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Exhibit 10.16
CONSULTING AGREEMENT
This Agreement is made and entered into this 30th day of July, 1999,
between WINSTON FURNITURE COMPANY OF ALABAMA, INC., an Alabama corporation (the
"PURCHASER"), and XXX XXXXXX (the "CONSULTANT").
PRELIMINARY STATEMENTS:
A. This Agreement is being entered into in connection with the Stock
Purchase Agreement, dated as of November 23, 1998, as amended (the "PURCHASE
AGREEMENT"), whereby the Purchaser is purchasing all of the capital stock of
MIAMI METAL PRODUCTS, INC., d/b/a POMPEII FURNITURE INDUSTRIES, a Florida
corporation (the "COMPANY") and Industrial Mueblera Pompeii de Mexico, S.A. de
C.V., a Mexican corporation ("IMP"). Capitalized terms used but not otherwise
defined herein shall have the respective meanings given such terms in the
Purchase Agreement.
B. The Consultant serves as Chairman of the Board of Directors of the
Company.
C. The Consultant possesses intimate knowledge of the business and
affairs of the Company, its policies, methods and personnel.
D. The Purchaser recognizes that the Consultant has contributed to the
growth and success of the Company and desires to assure the Company of the
Consultant's continued availability as a consultant to the Company following
the consummation of the transactions contemplated by the Purchase Agreement and
to compensate him therefor.
E. The Consultant is willing to make his services available to the
Company on the terms and subject to the conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. INTERPRETATION OF THIS AGREEMENT.
(a) Terms Defined. As used herein, the following terms when used in
this Agreement have the meanings set forth below:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Company" has the meaning given to it in the preface above.
"Company Information" means Confidential Information and Trade Secrets.
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"Confidential Information" means confidential data and confidential
information relating to the business of the Parent, the Purchaser, and their
respective Subsidiaries and Affiliates (including the Company and IMP) (which
does not rise to the status of a Trade Secret under applicable law) which is or
has been disclosed to the Consultant or of which the Consultant became aware as
a consequence of or through his prior employment with the Company or his
engagement hereunder, which is not generally known to the competitors of the
Parent, the Purchaser and their respective Subsidiaries and Affiliates
(including the Company and IMP) and which (a) derives economic value, actual or
potential to the Parent, the Purchaser and their respective Subsidiaries and
Affiliates (including the Company and IMP), from not being known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (b) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
Confidential Information does not include any data or information that (i) has
been voluntarily disclosed to the general public by the Parent, the Purchaser
and their respective Subsidiaries or Affiliates (including the Company or IMP),
(ii) has been independently developed and disclosed to the general public by
others, or (iii) otherwise enters the public domain through lawful means.
"Consultant" shall have the meaning given to it in the first sentence
of this Agreement.
"IMP" has the meaning given to it in the preface above.
"Management of the Company" means the Chief Executive Officer and the
President of the Company.
"Parent" means WinsLoew Furniture, Inc., a Florida corporation.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity (or any
department, agency or political subdivision thereof).
"Purchaser" has the meaning given to it in the first sentence of this
Agreement.
"Purchase Agreement" has the meaning given to it in the preface above.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns, directly or indirectly, a majority of the
common stock or has the power to vote or direct the voting of sufficient
securities to elect a majority of the directors.
"Trade Secrets" means information of the Parent, the Purchaser and
their respective Subsidiaries and Affiliates (including the Company and IMP),
including, but not limited to, technical or nontechnical data, formulas,
patterns, compilations, programs, financial data, financial plans, product or
service plans or lists of actual or potential customers or suppliers which (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
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(b) Interpretation. The words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole, as the same from
time to time may be amended or supplemented and not any particular section,
paragraph, subparagraph or clause contained in this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and the plural, and pronouns stated in
masculine, feminine or neuter gender shall include the masculine, feminine and
the neuter.
2. ENGAGEMENT OF CONSULTANT. Effective as of the date hereof, the
Purchaser hereby retains the Consultant to provide advisory and consulting
services to the Company as required by the Management of the Company, and the
Consultant hereby agrees to provide such services on the terms and conditions
set forth herein; provided, however, the Consultant shall not be required to
devote his full time and business efforts to the performance of services
hereunder.
3. TERM. The term of this Agreement and the Consultant's engagement
hereunder shall be for a period commencing on the date hereof and terminating on
the one year anniversary hereof.
4. COMPENSATION. During the term of this Agreement, the Consultant
shall receive compensation at the rate of $50,000 per annum for the services to
be rendered by him hereunder, payable in monthly installments.
5. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
5.1 REIMBURSABLE EXPENSES. During the term of the Consultant's
engagement hereunder, the Purchaser will cause the Company, upon the submission
of proper substantiation by the Consultant, to reimburse the Consultant for all
reasonable expenses actually and necessarily paid or incurred by the Consultant
at the direction of the Management of the Company in the course of and pursuant
to the performance of his duties hereunder.
5.2 WORKING FACILITIES. The Purchaser will cause the Company to furnish
the Consultant with an office (which will not be the same office as Consultant
had prior to the consummation of the transactions contemplated by the Purchase
Agreement).
6. INDEPENDENT CONTRACTOR. For all purposes of this Agreement and the
transactions contemplated hereby, the Consultant is and shall be deemed to be an
independent contractor and the Consultant shall not have the right, without the
prior written consent of the Purchaser, to enter into any agreement on behalf of
the Parent, the Purchaser and their respective Subsidiaries and Affiliates
(including the Company and IMP) or to do any other act which may subject the
Parent, the Purchaser and their respective Subsidiaries and Affiliates
(including the Company and IMP) to liability or obligate the Parent, the
Purchaser and their respective Subsidiaries and Affiliates (including the
Company and IMP) in any manner whatsoever. The Consultant shall be expressly
prohibited from doing any acts or making any statements which do or may create
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the impression or inference that the Consultant is an agent of the Parent, the
Purchaser or their respective Subsidiaries and Affiliates (including the
Company or IMP). Nothing in this Agreement shall be deemed or construed (i) to
create a partnership or joint venture between the Consultant and any of the
Parent, the Purchaser or their respective Subsidiaries and Affiliates
(including the Company or IMP), (ii) to cause the Consultant to be responsible
in any way for the debts, liabilities or obligations of the Parent, the
Purchaser and their respective Subsidiaries and Affiliates (including the
Company and IMP), or (iii) to constitute the Consultant as an employee, officer
or agent of any of the Parent, the Purchaser and their respective Subsidiaries
and Affiliates (including the Company and IMP).
7. CERTAIN COVENANTS.
7.1 Nondisclosure. While engaged by the Purchaser and during the
periods described in the second to last sentence of this ss.7.1 the Consultant
(a) will receive and hold all Company Information in trust and in strictest
confidence, (b) will protect the Company Information from disclosure and will in
no event knowingly take any action causing, or knowingly fail to take any action
necessary to prevent, any Company Information to lose its character as Company
Information, and (c) except as required by or reasonably related to the
Consultant's duties in the course of his engagement by the Purchaser hereunder,
will not, directly or indirectly, use, disseminate or otherwise disclose any
Company Information to any third party without the prior written consent of the
Purchaser, which may be withheld in the Purchaser's absolute discretion. The
provisions of this ss.7.1 shall survive the termination of the Consultant's
engagement (i) for a period of five years with respect to Confidential
Information, and (ii) with respect to Trade Secrets, for so long as any such
information qualifies as a Trade Secret under applicable law. In the event of
any inconsistency between the provisions of this ss.7.1 and the provisions of
ss.6(g) of the Purchase Agreement, the provisions of this Agreement shall be
controlling.
7.2 Books and Records. All books, records, reports, writings, notes,
notebooks, computer programs, sketches, drawings, blueprints, prototypes,
formulas, photographs, negatives, models, equipment, chemicals, reproductions,
proposals, flow sheets, supply contracts, customer lists and other documents
and/or things relating in any manner to the business of the Parent, the
Purchaser and their respective Subsidiaries and Affiliates (including the
Company and IMP) (including but not limited to any of the same embodying or
relating to any Company Information), whether prepared by the Consultant or
otherwise coming into the Consultant's possession, shall be the exclusive
property of the respective Person and shall not be copied, duplicated,
replicated, transformed, modified or removed from the premises of the Person
except pursuant to the business of the Person and shall be returned immediately
to the Person on termination of the Consultant's engagement hereunder or on the
Purchaser's or the Company's written request at any time.
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7.3 Inventions and Patents. The Consultant agrees that all inventions,
innovations or improvements in the method of conducting the business of the
Parent, the Purchaser and their respective Subsidiaries and Affiliates
(including the Company and IMP) (including new contributions, improvements,
ideas and discoveries, whether patentable or not) conceived or made by him
during his engagement by the Purchaser hereunder belong to the Purchaser. The
Consultant will promptly disclose such inventions, innovations or improvements
to the Management of the Company and will, at the Company's expense, perform all
actions reasonably requested by the Management of the Company to establish and
confirm such ownership.
8. INJUNCTION. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Consultant of any of the covenants contained
in ss.7 of this Agreement will cause irreparable harm and damage to the Parent,
the Purchaser and their respective Subsidiaries and Affiliates (including the
Company and IMP), the monetary amount of which may be virtually impossible to
ascertain. As a result, the Consultant recognizes and hereby acknowledges that
the Purchaser shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in ss.7 of this Agreement by the Consultant or any of his
affiliates, associates, partners or agents, either directly or indirectly, and
that such right to injunction shall be cumulative and in addition to whatever
other remedies the Purchaser may possess.
9. NOTICES. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given two business days
after it is sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
To the Company:
Xxxxx Xxxxxx
WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
To Consultant:
Xxx Xxxxxx
Bristol Towers Apartments
0000 Xxxxxxxx Xxxxxx, Xxx. 0000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
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With a copy to (which shall not constitute notice to the Executive):
Xxxxxxx X. Xxxxx, Esq.
Cypen & Cypen
P.O. Box 402099
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
Either party hereto may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail or electronic mail), but no
such notice, request, demand, claim or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Either party hereto may change the address to which notices,
requests, demands, claims and other communications hereunder are to be
delivered by giving the other party notice in the manner herein set forth.
10. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the
complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof
in any way.
12. COUNTERPARTS. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement. Any telecopied signature shall
be deemed a manually executed and delivered original.
13. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by the Consultant and the Purchaser
and their respective successors and assigns (and, in the case of the
Consultant, heirs and personal representatives), except that the Consultant may
not assign any of his rights or delegate any of his obligations hereunder.
14. DAMAGES. Nothing contained herein shall be construed to prevent
any party hereto from seeking and recovering from the other damages sustained
by either or both of them as a result of its or his breach of any term or
provision of this Agreement. In the event that either party hereto brings suit
for the collection of any damages resulting from, or for the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable costs,
fees (including reasonable trial and appellate attorneys' fees) and expenses of
the other party.
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15. CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles thereof and all questions concerning the validity and
construction hereof shall be determined in accordance with the laws of said
state. Each party hereby irrevocably submits to the exclusive jurisdiction of
any state or federal court sitting in the County of Miami-Dade, State of
Florida in any action or proceeding arising out of or relating to this
Agreement and hereby irrevocably agrees, on behalf of himself or itself and on
behalf of such party's successor's and assigns, that all claims in respect of
such action or proceeding may be heard and determined in any such court and
irrevocably waives any objection such person may now or hereafter have as to
the venue of any such suit, action or proceeding brought in such a court or
that such court is an inconvenient forum. The parties further agree that the
service of any process or summons required by any such court upon a party's
counsel in accordance with the provisions of Section 8 hereof shall constitute
valid and lawful service of process against them, without the necessity for
service by any other means provided by statute or rule of court.
16. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT, THE RELATED DOCUMENTS OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
17. AMENDMENTS AND WAIVERS. No provision of this Agreement may be
amended or waived without the prior written consent of the parties hereto.
18. BUSINESS DAYS. Whenever the terms of this Agreement call for the
performance of a specific act on a specified date, which date falls on a
Saturday, Sunday or legal holiday, the date for the performance of such act
shall be postponed to the next succeeding regular business day following such
Saturday, Sunday or legal holiday.
19. NO THIRD PARTY BENEFICIARY. Except for the parties to this
Agreement and their respective successors and assigns, nothing expressed or
implied in this Agreement is intended, or will be construed, to confer upon or
give any person other than the parties hereto and their respective successors
and assigns any rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
WINSTON FURNITURE COMPANY OF ALABAMA, INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President
/s/ Xxx Xxxxxx
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XXX XXXXXX
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