EXHIBIT 10.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "AGREEMENT"), dated as of March ___, 1999,
between Moto Guzzi Corporation, formerly known as North Atlantic Acquisition
Corp. (the "COMPANY"), a Delaware corporation having its executive offices at
350 Park Avenue, New York, New York 10017, and Emanuel Arbib, an individual
residing at ___________________________________________ (the "CONSULTANT").
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger and
Reorganization dated as of August 18, 1998, as amended (the "MERGER AGREEMENT"),
Company has agreed to merge with Moto Guzzi Corp. ("MERGER") with the Company as
the surviving corporation resulting from the Merger; and
WHEREAS, the Company desires to engage the Consultant to render the
services described herein; and
WHEREAS, the Consultant desires to be engaged by the Company to perform
such services; and
WHEREAS, the Company and the Consultant desire to set forth in writing the
terms and conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing premises, of the mutual
covenants hereinafter contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound hereby, agree as follows:
1. ENGAGEMENT. The Consultant is hereby engaged to provide legal, advisory
and consulting services in connection with the business and operations of the
Company. The Consultant shall, during the Term (as hereinafter defined), be
deemed to be an independent contractor. Consultant shall not be permitted to
bind the Company or enter into any agreements (oral or written) on behalf of the
Company. The Consultant shall be permitted to engage in any business and perform
any services for his own account provided that Consultant will not, directly or
indirectly, engage or participate in the motorcycle industry or businesses
related thereto. The Consultant shall render services to the Company faithfully,
diligently and to the best of his ability under the supervision of the Board of
Directors or any appropriate officer of the Company. Consultant agrees to devote
such portion of his business time, energies and skill as are reasonably
necessary to perform the services agreed to be rendered. Notwithstanding the
foregoing, nothing herein shall be construed to limit the ability or right of
the Consultant to engage or participate in any other business or professional
activities during the Term provided same do not, individually or in the
aggregate, materially interfere with the Consultant's obligations to the
Company.
2. TERM OF AGREEMENT. Engagement under this agreement shall commence on the
effective date of the Merger (the "EFFECTIVE DATE"). The initial term of
employment shall end at the close of business on the day preceding the third
anniversary of the Effective Date (the "INITIAL TERM"). The Initial Term shall
be extended for successive twelve month periods on a rolling basis unless notice
to terminate is received by either party prior to ninety days before the
termination of the then current term of this agreement. Each twelve month period
commencing on the third anniversary hereof shall be a "RENEWAL YEAR." The
Initial Term together with all Renewal Years shall be referred to as the "TERM".
3. COMPENSATION.
(1) In full compensation for all services to be rendered hereunder,
the Company shall pay the Consultant the amount of $30,000 per annum, payable
monthly in arrears, and shall grant to the Consultant on the Effective Date an
option to purchase an aggregate of 30,000 shares of Company's Class A Common
Stock, under and pursuant to Company's 1998 Stock Option Plan ("PLAN") and
pursuant to a Stock Option Grant Letter dated March 4, 1999 between the Company
and the Consultant (the "STOCK OPTION AGREEMENT"). In addition, the Consultant
shall be eligible to receive grants of additional options under the Plan to
purchase Common Stock.
(2) The Consultant's status with respect to the Company is that of an
independent contractor rather than an employee of the Company and it is
understood and agreed that the Company will not withhold any federal, state or
local income, Social Security, unemployment or other taxes on account of
payments made or property delivered to Consultant hereunder, but will remit the
full amount thereof to Consultant and report them on federal tax Form 1099. All
estimated tax payments and employment tax obligations arising from payments
hereunder are agreed to be those of the Consultant.
4. BENEFITS. Consistent with Consultant's status as an independent
contractor with respect to the Company, the Company shall not provide to the
Consultant any insurance, medical, pension or other employee benefits that may
be applicable to employees of the Company.
5. TERMINATION. This agreement shall be terminable prior to expiration only
as follows:
(1) BY THE COMPANY. The Company may terminate this agreement if
Consultant: (i) is convicted of a crime involving larceny, embezzlement, bribery
or acts of moral turpitude; or (ii) is consistently, habitually or flagrantly
derelict in the performance of his duties; or (iii) is repeatedly intoxicated or
under the influence of alcohol or drugs (other than drugs prescribed for him by
a licensed physician); or (iv) engages in actions which expose the Company to
public ridicule; or (v) knowingly engages in actions intended by Consultant to
result, and which in fact result, in substantial damage to the Company; or (vi)
has become permanently disabled, in the good faith opinion of a physician
appointed by the Company, from performing his duties and, in such physician's
opinion, will likely be unable substantially to perform such duties for the
following six months. Termination pursuant to clauses (ii), (iii), (iv) or (v)
of this subparagraph (a) shall not take effect unless Consultant has failed to
cure any violation thereof within 30 days of notice by the Company setting forth
the specific facts constituting such violation.
(2) BY CONSULTANT. Consultant may terminate this agreement if the
Company violates any material provision of this agreement, which violation is
not cured within 30 days of the giving by Consultant of notice thereof.
6. CONFIDENTIALITY. The Consultant recognizes that the services to be
performed by him for the Company may require the disclosure to Consultant of
confidential information and trade secrets concerning the operations of the
Company and its affiliates. Accordingly, the Consultant agrees that he will not,
except with the prior written consent of the Company's Board of Directors, or as
may be required by law, directly or indirectly, disclose during the Term or any
time thereafter any secret or confidential information that he has learned by
reason of her association with the Company or use any such information to the
detriment of the Company so long as such confidential information or trade
secrets have not been voluntarily disclosed by the Company without restriction,
or are not otherwise in the public domain. If the Consultant shall be required
by law to disclose any such confidential information, the Consultant will, to
the extent reasonably practicable, notify and consult with the Company prior to
any such disclosure.
7. NON-SOLICITATION; NON-COMPETITION. Consultant agrees not to solicit or
hire, either directly or indirectly, any then-current employee, officer or
director of the Company, or to engage in or render services (including, without
limitation, research, development, manufacturing, marketing or sales) in any
capacity, either directly or indirectly, to any person, firm, corporation or
other entity engaged in the motorcycle industry or in businesses related
thereto, in competition with the business of the Company, for so long as this
agreement remains in effect.
8. MISCELLANEOUS.
(1) Any and all notices or other communications required to be given
under this agreement shall be in writing and shall be deemed to have been duly
given on the date of delivery, if delivered in person or by confirmed facsimile
transmission, or three days after mailing, if mailed within the continental
United States, postage prepaid, by registered or certified mail, to the party
entitled to receive same, at the address set forth below for such party, or to
such other address or addresses as any party hereto may specify in a notice
given in conformity with the provisions of this Section 8(a):
To Company: Moto Guzzi Corporation
(formerly North Atlantic Acquisition Corp.)
350 Park Avenue
New York, New York 10017
With a copy to: David Lerner, Esq.
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
To Consultant: Emanuel Arbib
[Address]
(2) This agreement constitutes the entire agreement between the
parties hereto with respect to the matters herein provided, and this agreement
cancels and supersedes any or all prior agreements and understandings, written
or oral, between the parties with respect to such matters. No modification or
waiver of any provision hereof shall be effective unless in writing and signed
by the parties hereto.
(3) The rights and obligations of any party hereunder may not be
assigned or transferred to any third party without the prior written consent of
the other party hereto.
(4) If any provision of this agreement or application thereof to
anyone or under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect any
other provision or application of this agreement which can be given affect
without the invalid or unenforceable provision or application and shall not
invalidate or render unenforceable such provision or application in any other
jurisdiction.
(5) The waiver by either party of a breach of any provision of this
agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such party. No waiver shall be valid unless in writing
and signed by the party against whom enforcement of the waiver is sought.
(6) This agreement may be executed in several counterparts, each of
which is an original and all of which shall constitute one instrument. It shall
not be necessary in making proof of this agreement or any counterpart hereof to
produce or account for any of the other counterparts.
(7) The captions and headings contained in this agreement are for
convenience only and shall not be construed as a part of the agreement.
(8) The validity, interpretation, construction, performance and
enforcement of this agreement shall be governed by the substantive law of the
State of New York, without giving effect to the conflicts of law provisions
thereof.
IN WITNESS WHEREOF, the parties hereto have signed or caused their duly
authorized agents to sign this Agreement as of the date first above written.
MOTO GUZZI CORPORATION
(formerly North Atlantic Acquisition Corp.)
By:
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Name:
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Title:
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/S/ EMANUEL ARBIB
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Emanuel Arbib