CONSULTING AND NONCOMPETITION AGREEMENT
THIS CONSULTING AND NONCOMPETITION AGREEMENT (this "Agreement"), made
as of the _____ day of July, 2000, by and between Serengeti Eyewear, Inc., a New
York corporation (the "Company"), Sunshine Acquisition, Inc., a New York
corporation (the "Purchaser"), and Xxxxxxx ("Xxxxx") Xxxxxx, a resident of the
State of Florida (the "Consultant").
RECITALS
1. The Consultant is a shareholder and the President and Treasurer of
the Company and possesses extensive knowledge and a unique understanding of the
business of the Company and the sunglasses business generally.
2. By an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"), the Purchaser has agreed to acquire all of the issued and
outstanding shares of common stock of the Company in a cash tender offer (the
"Offer") and to subsequently merge the Purchaser with and into the Company (the
"Merger"). Capitalized terms used, but not otherwise defined, herein shall have
the meanings ascribed thereto in the Merger Agreement.
3. The Company, Purchaser and Consultant have agreed that the
Consultant is to become engaged by the Company as a Consultant effective upon
the consummation of the Offer.
4. The Company and the Purchaser would be irreparably injured if the
Consultant were to disclose any of the secret or confidential information
concerning the business and operations of the Company that the Consultant has or
may acquire or if the Consultant were to enter into any business competitive
with the Company.
5. The obligations of the Purchaser and the Company under the Merger
Agreement are expressly subject to certain covenants and conditions set forth
therein, including the execution and delivery of this Agreement by the
Purchaser, the Company and the Consultant.
6. The Consultant desires to enter into this Agreement and perform his
obligations hereunder in order to induce the Purchaser to acquire the Company.
AGREEMENTS
In consideration of all of the terms and conditions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. DEFINITIONS. In addition to the capitalized terms elsewhere defined
herein, the following terms, when used herein, shall have the following
meanings:
"Affiliate" means, with respect to any Person, any other Person
that directly, or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with, such first Person.
"Person" means a natural person, partnership, corporation,
limited liability company, association, joint stock company, trust, joint
venture, unincorporated organization or other entity, or a governmental entity
or any department, agent or political subdivision thereof.
"Term" means the period commencing on the date of the
consummation of the Offer and continuing for three (3) years after the date of
the consummation of the Offer.
"Third Person" means any Person other than one of the parties
hereto.
2. CONSULTING SERVICES.
(1) During the Term, the Company hereby engages the Consultant as
a consultant to the Company, and the Consultant hereby agrees, to provide such
consulting and advisory services (the "Services") as the Company may request in
a reasonable manner consistent with the terms and conditions hereof. Consultant
shall consult with the Company pursuant hereto with respect to matters relating
to the business of the Company. Such Services shall be solely and exclusively
advisory in nature and based on the knowledge derived from the duties heretofore
performed by Consultant for the Company . The Company shall have the right to
call upon Consultant on an "as needed" basis for not more than a total of
twenty-five (25) hours per month to furnish Services to the Company, at mutually
agreeable times and places; provided, however, it is agreed that the Services to
be provided to the Company hereunder shall not conflict with any obligations
with respect to any other employment or duties of Consultant and that the
Consultant's obligations with respect to such other employment or duties shall
take precedence over the requirements of the Company hereunder. Such Services
may be in person, by telephone, at lunch time meetings, by correspondence or
otherwise. The Company agrees that its request for Services will not require
Consultant's presence at the Company's offices except as expressly agreed by
Consultant and that the Company will provide reasonable notice to Consultant
when Services are required of Consultant by the Company pursuant hereto.
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(2) The parties hereto acknowledge that in providing the
Services, the Consultant will be acting solely as an independent contractor and
will not be considered or deemed to be, or represent to Third Persons that he
is, an officer, director, agent, employee, stockholder, member, joint venturer
or partner of the Company, the Purchaser or any of their respective Affiliates.
Neither the Company, nor the Purchaser nor any of their respective Affiliates
shall be responsible for, and each shall be held harmless by the Consultant
from, any liability to any governmental authority for any federal or state
withholding tax, payroll tax or unemployment, disability or worker's
compensation insurance payments or deductions with respect to the consideration
paid under this Agreement. Other than an independent contractor relationship, no
other relationship is intended or created by this Agreement by and between the
Company, the Purchaser or any of their respective Affiliates, on the one hand,
and the Consultant, on the other hand.
(3) Nothing contained in this Agreement will be construed to
grant the Consultant the right to, and the Consultant will not, act for or make
any commitments, agreements or representations of any kind for or on behalf of
the Company, the Purchaser or any of their respective Affiliates.
3. NONCOMPETITION AND CONFIDENTIALITY.
(1) The Consultant hereby covenants and agrees that he will not,
during the Term, without the Company's or the Purchaser's prior written consent,
by himself or in partnership or conjunction with, or as an employee, officer,
director, manager, consultant, agent, stockholder, joint venturer, partner or
member of, any other Person or other entity, either directly or indirectly,
undertake or carry on or be engaged or have any financial or other interest in,
or in any other manner advise or assist any Person or other entity engaged or
interested in, the manufacture, sale or distribution of sunglasses or related
products which is carried on within or from, or directed at, or whose products
or services are sold or distributed within, from or into any place in North
America (the "Restricted Territory"), provided, that notwithstanding the
foregoing Consultant may own, directly or indirectly, solely as an investment,
securities of any Person having a class of securities (i) registered under the
Securities Act of 1934 and (ii) publicly traded, if the Consultant is not a
controlling person of, or a member of a group which controls, such Person and
the Consultant does not, directly or indirectly, own more than five percent (5%)
of any class of securities of such Person. The Consultant further covenants and
agrees that he will not, on behalf of any Person or other entity, during the
Term, directly or indirectly, (i) solicit or attempt to solicit any business in
competition with the Company or any of its Affiliates from any customers of the
Company or any of its Affiliates, (ii) take any action to induce any customer of
the Company or any of its Affiliates to breach or violate any existing contract
or understanding between such customer and the Company or any of its Affiliates,
(iii) otherwise interfere with the relationship between the Company or any of
its Affiliates and such customer (iv) hire or employ, or attempt to hire or
employ, in any fashion (whether as an employee, independent contractor (with the
exception of Xxxxxx Xxxxxx) or otherwise), (A) any individual who is then an
employee or independent contractor (with the exception of Xxxxxx Xxxxxx) of the
Company or any of its Affiliates or (B) any individual previously
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employed by the Company or any of its Affiliates within six (6) months after the
date of termination of such individual's employment with the Company or any of
its Affiliates, as the case may be, or (v) solicit or induce, or attempt to
solicit or induce, any employees, clients, customers, vendors or suppliers of
the Company or any of its Affiliates to terminate their relationship with the
Company or any of its Affiliates.
(2) The Consultant hereby agrees to hold in strict confidence all
secret or confidential information relating to the Company or any of its
Affiliates and not, without the prior written consent of the Company or the
Purchaser, to (x) disclose such information to anyone other than (i) disclosure
to the Purchaser and those designated by the Purchaser and (ii) disclosure which
is required by law, or (y) use such information for any purpose whatsoever. For
purposes of this Agreement, secret or confidential information shall not include
information which (i) is or becomes generally available to the public other than
as result of a disclosure by Consultant , or (ii) is or becomes available to
Consultant on a non-confidential basis from a source other than Purchaser, the
Company or any of their Affiliates, provided that such source is not known by
Consultant to be bound by a confidentiality agreement with or other obligations
of secrecy to Purchaser, the Company or any of their Affiliates, or the
Consultant does not have personal knowledge that such information is otherwise
secret or confidential information of the Company.
(3) The Consultant agrees and warrants that the covenants
contained herein are reasonable, that valid consideration has been and will be
received therefor and that the agreements set forth herein are the result of
arms-length negotiation between the parties hereto.
(4) The Consultant acknowledges that in the event of any
violation of the covenants contained in this Section 3 the Company's or the
Purchaser's damages will be difficult to ascertain and the Company's or the
Purchaser's remedies at law will be inadequate. Accordingly, the Consultant
agrees that, in addition to such remedies as the Company or the Purchaser may
have at law, the Company and the Purchaser shall have the right to enforce this
Agreement by injunctive or equitable relief without the posting of a bond or
other security.
(5) If any of the provisions of or covenants contained in this
Section 3 is hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the provisions or the
enforceability thereof in any other jurisdiction, which shall be given full
effect, without regard to the invalidity or unenforceability in such other
jurisdiction. If any of the provisions of or covenants contained in this Section
3 is held to be unenforceable in any jurisdiction because of the duration or
geographical scope thereof, the parties agree that the court making such
determination shall have the power to reduce the duration or geographical scope
of such provision or covenant and, in its reduced form, said provision or
covenant shall be enforceable; PROVIDED, HOWEVER, that the determination of such
court shall not affect the enforceability of this Section 3 in any other
jurisdiction.
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4. CONSIDERATION.
(1) In consideration for the Consultant's obligations hereunder,
the Company hereby agrees to pay to the Consultant the sum of Nine Hundred
Thousand Dollars ($900,000) (the "Total Cash Consideration"), payable in twelve
(12) equal quarterly installments of Seventy- Five Thousand Dollars ($75,000)
each on the first day of March, June, September and December of each year
commencing on September 1, 2000.
(2) On the date of the commencement of the Term, the Company
shall transfer to Consultant title to the 2000 Mercedes Benz S430 automobile
owned by the Company and currently used by the Consultant, free and clear of all
debt, liens or other encumbrances (the "Vehicle Consideration").
(3) The Consultant shall not be entitled to any fringe benefits
or perquisites from the Company or the Purchaser in respect of the Services
rendered hereunder, PROVIDED, HOWEVER, that the Consultant shall be provided
family health benefits consistent with those provided to senior executives of
Worldwide Sports and Recreation, Inc., a Delaware corporation and the parent of
Purchaser ("WSA"), or in the event such health benefits cannot be so provided,
the Company shall pay to Consultant, in lieu thereof, during each year of the
Term (until the Consultant becomes employed by another person that provides such
benefits to Consultant), an amount equal to 150% of the amount of the cost of
the premiums of such health benefits, which payments shall be made in equal
quarterly installments at the time of the payments referred to in Section 4(a)
hereof (the "Benefits Consideration").
(4) The parties agree that the Total Cash Consideration, the
Vehicle Consideration and the Benefits Consideration are compensation to the
Consultant for entering into this Agreement and complying with the provisions
hereof, and the Consultant agrees to report such consideration as compensation
on all tax and other reports filed with any governmental authority. The
Consultant agrees not to take a position inconsistent with such treatment or
file any claim for a refund or amended tax return which reflects a contrary
position.
(5) In the event of Consultant's death prior to the expiration of
the Term, all consideration payable to Consultant pursuant to this Agreement
through the expiration of the Term shall be paid to Consultant's estate or other
successor in interest.
5. AMENDMENT AND MODIFICATION. The provisions of this Agreement may be
amended or modified only by the written agreement of the parties hereto.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements of the parties with respect to such subject
matter.
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7. HEADINGS. The descriptive headings in this Agreement are inserted
for convenience of reference only and do not constitute a part of this
Agreement.
8. EXPENSES. Each party agrees to pay, without right of reimbursement
from any other party, the costs incurred by such party incident to the
preparation and execution of this Agreement and performance of its obligations
hereunder, including the fees and disbursements of legal counsel employed by
such party in connection with the transactions contemplated by this Agreement.
9. BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of the Consultant, the Company and the Purchaser and their
respective successors and assigns and, with respect to the Consultant, his
respective legal representatives, executors, administrators and heirs. The
Consultant's rights and obligations under this Agreement may not be sold,
assigned, pledged or hypothecated.
10. CONSOLIDATION, MERGER, OR SALE OF ASSETS. Nothing in this Agreement
shall preclude the Company or the Purchaser from consolidating or merging into
or with, or transferring all or substantially all of its assets or the assets
associated with the business and operation of the Company to another Person or
other entity which assumes this Agreement and all obligations and undertakings
of the Company or the Purchaser hereunder. In addition, nothing shall preclude
the Company or the Purchaser from changing its name at any time after the date
hereof. Upon such a consolidation, merger, transfer of assets and assumption, or
name change, the term "Company" or "Purchaser" shall refer to such Person or
other entity, and this Agreement shall continue in full force and effect.
11. WAIVER OF COMPLIANCE; CONSENTS. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, none of which need contain the signatures of all parties, each of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of, all of the parties
hereto.
13. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered by hand,
transmitted by facsimile, mailed by registered or certified mail (return receipt
requested), postage prepaid, or sent by overnight courier service, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
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(a) If to the Company or the Purchaser:
Serengeti Eyewear, Inc.
Sunshine Acquisition, Inc.
c/o Wind Point Partners
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax No: 000-000-0000
and
Serengeti Eyewear, Inc.
Sunshine Acquisition, Inc.
c/o Wind Point Partners
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Salam X. Xxxxxxxxx
Fax No.: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Fax No: 000-000-0000
(b) If to the Consultant:
Xx. Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
with a copy to:
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Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No.: 000-000-0000
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of law rules.
15. NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against
either party.
16. EFFECTIVENESS. This Agreement shall become effective upon
consummation of the Offer.
17. RELEASE. Effective upon the commencement of the Term, the
Consultant hereby irrevocably waives and releases any and all claims for or with
respect to severance and other payments relating to the termination of his
employment with the Company, including recapture of unearned incentive
compensation payments and other bonuses that the Consultant may have against the
Company, the Purchaser or their respective officers, directors and Affiliates.
[Remainder of page intentionally left blank.
Signature page follows.]
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The parties have caused this Agreement to be executed and delivered as
of the date first written above.
COMPANY:
SERENGETI EYEWEAR, INC.
By:________________________
Title:_______________________
PURCHASER:
SUNSHINE ACQUISITION, INC.
By:________________________
Title:_______________________
CONSULTANT:
----------------------------
Xxxxxxx Xxxxxx
