such period.
10. BREACH; RESTRICTION
10.1. Breach of Provisions. In the event that Consultant shall breach any
of the provisions of Articles 8 or 9, or in the event that any such breach is
threatened by Consultant, in addition to and without limiting or waiving any
other remedies available to the Company at law or in equity, the Company shall
be entitled to immediate injunctive relief in any court, domestic or foreign,
having the capacity to grant such relief, without the necessity of posting a
bond, to restrain any such breach or threatened breach and to enforce the
provisions of Articles 8 or 9. Consultant acknowledges and agrees that there is
no adequate remedy at law for any such breach or threatened breach and, in the
event that any action or proceeding is brought seeking injunctive relief,
Consultant shall not use as a defense thereto that there is an adequate remedy
at law.
10.2. Reasonable Restrictions. The parties acknowledge that the foregoing
restrictions, the duration and the territorial scope thereof, as set forth in
Articles 8 and 9, are under all of the circumstances reasonable and necessary
for the protection of the Company, the Subsidiaries and their business.
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11. MISCELLANEOUS
11.1. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, heirs,
distributees, successors and assigns; provided that the rights and obligations
of Consultant hereunder shall not be assignable by him.
11.2. Notices. Any notice provided for herein shall be in writing and shall
be deemed to have been given or made when personally delivered or three (3) days
following deposit for mailing by first class registered or certified mail,
return receipt requested, or if delivered by facsimile transmission, upon
confirmation of receipt of the transmission, to the Consultant, at his address
maintained in the records of the Company, or, to the Company, at its executive
offices.
11.3. Severability. If any provision of this Agreement, or portion thereof,
shall be held invalid or unenforceable by a court of competent jurisdiction,
such invalidity or unenforceability shall attach only to such provision or
portion thereof, and shall not in any manner affect or render invalid or
unenforceable any other provision of this Agreement or portion thereof, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
or portion thereof were not contained herein. In addition, any such invalid or
unenforceable provision or portion thereof shall be deemed, without further
action on the part of the parties hereto, modified, amended or limited to the
extent necessary to render the same valid and enforceable.
11.4. Arbitration. Any controversy, claim or dispute arising out of or in
any way relating to this Agreement, the alleged breach thereof, and/or
Consultant's engagement with the Company or termination therefrom, including
without limitation, any and all claims for discrimination or harassment, shall
be determined by binding arbitration administered by the American Arbitration
Association under its National Rules for Resolution of Employment Disputes
("Rules") which are in effect at the time of the arbitration or the demand
therefor. The Rules are hereby incorporated by reference. In reaching a
decision, the arbitrator shall have no authority to change, extend, modify or
suspend any of the terms of this Agreement. The arbitration shall be commenced
and heard in Boston, Massachusetts. The arbitrator(s) shall apply the
substantive law (and the law of remedies, if applicable) of Massachusetts or
federal law, or both, as applicable to the claim(s) asserted. Judgment on the
award may be entered in any court of competent jurisdiction, even if a party who
received notice under the Rules fails to appear at the arbitration hearing(s).
The parties may seek, from a court of competent jurisdiction, provisional
remedies or injunctive relief in support of their respective rights and remedies
hereunder without waiving any right to arbitration. However, the merits of any
action that involves such provisional remedies or injunctive relief, including,
without limitation, the terms of any permanent injunction, shall be determined
by arbitration under this paragraph.
11.5. Attorneys' Fees. The parties agree that the prevailing party in any
action, controversy or dispute arising out of or relating to this Agreement or
the breach of any provision hereof, shall be entitled to reimbursement by the
losing party of all costs and expenses including, but not limited to, reasonable
attorneys' fees and costs resulting from any action or proceeding filed in
accordance
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with the terms of Section 11.4 hereof or otherwise to enforce any term of this
Agreement or for any damage by reason of an alleged breach of any term of this
Agreement.
11.6. Waiver. No waiver by a party hereto of a breach or default hereunder
by the other party shall be considered valid unless in writing signed by such
first party, and no such waiver shall be deemed a waiver of any subsequent
breach or default of the same or any other nature.
11.7. Entire Agreement. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
any and all prior agreements or understanding between the Company and
Consultant, whether written or oral, fully or partially performed relating to
any or all matters covered by and contained or otherwise dealt with in this
Agreement. It is expressly understood that this Agreement is deemed delivered to
Company after the delivery by Consultant of a Release and Indemnity Agreement in
favor of Company.
11.8. Amendment. No modification, change or amendment of this Agreement or
any of its provisions shall be valid unless in writing and signed by the party
against whom such claimed modification, change or amendment is sought to be
enforced.
11.9. Applicable Law. This Agreement, and all of the rights and obligations
of the parties in connection with the employment relationship established
hereby, shall be governed by and construed in accordance with the substantive
laws of Massachusetts without giving effect to principles relating to conflicts
of law.
11.10. Counterparts. Thus Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ATTEST: DIVERSIFIED VENTURES, INC.
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxxx
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Witness XXXX X. XXXXXXXX
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