Exhibit 10.8
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement"), dated as of March 15, 2001,
between Xxxxxxxxx'x, Inc., a Delaware corporation (the "Company"), and
____________________ (the "Advisor").
Advisor has determined to tender his resignation to the Board of
Directors of the Company (the "Board") effective upon the adjournment of the
Company's 2001 Annual Meeting (the "Resignation Date"). Notwithstanding such
resignation, the Board desires that the Company and its stockholders shall
continue to benefit from the experience and ability of the Advisor as a
consultant to the Company, and the Advisor is willing to commit himself to serve
as a Special Advisor to the Board, on the terms and conditions herein provided.
Accordingly, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. RETAINER. The Company hereby retains the Advisor, effective as of the
Resignation Date, and the Advisor hereby agrees to become a Special Advisor to
the Board for the Term provided in Section 3 to render the consulting services
described in Section 2.
2. DUTIES.
2.1 Assignment of Duties. During the Term, as defined in Section 3 of
this Agreement, the Advisor shall be available to the Company to provide such
consulting and other services as may reasonably be required of him by the Board.
2.2 Availability. The Advisor agrees to devote to the Company such time
as shall be necessary for the effective conduct of his duties hereunder. Advisor
shall be permitted to engage in outside business and other interests that do not
conflict with such duties. Advisor shall not be required to provide services to
the Company in excess of ten hours per month.
3. TERM. The term of the Advisor's retainer under this Agreement (the
"Term") shall commence on the Resignation Date (also called the "Effective
Date") and shall expire on the second anniversary of the Effective Date unless
sooner terminated pursuant to Section 5 of this Agreement.
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4. COMPENSATION.
4.1 Cash Portion of Consulting Fee. The Company shall pay the Advisor a
cash fee at the rate of $40,000 per annum during the Term (the "Consulting
Fee"). The Consulting Fee shall be payable at the same time, in the same manner,
and following the same procedures as apply to directors' fees paid to
non-employee directors of the Company. All such payments shall be subject to
deduction and withholding (if any) authorized or required by applicable law.
4.2 Equity Portion of Consulting Fee. Advisor shall be awarded $60,000 of
Company common stock annually during the Term pursuant to the Company's 1995
Stock-Based Incentive Plan. Advisor may choose to receive such awards in the
form of Company common stock, deferred Company stock equivalents or options to
purchase Company common stock. Awards in the form of stock options shall be at a
ratio of four (4) stock option shares to one (1) share of Company common stock
that may otherwise be awarded pursuant to this Section 4.2. Equity compensation
awarded pursuant to this Section 4.2 shall be made at the same time, in the same
manner, and following the same procedures as apply to equity awards made to
non-employee directors of the Company. The compensation provided for in Section
4.1 and 4.2 hereof is referred to herein as the "Consulting Fee."
4.3 No Offset Effect. Any other compensation received by the Advisor for
services performed for the Company or its affiliates shall not operate as an
offset to the compensation due pursuant to Section 4.1 or Section 4.2 of this
Agreement.
4.4 Expense Reimbursement. The Company shall reimburse the Advisor for
all reasonable out-of-pocket expenses related to travel, entertainment and
miscellaneous expense incurred in carrying out his duties under this Agreement.
Reimbursement shall only be made against an itemized list of such expenditures
signed by the Advisor in such form as required by the Company and consistent
with the Company's policy.
5. TERMINATION.
5.1 Termination Upon Death or Disability. In the event of the Advisor's
death or total disability (defined as the Advisor's inability to perform his
duties under this Agreement for three (3) consecutive fiscal quarters) during
the Term, this Agreement shall terminate on the date of such death or
disability; provided that, such termination shall not relieve the Company of its
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obligations to make the payments as described in Section 4 hereof accrued
through the date of such termination.
5.2 Termination for Cause; Voluntary Termination Prior to Term-End. The
Company may terminate this Agreement for "Cause" at any time and without notice.
The Company shall have "Cause" to terminate this Agreement if (a) Advisor
breaches any provision of this Agreement or (b) Advisor engages in conduct which
is injurious to the Company as determined by the Board. If the Advisor is
terminated by the Company for Cause or if the Advisor voluntarily terminates his
services prior to the end of the Term (other than due to the Advisor's death or
disability) then the Advisor shall be paid only the Consulting Fee accrued
through the date of such termination and the Advisor will forfeit all right to
receive any other payments from the Company unless previously earned but unpaid
and any other compensation to which he would otherwise be entitled.
5.3 Termination by the Company other than for Cause. If the Advisor is
terminated by the Company other than for Cause prior to the end of the Term,
then the Advisor shall be entitled to payment of the total amount of the
Consulting Fee which would have been paid hereunder if his services were not so
terminated by the Company (less any amount of the Consulting Fee already paid).
6. CONFIDENTIALITY.
6.1 Confidentiality of Trade Secrets or Proprietary Information. Advisor
acknowledges that, during Advisor's service with the Company, Advisor has had
access to proprietary information, trade secrets, and confidential material of
the Company and its affiliates, successors and assigns, including, without
limitation, information concerning the Company's operations, policies and
procedures, present and future business plans, financial information, budgets
and projections, methods of doing business, and marketing, research and
development activities and strategies ("Confidential Information"). Advisor
agrees, without limitation in time or until the Confidential Information shall
become public other than by Advisor's unauthorized disclosure, to maintain the
confidentiality of the Confidential Information and refrain from divulging,
disclosing, or otherwise using the Confidential Information to the detriment of
the Company or its affiliates, successors or assigns, or for any other purpose
or no purpose.
6.2 Enforceability of Provisions/Remedies. Advisor agrees that any breach
of the covenants contained in this Section 6 would irreparably injure the
Company. Accordingly, the Company may, in addition to pursuing any other
remedies they may have in law or in equity, obtain an injunction against Advisor
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from any court having jurisdiction over the matter, restraining any further
violation of this Section 6 by Advisor.
7. INDEMNIFICATION. The Company agrees to indemnify, protect, defend and
hold the Advisor and his estate, heirs, and personal representatives, harmless
from and against any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
and all losses, liabilities, damages and expenses, including reasonable
attorney's fees incurred by counsel reasonably designated or approved by him, in
connection with this Agreement or his services hereunder, provided that any
consulting services giving rise to such indemnification shall have been
performed by the Advisor in good faith and, to the best of his or her knowledge,
in a lawful manner.
8. OTHER PROVISIONS.
8.1 Independent Contractor Status. Advisor hereby acknowledges that
Advisor's services to the Company during the Term of this Agreement will be as
an independent contractor and not as an employee and even if Advisor is
subsequently determined to have been an employee during such Term, he waives any
rights he might have to benefits of any type whatsoever, from and after the
Effective Date, except as specifically provided for herein.
8.2 Notices. Any notice required or permitted to be given hereunder shall
be in writing and shall be effective three (3) business days after it is
properly sent by registered or certified mail to the following addresses or
twenty-four (24) hours if sent via facsimile:
If to the Company: Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxx, XX 00000
Attn: Corporate Secretary
If to Advisor, the address set forth on the signature page to this
Agreement. Either party to this Agreement may use such other address as either
party may from time to time designate by notice.
8.3 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
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8.4 Waivers and Amendments. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other such right, power
or privilege. Each of the sections contained in this Agreement shall be
enforceable, independently of every other section in this Agreement, and the
invalidity or enforceability of any section shall not invalidate or render
nonenforceable any other section contained herein. If any section or provision
in a section is found invalid or unenforceable, it is the intent of the parties
that a court of competent jurisdiction shall reform the section or provisions to
produce its nearest enforceable economic equivalent.
8.5 Governing Law. The validity, interpretation, construction and
performance of this agreement shall in all respects be governed by the laws of
Delaware, without reference to principles of conflict of law.
8.6 Assignment. The services to be rendered by the Advisor hereunder are
personal in nature and, thus, the obligations of the Advisor under this
Agreement may not be assigned to any other party.
8.7 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original but all such counterparts together shall constitute one and the same
instrument. Each counterpart may consist of two copies hereof each signed by one
of the parties hereto.
8.8 Headings. The headings in this Agreement are for reference only and
shall not affect the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXXXXX'X, INC.
By:_______________________________
Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
Advisor
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