Exhibit 10(c)
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement"), dated as of the
27th day of April, 1999, between XXXXXX-XXXXXXX COMPANY, a
Delaware corporation with offices at 000 Xxxxx Xxxx, Xxxxxx
Xxxxxx, Xxx Xxxxxx (the "Company") and Xxxxxx X. Xxxxxx, an
individual residing at Mendham, New Jersey (the "Consultant").
WITNESSETH:
WHEREAS, the Consultant possesses certain expertise in the
businesses in which the Company is engaged; and
WHEREAS, the Company desires to have the Consultant provide
consulting services to it in connection with the above-mentioned
area of the Consultant's expertise (the "Consulting Services")
on the terms and conditions hereinafter set forth; and
WHEREAS, the Consultant is willing to perform the
Consulting Services for the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in view of the foregoing premises, which
are incorporated as a part of this Agreement, and in
consideration of the mutual covenants herein contained, the
Company and the Consultant agree as follows:
1. DEFINITIONS.
The following terms (except as otherwise expressly
provided or unless the context otherwise requires) for all
purposes of this Agreement shall have the following respective
meanings:
The term "Affiliate" shall mean any Person directly or
indirectly controlling, controlled by, or under direct or
indirect common control with, another Person. A Person shall be
deemed to control a corporation if such Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract,
or otherwise.
The term "Employment Agreement" shall mean the agreement,
dated July 30, 1991, between the Company and the Consultant.
The term "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization, and a government or any department
or agency thereof.
2. DUTIES AND OTHER ACTIVITIES. The Company hereby
engages the Consultant and the Consultant hereby accepts the
Company's engagement, to provide the Consulting Services to the
Company, all on the terms and conditions set forth below. The
Consultant shall use his best efforts and such working time and
energy as may be reasonably required for the satisfactory
performance of the Consulting Services in accordance with the
reasonable requests of the Company. The Company agrees that,
subject to the restrictions contained in Paragraph 17, the
Consultant may engage in other business activities provided same
do not materially affect the Consultant's ability to perform the
Consulting Services, or constitute, in the reasonable judgment
of the Board of Directors of the Company (the "Board of
Directors") a conflict of interest.
3. TERM. The term of the Consultant's consultancy with
the Company shall commence as of May 1, 1999, which the parties
agree shall be the Consultant's retirement date from employment
with the Company, and shall continue until April 30, 2004 (the
"Consultancy Term"). The Company shall have the right to
terminate this Agreement, at any time, and in the event of such
termination will be under no obligation to make any payments
hereunder to the Consultant or provide any further benefits
hereunder for the Consultant, in the event there is, in the
reasonable opinion of the Board of Directors, misconduct by the
Consultant or the Consultant, in the reasonable opinion of the
Board of Directors, takes any action which places the Consultant
in a conflict of interest situation vis-a-vis the Company or any
Affiliate of the Company. In the event of any termination of
this Agreement, the Consultant shall be given thirty (30) days'
written notice of such termination, but during the period
following the notice to the Consultant and the effective date of
the termination of the Consultant, the Company need only fulfill
its fee obligations to the Consultant and need not allow the
Consultant to continue to perform the Consulting Services.
4. FEE AND EXPENSES. The Company shall pay the
Consultant, and the Consultant shall accept as full
consideration for the services to be rendered hereunder, a fee
consisting of One Hundred Fifty Thousand Dollars ($150,000) per
year (the "Fee"), which Fee shall be reduced by any amounts
required to be withheld under applicable law. Payment of the
Fee shall be made yearly. The Company and the Consultant agree
that with respect to any portion of a year that this Agreement
is in effect, payment of the Fee shall be made on a pro rata
basis. The Company shall reimburse the Consultant for all
reasonable travel, entertainment and transportation expenses
incurred in connection with his providing the Consulting
Services.
5. ILLNESS, INCAPACITY OR DEATH. In the event of the
death or disability of the Consultant or the Consultant's
illness or incapacity resulting in the disability of the
Consultant while this Agreement is in effect, this Agreement
shall terminate and all amounts accrued for the benefit of the
Consultant to that date shall be paid to the Consultant or the
estate of the Consultant, as the case may be. Such payment
shall fully discharge all obligations of the Company to the
Consultant (or his estate) under this Agreement. For purposes
of this Agreement, "disability" shall mean the inability of the
Consultant to perform the Consulting Services for One Hundred
Twenty (120) consecutive days, such inability to be documented
to the reasonable satisfaction of the Board of Directors by
appropriate correspondence from duly licensed and registered
physicians.
6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law (other than the provisions
relating to conflict of law) of the State of New Jersey.
7. ENTIRE AGREEMENT. This Agreement and the Employment
Agreement contain the entire agreement between the Company and
the Consultant with respect to the matters discussed herein and
supersede all previous written or oral negotiations, commitments
and understandings. No representations and warranties or
covenants are made by either the Company or the Consultant other
than those expressly contained in this Agreement.
8. WAIVERS. Any waiver of any term or provision of this
Agreement must be explicitly in writing and executed by the
waiving party. A waiver of any breach or failure to enforce any
of the terms or conditions of this Agreement shall not, in any
way, affect, limit or waive the right of either party hereto at
any time to enforce strict compliance thereafter with every
other term or condition of this Agreement.
9. SEVERABILITY. The covenants of the Consultant
contained in this Agreement shall each be construed as an
agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the
Consultant against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any such covenant. The Company
and the Consultant hereby expressly agree that it is not the
intention of either party hereto to violate any public policy,
or any statutory or common law, and that if any sentence,
paragraph, clause or combination of the same of any provision of
this Agreement is in violation of the law of any state where
applicable, such sentence, paragraph, clause or combination of
the same (subject to the last sentence of this Paragraph 9)
shall be void in the jurisdictions where it is unlawful, and the
remainder of such paragraph and this Agreement shall remain
binding on the parties hereto. It is the intention of both
parties hereto to make the provisions of this Agreement binding
only to the extent that it may be lawfully done under existing
applicable law. In the event that any part of any provision of
this Agreement is determined by a court of law to be overly
broad thereby making the provision unenforceable, the parties
hereto agree, and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in
place of the offensive part of such provision, and that as so
modified the provision shall be as fully enforceable as if set
forth herein by the parties hereto in the modified form.
10. NOTICES. Any notice, request, instruction or other
document to be given hereunder by the one party hereto to the
other party hereto shall be in writing and delivered personally
or by certified mail, postage prepaid, to the address of the
Company set forth above and to the Consultant at his address on
file with the Company for benefits purposes, respectively, or
such other address as the one party hereto shall specify to the
other party hereto in writing.
11. ASSIGNABILITY AND AMENDMENT. This Agreement shall not
be assignable by either of the parties hereto, except that the
Company may assign this Agreement to any Affiliate of the
Company. This Agreement shall be binding upon, and shall
(subject to the provisions of the immediately preceding
sentence) inure to the benefit of the parties hereto, their
successors, legal representatives and assigns. This Agreement
cannot be altered or otherwise modified or amended except
pursuant to an instrument in writing signed by the Company and
the Consultant.
12. COUNTERPARTS AND HEADINGS. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute
one and the same instrument. All headings in this Agreement are
inserted for convenience or reference only and shall not be
deemed to affect the meaning or interpretation of this
Agreement.
13. RELATIONSHIP OF PARTIES. The relationship of the
Consultant to the Company is that of an independent contractor
and nothing contained herein shall be construed as creating an
employer/employee relationship or any other similar
relationship.
14. SECURITY AND OTHER MATTERS. In recognition of the
Consultant's status, as a former Chairman of the Company, the
Company will maintain the existing security system at the
Consultant's residence.
The Consultant shall be provided by the Company with 50
hours of annual use of a Company-leased Citation X aircraft
(with the understanding that the Consultant may be accompanied
by family members and guests during such use of Company-leased
aircraft). It is expressly understood that the Consultant's
activities at Queen's University, Kingston, Ontario, are
considered to be Xxxxxx-Xxxxxxx business, and the Consultant
shall have use of Company owned aircraft for such activities
(subject to reasonable availability), at no cost to the
Consultant.
15. REPRESENTATION AND WARRANTY OF CONSULTANT. The
Consultant represents and warrants that the Consultant has read
this Agreement and understands the terms and provisions hereof
(including, with limitation, the restrictions which such
provisions place upon the Consultant).
16. EFFECT ON EMPLOYMENT AGREEMENT. Neither the
execution, delivery, nor performance of this Agreement shall
operate to modify or terminate any term or provision of the
Employment Agreement.
17. RESTRICTIVE COVENANT. During the Consultancy Term and
a period of two (2) years following the termination of the
Consultancy Term, the Consultant shall not, without the prior
written consent of the Company, own more than five percent (5%)
of, accept employment with, or lend his name or assistance to,
any venture, enterprise, company, business, or endeavor which is
directly or indirectly in competition with the Company or an
Affiliate of the Company in fields in which the Company and its
Affiliates have annual sales of more than Ten Million Dollars
($10,000,000). Further, except in connection with the proper
providing of the Consulting Services, the Consultant will not,
at any time, either during the Consultancy Term or thereafter,
directly or indirectly, use any confidential information of the
Company or any Affiliate of the Company for the benefit of the
Consultant or any other Person or, directly or indirectly,
disclose any such confidential information of the Company to any
other Person.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed as of the date
first above written.
XXXXXX-XXXXXXX COMPANY
By: Xxxxxxxx X. X. xx Xxxx
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Xxxxxx X. Xxxxxx
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