CONSULTING AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement"), is made as of
the ___ day of February, 1998, by and between RETROSPETTIVA, INC. (the
"Company") and XXXXX XXXXXXX ("Xxxxxxx").
1. ENGAGEMENT. The Company hereby retains Xxxxxxx as an independent
contractor on behalf of the Company upon the terms and conditions, hereinafter
set forth.
2. TERM. The term of this Agreement shall be for the period beginning the
effective date of this Agreement and extending until and through March 31, 1999.
3. DUTIES. Xxxxxxx is retained as an independent contractor by the
Company and his duties shall be those related to (i) all phases of investment
banking and investor relations between the Company and the brokerage
community and market makers, (ii) enhance the name recognition of the
Company, (iii) increase investor/broker and industry awareness of the
Company, (iv) further the value of the Company and its securities and (v)
such other duties relating to investor relations as the Company may
reasonably direct.
4. COMPENSATION. As the entire compensation for his services to the
Company under and during the term of this Agreement, in whatever capacity
rendered, the Company shall pay to Xxxxxxx the total sum of Eighty Seven
Thousand Dollars ($87,000) payable Thirty Thousand Dollars ($30,000) within
five (5) days of the execution of this Agreement and equal quarterly payments
of Fourteen Thousand Two Hundred Fifty Dollars ($14,250) each commencing
June 30, 1998 and payable thereafter on September 30, 1998, December 31, 1998,
and one final payment on March 31, 1999.
5. EXTENT OF SERVICE. Xxxxxxx shall devote such time as is necessary to
perform his duties under this Agreement and shall utilize has best efforts in
furtherance of the business of the Company. Xxxxxxx specifically may set
whatever hours he deems appropriate to accomplish his duties and the Company
may not direct the manner in which Xxxxxxx performs his duties hereunder.
6. TERMINATION. This Agreement will terminate upon the occurrence of any
of the following events:
a. The death of Employee;
b. The "Total Disability" (as hereinafter defined) of Xxxxxxx;
c. Written notice to Xxxxxxx from the Company of termination for "Cause"
(as hereinafter defined);
d. The voluntary termination of this Agreement by Xxxxxxx upon thirty
(30) days prior written notice;
e. March 31, 1999 unless earlier terminated; or
f. Written notice to Xxxxxxx from the Company for any reason without
"cause".
For purposes of Section 6(b), the term "Total Disability" means physical
or mental disability, or both, determined to be (or reasonably expected to
be, based upon then available medical information) of not less than (12)
months duration or more. The determination shall rest upon the opinion of the
physician regularly attending Xxxxxxx. If the Company disagrees with said
physician's opinion, the Company may engage at their own expense a physician
to examine the Xxxxxxx and Xxxxxxx hereby consents to such examination and to
waive, if applicable any privilege between the physician and Xxxxxxx that may
arise as a result of said examination. If after conferring, the two
physicians cannot concur on a final opinion, they shall choose a third
consulting physician whose opinion shall control. The expense of the third
consulting physician shall be borne equally by the Xxxxxxx and the Company.
For purposes of Section 7(c), "Cause" means (i) Xxxxxxx has failed to
substantially perform his duties as reasonably determined by the chief
executive officer of the Company or the Board of Directors of the Company,
(ii) Xxxxxxx engages in poor performance that is not cured within thirty (30)
days after counseling by the Company, (iii) Xxxxxxx has failed to comply with
the reasonable directives and policies of the Board of Directors of the
Company or of the chief executive officer of the Company, or (iv) Xxxxxxx
breaches his fiduciary duty to the Company or commits any dishonest,
unethical, fraudulent, or felonious act in respect to Xxxxxxx'x duties to the
Company.
7. COMPANY'S OBLIGATION UPON TERMINATION OF XXXXXXX. In the event of the
Company's Termination of this Agreement pursuant to Sections 6a, 6b, 6c, 6d
or 6f above, the Company's sole obligation shall be to pay all compensation
owing for the services rendered by Xxxxxxx prior to such termination with
such compensation based upon the rate of $87,000 divided by the number of
days from the effective date of this Agreement through March 31, 1999.
Notwithstanding the foregoing, any payments by the Company to Xxxxxxx
pursuant to Section 4 above shall be deemed earned upon payment and there
shall be no adjustments pursuant to this Section 7 regarding payments to
Xxxxxxx previously paid by the Company.
It is specifically agreed between the parties that the payments set forth
in this Section 8 constitute the sole obligations of the Company regarding
termination of this Agreement and are in lieu of any damages or other
compensation that Xxxxxxx may claim in connection with this Agreement.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of
any subsequent breach by any party.
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9. NOTICES. Any notices, consents, demands, request, approvals and other
communications to be given under this Agreement by the party to the other will
be deemed to have been duly given if given in writing and personally delivered
or within two days if sent by mail, registered or certified, postage prepaid
with return receipt requested, as follows:
If to the Company: Retrospettiva Inc.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
If to Xxxxxxx:
Notices delivered personally will be deemed communicated as of actual receipt.
10. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral among the parties, or any of them, with respect to the
subject matter hereof.
11. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision, or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there will be added
automatically, as part of this Agreement, a provision as similar in its terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12. GOVERNING LAW. To the extent permitted by applicable law, this
Agreement and the rights and obligations of the parties will be governed by
and construed and enforced exclusively in accordance with the substantive
laws (but not the rules governing conflicts of laws) of the State of
California and the State of California shall have exclusive jurisdiction
regarding any legal actions relating to this Agreement.
13. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
14. GENDER AND NUMBER. When the context requires, the gender of all words
used herein will include the masculine, feminine and neuter, and the number of
all words will include the singular and plural.
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15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
RETROSPETTIVA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, CFO
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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