CONSULTING AGREEMENT
Exhibit 10(m)
This CONSULTING AGREEMENT (“Agreement”), made and entered into as of the 1st day of March, 2002 (the “Effective Date”) and between ▇▇▇▇▇▇ Corporation (“▇▇▇▇▇▇”), a Nevada corporation with an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”), who has an address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇ served as Chairman of the Board of ▇▇▇▇▇▇ from July, 1994 to the Effective Date, when he retired from such position;
WHEREAS, ▇▇▇▇▇▇ possesses executive skills and leadership experience which ▇▇▇▇▇▇ is desirous of calling upon from time to time during the forty-eight months following such retirement; and
WHEREAS, ▇▇▇▇▇▇ is willing to provide his skills and the benefit of his experience, from time to time, to ▇▇▇▇▇▇ as a consultant over such forty-eight-month period;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ covenant and agree as follows:
1. Engagement as Consultant. ▇▇▇▇▇▇ hereby engages ▇▇▇▇▇▇ as a consultant effective as of the Effective Date, and ▇▇▇▇▇▇ hereby accepts such engagement in accordance with the terms and conditions hereinafter set forth.
2. Consulting Duties. The Chief Executive and/or the Chairman of the Board of Directors may from time to time request ▇▇▇▇▇▇ to furnish services as a consultant and advisor. Such services shall include consultation with ▇▇▇▇▇▇’▇ Chairman of the Board and Chief Executive Office, upon request, concerning the management and overall policy and strategic direction of ▇▇▇▇▇▇ and the financial consequences thereof and consultation and advice with respect to special projects designated from time to time by the Chairman of the Board and Chief Executive Officer of ▇▇▇▇▇▇, including but not limited to, possible acquisitions, mergers, divestitures and capital raising and financing transactions. ▇▇▇▇▇▇ shall not be required to hold himself available for consulting services at any fixed time, but shall be available on a reasonable basis. ▇▇▇▇▇▇’▇ presence shall not be required at any particular office or place in order to render his consulting services unless such services could not reasonably be performed in another location or by telephone or letter.
3. Term of Consulting Engagement. Subject to Section 9 below, the term of ▇▇▇▇▇▇’▇ consulting engagement shall be from the Effective Date until April 30, 2006 (the “Consulting Period”).
4. Compensation. Subject to the terms of this Agreement, in consideration for ▇▇▇▇▇▇’▇ agreements contained herein, during the Consulting Period ▇▇▇▇▇▇ shall pay ▇▇▇▇▇▇ compensation of One Hundred Twenty Two Thousand Five Hundred Dollars ($122,500) per month without deduction for federal, state and local taxes. ▇▇▇▇▇▇ shall pay ▇▇▇▇▇▇ in such intervals as it pays its executive officers. In addition, during the Consulting Period, ▇▇▇▇▇▇ shall also be entitled to such perquisites (including expense reimbursement and transportation) as are made available to executive officers of ▇▇▇▇▇▇ in accordance with ▇▇▇▇▇▇’▇ policies and practices.
5. Stock Options. ▇▇▇▇▇▇ acknowledges that ▇▇▇▇▇▇ is the holder of options to purchase up to 2,000 shares of ▇▇▇▇▇▇ common stock at an exercise price of $59.375 per share under its 1987 Special Incentive Plan (the “1987 Plan Options”), and options to purchase up to 32,500 shares of ▇▇▇▇▇▇ common stock (the “1996 Plan Options”) at an exercise price of $46.250 per share under its Amended and Restated 1996 Long-Term Incentive Plan. In consideration of ▇▇▇▇▇▇’▇ willingness to enter into this Agreement and to perform his obligations and provide the services referred to in this Agreement, the Compensation Committee of ▇▇▇▇▇▇’▇ Board of Directors has authorized by all appropriate corporate action the continuance of the 1996 Plan Options held by ▇▇▇▇▇▇ for the remaining term of such options. ▇▇▇▇▇▇ acknowledges that the 1987 Plan Options must be exercised by May 30, 2002, otherwise they will terminate and be of no further force or effect after such date.
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6. Health Benefits. During the Consulting Period, ▇▇▇▇▇▇ shall continue to provide ▇▇▇▇▇▇ and his spouse with the same medical and other health benefits as it provides to ▇▇▇▇▇▇ and his spouse as of the Effective Date, provided that, ▇▇▇▇▇▇ may change the benefits offered to ▇▇▇▇▇▇ and his spouse in ▇▇▇▇▇▇’▇ discretion if such change (a) is effected for executive officers of ▇▇▇▇▇▇, or (b) is reasonably required by ▇▇▇▇▇▇ and does not materially change the benefits offered to ▇▇▇▇▇▇ and his spouse.
7. Confidential Information. During the Consulting Period and thereafter, ▇▇▇▇▇▇ will not directly or indirectly (without ▇▇▇▇▇▇’▇ prior written consent) use for himself or use for, or disclose to, any party other than ▇▇▇▇▇▇ or its subsidiaries any secret or confidential or proprietary information or data relating to the business of ▇▇▇▇▇▇ or its subsidiaries or any such information or data with respect to businesses being investigated by ▇▇▇▇▇▇ for acquisition.
8. Indemnification, etc.
(a) ▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇’▇ existing rights, in his capacity as an officer, director or employee of the Company, to indemnification and advancement of expenses, as such rights currently exist under ▇▇▇▇▇▇’▇ Articles of Incorporation, by-laws, resolutions, and any other agreement or document binding on ▇▇▇▇▇▇, shall not be diminished or reduced in any respect following the date of this Agreement.
(b) ▇▇▇▇▇▇ will continue to maintain, for a period of at least six (6) years following the date of this Agreement, ▇▇▇▇▇▇’▇ directors and officers liability insurance covering ▇▇▇▇▇▇ in his capacity as a former director, officer and employee of ▇▇▇▇▇▇, at the highest coverage level then currently maintained for any of its then current officers or directors.
(c) ▇▇▇▇▇▇ agrees to indemnify, protect, defend and hold ▇▇▇▇▇▇ and his estate, heirs, and personal representatives, harmless from and against any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), and all losses, liabilities, damages and expenses, including reasonable attorney’s fees incurred by counsel reasonably designated or approved by him, in connection with this Agreement or his services hereunder, provided that any consulting services giving rise to such indemnification shall have been performed by ▇▇▇▇▇▇ in good faith and, to the best of his knowledge, in a lawful manner. ▇▇▇▇▇▇ shall pay or reimburse ▇▇▇▇▇▇ for all costs and expenses, including, without limitation, court costs and attorneys’ fees, incurred by ▇▇▇▇▇▇ as a result of any claim, action or proceeding (including, without limitation, a claim, action or proceeding by ▇▇▇▇▇▇ against ▇▇▇▇▇▇ arising out of, or challenging the validity or enforceability of, this Agreement or any provision hereof) and shall advance such expenses if ▇▇▇▇▇▇ undertakes to repay such amounts if it is ultimately determined that ▇▇▇▇▇▇ is not entitled to be indemnified under Nevada law.
(d) The provisions of this Section 8 are independent covenants of ▇▇▇▇▇▇ and are in consideration of ▇▇▇▇▇▇’▇ separation from ▇▇▇▇▇▇ as well as his willingness to enter into this Agreement and to perform the obligations and provide the services referred to herein, and ▇▇▇▇▇▇’▇ obligations under this Section 8 shall survive and be applicable notwithstanding any other event or circumstance affecting any of ▇▇▇▇▇▇’▇ obligations under this Agreement.
9. Termination.
(a) If ▇▇▇▇▇▇ should die or become permanently disabled before the expiration of the Consulting Period, then the Consulting Period shall end on the date of his death or permanent disability, and ▇▇▇▇▇▇ shall pay to ▇▇▇▇▇▇’▇ estate or to ▇▇▇▇▇▇ or his legal guardian, as applicable, any accrued but unpaid amounts due hereunder.
(b) ▇▇▇▇▇▇ may terminate the Consulting Period at any time for Cause, in which event no further payments shall be made hereunder and ▇▇▇▇▇▇ shall not be entitled to any further benefits hereunder. For purposes of this Agreement, “Cause” shall mean ▇▇▇▇▇▇’▇ dishonesty, commission of a felony or willful unauthorized disclosure of confidential information of ▇▇▇▇▇▇.
10. Relationship Between the Parties.
(a) The relationship of ▇▇▇▇▇▇ to ▇▇▇▇▇▇ during the term of this Agreement shall be solely that of independent contractor. Consequently, ▇▇▇▇▇▇ shall have no authority and shall not assume to act for or on behalf of ▇▇▇▇▇▇ without its express written approval.
(b) ▇▇▇▇▇▇ is solely responsible for the payment of all taxes and the filing of all tax returns and reports with respect to the amounts paid to ▇▇▇▇▇▇ under Section 4 hereof, and ▇▇▇▇▇▇ agrees to indemnify ▇▇▇▇▇▇, its
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officers and directors for any liability imposed on them or each of them arising out of any failure by him to pay such taxes or to file any such returns at any time.
11. Successors.
(a) This Agreement is personal to ▇▇▇▇▇▇ and without the prior written consent of ▇▇▇▇▇▇ shall not be assignable by ▇▇▇▇▇▇ otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by ▇▇▇▇▇▇’▇ legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon ▇▇▇▇▇▇ and its respective successors and assigns.
(c) ▇▇▇▇▇▇ shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of its respective businesses and/or assets to assume expressly and agree to perform this Agreement in the same manner and to the same extent that ▇▇▇▇▇▇ would be required to perform it if no such succession had taken place. As used in this Agreement, the “▇▇▇▇▇▇” shall mean ▇▇▇▇▇▇, as hereinbefore defined and any successor to its respective businesses and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.
12. Nonwaiver of Rights. The failure to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or any part hereof, or the right of either party thereafter to enforce each and every provision in accordance with the terms of this Agreement.
13. Invalidity of Provisions. In the event that any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law, the validity and enforceability of the remaining provisions shall be unaffected. To the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced to the maximum extent allowed under such law.
14. Governing Law and Choice of Forum. This Agreement shall be interpreted in accordance with and governed by the laws of the State of New York. Any actions or proceedings arising out of or relating, directly or indirectly, to this Agreement shall be filed and litigated exclusively in any state or federal court located in the County of Monroe County, New York.
15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless agreed to in writing by the parties hereto.
16. Notices. Any notice to be given by either party hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed, certified or registered mail, postage prepaid at the addresses first set forth in the beginning of this Agreement or to such other address as may have been furnished to the other party by written notice.
17. Counterparts. This Agreement may be executed in one or more counterparts all of which together shall be treated as a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and unconditionally delivered as of the first date set forth above.
| ▇▇▇▇▇▇ CORPORATION | ||||
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By: Name: Title: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President-Finance and Chief Financial Officer |
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/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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