EXHIBIT 10.3
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CONSULTING AGREEMENT
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CONSULTING AGREEMENT (this "Agreement"), made as of the 11th day of
October, 2005, by and between MM2 GROUP, INC., a New Jersey corporation,
("Company"), on the one hand, and XXXXXXX X. XXXX, an individual ("Consultant"),
on the other hand, with respect to the following:
RECITALS
WHEREAS, the Consultant is experienced in the management and operation of
public companies, including strategic planning, direct marketing and negotiating
with lenders, vendors, suppliers and clients;
WHEREAS, the Company, the Consultant and the other parties thereto have
entered into an Acquisition Agreement (the "Acquisition Agreement") whereby all
of the Company's shares will be acquired by a public company; and
WHEREAS, the Company desires to engage the Consultant, on a non-exclusive
basis, to provide consulting services and advice regarding such acquisition, all
upon the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. TERM The Company hereby engages and retains the Consultant as a
consultant to the Company and the Consultant hereby accepts such engagement and
retention by the Company for a period of two (2) years commencing as of the date
of the Closing (as defined in the Acquisition Agreement).
2. DUTIES
(a) Upon reasonable notice, Consultant shall be available to provide
consultation and advice with respect to such matters as the Company may request.
Such services shall be performed by the Consultant only after the Company has
made a specific request and shall be provided at mutually agreeable times and
places.
(b) Consultant shall have the option to perform duties required
hereunder by use of telephone, telefax or other means of telecommunication to
the extent that performance of such duties by such methods is practical.
Consultant shall not be required to maintain a physical presence at the
Company's offices or to provide full time services to the Company and shall not
be required to travel unless such travel is necessary to provide services.
(c) Consultant should not be required to provide more than four (4)
hours of consulting services per week to the Company, which hours shall not be
accumulative if not used.
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3. COMPENSATION For and in consideration of and in full and final
payment for the services to be rendered by Consultant to the Company, the
Company shall pay to the Consultant a consulting fee of Two Hundred Thousand
Dollars (US) (US$200,000), payable upon the Closing. Said payment shall be made
via a wire transfer of funds to Consultant at such account or accounts as
Consultant may designate to the Company in writing.
4. INDEPENDENT CONTRACTOR: NON-EXCLUSIVE
(a) It is understood and agreed that Consultant is, and shall at all
times during the Term be deemed to be, an independent contractor, and nothing in
this Agreement shall in any way be deemed or construed to constitute Consultant
as an agent or employee of the Company, nor shall Consultant have the right or
authority to act as, incur, assume or create any obligation, responsibility or
liability, express or implied, in the name of or on behalf of the Company or to
bind the Company in any manner whatsoever or sign any documents on its behalf.
The Consultant shall determine, in his sole discretion, the Consultant's method,
details and means of performing his duties hereunder, and the Company shall have
no right to control or direct the foregoing.
(b) The consulting services to be rendered hereunder will not be
exclusive to either party. The Consultant may engage in such other activities,
consulting or otherwise, as the Consultant in his sole discretion deems
appropriate. Similarly, the Company may retain other consultants in its sole
discretion.
5. WITHHOLDING TAX The Company shall not be responsible for
taking/making any deductions from any of the payments to be made to the
Consultant hereunder for any regular or customary state, federal or local
withholdings, social security deductions or other similar charges taken from
payment made to "employees" and the Consultant shall indemnify and hold harmless
Company from any liability suffered by Company with regard thereto.
6. TERMINATION The Company expressly assumes the risk that the
Consultant may die or become physically or emotionally unable to perform his
consulting duties. In the event Consultant dies or become disabled to the point
where he is unable to perform his consulting duties during the Term, there shall
not be any refund of payments made to the Consultant. Provided however, that
should Consultant recover from any disability and become capable of performing
his consulting duties before the end of the Term, Consultant shall notify
Company of such event and provide consulting services for the remainder of the
Term as provided herein.
7. ACKNOWLEDGMENT AND INDEMNITY The Company understands and acknowledges
that Consultant is not an attorney or providing any other professional services.
Accordingly, Consultant shall not be responsible or liable, for the preparation,
accuracy or filing of public disclosure documents with any federal or local
agency. Further, from and after the closing, Company shall indemnify Consultant,
including his representatives, agents, heirs, administrators and assigns against
and hold them harmless from any loss, claim, damage, liability, cost and expense
resulting or arising from any claims asserted against the Consultant for
conduct, actions and/ or omissions of the Company after the Closing.
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8. ENTIRE AGREEMENT This Agreement constitutes the entire agreement
between the parties with respect to Consultant's consultancy with Company,
including, but not limited to, any agreement with respect to remuneration, fees,
payments or benefits of any kind payable to Consultant with respect to such
consultancy, and there is no other agreement between the parties with respect to
the subject matter hereof, written or oral, other than as provided hereby. This
Agreement may not be amended, modified, supplemented or discharged except by a
writing duly executed by the parties hereto.
9. NOTICES Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or three (3) days
after being sent by registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telecopy with oral confirmation, addressed as
indicated in the Acquisition Agreement.
10. WAIVER The waiver by either party hereto of the breach of any
provision of this Agreement by the other party hereto shall not operate or be
construed as a waiver or any other provision hereof or of any subsequent breach
by such other party.
11. SEVERABILITY If any provision of this Agreement shall be held to be
invalid or unenforceable, the other provisions of this Agreement shall not be
affected thereby and this Agreement shall be construed as if the provision held
to be invalid or unenforceable had never been contained herein and such
provision shall be reformed and redrawn only to the extent necessary so as to be
valid and enforceable under applicable law.
12. GOVERNING LAW AND VENUE This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey without giving
effect to the conflict of law provisions thereof and each party irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the District of New Jersey, for the purposes of any proceeding arising out of or
relating to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have signed and delivered this
Agreement on the date first above written.
"CONSULTANT":
_________________________________
XXXXXXX X. XXXX, an individual
"COMPANY"
MM2 GROUP, INC., a New Jersey corporation
By: _____________________________
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