EXHIBIT 10.44
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of September 1, 2001, by and between Xxxxx
Communications, Inc. (the "Company"), a Delaware corporation, and Xxxxxx &
Company, L.L.C., a New Jersey limited liability company (the "Consultant").
W I T N E S S E T H:
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WHEREAS, the Company wishes to retain the Consultant's services and the
Consultant desires to provide its services to the Company upon the terms set
forth herein; and
WHEREAS, Xxxxxx X. Xxxxxx, the sole member of the Consultant, is currently
a director of the Company; and
WHEREAS, the terms of this Agreement have been disclosed to the Board of
Directors of the Company and the Board of Directors of the Company has, in good
faith, authorized this Agreement by the affirmative vote of a majority of the
disinterested directors in accordance with Section 144 of the Delaware General
Corporation Law (the "DGCL");
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound, the parties hereto agree as follows:
Section 1. Consulting Services. During the term of this Agreement, the
Consultant shall render to the Company, its subsidiaries and affiliates, such
consulting services relating to the Company, its subsidiaries and affiliates as
may be reasonably requested at any time and from time to time by the Board of
Directors or the Chief Executive Officer of the Company (the "Consulting
Services"). Such Consulting Services may include, but shall not be limited to,
advice and assistance in connection with strategy and business plan development,
strategic and other alliances, mergers, acquisitions and other business
combinations, technology developments and trends, governmental relations,
financial planning and other matters relating to the conduct of the business of
the Company and its subsidiaries and affiliates. Consulting Services may be
rendered by members, employees, agents and representatives of the Consultant in
person at the offices of the Company, or any of its subsidiaries or affiliates,
at some other mutually agreeable place, by telephone or by correspondence. The
Consultant will render Consulting Services hereunder as requested by the Company
and agreed to by the Consultant. The Company acknowledges that Xx. Xxxxxx has
significant other business activities and that the Consultant shall have the
right to allocate Xx. Xxxxxx' time between the performance of Consulting
Services and such other business activities as the Consultant may determine in
its sole discretion. The foregoing notwithstanding, however, the Consultant
acknowledges and agrees that the Company is entering into this Agreement
primarily for the purpose of having the consulting services of Xx. Xxxxxx
available to the Company throughout the term of this Agreement. Accordingly, the
Consultant agrees that Xx. Xxxxxx will at all times during the term of this
Agreement devote such time and attention to the Company's matters as are
necessary for the Consultant to complete its Consulting Services to the Company
as contemplated hereby.
Section 2. Consulting Fees. In consideration of the Consulting Services to
be provided by the Consultant hereunder, the Company shall compensate the
Consultant as follows:
(a) The Company shall pay to the Consultant $20,000 per month during the
term of this Agreement, payable in advance on the first business day of each
month, commencing on September 4, 2001. In addition, the Company shall pay to
the Consultant an additional, non-accountable expense allowance of $1,000 per
month to defray the costs of office equipment, rent, secretarial services and
other similar expenses ("Overhead Expenses"). In no event shall any portion of
any payments made to the Consultant hereunder be refundable in the event of the
termination of this Agreement for any reason.
(b) The Company shall reimburse the Consultant for all out-of-pocket
expenses reasonably incurred by the Consultant, its members, employees, agents
and representatives in connection with the provision of Consulting Services
hereunder, other than Overhead Expenses. The Consultant's right to reimbursement
of such expenses is hereby expressly conditioned on the Company's receipt of
appropriate documentation of such expenses so as to preserve any claim of
deductibility of such expenses by the Company for Federal income tax purposes.
Approved expenses shall be reimbursed promptly upon receipt of all required
documentation.
Section 3. Term; Termination. This Agreement shall be effective as of
September 4, 2001 and shall expire, unless earlier terminated as provided below,
on December 31, 2002. This Agreement shall terminate immediately upon the death
or permanent disability of Xx. Xxxxxx. In the event of any such termination, the
Company shall have no further obligation to pay the fees specified in Section
2(a); provided, however, that such termination shall not affect the Company's
obligation to reimburse the Consultant in accordance with Section 2(b) for any
expenses incurred prior to such termination.
Section 4. Status of Consultant. (a) The Consultant shall be an independent
contractor with respect to the Consulting Services to be rendered hereunder.
Neither the Consultant nor any of its members, employees, agents or
representatives shall be considered as having employee status with the Company
or its subsidiaries or affiliates and shall not be entitled to participate in
any of the employee benefit and/or welfare plans maintained by the Company, its
subsidiaries or its affiliates. The Consultant's engagement hereunder shall not
preclude the Consultant or its members, employees, agents or representatives
from providing services to another person or entity who or which does not
compete with the Company on either a part-time or full-time basis.
(b) The Consultant shall be responsible for the withholding and/or payment
of all federal, state and local income taxes and social security taxes, workers
compensation, state disability and unemployment contributions or premiums or
other taxes or contributions under any benefit program mandated by applicable
law, associated with the fees received by the Consultant or any payments made by
the Consultant to its members, employees, agents or representatives.
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(c) For purposes of Section 145 of the DGCL and the provisions of the
Company's Certificate of Incorporation and By-laws, the Consultant and its
members, employees, agents and representatives shall each have the status of an
"agent" of the Company and, accordingly, shall be entitled to indemnification
and advancement of expenses from the Company in connection with the Consulting
Services to be rendered hereunder to the fullest extent provided by the DGCL and
the provisions of the Company's Certificate of Incorporation and By-laws. In
addition, to the maximum extent permitted by applicable law, the Company shall
indemnify and hold harmless the Consultant and its members, employees, agents
and representatives against and in respect of any and all claims, costs,
expenses, damages, liabilities, losses or deficiencies (including, without
limitation, counsel's fees and other costs and expenses incident to any suit,
action or proceeding) (collectively, "Damages") arising out of, resulting from
or incurred in connection with the provision of Consulting Services by the
Consultant, except and only to the extent that such Damages are finally
determined by a court of competent jurisdiction to have resulted solely from the
gross negligence or willful misconduct of the Consultant or its members,
employees, agents or representatives. Further, the Company acknowledges that
neither the Consultant nor its members, employees, agents or representatives
shall have any liability to the Company or its shareholders for any Damages
arising out of, resulting from or incurred in connection with the provision of
Consulting Services by the Consultant, except and only to the extent that such
Damages are finally determined by a court of competent jurisdiction to have
resulted solely from the gross negligence or willful misconduct of the
Consultant or its members, employees, agents or representatives.
(d) In connection with the provision of the Consulting Services, the
Consultant shall not act in any manner to discriminate against or harass any
person due to the race, color, age, sex, national origin, ancestry, religion,
disability or other factor prohibited by federal, state or local law.
Section 5. Confidentiality Covenant; Non-solicitation.
(a) The Consultant recognizes that during the course of performing
Consulting Services hereunder the Consultant will have access to and will
acquire confidential and proprietary information relating to the Company, its
subsidiaries and affiliates (the "Proprietary Information"). The Consultant
acknowledges that the Proprietary Information has been and will continue to be
of critical importance to the business and operations of the Company, its
subsidiaries and affiliates. Accordingly, the Consultant shall, and shall cause
its members, employees, agents and representatives to, use such Proprietary
Information only in connection with the provision of Consulting Services
hereunder and shall not, without the express prior written consent of the
Company, directly or indirectly disclose any Proprietary Information to any
other person or use any such Proprietary Information, either directly or
indirectly, for its benefit or for the benefit of any third party. Upon any
termination or expiration of this Agreement, at the Company's request, the
Consultant shall, and shall cause its members, employees, agents and
representatives to, return to the Company all Proprietary Information provided
to the Consultant by the Company, its subsidiaries or affiliates and shall
destroy all other Proprietary Information then in its possession or subject to
its control and shall certify such destruction to the Company. Under no
circumstances shall the Consultant retain or permit its members, employees,
agents and
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representatives to retain any copies of materials containing Proprietary
Information, or any documents, notes, memoranda, studies, analyses or other
material reduced to a tangible form containing Proprietary Information. The
Consultant's obligations under this Section 5(a) shall survive any termination
or expiration of this Agreement forever.
The term "Proprietary Information" does not include information which (i)
is or becomes generally available to the public (other than as a result of a
disclosure by the Consultant, its members, employees, agents or
representatives), (ii) becomes available to the Consultant, its members,
employees, agents or representatives on a non-confidential basis from a source
other than the Company or one of its representatives which the Consultant
reasonably believes is entitled to disclose it, or (iii) was already in the
possession of the Consultant or its members, employees, agents or
representatives on a non-confidential basis prior to its disclosure to the
Consultant by the Company or one of its representatives.
(b) During the term of this Agreement and for one year thereafter, the
Consultant shall not, and shall cause its members, employees, agents and
representatives not to, without the express prior written consent of the
Company, directly or indirectly, (i) solicit or assist any third party in
soliciting for employment any person employed by the Company, its subsidiaries
or affiliates (collectively, "Employees"), or (ii) employ, attempt to employ or
materially assist any third party in employing or attempting to employ any
Employee. The Consultant's obligations under this Section 5(b) shall survive any
termination or expiration of this Agreement.
(c) The Consultant acknowledges that, in the event of any breach of this
Section 5 by it or its members, employees, agents and representatives, the
Company would be irreparably and immediately harmed and could not be made whole
by monetary damages. Accordingly, the Company, in addition to any other remedy
to which it may be entitled, shall be entitled to temporary, preliminary and
permanent injunctive relief to prevent breaches of the provisions of this
Section 5 and to compel specific performance of the provisions hereof. The
Company shall not be required to post a bond or other security in connection
with the granting of any such relief. These remedies shall not be deemed to be
exclusive remedies for a violation of this Agreement but shall be in addition to
all other remedies available to the Company at law or in equity.
(d) The Consultant shall be responsible for assuring compliance by its
members, employees, agents and representatives with the provisions of this
Section 5.
Section 6. Representations. The Consultant represents and warrants to the
Company that (i) it has full power and authority to enter into this Agreement
and to perform the services provided for hereunder; (ii) the performance of the
services does not, and will not, violate any law, rule, regulation, judgment or
order of any court binding on it or its members, employees, agents or
representatives and does not, and will not, in any way violate or conflict with
any agreement, understanding or arrangement to which it or its members,
employees, agents and representatives is a party or by which any of them may be
bound, including, without limitation, any non-competition or confidentiality
agreement; (iii) neither the Consultant nor its members, employees, agents and
representatives is in any way precluded from performing the Consulting
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Services; and (iv) this Agreement is a valid and binding Agreement of the
Consultant, enforceable against it in accordance with its terms.
Section 7. Severability. The invalidity of any portion hereof shall not
effect the validity, force or effect of the remaining portions hereof. If it is
ever held that any restriction hereunder is too broad to permit enforcement of
such restriction to its fullest extent, each party agrees that a court of
competent jurisdiction may enforce such restriction to the maximum extent
permitted by law.
Section 8. Benefits of Agreement. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective executors,
administrators, successors and assigns. This Agreement may not be assigned by
any party hereto without the prior written consent of the other party. Any
assignment or purported assignment by the Consultant in violation of this
Section 8 shall be null and void.
Section 9. Entire Agreement. This Agreement shall constitute
the entire agreement among the parties with respect to the matters covered
hereby and shall supersede all previous written, oral or implied agreements and
understandings among the parties with respect to such matters.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New Jersey
without reference to the choice of law principles thereof. Each of the parties
hereto irrevocably submits to the non-exclusive jurisdiction of the courts of
the State of New Jersey and the United States District Court for the District of
New Jersey for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 11. Amendment and Modifications. This Agreement may only be amended
or modified in writing signed by the party against whom enforcement of such
amendment or modification is sought.
Section 12. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, by
facsimile or sent by certified, registered or express air mail, postage prepaid,
and shall be deemed given when so delivered personally, or by facsimile, or if
mailed, five days after the date of mailing, as follows:
If to the Company: Xxxxx Communications, Inc.
000 Xxxxx XxXxxxx Xxxxxx
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Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, III
If to Consultant: Xxxxxx & Company, L.L.C.
0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
or at such other addresses as shall be furnished in writing to the other party
hereto.
Section 13. Titles and Headings. The headings in this Agreement are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
[Signature page immediately follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXX COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXXXX III
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Name: Xxxxxxx X. Xxxxxx, III
Title: Chairman of the Board, President
and Chief Executive Officer
XXXXXX & COMPANY, L.L.C.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Member
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