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EXHIBIT 10.01
EMPLOYMENT/CONSULTING AGREEMENT
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AGREEMENT made this 20th day of July, 1995, by and between UDI
CORP. and UDI II CORP., both Massachusetts corporations having usual places of
business in Springfield, Hampden County, Massachusetts, hereinafter called
"Company" and XXXXXXXX X. XXXXX, residing at 00 Xxxxx Xxxx Xxx, Xxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, hereinafter called "Employee" and/or BUYING GROUP
SERVICES, INC. a Delaware Corporation, hereinafter called "Consultant".
WHEREAS, Company conducts a business engaging in the
collective purchasing of office products for its members; and
WHEREAS, Employee/Consultant desires to become a sales
consultant to the Company in its business under certain terms and conditions;
and
WHEREAS, Company desires to utilize Employee's/Consultant's
services in its business.
NOW, THEREFORE, in consideration for the mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Company hereby agrees to appoint and retain
Employee/Consultant as a sales consultant and representative for a period of
eight (8) years from the date of this Agreement. Employee's/Consultant's duties
shall be to sign-up dealers and members under the Company's purchasing program.
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Employee/Consultant shall work under the direction
of the Board of Directors and shall discharge such duties as the Board shall
from time to time reasonably require.
2. Employee/Consultant agrees that he will devote his time and
efforts on behalf of Company and shall serve diligently and according to his
best abilities in all respects and shall generally do all things for the best
interest of Company that are usually done by persons occupying similar
positions.
3. As part of this Agreement, Employee/Consultant shall have
as his exclusive sales territory the following states: New York, New Jersey,
Pennsylvania, Washington, Oregon and Idaho. Employee/Consultant shall work
primarily on New York, New Jersey, and Pennsylvania and will not start work on
the Washington, Oregon and Idaho territory until a majority of the major
customers in the New York, New Jersey and Pennsylvania areas have been
contacted.
4. As compensation for the work to be performed as sales
representative, Employee/Consultant shall be entitled to receive one-half (?) of
all revenues received by the Company from dealer members signed up by
Employee/Consultant as of January 1, 1993. The revenues shall include but not be
limited to administration fees, fees generally, catalog fees, etc.
In addition, the Employee/Consultant shall receive an
annual retainer of $25,000.00 from the date hereof through February, 1994.
Commencing on March 1, 1994 the annual retainer shall be increased to $50,000.00
per year. Said retainer shall be paid monthly and in no event shall
said annual retainer be less
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than the highest paid representative employee on the payroll of the company from
time to time. This retainer shall commence upon the execution of this Agreement.
As additional remuneration, the Employee/Consultant shall also
be entitled to a secretary at UDI to perform secretarial duties and assist
Employee/Consultant in his sales effort, including the making of appointments
and the follow-up required.
As additional consideration the Employee/Consultant shall be
entitled to all travel and other expenses directly related to his duties as a
sales representative, however, said travel expenses shall be limited to
$25,000.00 annually unless approved by the Company's President.
As additional consideration the Employee/Consultant shall be
allowed to maintain an office away from the Company and the Company will be
responsible for equipping the office with such machines and furniture as are
necessary, including telephone, fax machine, desks, chairs, etc. The Company
will not be responsible for any personnel hired to staff this office. Any
additional personnel, including sales and clerical personnel shall be paid by
the Employee/Consultant at no cost to the Company.
Employer shall elect to give employee, including and without
limitation, health, major medical insurance, disability insurance, if available,
paid vacation and disbursements for all reasonable and necessary business
expenses including disbursements for employees automobile expenses.
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5. Employee/Consultant shall be allowed to make sales in
territories other than the exclusive territories listed above. In the event that
a sale is made in a territory other than the exclusive territories listed above,
the commission to be earned by the Employee/Consultant shall be reduced by that
commission which is normally due and paid to the area representative.
6. It is agreed and understood that in the event a wholesaler
to UDI leaves the program and does not make payments to UDI pursuant to their
agreement, the payments due Employee/Consultant as set forth in paragraph "4"
herein shall be reduced by the portion that UDI is not paid. The
Employee/Consultant agrees that if payment is not made by the wholesaler to UDI,
UDI is not responsible for the compensation to Employee/Consultant.
7. Nothing contained in this Agreement shall prohibit
Employee's/Consultant's receipt of any distributions which may be made to him as
a shareholder of either or both corporations for whom he is employed.
8. A. The parties further agree that this Agreement shall
remain in force for a term of eight (8) years, and shall be renewed
automatically on an annual basis thereafter, unless sooner terminated by the
Company for cause, it being expressly understood that gross misfeasance or gross
malfeasance on the part of Employee/Consultant, dishonesty, conviction of any
felony, the inability of employee to perform his duties by reason of extended
disability in excess of six (6) months and/or breach of any provision of this
Agreement by Employee/Consultant shall be due cause
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for dismissal. In the event of any such cause, the Company may
terminate this Agreement by furnishing to Employee/Consultant a ninety (90) day
notice in writing by certified mail, provided, however, that notwithstanding
anything else contained herein to the contrary, Employee/Consultant shall
continue to receive the compensation as set forth in paragraph 4 for a period of
ninety (90) days following the effective date of termination for cause. Except
for termination for cause, as aforesaid, and except for Company's termination
rights contained in paragraph 7(A), the said Agreement shall continue for the
full term hereof and for such additional term as the parties may mutually agree
upon.
B. Disability shall be defined as Employee/Consultant being
unable to perform his usual and customary duties hereunder for a period in
excess of six (6) consecutive months.
9. Employee/Consultant covenants and agrees that, (i) in the
event of the termination of said employment for cause, or in the event that
Employee/Consultant voluntarily leaves the Company, other than as a result of a
breach of this Agreement by Company, he will not render any service either as an
employee, independent contractor or as an owner in any other business which is
competitive to the business being conducted by Company. This restrictive
covenant shall remain in full force and effect for a period of one (1) year from
the date of termination of employment and shall apply to any territory where
Company then conducts business.
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In the event of any violation of the provisions of this
paragraph, Company shall be entitled, in addition to any other rights or
remedies which it may have, to maintain an action for damages and permanent
injunctive relief, and in addition, shall be entitled to preliminary injunctive
relief, it being agreed by the parties that as a result of any such breach by
Employee/Consultant, Company would suffer substantial and irreparable damages,
the amount of which would be impossible to ascertain in advance.
It is specifically understood and agreed that provisions of
this clause shall not apply in the event that Employee/ Consultant terminates
his position as a result of a breach of Agreement by Company.
If, in any respect, any provision of this contract, in whole
or in part, shall prove to be invalid for any reason, such invalidity shall only
affect the part of such provisions which shall be invalid and in all other
respects this contract shall stand as if such invalid provisions had not been
made, and it shall fail to the extent, and only to the extent, of such invalid
provisions, and no other portion or provisions of this contract shall be
invalidated, impaired, or affected thereby.
It is intended by the parties that the foregoing restrictions
shall be liberally construed in order to protect to a maximum degree the good
will and business of the Company, and, in the event that any court of competent
jurisdiction shall determine that the restrictions herein set forth are
unreasonable or
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invalid, either as to length of time or area, or for any other
reason, then the parties agree that what shall constitute a reasonable area or a
reasonable time shall be determined by said Court.
10. Any controversy or claim arising out of or related to this
Agreement including whether or not Employee/Consultant has committed an offense
which is cause for termination, or its breach shall be settled by arbitration in
accordance with the governing rules of the American Arbitration Association to
be held in Springfield, Massachusetts. All costs and expenses of the
arbitration, including the attorney fees for both parties, shall be paid by the
Company. A judgment upon the award rendered may be entered in any court of
competent jurisdiction. If the parties cannot agree upon a single arbitrator,
then they shall each select an arbitrator who will jointly select a third. The
successful party to an arbitration proceeding shall be entitled to collect his
reasonable attorney's fees and costs in addition to any award rendered pursuant
to such arbitration proceeding.
11. This Agreement is to be construed under the laws of the
Commonwealth of Massachusetts, and no changes or additions to same shall be made
except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties have set their hands and seals
to this instrument and to one other instrument of like tenor, both being
considered original instruments, the day and year first above written.
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UDI CORP.
BY/s/ Xxxxxx Xxxxxxxxxxx
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XXXXXX XXXXXXXXXXX
UDI II CORP.
BY/s/ Xxxxxx Xxxxxxxxxxx
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XXXXXX XXXXXXXXXXX
BUYING GROUP SERVICES, INC.
BY/s/ Xxxxxxxx X. Xxxxx
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XXXXXXXX X. XXXXX, Secretary
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