CONSULTING AGREEMENT DATED AS OF FEBRUARY 1, 2005 BETWEEN SMITH & WESSON HOLDING CORPORATION AND ROBERT L. SCOTT
EXHIBIT
10.26
DATED AS OF FEBRUARY 1, 2005
BETWEEN
XXXXX & WESSON HOLDING CORPORATION
AND
XXXXXX X. XXXXX
TABLE OF CONTENTS
| Page | ||||||||
| 1. | ENGAGEMENT | 1 | ||||||
| (a) | The Engagement | 1 | ||||||
| (b) | Duties of Consultant | 1 | ||||||
| 2. | EXTENT OF DUTIES | 1 | ||||||
| 3. | COMPENSATION | 2 | ||||||
| (a) | Fixed Compensation | 2 | ||||||
| (b) | Reimbursement | 2 | ||||||
| 4. | TERM OF ENGAGEMENT | 2 | ||||||
| (a) | Engagement Term | 2 | ||||||
| (b) | Termination Under Certain Circumstances | 3 | ||||||
| 5. | COMPETITION AND CONFIDENTIAL INFORMATION | 3 | ||||||
| (a) | Non-Competition | 3 | ||||||
| (b) | Confidential Information | 4 | ||||||
| (c) | Return of Books and Papers | 4 | ||||||
| (d) | Disclosure of Information | 5 | ||||||
| (e) | Assignment | 5 | ||||||
| (f) | Equitable Relief | 5 | ||||||
| (g) | Restrictions Separable | 6 | ||||||
| 6. | MISCELLANEOUS | 6 | ||||||
| (a) | Notices | 6 | ||||||
| (b) | Indulgences | 7 | ||||||
| (c) | Controlling Law | 7 | ||||||
| (d) | Binding Nature of Agreement | 7 | ||||||
| (e) | Execution in Counterparts | 8 | ||||||
| (f) | Provisions Separable | 8 | ||||||
| (g) | Entire Agreement | 8 | ||||||
| (h) | Paragraph Headings | 8 | ||||||
| (i) | Gender | 8 | ||||||
| (j) | Number of Days | 9 | ||||||
-i-
AGREEMENT made as of this first day of February 2005, by and between XXXXX & WESSON HOLDING
CORPORATION, a Nevada corporation (hereinafter called “Company”) and XXXXXX X. XXXXX (hereinafter
called “Consultant”).
W I T N E S S E T H:
Company desires to engage Consultant and Consultant desires to accept such engagement, all on
the terms and conditions hereinafter set forth.
(a) The Engagement. Company hereby engages Consultant, and Consultant hereby accepts such
engagement, as an independent contractor to perform the duties set forth in this Agreement.
(b) Duties of Consultant. During Consultant’s engagement by Company pursuant to this
Agreement, Consultant shall render such advice and recommendations to Company as Company may
reasonably request with respect to sales, marketing, and special projects specified by the Chief
Executive Officer of Company.
(a) Fixed Compensation. Company shall pay to Consultant as full compensation for the duties
performed by Consultant during Consultant’s engagement under this Agreement, (i) a fee at a rate of
$1,500 per month and (ii) a fee of $1,000 for each day that Consultant travels on Company business
at the request of the Chief Executive Officer, in each case to be paid on the last day of each
month during Consultant’s engagement hereunder, or in such other periodic installments upon which
Company and Consultant shall mutually agree.
(b) Reimbursement. Company shall reimburse Consultant for all travel and entertainment
expenses and other ordinary and necessary business expenses incurred by Consultant in connection
with the business of Company and Consultant’s duties under this Agreement. The term “business
expenses” shall not include any item not deductible by Company for federal income tax purposes. To
obtain reimbursement, Consultant shall submit to Company receipts, bills, or sales slips for the
expenses incurred. Reimbursements shall be made by Company monthly within 10 days of presentation
by Consultant of evidence of the expenses incurred.
(a) Engagement Term. The term of Consultant’s engagement hereunder shall commence on February
1, 2005 and shall continue until January 31, 2006, unless terminated by either party giving written
notice to the other not less than 60 days prior to the end of the then current term.
(b) Termination Under Certain Circumstances. Notwithstanding anything to the contrary herein
contained:
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(i) Consultant’s engagement shall be automatically terminated, without notice, effective upon
the date of Consultant’s death;
(ii) If Consultant shall fail, for a period of more than 30 consecutive days, or for 30 days
within any 60-day period, to perform any of Consultant’s duties under this Agreement as the result
of illness or other incapacity, Company may, at its option, upon notice to Consultant, terminate
Consultant’s engagement effective on the date of that notice;
(iii) If Consultant shall breach or violate any of the provisions of this Agreement, or fail
to perform in a manner reasonably satisfactory to Company any of the duties required of Consultant
and such breach, violation, or failure shall continue for a period of 10 days after Company shall
have given Consultant written notice specifying the nature thereof in reasonable detail, Company
may, at its option, upon notice to Consultant, terminate Consultant’s engagement effective on the
date of that notice.
(a) Non-Solicitation. During the period of Consultant’s engagement by Company and the period
ending 12 months after the termination of Consultant’s engagement by Company, regardless of the
reason therefor, Consultant shall not (whether directly or indirectly, as owner, principal, agent,
stockholder, director, officer, manager, employee, partner, participant, or in any other capacity)
(i) seek to hire or hire any employee of the Company for the purpose of having any such employee
engage in services that are the same as or similar or related to the services such employee
performed for the Company for a competitive business within the Restricted Territory or (ii)
request any customer, supplier, dealer, or distributor to curtail or cancel its business with the
Company; disclose the identity of any customer, supplier, dealer, or
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distributor of the Company; or solicit, canvass, or accept or authorize any person to solicit,
canvass, or accept any customer, supplier, dealer, or distributor any business or other
relationship for any competitive business within the Restricted Territory. As used herein,
competitive business shall mean any business that sells or provides or attempts to sell or provide
products or services the same as or substantially similar to the products or services sold or
provided by Company; and the Restricted Territory shall mean those areas in which Company sells
its products or renders its services.
(b) Confidential Information. Consultant shall maintain in strict secrecy all confidential or
trade secret information, whether patentable or not, relating to the business of Company (the
“Confidential Information”) obtained by Consultant in the course of Consultant’s engagement, and
Consultant shall not, unless first authorized in writing by Company, disclose to, or use for
Consultant’s benefit or for the benefit of any person, firm, or entity at any time either during or
subsequent to the term of Consultant’s engagement, any Confidential Information, except as required
in the performance of Consultant’s duties on behalf of Company. For purposes hereof, Confidential
Information shall include without limitation any engineering, drawings, or other reproductions or
materials of any kind; any trade secrets, knowledge, or information with respect to processes,
inventions, formulae, machinery, manufacturing techniques, or know-how; any business methods or
forms; any names or addresses of customers or data on customers or suppliers; and any business
policies or other information relating to or dealing with the purchasing, production, sales, or
distribution policies or practices of Company.
(c) Return of Books and Papers. Upon the termination of Consultant’s engagement with Company
for any reason, Consultant shall deliver promptly to
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Company all samples or demonstration models, catalogues, manuals, memoranda, drawings, and
specifications; all cost, pricing, and other financial data; all customer information; all other
written or printed materials that are the property of Company (and any copies of them); and all
other materials that may contain Confidential Information relating to the business of Company,
which Consultant may then have in Consultant’s possession whether prepared by Consultant or not.
(d) Disclosure of Information. Consultant shall disclose promptly to Company, or its nominee,
any and all ideas, designs, processes, and improvements of any kind relating to the business of
Company, whether patentable or not, conceived or made by Consultant, either alone or jointly with
others, during working hours or otherwise, during the entire period of Consultant’s engagement with
Company, or within six months thereafter.
(e) Assignment. Consultant hereby assigns to Company or its nominee, the entire right, title,
and interest in and to all inventions, discoveries, and improvements, whether patentable or not,
which Consultant may conceive or make during Consultant’s engagement with Company, or within six
months thereafter, and which relate to the business of Company. Whenever requested to do so by
Company, whether during the period of Consultant’s engagement or thereafter, Consultant shall
execute any and all applications, assignments, and other instruments that Company shall deem
necessary or appropriate to apply for, obtain, or maintain Letters Patent of the United States or
of any foreign country or to protect otherwise the interest of Company therein.
(f) Equitable Relief. In the event a violation of any of the restrictions contained in this
paragraph is established, Company shall be entitled to preliminary and permanent injunctive relief
as well as damages and an equitable accounting of all earnings,
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profits, and other benefits arising from such violation, which right shall be cumulative and
in addition to any other rights or remedies to which Company may be entitled. In the event of a
violation of any provision of subparagraph (a), (d) or (e) of this paragraph, the period for which
those provisions would remain in effect shall be extended for a period of time equal to that period
beginning when such violation commenced and ending when the activities constituting such violation
shall have been finally terminated in good faith.
(g) Restrictions Separable. Each and every restriction set forth in this paragraph is
independent and severable from the others, and no restriction shall be rendered unenforceable by
virtue of the fact that, for any reason, any other or others of them may be unenforceable in whole
or in part.
(a) Notices. All notices, requests, demands, and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly given, made, and
received when delivered against receipt or when deposited in the United States mails, first class
postage prepaid, addressed as set forth below:
(i) If to Company:
Xxxxx & Wesson Holding Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy, given in the manner prescribed above, to:
Xxxxxxxxx Traurig, LLP
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
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(ii) If to Consultant:
Xxxxxx X. Xxxxx
0000 X. Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
0000 X. Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Either party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this paragraph for the giving
of notice.
(b) Indulgences. Neither any failure nor any delay on the part of either party to exercise
any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege, nor shall any
waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power, or privilege with respect to any other occurrence.
(c) Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement, shall be governed by and construed in accordance with
the laws of the state of Massachusetts, notwithstanding any Massachusetts or other
conflict-of-interest provisions to the contrary.
(d) Binding Nature of Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal representatives, successors, and
assigns, except that neither party may assign or transfer such party’s rights or obligations under
this Agreement without the prior written consent of the other party.
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(e) Execution in Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken together, shall
bear the signatures of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are independent of and separable
from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue
of the fact that for any reason any other or others of them may be invalid or unenforceable in
whole or in part.
(g) Entire Agreement. This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing.
(h) Paragraph Headings. The paragraph headings in this Agreement are for convenience only;
they form no part of this Agreement and shall not affect its interpretation.
(i) Gender. Words used herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or plural, and any other gender,
masculine, feminine, or neuter, as the context requires.
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(j) Number of Days. In computing the number of days for purposes of this Agreement, all days
shall be counted, including Saturdays, Sundays, and holidays; provided, however, that if the final
day of any time period falls on a Saturday, Sunday, or holiday, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or holiday.
| XXXXX & WESSON HOLDING CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| President | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
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