Exhibit 10.6
MANAGEMENT CONSULTING AGREEMENT
This MANAGEMENT CONSULTING AGREEMENT (the "Agreement"),
dated as of February 1, 2001, is entered into by and between
0xxxxxxxx.xxx, Inc., a Delaware corpora tion, having an
address at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx
00000 (herein after referred to as the "Company") and
Catalyst Financial LLC, having an address at 00 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred
to as the "Consultant").
WHEREAS, Company deems it useful and in the best
interest of the Company to have the benefit of Consultant's
services and experiences as a consultant; and
WHEREAS, Consultant has indicated its willingness to
provide its services and experiences as a consultant to
Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the
parties agree as follows:
1. Engagement. Company hereby retains the consulting
services of Consultant, and Consultant hereby agrees to do
and perform consulting services, upon the terms and condi
tions set forth herein.
2. Duties, Extent of Service. During the Consulting
Term (as hereinafter defined) Consultant shall perform and
discharge well and faithfully the duties which may be
assigned to Consultant from time to time by the Company in
connection with the conduct of its business, and Consultant
shall be available by telephone or in person at reasonable
times to executive officers of the Company. Such services
may include but are not limited to manage ment consulting
services, strategic business planing, product development,
sales and market ing services and the development of
strategic business relationships.
3. Compensation. For services rendered to the Company
by the Consultant pursuant to this Agreement, the Company
shall compensate the Consultant as follows:
Consulting Fee. The Company shall pay Consultant a monthly
fee of ten thousand dollars ($10,000) for services rendered
to the Company pursuant to this Agreement (the "Consulting
Fee"). The Consulting Fee shall be due and payable to the
Consultant in advance on the first day of each month during
the term of this of this Agreement.
4. Term. The term of this Agreement (the "Consulting
Term") shall commence on February 1, 2001, and shall
continue until January 31, 2002, at which time this
Agreement shall terminate, unless extended by a written
agreement duly executed by the parties hereto.
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5. Independent Contractor. The parties expressly intend
and agree that Consultant is acting as an independent
contractor and not as an employee of the Company. Consultant
retains sole and absolute discretion, control, and judgment
in the manner and means of carrying out the assignment.
Consultant understands and agrees that it shall not be
entitled to any rights and privileges established for the
Company's employees, including but not limited to the
following: retirement benefits, medical insurance coverage,
life insurance coverage, disability insurance coverage,
severance pay benefits, paid vacation and sick pay, overtime
pay, or any of them. Consultant understands and agrees that
Company will not pay or withhold from the compensation paid
to Consultant pursuant to this Agreement any sums
customarily paid or withheld for or on behalf of employees
for income tax, unemployment insurance, social security,
workers' compensation or any other withholding tax,
insurance, or payment pursuant to any law or governmental
requirement, and all such payments as may be required by law
are the sole responsibility of Consultant. Consultant agrees
to hold Company harmless against, and indemnify the Company
for, any such payments of liabilities for which the Company
may become liable with respect to such matters. This
Agreement shall not be construed as a partnership agreement.
Company shall have no responsibility for any of Consultant's
debts, liabilities or other obligations, or for the
intentional, reckless, negligent or unlawful acts or
omissions of Consultant or Consultant's employees or agents.
6. Confidentiality.
6.1 Acknowledgment of Proprietary Interest. Consultant
recognizes the proprietary interest of the Company in any
Trade Secrets of the Company. As used herein, the term
"Trade Secrets" includes all of the Company's confidential
or proprietary information, including without limitation any
confidential information of the Company encompassed in any
reports, investigations, experiments, research or
developmental work, experimental work, work in progress,
drawings, designs, plans, proposals, computer codes,
computer programs, computer software, marketing and sales
programs, financial projections, cost summaries, pricing
formula and all concepts or ideas, materials or information
related to the business, products or sales of the Company or
the Company's customers which has not previously been
released to the public at large by duly authorized
representatives of the Company, whether or not such
information would be enforceable as a Trade Secret or
whether or not the copying of such information would be
enjoined or restrained by a court as constituting unfair
competi tion. Consultant acknowledges and agrees that any
and all Trade Secrets of the Company, learned by Consultant
during the course of the engagement by the Company or
otherwise, whether developed by Consultant alone or in
conjunction with others or otherwise, shall be and is the
property of the Company.
6.2 Covenant Not to Divulge Trade Secrets. Consultant
acknowledges and agrees that Company is entitled to prevent
the disclosure of Trade Secrets of the Company. As a portion
of the consideration for the engagement of Consultant and
for the compensation being paid to Consultant by the
Company, Consultant agrees at all times during the
Consulting Term and thereafter to hold in the strictest
confidence, and not to disclose or allow to be disclosed to
any person, firm or corporation, other than to persons
engaged by the Company to further the business of the
Company, and not to use except in the pursuit of the
business of
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the Company, Trade Secrets of the Company, without the prior
written consent of the Company, including the Trade Secrets
developed by Consultant.
6.3 Return of Materials at Termination. In the event of
any termination of this Agreement, with or without cause,
Consultant will promptly deliver to the Company all
materials, property, documents, data and other information
belonging to the Company or pertaining to Trade Secrets.
Consultant shall not take or retain any materials, property,
documents or other information, or any reproduction or
excerpt thereof, belonging to the Company or containing or
pertaining to any Trade Secrets.
6.4 Remedies Upon Breach. In the event of any breach of
this Agreement by Consultant, the Company shall be entitled,
if it so elects, to institute and prosecute proceed ings in
any court of competent jurisdiction, either at law or in
equity, to enjoin Consultant from violating any of the terms
of this Agreement, to enforce the specific performance by
Consultant of any of the terms of this Agreement and to
obtain damages, or any of the foregoing, but nothing herein
contained shall be construed to prevent such remedy or
combination of remedies as the Company may elect to invoke.
The failure of the Company promptly to institute legal
action upon any breach of this Agreement shall not
constitute a waiver of that or any other breach hereof.
7. Law Governing. This Agreement shall be interpreted
and construed in accor dance with the laws and decisions of
the State of New York.
8. Amendments. No amendment or modification of the
terms or conditions of this Agreement shall be valid unless
in writing and signed by the parties hereto.
9. Successors and Assigns. The rights and obligations
of the Company under this Agreement shall inure to the
benefit of and shall be binding upon the successors and
assigns of the Company. Consultant shall not be entitled to
assign any of Consultant's rights or obligations under this
Agreement.
10. Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
11. Entire Understanding. This Agreement constitutes
the entire understand ing between the parties hereto with
respect to the engagement of Consultant and may not be
changed, modified, altered or terminated except by an
agreement in writing executed by the parties hereto. Any
waiver by any party of its rights under this Agreement or
any breach of this Agreement shall not constitute a waiver
of any other rights or of any future breach.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
Company: 0xxxxxxxx.xxx, Inc.
By: /s/
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Xxxxxx X. Xxxxxxx,
President
Consultant: CATALYST FINANCIAL LLC
By: /s/
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Xxxxxx X. Xxxxxxx,
President
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