ROCK BOTTOM RESTAURANTS, INC.
SERVICE AND CONSULTING AGREEMENT
CONCEPT MANAGEMENT, INC.
THIS AGREEMENT (the "Agreement"), is entered into as of the 1st day of
January, 1997, by and between CONCEPT MANAGEMENT, INC., a Tennessee corporation,
having an office at 0000 X. Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000
("Consultant"), and Rock Bottom Restaurants, Inc., a Delaware corporation having
an office at 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, 00000.
WITNESSETH:
WHEREAS, The Company desires to retain Consultant for the purpose of
rendering consulting services by which the Company shall have the benefit of
Consultant's experience and knowledge in those areas of service as directed by
the President of the Company; and
WHEREAS, Consultant desires to be retained by the Company and to
provide such services on the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual promises
hereinafter set forth, the parties hereto agree as follow:
1. Term. This agreement shall commence on January 1, 1997, and shall continue
for a period of twelve months, terminating on December 31, 1997, unless sooner
terminated pursuant to Section 4 hereof.
2. Duties of Consultant.
2.1 The Company hereby employs Consultant, and Consultant agrees, upon the terms
and conditions herein set forth, to provide consulting services, as directed by
the President or Board of Directors of the Company, on a part-time basis as
needed in connection with the Company's business, with Consultant to use
reasonable efforts to be available from time to time as needed, subject to other
demands and the understanding that this consulting agreement is non-exclusive of
either party. Such services shall be on a retainer or project basis as directed
by the President or the Company's Board of Directors, and can include, but not
be limited to the following:
A. Evaluation and assessment of Company's strategic planning and
organizational development processes.
B. Consultation and recommendations with respect to strategic planning,
organizational development, management development and succession planning,
organizational design and on-going review of Company organizational
productivity.
C. Consultation with appropriate officers, directors and consultants of the
Company in connection with the Company's planned growth and development,
and development strategies.
D. Consultation and recommendations with respect to recruiting, management
training and development, and development of the Company's Training
Department.
E. Consultation and recommendations with respect to executive performance,
coaching, and intervention.
F. Consultation and inputs as to market and consumer behavioral trends, and
future concept positioning and productivity.
G. Upon request of the Company's President, review various aspects of the
Company's operations and staff in order to propose and recommend methods to
achieve increased levels of efficiency and high profitability.
2.2 Non-Exclusive Services. The parties agree and acknowledge that Consultant's
services to the Company shall be provided on a non-exclusive basis and
Consultant may be retained by others and perform services in connection with
such retention.
2.3 Principal Performance. The parties agree and acknowledge that it is intended
that the services to be provided hereunder are to be solely performed by its
President and Chief Executive Officer, Xxxxxx X. Xxxxxxxx.
2.4 Support Service. The Company shall provide to the Consultant office space
for one individual during such time as Consultant is performing at the Company's
corporate office or at one of its restaurant locations, and such clerical and
secretarial services as Consultant shall reasonably require to carry out its
responsibility pursuant to this Agreement.
2.5 No Agency. The parties acknowledge and agree that in no event is Consultant
being requested, nor does Consultant intend, to be an agent of or for the
Company.
3. Compensation and Reimbursement.
3.1 Retainer. For the services rendered by Consultant pursuant to the Agreement,
the Company shall pay to Consultant a fee One Thousand Five Hundred dollars
($1500.00) per day on as called, as needed basis. Consultant will make all
reasonable efforts to be available as needed by Company.
3.2 Hours. A "day" for the purposes of the Agreement, shall consist, on average,
of eight hours of services provided by Consultant on behalf of the Company,
pursuant to the directions given to Consultant by the President for purposes
other than duties and obligations required of or performed by Consultant as a
director of the Company. Consultant agrees to provide services on an as called,
as needed basis during the term of this Agreement, to include all regular and
on-going communications regarding the status of the Company and Company
activities.
3.3 Stock Options. The Company, at its sole option, shall grant the Consultant
the option to acquire N/A shares of Common Stock pursuant to the execution of
this Agreement. Options would vest one year from date of grant, and expire ten
years from date of grant. (Section 3.3 final language to be developed and
written by Company as required).
3.4 Duties. Consultant agrees to perform its best efforts on behalf of the
Company and make all reasonable efforts to conform to the time requirements and
schedules as directed or set by the Company's President or Board of Directors.
3.5 Expenses. The company shall promptly reimburse Consultant for all of its
reasonable expenses including travel of Xxxxxx X. Xxxxxxxx with respect to his
engagement, provided expenses over $3500 for any one month shall receive prior
approval from the President. All expenses shall be paid upon written receipt by
the Company of an invoice from Consultant, and said expenses shall be submitted
monthly and paid by the Company Promptly upon receipt of said invoice.
4. Termination of Employment. Either party shall have the right to terminate
this Agreement upon thirty (30) days' written notice to the other party. In such
event, Consultant shall be entitled to fees in full for the entire month of the
date of termination.
5. Confidentiality.
5.1 Non-Disclosure. Consultant recognizes that services to be performed
hereunder are special and that, by reason of its retention hereunder, it may
acquire or has acquired confidential information concerning the Company, the use
or disclosure of which could cause the Company or its affiliates or subsidiaries
substantial loss and damages. Accordingly, Consultant agrees that it will
execute a Confidentiality Agreement as required by the Company.
5.2 Injunctive Relief. Without intending to limit the remedies available to the
Company, Consultant acknowledges that breach of the covenants contained in this
Section 5 will result in a material, irreparable inury to the Company or its
affiliates or subsidiaries for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuires precisely and that, in
the event of such a breach, the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction restraining the
Consultant from engaging in activities prohibited by this Section 5 an/or the
Confidentiality Agreement, or such other relief as may be required to
specifically enforce any of the covenants of this Section 5.
6. Indemnification. The Company will indemnify and hold Consultant (including
its officers, directors, partners, employees within the meaning of section 15 of
the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934)
harmless from and against all claims, liabilities, losses, damages and expenses
incured, including reasonable fees and disbursements of counsel, related to or
arising out of this engagement.
7. Miscellaneous.
7.1 Non-Assignability. Neither party may assign its rights or interests pursuant
to the Agreement without the prior written consent of the other party, which
consent may be granted or withheld in such party's sole discretion.
7.2 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, any successors to or assigns of the Company
and any successors to or assigns of Consultant.
7.3 Severability. Should any provision of this Agreement be unenforceable or
prohibited by applicable law, this Agreement shall be considered divisible as to
such provisions which shall be inoperative, and the remainder of this Agreement
shall be valid and binding as though such provisions were not included herein.
7.4 Amendment Waiver. This Agreement may not be modified, amended or waived, in
any manner, except by an instrument in writing signed by all parties hereto. The
waiver by any party of compliance with any provision of this Agreement by the
other party shall not operate or be construed as a waiver of any other provision
of this Agreement.
7.5 Governing Law. All matters affecting this agreement are to be governed by,
interpreted and construed in accordance with the laws of the State of Colorado.
7.6 Notices. Any notice hereunder by either party to the other shall be given in
writing by personal delivery or certified mail, return receipt requested, at the
address set forth above. Notice shall be given, if by personal delivery, on the
date of such delivery or, if by certified mail, the date shown on the applicable
return receipt.
7.7 Merger. This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior or contemporaneous negotiations, commitments,
agreements and writings with respect to the subject matter hereof. No such other
negotiations, commitments, agreements and writings are part of this Agreement
shall have any force or effect or be valid or binding on the parties hereto.
7.8 Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ROCK BOTTOM RESTAURANTS, INC.
By: _______________________
Name: Xxxxxx X. Xxxxxx
Title: President
CONCEPT MANAGEMENT, INC.
By: _______________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
