Interim Services Agreement
Exhibit 10.53
September 24, 2009
Mr. Xxxx Xxxxx
Coinstar, Inc.
Chief Executive Officer
0000 000xx Xxx XX
Xxxxxxxx, XX 00000
Dear Paul,
Tatum, LLC (“Xxxxx,” “we,” “us” or “our”) is pleased that Coinstar, Inc. (the “Company,” “you” or “your”) has selected us to provide you with outsourced interim services. The services (the “Services”) and fees will be more particularly described on the Schedule attached hereto and will be provided by the individual resource (the “Xxxxx Resource”) identified on such Schedule. Schedules for additional Xxxxx Resources may be added from time to time upon the mutual written agreement of the parties. In addition, upon the request of the Company and the execution of an additional Schedule to this agreement, Xxxxx will provide search Services to the Company, all as more particularly described on such Schedule.
Engagement. The Xxxxx Resource will be one of Xxxxx’x employees or members, and we will be solely responsible for determining the conditions, terms and payment of compensation and benefits for the Xxxxx Resource. You will be solely responsible for providing the Xxxxx Resource day-to-day guidance, supervision, direction, assistance and other information necessary for the successful and timely completion of the Services. Xxxxx will have no oversight, control, or authority over the Xxxxx Resource with respect to the Services, The Company acknowledges that it is solely responsible for the sufficiency of the Services for its purposes. The Company will designate a management-level individual to be responsible for overseeing the Services, and the Xxxxx Resource will report directly to such individual with respect to the provision of the Services. Unless the Xxxxx Resource is acting as an executive officer of the Company and is authorized by the Company to make such decision, the Company will not permit or require the Xxxxx Resource to be the ultimate decision making authority for any material decision relating to your business, including, without limitation, any proposed merger, acquisition, recapitalization, financial strategy or restructuring.
Fees and Expenses. You will pay us the fees set forth on the Applicable Schedule. In addition to our standard professional service fees, we will charge an administrative fee equal to 2% of our professional service fees, which covers ancillary administrative costs such as technology, communication, and supplies. In addition, you will reimburse the Xxxxx Resource directly for all reasonable travel and out-of-pocket expenses incurred in connection with this agreement (including any Schedules).
Payment Terms. Payments to Xxxxx should be made within 10 days of receipt of invoice by electronic transfer or by check sent to the address set forth on the invoice. In lieu of terminating this agreement, we may suspend the provision of any Services if amounts owed are not paid in accordance with the terms of this agreement.
Bank Name and Address: Silicon Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000
Beneficiary: Xxxxx, LLC
Beneficiary Account Number:
ABA Transit/Routing Number:
Please reference Company name in the body of the payment.
Effective Date and Termination. This agreement will be effective as of the earlier of (i) the date Xxxxx begins providing Services to the Company, and (ii) the date of the last signature to this agreement as indicated on the signature page (the “Effective Date”). With the exception of payment disputes, in the event that a party commits a breach of this agreement (including any Schedule) and falls to cure the same within 10 business days following delivery by the non-breaching party of written notice specifying the nature of the breach, the non-breaching party may terminate this agreement or the applicable Schedule effective upon written notice of such termination. The termination rights set forth in this Section are in addition to and not in lieu of the termination rights set forth in each of the Schedules.
Hiring the Xxxxx Resource Outside of a Xxxxx Agreement. During the time frame in which the Xxxxx Resource is providing Services to the Company and for a period of 12-months thereafter, other than in connection with this agreement or another Xxxxx agreement, the Company agrees that it will not nor will its subsidiaries or affiliates employ such Xxxxx Resource, or engage such Xxxxx Resource as an independent contractor. The parties recognize and agree that a breach by the Company or its subsidiaries or affiliates of this provision would result in the loss to Xxxxx of the Xxxxx Resource’s valuable expertise and revenue potential and that such injury will be impossible or very difficult to ascertain. Therefore, in the event this provision is breached, the Company will pay Xxxxx liquidated damages in an amount equal to 50% of Xxxxx’x Annualized Fees (as defined below), which amount the parties agree is reasonably proportionate to the probable loss to Xxxxx and is not intended as a penalty. If a court or arbitrator determines that liquidated damages are not appropriate for such breach, Xxxxx will have the right to seek actual damages and/or injunctive relief. “Annualized Fees” means the equivalent of what Xxxxx would receive under this agreement for the Xxxxx Resource on a full-time annual basis plus the maximum amount of any bonus for which Xxxxx was eligible with respect to the then-current bonus year for the Xxxxx Resource.
Confidential Information. Xxxxx will treat as confidential and prevent unauthorized duplication or disclosure of any confidential or proprietary information, including without limitation, any information about the Company’s products, services, marketing techniques, price lists, customer lists, pricing policies, business methods, business plans, budgets, projections, financial information, and technical information (the “Confidential Information”) which Xxxxx may acquire during the course of its activities under this Agreement and will not use any of the Confidential Information for any purpose other than in furtherance of Xxxxx’x obligations under this Agreement. Notwithstanding the foregoing, Xxxxx may disclose Confidential Information of the Company to its employees, members, officers, agents or consultants (the “Representatives”) who need to have access to the Confidential Information, and who are informed by Xxxxx of the confidentiality obligations imposed by this Agreement. Xxxxx’x obligations under this Section will not apply to Confidential Information that (i) is or becomes part of the public domain through no fault of Xxxxx or its Representatives; (ii) is known to Xxxxx at the time of receipt of such information from the Company; (iii) if, after the date hereof, obtained by Xxxxx from a third party who has the legal right to disclose the same without a restriction on disclosure; (iv) has been, or is subsequently, independently acquired or developed by Xxxxx without violating any of Xxxxx’x obligations under this Agreement; or (v) is required to be disclosed by government regulation, court order or other legal process; provided Xxxxx provides the Company with prompt notice of such requirement so that the Company may seek a protective order or other appropriate relief. Xxxxx acknowledges and understands that any right, title and interest in and to the Confidential Information is vested in the Company. The obligations of confidentiality provided hereunder will survive for a period of two years after the expiration or termination of this Agreement for any reason. Notwithstanding anything contained in this Agreement to the contrary, Xxxxx shall not be responsible for the Xxxxx Resource’s use of the Company’s Confidential Information.
Warranties and Disclaimers. We present and warrant that we have conducted our standard background screening on the Xxxxx Resource and that the results of such background screening were satisfactory applying generally acceptable industry standards. Except as otherwise set forth in the
previous sentence, we disclaim all representations and warranties, whether express, implied or statutory, including, but not limited to any warranties of quality, performance, merchantability, or fitness of use or purpose. Without limiting the foregoing, we make no representation or warranty with respect to the Xxxxx Resource or the Services provided hereunder, and we will not be responsible for any action taken by you in following or declining to follow any of the Xxxxx Resource’s advice or recommendations. The Services provided by Xxxxx and the Xxxxx Resource hereunder are for the sole benefit of the Company and not any unnamed third parties. The Services will not constitute an audit, review, opinion, or compilation, or any other type of financial statement reporting or attestation engagement that is subject to the rules of the AICPA or other similar state or national professional bodies or laws and will not result in an opinion or any form of assurance on internal controls.
Limitation of Liability; Indemnity.
(a) Xxxxx’x liability in any and all categories and for any and all causes arising under this agreement, whether based in contract, tort, negligence, strict liability or otherwise, will, in the aggregate, not exceed the actual fees paid by you to us under this agreement with respect to the Xxxxx Resource from whom the liability arises. In no event will we be liable for incidental, consequential, punitive, indirect or special damages, including, without limitation, interruption or loss of business, profit or goodwill. As a condition for recovery of any liability, you must assert any claim against us within one year after the termination or expiration of the applicable Schedule under which the liability arises.
(b) You agree to indemnify us and the Xxxxx Resource to the full extent permitted by law for any losses, costs, damages, and expenses (including reasonable attorneys’ fees), as they are incurred, in connection with any cause of action, suit, or other proceeding arising as a direct result of Xxxxx Resource’s services to you, except to the extent arising from the gross negligence, willful misconduct or fraud of the Xxxxx Resource.
Insurance.
If the Xxxxx Resource is serving as an officer or executive of the Company, the Company will, upon request, provide Xxxxx or the Xxxxx Resource with written evidence that the Company maintains directors’ and officers’ insurance covering the Xxxxx Resource in an amount reasonably acceptable to the Xxxxx at no additional cost to the Xxxxx Resource, and the Company will maintain such insurance at all times while this agreement remains in effect. Furthermore, the Company will maintain such insurance coverage with respect to occurrences arising during the term of this agreement for at least five years following the termination or expiration of the applicable Schedule or will purchase a directors’ and officers’ extended reporting period or “tail” policy to cover the Xxxxx Resource for such five year time period.
Governing Law, Arbitration and Witness Fees.
(a) This agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws provisions.
(b) If the parties are unable to resolve any dispute arising out of or in connection with this agreement the parties may agree and stipulate that any such disputes will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in the New York, New York office of the AAA by a single arbitrator selected by the parties according to the rules of the AAA, and the decision of the arbitrator will be final and binding on both parties. In the event that the parties fail to agree on the selection of the arbitrator within 30 days after either party’s request for arbitration under this Section, the arbitrator will be chosen by the AAA. The arbitrator may in his or her discretion order documentary discovery but will not allow depositions without a showing of compelling need. The arbitrator will render his or her decision within 90 days after the call for arbitration. Judgment on the award of the arbitrator may be entered in and
enforced by any court of competent jurisdiction. The arbitrator will have no authority to award damages in excess or in contravention of this agreement and may not amend or disregard any provision of this agreement, including this section. Notwithstanding the foregoing, either party may seek appropriate injunctive relief from any court of competent jurisdiction, and Xxxxx may pursue payment of any unpaid amounts due under this agreement through any court of competent jurisdiction.
(c) In the event any member or employee of Xxxxx (including, without limitation, any Xxxxx Resource) is requested or authorized by you or is required by government regulation, subpoena, or other legal process to produce documents or appear as witnesses in connection with any action, suit or other proceeding initiated by a third party against you or by you against a third party, you will, so long as Xxxxx is not a party to the proceeding in which the information is sought, reimburse Xxxxx for its member’s or employee’s professional time (based on customary rates) and expenses, as well as the fees and expenses of its counsel, incurred in responding to such requests. This provision is in addition to and not in lieu of any indemnification obligations the Company may have under this agreement.
Miscellaneous.
(a) This agreement together with all Schedules constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes any and all agreements, whether oral or written, between the parties with respect to its subject matter. No amendment or modification to this agreement will be valid unless in writing and signed by both parties.
(b) If any portion of this agreement is found to be invalid or unenforceable, such provision will be deemed severable from the remainder of this agreement and will not cause the invalidity or unenforceability of the remainder of this agreement, except to the extent that the severed provision deprives either party of a substantial portion of its bargain.
(c) Neither party will be deemed to have waived any rights or remedies accruing under this agreement unless such waiver is in writing and signed by the party electing to waive the right or remedy. The waiver by any party of a breach or violation of any provision of this agreement will not operate or be construed as a waiver of any subsequent breach of such provision or any other provision of this agreement.
(d) Neither party will be liable for any delay or failure to perform under this agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such party’s reasonable control.
(e) Neither party may assign its rights or obligations under this agreement without the express written consent of the other party, which will not be unreasonably withheld. Nothing in this agreement will confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns and the Xxxxx Resources.
(f) The expiration or termination of this agreement or any Schedule will not destroy or diminish the binding force and effect of any of the provisions of this agreement or any Schedule that expressly, or by reasonable implication, come into or continue in effect on or after such expiration or termination, including, without limitation, provisions relating to payment of fees and expenses (including witness fees and expenses and liquidated damage fees), governing law, arbitration, limitation of liability and indemnity.
(g) You agree to reimburse Xxxxx for all costs and expenses incurred by Xxxxx in enforcing collection of any amounts due under this agreement, including, without limitation, reasonable attorneys’ fees, court costs and arbitration fees, except to the extent such amounts are disputed in good faith by the Company.
(h) You agree to allow us to use the Company’s logo and name on Xxxxx’x website and other marketing materials for the sole purpose of identifying the Company as a client of Xxxxx, Xxxxx will not use the Company’s logo or name in any press release or general circulation advertisement without the Company’s prior written consent.
We appreciate the opportunity to serve you and believe this agreement accurately reflects our mutual understanding of the terms upon which the Services will be provided. We would be pleased to discuss this agreement with you at your convenience. If the foregoing is in accordance with your understanding, please sign a copy of this agreement and return it to my attention.
| Sincerely, |
| Xxxxx, LLC |
|
|
| Xxxx X. Xxxxxx |
| Managing Partner-Pacific Northwest |
Accepted and agreed:
| Coinstar, Inc. | ||
| By: |
| |
| Name: | Xxxx X. Xxxxx | |
| Title: | CEO | |
| Date: | September 28, 2009 | |
Schedule to Interim Services Agreement
This Schedule is entered into in connection with that certain Interim Services Agreement, dated September 24, 2009 (the “Agreement”), by and between Xxxxx, LLC (“Xxxxx,” “we,” “us” or “our”) and Coinstar (“Company,” “you” or “your”) and will be governed by the terms and conditions of the Agreement
Xxxxx Resource Name: Xx. Xxxxx Xxxxxx
Service Description or Position: Financial services and, upon appointment by the Board of Directors, the Interim Chief Financial Officer with said capacity defined by the company.
Company Supervisor: Chief Executive Officer of the Company.
Start Date: September 29, 2009
Minimum Term: Ninety (90) days from the Effective Date
Termination:
(a) After the expiration of any minimum term set forth above, either party may terminate this Schedule by providing the other party a minimum of 30 days’ advance written notice and such termination will be effective as of the date specified in such notice, provided that such date is no earlier than 30 days after the date of delivery of the notice. Xxxxx will continue to provide, and the Company will continue to pay for, the Services until the termination effective date.
(b) Xxxxx may terminate this Schedule immediately upon written notice to the Company if (i) the Company is engaged in or asks Xxxxx or any Xxxxx Resource to engage in or ignore any illegal or unethical activity; (ii) the Xxxxx Resource ceases to be a member or employee of Xxxxx for any reason; (iii) the Xxxxx Resource becomes disabled; or (iv) the Company fails to pay any amounts due to us under the Agreement when due. For purposes of this Agreement, disability will be defined by the applicable policy of disability insurance or, in the absence of such insurance, by Xxxxx’x management acting in good faith. Notwithstanding the foregoing, in lieu of terminating this Schedule under (ii) and (iii) above, upon the mutual agreement of the parties, the Xxxxx Resource may be replaced by another Xxxxx member or employee.
(c) The termination rights set forth in this section are in addition to and not in lieu of the termination rights set forth in the Agreement.
Fees: You will pay to Xxxxx a fee of $ 58,000 a month for the Xxxxx Resource. The fees will be prorated for the first and final fee period based on the number of days in such period. The parties acknowledge and agree that the fees set forth above are based upon this Schedule having the Minimum Term set forth above. In the event you terminate this Schedule prior to the expiration of the Minimum Term other than for the Xxxxx Resource’s material failure to perform the obligations of his or her position with the Company, provided the Xxxxx Resource fails to cure such breach within 10 days after receipt of written notice of such breach, you agree that the fees will be retroactively increased to $ 177,480. You agree to pay to Xxxxx upon the termination of this Schedule a lump sum amount equal to the difference between the fees actually paid and the fees that should have been paid taking into account the retroactive adjustment. The fees set forth in this Schedule will automatically increase on an annual basis commencing with the first anniversary of this Schedule in an amount equal to 6% per year.
Xxxxxxxx: Xxxxx will xxxx for Services in advance of the provision of such Services as follows:
Upon Execution of Agreement: $29,580. On the 5th and 20th day of each month: $29,580. If necessary, Xxxxx will true up advance xxxxxxxx with the next subsequent billing.
Expense reimbursements typically will be billed separately and submitted directly to the company by the resource.
Permanent Engagement: You will have the opportunity to make the Xxxxx Resource a permanent, full-time member of the Company at any time during the term of this Schedule by entering into another form of Xxxxx agreement, the terms of which will be negotiated at such time.
In the event of a conflict between the terms and conditions of this Schedule and the Agreement, the terms and conditions of the Agreement will control.
| Xxxxx, LLC | Coinstar, Inc | |||||||
| By: |
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By: |
| |||||
| Name: | Xxxx X. Xxxxxx |
Name: | Xxxx X. Xxxxx | |||||
| Title: | Managing Partner PNW |
Title: | CEO | |||||
| Date: | 9-28-09 |
Date: | September 28, 2009 | |||||
