10.4 The XxxxxxXxxxx.xxx Consulting Agreement
CONSULTING AGREEMENT
This Agreement is made effective as of November 26, 2000, by and between
xxxxxxxx.xxx Inc, of 0000 Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000, and the
XxxxxxXxxxx.xxx, Inc, of 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx,
00000.
In this Agreement, the party who is contracting to receive services shall be
referred to as "THAT", and the party who will be providing the services shall
be referred to as "TGG". TGG has a background in management services and is
willing to provide services to THAT based on this background. THAT desires to
have services provided by TGG.
Therefore, the parties agree as follows:
1. DESCRIPTION OF SERVICES. Beginning on January 01, 2001, TGG will provide
the following services (collectively, the "Services"): Provide Chief Executive
Officer and perform Chief Executive Officer services for THAT.
2. PERFORMANCE OF SERVICES. The manner in which the Services are to be
performed and the specific hours to be worked by TGG shall be determined by
TGG. THAT will rely on TGG to work as many hours as may be reasonably
necessary to fulfill TGG's obligations under this Agreement.
3. PAYMENT. THAT will pay a fee to TGG for the Services in the amount of
$240,000 until January 21, 2001. From January 22, 2001 THAT will pay a fee to
TGG for the Services in the amount of $264,000.00. These fees will be payable
in 52 equal bi-weekly installments of $4,615.39 and $5,076.93 respectively.
Should the relationship be severed for any reason by either party TGG will
receive a liquidated damages fee in the amount of $50,000 due and payable
within 10 days of contract termination. Further, all sums due and owing under
this agreement will be accelerated and paid at that time.
4. COMMISSION PAYMENTS. In addition to the payments under the preceding
paragraph, THAT will make commission payments to TGG based on the revenues of
THAT reaching a $10 million/year run rate in fiscal 2001 and/or on the closing
of acquisition of companies. For the purposes of this Agreement, acquisition
of companies means TGG will be paid a $40,000 one-time payment for any company
or group of companies with gross revenues in excess of $10,000,000 US. This
commission will be paid only one timer irrespective of how many companies are
purchased during the contract term. It is to be paid within 15 days after
closing of same or confirmation of the revenue run rate at the end of fiscal
2001.
a. Accounting. THAT shall maintain records in sufficient detail for
purposes of determining the amount of the commission. THAT shall provide to
TGG a written accounting that sets forth the manner in which the commission
payment was calculated.
b. Right to Inspect. TGG, or TGG's agent, shall have the right to inspect
THAT's records for the limited purpose of verifying the calculation of the
commission payments, subject to such restrictions as THAT may reasonably
impose to protect the confidentiality of the records. Such inspections shall
be made during reasonable business hours as may be set by THAT.
5. SUPPORT SERVICES. THAT will provide support services, including office
space and secretarial services, for the benefit of TGG.
6. TERM/TERMINATION. This Agreement shall terminate automatically on
January 01, 2003.
7. RELATIONSHIP OF PARTIES. It is understood by the parties that TGG is an
independent contractor with respect to THAT, and not an employee of THAT.
8. EMPLOYEES. TGG's employees, if any, who perform services for THAT under
this Agreement, shall also be bound by the provisions of this Agreement.
9. ASSIGNMENT. TGG's obligations under this Agreement may not be assigned
or transferred to any other person, firm, or corporation without the prior
written consent of THAT.
10. NOTICES. All notices required or permitted under this Agreement shall be
in writing and shall be deemed delivered when delivered in person or deposited
in the Untied States mail, postage prepaid, addressed as follows:
IF for THAT:
xxxxxxxx.xxx, Inc.
Xxxxxx Xxxxxxx
Chief Financial Officer
0000 Xxxxx 000
Xxxxxxxxxxx, XX 00000
Page 2
IF for TGG
The GerardGroup, Inc.
Xxxxxx X. Xxxxxx
President
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxx, XX 00000
Such address may be changed from time to time by either party by providing
written notice to the other in the manner set forth above.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
12. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
13. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Agreement is invalid or unenforceable, but that by limiting such
provision it would be come valid and enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
14. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation
of that party's right to subsequently enforce and compel strict compliance
with every provision of this Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Pennsylvania.
Party receiving services: xxxxxxxx.xxx, Inc.
By:/s/Xxxxxx Xxxxxxx
-----------------
Xxxxxx Xxxxxxx,
Chief Financial Officer
Party providing services: The XxxxxxXxxxx.xxx, I
By:/s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx
President
