EXHIBIT 10.11
CONSULTANT AGREEMENT
This Consultant Agreement ("Agreement") is made and entered into this
18th day of May, 2001 by and between Bakers Footwear Group, a Missouri
corporation ("Client"), having a mailing address of 0000 Xxxxx Xxx., Xx. Xxxxx,
XX 00000, and Xxxx X. Xxxxx & Associates, LLC, a Missouri limited liability
company ("Consultant"), having a mailing address of 00 Xxxxxxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx, XX 00000.
WITNESSETH:
In consideration of the mutual covenants and conditions herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Engagement: Client hereby offers to engage Consultant, as its exclusive
representative within the United States (the "Territorial Boundaries") to render
the Services described herein, and Consultant hereby accepts such engagement and
agrees to render to Client such Services, subject to all of the terms and
conditions hereof.
2. Services: Consultant will represent Client by providing the Services
described in Exhibit A hereto. Consultant shall allocate such time and attention
as is reasonably necessary to perform the Services, but nothing herein shall be
deemed to prohibit or preclude Consultant from pursuing or engaging in any other
ventures or activities, even if competitive with the business of Client. Client
hereby acknowledges that such other ventures and activities shall not be deemed
wrongful, improper or a breach of any express or implied fiduciary or other duty
or obligation Consultant may have or be deemed to have. Consultant shall not be
obligated to present any particular investment opportunity to Client even if
such opportunity is of a character which, if presented, could be taken by
Client.
3. Term: Consultant shall provide the Services for a term (the "Initial Term")
commencing as of June 1, 2001 and continuing through May 31, 2002. At the end of
the Initial Term or any Renewal Term, this Agreement shall be automatically
renewed for an additional term of one (1) month (a "Renewal Term") unless either
party gives written notice to the other, at least sixty (60) days prior thereto,
that such party elects to not renew this Agreement. The Initial Term and all
Renewal Terms are collectively referred to herein as the "Term." The provisions
of Sections 4-7 of this Agreement and of Exhibit B to this Agreement shall
survive and remain in effect after the expiration or any earlier termination of
the Term.
4. Compensation: Client hereby agrees to pay to Consultant, in consideration of
performance of the Services, in accordance with the terms set forth on Exhibit B
attached to this Agreement. Consultant specifically understands and agrees that
as an independent contractor, Consultant is responsible for the payment of all
taxes including but not limited to payroll taxes, income taxes and social
security taxes, and that Client shall have no
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liability whatsoever for the payment of any such amounts in connection with
Consultant's receipt of fees pursuant to this Agreement.
5. Expense Approval/Reimbursement: Client agrees to reimburse Consultant for all
reasonable expenses directly related to performing the Services, with the
exception of Home Office Expenses. Reimbursement by Client to Consultant is to
be paid within fifteen (15) days after Client receives a reasonably detailed and
itemized expense report submitted by Consultant. For purposes hereof, the term
"Home Office Expenses" shall mean all costs associated with the purchase or
lease of telephone and computer equipment, fax machines, furniture, fixtures and
general office supplies, utilities and insurance, it being agreed that
Consultant shall provide all such facilities and equipment on its own, and be
solely responsible for all such ordinary day to day expenses. Notwithstanding
the foregoing, Consultant shall be entitled to reimbursement of all
long-distance telephone charges and all courier and overnight delivery charges
incurred by Consultant in performing the Services. Consultant shall also be
reimbursed for all expenses incurred while traveling outside the St. Louis area
on behalf of Client (including transportation, food and lodging) provided,
however, that all such out-of-town trips shall be pre-approved by Client.
6. Independent Contractor: It is the intention of the parties that the
relationship between them shall not be that of employer/employee, but rather
that at all times Consultant's performance of Services hereunder shall be as an
independent contractor. Consultant recognizes that as an independent contractor,
Consultant is not entitled to receive or participate in any fringe benefits
generally made available to Client's employees, including but not limited to
medical and health plans, pension plans, savings plans or other benefits now or
hereinafter in effect. In order to accurately represent its responsibilities to
third parties, Consultant shall be permitted to refer to itself as "Consultant"
or "Leasing Representative" for Client. Consultant agrees that it is not acting
with power of attorney for Client in any proposed transaction, that it has no
power or authority to accept any offer or otherwise bind Client, and that before
Client will be bound to any lease or other agreement Client must execute the
same.
7. Indemnification. Notwithstanding anything herein to the contrary, Client
agrees to indemnify and hold harmless Consultant from and against any and all
liabilities, damages, suits, judgments, causes of action, costs and expenses
(including reasonable attorneys' fees, court costs and out-of-pocket expenses)
suffered or incurred by Consultant as a result of any claims arising out of or
related to any actions of Consultant in performing Services on behalf of Client
pursuant hereto, including but not limited to any claim based on any lease or
other agreement entered into by Client, and any claim based upon information
provided to Consultant by or on behalf of Client, excluding only such matters
which are the direct result of Consultant's gross negligence or intentional
misconduct.
8. Entire Agreement/Amendments: This Agreement contains the entire understanding
between the parties concerning the subject matter hereof and supersedes all
prior agreements, understandings, discussions, negotiations and undertakings,
whether written or oral, among the parties with respect thereto. The terms of
any employee manual, handbook, or any policy of the Company shall not modify,
alter, or invalidate any term of this Agreement, and in case of any conflict
between the terms of this Agreement and any such policy, handbook or manual, the
terms of this Agreement
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control. This Agreement may be amended, in whole or in part, only by a written
agreement signed by both parties and specifically referring to this Agreement.
9. Assignments: This Agreement and all of the rights and obligations hereunder
are personal with respect to Consultant and may not be assigned, in whole or in
part, by either party or by operation of law, without the prior written consent
of both parties.
10. Exclusive Jurisdiction. The parties agree that venue shall properly lie in
the Circuit Court of St. Louis County, Missouri, and (if federal jurisdiction
exists) the Eastern District of Missouri, which Courts shall have exclusive
jurisdiction over all controversies, proceedings, applications, orders,
judgments or other actions in any way related to this Agreement. The parties
waive all objections to jurisdiction and venue in any other forum.
11. Exhibits. All exhibits and schedules referred to in this Agreement are
attached to and incorporated into this Agreement by reference.
12. Expenses of Prevailing Party. In the case of any legal or equitable action
taken by either party in connection with the default of the other party, the
prevailing party will be entitled to recover from the other party all costs and
reasonable legal fees incurred in connection therewith. A prevailing party is a
party who recovers at least three-quarters of its total claims in the action or
who is required to pay no more than one-quarter of the other party's total
claims in the action.
13. Facsimile Signatures. The parties intend that faxed signatures shall
constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of the parties is binding. At the request of
either party, the parties will confirm facsimile transmitted signatures by
signing an original Agreement.
14. Further Assurances. Each party agrees to execute, acknowledge, deliver,
file, record and publish such further certificates, instruments, agreements and
other documents, and to take all such further action as may be required by law
or reasonably deemed necessary in furtherance of the purposes, objectives and
intentions underlying this Agreement.
15. Governing Law. This Agreement will be governed by and construed under the
internal substantive laws of the State of Missouri without reference to
conflicts of law principles.
16. Headings. The headings in the sections of this Agreement are inserted for
convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties.
17. Invalid Provisions. If any provision in this Agreement is or will become
invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions of this Agreement and any other
application thereof will not in any way be affected or impaired thereby;
provided that if permitted by applicable law, any invalid, illegal, or
unenforceable provision may be considered in determining the intent of the
parties with respect to other provisions of this Agreement.
18. No Waivers. The failure or delay of either party hereto in requiring strict
performance by the other party of any covenant of this Agreement will not
constitute a waiver of such covenant or of the right to require strict
performance thereof.
19. Notices. A party may effect a valid notice pursuant to this Agreement only
by giving such notice in writing and delivering it, postage or charges prepaid,
in person, by certified mail, by overnight delivery service, by electronic mail,
or by facsimile transmission, to
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the parties respective addresses set forth in the caption of this Agreement or
to such substituted address as may be designated by such notice to the other
party. Same day delivery by messenger will constitute personal delivery. Such
notice will be deemed effective two (2) days after properly mailed; one (1) day
after properly consigned to an overnight delivery service; upon receipt of
personal delivery; or, in the case of notice via electronic mail or facsimile
transmission, on the day the sender receives electronic confirmation of receipt;
provided that if the receipt does not occur before 4 p.m., recipient's local
time, on a business day, the notice will take effect on the next business day.
20. Confidentiality. Consultant agrees, for themselves and all persons retained
or employed by Consultant in performing its services, to hold in confidence and
not to use or disclose to others any confidential or proprietary information of
Client heretofore or hereafter disclosed to Consultant including, but not
limited to, any data, information, plans, programs, processes, costs,
operations, or store locations which may come within the knowledge of Consultant
in the performance of, or as a result of, its services.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
have caused this Agreement to be executed by their respective duly authorized
representatives.
XXXX X. XXXXX & ASSOCIATES, LLC Bakers Footwear Group
By: /s/ XXXX X. XXXXX By: /s/ XXXXX XXXXXX
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Name: Xxxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: President Title: Chairman & CEO
Date: 5/18/01 Date: 5/26/01
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EXHIBIT A
(Description of Services)
The parties agree that Consultant shall provide the following real
estate consulting services (the "Services") on behalf of Client and as its
exclusive representative within the Territorial Boundaries. Consultant shall
perform such Services in good faith and to the best of his ability.
o Site selection and negotiation of "deal terms" for regular price new store
locations at selected shopping center malls not currently tenanted by Xxxxx &
Xxxxxx shoe stores. Consultant shall also negotiate lease renewals,
extensions and relocations of existing Xxxxx & Xxxxxx shoe stores as directed
by Client.
o Client may also offer Consultant additional "special projects," to be
determined at a later time with regard to other real estate matters.
Consultant may at his option choose not to accept such "special projects."
Price and payment terms to be agreed upon by both parties prior to acceptance
of "special projects."
o Notwithstanding anything in this Agreement to the contrary, the parties
specifically acknowledge and agree that Consultant is not an attorney, and
shall not be responsible for the actual drafting of leases or any other
agreements on behalf of Client, or for their enforceability or compliance
with any applicable laws. All such matters shall be the responsibility of
Company and its attorneys. Consultant shall have no authority, nor shall it
hold itself out as having any real or apparent authority, to execute any
document on behalf of Client or to bind Client to any lease or intention to
lease or any agreement for payments of fees or commissions to any third party
or as to any other act which would place obligations to impose liability on
Client. Client shall have the right to approve, in its sole discretion, the
terms and conditions and form of any proposed lease. After a particular
location has previously been approved by Client, no change at such location
shall be made without Client's express consent. Client may, if it deems
necessary or desirable, enter into any negotiations directly with any
perspective landlord produced by Consultant and for location approved by
Client; such direct negotiations by Client shall not effect the amount of any
fee due Consultant.
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EXHIBIT B
(Schedule of Compensation)
1. Client will pay to Consultant a monthly "consulting fee" of six thousand
dollars ($6,000.00) as a retainer to be paid within five (5) days after the
first day of each month throughout the Term.
2. Client will pay Consultant a fee of five thousand dollars ($5,000) for each
license agreement or lease executed by Client and the landlord for each new
store location developed by Consultant whose term is greater than three (3)
years. If the term of said new store lease or license agreement is less the
three (3) years, then Client shall pay Consultant a fee of two thousand five
hundred dollars ($2,500). In addition, Consultant shall be paid a "renewal fee"
of two thousand five hundred dollars ($2,500) for each lease renewal, extension
and relocation of Xxxxx & Xxxxxx'x "Bakers" and "Wild Pair" stores during the
term of this agreement. Payment shall be made within thirty (30) days after May
31, 2001. The monthly "consulting fee" shall be credited against said "renewal
fee" with the balance, (a negative balance shall equal zero dollars($0)), paid
to Consultant as herein stated. Such payment for new store locations will be
made within thirty (30) days after the later to occur: (a) receipt of
Consultant's invoice via fax or mail or, (b) the mutual execution of each lease.
3. If, within ninety (90) days after the expiration of the Term or any earlier
termination of this Agreement, any lease or other agreement regarding any of the
Services described herein with a party contacted by Consultant on Client's
behalf and designated on a Prospect List agreed to by Client and Consultant at
the expiration or earlier termination of this Agreement is entered into by
Client with a person or entity within the Territorial Boundaries, then
compensation as provided above shall be due and payable to Consultant as
described in paragraph 2 above.
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