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Exhibit
10.2
CONSULTING
AGREEMENT
This Consulting Agreement
(this “Agreement”) is effective as of April 29,
2000 (the “Effective Date”), by and between Designs,
Inc., a Delaware corporation (the “Corporation”), with
its principal executive offices located at 66 B Street, Needham,
Massachusetts 02494, and Jewelcor Management, Inc., a Nevada
corporation (the “Independent Contractor”), having its
principal executive offices located at 100 North Wilkes-Barre
Boulevard, Wilkes-Barre, Pennsylvania 18702.
RECITALS
WHEREAS, the stated term of
the Consulting Agreement dated October 28, 1999 between the
Corporation and the Independent Contractor (the “Original
Consulting Agreement”) ended on April 28, 2000.;
and
WHEREAS, the Independent
Contractor has, at the request of the Corporation, continued up to
and including the present time to provide consulting services to
the Corporation beyond the stated term of the Original Consulting
Agreement.; and
WHEREAS, the Corporation
desires to confirm the retention of the Independent Contractor,
effective as of April 29, 2000, to continue as a consultant to
the Corporation to assist the Corporation in developing and
implementing a strategic plan for the Corporation and for other
related consulting services to which the parties may agree, as
described in Schedule A attached hereto and incorporated herein by
reference (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 and is duly
qualified and in good standing as a foreign corporation in each
jurisdiction where its performance of Services requires such
qualification;
(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, its agents or
employees (or any one of them) is a party; or (3) violate any
law, judgment, decree, order, rule or regulation applicable to the
Independent Contractor, its agents or employees (or any one of
them).
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
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(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 consulting Services for the benefit of the Corporation with
respect to all matters relating to or affecting all items contained
in Schedule A attached 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 matters included in Schedule A attached
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 Seymour H.
Holtzman, Richard L. Huffsmith, Barry Booth, Joseph F. Litchman,
David Tarantini and Brian A. Bufalino, 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.
SECTION FOUR
Compensation
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) 182,857 non-forfeitable, fully vested, fully paid and
non-assessable shares of the Corporation’s Common Stock (the
fair value of which Common Stock on June 26, 2000, the date of
the approval of the extension of the original Consulting Agreement
as set forth herein, was $240,000 or $1.3125 per share) 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.
4.1 Following the end of each
calendar month during the term of this Agreement, the Independent
Contractor shall furnish the Corporation with an invoice with
respect to the month then ended.
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4.2 Subject to
Section 16 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. The Independent Contractor hereby
acknowledges that it has received in writing, read and understands
the Corporation’s travel and expense reimbursement policies
in effect as of the Effective Date.
SECTION FIVE
Duration
The term of this Agreement
shall be for a period of one (1) year commencing on
April 29, 2000 and ending on April 28, 2001 (the
“Expiration Date”).
SECTION SIX
Complete
Performance
The Independent Contractor
agrees to fully perform its Services throughout the term of this
Agreement and further agrees to perform such Services in a manner
that fulfills the spirit and purpose of this Agreement. For the
purposes of this Section Six only, it shall be assumed by the
parties that the compensation paid to the Independent Contractor
for its Services from the Effective Date through the Expiration
Date is earned at the per diem rate of $658 (the “Per Diem
Rate”). If the Independent Contractor were to fail or refuse
to completely perform its services hereunder as a result of or
based upon circumstances that are within the Independent
Contractor’s control, the Corporation shall be entitled, upon
written demand (the “Penalty Notice”), to receive from
the Independent Contractor 150% of the Per Diem Rate to have been
earned by the Independent Contractor from the date of the Penalty
Notice to the Expiration Date
SECTION SEVEN
Place of Work
It is understood that the
Services shall be rendered primarily from the Independent
Contractor’s offices in Wilkes-Barre, Pennsylvania and Boca
Raton, Florida, but that any approved agent or employee of the
Independent Contractor shall, upon request of the Corporation,
travel to the Corporation’s executive offices located at 66 B
Street, Needham, Massachusetts, or such other places as may be
designated by the Corporation.
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SECTION EIGHT
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 NINE
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,
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