February 12, 1997
Board of Directors
Country Star Restaurants, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Gentlemen:
The undersigned agrees that upon receipt of the appropriate notice from
Country Star Restaurants, Inc. (the "Company"), I shall enter into the
Consulting Agreement annexed hereto.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
/mi
CONSULTING AGREEMENT
Consulting agreement (the "Agreement") dated as of ____________ ___, 199__
by and between Country Star Restaurants, Inc., a Delaware corporation having
offices at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000 (the "Company") and Xxxxxx X. Xxxxxxxx, an individual residing at 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Individual").
W I T N E S S E T H:
WHEREAS, Individual has been employed by the Company as its Chief
Executive Officer since December 1993 pursuant to an Employment Agreement, which
employment was amended in August 1994 and was subsequently amended in July of
1996 (such agreement, as amended, the "Employment Agreement"); and
WHEREAS, since inception of the Company, Individual has served as the
Chairman of the Board of Directors of the Company; and
WHEREAS, each of the Company and the Individual desires to terminate
Individual's Employment Agreement and services as the Company's Chief Executive
Officer and a director of the Company, and the Company wishes to retain the
services of the Individual as a consultant to the Company and each of the
parties hereto wishes to clarify the rights and obligations that each have with
respect to the other in connection with Individual's consultancy.
NOW, THEREFORE, in consideration of the agreements and covenants herein
set forth, the parties hereto agree as follows:
1. Consulting. The Company hereby retains Individual as a consultant, and
Individual hereby accepts such consultancy and agrees to render his services as
a consultant for the "Term" (as defined in Section 4 below) of this Agreement,
subject to all of the provisions herein set forth.
2. Duties and Responsibilities of Consultant. Individual agrees to provide
the Company with his personal services as a consultant on a non-exclusive basis
with respect to any matters required by the Company which relate to the business
now or hereafter carried on or contemplated by the Company. Notwithstanding the
non-exclusivity of such consultancy, Consultant expressly acknowledges and
agrees that during the term of this consultancy he shall not render any services
whatsoever to any other corporation, partnership, individual, entity or person
in connection with the restaurant industry. It is expressly acknowledged and
agreed that in connection with the performance of Individual's duties as a
consultant hereunder, Individual shall not be obligated to devote a minimum
number of hours per week to the business of the Company, but rather, the amount
of time and effort required hereunder on the part of the
Individual as a consultant to the Company shall be subject to the good faith and
mutual determination of the Individual and the Company. Notwithstanding the
foregoing, Individual shall report to the Company's Board of Directors and Chief
Executive Officer and shall be available for consultation for each of the ten
(10) full business days (9:00 a.m. through 5:00 p.m.) following the effective
date of this Agreement.
3. Consideration. As full and total consideration for his services
hereunder, the Company shall: (i) pay to the Individual for the Term hereof, the
applicable pro-rata amount of Individual's "Base Salary" (as that term is
defined in the Employment Agreement), payable in bi-weekly annual installments;
(ii) provide to Individual for the Term hereof, at the Company's cost, and for
three (3) months thereafter, the health insurance benefits that Individual was
receiving from the Company immediately prior to the commencement of the Term of
this Agreement; and (iii) pay on behalf of Individual for the Term hereof and
for three (3) months thereafter, $1,500 per month with respect to the automotive
lease currently paid for by the Company. It is expressly understood and agreed
that in the event of the death, incapacity or disability (as defined in the
Employment Agreement) of Individual prior to the expiration of the Term of this
Agreement (or prior to the one year anniversary of the commencement of this
consultancy agreement with respect to the health insurance and automotive
allowance) that the Company shall nevertheless continue to be obligated to make
the payments due pursuant to this Section 3 to Individual's estate, executives
or administrators as the case may be. Individual shall be entitled to receive
all benefits and remuneration hereunder without the Company having any right of
setoff whatsoever, with respect to any monies, payments, considerations, loans,
guarantees, extensions of credit, or any benefits of any nature that may have
been received by Individual or extended by the Company in connection with the
Employment Agreement or otherwise; provided, however, that all of such items
received by Individual or extended by the Company were duly and properly
authorized by the Company's Board of Directors. In addition, it is expressly
agreed that the Individual shall not be entitled to any payments relating to the
Employment Agreement (including severance payments contemplated under Section 8
thereof) and that the Individual shall hold harmless and release the Company
from all liability and obligations under the Employment Agreement.
4. Term; Effect of Notice. The term of this Agreement shall commence
immediately upon receipt by Individuals of a written notice from the Company in
accordance with the immediately following sentence (the "Notice"), and shall
expire nine (9) months thereafter. To be effective, such Notice shall be given
in accordance with the terms of Section 6 below and shall state that
Individual's Employment Agreement is automatically and immediately terminated
and that this Agreement is automatically in full force and effect. Individual
expressly
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agrees that upon the receipt of the Notice, that the Employment Agreement,
except as otherwise expressly set forth herein, shall be terminated
automatically and shall be null and void in all respects and each of Cameron
Capital Ltd. and the Company expressly acknowledges and agrees that this
Agreement shall automatically become effective immediately upon commencement of,
and shall remain in effect throughout, the Term. In addition, upon Individual's
receipt of the Notice, Individual shall automatically be deemed to have resigned
from the Company's Board of Directors, effective immediately and without
disagreement.
5. Non-Competition; Termination for Cause. Notwithstanding the termination
of the Employment Agreement, Individual expressly agrees that the
non-competition provisions set forth in Section 9 of the Employment Agreement
shall remain in full force and effect upon the termination of the Employment
Agreement and the entering into of this agreement. In addition the termination
for cause provisions in Section 8(a) of the Employment Agreement are
incorporated herein by reference and shall apply to the termination of
Consultant's engagement hereunder.
6. Notices. Except as otherwise specified herein to the contrary, all
notices, requests, demands and other communications required or desired to be
given hereunder shall only be effective if given in writing by hand, by
certified or registered mail, return receipt requested, postage prepaid, or by
U.S. express mail service, or by private overnight mail service (e.g. Federal
Express). Any such notice shall be deemed to have been given (a) on the business
day actually received if given by hand or facsimile transmission, (b) on the
business day immediately subsequent to mailing, if sent by U.S. express mail
service or private overnight mail service, or (c) three (3) business days
following the mailing thereof, if mailed by certified or registered mail,
postage prepaid, return receipt requested, and all such notices shall be sent to
the addresses first set forth above, or to such other address or addresses as a
party may have advised the other in the manner provided in this Section 6, or in
the case of the Individual, at Individual's office address, which is the same
address as the Company.
7. Inurement; Assignment. In the event of a sale of the Company, or a
division, subsidiary or affiliate thereof, whether by way of stock sale, sale of
assets, merger or other business combination, as applicable, the rights and
obligations of the Company under this Agreement shall inure to the benefit of
and shall be binding upon any successor of the Company or to the business of the
Company, subject to the provisions hereof. The Company may assign this Agreement
to any person, firm or corporation controlling, controlled by, or under common
control with the Company provided that, in the event of any such assignment, the
services to be rendered by Individual to such assignee shall be of the same
nature and professional status
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provided for in this Agreement. The Company's obligations hereunder shall be
unaffected by any assignment. Neither this Agreement nor any rights or
obligations of Individual hereunder shall be transferable or assignable by
Individual.
8. Entire Agreement. This Agreement sets forth the entire and only
agreement or understanding between the parties relating to the subject matter
hereof and supersedes and cancels all previous agreements, (including, without
limitation, the Employment Agreement) negotiations, letters of intent,
commitments and representations in respect thereof between them, and no party
shall be bound by any conditions, definitions, warranties or representations
with respect to the subject matter of this Agreement as provided in this
Agreement.
9. Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement hereof shall be deemed to be a waiver of any
other provision, condition or requirement hereof; nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
10. Preservation of Intent. Should any provision of this Agreement be
determined by a court having jurisdiction in the premises to be illegal or in
conflict with any laws of any state or jurisdiction or otherwise unenforceable,
the Company and Individual agree that such provision shall be modified to the
extent legally possible so that the intent of this Agreement may be legally
carried out and the provisions hereof may be enforced to the maximum extent
possible.
11. Amendment. This Agreement may not be amended in any respect except by
an instrument in writing signed by the parties hereto.
12. Headings. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute one and the same instrument.
14. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of California,
without giving reference to principles of conflict of law. Each of the parties
hereto irrevocably consents to the venue and jurisdiction of the federal and
state courts located in the State of California, County of Los Angeles.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COUNTRY STAR RESTAURANTS, INC.
By:___________________________________
Name:
Title:
______________________________________
Xxxxxx X. Xxxxxxxx
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