EXHIBIT 10.30
CONSULTING AGREEMENT
This AGREEMENT ("Agreement") is made as of November 15, 2000 by and
between STANDARD AUTOMOTIVE CORPORATION, a Delaware corporation ("Company"), and
Xxxxxxx Xxxxxx ("Consultant").
Recitals:
A. The Company wishes to avail itself of the Services of the Consultant,
and the Consultant wishes to provide his services to the Company.
B. In consideration of the premises and other good and valuable
consideration, receipt of which is acknowledged, the parties agree as follows:
I. Engagement as a Consultant. The Company engages the Consultant as a
consultant to render services and advice to the Company during the term
established in this Agreement.
II. Term. Subject to the terms and conditions of this Agreement, the
Consultant's engagement by the Company shall be for an initial term of 18
months, commencing on December 1, 2000, and expiring on the close of business on
May 31, 2002 (the "Term"), subject to 12 month extensions on the agreement of
the parties.
III. Duties and Responsibilities.
A. It is understood and agreed that the Consultant is an
independent contractor and that the Consultant shall perform his duties in
compliance with and subject to the direction of, and shall engage in such
assignments as are assigned to him from time to time by the Board of Directors
("the Board") of the Company.
B. The Consultant shall, for all purposes including all applicable
federal, state and local income and employment taxes and withholding
regulations, be deemed to be an independent contractor. The Consultant shall
file all tax returns and pay all relevant taxes to federal and state and local
jurisdictions in respect of his consulting fee and as though he were an
independent contractor.
C. The Consultant shall initially serve as Director of Operations
of the Company with day to day responsibility and authority for management of
the Company's business and affairs, subject to the direction of the Board
("Board").
D. Subject to the authority of the Board to modify the duties and
responsibilities of the Consultant, the Consultant's powers, duties and
responsibilities shall initially consist of such powers, duties and
responsibilities reasonably associated with the position of Director of
Operations of a company of the size and nature of the Company. The Consultant
shall report to the Board at such time and in such detail as the Board shall
reasonably require. Notwithstanding anything contained herein to the contrary,
the Consultant shall not be required to perform any act which would constitute
or require the violation of any federal, state or local law, rule, regulation,
ordinance or the like.
E. The Consultant shall devote not less than forty (40) hours per
week to carrying out his duties hereunder and to the business of the Company,
and during the Term the Consultant agrees that he will (i) devote his best
efforts and all his skill and ability to the performance of his duties
hereunder; (ii) carry out his duties in a competent and professional manner;
and (iii) generally promote the interests of the Company.
F. The Consultant's services initially shall be performed in New
York City subject to necessary travel requirements of the Company.
IV. Consulting Fee.
As compensation for his Services, the Company shall pay to
Consultant a monthly fee of $20,000 with the first payment due upon and
beginning the effective date of December 1, 2000, and thereafter for each month
ending May 31, 2002, ("the Cash Fee") which shall be paid within 5 business days
of the month's commencement.
V. Termination.
The Consultant and the Company shall each have the right to
terminate this Agreement at any time after the first twelve months of the
contracted Term, upon thirty (30) days' prior written notice, in which event
Consultant's right to receive the "Cash Fee" provided for shall terminate at the
end of such thirty day (the "Termination Date").
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VI. Protection of Confidential Information.
A. The Consultant agrees that his position with the Company places
him in a position of confidence and trust with the employees and customers of
the Company and its subsidiaries and affiliates (collectively, "SAC").
Consequently, the Consultant agrees that it is reasonable and necessary for the
protection of the goodwill and business of SAC that the Consultant make the
covenants contained herein. Accordingly, the Consultant agrees that during the
period of the Consultant's engagement and for the period of one year immediately
following the termination of his engagement, he shall not, except on behalf of
SAC, directly or indirectly:
1. attempt in any manner to solicit from any customer or
supplier business of the type performed for or by SAC or to persuade any
customer or supplier of SAC to cease to do business or to reduce the amount of
business which any such customer or supplier has customarily done or
contemplates doing with SAC; or
2. employ as an employee or retain as a consultant, or persuade
or attempt to persuade any person who is at the Termination Date or at any time
during the preceding year was, or in the six (6) months following such
termination becomes, an Consultant of or exclusive consultant to SAC to leave
SAC or to become employed as an employee or retained as a consultant by anyone
other than SAC.
As used in this paragraph 6, the term: "customer" and "supplier"
shall mean any person or entity that is a customer or supplier of SAC at the
Termination Date, or at any time during the preceding year was, or in the six
(6) months following such termination becomes, a customer or supplier of SAC, or
if the Consultant's engagement shall not have terminated, at the time of the
alleged prohibited conduct.
B. The Consultant agrees that he will not at any time (whether
during the Term or after termination of this Agreement), disclose to anyone, any
confidential information or trade secret of SAC or utilize such confidential
information or trade secret for his own benefit, or for the benefit of third
parties, and all memoranda or other documents compiled by him or made available
to him during the Term pertaining to the business of SAC shall be the property
of SAC and shall be delivered to SAC on the Termination Date or at any other
time, as reasonable, upon request. The term "confidential information or trade
secret" does not include any information which (i) becomes generally available
to the public other than by breach
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of this provision or (ii) the Consultant learns from a third party who is not
under an obligation of confidence to SAC or (iii) is required to be disclosed by
law or legal process.
C. If the Consultant commits a breach or threatens to commit a
breach of any of the provisions of paragraphs 6(a) or (b) SAC shall have the
right to have the provisions of this Agreement specifically enforced by any
court having jurisdiction without being required to post bond or other security
and without having to prove the inadequacy of any other available remedies, it
being acknowledged and agreed that any such breach will cause irreparable injury
to SAC and that money damages will not provide an adequate remedy to SAC. In
addition, SAC may take all such other actions and remedies available to him in
law or in equity and shall be entitled to such damages as he can show he has
sustained by reason of such breach.
D. The parties acknowledge that the type and periods of restriction
imposed in the provisions of paragraphs 6(a) and (b) are fair and reasonable
and are reasonably required for the protection of SAC and the goodwill
associated with the business of SAC; and that the time, scope, geographic area
and other provisions of this paragraph 6 have been specifically negotiated by
sophisticated parties and accordingly it is reasonable that the restrictive
covenants set forth herein are not limited by narrow geographic area. If any of
the covenants in paragraphs 6(a) or (b) or any part hereof, is construed to be
invalid or unenforceable, it is the intention of the parties that the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect, without regard to the invalid portions. If any of the covenants
contained in paragraphs 6(a) or (b), or any part hereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination should
reduce the duration and/or areas of such provision such that, in its reduced
form, said provision shall then be enforceable. The parties intend to and confer
jurisdiction to enforce the covenants contained in paragraphs 8(a) and (b) upon
the courts of any jurisdiction within the geographical scope of such covenants.
In the event that the courts of any one or more of such jurisdictions shall hold
such covenants wholly unenforceable by reason of the breadth of such time, scope
or geographic area, it is the intention of the parties that such determination
not bar or in any way affect SAC's right to the relief provided above in the
courts of any other jurisdiction within the geographical scope of such
covenants, as to breaches of such covenants in such other respective
jurisdictions, the above covenants as they relate to each jurisdiction being,
for this purpose, severable into diverse and independent covenants.
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VII. Enforceability. The failure of either party at any time to require
performance by the other party of any provision hereunder shall in no way affect
the right of that party hereafter to enforce the same, nor shall it affect any
other party's right to enforce the same, or to enforce any of the other
provisions in this Agreement; nor shall the waiver by either party of the breach
of any provision be taken or held to be a waiver of any subsequent breach of
such provision or as a waiver of the provision itself.
VIII. Assignment. This Agreement is binding on and is for the benefit of
the parties and their respective successors, heirs, executors, administrators
and other legal representatives.
IX. Severability. In the event any provision of this Agreement is
found to be void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as though the void or unenforceable part had been
severed and deleted.
X. Notice. Any notice, request, instrument or other document to be
given under this Agreement by either party to the other shall be in writing and
shall be deemed effective (a) upon personal delivery, if delivered by hand, (b)
three (3) days after the date of deposit in the mails, postage prepaid, if
mailed by certified or registered mail, or (c) on the next business day, if sent
by a prepaid overnight courier service, and in each case addressed as follows:
If to the Consultant:
Xxxxxxx Xxxxxx
00 Xxxx 00xx Xx. Xxx. 0X
Xxx Xxxx, XX 00000
If to the Company:
Standard Automotive Corporation
000 Xxxxx-Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner provided for
giving notice.
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XI. No Conflict. The Consultant represents and warrants that he is not
subject to any agreement, instrument, order, judgment or decree of any kind, or
any other restrictive agreement of any character, which would prevent him from
entering into this Agreement or which would be breached by the Consultant upon
the performance of his duties pursuant to this Agreement.
XII. Miscellaneous.
A. The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
B. 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.
C. This Agreement, represents the entire agreement between the
Company and the Consultant with respect to the subject matter hereof, and all
prior agreements relating to the engagement of the Consultant, written or oral,
are nullified and superseded hereby.
D. This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by both parties to this
Agreement, and any provision hereof may be waived only by an instrument in
writing signed by the party or parties against whom or which enforcement of such
waiver is sought.
SIGNATURE PAGE TO FOLLOW
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The parties have executed this Agreement as of the date first
written above.
STANDARD AUTOMOTIVE CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
Consultant
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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