Consulting Agreement - Symposium Corp. and Executive Management Services
SYMPOSIUM CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made and entered into as
of January 1, 1999, by and between Symposium Corporation, a Delaware corporation
(the "COMPANY"), and Executive Management Services ("CONSULTANT").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages Consultant as a consultant, and Consultant
hereby accepts such engagement.
(b) Consultant hereby agrees that all duties and responsibilities of
Consultant set forth in this Agreement shall be performed by Rupert
Galliers-Pratt ("GALLIERS-PRATT").
(c) Galliers-Pratt shall have the title of Chief Executive Officer.
(d) Galliers-Pratt shall devote all of his business time, energy and
efforts to the business of the Company and will use his best efforts and
abilities faithfully and diligently to promote the Company's business interests.
Galliers-Pratt's duties and responsibilities shall be those incident to those
which are normally and customarily vested in the office of chief executive
officer of a corporation. In addition, Galliers-Pratt's duties shall include
those duties and services for the Company and its affiliates as the Board shall,
in its sole and absolute discretion, from time to time reasonably direct which
are not inconsistent with Galliers-Pratt's position described in Section 1(c).
Notwithstanding the foregoing, but subject to Section 1(e) of this Agreement,
Galliers-Pratt shall be permitted to serve on the Board of Directors of, or in a
similar capacity with, other Persons and to manage his personal investments.
(e) For so long as Consultant is engaged by the Company, neither
Consultant nor Galliers-Pratt shall, directly or indirectly, either as an
employee, employer, consultant, agent, investor, principal, partner, stockholder
(except as the holder of less than 5% of the issued and outstanding stock of a
publicly held corporation), corporate officer or director, or in any other
individual or representative capacity, engage or participate in any business
that is in competition in any manner whatsoever with the business of the Company
Group, as such businesses are now or hereafter conducted.
2. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
Page 1
<PAGE>
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Galliers-Pratt, shall mean that, for
physical or mental reasons, Galliers-Pratt is unable to perform the essential
functions of his duties under this Agreement for 60 consecutive days, or 90 days
during any one six month period. Galliers-Pratt agrees to submit to a reasonable
number of examinations by a medical doctor advising the Company as to whether he
shall have suffered a disability and Galliers-Pratt hereby authorizes the
disclosure and release to the Company and its agents and representatives all
supporting medical records. If Galliers-Pratt is not legally competent, his
legal guardian or duly authorized attorney-in-fact will act in his stead for the
purposes of submitting him to the examinations, and providing the authorization
of disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Consultant's engagement with the Company, that:
(a) Consultant breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for breaches of Sections 1(e), 6 or 7 of
this Agreement, which cannot be cured and for which the Company need not give
any opportunity to cure); or
(b) Galliers-Pratt commits any act of personal dishonesty, fraud,
embezzlement, breach of fiduciary duty or trust against the Company Group; or
(c) Galliers-Pratt is indicted for, or convicted of, or pleads guilty or
nolo contendere with respect to, theft, fraud, a crime involving moral
turpitude, or a felony under federal or applicable state law; or
(d) Galliers-Pratt commits any act of personal conduct that, in the
reasonable opinion of the Board, gives rise to any member of the Company Group
of a material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Galliers-Pratt commits continued and repeated substantive violations
of specific written directions of the Board, which directions are consistent
with this Agreement and Galliers-Pratt's position as a senior or executive
officer, or continued and repeated substantive failure to perform duties
assigned by or pursuant to this Agreement.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
Page 2
<PAGE>
3. COMPENSATION AND BENEFITS
For so long as Consultant shall be engaged by the Company as a consultant,
Consultant shall receive the compensation set forth in this Section 3.
(a) CONSULTING FEES. The Company shall pay Consultant consulting fees at
an annual rate of $250,000 through June 30, 1999 and $350,000 thereafter. The
Company may, but shall not be obligated to, increase the consulting fees from
time to time. The consulting fees shall be payable in installments in the same
manner and at the same times the Company pays salaries to executive officers of
the Company, but in no event less frequently than equal monthly installments.
(b) EXPENSE REIMBURSEMENT. Consultant shall be entitled to reimbursement
from the Company for the reasonable out-of-pocket costs and expenses which
Consultant incurs in connection with the performance of Consultant's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor. Consultant shall also be reimbursed for the
cost of airfare for Galliers-Pratt's spouse for up to four roundtrip flights per
year from Europe to the United States.
(c) BENEFIT PLANS. If and to the extent permitted by the relevant plan,
Galliers-Pratt shall be entitled to participate in any pension, savings and
group term life, medical, dental, disability, and other group benefit plans that
the Company makes available to its employees generally.
(d) VACATION. Galliers-Pratt shall be entitled to four weeks paid
vacation, which shall accrue in accordance with the Company's standard vacation
accrual policy.
(e) AUTOMOBILE ALLOWANCE. Employer shall pay directly to Consultant a
$2,000 per month car allowance during the term of this Agreement or as provided
for in Section 5(a), whichever period lasts longer (the "CAR Payments").
(f) DISABILITY. In the event of any Disability, if Consultant or
Galliers-Pratt shall receive payments as a result of such Disability under any
disability plan maintained by the Company or from any government agency, the
Company shall be entitled to deduct the amount of such payments received from
base salary payable to Consultant during the period of such Disability.
(g) WITHHOLDING. The Company may deduct from any compensation payable to
Consultant (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of engagement) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
4. TERM OF ENGAGEMENT
Consultant's term of engagement pursuant to this Agreement shall commence
as of the date hereof and shall terminate on the earliest to occur of the
following (the "DATE OF TERMINATION"):
Page 3
<PAGE>
(a) upon the date set forth in a written notice of termination from
Consultant to the Company (which date shall at least 60 days after the delivery
of that notice); provided, however, that in the event Consultant delivers such
notice to the Company, the Company shall have the right to accelerate such
termination by written notice thereof to Consultant (and such termination by the
Company shall be deemed to be a termination of engagement pursuant to this
Section 4(a), and not a termination pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Galliers-Pratt;
(c) upon delivery to Consultant of written notice of termination by the
Company if Galliers-Pratt shall suffer a Disability;
(d) upon delivery to Consultant of written notice of termination by the
Company For Cause; or
(e) upon delivery to Consultant of written notice of termination by the
Company without cause.
It is understood that termination by the Company because Galliers-Pratt
does not personally perform the services required of Consultant shall be
termination For Cause.
5. SEVERANCE COMPENSATION
(a) If Consultant's engagement is terminated pursuant to Section 4(e) (by
the Company without cause), the Company shall, for the two-year period
commencing on the Date of Termination, continue to (i) pay to Consultant
consulting fees at the rate in effect on the Date of Termination, (ii) pay for
Galliers-Pratt's (and his immediate family's) participation in group medical,
life, dental, disability and similar plans to the extent permitted by the plan,
and (iii) pay to Consultant the Car Payments.
(b) If Consultant's engagement is terminated for any reason other than by
the Company without cause, the Company shall pay to Consultant any unpaid
consulting fees through the Date of Termination. All rights and benefits which
Galliers-Pratt or his estate may have under the Company's benefit plans in which
Galliers-Pratt shall be participating at the date of termination of engagement
shall be determined in accordance with such plans.
(c) If Consultant's engagement is terminated by the Company pursuant to
Section 4(d) (by the Company For Cause), and subject to applicable law and
regulations, the Company shall be entitled to offset against any payments due
Consultant any loss or damage which the Company shall suffer as a result of the
acts or omissions of Consultant or Galliers-Pratt giving rise to termination
under Section 4(d).
(d) Consultant acknowledges that the Company has the right to terminate
Consultant's engagement without cause and that such termination shall not be a
breach of this Agreement or any
Page 4
<PAGE>
other express or implied agreement between the
Company and Consultant. Accordingly, in the event of such termination,
Consultant shall be entitled only to those benefits specifically provided in
this Section 5, and shall not have any other rights to any compensation or
damages from the Company for breach of contract.
(e) Consultant acknowledges that in the event of termination of
Consultant's engagement for any reason, Consultant shall not be entitled to any
severance or other compensation from the Company except as specifically provided
in this Section 5. Without limitation on the generality of the foregoing, this
Section supersedes any plan or policy of the Company which provides for
severance to its officers or Consultant, and Consultant shall not be entitled to
any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until one year from the Date of Termination:
(a) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
influence or attempt to influence any customer of the Company Group to reduce or
discontinue its purchases of any products or services from the Company Group or
to divert such purchases to any Person other than the Company Group.
(b) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
interfere with, disrupt or attempt to disrupt the relationship, contractual or
otherwise, between the Company Group and any of its respective suppliers,
principals, distributors, lessors or licensors; and
(c) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
solicit any employees of the Company Group to work for any Person.
7. CONFIDENTIALITY
Each of Consultant and Galliers-Pratt agrees not to disclose or use at any
time (whether during or after Consultant's engagement with the Company) for its
or his own benefit or purposes or the benefit or purposes of any other Person
any trade secrets, information, data, or other confidential information relating
to customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, financial methods, plans, or
the business and affairs of the Company Group generally, PROVIDED that the
foregoing shall not apply to information which is not unique to the Company
Group or which is generally known to the industry or the public other than as a
result of Consultant's breach of this covenant. Each of Consultant and
Galliers-Pratt agrees that upon termination of Consultant's engagement with the
Company for any reason, it and he will return to the Company immediately all
memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom, in any way relating to the business of the Company
Group except that it and he may retain personal notes, notebooks, diaries,
rolodexes and addresses and phone numbers. Each of Consultant and Galliers-Pratt
further agrees that it and he will not retain or use for its or his account at
any time any trade names, trademark or
Page 5
<PAGE>
other proprietary business designation used or owned in connection with the
business of any member of the Company Group.
8. MISCELLANEOUS
(a) NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to the Company, to:
Symposium Corporation
410 Park Avenue
18th Floor
New York, NY 10022
Attn: Chief Operating Officer and Board of Directors
If to Consultant, to:
Consultant's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(d) GOVERNING LAW. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
Page 6
<PAGE>
(e) CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) ATTORNEYS' FEES. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Symposium Corporation
By: /s/ RONALD ALTBACH
-------------------------------
Ronald Altbach
Chief Operating Officer
Executive Management Services
By:
-------------------------------
Its:
This Agreement is executed by Rupert
Galliers-Pratt solely for purpose of making
the agreements set forth in Sections 1(e), 6
and 7.
/s/ RUPERT GALLIERS-PRATT
----------------------------------
Rupert Galliers-Pratt
Page 7