|
Exhibit 10.2 EXECUTION COPY
CONSULTING AGREEMENT This CONSULTING AGREEMENT (this
“Agreement”) is made effective as of the 25th day of
August, 2008 (the “Effective Date”), by and between The
Amacore Group, Inc., a Delaware Corporation (the
“Company”), and Clark A. Marcus, an individual resident
of the state of Florida (the “Consultant”).
RECITALS:
WHEREAS, the Company desires to engage the Consultant to perform
the consulting services as more fully set forth herein; and
WHEREAS, the Consultant desires to be engaged by the Company on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the Recitals and of the
mutual promises and covenants set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed as follows:
1. Engagement. The Company hereby
engages the Consultant to perform the Services (as defined herein)
and the Consultant hereby accepts such engagement with the Company
in accordance with the terms and conditions set forth in this
Agreement. The Consultant shall devote such time and
attention to the Services as are reasonably necessary to perform
such Services, but the Company acknowledges that this Agreement is
not exclusive and that Consultant can provide non-competing
services to other entities or on his own behalf. The
Company acknowledges that Consultant will continue his legal
practice, subject to the terms hereof.
2. Services. The Consultant shall
provide on a non-exclusive basis to the Company strategic planning,
merger and acquisition and investment relations consulting
services, which shall include meetings and discussions of such
matters with third parties and such discussions are hereby
authorized. Services will include such other consulting
services as they pertain to matters dealing with the public market
place and perception of the Company from time to time as may be
requested by the Company or its agents or representatives (the
“Services”).
3. Consulting Fee. In consideration for
performing the Services for the Company, the Company shall pay the
Consultant as follows: (a) upon
execution of this Agreement, the Company shall pay the
Consultant a one-time fee of One Hundred Twelve Thousand
Dollars ($112,000) in immediately available funds; -1-
(b) for the term of this
Agreement, an annual fee of Six Hundred Thousand Dollars
($600,000), which fee shall be payable in equal installments in
accordance with the Company’s customary payroll practices;
and (c) The Company shall pay the
premium for one year for the life insurance that is currently in
place for Consultant's family, which obligation shall not exceed
$32,000. The Company shall immediately cancel all key
man life insurance related to Clark Marcus where the Company is a
beneficiary. (d) The Company agrees
to reimburse the Consultant for any excise taxes payable by him
under Section 409A of the Internal Revenue Code and regulations
promulgated thereunder by reason of the payment of the fee
specified in Section 3(a) hereof in an amount up to twenty percent
(20%) of such fee, plus any penalties or interests that are imposed
by the Internal Revenue Service or other taxing authority solely by
reason of the foregoing payment being made by the Company and for
no other reason. 4. Other Consulting
Arrangements. (a) Consulting
Support. For the Term (defined below) of this Agreement,
the Company agrees to make available to the Consultant (i) his
current office space and use of facilities at the Company's Tampa
headquarters and (ii) one employee of the Company dedicated to
provide the Consultant dedicated secretarial
support. The employee provided to Consultant for
dedicated secretarial support shall be Sharon
Mandel. Consultant acknowledges that Ms. Mandel is an
at-will employee. The Company acknowledges that as of
the date hereof it has no current intent to terminate Ms. Mandel's
employment and will not do so except in the instance of a good
faith reduction in force or for cause. Consultant
further acknowledges that if Ms. Mandel quits her employment with
the Company, the Company is not obligated to provide other
secretarial support to Consultant.
(b) Health and Dental
Benefits. Pursuant to that certain Separation Agreement
(the “Separation Agreement”) by and between the Company
and the Consultant, dated as of an even date herewith, the Company
has agreed to provide certain benefits to the Consultant after the
separation of Consultant’s employment from the
Company. The Consultant acknowledges and agrees that he
has received information regarding his right to elect continuation
of his group health and dental insurance coverage under federal law
(“COBRA”), which if elected may allow him to continue
that insurance coverage for up to an eighteen (18)-month period
after his separation. Pursuant to the Separation
Agreement, the Company shall pay the COBRA premium, if elected by
the Consultant, for the Term of this
Agreement. After such time, if the Consultant
wishes to continue COBRA coverage, the Consultant agrees that he
shall be responsible for the full COBRA premium. The
Company’s obligation to provide benefits under this Agreement
shall under no circumstances exceed payment of the COBRA premium
for eighteen (18)-months. (c) Expense
Reimbursement. Provided that the Consultant has incurred
business expenses that are reasonable, appropriate and consistent
with expenses while employed by the Company (considering, among
other things, the entire set of circumstances) in the pursuit of
the Services hereunder, the Company shall pay, upon submission of
appropriate vouchers and supporting documentation, such expense
incurred by the Consultant, according to Company
policy. The Company's driver in New York will continue
to be made available to Consultant as needed by him. -2-
5. Term and Termination.
(a) Term. This Agreement shall
commence as of the Effective Date and shall continue in full force
and effect for a period of one year thereafter (the “Initial
Term”), unless earlier terminated as provided
herein. This Agreement may be renewed for successive
one-year periods upon mutual agreement of the parties (each a
“Renewal Term” and together with the Initial Term, the
"Term").
(b) Termination. This Agreement
may be terminated prior to expiration of the Initial or any Renewal
Term as provided in paragraph 5(a) above, by prior written notice
to the other party as follows: (i) by
either party, in the event the other party should breach or fail to
perform any of its material obligations hereunder and should fail
to remedy such breach or nonperformance within thirty (30) calendar
days after receiving written demand
therefore. Notwithstanding, the Company may not claim a
breach of non-performance based on the number of hours Consultant
works or based on requested travel not taken by Consultant;
(ii) by either party, effective immediately,
if the other party shall have been convicted of a felony
violation or if Consultant is arrested or charged with a crime not
instigated by the Company and such arrest or charge negatively
effects the business or reputation of ACGI; or
(iii) by the Company, effective immediately,
if the Consultant (1) knowingly makes any materially false or
untrue statements or representations to the Company herein or in
the performance of its obligations hereunder; or (2) engages in
gross negligence, willful misconduct or fraud in the performance of
the Services hereunder. 6. Return of
Materials. Upon termination of this Agreement for any
reason, the Consultant shall promptly return to the Company all
files, credit cards, keys, instruments, equipment, vehicles, and
any other property or materials provided to the Consultant by the
Company. 7. Covenant Not to Compete.
(a) Scope of Covenant. The
Consultant agrees that, subject to 7(b) herein, during any Term of
this Agreement and for a period of one (1) year commencing upon the
expiration or termination of the Consultant’s engagement
hereunder (for any reason whatsoever except if termination occurs
by reason of Company's breach) (the “Termination Date”)
the Consultant shall not, directly or indirectly, for himself or on
behalf of or in conjunction with any other person, persons,
company, partnership, corporation or business of whatever nature,
without the prior written consent of the Company: -3-
(i) engage, as an officer,
director, shareholder, owner, partner, joint venturer, or in a
managerial capacity, whether as an employee, independent
contractor, consultant or advisor, or as a sales representative, in
any Business (as defined in (ii) below) selling any products or
services in direct competition with the Company or any of its
subsidiaries anywhere in the United States, its territories or
possessions (the “Territory”);
(ii) solicit any person who is at the
Termination Date, or who was within one (1) year prior to the
Termination Date, an employee of the Company or any of its
subsidiaries for the purpose or with the intent of enticing such
employee away from or out of the employ of the Company or any of
its subsidiaries, except Dr. Jerry Katzman, Mr. Joe Crisafi and Ms.
Sharon Mandel; (iii) call upon any
person or entity which is, at the Termination Date or which has
been, within one (1) year prior to Termination Date a customer of
the Company or any of its subsidiaries within the Territory for the
purpose of soliciting or selling products or services in direct
competition with the Company or any of its subsidiaries in its
Business within the Territory, where Business is defined as health
care products or programs that are being sold by the Company as
|
