EXECUTIVE CONSULTING AGREEMENT
THIS AGREEMENT dated as of the 1st day of December, 1996, by and
between Xxxxxxxx & Xxxxx, Inc., a Wisconsin corporation ("Company"), and
Xxxxxx X. Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive has announced his pending retirement as
Chief Executive Officer and Chairman of the Board of Directors of the
Company.
WHEREAS, the Company desires to assure itself of the
availability of the Executive to consult with the Company for a reasonable
period following his retirement.
WHEREAS, because the Executive may continue to acquire intimate
knowledge of the business of the Company and develop or maintain
relationships with customers, suppliers, distributors, vendors and others
in connection with the business of the Company during his consultancy
hereunder, the Company recognizes the need to continue in force the
Executive covenants currently governing the Company's employment
relationship with the Executive.
WHEREAS, the Executive is desirous of committing himself to
serve the Company as a consulting employee on the terms herein provided.
NOW, THEREFORE, in consideration of the covenants and agreements
of the parties herein contained and the mutual benefits to be derived from
this Agreement, the parties hereto agree as follows:
1. Retirement Dates. The Executive shall retire as chief
executive officer of the Company on March 17, 1997. He shall remain as
chairman of the Board of Directors of the Company ("Board") thereafter
until his retirement in 1997.
2. Consulting Duties. The Company agrees to employ the
Executive, and the Executive hereby agrees to serve the Company, as a
senior consultant. The Executive shall provide such advice and counsel to
the Company as is reasonably requested by its senior management or Board.
The Executive is not required to maintain a residence or office in Fond du
Lac, Wisconsin, while providing such consulting duties.
3. Consulting Term. The term ("Term") of the Executive's
consultancy hereunder shall commence on his retirement date as chairman of
the Board, and shall continue uninterrupted thereafter for a 3-year
period, except to the extent that the Term shall be earlier terminated for
Cause, as defined in Section 6. The provisions of Sections 5 and 9 shall
survive the expiration of the Term.
4. Compensation. The Executive shall be entitled to the
following additional compensation in connection with his service as a
consultant to the Company:
a. The Executive shall receive annual compensation,
payable in equal semi-monthly installments or as otherwise agreed by the
Company and the Executive, during the 3-year Term of the consulting
period, unless the Term shall have earlier terminated. The annual
compensation for the initial 12-month period is $200,000; for the second
12-month period, $150,000; and for the third 12-month period, $100,000.
b. The Executive is granted the option, exercisable
during the months of December 1996 and January and February 1997, to
require the Company to purchase his home, located at 000 Xxxxxxx Xxxx
Xxxx, Xxxx xx Xxx, Xxxxxxxxx, for a gross purchase amount of $715,000.
This option shall be exercised by providing written notice to the Company
of the Executive's intent to exercise the option no later than the close
of business on January 31, 1997.
c. The Executive shall be reimbursed the reasonable out-
of-pocket expenses incurred by Executive in the course of providing
consulting services hereunder in accordance with the established
procedures for Company expense reimbursement.
5. Executive Covenants. The Executive shall be considered an
employee of the Company during the Term. The Executive's covenants
concerning confidential matters, inventive ideas and patents, and
competition with the Company set forth in Section 4 of the Employment
Agreement made as of June 30, 1993, between the Executive and the Company
are incorporated herein by this reference and continued in effect
hereunder.
6. Termination for Cause. The Company may terminate this
Agreement for Cause at any time upon written notice to the Executive. For
the purposes of this Agreement, the Company shall have "Cause" to
terminate this Agreement in the case of theft, dishonesty, fraudulent
misconduct, gross dereliction of duty or other grave misconduct on the
part of the Executive which is substantially injurious to the Company. If
this Agreement is terminated pursuant to this Section 6, all payments
hereunder shall cease except payments through the calendar month in which
such termination occurs and the Company's obligations under Section 4(b)
to repurchase the Executive's home shall cease to the extent the
Executive's option has not yet been exercised.
7. Other Termination. This Agreement shall not terminate for
reasons other than Cause, as defined in Section 6. If the Executive dies
before the Term is completed, any remaining compensation under this
Agreement shall be paid to the estate of the Executive.
8. Notice. For the purposes of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxxxx
The Brittany
0000 Xxxx Xxxxx Xxxx., Xxxx 0000
Xxxxxx, XX 00000
If to the Company:
Xxxxxxxx & Xxxxx, Inc.
Attention: Xxxxxx X. Xxxxxx, Vice President-Administration
000 Xxxx Xxxxxx
Xxxx xx Xxx, XX 00000
or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
9. Miscellaneous.
a. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the parties hereto. No waiver by any party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time.
b. No agreements or representations, oral or otherwise,
express or implied, with respect to the Executive's consulting arrangement
with the Company and Executive's option to require the Company to purchase
his home have been made by either party which are not set forth expressly
in this Agreement. This Agreement supplements but does not amend, modify,
or replace the Employment Agreement entered into between the Executive and
the Company, dated as of June 30, 1993, or the supplemental executive
retirement plan between the Executive and the Company effective as of July
1, 1993.
c. This Agreement shall not be assigned by the Executive
and may not be assigned by the Company without the written consent of the
Executive, and any attempted assignment without such written consent shall
be null and void and without legal effect. This Agreement shall be
binding upon and inure to the benefit of the Company, its successors and
assigns and the Executive and his heirs, executors, administrators and
legal representatives.
d. The Executive shall be liable for all taxes levied
against the Executive relating to amounts paid to the Executive by the
Company, and amounts paid by the Company will be net of all applicable
FICA and income tax withholding, if any.
e. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State
of Wisconsin.
10. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all
of such together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
XXXXXXXX & XXXXX, INC.
By: Xxxxxx X. Xxxxxx
Title: Vice President-Administration
