CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of May 1, 1997 between Cable & Co.
Worldwide, Inc., a Delaware corporation (the "Company") having an office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Susquehana Holding Corp., a Delaware
Corporation, having an office at 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000
("Susquehana" or the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain Consultant to provide the Company
with certain consulting services and Consultant is willing to provide such
consulting services, on the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
Section 1. Retention of Susquehana. The Company hereby retains and
engages Susquehana, and Susquehana hereby accepts such engagement, in each
case subject to the terms and conditions of this Agreement.
Section 2. Services.
(a) On the terms and subject to the conditions herein contained, the
Company hereby engages Consultant as a consultant, and Consultant hereby accepts
such engagement. Consultant's duties shall be to consult with the Board of
Directors and management of the Company, from time to time, as requested by the
Company with regard to operations, strategic planning and business development
including marketing of products and targeting of acquisitions for the Company
and such other aspects of the business of the Company as Consultant and the
Company may agree from time to time.
(b) In connection with any proposal made by Susquehana pursuant to this
Agreement, the Company and Susquehana acknowledge that the Company shall not be
obligated to accept such proposal or further obligate itself hereunder.
Section 3. Compensation.
(a) The Company shall pay to Susquehana $100,000 as compensation for
the services specified in Section 2 hereof. The Company acknowledges that it
does not currently have the financial ability to pay for Susquehana's services
in cash. Therefore, in lieu of such cash payment and in consideration of
services heretofore rendered, and to be rendered by Susquehana, pursuant to
this Agreement, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged by the Company, the Company,
concurrently with
the execution hereof, shall issue to Susquehana 500,000 shares (the "Shares")
of the Company's common stock, par value $0.01 per share (the "Common Stock").
Section 4. Assignability of Shares. The Shares have not been registered
under the Securities Act or any state securities law and shall not be
transferred, sold, assigned or hypothecated in violation thereof. If permitted
by the foregoing, any such transfer, sale, assignment or hypothecation shall be
effected by Susquehana by surrendering the Shares for assignment at the office
of the Company, accompanied by an opinion of counsel satisfactory to the Company
and its counsel, stating that such transfer does not violate the Securities Act
or any applicable state securities law.
Section 5. Non-Competition. Susquehana acknowledges that in the course of
its engagement it will become familiar with trade secrets and other confidential
information (collectively, "Confidential Information") concerning the Company
and that its services will be special, unique and extraordinary to the Company.
Subject to the limitations set forth herein, Susquehana agrees that during the
Term and for a period of one year thereafter it shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any business competing with the business of the Company as
such business exists within any geographical area in which the Company conducts
its business. In addition, Susquehana shall not solicit, interfere with or
conduct business with any vendors, customers or employees of the Company during
the term of this Agreement or for a period of one year after the termination
hereof. In the event the Company breaches any of its duties or obligations under
this Agreement, the Company agrees that Susquehana shall not be bound by the
provisions of this Agreement, except for the provisions of the immediately
following sentence. Susquehana agrees that it shall not disclose to any third
party any Confidential Information and shall not use any Confidential
Information for any purpose other than the performance of its duties under this
Agreement.
Section 6. Term.
(a) This Agreement shall be for a term of one (1) year commencing on the
date hereof.
Section 7. Representations and Warranties of Susquehana. Susquehana
represents and warrants to the Company that it is not acquiring the Securities
with a view to, or for resale in connection with, any distribution in violation
of the Securities Act of 1933, as amended.
Section 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless Susquehana and
its directors, officers and affiliates against any and all losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
and disbursements (and all actions, suits, proceedings and investigations in
respect thereof and any and all legal or other costs, expenses and disbursements
in giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation, the costs, expenses, and
disbursements, as and when
-2-
incurred, of investigating, preparing or defending any such action, proceeding
or investigation (whether or not in connection with litigation to which
Susquehana is a party), directly or indirectly, caused by, relating to, based
upon, arising out of or in connection with information provided by the Company
which contains a material misrepresentation or material omission in connection
with the provision of services by Susquehana under this Agreement; provided,
however, such indemnity agreement shall not apply to any portion of any such
loss, claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
Susquehana. The Company also agrees that Susquehana shall not have any
liability (whether direct or indirect in contract or tort or otherwise) to the
Company or to any person (including, without limitation, Company shareholders)
claiming through the Company for or in connection with the engagement of
Susquehana, except to the extent that any such liability results from
Susquehana's gross negligence or willful misconduct. This indemnification shall
survive the termination of this Agreement.
(b) Each party entitled to indemnification under this agreement (the
"Indemnified Party"), shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 8. Each Indemnified
Party shall furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and any litigation
resulting therefrom.
Section 9. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to the conflict of law principles thereof.
Section 10. Entire Agreement; Amendments. This Agreement contains the
entire agreement and understanding between the parties and supersedes and
preempts any prior understanding or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and Susquehana.
Section 11. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and shall be enforceable by Susquehana and the Company
and their respective successors and permitted assigns.
Section 12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed effective and given upon
actual delivery if presented
-3-
personally, one business day after the date sent if sent by prepaid telegram,
overnight courier service, telex or facsimile transmission or five business days
if sent by registered or certified mail, return receipt requested, postage
prepaid which shall be addressed to the following addresses:
If to the Company:
Cable & Co. Worldwide, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx, Executive Vice President
If to Susquehana:
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Section 13. Assignability. Except for the right of Susquehana to sell,
transfer or otherwise dispose of the Shares, neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or Susquehana without the prior
written consent of the other party hereto.
Section 14. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
Section 15. Section and Other Headings. The section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on May
1, 1997 as of the date first written above.
CABLE & CO. WORLDWIDE, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Vice President
Susquehana HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: President
-5-
