Exhibit 10(j):
CONSULTING AGREEMENT
Agreement, made as of April 7, 1997 (the "Effective Date"), by and
between NBI, Inc., a Delaware corporation (together with its successors and
assigns permitted under this Agreement, the "Company"), and Xxxxxx X. Xxxxx
(the "Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant has the ability to offer to the Company
expertise, knowledge and assistance with respect to business and legal
matters; and
WHEREAS, the Company desires to retain Consultant to provide such
services to the Company, and the Consultant desires to provide such services
to the Company, subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Company and the Consultant (individually a
"Party" and together the "Parties") agree as follows:
1. CONSULTING TERM.
The term of this Agreement shall commence as of the Effective Date
hereof and shall continue for three (3) years. Upon the expiration of the
initial three (3) year term, this Agreement shall be automatically renewed for
successive periods of one (1) year each, unless, not later than ninety (90)
days prior to the end of the initial term or any renewal term, the Company
shall have given notice to the Consultant or the Consultant shall have given
notice to the Company that either of them does not wish to extend this
Agreement. The first one (1) year renewal period shall commence on the first
day immediately following the conclusion of the initial three (3) year term.
(The term of this Agreement shall be referred to herein as the "Consulting
Term.")
2. CONSULTING SERVICES.
THE CONSULTANT SHALL PROVIDE CONSULTING SERVICES TO THE COMPANY
AT THE REQUEST OF THE PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE COMPANY.
SUCH CONSULTING SERVICES SHALL INCLUDE ADVICE ON BUSINESS AND LEGAL ISSUES AND
OTHER MUTUALLY AGREEABLE PROJECTS.
THE CONSULTANT SHALL DEVOTE SUBSTANTIAL BUT NOT EXCLUSIVE
ATTENTION TO THE AFFAIRS OF THE COMPANY AS THE CONSULTANT'S DUTIES MAY
REASONABLY REQUIRE, IT BEING UNDERSTOOD THAT THE CONSULTANT IS SIMULTANEOUSLY
ENTERING INTO A CONSULTING AGREEMENT, EITHER PERSONALLY OR THROUGH AN ENTITY
HE OWNS OR CONTROLS, AND AN EMPLOYMENT AGREEMENT WITH UNRELATED BUSINESSES AND
WILL BE DEVOTING SUBSTANTIAL ATTENTION TO SUCH OTHER ENTITIES AS WELL.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CONSULTANT IS AN
INDEPENDENT CONTRACTOR AND IS NOT A PARTNER, EMPLOYEE, OR AGENT WITH THE
COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES. NOTHING IN THE AGREEMENT
SHALL BE CONSTRUED TO GRANT EITHER PARTY THE AUTHORITY TO ENTER INTO A
CONTRACT IN THE NAME OF THE OTHER PARTY, OR TO BIND THE OTHER PARTY IN ANY
MANNER. NOTWITHSTANDING THE ABOVE, AT THE REQUEST OF THE COMPANY THE
CONSULTANT AGREES TO ACCEPT AND SERVE IN THE POSITION OF A SENIOR VICE
PRESIDENT AND GENERAL COUNSEL OF THE COMPANY DURING THE CONSULTING TERM.
3. CONSULTING FEE.
The Consultant shall be paid an annual Consulting Fee of Seventy
Five Thousand Dollars ($75,000.00) such consulting fee to be paid in
substantially equal semi-monthly installments.
4 . GRANT OF STOCK OPTION.
The Company has previously adopted an Employee and Director Stock
Option Plan (the "Stock Plan"). As soon as practicable after the Effective
Date, the Company agrees to recommend to the Company's Board that the
Consultant be granted under the Stock Plan the same benefits and incentives
(on the same terms and conditions) as those available to other senior
executives of the Company.
5. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Consultant is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement and the
Company shall promptly reimburse him for all reasonable business expenses
incurred in connection with carrying out the business of the Company, subject
to documentation in accordance with the Company's policy.
6. PERQUISITES.
During the Consulting Term, the Consultant shall be entitled to
benefits and perquisites that are comparable to the fringe benefits and
perquisites offered to the Company's senior executive officers and directors
in accordance with the most favorable plans, practices, programs and policies
of the Company.
7 . TERMINATION OF CONSULTING TERM.
THE CONSULTING TERM SHALL TERMINATE AT THE EARLIER OF THE (I)
EXPIRATION OF THIS AGREEMENT AS PROVIDED IN SECTION 1. HEREOF, OR (II) THE
DATE OF THE DEATH OF THE CONSULTANT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE CONSULTING
TERM SHALL NOT TERMINATE DURING ANY PERIOD OF PHYSICAL OR MENTAL INCAPACITY OF
THE CONSULTANT WHICH RESULTS IN THE CONSULTANT'S TEMPORARY OR PERMANENT
INABILITY TO PERFORM THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT, AS
DETERMINED BY AN APPROVED MEDICAL DOCTOR. FOR THIS PURPOSE, AN APPROVED
MEDICAL DOCTOR SHALL BE A MEDICAL DOCTOR JOINTLY SELECTED BY THE CONSULTANT
AND THE COMPANY. IN THE EVENT THAT THE CONSULTANT AND THE COMPANY CANNOT
AGREE ON A MEDICAL DOCTOR, EACH PARTY SHALL SELECT A MEDICAL DOCTOR AND THE
TWO SELECTED MEDICAL DOCTORS SHALL JOINTLY SELECT A THIRD MEDICAL DOCTOR TO
SERVE AS THE APPROVED MEDICAL DOCTOR.
8. INDEMNIFICATION.
To the full extent authorized or permitted by law, the Company shall
hold harmless and indemnify the Consultant against any and all judgments,
penalties (including excise and similar taxes), fines, settlements and
reasonable expenses (including, but not limited to attorney's fees), incurred
in connection with any actual or threatened action or proceeding, whether
civil or criminal, to which the Consultant is made or is threatened to be made
a party by reason of the fact that the Consultant then is or was a director or
officer of the Company or then serves or has served any other corporation,
partnership, joint venture, trust, employment benefit plan or other enterprise
in any capacity at the request of the Company. To the fullest extent so
permitted, the foregoing shall in any actual or threatened proceeding require
the Company to advance expenses on behalf of the Consultant as said expenses
are incurred.
9. EFFECT OF AGREEMENT.
Except as specifically provided in this Agreement, this Agreement
shall not affect nor have any force or effect upon any other agreement to
which the Consultant is a party and/or beneficiary.
10. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Consultant)
and assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or
obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or the sale
or liquidation of all or substantially all of the assets of the Company;
provided, however, that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained
in this Agreement, either contractually or as a matter of law. The Company
further agrees that, in the event of a sale of assets or liquidation as
described in the preceding sentence, it shall take whatever action it legally
can in order to cause such assignee or transferee to expressly assume the
liabilities, obligations and duties of the Company hereunder. No rights or
obligations of the Consultant under this Agreement may be assigned or
transferred by the Consultant other than his rights to compensation and
benefits, which may be transferred only by will or operation of law, except as
provided in Section 15 below; provided, however, that Consultant may in the
future assign or transfer his rights or obligations to an entity he owns or
controls.
11 . REPRESENTATION.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Consultant represents that he
knows of no agreement between him and any other person, firm or organization
that would be violated by the performance of his obligations under this
Agreement.
12 . ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement
between the Parties concerning the subject matter hereof and supersedes all
prior agreements, understandings, discussions, negotiations and undertakings,
whether written or oral, between the Parties with respect thereto.
13. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment
is agreed to in writing and signed by the Consultant and an authorized officer
of the Company. No waiver by either Party of any breach by the other Party of
any condition or provision contained in this Agreement to be performed by such
other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in
writing and signed by the Consultant or an authorized officer of the Company,
as the case may be.
14 . SEVERABILITY.
In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
15 . SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Consultant's employment to the extent necessary
to the intended preservation of such rights and obligations.
16 . BENEFICIARIES/REFERENCES.
The Consultant shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Consultant's death
by giving the Company written notice thereof. In the event of the
Consultant's death or a judicial determination of his incompetence, reference
in this Agreement to the Consultant shall be deemed, where appropriate, to
refer to his beneficiary, estate or other legal representative.
17 . GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Texas without reference to principles of conflict
of laws.
18 . RESOLUTION OF DISPUTES.
Any disputes arising under or in connection with this Agreement
shall, at the election of the Consultant or the Company, be resolved by
binding arbitration, to be held in San Antonio, Texas in accordance with the
rules and procedures of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Costs of the arbitration or litigation, including,
without limitation, reasonable attorneys' fees of both Parties, shall be borne
by the Company. Each party shall have an opportunity to present evidence on
the issues in dispute before the arbitrator(s) and each party may be
represented by legal counsel. Pending the resolution of any arbitration or
court proceeding, the Company shall continue payment of all amounts due the
Consultant under this Agreement and all benefits to which the Consultant is
entitled at the time the dispute arises. The arbitrators shall decide which
party will bear the expenses of such arbitration (including attorneys' fees).
19 . NOTICES.
Any notice given to a Party shall be in writing and shall be deemed
to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address
as such Party may subsequently give such notice of:
If to the Company, to:
NBI, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx X
Xxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx
and:
If to the Consultant, to:
NBI, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
20 . HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
21 . COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
NBI, Inc.
By: /s/ XXX X. XXXXXX
Xxx X. Xxxxxx
Chairman of the Board and CEO
/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
