Exhibit 10(cc)
CONSULTANT AGREEMENT
Consultant Name: Xxxx X. Xxxxx Position: Development Consultant
Address: 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000
Date: July 20, 2001
1. Introduction. I, the consultant named above ("Consultant"), and Luby's
Restaurants Limited Partnership, a Texas partnership ("Luby's), enter into this
Consultant Agreement (the "Agreement"). Luby's and I agree as follows:
2. Services to be Performed by Consultant. Consultant is hereby retained to
develop or assist in the development of real estate and to assist in work-outs
with regard to lease agreements. During the performance of the Agreement,
Consultant agrees to comply with all applicable federal, state, county and
municipal laws, rules and regulations that are now or may be in the future
become applicable to Luby's business. Consultant agrees to inform Luby's
immediately upon becoming aware of any possible claim against Luby's that could
be brought by a third party.
3. Independent Consultant. I understand that I, as an Independent Consultant,
will be paid monthly the following amount: $16,666.67. No deductions will be
made for federal, state or local taxes or any other withholdings or off-sets
required by law. I shall be responsible for all such amounts.
4. Compensation and Benefits. (a) For all the services rendered by me under
this Agreement, and for so long as this Agreement remains in effect, I alone and
not Luby's, will be responsible for the payment of all federal, state and local
taxes in respect of the payments to be made and benefits to be provided under
this Agreement or otherwise (except to the extent withheld by Luby's). (b)
Luby's shall provide Consultant's and his family's regular monthly group health,
life and disability insurance benefits. The provision of said benefits by
Luby's during the term of this Agreement shall constitute COBRA continuation
coverage as a result of Consultant's termination of employment with Luby's.
Following the term of this Agreement, any remaining portion of the COBRA
continuation coverage period shall be at the election and expense of the
Consultant.
5. Term of Agreement; Termination. (a) The term of this Agreement will from
the date written above through July 20, 2002. With reasonable cause, Luby's
may terminate this Agreement effective immediately upon the giving of written
notice of termination for cause. Reasonable cause shall include but shall mean:
(a) willful and continued failure of Consultant to substantially perform his
duties, or (b) Consultant willfully engaging in gross misconduct (active or
passive), gross negligence, fraud or dishonesty which has resulted in, or is
likely to result in, material injury to the Company. Such termination, however,
shall not relieve Consultant from performance of any continuing obligations
provided for under this Agreement.
6. Confidential Information. I acknowledge that the law provides companies,
such as Luby's with protection for their trade secrets and confidential
information. "Confidential Information" can include, without limitation both
technical and non-technical information such as formulas, processes, recipes,
specifications, compilations of information, financial information, vendor
lists, preparation methods or procedures, manufacturing techniques, trade
secrets, or special knowledge. I will not disclose, directly or indirectly, any
of Luby's' confidential business information or confidential technical
information to anyone without authorization from Luby's management. I will not
use any of Luby's' confidential business information or confidential technical
information in any way, either during or after this agreement with Luby's,
except as required in the course of this Consultant Agreement. Luby's shall
receive the exclusive benefit and be the sole owner of all products, recipes,
formulas, processes, specifications, preparation methods, and procedures, in
whole or in part, or any confidential information, made by me in the course of
or as a result of this agreement. I agree not to publish, communicate, or in
any way disseminate the confidential information that I develop on behalf of
Luby's. (b) All originals and all copies of any manuals, reports, computer
programs or data, notebooks, notes, photographs, and all other recorded, written
or printed matter relating to research, manufacturing operations, or business of
Luby's made or received by me during my relationship by Luby's are the property
of Luby's. Upon termination of this Agreement, whether or not for cause, I will
immediately deliver to Luby's all property of Luby's which may still be in my
possession. I will not remove or assist in removing such property from Luby's'
premises under any circumstances, either during my consulting relationship or
after termination thereof, except as authorized by Luby's management. (c) I
agree that I will be responsible for maintaining the secrecy and confidentiality
of such confidential information as required herein, and will be responsible for
such and agree to indemnify Luby's for all damages which Luby's may sustain as a
result of any unauthorized disclosure of such confidential information, or as a
result of any breach of this agreement whatsoever. In addition to other
remedies, Luby's shall be entitled to an injunction or other equitable relief
for any breach of this agreement. (d) Luby's will be the sole owner of any and
all of my inventions that are related to Luby's' business, as defined in more
detail below. For purposes of this Agreement, "Inventions" means all
inventions, discoveries, and improvements (including without limitation, any
information relating to specifications, formulations, preparation methods or
procedures, manufacturing techniques, processes, recipes, trade secrets, special
knowledge, developments or experimental work, work in progress, or business
trade secrets), along with any and all other work product relating thereto. (e)
An invention is "related to Luby's' business" ("Luby's-related Invention"), if
it is made, conceived, or reduced to practice by me (in whole or in part, either
alone or jointly with other, whether or not during regular working hours),
whether or not potentially patentable or copyrightable in the U.S. or elsewhere,
and it either (i) involves equipment, supplies, facilities, or trade secret
information of Luby's; (ii) involves the time for which I was compensated by
Luby's' (iii) relates to the present or reasonably anticipated future business
of Luby's or to Luby's' actual or anticipated research or development; or (iv)
results, in whole or in part, from work performed by me for Luby's.
7. Consultant Handbooks, Etc. From time to time, Luby's may establish,
maintain, or distribute Consultant manuals or handbooks or policy manuals, and
officers or other representatives of Luby's may make written or oral statements
relating to policies and procedures. Such manuals, handbooks and statements are
intended only for general guidance. No policies, procedures or statement of any
nature by or on behalf of Luby's (whether written or oral and whether or not
contained in any Consultant manual or handbook or policy manual), and no acts or
practices of any nature, will be construed as modifying this Agreement or as
creating any express or implied obligations of any nature to me.
7. No Authority to Bind Luby's. Consultant has no authority to enter into any
contracts or agreements on behalf of Luby's. This Agreement does not create a
partnership, joint venture, or joint undertaking of any kind between the
parties.
8. No Assignment Rights. Consultant may not subcontract this Agreement, or
any part hereof, without express written permission from Luby's. Any
subConsultant that is permitted to perform any part of the Services shall be
specifically bound by all of the terms and covenants hereof; however, Consultant
will remain primarily responsible for all services provided by such
subConsultant.
9. Arbitration. To the greatest extent permitted by applicable law, any
dispute, controversy, or claim arising out of or related to this Agreement will
be submitted to binding arbitration pursuant to the Federal Arbitration Act with
hearings to be held in San Antonio, Texas, in accordance with the American
Arbitration Association Commercial Rules in effect on the date of the demand for
arbitration. The arbitrator(s) shall be selected by agreement of the parties,
or if they cannot agree on an arbitrator(s) within 30 days after a claim is
made, then the arbitrator shall be selected by the American Arbitration
Association. In any such arbitration, Consultant shall be entitled to seek both
legal and equitable relief and remedies. The arbitrator shall not be bound by
judicial formalities and may abstain from following the strict rules of evidence
and shall interpret this agreement as an honorable engagement and not merely as
a legal obligation. Luby's will pay all arbitration fees, whether the
arbitration is initiated by the Company or Consultant. Luby's will pay, upon
demand by Consultant, all attorney's fees and costs which Consultant may
reasonably incur in connection with any arbitration to enforce this Agreement,
plus interest; provided, however, that this provision for fees and costs shall
not apply unless Consultant recovers an amount in excess of the amount the
Company had offered prior to the commencement of the arbitration hearing. To
protect trade secrets or other confidential information, Luby's may seek
temporary or preliminary injunctive relief in a court of arbitration tribunal
may take any interim measures it deems necessary with respect to the subject
matter of the dispute, including measures for the preservation of
confidentiality granted in this Agreement. Judgment upon the award rendered by
the arbitrator(s) may be entered into in any court having jurisdiction.
10. Indemnification. Consultant (and his predecessors, heirs, successors,
executors, assigns and legal representatives) will DEFEND, PROTECT, INDEMNIFY
and hold Luby's (and its affiliated companies or entities, predecessors,
successors, officers, directors, shareholders, employees, agents, legal
representatives, attorneys, and insurers) harmless against any and all claims,
demands, causes of action and judgments of every kind and character, including
court costs and attorney's fees, arising, occurring, growing out of, incident
to, or resulting directly or indirectly from Consultant's negligence, gross
negligence, willful misconduct, intentional act or material misrepresentation
while providing services under this Agreement. Consultant (and his
predecessors, heirs, successors, executors, assigns and legal representatives)
agrees to hold Luby's (and its affiliated companies or entities, predecessors,
successors, officers, directors, shareholders, employees, agents, legal
representatives, attorneys, and insurers) harmless from any and all costs
associated with any personal injury or death that may be suffered by Consultant,
his employees, assistants, assignees, transferees or designees while performing
the Services. This indemnity is subject to any restrictions or limitations
imposed by law, but only to the extent of such restrictions or limitations.
11. Miscellaneous. (a) I have no obligations, contractual or otherwise,
inconsistent with my obligations set forth in this Agreement. (b) This
Agreement will remain in full force and effect after any termination of this
Agreement with respect to my obligations concerning confidential or proprietary
information and concerning assignment of Luby's-related Inventions or
Confidential Information. (c) This Agreement sets forth the entire agreement of
the parties concerning the subjects covered herein; there are no promises,
understandings, representations or warranties of any kind concerning those
subjects except as expressly set forth in this Agreement. (d) Any modification
of this Agreement must be in writing and signed by all parties; any attempt to
modify this Agreement orally or in writing, not executed by all parties will be
void. (e) If any provision of this Agreement or its application to anyone or
under any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability will not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application and will not invalidate or
render unenforceable such provision or application in any other jurisdiction.
(f) This Agreement will be governed by and interpreted under the laws of the
state of Texas as applied to contracts made and carried out in Texas by
residents of Texas. (g) No failure on the part of any party to enforce any
provisions of this Agreement will act as a waiver of the right to enforce that
provision. This Agreement contains provisions requiring arbitration of
disputes. By signing this Agreement, I acknowledgment that I have read the
entire Agreement; I have had the opportunity to ask questions and consult
counsel or other advisors about its terms, and I agree to be bound by it.
LUBY'S RESTAURANTS LIMITED Consultant's Signature
PARTNERSHIP
By: /s/ Xxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
________________________________ ____________________________
Printed Name: Xxxxx Xxxxxxx Printed Name: Xxxx X. Xxxxx
Title: Senior Vice President-Administration
