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Exhibit 10.9
SYMPOSIUM CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made and entered into as
of January 1, 1999, by and between Symposium Corporation, a Delaware
corporation (the "COMPANY"), and Executive Management Services ("CONSULTANT").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages Consultant as a consultant, and
Consultant hereby accepts such engagement.
(b) Consultant hereby agrees that all duties and responsibilities of
Consultant set forth in this Agreement shall be performed by Xxxxxx
Xxxxxxxx-Xxxxx ("XXXXXXXX-XXXXX").
(c) Xxxxxxxx-Xxxxx shall have the title of Chief Executive Officer.
(d) Xxxxxxxx-Xxxxx shall devote all of his business time, energy and
efforts to the business of the Company and will use his best efforts and
abilities faithfully and diligently to promote the Company's business
interests. Xxxxxxxx-Xxxxx'x duties and responsibilities shall be those incident
to those which are normally and customarily vested in the office of chief
executive officer of a corporation. In addition, Xxxxxxxx-Xxxxx'x duties shall
include those duties and services for the Company and its affiliates as the
Board shall, in its sole and absolute discretion, from time to time reasonably
direct which are not inconsistent with Xxxxxxxx-Xxxxx'x position described in
Section 1(c). Notwithstanding the foregoing, but subject to Section 1(e) of
this Agreement, Xxxxxxxx-Xxxxx shall be permitted to service on the Board of
Directors of, or in a similar capacity with, other Persons and to manage his
personal investments.
(e) For so long as Consultant is engaged by the Company, neither
Consultant nor Xxxxxxxx-Xxxxx shall, directly or indirectly, either as an
employee, employer, consultant, agent, investor, principal, partner,
stockholder (except as the holder of less than 5% of the issued and
outstanding stock of a publicly held corporation), corporate officer or
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition in any manner whatsoever
with the business of the Company Group, as such businesses are now or hereafter
conducted.
2. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
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"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Xxxxxxxx-Xxxxx, shall mean that, for physical
or mental reasons, Xxxxxxxx-Xxxxx is unable to perform the essential functions
of his duties under this Agreement for 60 consecutive days, or 90 days during
any one six month period. Xxxxxxxx-Xxxxx agrees to submit to a reasonable number
of examinations by a medical doctor advising the Company as to whether he shall
have suffered a disability and Xxxxxxxx-Xxxxx hereby authorizes the disclosure
and release to the Company and its agents and representatives all supporting
medical records. If Xxxxxxxx-Xxxxx is not legally competent, his legal guardian
or duly authorized attorney-in-fact will act in his stead for the purposes of
submitting him to the examinations, and providing the authorization of
disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Consultant's engagement with the Company, that:
(a) Consultant breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for the breaches of Sections 1(e), 6 or
7 of this Agreement, which cannot be cured and for which the Company need not
give any opportunity to cure); or
(b) Xxxxxxxx-Xxxxx commits any act of personal dishonesty, fraud,
embezzlement, breach of fiduciary duty or trust against the Company Group; or
(c) Xxxxxxxx-Xxxxx is indicted for, or convicted of, or pleads guilty or
nolo contendere with respect to, theft, fraud, a crime involving moral
turpitude, or a felony under federal or applicable state law; or
(d) Xxxxxxxx-Xxxxx commits any act of personal conduct that, in the
reasonable opinion of the Board, gives rise to any member of the Company Group
of a material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Xxxxxxxx-Xxxxx commits continued and repeated substantive violations of
specific written directions of the Board, which directions are consistent with
this Agreement and Xxxxxxxx-Xxxxx'x position as a senior or executive officer,
or continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
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3. COMPENSATION AND BENEFITS
For so long as Consultant shall be engaged by the Company as a consultant,
Consultant shall receive the compensation set forth in this Section 3.
(a) Consulting Fees. The Company shall pay Consultant consulting fees at
an annual rate of $250,000 through June 30, 1999 and $350,000 thereafter. The
Company may, but shall not be obligated to, increase the consulting fees from
time to time. The consulting fees shall be payable in installments in the same
manner and at the same times the Company pays salaries to executive officers of
the Company, but in no event less frequently than equal monthly installments.
(b) Expense Reimbursement. Consultant shall be entitled to reimbursements
from the Company for the reasonable out-of-pocket costs and expenses which
Consultant incurs in connection with the performance of Consultant's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor. Consultant shall also be reimbursed for the
cost of airfare for Xxxxxxxx-Xxxxx'x spouse for up to four roundtrip flights per
year from Europe to the United States.
(c) Benefit Plans. If an to the extent permitted by the relevant plan,
Xxxxxxxx-Xxxxx shall be entitled to participate in any pension, savings and
group term life, medical, dental, disability, and other group benefit plans that
the Company makes available to its employees generally.
(d) Vacation. Xxxxxxxx-Xxxxx shall be entitled to four weeks paid
vacation, which shall accrue in accordance with the Company's standard vacation
accrual policy.
(e) Automobile Allowance. Employer shall pay directly to Consultant a
$2,000 per month car allowance during the term of this Agreement or as provided
for in Section 5(a), whichever period lasts longer (the "CAR PAYMENTS").
(f) Disability. In the event of any Disability, if Consultant or
Xxxxxxxx-Xxxxx shall receive payments as a result of such Disability under any
disability plan maintained by the Company or from any government agency, the
Company shall be entitled to deduct the amount of such payments received from
base salary payable to Consultant during the period of such Disability.
(g) Withholding. The Company may deduct from any compensation payable to
Consultant (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of engagement) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
4. TERM OF ENGAGEMENT
Consultant's term of engagement pursuant to this Agreement shall commence
as of the date hereof and shall terminate on the earliest to occur of the
following (the "Date of Termination"):
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(a) upon the date set forth in a written notice of termination from
Consultant to the Company (which date shall at least 60 days after the delivery
of that notice); provided, however, that in the event Consultant delivers such
notice to the Company, the Company shall have the right to accelerate such
termination by written notice thereof to Consultant (and such termination by the
Company shall be deemed to be a termination of engagement pursuant to this
Section 4(a), and not a termination pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Xxxxxxxx-Xxxxx;
(c) upon delivery to Consultant of written notice of termination by the
Company if Xxxxxxxx-Xxxxx shall suffer a Disability;
(d) upon delivery to Consultant of written notice of termination by the
Company For Cause; or
(e) upon delivery to Consultant of written notice of termination by the
Company without cause.
It is understood that termination by the Company because Xxxxxxxx-Xxxxx
does not personally perform the services required of Consultant shall be
termination For Cause.
5. SEVERANCE COMPENSATION
(a) If Consultant's engagement is terminated pursuant to Section 4(e) (by
the Company without cause), the Company shall, for the two-year period
commencing on the Date of Termination, continue to (i) pay to Consultant
consulting fees at the rate in effect on the Date of Termination, (ii) pay for
Xxxxxxxx-Xxxxx'x (and his immediate family's) participation in group medical,
life, dental, disability and similar plans to the extent permitted by the plan,
and (iii) pay to Consultant the Car Payments.
(b) If Consultant's engagement is terminated for any reason other than by
the Company without cause, the Company shall pay to Consultant any unpaid
consulting fees through the Date of Termination. All rights and benefits which
Xxxxxxxx-Xxxxx or his estate may have under the Company's benefit plans in which
Xxxxxxxx-Xxxxx shall be participating at the date of termination of engagement
shall be determined in accordance with such plans.
(c) If Consultant's engagement is terminated by the Company pursuant to
Section 4(d) (by the Company For Cause), and subject to applicable law and
regulations, the Company shall be entitled to offset against any payments due
Consultant any loss or damage which the Company shall suffer as a result of the
acts or omissions of Consultant or Xxxxxxxx-Xxxxx giving rise to termination
under Section 4(d).
(d) Consultant acknowledges that the Company has the right to terminate
Consultant's engagement without cause and that such termination shall not be a
breach of this Agreement or any
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other express or implied agreement between the Company and Consultant.
Accordingly, in the event of such termination, Consultant shall be entitled
only to those benefits specifically provided in this Section 5, and shall not
have any other rights to any compensation or damages from the Company from
breach of contract.
(e) Consultant acknowledges that in the event of termination of
Consultant's engagement for any reason, Consultant shall not be entitled to any
severance or other compensation from the Company except as specifically
provided in this Section 5. Without limitation on the generality of the
foregoing, this Section supersedes any plan or policy of the Company which
provides for severance to its officers or Consultant, and Consultant shall not
be entitled to any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until one year from the Date of Termination:
(a) Neither Consultant nor Xxxxxxxx-Xxxxx will, directly or indirectly,
influence or attempt to influence any customer of the Company Group to reduce
or discontinue its purchases of any products or services from the Company Group
or to divert such purchases to any Person other than the Company Group.
(b) Neither Consultant nor Xxxxxxxx-Xxxxx will, directly or indirectly,
interfere with, disrupt or attempt to disrupt the relationship, contractual or
otherwise, between the Company Group and any of its respective suppliers,
principals, distributors, lessors or licensors; and
(c) Neither Consultant nor Xxxxxxxx-Xxxxx will, directly or indirectly,
solicit any employees of the Company Group to work for any Person.
7. CONFIDENTIALITY
Each of Consultant and Xxxxxxxx-Xxxxx agrees not to disclose or use at any
time (whether during or after Consultant's engagement with the Company) for its
or his own benefit or purposes or the benefit or purposes of any other Person
any trade secrets, information, data, or other confidential information
relating to customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, credit and financial data, financial
methods, plans, or the business and affairs of the Company Group generally,
provided that the foregoing shall not apply to information which is not unique
to the Company Group or which is generally known to the industry or the public
other than as a result of Consultant's breach of this covenant. Each of
Consultant and Xxxxxxxx-Xxxxx agrees that upon termination of Consultant's
engagement with the Company for any reason, it and he will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom, in any way relating to the
business of the Company Group except that it and he may retain personal notes,
notebooks, diaries, rolodexes and addresses and phone numbers. Each of
Consultant and Xxxxxxxx-Xxxxx further agrees that it and he will not retain or
use for its or his account at any time any trade names, trademark or
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other proprietary business designation used or owned in connection with the
business of any member of the Company Group.
8. MISCELLANEOUS
(a) Notices. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to the Company, to:
Symposium Corporation
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Operating Officer and Board of Directors
If to Consultant, to:
Consultant's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address fur further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
(d) Governing Law. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
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(e) Captions. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Symposium Corporation
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chief Operating Officer
Executive Management Services
By:
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Its:
This Agreement is executed by Xxxxxx Xxxxxxxx-Xxxxx
solely for purpose of making the agreements set forth
in Sections 1(e), 6 and 7.
/s/ Xxxxxx Xxxxxxxx-Xxxxx
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Xxxxxx Xxxxxxxx-Xxxxx
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(e) Captions. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Symposium Corporation
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chief Operating Officer
Executive Management Services
By:
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Its:
This Agreement is executed by Xxxxxx Xxxxxxxx-Xxxxx
solely for purpose of making the agreements set forth
in Sections 1(e), 6 and 7.
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Xxxxxx Xxxxxxxx-Xxxxx
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