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Exhibit 10.31
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
CONSULTING AGREEMENT
In consideration of the agreement of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED (the
"Company") to retain ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as an independent consultant to provide
the services for the term and at the compensation rate specified below, you
agree with the Company as follows:
1. Performance of Services. You will perform, on a substantially full
time basis, in a professional and expeditious manner all services for
the Company that the Company and you mutually agree should be
performed by him. These services shall include, but not be limited to
assisting with: maintaining and overseeing our relationship with PNC
Bank, sales of corporate sponsorships into the MYCSC and MCC program,
helping manage customer service of corporate sponsorships and
sponsorship relationships, assisting with respect to the operation of
the Cincinnati office as requested, participating in presentations to
potential acquirors of the company or its assets, reviewing letters of
intent, and participating in the due diligence process with buyer.
Such services may be performed from your home or from the Company's
offices, but you shall be available to meet in the Middletown, Rhode
Island office at least once weekly, travel schedules permitting.
2. Term. The term of this Agreement shall be September 8, 2000 until
February 17, 2001 unless there occurs a closing of the sale or merger
of the entire company or the "Making It Count" business on or before
February 17, 2001, provided that in the latter instance, you have
accepted employment or consulting positions with the acquiror,
provided further that this Agreement may be terminated by mutual
agreement in writing or at any time by either party by delivery of
10-days written notice to the other party. Your obligations under
Sections 4 through 11 hereof, inclusive, shall survive and not be
affected by any termination of this Agreement or its expiration,
except as may be specified in such Sections. In the event of such
termination, you will be paid for services rendered and previously
agreed-to reimbursable expenses up to the date of such termination and
not thereafter.
3. Compensation, Bonus, Benefits and Expenses. Your monthly compensation
shall consist of a (i) $5,625 in cash payable on the 15th of each
month and (ii) "option shares" (as defined) in the dollar value of
$11,250, in each instance pro-rated if the applicable period is less
than a full month. As additional compensation payable in consideration
your agreeing to provide consulting services to the Company, the
Company hereby acknowledges that you remain eligible to earn your
Making High School Count bonus in the amount of $62,500 described in
your previous Employment Agreement dated February 17, 2000 with the
Company ("Employment Agreement"). Such bonus will accrue when the
applicable condition has been achieved and will be paid within 7 days
thereafter in option shares with a dollar value of $125,000,
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valued as of the date the condition is achieved, provided that the
dollar value will revert back to $62,500 if you terminate this
Agreement or cease to perform consulting services thereunder before
November 9, 2000.
"Option shares" means vested stock options with an exercise price of
$.01 per share and otherwise containing standard provisions offered by
the Company (and no event less favorable) to employees in lieu of
compensation. The dollar value of the common stock will be, with
respect to monthly compensation, the last trade on the 15th of each
month or first business day thereafter if the 15th falls on a weekend
or holiday. The dollar value of the common stock will be, with respect
to the Making High School Count bonus, the last trade on the date the
applicable condition is met. The Company reserves the right to pay in
cash any and all payments otherwise payable in option shares ,
provided that once option shares are issued, the Company shall not
thereafter have the right to pay make a cash payment with respect to
payment of that amount.
The Company will pay medical and dental benefits in continuation of
the coverage provided in the Employment Agreement. You will continue
to use your cell phones at our expense, and you will continue to
retain company email addresses. Your cell phone and computer will
become your property upon execution of this Agreement.
You will be entitled to reimbursement of reasonably incurred expenses
upon submission of receipts and expense vouchers to the Company.
4. Stock Options. Stock options granted to you pursuant to the Stock
Option Agreement executed in connection with the Employment Agreement
shall be accorded no less favorable treatment than that accorded with
respect to the most favorable stock options granted to any officer of
the Company in connection with a merger or acquisition of the Company
and shall otherwise be accorded the treatment set forth in section
3(d)(i) of the Stock Option Agreement.
5. Independent Contractor. In furnishing services, you will at all times
be acting as an independent contractor. As such, you will not by
reason of this Agreement or your services hereunder be entitled to
participate in or to receive any benefit or right under any of the
Company's employee stock plans, except as provided in sections 3 and 4
hereof. You agree to report compensation from the Company as income
from self-employment and to pay all self-employment and other taxes
required by law to be paid with respect to such compensation as and
when the same shall become due and payable.
6. Personal Services. You agree to provide your services with best
efforts to perform this agreement.
7. Insurance. Except as otherwise noted in Paragraph 3 with respect to
medical and dental benefits, you agree to insure yourself with all
necessary insurance,
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including, but not limited to, workmen's compensation, disability, and
unemployment.
8. Company-Furnished Information, Materials and Equipment. All
information, materials or equipment furnished by the Company to you or
acquired at the Company's expense by you (herein collectively
"Company-furnished information") shall be and remain the sole property
of the Company except the laptops and cell phones.
9. Confidentiality. During and after the term of this Agreement, you
shall not, without first obtaining the written consent of the Company,
divulge or disclose to anyone outside the Company, whether by private
communication or by public address or publication, or otherwise, any
information not already lawfully available to the public concerning
any and all Company-furnished information, any or all information
acquired by you during the course of your consulting services from or
pertaining to any business or licensors or customers of the Company,
and any and all work-product which is maintained in secrecy or
confidence by the Company or by any person or entity affiliated with
the Company by employment, ownership, participation in a joint
venture, licensing arrangement, contract or otherwise. However, it is
understood that certain confidential information may be disclosed to
potential purchasers seeking to purchase the company or its assets.
10. Trade Secrets. You will not, during the term of service to the Company
or thereafter, disclose to others or use for your own benefit any
trade secrets acquired from the Company, its customers, suppliers,
consultants or affiliates, except to the extent that the disclosure of
such trade secrets is necessary to perform your duties and fulfill
your responsibilities as a consultant to the Company. (A trade secret
is information not generally known to the trade which gives the
Company an advantage over its competitors. Trade secrets can include,
by way of example, products under development, production methods and
processes, sources of supply, materials used in manufacture, customer
lists, costs of parts and materials, business and marketing plans, and
information concerning the filing or pendency of patent applications.)
11. Non-competiton. The Non-Competition Covenant set forth in section 9 of
the previous Employment Agreement shall remain in full force and
effect, modified as follows: (i) the two year term shall commence on
September 8, 2000 and shall be shortened by each full month services
are rendered to the Company under this Agreement, and (ii) the scope
of restricted services shall mean solely your development of or
participation in corporate sponsored in-school speaking programs in
high schools. However, not withstanding the foregoing, nothing shall
preclude you from working any successor in interest in the Making It
Count programs.
12. Employment with Acquiring Entity. The Company acknowledges that
potential acquirors may have an interest in retaining your services as
an employee or
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consultant. The Company further acknowledges that this is potentially
desirable for the Company and that at the appropriate time, if it is
necessary, a mutually agreeable procedure will be put in place to
manage any conflicts of interest that this may present.
13. Entire Agreement and Amendment. This Agreement fully expresses the
entire and only agreement between the Company and you respecting your
services as a consultant. All prior and collateral understandings,
agreements and promises with respect thereto are merged into this
Agreement you understand that this Agreement may not be modified,
waived, or extended unless agreed to in writing by an authorized
officer of the Company.
14. Severability. In case any one or more of the provisions or part of a
provision contained in this Agreement shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but and this Agreement shall be construed
as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained herein. In the event that any
provision of this Agreement shall be determined to be unenforceable by
any court of competent jurisdiction by reason of extending for too
great a period of time or over too large a geographic area or over too
great a range of activities, it shall be interpreted to extend only
over the maximum period of time, geographic area or range of
activities as to which it may be enforceable.
15. Applicable Law. This Agreement shall be construed, interpreted and
applied in accordance with the substantive laws of the State of Rhode
Island.
16. Notice. Any written notice to be given under the Agreement must be
delivered in person, sent via facsimile or given by registered or
certified mail:
If to the Company, to:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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If to you, to:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Accepted and agreed to:
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▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
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