Exhibit 1.
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into and effective
as of June 10, 2004 (the "Effective Date"), by and between MM Companies, Inc., a
Delaware corporation (the "Corporation"), with its principal executive offices
located at Jewelcor Center, ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Jewelcor Management, Inc., a Nevada corporation (the
"Independent Contractor"), having its principal executive offices located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, the Corporation desires to retain the Independent Contractor to
act as a consultant to assist in developing and implementing a strategic plan
for the Corporation, to provide clerical, management, legal and accounting
services and for other related consulting services to which the parties may
agree (the "Services"); and
WHEREAS, the Independent Contractor agrees to perform the Services for the
Corporation under the terms and conditions set forth in this Agreement, it being
expressly understood that the Independent Contractor shall perform Services as
an independent contractor and nothing contained herein shall be construed to be
inconsistent with this relationship or status;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Corporation and the Independent Contractor hereby agree as follows:
SECTION ONE
REPRESENTATIONS AND WARRANTIES OF THE INDEPENDENT CONTRACTOR
The Independent Contractor represents, warrants, covenants and agrees
that:
(a) the Independent Contractor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada;
(b) the Independent Contractor has all necessary power and authority to
execute and deliver this Agreement and to perform all of its obligations under
this Agreement;
(c) this Agreement has been duly and validly authorized, executed and
delivered by the Independent Contractor, and constitutes the valid and binding
obligation of the Independent Contractor, and is enforceable against the
Independent Contractor in accordance with its terms; and
(d) the execution, delivery and performance by the Independent Contractor
of this Agreement does not (1) violate or conflict with any provision of the
Independent Contractor's charter or by-laws; (2) violate, conflict with, or
result in a breach or termination of (or require any consent or approval under)
any agreement, license, arrangement or understanding, whether written or oral,
to which the Independent Contractor is a party; or (3) violate any law,
judgment, decree, order, rule or regulation applicable to the Independent
Contractor.
SECTION TWO
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents, warrants, covenants and agrees that:
(a) the Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) the Corporation has all necessary power and authority to execute and
deliver this Agreement and to perform all of its obligations under this
Agreement;
(c) this Agreement has been duly and validly authorized, executed and
delivered by the Corporation, and constitutes the valid and binding obligation
of the Corporation, and is enforceable against the Corporation in accordance
with its terms; and
(d) the execution, delivery and performance by the Corporation of this
Agreement does not (1) violate or conflict with any provision of the
Corporation's Certificate of Incorporation or by-laws; (2) violate, conflict
with, or result in a breach or termination of (or require any consent or
approval under) any agreement, license, arrangement or understanding, whether
written or oral, to which the Corporation is a party; or (3) violate any law,
judgment, decree, order, rule or regulation applicable to the Corporation.
SECTION THREE
NATURE OF THE SERVICES
In accordance with the terms and conditions of this Agreement, the
Independent Contractor shall, to the extent requested from time to time by the
Corporation, perform Services for the benefit of the Corporation with respect to
all matters relating to or affecting all items referenced in the Recitals
hereto. The Independent Contractor shall perform such additional Services as may
be agreed to by both parties from time to time in writing which, when so agreed,
shall be deemed incorporated into this Agreement. The Independent Contractor
shall perform Services at the direction of the President and Chief Executive
Officer of the Corporation (or another executive officer of the Corporation as
may be designated from time to time by the Board of Directors of the
Corporation). As a part of the Independent Contractor's consulting Services, the
Independent Contractor shall review, analyze, and make suggestions to the
Corporation on all such matters referenced in the Recitals hereto. The
Independent Contractor agrees and stipulates that this Agreement is a personal
service contract under which Services shall be performed by particular agents
and employees of the Independent Contractor who are subject to the approval of
the Corporation from time to time. The Corporation initially approves ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇
▇▇▇▇▇, together with support staff directly reporting to and under the personal
supervision of such individuals as required for such Services, as individuals to
perform Services hereunder. The Independent Contractor shall furnish the
Corporation with a properly completed Request for Taxpayer Identification Number
and Certification on Form W-9 upon receipt of said Form W-9 from the
Corporation.
SECTION FOUR
COMPENSATION
4.1 Subject to the provisions of this Section 4, the consideration to be
furnished to the Independent Contractor by the Corporation for the Services
rendered by the Independent Contractor under this Agreement shall consist of (a)
a monthly payment of $21,500.00 and (b) the reimbursement of actual and direct
out-of-pocket expenses incurred by the Independent Contractor in the rendering
of Services under this Agreement.
4.2 Subject to Section 15 hereof, the Corporation shall reimburse the
Independent Contractor within thirty (30) days following receipt of
documentation that satisfies the Corporation's travel and expense reimbursement
policies, an amount in cash equal to the actual and direct cost of all
reasonable out-of-pocket expenses incurred by the Independent Contractor in the
rendering of Services under this Agreement.
SECTION FIVE
DURATION
The term of this Agreement shall be for a period of two (2) years
commencing on June 10, 2004, and ending on June 9, 2006 (the "Expiration Date").
However, either party may terminate this Agreement at any time prior to the
Expiration Date upon thirty (30) days prior written notice to the other party.
The provisions of Sections 5, 11, 12, 13 and 14 hereof shall survive any such
expiration or early termination of this Agreement.
SECTION SIX
PLACE OF WORK
It is understood that the Services shall be rendered primarily from the
Independent Contractor's offices in ▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania and Boca Raton,
Florida.
SECTION SEVEN
TIME DEVOTED TO WORK
In performing the Services, the hours that approved agents and employees
of the Independent Contractor work on any given day shall be entirely within the
Independent Contractor's control and the Corporation shall rely upon the
Independent Contractor to determine the number of hours as is reasonably
necessary to fulfill the spirit and purpose of this Agreement.
SECTION EIGHT
STATUS OF INDEPENDENT CONTRACTOR
The Independent Contractor and the Corporation acknowledge and agree that
the Independent Contractor shall perform the Services hereunder as an
"independent contractor" and not as agent or employee of the Corporation, and
nothing herein shall be construed to be inconsistent with this relationship or
status. The Independent Contractor, its agents and employees shall have no
express or implied authority to act for, represent, bind or obligate the
Corporation in any manner whatsoever. Accordingly, it is expressly understood
and agreed between the parties hereto that the Independent Contractor is solely
responsible for all labor and expenses in connection with the performance of
every obligation of the Independent Contractor hereunder. The Independent
Contractor assumes the responsibility for furnishing the Services hereunder and
shall withhold and pay when due all employment taxes required by federal, state
and local laws, including, without limitation, all social security and
withholding taxes, and contributions for unemployment and compensation funds.
The Independent Contractor acknowledges and understands that the Corporation
will not maintain worker's compensation, health or liability insurance on behalf
of the Independent Contractor. Notwithstanding the foregoing, any one or more
employee of the Independent Contractor may from time to time be appointed by the
Corporation's Board of Directors as officers or otherwise authorized
representatives of the Corporation to act for and on behalf of the Corporation.
SECTION NINE
MATERIALS AND EQUIPMENT
Except as provided herein, the Independent Contractor shall furnish, at
its own expense, all office space, materials and equipment necessary to carry
out the terms of this Agreement.
SECTION TEN
WORK STANDARDS
The Independent Contractor shall adhere to professional standards and
shall perform all Services required under this Agreement in a manner consistent
with generally accepted procedural standards.
SECTION ELEVEN
COPYRIGHTS AND PATENTS
The Corporation shall own all copyrights and/or patents developed by the
Independent Contractor while performing the Services provided under this
Agreement. All improvements, discoveries, ideas, inventions, concepts, trade
names, trademarks, service marks, logos, processes, products, computer programs
or software, subroutines, source codes, object codes, algorithms, machines,
apparatuses, items of manufacture or composition of matter, or any new uses
therefore or improvements thereon, or any new designs or modifications or
configurations of any kind, or work of authorship of any kind, including without
limitation, compilations and derivative works, and techniques (whether or not
copyrightable or patentable) conceived, developed, reduced to practice or
otherwise made by the Independent Contractor, or any of the Independent
Contractor's agents or employees, and in any ways related to the rendering of
Services under this Agreement shall become property of the Corporation. The
Independent Contractor agrees to assign, and hereby does assign (and hereby
agrees to cause its agents and employees to assign), to the Corporation any and
all such copyrights, patents and propriety rights in any such invention to the
Corporation, together with the right to file and/or own wholly without
restrictions applications for United States and foreign patents, trademark
registration and copyright registration and any patent, or trademark or
copyright registration issuing thereon.
SECTION TWELVE
PRIVILEGED AND CONFIDENTIAL INFORMATION
12.1 The Corporation and the Independent Contractor acknowledge that the
Corporation has acquired and developed, and will continue to acquire and
develop, information related to its business and its industry which is secret
and confidential in character and is and will continue to be of great and unique
value to the Corporation and its subsidiaries and affiliates. The term
"confidential information" as used in this Agreement shall mean all trade
secrets, propriety information and other data or information (and any tangible
evidence, record or representation thereof), whether prepared, conceived or
developed by an employee of the Corporation or received by the Corporation from
an outside source (including the Independent Contractor), which is in the
possession of the Corporation, which is maintained in confidence by the
Corporation or any subsidiary or affiliate of the Corporation or which might
permit the Corporation or any subsidiary or affiliate of the Corporation or any
of their respective customers to obtain a competitive advantage over competitors
who do not have access to such trade secrets, proprietary information, or other
data or information, including, without limitation, information concerning the
Corporation's business plans, real estate leasing terms, conditions and plans,
occupancy costs, customers, suppliers, designs, advertising plans, marketing
plans, merchandising plans, market studies and forecasts, competitive analyses,
pricing policies, employee lists, and the substance of agreements with
landlords, tenants, subtenants, customers, suppliers and others. The term
"confidential information" also includes information that the Corporation has in
its possession from third parties, that such third parties claim to be
confidential or proprietary, and which the Corporation has agreed to keep
confidential. However, the term "confidential information" as used in this
Agreement shall not include information that is generally known to the public or
in the trade as a result of having been disclosed by the Corporation in a press
release or in a filing by the Corporation with the U.S. Securities and Exchange
Commission. The Independent Contractor shall keep and maintain all confidential
information in complete secrecy, and shall not use for itself or others, or
divulge to others, any knowledge, data or other information relating to any
matter which is confidential information relating to the Corporation obtained by
the Independent Contractor as a result of its Services, unless authorized in
writing by the Corporation in advance of such use or disclosure. All written
information made available to the Independent Contractor by the Corporation,
which concerns the business activities of the Corporation, shall be the
Corporation's property and shall, if requested in writing by the Corporation, be
delivered to it on the termination or expiration of this Agreement.
12.2 The Independent Contractor acknowledges that money alone will not
adequately compensate the Corporation for breach of any confidentiality
agreement herein and, therefore, agrees that in the event of the breach or
threatened breach of such agreement, in addition to other rights and remedies
available to the Corporation, at law, in equity or otherwise, the Corporation
shall be entitled to injunctive relief compelling specific performance of, or
other compliance with, the terms hereof, and such rights and remedies shall be
cumulative.
SECTION THIRTEEN
INDEMNIFICATION
13.1 The Independent Contractor shall defend, indemnify and hold harmless
the Corporation (including, without limitation, the Corporation's successors,
assigns, subsidiaries, affiliates and contractors and their respective officers,
directors, employees, agents and other representatives) from and against all
liabilities, losses, claims, actions, damages, expenses (including but not
limited to attorneys' fees), suits and assessments (whether proven or not) based
upon or arising out of damage or injury (including death) to persons or property
caused by Independent Contractor in connection with the performance of Services,
or based upon any violation of any applicable statute, law, ordinance, code or
regulation. The Independent Contractor shall also defend, indemnify and hold
harmless the Corporation against all liability and loss in connection with, and
shall assume full responsibility for, payment of all federal, state, or local
income taxes imposed or required under applicable laws with respect to Services
performed and compensation paid the Independent Contractor under this Agreement.
13.2 Notwithstanding anything contained in the preceding paragraph, the
Corporation shall defend, indemnify and hold harmless the Independent Contractor
(including, without limitation, the Independent Contractor's successors,
assigns, subsidiaries, affiliates and contractors and their respective officers,
directors, employees, agents and other representatives) from and against all
liabilities, losses, claims, actions, damages, expenses (including but not
limited to attorneys' fees), suits and assessments (whether proven or not) based
upon or arising out of damage or injury (including death) to persons or property
caused by the Corporation in connection with the Corporation's performance of
its obligations under this Agreement (including, but not limited to, claims
based upon the material supplied to the Independent Contractor by the
Corporation and utilized by the Independent Contractor in performing the
Services), or based upon any violation of any applicable statute, law,
ordinance, code or regulation.
SECTION FOURTEEN
COMPLIANCE WITH LAWS
The parties agree that all obligations to be performed by the parties
under this Agreement shall be performed in compliance with all then applicable
federal, state and local laws and regulations.
SECTION FIFTEEN
APPROVALS
15.1 In addition to approvals required by other Sections of this
Agreement, the Independent Contractor shall seek to obtain the Corporation's
written approval in advance of all expenditures in excess of four thousand
dollars ($4,000.00) incurred in connection with the rendering of Services and
for which the Independent Contractor seeks reimbursement from the Corporation.
In addition, all estimates presented to the Corporation by the Independent
Contractor for the Corporation's consideration and/or approval shall be
carefully prepared and shall be based upon reasonable assumptions using the
Independent Contractor's best judgment.
15.2 All approvals by the Corporation must be in writing and shall be
sought from the President and Chief Executive Officer of the Corporation, or
such other person that the Board of Directors may designate in writing from time
to time. If the Corporation fails to approve in writing any matter submitted for
approval within fifteen (15) days from the date of its submission, then the
matter submitted for approval shall be deemed to be disapproved.
SECTION SIXTEEN
NOTICES
All notices and other communications required or permitted to be given
under this Agreement by one party to another shall be in writing and the same
shall be deemed effective when delivered (i) in person, (ii) by United States
certified or registered first class or priority mail, return receipt requested,
(iii) by nationally-recognized overnight delivery or courier service, or (iv) by
facsimile transmission, and addressed to the party's principal offices set forth
on page one of this Agreement, or at such other address or facsimile telephone
number as may be designated in writing by such party to the other in accordance
with the requirements of this Section 16.
SECTION SEVENTEEN
GOVERNING LAW
This Agreement shall be construed and enforced according to the laws of
the State of Delaware without regard to its principles of conflicts of laws. Any
action on the Agreement or arising out of its terms and conditions shall be
instituted and litigated in the courts of the State of Delaware. In accordance,
the parties submit to the jurisdiction of the courts of the State of Delaware.
The prevailing party in any such litigation shall be entitled to recover its
reasonable attorneys' fees in addition to any damages that may result from a
breach of this Agreement.
SECTION EIGHTEEN
MISCELLANEOUS
This Agreement may not be modified, amended, or waived, except by a
writing executed by both parties hereto. This Agreement, and all attached or
referenced schedules, exhibits and attachments, constitutes the full and entire
understanding and agreement between the two parties with regard to the subject
matter hereof and supersedes all prior agreements and understandings, whether
written or oral, relating to the subject matter. The section headings herein are
for convenience of reference only, are not part of this Agreement and shall have
no effect on the interpretation of this Agreement or the provisions hereof.
Neither this Agreement nor any interest therein, or claim thereunder, shall be
assigned or transferred by the Independent Contractor to any party or parties.
If any provision of this Agreement shall to any extent be invalid or
unenforceable, such invalid or unenforceable provision shall be reformed to the
extent required to make it valid and enforceable to the maximum extent possible
under law, and the remainder of this Agreement shall not be affected thereby,
with each provision hereof being valid and enforceable to the fullest extent
permitted by law. This Agreement shall be binding upon, and inure to the benefit
of, the parties and their respective successors and permitted assigns. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties have signed, sealed and delivered this
Consulting Agreement in duplicate, each of which is deemed an original, as of
the Effective Date.
ATTEST: MM COMPANIES, INC.
_________________ By:_________________________
(Signature)
Print Name:_________________
Title: _____________________
ATTEST: JEWELCOR MANAGEMENT, INC.
_________________ By: ___________________________
(Signature)
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President/General Counsel
