EXHIBIT 10.4
CONSULTANT AGREEMENT
This Consultant Agreement ("this Agreement") is being made and entered into as
of May 31, 2005 (the "Effective Date"), by and between The Xxxxxxxx and Xxxxxxxx
Company, an Ohio corporation ("Xxxxxxxx"), and Xxxx X. Xxxxxxx, an individual
("Consultant"). Xxxxxxxx wishes to receive the services of Consultant and
Consultant desires and agrees to perform such services for Xxxxxxxx. In
consideration of the mutual promises and undertakings set forth hereinafter, the
parties hereby agree as follows:
SERVICES
Consultant will provide Xxxxxxxx with services consistent with those
of a Chief Financial Officer and Chief Administrative Officer for
internal purposes of such roles only (the "Initial Services").
Consultant agrees to provide, if requested, certificates to Xxxxxxxx
Chief Financial Officer, or such interim Chief Financial Officer as
Xxxxxxxx may appoint, in support of the certificates required under
Rule 13a-14 of the Securities Exchange Act of 1934, as amended. As
full compensation for the Initial Services, Xxxxxxxx will pay to
Consultant an amount in cash equal to sixty five thousand dollars
($65,000) (the "Fee"), for the period beginning on June 1, 2005 and
ending on June 29, 2005 which shall be payable within thirty (30)
days following the end of the initial Term.
TERM
The initial term of this Agreement shall commence on June 1, 2005, and
shall expire on June 28, 2005. Thereafter, for a retainer amount equal to
twenty thousand dollars ($20,000) payable on June 29, 2005, Consultant
agrees to provide telephonic advisory services on demand (the "Retainer
Services" and, together with the Initial Services, the "Services")) to the
Consultant's successor, the President and Chief Executive Officer of
Xxxxxxxx and/or other members of senior management of Xxxxxxxx relating to
his prior positions with Xxxxxxxx at mutually agreeable times for the
period beginning on June 29, 2005 and ending on July 28, 2005.
CONFIDENTIALITY
Except as specifically stated in this Agreement, all information disclosed
by Xxxxxxxx to Consultant pursuant to this Agreement and all related
information ("Confidential Information") will be in confidence. Consultant
will not use Confidential Information, except as needed to perform the
Services, and Consultant will take all reasonable precautions to prevent
Confidential Information from being disclosed to third parties. Materials
containing Confidential Information, if removed by Consultant from
Xxxxxxxx' facilities, must be returned to Xxxxxxxx upon Xxxxxxxx' request.
The following information will not be considered Confidential
Information: a) information which is publicly known as of the
Effective Date; b) information which hereafter becomes publicly
known, unless as a result of the fault of Consultant; and c)
information which Xxxxxxxx agrees in writing is not confidential.
In addition, all documents developed by Consultant as a result of
performing the Services will be transmitted by Consultant only to,
and will become the exclusive property of, Xxxxxxxx and will be
treated by Consultant as Confidential Information.
LIMITATION ON ACTIONS
Any claim arising under this Agreement is barred and unenforceable unless
the party asserting it files an action on such claim within two (2) years
after that party knew or should have known of the grounds for the claim.
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WARRANTY
Consultant warrants that he will perform the Services in a professional
and workerlike manner.
TAXES
Consultant will have sole responsibility for payment of all federal, state
and local taxes or contributions imposed or required by law and for filing
all required tax forms with respect to any amounts paid hereunder.
Consultant will indemnify and hold Xxxxxxxx harmless against any claim or
liability (including penalties) resulting from Consultant's failure to pay
such taxes or contributions, or Consultant's failure to file any such tax
form.
IMPAIRING OBLIGATIONS
Consultant warrants that Consultant is not presently under, nor will
Consultant enter into in the future, any agreement or other obligation
which would in any way prevent, limit or otherwise impair the performance
of Services for Xxxxxxxx or the other obligations of Consultant hereunder.
RELATIONSHIP OF PARTIES
The relationship of Consultant and Xxxxxxxx will at all times be one of
independent contractors, and neither party will be nor represent
itself/himself to be an employee, agent, representative, partner or joint
venturer of the other, nor will either party have the right or authority
to assume or create any obligation on behalf of or in the name of the
other or to otherwise act on behalf of the other. Consultant acknowledges
and agrees that he will remain subject to, and will comply with, the
reporting obligations of Section 16 of the Securities Exchange Act of
1934, as amended.
ASSIGNMENT
All promises and other terms in this Agreement will be binding upon and
inure to the benefit of the parties hereto; provided, however, that
neither party may assign this Agreement nor shall Consultant delegate any
of his duties hereunder.
PERSONNEL ON PREMISES OF OTHER PARTY; IMDEMNIFICATION
Consultant, while on the premises of or designated by Xxxxxxxx, xxxx
comply with all reasonable rules and regulations established at such
premises or for employees, as applicable. Consultant will indemnify and
hold harmless Xxxxxxxx, and its officers, agents and employees, from and
against any and all liability, loss, damage, cost and expense (including
attorneys' fees) on account of any claim, suit or action arising from the
performance of the Services by Consultant if Consultant did not act in
good faith or in a manner he reasonably believed to be in or not opposed
to the best interests of Xxxxxxxx, or arising from any accident, injury,
or damage caused to any person or to the property of any person during the
performance of Services or the operation of any motor vehicle, or arising
from injury (including death) to Consultant or damage to or loss of
Consultant's property while on the premises of or designated by Xxxxxxxx.
Xxxxxxxx will indemnify Consultant from and against any and all liability,
loss, damage, cost and expense (including attorneys' fees) on account of
any claim, suit or action arising from the Services; provided, Consultant
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of Xxxxxxxx. Any of Consultant's expenses,
including attorneys' fees, incurred in defending any action, suit or
proceeding arising from or out of the Services, shall be paid by Xxxxxxxx
in advance of the final disposition of such action, suit or proceeding
upon the receipt of an undertaking from Consultant to repay such amount if
it is ultimately determined that Consultant is not qualified to be
indemnified by Xxxxxxxx as set forth in this Section 10.
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WAIVER
Failure of either party hereto to enforce any of the provisions of this
Agreement, or of any rights with respect thereto, will not be considered a
waiver of such provisions or rights, or in any way affect the validity of
this Agreement. The failure by either party to enforce any of such
provisions or rights will not prejudice such party from later enforcing or
exercising the same or any other provisions or rights which it/she may
have under this Agreement.
14. INVALIDITY
If any provision of this Agreement, or any portion thereof, is
subsequently held to be invalid or unenforceable under any applicable
statute or rule of law, then that provision or portion notwithstanding,
this Agreement will remain in full force and effect and such provision or
portion will be deemed omitted and this Agreement will be construed as if
such invalid or unenforceable provision or portion had not been contained
herein.
COMPLETE UNDERSTANDING
Each party acknowledges that it/he has read this Agreement and agrees that
it constitutes the complete and exclusive understanding between the
parties with respect to its subject matter. This Agreement may not be
modified except by a written instrument executed by each of the parties to
be charged.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
Effective Date.
THE XXXXXXXX AND XXXXXXXX COMPANY
By:______________________________________ __________________________
Name:____________________________________ Xxxx X. Xxxxxxx
Title:___________________________________
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