EXHIBIT 10.52
CONSULTING AGREEMENT
AGREEMENT (this "Agreement") made as of this 23rd day of March, 1999 by
and between SHELLS SEAFOOD RESTAURANTS, INC., a Delaware corporation with its
principal offices in Tampa, Florida (the "Company"), and XXXXXXX X. XXXXXXX, an
individual residing in the State of New York ("Consultant").
WITNESSETH
WHEREAS, the parties hereto acknowledge and agree that Consultant has
been a Director of the Company since 1998 and has valuable knowledge and
experience relating to the business of the Company;
WHEREAS, the Company desires to engage Consultant to serve the Company
with respect to monitoring the Company's financial reporting, certain
operational matters and various other projects (the "Services"), and Consultant
desires to so assist the Company, upon the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as follows:
1. ENGAGEMENT.
(a) The Company hereby engages Consultant, and Consultant
hereby accepts such engagement, subject to the terms and conditions herein set
forth.
(b) Consultant shall perform the Services as requested from
time to time by the Executive Committee of the Company's Board of Directors.
Consultant shall be required to report only to the Chairman of the Executive
Committee, presently Xxxxxxxxx X. Xxxxx, and not to any other person or entity
associated with the Company.
(c) It is expressly understood and agreed that Consultant
shall perform his duties hereunder as an independent contractor. Consultant
shall not be considered an agent of the Company nor shall he have authority to
contract in the name of or bind the Company, except as expressly agreed to in
writing by the Company. Under no circumstances shall Consultant be, or be deemed
to be, an employee of the Company for any purpose, including without limitation,
for purposes of employee benefits, compensation and perquisites.
(d) It is expressly understood and agreed by the parties that
Consultant shall
continue to be designated an "independent director" within the meaning of Rules
4310(c)(25)(B) and (C) of the Market Place Rules of the Nasdaq Stock Market and
a "non-employee director" within the meaning of Section 4 of the Company's Stock
Option Plan for Non-Employee Directors. In addition, it is expressly understood
and agreed by the parties that for so long as Consultant remains a Director of
the Company, he shall continue to be subject to, and shall continue to execute
his duties as a Director in accordance with, his fiduciary duties as a Director
of the Company under all applicable laws, regulations or rules. The Company
acknowledges that in the event of any conflict between Consultant's duties as a
Director and his duties contemplated by this Agreement, Consultant shall resolve
such conflict in order to act in conformity with his duties as a Director.
2. TERM. The term of this Agreement shall begin on the date hereof and
shall be in effect for a term of one year, to automatically renew annually
thereafter. This Agreement may be terminated by either party upon thirty (30)
days prior written notice; PROVIDED, HOWEVER, that any termination by the
Company must be in a writing signed by the Chairman of the Executive Committee
of the Company's Board of Directors.
3. COMPENSATION. As compensation for the services to be rendered by
Consultant hereunder, the Company agrees to pay to Consultant a consulting fee
of $5,000 per calendar quarter, payable on the last day of each such quarter.
The consulting fee shall be deemed earned on a pro rata basis, based on the
number of days in each calendar quarter. Consultant shall not be entitled to any
additional compensation, for expenses or otherwise, in connection with rendering
services hereunder; PROVIDED, HOWEVER, Consultant shall be entitled to
reimbursement of properly documented expenses reimbursable under the Company's
standard expense reimbursement policies.
4. SEVERABILITY. Any provision of this Agreement which is held to be
invalid and unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the law of
conflicts.
6. SUCCESSORS AND ASSIGNS. The services to be performed by Consultant
hereunder are personal and may not be assigned. This Agreement shall be binding
upon and inure to the benefit of the Company, its successors and assigns.
7. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relating to the subject matter of this Agreement and
supersedes all prior or contemporaneous agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
respecting such subject matter.
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8. AMENDMENTS. This Agreement shall not be amended or modified except
by a writing duly executed by the parties hereto.
9. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be signed
in counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Agreement. For purposes of this Agreement, a
facsimile copy of a party's signature shall be sufficient to bind such party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
SHELLS SEAFOOD RESTAURANTS, INC.
BY: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President and CEO
BY: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
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