CONSULTING AGREEMENT
Agreement, dated as of July 31, 1999, by and between FINLAY FINE JEWELRY
CORPORATION at 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, a Delaware corporation
(the "Corporation"), and BFM Advisors LLC at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000 (the "Consultant").
WHEREAS, the Corporation wishes to retain the Consultant and the Consultant
has agreed to undertake and perform the obligations set forth in this Agreement,
subject to the terms hereof.
NOW, THEREFORE, in consideration of the promises, covenants and agreements
set forth in this Agreement, the parties agree as follows:
1. Engagement of Consultant; Duties. The Corporation hereby engages the
Consultant, and the Consultant agrees to be engaged, as a consultant on the
terms and conditions set forth below. The Consultant agrees that it will serve
as an independent contractor, on a non-exclusive basis, as a consultant to the
Corporation and its affiliates, performing such services, as the Corporation
shall reasonably request, subject to the direction and control of the
Corporation's President and Chief Operating Officer and the Corporation's Board
of Directors. The Consultant's role is that of a consultant and advisor to, and
not that of a manager or employee of the Corporation. The Consultant represents
and warrants that it is not subject to any agreement, covenant or legal
restraint which precludes or otherwise restricts its ability to enter into this
Agreement and perform the services contemplated hereby.
2. Time. The Consultant will devote, subject to availability, such mutually
agreeable time to the affairs of the Corporation (and its affiliates) as is
necessary to perform the services contemplated hereby in a professional and
effective manner, such time not to exceed 250 hours during the term hereof (not
more than 25 hours in any month). Consultant shall not be required to travel
overseas. Consultant agrees that all of Consultant's services hereunder shall be
performed by Xxxxx X. Xxxxxxxxx.
3. Term. The Consultant's engagement shall commence effective as of August
1, 1999 and shall continue until July 31, 2000 (the "Termination Date").
4. Compensation. As compensation for the Consultant's services hereunder,
the Consultant shall receive a fee of $50,000 ("Compensation"), payable within
thirty (30) days of the Termination Date to BFM Advisors LLC.
5. Expense Reimbursement. The Corporation will reimburse the Consultant for
any and all actual preapproved expenses incident to the Consultant's rendering
of services hereunder upon presentation of expense vouchers or other
documentation in such detail as the Corporation may from time to time reasonably
require.
6. Nonsolicitation. (a) The Consultant agrees that during the term hereof,
it shall not, on behalf of itself or any business it is interested in or
associated with, employ or
otherwise engage, or seek to employ or engage, any consultant of or individual
employed by the Corporation, its parent, affiliates or subsidiaries.
(b) The Corporation shall be entitled, in addition to any other right and
remedy it may have, at law or in equity, to an injunction, without the posting
of any bond or other security, enjoining or restraining the Consultant from any
violation or threatened violation of this Section 6, and the Consultant hereby
consents to the issuance of such injunction; provided, however, that the
foregoing shall not prevent the Consultant from contesting the issuance of any
such injunction on the ground that no violation or threatened violation of this
Section 6 has occurred.
7. Confidentiality. The Consultant shall not divulge to anyone, either
during or at any time after the termination of its engagement, any information
constituting a trade secret or other confidential information acquired by it
concerning the Corporation, its parent, affiliates or subsidiaries, except in
the performance of its duties hereunder, without the prior written consent of
the Corporation, or if required by law. The Consultant acknowledges that any
such information is of a confidential and secret character and of great value to
the Corporation, and upon the termination of its engagement the Consultant shall
forthwith deliver up to the Corporation all notebooks and other data in its
possession relating to the Corporation, its parent, affiliates, or subsidiaries
as the case may be. The Corporation shall be entitled, in addition to any other
right and remedy it may have, at law or in equity, to an injunction, without the
posting of any bond or other security, enjoining or restraining the Consultant
from any violation or threatened violation of this Section 7, and the Consultant
hereby consents to the issuance of such injunction; provided, however, that the
foregoing shall not prevent the Consultant from contesting the issuance of any
such injunction on the ground that no violation or threatened violation of this
Section 7 has occurred.
8. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be construed as if
such provision had been drawn so as not to be invalid or unenforceable.
9. Entire Agreement, Etc. This Agreement together with the Separation
Agreement and Release dated the date hereof between the Corporation and Xxxxx X.
Xxxxxxxxx (the "Separation Agreement and Release") sets forth the parties' and
their affiliates' final and entire agreement, and supersedes any and all prior
understandings with respect to its subject matter. This Agreement shall bind and
benefit the parties hereto and their respective heirs, successors and assigns,
except as otherwise set forth in this Agreement. This Agreement is personal in
nature and none of the Consultant's obligations under this Agreement may be
assigned or delegated by the Consultant. The Corporation may assign this
Agreement to any affiliate thereof. This Agreement shall also be assignable by
the Corporation or any of its affiliates to any other person in connection with
the sale, transfer or other disposition of all or a substantial portion of its
business and assets; and this Agreement shall inure to and be binding upon any
successor to all or a substantial portion of the business, or to all or
substantially all of the assets, of the Corporation, whether by merger,
consolidation, purchase of stock or assets or otherwise. This Agreement cannot
be changed,
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waived or terminated except by a writing signed by both the Consultant and the
Corporation and shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to contracts made and performed entirely
within such state.
10. Independent Contractor, Etc. The parties agree that the Corporation
shall have no right to control or direct the details, manner or means by which
the Consultant accomplishes the results of the services performed hereunder, it
being acknowledged that the Consultant shall for all purposes be an independent
contractor of the Corporation. Nothing in this Agreement shall be construed as a
restriction on the ability of the Consultant (or any affiliate thereof) to
obtain employment or be associated or affiliated with a competitor of the
Corporation in any capacity.
11. Counterparts. This instrument may be executed in two or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
12. Notices. Any notice or other communication required to or which may be
given to any party hereunder shall be in writing and shall be delivered
personally to such party (or the Secretary thereof in the case of the
Corporation) or if mailed, by registered or certified mail, postage prepaid,
return receipt requested, addressed to such other party at the address first set
forth above and shall be deemed delivered in all cases upon receipt. Any party
may change the address to which notices are to be sent by giving written notice
of any change in the manner provided herein.
13. Breach; Attorneys' Fees. In the event Consultant or any affiliate
breaches this Agreement or the Separation Agreement and Release, the Corporation
will be entitled to recover or withhold any payment and/or other benefits paid
or payable under this Agreement or the Separation Agreement and Release and to
obtain all other relief provided by law or equity. The prevailing party in any
litigation resulting from any such claim shall be entitled to recover reasonable
attorneys' fees and expenses of litigation from the losing party.
14. Captions. The descriptive headings of the several sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first written above.
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & COO
BFM ADVISORS LLC
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
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