CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
this 1st day of January, 1997, by and between Foilmark, Inc., a Delaware
corporation (the "Company") having a place of business at 0 Xxxxxxx Xxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 and Xxxxxx Xxxxxxxx ("Consultant"), an
individual having an address of 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Consultant is presently employed by WestFoils, Inc., a California
corporation, and a wholly-owned subsidiary of Corporation, and
WHEREAS, the term of employee's Employment Agreement runs through December
31, 1998, and
WHEREAS, Consultant and Company have agreed to early termination of the
Employment Agreement and the substitution of this Consulting Agreement in place
thereof, and
WHEREAS, for reasons of personal health, Consultant wishes to relocate his
principal residence from California to Texas, and
WHEREAS, the Company is desirous of retaining the services of Consultant
to advise it in connection with its sales management and strategy and to
continue to generally supervise the WestFoils, Inc. operation.
NOW, THEREFORE, in consideration of the promises and agreements herein
contained and for other good and valuable consideration, the receipt whereof is
hereby acknowledged, it is hereby agreed as follows:
1. Termination of Employment Agreement. Effective December 31, 1996, that
certain Employment Agreement between the said WestFoils, Inc. and the Consultant
is hereby terminated and neither party shall have any further obligation
thereunder, except that said WestFoils, Inc. shall be obligated to pay the
additional compensation referred to in paragraph 4(b) of said Employment
Agreement.
2. Engagement. Corporation hereby engages Consultant to perform the duties
and to provide the services described in this Agreement upon the terms and
conditions set forth herein and the Consultant hereby accepts such engagement.
3. Term. The Consultant's services will commence upon the date hereof and
unless extended or earlier terminated, as hereinafter provided, will continue in
effect until December 31, 1998 (the "Termination Date").
4. Duties. The Consultant will provide advise to the Company in
conjunction with sales management, strategic sales objectives, general
supervision of its WestFoils subsidiary, including the attendance at sales and
other meetings requested by the Company from time to time, and such further
consulting services as the Company may request. The Company acknowledges that
Consultant will not be obligated in any monthly period to provide more than
sixty (60) hours of consulting services, pursuant to this Agreement. The Company
acknowledges that Consultant intends to relocate his principal residence from
California to Texas and, as a result, will not be in a position to provide
day-to-day supervision of its WestFoils, Inc. subsidiary. Consultant agrees to
devote at least one (1) week per month to the supervision of the business and
affairs of WestFoils, Inc.
5. Compensation. For all services rendered hereunder, Company agrees to
pay to Consultant, an amount equal to fifty percent (50%) of the average
compensation payable to Consultant pursuant to his Employment Agreement for the
years 1995 and 1996, including any additional compensation paid or earned by the
Consultant pursuant to paragraph 4(b) of the said Employment Agreement. Such
salary shall be paid in equal bi-weekly installments, the first such installment
to be paid on January 10, 1997. It is understood and agreed that the first and
subsequent payments shall be subject to adjustment to reflect any additional
compensation to which Consultant is otherwise entitled pursuant to paragraph
4(b) of his Employment Agreement when that amount is, in fact, calculated.
Consultant will be entitled to participate in and receive the fringe benefits
offered by the Company to its senior executives.
6. Expenses. Consultant shall be reimbursed on a monthly basis for all
reasonable out-of-pocket travel and telephone expenses incurred by Consultant in
connection with the business of the Company, provided that Consultant provides
the Company with receipt detailing any such expenditures. The Company agrees to
continue any existing lease or to lease or purchase a new automobile for use by
the Consultant in connection with the business of the Company. Maintenance,
insurance and operating expenses shall be paid by the Company or, if paid by the
Consultant, shall be reimbursed by the Company upon presentation of expense
vouchers. This automobile shall be in accordance with the Company's standard
formula and policy for employee automobiles, but shall be at least comparable to
the one presently used by the Consultant. Consultant agrees that except that at
the request of the Company he will not incur any unreasonable out-of-pocket
expenses in connection with any one trip or undertaking.
7. Consultant Responsibilities. The Consultant shall be responsible for
paying all required taxes withholding any amounts required by Federal or state
law for maintaining his own insurance, including, without limitation, Federal
income taxes, Social Security, state tax and other state requirements. The total
cost to the Company's engagement of the Consultant to provide the services
contemplated hereunder shall be the compensation set forth in Section 5 hereof.
8. Termination.
a. The Company may terminate this Agreement: (i) upon Consultant's death;
(ii) at any time, for (A) Consultant's willful failure or refusal to
substantially perform his obligations under this Agreement or other acts or
omissions constituting gross neglect or dereliction of his duties hereunder, or
(B) fraud, dishonesty or other acts or omissions constituting a crime involving
moral turpitude by Consultant, or (iii) upon Consultant's disability, subject to
the provisions of Paragraph 10. Termination under subsection 8(a)(ii) of this
Agreement shall not operate as waiver of the rights and remedies available to
the Company under law.
b. Consultant may terminate this Agreement: (i) at any time, for cause,
upon written notice of willful failure or refusal of the Company to
substantially perform its obligations under this Agreement; (ii) upon
Consultant's disability subject to the provisions of Paragraph 9. Termination
under this provisions shall not operate as a waiver of the rights and remedies
available to the Employee under law.
c. In the event of termination of this Agreement for any reason, in
addition to the other payments that may be required hereunder, the Company shall
be obligated to pay Consultant or his estate, as the case may be, all salary and
other compensation earned or accrued up to the date of termination. In the event
of termination of employment resulting from the Company's willful failure or
refusal to substantially perform its obligations under this Agreement, the
Consultant shall receive the total compensation and other benefits under this
Agreement through December 31, 1998 as liquidated damages.
d. In the event of the death of the Consultant, all salary, bonus or other
payments (if any) due under this Agreement shall be payable to Consultant's
estate.
9. Death. In the event of Consultant's death during the term hereof,
Consultant's legal representative shall be entitled to receive the compensation
due Consultant through the last day of the calendar month in which his death
occurred.
10. Disability. The Company or Consultant shall have the right to
terminate this Agreement, if Consultant shall be ill or so disabled as to
substantially impair his ability to discharge his obligations under this
Agreement for a period of four (4) successive months or eight (8) months in the
aggregate during the term hereof. The right to terminate this Agreement, if
because of disability, to be effective, must be exercised while Consultant's
disability continues.
11. Disclosure of Information.
a. For purposes of this Agreement, Proprietary Information is all
information utilized by the Company, and its Affiliates in their business.
Proprietary Information shall not include information which (i) is now or
hereafter in the public domain, (ii) was known to Consultant, other than as a
result of his ownership or employment by the Company, prior to the date hereof,
or (iii) is disclosed to Consultant by a third party not bound by any duty of
confidentiality to the Company. Proprietary Information shall specifically (but
not exclusively) include the following: the identification of all customers,
suppliers, products, or employees; all contracts; all financial affairs; all
business records or reports; all inventions, trade secrets, processes, or
methods of design, distribution, procurement or manufacturer. Proprietary
Materials shall mean all documents, papers, or other materials containing
Proprietary Information.
b. Consultant agrees that any Proprietary Information which Consultant
obtains, develops, or otherwise acquires in the course of the performance of his
duties hereunder shall be deemed to be confidential in character. Consultant
will not use any Proprietary Information or disclose it to any other party at
any time, except in the ordinary course of his duties with the Company or with
the written consent of the Board of Directors of the Company or as may be
required under any state or federal law, rule or regulation or by a court of
competent jurisdiction. This restriction shall apply during the period of this
Agreement and thereafter.
c. All Proprietary Materials shall be the exclusive property of the
Company and its Affiliates. Upon termination of this Agreement for any reason
whatsoever, Consultant agrees to not take any Proprietary Materials with him,
and to turn over to the Company all Proprietary Materials in his possession and
control.
d. This paragraph shall be binding upon Consultant's heirs, successors,
and legal representatives.
12. Inventions.
a. Any and all inventions, products, improvements, processes,
manufacturing methods or techniques, formulas, designs or styles (collectively
hereinafter referred to as "inventions"), made, developed or created by
Consultant (alone or in conjunction with others, during regular hours of work or
otherwise) during the term of this Agreement which may be directly or indirectly
useful in, or relate to, any business of the Company or its Affiliates or tests
being carried on by them, shall be the Company's exclusive property and at all
times shall be made available to the Board of Directors of the Company or such
persons as may be so designated by the Board of Directors.
b. Consultant will, upon the Company's request, execute any documents
reasonably necessary or advisable in the opinion of the Company's counsel to
direct issuance of patents to the Company or its Affiliates with respect to such
inventions as are to be the Company's exclusive property under this section or
to vest in the Company or its Affiliates title to such inventions, the expense
of securing any patents, however, to be borne by the Company.
c. Consultant will keep confidential and will hold for the Company's and
its Affiliates' sole benefit any invention which is to be theirs exclusively
under this section for which no patent is issued.
d. This nondisclosure provisions contained in Paragraph 12 of this
Agreement shall specifically apply to said Inventions.
13. Non-Competition. Consultant recognizes that the services to be
rendered by his pursuant to the terms of this Agreement are special, unique and
of an extraordinary character. Consultant therefore agrees that during the term
of this Agreement and for three (3) years following the date of termination,
Consultant agrees that he will not, directly or indirectly, alone or as a member
of a partnership or as an officer, director, stockholder, agent or employee of
any other corporation:
a. Intentionally do any act which is likely or intended to impair the
business or good will of the Company or its Affiliates.
b. Intentionally do any act or thing which is likely or intended to
deprive the Company or its Affiliates of the goodwill of suppliers, customers,
employees and others having business relations.
c. Solicit the employment of or otherwise induce any person who is
currently employed by the Company or its Affiliates to leave the Company.
d. Solicit sales of products of the type sold by the Company and its
Affiliates from any present or former customers of the Company or its
Affiliates.
e. Engage in competition with the business of the Company or its
Affiliates.
f. Consultant understands and agrees that the covenants made by him in
paragraph 11 through 13 of this Agreement are being made in view of the unique
and essential nature of the services Consultant is to perform hereunder and the
irreparable injury that would befall the Company and its Affiliates should
Consultant compete with or serve a competitor of the Company or its Affiliates.
14. Affiliates of the Company. "Affiliates" shall mean Foilmark, Inc. and
its U.S.-based subsidiaries which are controlled or under common control by
Foilmark.
15. No Prior Restrictions. Consultant warrants that he is not subject to
any restrictive covenants or non-disclosure agreements with any former employers
or other third parties that will in any way interfere with his performance under
this Agreement, and agrees to indemnify the Company and its Affiliates from any
such claims.
16. Effect of Waiver. The waiver of either party or a breach of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach thereof.
17. Binding/Assignment. This Agreement shall be binding upon Consultant,
his heirs, executors, administrators and legal representatives. The rights and
benefits of the Company under this Agreement shall be transferable, and all
covenants and agreements hereunder shall inure to the benefit of an be
enforceable by or against its successors and assigns. However, such transfer
shall not relieve the Company of any liability under the terms of the Agreement.
18. Notice. Any notice required or permitted to be given under this
Agreement shall be given in writing and sent by certified or registered mail or
delivered in person; in the case of the Company, at Foilmark, Inc.'s offices in
Melville, New York, and in the case of Consultant to Consultant's residence as
indicated in the Company records, or to such other address as the parties hereto
may hereafter designate in writing.
19. Entire Agreement. This Agreement contains the entire agreement between
the parties respecting the engagement of Consultant by the Company and
supersedes any and all prior employment agreements existing between Consultant
and the Company, whether oral or written, and shall govern all subsequent
relationships between them. This Agreement may be changed only by an agreement
in writing signed by the party against whom enforcement of any change is sought.
20. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts. In the event any provision of this Agreement is
invalid, illegal or unenforceable for any reason, such provision shall be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting or impairing the remainder of such provision or any other
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first-above mentioned.
FOILMARK, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx., President
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Consultant
