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EXHIBIT 10 (G)
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT entered into as of the 7th day of December, 1999, by and
between XXXXXXX COMPANY, a Michigan corporation with principal offices at 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (herein "Perrigo"), and X. XXXXXX XXXX, of
0000 Xxxxxx Xxxxx, Xxxxxx Xxxxx 00000 (herein "Xxxx"); WITNESSETH:
WHEREAS the Company desires to retain the services of Xxxx to assist
them in analyzing, evaluating, and negotiating certain designated merger and
acquisition transactions and to provide such other consulting services as may be
requested by the Company from time to time and Xxxx has agreed to provide such
services during the term, for the fees, and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
below and subject to the conditions contained herein, Perrigo and Xxxx agree as
follows:
1. Term. The term of this Agreement shall be one (1) year commencing on
January 1, 2000, and terminating on December 31, 2000. Thereafter this Agreement
shall continue in full force and effect until terminated in writing by either
party which in the case of Xxxx shall require thirty (30) days notice to be
given to Perrigo and in the case of Perrigo, shall require six (6) months notice
to be given to Xxxx.
2. Consulting Services. During the term of this Agreement, Xxxx agrees
to devote such time, up to substantially all of his working time, as may be
required, to
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provide consulting services on matters relating to acquisitions and mergers and
on such other corporate and operational matters, including, but not limited to,
general financial matters, strategic issues, and international operations, as
his services may be requested. Xxxx shall report to the Chief Executive Officer
("CEO") of Perrigo during the term of this Agreement and all requests for Xxxx'x
services shall be initiated by the CEO.
Perrigo agrees to provide to Xxxx sufficient consulting assignments to
guarantee to Xxxx a minimum of 100 hours of consulting services each month
during the term of this Agreement or, in lieu thereof, to pay him the minimum
monthly consulting fee provided for in Section 3 below.
The consulting services contemplated by this Agreement shall be
performed at such locations, including Xxxxxxx'x corporate offices in Allegan,
Michigan, as Perrigo may designate from time to time. During Xxxx'x presence at
Xxxxxxx'x corporate offices he will be provided, at no cost to him, appropriate
office space and administrative support (including specifically administrative
and secretarial assistance) as may be required to enable him to successfully
complete his assigned work.
3. Consulting Fees and Expenses. For his consulting services hereunder,
Perrigo shall pay Xxxx on a monthly basis the greater of (i) that amount
determined by multiplying the total number of hours of service performed by Xxxx
during the month by Two Hundred Dollars ($200.00) or (ii) Twenty Thousand
Dollars ($20,000.00). Notwithstanding the preceding, if Xxxx fails to perform at
least one
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hundred (100) hours of services in any month because he declines to perform any
services assigned to him or is unavailable to do so (whether because of sickness
or absence on vacation or for any other reason) then, for such month, he shall
only be paid the amount determined pursuant to (i) above.
Xxxx shall also be reimbursed for all reasonable expenses incurred by
him in connection with his performance of consulting services hereunder. Such
expenses shall include travel, hotel, and meal (dinner only) expenses and other
direct out-of-pocket expenses incurred by Xxxx but shall not include office or
administrative expenses (including any administrative assistant that he may
elect to retain) incurred by Xxxx in connection with a separate office
maintained by Xxxx in Dallas, Texas, or elsewhere.
The consulting fees and expenses shall be paid and reimbursed to Xxxx
within fifteen (15) days from the date of receipt by Perrigo of Xxxx'x invoice.
4. Early Termination. This Agreement may or shall be, as the case may
be, terminated prior to the normal expiration date as follows:
(a.) By Xxxx on thirty (30) days prior written notice to Perrigo.
(b.) By Perrigo in the event of the continued refusal by Xxxx to
perform services reasonably assigned to him by the CEO that are
of the type described in Section 2 above. A termination by
Perrigo under this subsection (b.) may not take place unless
and until written notice is given to Xxxx specifying the basis
for the proposed termination and Xxxx is provided a period of
ten (10)
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days in which to commence performance of the services that are
the subject of the proposed termination.
(c.) By either party on written notice to the other party in the
event of action taken or the conduct of one of the parties that
materially damages the business reputation of the party
terminating the Agreement.
(d.) By either party by written notice to the other party in the
event of the filing of a voluntary petition in bankruptcy by
the other party or the filing by a third party of a petition in
bankruptcy against such other party that is not dismissed
within sixty (60) days from the date of filing.
(e.) The death or physical or mental disability of Xxxx (which shall
be defined as the inability of Xxxx to perform any services
under this Agreement for a period of sixty (60) days because of
injury or physical or mental illness as determined by the Board
of Directors of Perrigo).
In the event of an early termination of this Agreement pursuant to this
Section 4, the rights and duties of the parties hereto shall cease as of the
date of such termination and neither party shall have any further obligation to
the other party hereunder from and after such date.
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5. Relationship of the Parties. The relationship between Perrigo and
Xxxx will be that of principal and agent; provided, however, that except as
otherwise provided by Perrigo in writing, Xxxx is not granted authority to
assume or create any obligation or responsibility, express or implied, on behalf
of or in the name of Perrigo, or to bind Perrigo in any manner whatsoever. As a
consultant, Xxxx will not participate in any of the employee benefit plans
offered by Perrigo and Perrigo shall not withhold any local, state, or federal
taxes from the payments made to Xxxx under this Agreement, all tax liability in
respect of Xxxx'x receipt of compensation hereunder being the sole and exclusive
responsibility of Xxxx.
6. Indemnification. In consideration for Xxxx'x agreement to provide
consulting services to Perrigo under this Agreement, Perrigo agrees to and has
on the date hereof entered into an Indemnification Agreement with Xxxx in the
form of the Agreement attached hereto as Exhibit 1, under and pursuant to which
Perrigo agrees to indemnify Xxxx and to provide to him in advance all amounts
reasonably incurred by him in the manner contemplated thereunder. The obligation
of Perrigo under this Section 5 shall survive the termination of this Agreement.
7. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered or mailed postage
prepaid:
(a) If to Xxxx:
X. Xxxxxx Xxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
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(b) If to Perrigo:
Perrigo Company
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
8. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof. It may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
9. Governing Law. This Agreement shall be governed by the laws of the
state of Michigan.
THIS AGREEMENT EXECUTED as of the day and year first above written.
XXXXXXX COMPANY
By
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Its
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X. Xxxxxx Xxxx
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EXHIBIT 1
INDEMNITY AGREEMENT
AGREEMENT made as of the 7th day of December, 1999, by and among
XXXXXXX COMPANY, a Michigan corporation ("Perrigo") and X. XXXXXX XXXX
("Indemnitee") with respect to the following:
W I T N E S S E T H :
WHEREAS Perrigo desires to retain Indemnitee as a consultant to provide
assistance to Perrigo in connection with merger and acquisition matters and in
connection with such other matters, including, but not limited to, general
financial matters, strategic issues, and international operations as Perrigo may
request from time to time; and
WHEREAS Indemnitee has agreed to provide to Perrigo the consulting
services requested of him provided that, in part, Perrigo agrees to indemnify
him to the extent and in the manner provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. Definitions. As used herein, the following terms are defined as
follows:
(a) Expenses. Attorneys' and accountants' fees and all the other
costs, expenses and obligations actually and reasonably paid or
incurred by or on behalf of Indemnitee in connection with
investigating, defending, participating or being a witness in, or
preparing to defend, participate or be a witness in any Proceeding or
appeal therefrom.
(b) Proceeding. Any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether civil, criminal,
administrative or investigative and whether formal or informal in which
Indemnitee may hereafter become involved as a party, a witness, or
otherwise, by reason of the fact that Indemnitee provides or will be
providing consulting services to Perrigo under the Consulting
Agreement.
2. Indemnification. Subject to the terms and conditions of this
Agreement, Perrigo hereby agrees that in the event Indemnitee is or becomes a
party to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in a Proceeding, Perrigo shall indemnify
Indemnitee to the fullest extent permitted by law and as provided in this
Agreement, pursuant to the authorization of the Michigan Business Corporation
Act, against any and all Expenses incurred with respect to such Proceeding and
any judgments, fines, or
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penalties awarded or assessed in the final adjudications of such Proceedings or
any amounts paid in settlement of such ("Indemnified Amounts"). Perrigo shall
reimburse Indemnitee as soon as practicable, but in any event not later than
thirty (30) days after written demand is presented to Perrigo for any
Indemnified Amounts paid or payable by Indemnitee.
3. Condition Precedent to Indemnification. Indemnitee, as a condition
precedent to indemnification under this Agreement, shall tender written notice
to Perrigo as soon as practicable of any claims made against him for which
indemnification will or likely will be sought under the terms of this Agreement.
Notice to Perrigo shall be directed to the attention of the Chairman of the
Board or General Counsel of Perrigo at its corporate offices in Allegan,
Michigan. In addition, Indemnitee shall give Perrigo such information and
provide such cooperation as may be reasonably necessary and requested by
Perrigo.
4. Consent of Perrigo. No settlement of a claim in any Proceeding shall
be agreed to and no amounts payable in a settlement of a claim in any Proceeding
for which indemnifications will be sought hereunder shall be paid by Indemnitee
without Xxxxxxx'x written consent, which consent shall not be unreasonably
withheld.
5. Limitations on Indemnity. Perrigo shall not be liable under this
Agreement to make any payment in connection with any Proceeding:
(a) for which payment is made to or on behalf of Indemnitee under a
valid and collectible insurance policy, except for any excess beyond
the amount of payment under such insurance policy;
(b) for which Indemnitee is indemnified by Perrigo otherwise than
pursuant to this Agreement;
(c) based upon or attributable to any intentional misconduct or a
knowing violation of law by Indemnitee;
(d) with respect to which a final judgment or other final
adjudication of a court of competent jurisdiction establishes or
determines that Indemnitee's actions or conduct was in bad faith and in
opposition to the best interest of Perrigo or its shareholders;
(e) with respect to which a final decision of a court of competent
jurisdiction determines that indemnification of Indemnitee is not
lawful under the circumstances.
(f) for which payment of indemnification by Perrigo is otherwise
prohibited by applicable law.
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6. Payment of Costs and Expenses in Advance. If requested by
Indemnitee, and notwithstanding anything in this Agreement expressed or implied
to the contrary, Perrigo shall pay (within fifteen (15) days of such written
request) any and all Expenses incurred by Indemnitee in defending or
investigating any claim in any Proceeding, in advance of the final disposition
of such claim, upon the receipt of a written undertaking by Indemnitee to repay
any such amounts if it is ultimately determined that Indemnitee is not entitled
to indemnification by Perrigo.
7. Partial Indemnification. In the event Indemnitee is entitled to
indemnification hereunder for a portion of the Expenses, or any Indemnified
Amounts incurred by him in the investigation, defense, appeal or settlement of
any claim in any Proceeding but not, however, for all of the total amount
thereof, Perrigo shall indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
8. Subrogation. In the event of payment under this Agreement, Perrigo
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable Perrigo effectively to bring suit or
enforce such rights.
9. No Presumption. For purposes of this Agreement, the termination of
any action, suit or proceeding by judgment order or settlement (whether with or
without court approval), shall not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
10. Specific Determination of Entitlement to Indemnification. In the
event Indemnitee is found liable to Perrigo as a result of any claim brought by
or in the right of Perrigo in any Proceeding, whether and the extent to which
Indemnitee is nevertheless entitled to indemnification under this Agreement
shall be predicated on a determination that indemnification is appropriate in
light of the circumstances of the case and applicable legal standards, which
determination shall be made, at the option of Indemnitee, by: (a) majority vote
of a committee of two (2) or more disinterested directors appointed by the Board
of Directors; (b) independent legal counsel in a written opinion; or (c) the
court in which the Proceeding was brought.
11. Liability Insurance. To the extent Perrigo maintains an insurance
policy or policies providing liability insurance for directors and officers,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage permitted to be extended
to any consultant to Perrigo.
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12. Scope of Agreement. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under any provision of
Xxxxxxx'x Articles of Incorporation, Bylaws or the laws of the state of
Michigan.
13. Amendment, Termination and Waiver. This Agreement may be amended,
modified or terminated and any of the terms and conditions herein may be waived
only by the written consent of the parties hereto. The failure of any party at
any time or times to require performance of any provisions contained herein
shall in no manner affect the right of such party at any later time to enforce
the same.
14. Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Indemnitee and his personal representatives,
heirs and assigns, and Perrigo and its successors and assigns, including any
direct or indirect successor of Perrigo by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of Perrigo
provided, however, that no assignment of any rights or delegation of obligations
provided for herein may be made by either party without the express written
consent of the other party. This Agreement shall continue in effect so long as
Indemnitee is providing services to Perrigo under the Consulting Agreement and
shall continue thereafter for a period terminating two (2) years following the
duration of any applicable period of limitations for commencing any Proceeding.
15. Severability. Any provision of this Agreement which may be
prohibited by law, or otherwise held invalid by a court of competent
jurisdiction, shall be ineffective only to the extent of such prohibition or
invalidity and shall not invalidate or otherwise render ineffective the
remaining provisions of this Agreement.
16. Governing Law. The parties hereto acknowledge and agree that this
Agreement shall be governed by, construed and enforced in accordance with the
laws, and in the courts, of the state of Michigan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXX COMPANY
By _____________________________
Its _________________________
INDEMNITEE
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X. Xxxxxx Xxxx
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