CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of July 1, 1995, is by and
between Vari-Lite Holdings, Inc. (the "Company") and Xxxxx X. Xxxxx, Xx.
("Consultant").
W I T N E S S E T H:
WHEREAS, the Company wishes to enter into a consulting relationship with
Consultant; and
WHEREAS, Consultant desires to enter into a consulting relationship with the
Company upon the terms and conditions hereinafter contained;
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth and of the mutual benefits accruing to the Company and to Consultant
from the consulting relationship to be established between the parties by the
terms of this Agreement, the Company and Consultant agree as follows:
1. CONSULTING RELATIONSHIP. The Company hereby retains
Consultant, and Consultant hereby agrees to be retained by the
Company, as an independent consultant, and not as an employee.
2. CONSULTING SERVICES. Consultant agrees that during the term
of this Agreement:
(a) POSITION AND DUTIES. Consultant will devote his best
efforts to this position as an independent consultant and
will perform such duties and execute the policies of the
Company as determined by the Board of Directors or
President of the Company, or their designee. Consultant
shall exercise a reasonable degree of skill and care in
performing such duties.
(b) QUALIFICATIONS. Consultant's qualifications for
providing consulting services include:
(i) Knowledge and expertise in business and finance
(Undergraduate degree from Yale and MBA from
Stanford);
(ii) Extensive business and social relationships
throughout the U.S. and particularly in Dallas,
Texas;
(iii) Sophisticated investor and businessman;
(iv) Extensive knowledge of the structure and operations
of the Company; and
(v) Knowledge of various segments of business such as
finance, real estate, accounting and legal.
(c) AVAILABILITY. Consultant shall be available to render
services to the Company under this Agreement upon receipt
of five days' written notice from the Company and for a
minimum of 60 days during any 12-month period commencing
on the date of this Agreement or any anniversary thereof.
Consultant shall not be obligated to render in excess of
90 days of service during any such 12-month period.
Consultant shall not be obligated to render any services
under this Agreement during any such period when he is
unable to do so due to illness, disability or injury.
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(d) AUTHORITY. Consultant shall have no authority over any
employee or officer of the Company, except as may be
necessary in routine performance of his duties hereunder,
nor shall the Company be required in any manner to
implement any plans or suggestions Consultant may
provide.
3. COMPENSATION.
(a) CONSULTING FEE. The Company agrees to pay Consultant for
his services performed under this Agreement at the rate
of $8,333 per month or $100,000 per year ("Consulting
Fee"), whether or not services are actually rendered
hereunder.
(b) SPLIT-DOLLAR INSURANCE. Consultant shall be eligible,
directly or indirectly through a designated owner, to
receive benefits (including the right to designate one or
more beneficiaries) under (i) Life Insurance Policy No.
8592938, from Massachusetts Mutual Life Insurance Company
and any agreement or instrument between the Company and
the designated owner of such policy with respect to such
policy, (ii) Life Insurance Policy No. 67127330, from
Xxxx Xxxxxxx Mutual Life Insurance Company and any Split-Dollar
Life Insurance Agreement and Assignment of Life
Insurance Policy as Collateral between the Company and
the designated owner of such policy with respect to such
policy and (iii) any additional or substitute split-dollar
insurance policy, plan or program hereafter
obtained or established for, or made available to,
officers or directors of the Company; provided, however,
that at any time during the Consulting Term the terms of
any such split-dollar insurance policies, plans or
programs shall be equivalent to or exceed the terms,
taken as a whole, of the policies described in clauses
(i) and (ii) above, as currently in effect.
(c) OTHER EMPLOYEE BENEFITS. Except as expressly provided in
this Agreement, Consultant shall not be entitled, based
on his status as a consultant, to participate in or
receive benefits under any programs maintained by the
Company for its employees, including, without limitation,
life, medical and disability benefits, pension, profit
sharing or other retirement plans or other fringe
benefits.
4. BUSINESS EXPENSES.
(a) OUT-OF-POCKET EXPENSES. The Company shall reimburse
Consultant for all reasonable out-of-pocket expenses
incurred by Consultant in the conduct of the Company's
business, provided that Consultant submits expense
accounts accompanied by receipts and vouchers within 12
months following the expenditures.
(b) OFFICE SPACE EXPENSES. The Company shall pay Consultant
and/or Consultant's designees an aggregate of $1,000 per
month to reimburse Consultant for expenses incurred in
connection with the maintenance of offsite office space
provided by Consultant for the benefit of the Company,
including, but not limited, to the hiring of support
staff.
5. TERM. This Agreement shall continue for a term of three years
commencing as of the date first above written, provided that
such term shall automatically be extended for one year for
each complete year Consultant provides services hereunder.
The term as originally set forth or as automatically extended
is referred to hereinafter as the "Consulting Term."
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6. TERMINATION. This Agreement may be terminated by either party
at any time in accordance with the following provisions. In
the event of such termination, Consultant's rights and
entitlements shall be determined in accordance with the
following provisions.
(a) DEATH. If Consultant dies, this Agreement shall
terminate as of the date of death. Upon termination due
to Consultant's death, Consultant's estate shall receive
the Consulting Fee through the end of the month in which
the death occurs.
(b) DISABILITY. If Consultant suffers a Permanent Disability
(as defined below), the Company may terminate this
Agreement by written notice effective as of the Date of
Disability (as defined below). If this Agreement is
terminated by reason of a Permanent Disability, from the
Date of Disability until the end of the Consulting Term
in effect immediately prior to the termination, the
Company shall pay to Consultant his Consulting Fee.
For the purpose of this Agreement, "Permanent Disability"
shall mean the inability to perform the services required
hereunder due to mental or physical disability which
prevents Consultant from substantially performing his
duties hereunder and continues for either (i) a total of
180 working days during any 12-month period or (ii) 150
consecutive working days. "Date of Disability" shall mean
the date following the last of such days to so occur. If
either party disputes, after notice from the other, that
Consultant is disabled, such dispute shall be submitted
to a physician mutually satisfactory to Consultant and
the Company. If the parties are unable to agree on a
mutually satisfactory physician, each shall select a
reputable physician, who shall select a third physician
whose determination of Consultant's ability to perform
shall be conclusive and binding on the parties. Evidence
of such disability, as so certified, shall be conclusive
notwithstanding that a disability policy, or clause in an
insurance policy, covering Consultant shall contain a
different definition of "permanent disability." The
Company shall pay the fees and expenses of each physician
so appointed.
(c) FOR CAUSE. The Company may terminate this Agreement for
Cause (as defined below) at any time, without any
additional notice. The Company shall inform Consultant
as to the grounds for such termination. Consultant shall
not be entitled to damages for such termination and shall
have no claim for such damages, and shall be entitled
after such termination to receive the Consulting Fee only
through the date of termination.
For purposes of this Agreement, "Cause" shall mean (i)
the willful, continued and material failure by Consultant
to follow the reasonable and lawful directions of the
Board of Directors in connection with Consultant's duties
hereunder or to comply with any provision of this
Agreement, but only after (1) the Chairman of the
Executive Committee of the Board of Directors ("Executive
Committee") (or, if Consultant is the Chairman, another
member of the Executive Committee elected by the member
or members thereof other than Consultant), pursuant to
resolutions adopted by a majority of the members of the
Executive Committee (excluding Consultant if he is a
member of the Executive Committee), delivers a written
demand to Consultant for substantial performance
specifically setting forth the manner in which the
Executive Committee believes Consultant has failed to
follow such directions or to comply with this Agreement
and (2) the failure to follow such directions or to
comply with this Agreement continues for a period of 30
days; (ii) Consultant's gross negligence or intentional
misconduct in the performance of his duties hereunder;
(iii) Consultant's conviction of a felony; or (iv) the
commission by Consultant of any act involving
embezzlement or fraud.
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(d) WITHOUT CAUSE OR CONSTRUCTIVE TERMINATION. The Company
may terminate this Agreement for other than death,
disability, breach or injurious conduct or Change of
Control (as defined below) upon 30 days prior written
notice.
If at any time during the Consulting Term, an event of
Constructive Termination (as defined below) occurs, then
Consultant shall have the right upon 30 days prior
written notice to the Company to terminate his services
hereunder. Such termination shall be deemed a
"Constructive Termination" of this Agreement by the
Company.
In addition to any other rights of Consultant, if
termination is (i) by the Company for other than death,
disability, breach or injurious conduct or Change of
Control, or (ii) on the basis of a Constructive
Termination, from the date of termination until the end
of the Consulting Term, the Company shall pay to
Consultant his Consulting Fee.
For purposes of this Agreement, "Constructive
Termination" means the following:
(i) the continued and material failure of the Company
to comply with its covenants and obligations under
this Agreement, but only after (A) Consultant
delivers written demand to the Company for
substantial performance specifically setting forth
the manner in which he believes the Company has so
failed to comply with its covenants and obligations
and (B) such material failure continues for a
period of ten days;
(ii) the assignment to Consultant of any duties
inconsistent in any respect with Consultant's
position, duties or responsibilities as
contemplated in Section 2 of this Agreement, which
results in a diminution in such position, duties or
responsibilities, excluding for this purpose any
isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof
given by Consultant;
(iv) any purported termination by the Company of this
Agreement other than as expressly permitted by this
Agreement; or
(v) any failure by the Company to comply with and
satisfy Section 10(c)(iii) of this Agreement,
provided that the successor referred to therein has
received at least ten days prior written notice
from the Company or Consultant of the requirements
of Section 10(c)(iii).
(e) CHANGE OF CONTROL. Upon 30 days prior written notice to
the other party stating the grounds for such termination,
either the Company or Consultant may terminate this
Agreement as the result of a Change of Control.
A "Change of Control" shall be deemed to have occurred if
(i) the Company is merged or consolidated with another
corporation and as a result of such merger or
consolidation less than 50% of the outstanding voting
securities of the surviving or resulting corporation are
owned in the aggregate by the former shareholders of the
Company; (ii) the Company sells all or substantially all
of its assets to another corporation, which is not a
wholly-owned subsidiary of the Company; (iii) any person
or group within the meaning of the Securities Exchange
Act of 1934, as amended, acquires (together with voting
securities of the Company held by such person or group)
30% or more of the outstanding voting
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securities of the Company (whether directly, indirectly,
beneficially or of record) pursuant to any transaction or
combination of transactions; (iv) there is a change of
control of the Company of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of
1934, as amended, whether or not the Company is then
subject to such reporting requirements; or (v) the
individuals who, at the beginning of any period of twelve
consecutive months, constituted the Board of Directors
cease, for any reason, to constitute at least a majority
thereof, unless the nomination for election or election
by the Company's shareholders of each new director of the
Company was approved by a vote of at least two-thirds of
the directors then still in office who either were
directors at the beginning of such period or whose
election or nomination for election was previously so
approved. Notwithstanding the foregoing, however, a
Change of Control shall not be deemed to have occurred
upon the consummation of an initial public offering of
the Company's capital stock or the issuance of capital
stock by the Company approved by a vote of at least two-thirds
of the directors then in office.
If this Agreement is terminated as a result of a Change
of Control or if Consultant elects to terminate this
Agreement as the result of a Change of Control at any
time within two years after the Change of Control, then
from the date of termination until the end of the
Consulting Term, the Company shall pay to Consultant his
Consulting Fee (the "Severance Payments").
(f) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. If Severance
Payments pursuant to Section 6(e) of this Agreement
become subject to the excise tax (the "Excise Tax")
imposed under Section 4999 of the Internal Revenue Code
of 1986, as amended ("Code"), the Company shall pay to
Consultant an additional amount (the "Gross-Up Payment")
such that the net amount retained by Consultant, after
deduction of any Excise Tax on the Severance Payments
(and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Section 6(f)),
shall be equal to the Severance Payments.
(i) For purposes of determining whether any of the
Severance Payments will be subject to the Excise
Tax and the amount of such Excise Tax, (A) any
other payment or benefit received or to be received
by Consultant in connection with a Change of
Control and the subsequent termination of this
Agreement (whether such termination is pursuant to
the terms of this Agreement or any other plan,
arrangement or agreement with the Company, with any
other person whose actions resulted in the Change
of Control or with any person affiliated with the
Company or such other person) shall be treated as a
"parachute payment" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1)
of the Code shall be treated as subject to the
Excise Tax, unless in the opinion of tax counsel
selected by the Company's independent auditors and
reasonably acceptable to Consultant such other
payments or benefits (in whole or in part) do not
constitute parachute payments (including by reason
of Section 280G(b)(4)(A) of the Code) or such
excess parachute payments (in whole or in part)
represent reasonable compensation for services
actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the "base
amount" (as determined according to Section
280G(b)(3) of the Code, any final or temporary
regulations promulgated under Section 280G of the
Code and any interpretations thereof by the
Internal Revenue Service) allocable to such
reasonable compensation, or are
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otherwise not subject to the Excise Tax, (B) the amount
of the Severance Payments which shall be treated as
subject to the Excise Tax shall be equal to the
lesser of (1) the total amount of the Severance
Payments and (2) the amount of excess parachute
payments within the meaning of Section 280G(b)(1)
of the Code (after applying clause (A) above), and
(C) the value of any non-cash benefit, deferred
payment or other benefit shall be determined by the
Company's independent auditors in accordance with
the principles of Sections 280G(d)(3) and (4) of
the Code.
(ii) For purposes of determining the amount of the
Gross-Up Payment, Consultant shall be deemed to pay
federal income taxes at the highest marginal rate
of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state
and local income taxes at the highest marginal rate
of taxation in the state and locality of
Consultant's residence on the date of termination,
net of the maximum reduction in federal income
taxes which could be obtained from deduction of
such state and local taxes. If the Excise Tax is
subsequently determined to be less than the amount
taken into account hereunder at the time of
Consultant's termination of employment, Consultant
shall repay to the Company, at the time that the
amount of such reduction in Excise Tax is finally
determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion
of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income tax imposed
on the Gross-Up Payment being repaid by Consultant
to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or
local income tax deduction) plus interest on the
amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. If the Excise
Tax is determined to exceed the amount taken into
account hereunder at the time of the termination of
Consultant's employment (including by reason of any
payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment),
the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any
interest, penalties or additions payable by
Consultant with respect to such excess) at the time
that the amount of such excess is finally
determined. Consultant and the Company shall each
reasonably cooperate with the other in connection
with any administrative or judicial proceedings
concerning the existence or amount of liability for
Excise Tax with respect to the Severance Payments.
(g) TIME FOR PAYMENT. Except as otherwise provided in this
Section 6, the Company shall pay any Consulting Fee, or
portion thereof, due to Consultant or his heirs or legal
representatives under this Section 6 on the Company's
regularly scheduled paydays.
7. ADDITIONAL OBLIGATIONS OF CONSULTANT.
(a) TITLE TO CERTAIN TANGIBLE PROPERTY. All tangible
materials (whether original or duplicates) including, but
not limited to, equipment purchase agreements, file or
data base materials in whatever form, books, manuals,
sales literature, equipment price lists, training
materials, client record cards, client files,
correspondence, documents, contracts, orders, messages,
memoranda, notes, agreements, invoices, receipts, lists,
software listings or printouts, specifications, models,
computer programs and records of any kind in the
possession or control of Consultant which in any way
relate or pertain to the Company's business, including
the business of subsidiaries or other affiliates of the
Company, whether
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furnished to Consultant by the Company or prepared, compiled
or acquired by Consultant during his consulting relationship
with Company, shall be the sole property of the Company. At
any time upon request of the Company, and in any event promptly
upon termination of this Agreement, Consultant shall deliver
all such materials to the Company. The Company shall be
under no obligation to pay to Consultant any sums of
money then due Consultant or becoming due thereafter
until Consultant has complied with the provisions of this
Section 7(a).
(b) TITLE TO CERTAIN INTANGIBLE PROPERTY. Consultant shall
immediately disclose and assign to the Company all his
right, title and interest in any inventions, models,
processes, patents, copyrights and improvements thereon
relating to services or processes or products of the
Company or its affiliates that he conceives or acquires
during any consulting relationship with the Company or
that he may conceive or acquire during a period of one
year after termination of this Agreement.
(c) CONFIDENTIAL INFORMATION; RECORDS. Consultant recognizes
that Consultant's retention by the Company is one of the
highest trust and confidence by reason of Consultant's
access to and contact with certain trade secrets,
confidential business practices and proprietary
information of the Company (collectively, "Trade
Secrets"). Consultant shall use his best efforts and
exercise utmost diligence to protect and safeguard the
Trade Secrets. Except as may be required by the Company
in connection with this Agreement, or with the prior
written consent of the Company, Consultant shall not,
either during the Consulting Term or thereafter, directly
or indirectly, use for Consultant's own benefit or for
the benefit of another, or disclose, disseminate or
distribute to another, any of the Trade Secrets (whether
or not acquired, learned, obtained or developed by
Consultant alone or in conjunction with another) of the
Company or of any other person with whom the Company has
a business relationship. All memoranda, notes, records,
drawings, documents or other writings whatsoever made,
compiled, acquired or received by Consultant during the
Consulting Term arising out of, in connection with or
related to any activity or business of the Company (other
than records and personal notes received or prepared by
Consultant in his capacity as a director of the Company)
are and shall continue to be the sole and exclusive
property of the Company, and shall, together with all
copies thereof, be delivered to the Company by Consultant
immediately when Consultant ceases to be retained by the
Company, or at any other time upon the Company's demand.
(d) NONCOMPETITION AGREEMENT. Consultant acknowledges and
agrees that as a result of his consulting relationship
with the Company, including, without limitation, the
experience he will gain therefrom and the information he
will acquire regarding the Trade Secrets, he will be able
to injure the Company if he should compete with the
Company in a business that is competitive with the
business conducted or to be conducted by the Company.
For these reasons, Consultant hereby agrees as follows:
(i) Without the prior written consent of the Company,
Consultant shall not, during the term of this
Agreement, directly or indirectly, either as an
individual, a partner or a joint venturer, or in
any other capacity, (A) invest (other than
investments in publicly-owned companies which
constitute not more than 1% of the voting
securities of any such company) or engage in any
business that is competitive with that of the
Company or its affiliates, (B) accept employment
with or render services to a competitor of the
Company or any of its affiliates as
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a director, officer, agent, employee or consultant,
(C) contact, solicit or attempt to solicit or
accept business from any (1) customers of the
Company or its affiliates or (2) person or entity
whose business the Company or its affiliates is
soliciting or (D) contact, solicit or attempt to
solicit or accept or direct business that is
competitive with such business being conducted by
the Company or any of its affiliates during the
term of this Agreement from any of the customers of
the Company or any of its affiliates. For purposes
of this Section 7, a "competitor" specifically
includes persons, firms, sole proprietorships,
partnerships, companies, corporations or other
entities that market products and/or perform
services in direct or indirect competition with the
products marketed and/or services performed by the
Company or its affiliates anywhere in the world.
Without limiting the generality of the foregoing,
the Company's products and services include, but
are not limited to, professional and architectural
lighting, sound reinforcement, stages and stage
sets, design and production management and other
similar products and services for concert touring,
theatre, television and film, corporate events and
conventions, commercial buildings and similar
markets. As used in this Section 7, "affiliates"
shall mean persons or entities that directly, or
indirectly through one or more intermediaries,
control or are controlled by, or are under common
control with, the Company.
(ii) Upon termination of this Agreement for any reason,
and for a period of two years thereafter,
Consultant shall not, directly or indirectly,
either as an individual, a partner or a joint
venturer, or in any other capacity, in any
geographic market in which the Company or any of
its affiliates is doing business on the date of
termination, (A) contact, solicit or attempt to
solicit or accept business from any party (1) who,
on the date of termination of this Agreement or
within one year prior thereto, was a customer of
the Company or its affiliates, or (2) whom
Consultant solicited, contacted or otherwise dealt
with on behalf of the Company or any of its
affiliates within one year prior to such date of
termination or (B) hire or solicit or in any manner
attempt to influence or induce any employee of the
Company or its affiliates to leave the employment
of the Company or its affiliates, nor shall he use
or disclose to any person, partnership,
association, corporation or other entity any
information obtained during the term of this
Agreement concerning the names and addresses of
employees of the Company or its affiliates.
Notwithstanding the foregoing, if this Agreement
terminates for any reason and the Company fails to
perform timely its obligations under Section 6 of
this Agreement, Consultant's obligations under this
Section 7(d) shall permanently terminate; provided,
however, that the Company shall not thereby be
released of its obligations under this Agreement,
including, without limitation, its payment
obligations under Section 6.
(e) ACKNOWLEDGEMENTS. Consultant acknowledges and recognizes
that the enforcement of any of the nondisclosure and
noncompetition provisions in Section 7 of this Agreement
by the Company will not interfere with Consultant's
ability to pursue a proper livelihood. Consultant
further represents that he is capable of pursuing a
career in other industries other than the Company's to
earn a proper livelihood. Consultant recognizes and
agrees that the enforcement of this Agreement is
necessary to ensure the preservation and continuity of
the business and goodwill of the Company. Consultant
agrees that due to the nature of the Company's business,
the noncompetition restrictions set forth in this
Agreement are reasonable as to time and geographic area.
At any time during the
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Consulting Term and for a period of two years thereafter,
the Company may request Consultant to supply such information
as the Company deems necessary to ascertain whether or not
Consultant has complied with, or has violated, the restrictive
covenants of Section 7 of this Agreement. Consultant
shall furnish the requested information to the Company
within 10 days following the receipt of such request.
(f) REMEDIES. Consultant recognizes and acknowledges that
the ascertainment of damages in the event of his breach
of any provision of Section 7 of this Agreement would be
difficult, and Consultant agrees that the Company, in
addition to all other remedies it may have, shall have
the right to specific performance or injunctive relief to
enforce its terms if there is such a breach, without any
requirement to post bond or other security.
(g) SURVIVAL. Notwithstanding anything to the contrary in
this Agreement, the provisions of Section 7 of this
Agreement shall survive any termination of this
Agreement.
8. NOTICES. Any notices, consents, demands, requests, approvals
and other communications to be given under this Agreement by
either party to the other shall be in writing and shall be
either (i) delivered in person, (ii) mailed by registered or
certified mail, return receipt requested, postage prepaid,
(iii) delivered by overnight express delivery service or same-day
local courier service or (iv) delivered by facsimile
transmission, to the addresses set forth below.
If to Company: Vari-Lite Holdings, Inc.
000 Xxxxx Xxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to Consultant: Xxxxx X. Xxxxx, Xx.
Preston Commons West, Suite 220
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Notices delivered personally, by overnight express delivery,
local courier or facsimile shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as
of three days after mailing. Any party may change its address
for notice by written notice in accordance with this Section
given to the other parties.
9. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement (including, without limitation,
whether termination has been for "conduct injurious to the
Company" pursuant to Section 6(c)) shall be settled by binding
arbitration. Any such arbitration proceedings shall be
conducted as follows:
(a) Arbitration shall be conducted by three arbitrators, one
to be selected by each of the parties and the third to be
designated by the two arbitrators so selected. If the
two arbitrators cannot agree on the third arbitrator, the
American Arbitration Association in Dallas, Texas, where
the arbitration shall take place shall select the third
arbitrator.
(b) The arbitration shall follow the standard rules and
procedures of the American Arbitration Association,
except as otherwise provided herein. The arbitrators
shall substantially comply with Texas rules of evidence,
shall grant essential but limited discovery, shall
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provide for the exchange of witness lists and exhibit
copies, shall conduct a pretrial hearing and shall
consider dispositive motions. Each party shall have the
right to request the arbitrators to make findings of
specific factual issues.
(c) The arbitrators shall complete their proceedings and
render their decision within 40 days after submission of
the dispute to them, unless both parties agree to an
extension. Each party will cooperate with the
arbitrators to comply with procedural time requirements,
and the failure of either to do so shall entitle the
arbitrators to extend the arbitration proceedings
accordingly and to impose sanctions on the party
responsible for the delay, payable to the other party.
(d) The majority decision of the arbitrators shall contain
findings of facts on which the decision is based,
including any specific factual findings requested by
either party, and shall further contain the reasons for
the decision with reference to the legal principles on
which the arbitrators relied. Such decision of the
arbitrators shall be final and binding upon the parties,
and accordingly the Company and Consultant shall promptly
comply with the terms of such award, and a judgment by a
court of competent jurisdiction may be entered in
accordance therewith.
(e) The fees and expenses of the arbitrators in connection
with the resolution of disputes pursuant hereto shall be
borne by the party who does not prevail in the
arbitration.
(f) The Company and Consultant hereby consent to the
jurisdiction of the courts of the State of Texas for
purposes of entering judgment with respect to an
arbitration award.
10. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the Company and Consultant concerning
the subject matter hereof and supersedes all prior
agreements or understandings, written or oral, with
respect thereto. No attempted modification or waiver of
any of the provisions hereof shall be binding on either
party unless in writing and signed by both Consultant and
the Company.
(b) COSTS. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in
addition to any other relief to which he or it may be
entitled.
(c) SUCCESSORS AND ASSIGNS.
(i) This Agreement shall be binding upon, inure to the
benefit of and be enforceable by Consultant and
Consultant's legal representatives. This Agreement
is personal to Consultant and without the prior
written consent of the Company shall not be
assignable by Consultant otherwise than by will or
the laws of descent and distribution.
(ii) This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and
its successors and assigns. The Company shall have
the right to assign this Agreement to a parent,
affiliate or subsidiary corporation or
10
to any corporation succeeding to substantially all of
the assets and business of the Company whether by
merger, consolidation, acquisition or otherwise.
(iii) The Company shall require any successor
(whether direct or indirect, by merger,
consolidation, acquisition or otherwise) to
all or substantially all of the business
and/or assets of the Company expressly to
assume and agree to perform this Agreement in
the same manner and to the same extent that
the Company would be required to perform it if
no such succession had taken place. As used
in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any
successor to its business and/or assets as
aforesaid that assumes and agrees to perform
this Agreement by operation of law or
otherwise.
(d) APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Texas. The parties acknowledge and agree that this
Agreement and the obligations and undertakings of the
parties hereunder will be performable in Dallas, Dallas
County, Texas.
(e) AMENDMENT. This Agreement may be amended, or a new
agreement substituted, at any time and from time to time
only by a written instrument duly authorized and executed
by the Company and Consultant.
(f) WAIVER. The waiver by either party of a breach or
violation of any provision of this Agreement shall not
operate as or be construed as a waiver of any subsequent
breach hereof.
(g) PARTIAL INVALIDITY AND SEVERABILITY. If any one or more
of the provisions contained in this Agreement for any
reason is held to be illegal, invalid or unenforceable,
the illegality, invalidity or unenforceability will not
affect, impair or invalidate any other provision of this
Agreement, which will be construed as if the illegal,
invalid or unenforceable provision had not been contained
in this Agreement and, in lieu of each illegal, invalid
or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as
similar in terms to the illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable. In addition, however, Consultant agrees
that the provisions of Sections 9 and 10 of this
Agreement each constitute separate agreements
independently supported by good and adequate
consideration and shall be severable from the other
provisions of, and shall survive, this Agreement. The
existence of any claim or cause of action of Consultant
against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants and
agreements of Consultant contained in Section 7.
(h) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original,
but all of which shall constitute one agreement.
[THE NEXT FOLLOWING PAGE IS THE SIGNATURE PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CONSULTANT:
/s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Xxxxx X. Xxxxx, Xx.
COMPANY:
Vari-Lite Holdings, Inc.
By: /s/ X. X. Xxxxxxxx III
------------------------------------
X. X. Xxxxxxxx III
Chairman of the Board and President
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