Exhibit 10.4
CONSULTING AGREEMENT
--------------------
This Consulting Agreement (this "Agreement") is entered into as of May
12, 2001 between Maytag Corporation, a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxx (the "Consultant").
WHEREAS, the Company desires to obtain the benefit of the Consultant's
knowledge and experience by retaining the Consultant, and the Consultant desires
to accept such position, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Consultant hereby agree as follows:
1. Term of Agreement. The Company hereby agrees to retain the
-----------------
Consultant as a consultant, and the Consultant hereby agrees to be retained by
the Company, upon the terms and subject to the conditions hereof for the period
commencing on May 12, 2001, (the "Effective Date") and ending May 11, 2003,
unless earlier terminated pursuant to Section 5 hereof.
2. Consulting Services. During the Consulting Period, the Consultant
-------------------
shall make herself available to perform consulting services with respect to the
businesses conducted by the Company. Such consulting services shall be related
to such matters as the Chief Executive Officer of the Company may designate from
time to time. The Consultant shall comply with reasonable requests for the
Consultant's consulting services and shall devote reasonable time and her
reasonable best efforts, skill and attention to the performance of such
consulting services, including travel reasonably required in the performance of
such consulting services; provided, however, that the Consultant shall not be
required to devote more than twenty hours during any calendar quarter during the
Consulting Period to the performance of such consulting services.
3. Independent Contractor Status. The Consultant shall perform the
-----------------------------
consulting services described in Section 2 hereof as an independent contractor
without the power to bind or represent the Company for any purpose whatsoever.
The Consultant shall not, by virtue of being a consultant hereunder, be eligible
to receive any employee benefits for which officers or other employees of the
Company are eligible at any time. The Consultant hereby acknowledges her
separate responsibility for all federal and state withholding taxes, Federal
Insurance Contribution Act taxes and workers' compensation and unemployment
compensation taxes, if applicable, and agrees to indemnify and hold the Company
harmless from any claim or liability therefore.
4. Compensation. As compensation for the consulting services to be
------------
performed by the Consultant hereunder, the Company shall pay the Consultant a
consulting fee at the rate of $35,000 per annum, payable in equal semi-annual
installments. The Company shall reimburse the Consultant, in accordance with the
Company's policies and procedures, for all proper expenses incurred by the
Consultant in providing consulting services hereunder.
5. Termination.
-----------
(a) This Agreement may be terminated at any time by the Consultant on 30
days prior written notice to the Company. In the event of such termination
by the Consultant, the Company shall pay to the Consultant any accrued and
unpaid consulting fees payable to the Consultant pursuant to Section 4
hereof and shall reimburse the Consultant for expenses incurred by the
Consultant pursuant to Section 4 hereof prior to the date of such
termination.
(b) This Agreement may be terminated at any time by the Company upon
written notice to the Consultant in the event that the Consultant shall
breach any covenant contained in Section 2, 6, 7 or 8 hereof.
6. Noncompetition; Nonsolicitation.
-------------------------------
(a) The Consultant acknowledges that during the Consulting Period she will
become familiar with trade secrets and other confidential information
concerning the Company and its subsidiaries and that her services will be
of special, unique and extraordinary value to the Company and its
subsidiaries.
(b) The Consultant agrees that during the Consulting Period she shall not
in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an officer,
director, stockholder, investor or employee of or consultant to any other
corporation or enterprise or otherwise, engage or be engaged, or assist any
other person, firm, corporation or enterprise in engaging or being engaged,
in any business, in which the Consultant was involved or had knowledge,
being conducted by, or contemplated by, the Company or any of its
subsidiaries during the Consulting Period in any geographic area in which
the Company or any of its subsidiaries is then conducting such business.
(c) The Consultant further agrees that during the Consulting Period she
shall not (i) in any manner, directly or indirectly, induce or attempt to
induce any employee of the Company or any of its subsidiaries to terminate
or abandon her or her employment for any purpose whatsoever or (ii) in
connection with any business to which Section 6(b) applies, call
on, service, solicit or otherwise do business with any customer of the
Company or any of its subsidiaries.
(d) Nothing in Section 6 shall prohibit the Consultant from being (i) a
stockholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than two percent of the outstanding stock of any
class of a corporation, any securities of which are publicly traded, so
long as the Consultant has no active participation in the business of such
corporation.
(e) If, at any time of enforcement of this Section 6, a court or an
arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances
shall be substituted for the stated period, scope or area and that the
court or arbitrator shall be allowed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law. This
Agreement shall not authorize a court or arbitrator to increase or broaden
any of the restrictions in this Section.
7. Confidentiality. The Consultant shall not, at any time during the
---------------
Consulting Period, make use of or disclose, directly or indirectly, any (i)
trade secret or other confidential or secret information of the Company or of
any of its subsidiaries or (ii) other technical, business, proprietary or
financial information of the Company or of any of its subsidiaries not available
to the public generally or to the competitors of the Company or to the
competitors of any of its subsidiaries ("Confidential Information"), except to
the extent that such Confidential Information (a) becomes a matter of public
record or is published in a newspaper, magazine or other periodical available to
the general public, other than as a result of any act or omission of the
Consultant, (b) is required to be disclosed by any law, regulation or order of
any court or regulatory commission, department or agency, provided that the
Consultant gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order, or (c) is necessary to perform
properly the Consultant's duties under this Agreement. Promptly following the
termination of the Consulting Period, the Consultant shall surrender to the
Company all records, memoranda, notes, plans, reports, computer tapes and
software and other documents and data which constitute Confidential Information
which she may then possess or have under her control (together with all copies
thereof).
8. Inventions. The Consultant hereby assigns to the Company her
----------
entire right, title and interest in and to all discoveries and improvements,
patentable or otherwise, trade secrets and ideas, writings and copyrightable
material, which may be conceived by the Consultant or developed or acquired by
her during the Consulting Period, which may pertain directly or indirectly to
the business of the Company or any of its subsidiaries. The Consultant agrees to
disclose fully all such developments to the Company upon its
request, which disclosure shall be made in writing promptly following any such
request. The Consultant shall, upon the Company's request, execute, acknowledge
and deliver to the Company all instruments and do all other acts which are
necessary or desirable to enable the Company or any of its subsidiaries to file
and prosecute applications for, and to acquire, maintain and enforce, all
patents, trademarks and copyrights in all countries.
9. Enforcement. The parties hereto agree that the Company and its
-----------
subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement were not performed in accordance with its
terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Consultant agrees that she will submit herself to the personal jurisdiction of
the courts of the State of Iowa in any action by the Company to enforce an
arbitration award against her or to obtain interim injunctive or other relief
pending an arbitration decision.
10. Representations. The Consultant represents and warrants to the
---------------
Company that (i) the execution, delivery and performance of this Agreement by
the Consultant does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Consultant is a party or by which she is bound, (ii) the Consultant is
not a party to or bound by any employment agreement, noncompetition agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Consultant, enforceable in accordance
with its terms.
11. Survival. Sections 7, 8 and 9 of this Agreement shall survive and
--------
continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Consulting Period.
12. Arbitration. Any dispute or controversy between the Company and
-----------
the Consultant, whether arising out of or relating to this Agreement, the breach
of this Agreement, or otherwise, shall be settled by arbitration in Iowa
administered by the American Arbitration Association, with any such dispute or
controversy arising under this Agreement being so administered in accordance
with its Commercial Rules then in effect, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute
or controversy and seek interim provisional, injunctive or other equitable
relief until the arbitration award is rendered or the controversy is otherwise
resolved. Except as necessary in court proceedings to enforce this arbitration
provision or an award rendered hereunder, or to obtain interim relief, neither a
party nor an arbitrator may disclose the existence, content or results of any
arbitration hereunder without the prior written consent of the Company and the
Consultant. The Company and the Consultant acknowledge that this Agreement
evidences a transaction involving interstate commerce. Notwithstanding any
choice of law provision included in this Agreement, the United States Federal
Arbitration Act shall govern the interpretation and enforcement of this
arbitration provision.
13. Notices. All notices and other communications required or
-------
permitted hereunder shall be in writing and shall be deemed given when (i)
delivered personally or by overnight courier to the following address of the
other party hereto (or such other address for such party as shall be specified
by notice given pursuant to this Section) or (ii) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile
number for such party as shall be specified by notice given pursuant to this
Section), with the confirmatory copy delivered by overnight courier to the
address of such party pursuant to this Section:
If to the Company, to:
Xxx X. Xxxxxxxx, Xx. VP, Human Resources
Maytag Corporation
000 X. 0/xx/ Xx. X.
Xxxxxx, Xxxx 00000
If to the Consultant, to:
____________________________
Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
14. -Severability. Whenever possible, each provision of this Agreement
-------------
shall 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 applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. Entire Agreement. This Agreement constitutes the entire agreement
----------------
and understanding between the parties with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements
or representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
16. Successors and Assigns. This Agreement shall be enforceable by the
----------------------
Consultant and her heirs, executors, administrators and legal representatives,
and by the Company and its successors and assigns.
17. Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the internal laws of the State of Iowa without
regard to principles of conflict of laws.
18. Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended or waived only by the written agreement of the Company and the
Consultant, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
19. Counterparts. This Agreement may be executed in two counterparts,
------------
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Maytag Corporation
By: /s/Xxx X. Xxxxxxxx
-----------------------
Xxx X. Xxxxxxxx
Senior Vice President, Human Resources
/s/ Xxxxxx. X. Xxxxxx
