Exhibit 10(j):
CONSULTING AGREEMENT
Agreement, made as of April 7, 1997 (the "Effective Date"), by and
between NBI, Inc., a Delaware corporation (together with its successors and
assigns permitted under this Agreement, the "Company"), and Xxxxxx X. Xxxxx (the
"Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant has the ability to offer to the Company
expertise, knowledge and assistance with respect to business and legal matters;
and
WHEREAS, the Company desires to retain Consultant to provide such
services to the Company, and the Consultant desires to provide such services to
the Company, subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company and the Consultant (individually a "Party" and
together the "Parties") agree as follows:
1. CONSULTING TERM.
The term of this Agreement shall commence as of the Effective Date
hereof and shall continue for three (3) years. Upon the expiration of the
initial three (3) year term, this Agreement shall be automatically renewed for
successive periods of one (1) year each, unless, not later than ninety (90) days
prior to the end of the initial term or any renewal term, the Company shall have
given notice to the Consultant or the Consultant shall have given notice to the
Company that either of them does not wish to extend this Agreement. The first
one (1) year renewal period shall commence on the first day immediately
following the conclusion of the initial three (3) year term. (The term of this
Agreement shall be referred to herein as the "Consulting Term.")
2. CONSULTING SERVICES.
2.1 The Consultant shall provide consulting services to the Company
at the request of the President and Chief Executive Officer of the Company.
Such consulting services shall include advice on business and legal issues and
other mutually agreeable projects.
2.2 The Consultant shall devote substantial but not exclusive
attention to the affairs of the Company as the
Consultant's duties may reasonably require, it being understood that the
Consultant is simultaneously entering into a consulting agreement, either
personally or through an entity he owns or controls, and an employment
agreement with unrelated businesses and will be devoting substantial
attention to such other entities as well.
2.3 The Parties acknowledge and agree that the Consultant is an
independent contractor and is not a partner, employee, or agent with the Company
or any of its subsidiaries or affiliates. Nothing in the Agreement shall be
construed to grant either Party the authority to enter into a contract in the
name of the other Party, or to bind the other Party in any manner.
Notwithstanding the above, at the request of the Company the Consultant agrees
to accept and serve in the position of a Senior Vice President and General
Counsel of the Company during the Consulting Term.
3. CONSULTING FEE.
The Consultant shall be paid an annual Consulting Fee of Seventy Five
Thousand Dollars ($75,000.00) such consulting fee to be paid in substantially
equal semi-monthly installments.
4. GRANT OF STOCK OPTION.
The Company has previously adopted an Employee and Director Stock
Option Plan (the "Stock Plan"). As soon as practicable after the Effective
Date, the Company agrees to recommend to the Company's Board that the Consultant
be granted under the Stock Plan the same benefits and incentives (on the same
terms and conditions) as those available to other senior executives of the
Company.
5. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Consultant is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement and the Company shall
promptly reimburse him for all reasonable business expenses incurred in
connection with carrying out the business of the Company, subject to
documentation in accordance with the Company's policy.
6. PERQUISITES.
During the Consulting Term, the Consultant shall be entitled to
benefits and perquisites that are comparable to the fringe benefits and
perquisites offered to the Company's senior executive officers and directors in
accordance with the most favorable plans, practices, programs and policies of
the Company.
7. TERMINATION OF CONSULTING TERM.
7.1 The Consulting Term shall terminate at the earlier of the (i)
expiration of this Agreement as provided in section 1. hereof, or (ii) the date
of the death of the Consultant.
7.2 Notwithstanding anything herein to the contrary, the Consulting
Term shall not terminate during any period of physical or mental incapacity of
the Consultant which results in the Consultant's temporary or permanent
inability to perform the services contemplated under this Agreement, as
determined by an Approved Medical Doctor. For this purpose, an Approved Medical
Doctor shall be a medical doctor jointly selected by the Consultant and the
Company. In the event that the Consultant and the Company cannot agree on a
medical doctor, each Party shall select a medical doctor and the two selected
medical doctors shall jointly select a third medical doctor to serve as the
Approved Medical Doctor.
8. INDEMNIFICATION.
To the full extent authorized or permitted by law, the Company shall
hold harmless and indemnify the Consultant against any and all judgments,
penalties (including excise and similar taxes), fines, settlements and
reasonable expenses (including, but not limited to attorney's fees), incurred in
connection with any actual or threatened action or proceeding, whether civil or
criminal, to which the Consultant is made or is threatened to be made a party by
reason of the fact that the Consultant then is or was a director or officer of
the Company or then serves or has served any other corporation, partnership,
joint venture, trust, employment benefit plan or other enterprise in any
capacity at the request of the Company. To the fullest extent so permitted, the
foregoing shall in any actual or threatened proceeding require the Company to
advance expenses on behalf of the Consultant as said expenses are incurred.
9. EFFECT OF AGREEMENT.
Except as specifically provided in this Agreement, this Agreement
shall not affect nor have any force or effect upon any other agreement to which
the Consultant is a party and/or beneficiary.
10. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Consultant)
and assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company; PROVIDED, HOWEVER, that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law. The Company further agrees that, in the
event of a sale of assets or liquidation as described in the preceding sentence,
it shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder. No rights or obligations of the Consultant under this
Agreement may be assigned or transferred by the Consultant other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law, except as provided in Section 15 below; provided, however, that
Consultant may in the future assign or transfer his rights or obligations to an
entity he owns or controls.
11. REPRESENTATION.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Consultant represents that he knows
of no agreement between him and any other person, firm or organization that
would be violated by the performance of his obligations under this Agreement.
12. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the Parties with respect thereto.
13. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment
is agreed to in writing and signed by the Consultant and an authorized
officer of the Company. No waiver by either Party of any breach by the other
Party of any condition or provision contained in this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent
time. Any waiver must be in writing and signed by the Consultant or an
authorized officer of the Company, as the case may be.
14. SEVERABILITY.
In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
15. SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Consultant's employment to the extent necessary
to the intended preservation of such rights and obligations.
16. BENEFICIARIES/REFERENCES.
The Consultant shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Consultant's death
by giving the Company written notice thereof. In the event of the Consultant's
death or a judicial determination of his incompetence, reference in this
Agreement to the Consultant shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
17. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Texas without reference to principles of conflict of
laws.
18. RESOLUTION OF DISPUTES.
Any disputes arising under or in connection with this Agreement shall,
at the election of the Consultant or the Company, be resolved by binding
arbitration, to be held in San Antonio, Texas in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without limitation,
reasonable attorneys' fees of both Parties, shall be borne by the Company. Each
party shall have an opportunity to present evidence on the issues in dispute
before the arbitrator(s) and each party may be represented by legal counsel.
Pending the resolution of any arbitration or court proceeding, the Company shall
continue payment of all amounts due the Consultant under this Agreement and all
benefits to which the Consultant is entitled at the time the dispute arises.
The arbitrators shall decide which party will bear the expenses of such
arbitration (including attorneys' fees).
19. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed
to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address
as such Party may subsequently give such notice of:
If to the Company, to:
NBI, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx X
Xxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx
and:
If to the Consultant, to:
NBI, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
20. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
21. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
NBI, Inc.
By: /s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
Chairman of the Board and CEO
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
