CONSULTING AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
June, 1997, by and between Clearview Cinema Group, Inc., a Delaware corporation
(the "Company"), and Brett E. Marks (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires that the Consultant perform the
services set forth herein in accordance with the terms and conditions of this
Agreement; and
WHEREAS, the Consultant is willing to provide such services to
the Company in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Consultant's Duties. The Company hereby engages the
Consultant to assist the Company in the identification of possible locations for
the development of movie exhibition theaters and of movie exhibition theaters
that are potential acquisition candidates (collectively, the "Services"). The
Consultant shall, at the request of the Company, furnish all necessary technical
support of any nature whatsoever in connection with performing the Services. The
Consultant shall perform the Services for the Company as an independent
contractor, and no provision of this Agreement shall create, or be deemed to
have created, an employer/employee relationship between the Company and the
Consultant.
2. Compensation; Reimbursement of Expenses.
(a) In return for the provision of the Services
during the term of this Agreement, the Consultant will be compensated by the
Company as follows: One Thousand Dollars ($1,000) per month, payable monthly in
arrears.
(b) In addition, during such term, the Company shall
provide or make available to the Consultant and his family, in the same manner
and on the same terms as if the Consultant were an employee of the Company,
participation in the medical, health and other insurance plans and other welfare
benefit plans
(as defined in the Employee Retirement Income Security Act of 1974, as amended)
of the Company.
(c) The Company shall pay, or reimburse the
Consultant for, all reasonable travel and other expenses incurred by the
Consultant in the performance of the Services.
(d) The Company may withhold from any amounts payable
under this Agreement all federal, state, local or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
3. Termination. Either party may terminate this Agreement at
any time. The Company shall have no obligation to the Consultant for any period
subsequent to the effective date of any termination of this Agreement, except
for the payment of salary for Services rendered and reimbursement of expenses
incurred prior to such termination and as required by law with respect to the
continuation of benefits under welfare benefit plans.
4. Confidentiality.
(a) All reports, data, notes, memoranda, records or other
documents or information (collectively, the "Information") compiled or produced
by the Consultant as part of the Services are and shall remain the property of
the Company. The Consultant shall protect the proprietary nature of the
Information and not disclose such Information to anyone outside of the
Company or its affiliates (other than in the ordinary course of the Consultant's
duties), either during or after the term of this Agreement, except with the
Company's prior written consent or as required by law. The Consultant further
agrees to deliver promptly to the Company upon the termination of this Agreement
all Information (and all copies or summaries thereof) in his possession.
(b) During and after the term of this Agreement, the
Consultant shall protect the secrecy of all confidential matters of the Company
and shall not, at any time, divulge, furnish or make accessible to anyone any
knowledge or information with respect to confidential plans, material, research
or development work of the Company or any subsidiary thereof or with respect to
any other confidential or secret aspect of the business of the Company or any
subsidiary thereof.
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5. Non-Competition. For a period of one year after the
termination of this Agreement, the Consultant shall not, directly or indirectly,
engage or become interested in (as owner, stockholder, partner or otherwise) the
operation of any business similar to or in competition (directly or indirectly)
with the Company within a 15-mile radius of any theater owned and/or operated by
the Company or any of its subsidiaries as of the date of termination of this
Agreement. If any court construes the covenant in this Section 5, or any part
thereof, to be unenforceable because of its duration or the geographical area
covered thereby, such court shall have the power to reduce the duration or
geographical area to the maximum permissible period or geographical area, as the
case may be, so that this provision is enforceable.
6. Relationship with First New York.
(a) The Company acknowledges that the Consultant is also
an executive vice-president of First New York Realty Co. Inc. ("First New
York"). The Consultant hereby represents to the Company that the Services
contemplated by this Agreement will be performed by the Consultant as an
independent contractor and not as an agent for or employee of First New York.
(b) The Consultant further represents that First New York
will not be entitled to a commission if the Company acquires any theater
identified by the Consultant during the course of the performance of his
Services.
7. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be
modified or amended except by an instrument in writing signed by the parties
hereto.
(b) Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
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8. General Provisions.
(a) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior consulting or
employment agreement between the Company or any predecessor of the Company and
the Consultant.
(b) Nonassignability. Neither this Agreement nor any right
or interest hereunder shall be assignable by the Company or the Consultant
without the prior written consent of the other party hereto.
(c) Survival. Each of the provisions of this Agreement
allocating responsibility between the Company and the Consultant shall survive
the completion of the Services and the termination of this Agreement.
(d) Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Consultant and the Company and their
respective heirs, permitted successors and assigns.
(e) Headings. The headings of sections herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
9. Severability. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect
10. Governing Law. This Agreement has been executed and
delivered in the State of New Jersey, and its validity, interpretation,
performance, and enforcement shall be governed by the laws of said State other
than the conflict of laws provisions of such laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its officer thereunto duly authorized, and the Consulant has
signed this Agreement, all as of the day and year first above written.
CLEARVIEW CINEMA GROUP, INC.
By:
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A. Dale Mayo
President, Chief Executive
Officer and Chairman of
the Board
CONSULTANT
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Brett E. Marks