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EXHIBIT 10.11.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and effective as of December 1,
1997, by and between XXXXXXX X. XXXXXXXX ("Consultant"), residing at 0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, and XXXXXXX, INC., an Ohio corporation
("Employer"), with its principal place of business at 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxx 00000-0000, Attention: General Counsel.
WHEREAS, Consultant co-founded Xxxxxxx, Inc. in 1971, and has served as its
President since then;
WHEREAS, Consultant desires to continue as a member of the Board of Directors of
Employer ("Board"), and its Chairman, and to provide certain consulting services
to Employer;
WHEREAS, Employer desires to retain the services of Consultant to assist
Employer in its business for the term of this Agreement; and
WHEREAS, Consultant has retired as Chief Executive Officer and President of
Employer simultaneous with his entry into this Agreement, and the parties hereto
desire to set forth the terms on which Consultant will provide services to
Employer and Employer may call on the services of Consultant following such
retirement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the
parties hereto, Employer and Consultant agree as follows:
SECTION I. DUTIES. A. In his role as Consultant, Consultant will report
directly to Employer's Chief Executive Officer. The Chief Executive Officer
("CEO") will call upon Consultant to assist with any matters related to
Employer's business, in which the CEO reasonably believes Consultant has, or may
have, expertise or experience of value to Employer. Such matters include, but
are not limited to, Employer's strategies and tactics for marketing,
advertising, merchandising, warehouse and store operations, and personnel
matters, and relations with product vendors, financing sources, banks, and
Employer's buying group. The CEO may call upon Consultant to advise or meet with
other employees or outside parties, to assist in the development of
presentations and negotiations, or any other duties as the CEO and Consultant
may reasonably agree upon, including but not limited to travel to Employer's
locations, vendor and supplier locations, and buying group and industry meetings
and conferences. Other than as set forth in this Agreement, Consultant will have
no role in the day-to-day management or operation of Employer, and will not be
called upon by the CEO to have such a role, and, in particular, shall not be
called upon to serve as a Market President, or any position comparable to Market
President.
B. In his role as Chairman of the Board of Employer, Consultant will perform
the duties set forth in the Amended and Restated Code of Regulations of Xxxxxxx,
Inc., and as reasonably requested by a majority of the Board. Consultant's
activities and duties as a member of the Board are independent of his duties as
Consultant; however, the compensation and related arrangements for services
rendered as a Director are set forth in this Agreement.
SECTION II. TERM. This Agreement shall commence on the day and date first
written above and continue through October 31, 2002, unless earlier terminated
under the provisions set forth herein.
SECTION III. EXPIRATION OF AGREEMENT. Upon expiration of the Term set forth
above, this Agreement may be allowed to lapse, may be amended or extended in
writing by the parties hereto, or the parties may enter into another agreement.
In the event this Agreement expires or terminates and Consultant's services as a
consultant expire, but Consultant continues as a member of Employer's Board,
then Consultant will be compensated following such expiration on the same basis
as other members of Employer's Board who are not employees of Employer, and
shall be
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entitled to participate in any benefit plans offered to other members of
Employer's Board who are not employees of Employer, as set forth in Section IV.C
below.
SECTION IV. COMPENSATION. A. Consultant's annual compensation shall be as
set forth below, from the day and date first written above through the
termination of this Agreement, and shall not be reduced below such amounts
during the term of this Agreement:
Year of Agreement Amount
----------------- ------
First $120,500
Second 75,500
Third through fifth 50,500
B. Employer shall pay Consultant's compensation in accordance with the pay
practices of Employer, as applied to all executive officers. Consultant shall be
paid as, and treated as, an employee of the Company, not as an independent
contractor. As an employee, Consultant's compensation will be subject to all
required withholding for federal, state, and local taxes, and for benefit plans
in which Consultant participates.
C. Consultant shall participate in all benefit plans offered to Employer's
employees generally, both on the effective date of this Agreement and from time
to time, including but not limited to medical plan and related coverage, the
"401(k)" plan and related "match," the Xxxxxxx, Inc. Employee Stock Purchase
Plan, and profit-sharing plans. However, following the effective date of this
Agreement, Consultant will not participate in the Xxxxxxx, Inc. Executive
Compensation Plan, the Xxxxxxx, Inc. 1993 Stock Incentive Plan, or any similar
plan adopted for the benefit of senior executives of Employer; provided, however
that Consultant will enjoy any benefit earned or accred under such plans as of
the date of this Agreement. As long as Consultant is providing consulting
services as contemplated in this Agreement, he will not participate in the
Amended and Restated Deferred Compensation Plan for Outside Directors, the
Xxxxxxx, Inc. 1993 Outside Director Stock Option Plan, or any other plan offered
to members of the Board who are not employees of Employer. If, however, the
consulting services contemplated in this Agreement are terminated or expire and
Consultant continues as a member of the Board, Consultant shall be entitled to
participate in any benefit plans offered by Employer to members of the Board who
are not employees of Employer.
D. The compensation set forth in this section is based upon an understanding
between the parties that Consultant's time is valued by the parties at $1,500
per day. The table below sets forth the maximum number of days in each year of
this Agreement that Employer, through its CEO, may call upon the services of
Consultant, including services as a member of Employer's Board of Directors and
its Chairman:
Maximum
Year of Agreement number of days
----------------- --------------
First 66
Second 33
Third through fifth 20
Employer is not required to call upon the services of Consultant. In the event
that Employer, through its CEO, or its Board calls upon the services of
Consultant for more than the number of days set forth above, Employer will
compensate Consultant for such additional days at the rate of $1,500 per day. In
the event Employer calls upon the services of Consultant for less than the
number of days set forth in the table above in a given year, Employer shall
nevertheless be required to pay to Consultant the amount set forth in paragraph
IV.A above.
SECTION V. FAILURE TO PAY CONSULTANT. The failure of Employer to pay
Consultant's compensation as provided herein may, in Consultant's sole
discretion, be deemed a breach of this Agreement, and unless such breach is
cured
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within ten days after written notice to Employer, this Agreement shall
terminate, including the provisions of Section IX.
SECTION VI. REIMBURSEMENT OF EXPENSES. A. Employer shall reimburse Consultant
for reasonable, out-of-pocket, direct expenses incurred in connection with
Consultant's services for Employer rendered under this Agreement, upon
presentation by Consultant of appropriate vouchers to Employer, and in
accordance with Employer's travel and reimbursement policies. The expenses
contemplated herein include, but are not limited to, travel, airfare, food, and
similar direct expenses incurred in furtherance of Employer's business,
including activities as a member of the Board, if approved in advance by
Employer's CEO.
Employer will provide Consultant with reasonable secretarial services to support
his activities related to Employer's business; provided, however, that such
services are to be rendered by Employer's executive secretary, as available, and
at no additional or incremental cost to Employer, and nothing in this Agreement
shall be construed as an obligation to provide Consultant with a full-time, or
dedicated, secretary. Employer shall provide Consultant with one telephone line
and one fax line to support his activities related to Employer's business.
For the first two years of this Agreement, Employer shall provide Consultant
with the use of his current Company owned car, including all reasonable
operating expenses related thereto, at Employer's cost, and at the expiration of
such two-year period, Consultant shall have the option to purchase such car for
$10,000, cash. During the period Employer provides such car to Consultant,
Employer will not be required to reimburse Consultant for any other automobile
mileage expenses. However, at the end of such two-year period, Employer's
obligation to furnish such Company owned car to Consultant expires, and Employer
will then reimburse Consultant for direct, out-of-pocket mileage expenses
incurred by Consultant in connection with Employer's business, in accordance
with Employer's travel policies.
B. Consultant is responsible for all other indirect expenses associated with
his services rendered to Employer, including but not limited to office space;
office supplies; telephone, courier and fax services not associated with
Employer's business; secretarial services not associated with Employer's
business; and travel expenses not directly related to Employer's business.
C. Consultant shall purchase from Employer all of his existing office furniture
and effects for its estimated fair market value of $5,000, which shall be paid
to Employer in cash.
SECTION VII. RULES AND REGULATIONS OF EMPLOYER. Consultant hereby agrees to
abide by, and observe, the written policies, rules, regulations, and
restrictions imposed on employees, directors, and executive officers of
Employer, as amended from time to time, and as provided to Consultant, as well
as those set forth in this Agreement. Violation of any such policies, rules, or
regulations may be cause for Employer invoking the provisions of Sections VIII
or XII of this Agreement.
SECTION VIII. TERMINATION. A. If Consultant shall fail or be unable to
perform the consulting services required by this Agreement because of any
physical or mental infirmity, and such failure or inability shall continue for
three consecutive months, or for six months during any twelve-consecutive-month
period, a majority of the Board shall have the right to terminate this Agreement
90 days after delivering written notice of the termination to Consultant;
provided, however, that Consultant shall continue to receive his full
compensation to the date of termination, notwithstanding any such infirmity. The
provisions of Sections IX and XI shall continue in full force and effect
notwithstanding the termination of this Agreement under this paragraph.
B. A majority of the Board may terminate Consultant, by giving written
notice to Consultant of such termination, at any time with or without Cause (as
defined below); provided, however, that if such termination is for any reason
other than for Cause, the provisions of this Agreement, including the
compensation arrangements set forth in Section IV, shall continue through the
term of this Agreement, as set forth in Section II.
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C. A majority of the Board may terminate Consultant for "Cause." Cause is
defined as one or more of the following acts or conditions taken or created by
Consultant:
1. Consultant's failure to strictly adhere to the terms of this
Agreement or any of Employer's written policies, rules, or
regulations, as amended from time to time and provided to Consultant.
2. Commission by Consultant of a felony or any crime involving moral
turpitude; commission by Consultant of any act that exposes Employer,
or any of its officers or directors, to any criminal liability for
such act of Consultant; or any gross negligence or willful misconduct
in the performance of Consultant's duties that results in any material
detriment to Employer or its officers or directors.
3. The death of Consultant during the term of this Agreement;
provided, however, that Employer shall pay to Consultant's estate any
amounts that are owed to Consultant under this Agreement at the date
of death, but Consultant's compensation, as set forth in Section IV.A.
shall terminate on his death.
In the event Employer proposes to invoke one or more of the provisions of
subsection C.1 or 2 above, Employer shall provide written notice to Consultant
setting forth the specific reasons for the proposed termination and shall permit
Consultant a thirty-day period in which to address and resolve the points raised
in such notice. In the event such points are not resolved to the reasonable
satisfaction of a majority of the Board, then Consultant shall be given written
notice of his termination for Cause and this Agreement shall terminate as of the
date of the written notice of such termination to Consultant; provided, however,
that Employer shall be liable to Consultant for any amounts owed to Consultant
through the date of such termination for Cause, that the provisions of Sections
IX through XIII shall survive such termination for Cause, and that no further
payments will be made to Consultant under Section IV subsequent to termination
for Cause.
SECTION IX. NON-COMPETITION; NON-SOLICITATION. A. Consultant agrees that in
addition to any other limitation, as long as this Agreement is in effect and
Consultant is a member of Employer's Board of Directors, except in case of a
termination of this Agreement caused by Employer in violation of the terms of
this Agreement, he will not directly or indirectly engage in, or in any manner
be connected with or employed by any person, firm, or corporation engaged in the
retail sale of products similar to those sold by Employer within a radius of 50
miles of any facility of Employer, its affiliates, or its subsidiaries, or any
facility that Employer has publicly announced its intention to open, except that
nothing in this paragraph shall be deemed to prohibit Consultant from investing
in, or owning, up to two percent of the outstanding common shares of any company
or entity regulated under the Securities Exchange Act of 1934.
Consultant agrees that, in addition to any other limitation, as long as this
Agreement is in full force and effect and he is a member of Employer's Board of
Directors, except in case of a termination of this Agreement caused by Employer
in violation of the terms of this Agreement, he will not, on behalf of himself
or on behalf of any other person, firm, or corporation, call on any of the
employees of Employer, or any of its affiliates or subsidiaries, for the purpose
of recruiting such employees to employment with Consultant, his then-current
employer, or affiliates of his then-current employer. Further, Consultant agrees
that, for the period set forth in the preceding sentence, if any employee of
Employer contacts Consultant about employment with Consultant, his then-current
employer, or any of its affiliates or subsidiaries, Consultant shall contact
Employer prior to employing the prospective employee, and shall permit Employer
to discuss the matter with the prospective employee.
B. Notwithstanding anything in subparagraph A above, if Employer terminates
Consultant without Cause, the periods set forth in subparagraph A shall expire
on the date of such termination.
C. The parties hereto acknowledge that Consultant has other business interests
and ventures, and that he is permitted to engage in any other business, venture,
or activity as long as it does not conflict with the terms of this Agreement.
SECTION X. NO RIGHT TO POSITION ON BOARD. This Agreement sets forth certain
rights and duties of Consultant as a consultant to Employer and as a member of
its Board and its Chairman. Nothing in this Agreement creates any
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right in, or obligation of, Consultant to continue as a member of Employer's
Board. In the event Consultant fails to stand for nomination to such Board,
fails to be duly elected or qualified, or is removed from the Board under the
provisions of the Amended and Restated Code of Regulations of Xxxxxxx, Inc.,
during the term of this Agreement, then this Agreement shall continue in full
force and effect until otherwise terminated, but Consultant's duties as a member
of the Board and its Chairman, as contemplated and set forth herein, shall
terminate.
SECTION XI. USE OF CONFIDENTIAL INFORMATION. Consultant agrees that in
addition to any other limitation, for a period of two years after termination of
his consulting services, regardless of the circumstances of the termination of
such services, he will not communicate to any person, firm, or corporation any
information relating to customer lists, retail prices, secrets, advertising,
vendor product pricing, nor any confidential knowledge or secrets which he might
from time to time acquire with respect to the business of the Employer, or any
of its affiliates or subsidiaries. Consultant acknowledges that Employer has
other confidentiality rules set forth in its employee handbook, and other rules
imposed by NATM Buying Corp., which also apply to Consultant. Except as
specifically provided elsewhere herein, this section shall survive the
expiration or termination of this Agreement.
SECTION XII. INJUNCTIVE RELIEF. Consultant acknowledges that his services
are of a unique, special, and extraordinary character which would be difficult
or impossible for Employer to replace, so Consultant agrees that, in the event
of a violation of any of the provisions of this Agreement, Employer shall, in
addition to any other rights and remedies available under this Agreement, at
law, or otherwise, be entitled to an injunction to be issued by any court of
competent jurisdiction enjoining and restraining Consultant from committing any
violation of this Agreement, and Consultant hereby consents to the issuance of
such injunction.
SECTION XIII. COMMUNICATIONS TO EMPLOYER. During the term of this Agreement,
Consultant shall communicate and channel to Employer all knowledge, business,
and any other matters of information which could concern or be in any way
beneficial to the business of Employer, whether acquired by Consultant before or
during the term of this Agreement; provided, however, that nothing in this
Agreement shall be construed as requiring such communications when the
information is lawfully protected from disclosure as a trade secret of a third
party. Any such information communicated to Employer shall be and remain the
property of Employer, notwithstanding the subsequent termination of this
Agreement.
SECTION XIV. TERMINATION BY CONSULTANT. If Employer shall cease conducting
its business, take any action looking toward its dissolution or liquidation,
make an assignment for the benefit of its creditors, admit in writing its
inability to pay its debts as they become due, file a voluntary, or be the
subject of an involuntary, petition in bankruptcy, or be the subject of any
state or federal insolvency proceeding of any kind, then Consultant may, in his
sole discretion, by written notice to Employer, terminate his services, and,
following ten days' written notice to Employer, Employer consents to his release
under such circumstances, and agrees that if Employer ceases to operate or exist
as a result of such event, the provisions of Section IX shall thereupon
terminate.
SECTION XV. MISCELLANEOUS. A. This Agreement shall be binding on and shall
inure to the benefit of any successor or successors of Employer and the personal
representatives of Consultant.
B. This Agreement constitutes the entire Agreement between the parties hereto,
and supersedes all prior discussions, drafts, negotiations, proposals, and
agreements between the parties, whether written or oral. This Agreement may not
be amended except by a written instrument executed by the parties hereto.
C. If any provision of this Agreement is ultimately determined to be invalid or
unenforceable, by a final non-appealable ruling of a court of competent
jurisdiction, the remaining provisions of this Agreement shall not be affected
by such determination, shall remain in full force and effect, and shall be
construed in manner most likely to carry out the original intent of the parties.
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D. This Agreement may be executed in any number of counterparts, each of which
shall be an original, and all of which, taken together, constitute one single,
binding, enforceable agreement.
E. Any notice given, or required to be given, under this Agreement, shall be
deemed to have been duly given if it is delivered to the addresses shown above
by either: (1) first-class certified mail, return receipt requested, postage
prepaid, or (2) a nationally recognized courier service. The parties may change
such addresses at any time by giving written notice to the other partly to this
Agreement in the manner set forth herein.
F. This Agreement is for personal services, and shall not be assigned by either
party. Any attempt to assign this Agreement shall be of no force or effect,
shall not bind the parties hereto, and shall not operate to relieve the assignor
of any rights, duties, or responsibilities set forth in this Agreement.
G. The parties hereto have each had access to competent, independent legal
counsel of their choosing, and have freely entered into this Agreement after
negotiation. The fact that this Agreement, or parts hereof, may have been
drafted by one of the parties shall not be used to construe the Agreement, or
parts hereof, against the "drafter."
H. The headings and captions used herein are for ease of reference only, and
have no independent meaning.
I. As used in this Agreement, the term "majority of the Board" means a majority
of all of the members of the Board, whether or not present for a particular
meeting or vote. For example, if there are eight members of the Board, five or
more members are required to vote affirmatively for an action in order to
constitute a majority of the Board for purposes of this Agreement.
SECTION XVI. LAW TO GOVERN AGREEMENT. This Agreement shall be governed by the
laws of the State of Ohio. In the event any action is brought in court under, or
relating to, this Agreement, the parties hereby consent, and agree, to bring
such action in a court of competent jurisdiction in Xxxxxxxxxx County, Ohio. In
any action brought under this Agreement, the prevailing party shall be entitled
to recover its reasonable out-of-pocket costs incurred in defending or bringing
the action from the other party, including but not limited to reasonable legal
and professional fees and expenses.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and date first stated above.
XXXXXXX, INC., by
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, its
Executive Vice President
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
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