CONSULTING AGREEMENT
BETWEEN
XXXX STORES, INC.
AND XXXXXX X. XXXXXX
This Agreement is made as of April 1, 1997 (the "Effective Date")
through March 31, 1999 (the Completion Date"), by and between Xxxx
Stores, Inc., a Delaware corporation ("Ross") and Xxxxxx X. Xxxxxx
("Consultant"). This Agreement amends and restates the prior
agreement, dated March 16, 1995, and any subsequent oral
modifications.
RECITAL
Consultant desires to perform, and Ross desires to have Consultant
perform, consulting services as an independent contractor to Ross.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES
1.1 Performance. Consultant agrees to perform consulting services
for Ross as deemed necessary.
1.2 Payment.
(a) Ross agrees to pay Consultant $20,000 per calendar quarter,
payable on the first day of each calendar quarter.
(b) Ross agrees to pay the salary and benefits for a Financial
Administrator for the period in which consulting services are
rendered.
(c) Ross agrees to pay the premiums of the Split-Dollar Life
Insurance Policy No. X00000000 with AIG Life Insurance Company (the
"Policy") through the Completion Date of this Agreement.
(d) Consultant and his spouse will be eligible to participate in
Ross' medical plan and supplemental medical plan. Ross agrees to pay
the annual premiums of the medical plans for consultant and his
spouse.
2. RELATIONSHIP OF PARTIES
2.1 Independent Contractor. Consultant is an independent
contractor and not an agent or employee of Ross. Consultant will
perform consulting services specified by Ross, but Consultant will
determine, in Consultant's sole discretion, the manner and means by
which the services are accomplished, subject to the requirement that
Consultant shall at all times comply with applicable law. Ross has no
right or authority to control the manner or means by which the
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services are accomplished. Consultant may represent, perform services
for, or be employed by such additional clients, persons or companies
as Consultant sees fit.
2.2 Employment Taxes and Benefits. Consultant will report as
self-employment income all compensation received by Consultant
pursuant to this Agreement. Consultant will indemnify Ross and hold
it harmless from and against all claims, damages, losses and expenses,
including reasonable fees and expenses of attorneys and other
professionals, relating to any obligation imposed by law on Ross to
pay any withholding taxes, social security, unemployment or disability
insurance, or similar items in connection with compensation received
by Consultant pursuant to this Agreement. Consultant will not be
entitled to receive any vacation or illness payments, or to
participate in any plans, arrangements, or distributions by Company
pertaining to any bonus, stock option, profit sharing, insurance or
similar benefits for Company's employees except as expressly provided
in this Agreement.
3. TERMINATION
3.1 Termination. Either Ross or Consultant may terminate this
Agreement at any time, for any reason or no reason, by giving 30 days'
prior written notice to the other party.
3.2 Confidential Information. Consultant agrees during the term
of his consultancy and thereafter to take all steps necessary to hold
Ross' confidential information in strict confidence and not to
disclose such confidential information. Upon the termination of this
Agreement for any reason, Consultant will promptly notify Ross of all
confidential information in Consultant's possession and, in accordance
with Ross' instructions, will promptly deliver to Ross all such
confidential information.
4. GENERAL
4.1 Governing Law: Severability. This Agreement will be
governed by and construed in accordance with laws of the State of
California excluding that body of law pertaining to conflict of laws.
If any provision of this Agreement is for any reason found to be
unenforceable, the remainder of this Agreement will continue in full
force and effect.
4.2 Successors and Assigns. Neither this Agreement nor any of
the rights or obligations of Consultant arising under this Agreement
may be assigned or transferred without Ross' prior written consent.
This Agreement will be for the benefit of Ross' successors and
assigns, and will be binding on Consultant's heirs and legal
representatives.
4.3 Notices. Any notices under this Agreement will be sent by
certified or registered mail, return receipt requested, to the address
specified below or such other address as the party specifies in
writing. Such notice will be effective upon its mailing as specified.
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4.4 Complete Understanding: Modification. This Agreement,
together with the Policy, constitutes the complete and exclusive
understanding and agreement of the parties and supersedes all prior
understandings and agreement, whether written or oral, with respect to
the subject matter hereof. Any waiver, modification or amendment of
any provision of this Agreement will be effective only if in writing
and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
XXXX STORES, INC. CONSULTANT
By: /s/Xxxxxxx Xxxxxxx /s/Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxx
Vice Chairman and
Chief Executive Officer
Address: Address:
0000 Xxxxxxx Xxxxxx x/x Xxxxxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000-0000 000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
