Exhibit
10.1
CONSULTING SERVICE
AGREEMENT
This Consulting Service Agreement (this “
Agreement ”) is made this 26th day of April, 2007 (the
“ Commencement Date ”) by and between MTM
Technologies, Inc. (the “ Company ”), with
offices at 1200 High Ridge Road, Stamford, CT, 06905, Francis J.
Alfano (“ FJA ”) and Tory Ventures LLC (the
“ Consultant ”), each of which has an address
c/o Shechtman Halperin Savage LLP, One North Broadway, Suite 1004,
White Plains, NY 10601.
The Company hereby engages Consultant to render
to the Company the services described in Section 2 of this
Agreement, during the term described in Section 3 of this
Agreement.
The scope of the services to be performed by
Consultant will consist of advice and consultation regarding the
business and operations of the Company, as
the Company and the Consultant shall agree upon from time to time
(together, the “ Services ”), provided that this
Agreement shall not require Consultant to make any minimum time
commitment to providing Services to the Company. All of the
Services shall be performed exclusively by FJA. FJA may perform the
Services from a remote location. FJA will cooperate with reasonable
requests of the Company in transitioning relationships with vendors
and customers of the Company and taking such other actions as the
Company may reasonably request, including, without limitation,
appearing and providing testimony on behalf of the Company in
judicial, arbitral and administrative proceedings; provided the
Company agrees to reimburse FJA’s documented, out-of-pocket
expenses incurred in connection with such cooperation in accordance
with Section 4 of this Agreement.
(a) This Agreement
will be effective, and Consultant will provide the Services,
commencing on the Commencement Date, and continuing thereafter
through and including June 30, 2009, (the “ Term
”).
(b) This Agreement may
be terminated by the parties prior to its expiration, as
follows:
(i) By the
Company: If Consultant or FJA (1) commits willful or grossly
negligent acts to the substantial detriment of the Company; (2)
breaches any provision of Section 7 of the Employment Agreement
between FJA and the Company, dated as of June 28, 2006 (the “
Employment Agreement ”), as modified by the Agreement
and General Release made on the date hereof by the Company and FJA
(the “ Release Agreement ”) or (3) breaches any
material term or provision of this Agreement or the Release
Agreement and, in the case of (1), (2) or (3), such act or breach
is not cured within ten (10) days after the Company gives FJA or
Consultant written notice complaining of such act or
breach.
(ii) By
Consultant: If the Company breaches any material term or
provision of this Agreement or the Release Agreement and such
breach is not cured within ten (10) days after FJA or Consultant
gives the Company written notice complaining of such breach;
provided , however that with respect to a failure by
the Company to make payments hereunder such cure period shall be
five (5) days after written notice thereof.
(c) This Agreement and
Consultant’s Services hereunder will terminate automatically
upon Consultant’s death. In such event, the Company shall pay
to Consultant’s estate all compensation that would have been
owed to Consultant under this Agreement through the Term of this
Agreement, had Consultant lived. Such compensation shall be paid in
accordance with Section 4(a) of this Agreement.
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Compensation
and Other Benefits .
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(a)
Compensation . For services rendered under this
Agreement, the Company will pay Consultant (i) a signing bonus of
Fifty-Eight Thousand, Three Hundred and Thirty-Three Dollars and
Thirty-Three Cents ($58,333.33) on May 15, 2007 in accordance with
the normal payroll practices of the Company and (ii) fees at the
rate of Twenty-Nine Thousand, One Hundred and Sixty-Six Dollars And
Sixty-Seven Cents ($29,166.67) per month, payable in arrears in
twice monthly payments of Fourteen Thousand, Five Hundred and
Eighty Three Dollars and Thirty-Three Cents ($14,583.33) with the
initial payment on May 15, 2007 in accordance with the normal
payroll practices of the Company, provided that a lump sum
payment on March 31, 2008 shall be made which shall include fees
from April 1, 2008 through March 31, 2009. No fee shall be payable
with respect to services under this Agreement from April 1, 2009 to
June 30, 2009. Upon a “change of control” of the
Company all compensation under this Agreement shall become
immediately due and payable; provided, however, that the March 31,
2008 payment shall, in no event be paid to Consultant prior to the
date that is six months following the date hereof. . For the
purposes of this Agreement, “change of control” shall
have the meaning given such term in Section 409A of the Internal
Revenue Code and the regulations promulgated thereunder.
(b) Other
Benefits . The Consultant shall be provided telephonic,
voicemail, e-mail and other such services as may be determined by
the Company during the Term, provided that such services are to be
used by Consultant for the purpose of providing Services under this
Agreement.
(c) Expenses
. During the Term, the Company shall not be obligated to
reimburse the Consultant for any business expenses Consultant
incurs in the performance of the Services, unless the Company, in
its sole discretion, approves reimbursement of such business
expenses, in advance, and in writing.
(d) Stock
Options . The Options will be treated in accordance with
Section 8(b)(i) of the Stock Option Award Agreements dated June 28,
2006, April 15, 2005 and May 21, 2004 and the and Restricted Stock
Units will be treated in accordance with Section 6(b)(i) Restricted
Stock Unit Award Agreement dated April 15, 2005.
(e) Payments
. All fees payable by the Company under the terms of this
Agreement shall be paid to Consultant. Consultant has provided to
the Company a complete and fully executed IRS Form W-9. The Company
will provide Consultant with a Form 1099 reflecting the fees paid
to Consultant pursuant to this Agreement during each affected tax
year. Payments made under Section 4(a) and Section 4(b) of this
Agreement shall be made by wire transfer of immediately
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