EXHIBIT 10.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made as of October 1, 2004
by and between Xxxxxxx Cable, Inc., a Delaware corporation ("Xxxxxxx"), and
Xxxxx Xxxxxxxxx, an individual (the "Consultant").
RECITALS
The Consultant is currently a director and significant stockholder of
Xxxxxxx and possesses considerable industry knowledge and experience that is
valuable to Xxxxxxx. Xxxxxxx desires to engage and retain Consultant so that
Consultant will continue to serve Xxxxxxx as a director and also to advise and
counsel Xxxxxxx on business planning and strategy, including advice on potential
acquisitions. Consultant desires to continue to serve as a director of Xxxxxxx
and to provide such advisory services.
NOW, THEREFORE, Xxxxxxx and Consultant hereby agree as follows:
1. Engagement and Status of Consultant. The engagement and appointment of
Consultant shall be on the following terms and conditions:
1.1. Engagement of Consultant. Effective October 1, 2004, Xxxxxxx
hereby engages, appoints, and retains the Consultant as its consultant and
advisor with respect to the matters set forth in Section 2 hereof, and the
Consultant hereby accepts such engagement, appointment and retention as a
consultant to Xxxxxxx upon such terms and conditions.
1.2. Status of Consultant. Consultant shall be an independent
contractor in the performance of his obligations hereunder. Consultant
shall not be considered an employee or agent of Xxxxxxx. Xxxxxxx shall not
withhold any income or employment taxes from amounts payable to Consultant
hereunder and Consultant shall be responsible for payment of all such
taxes arising therefrom. Xxxxxxx shall not make any contributions or
provide coverage for unemployment compensation, workers' compensation,
health insurance or any other benefits on Consultant's behalf.
1.3. Confidential Information. Consultant acknowledges that, by
reason of his duties pursuant to his engagement under this Agreement, he
has, and will continue to have, access to confidential information of
Xxxxxxx, including, without limitation, customer lists, information
pertaining to developments and improvements of existing services or
products, trade secrets and financial information. Consultant agrees that
he will not, during his engagement or after termination of such
engagement, for whatever reason, directly or indirectly, use for the
benefit of or disclose to any person, firm, corporation, partnership or
other entity any confidential information relating to the business or
affairs of Xxxxxxx or its affiliates without the express written consent
of Xxxxxxx. In addition to
other remedies available to Xxxxxxx, at law or in equity, Xxxxxxx shall be
entitled to injunctive relief in any court of competent jurisdiction for
any breach by the Consultant of the provisions of this paragraph. Upon any
termination of this Agreement, or at the request of Xxxxxxx, Consultant
agrees to promptly deliver to Xxxxxxx, and not keep or deliver to any
person, firm, corporation, association or other entity, all property or
assets of Xxxxxxx in your possession or under your control, including,
without limitation, manuals, letters, notes, notebooks, price lists,
customer lists, reports and copies thereof and all written materials of a
confidential or proprietary nature relating to Xxxxxxx'x or its
affiliates' business. Consultant also agrees not to retain any copies,
duplications, reproductions or excerpts of the foregoing materials.
2. Duties and Obligations of Consultant. Consultant shall (i) provide
Xxxxxxx with analysis and advice regarding strategy, planning, expansion and
acquisitions, (ii) provide such other advice and counsel as Xxxxxxx may
reasonably request of the Consultant with respect to the above and (iii)
continue to serve as a Director of Xxxxxxx.
3. Consulting Fees. In consideration of Consultant providing the
designated services for Xxxxxxx as set forth herein, Xxxxxxx agrees to pay the
Consultant an annual fee in the amount of $250,000, payable quarterly, beginning
October 1, 2004.
4. Reimbursement of Expenses. With the advance approval of Xxxxxxx,
Xxxxxxx shall reimburse Consultant for all reasonable out-of-pocket business
expenses incurred in connection with his services to be rendered hereunder
including reasonable airfare, hotel, meals, telephone and supplies.
5. Duration and Termination. The duration and terms of termination of the
Consultant's engagement under this Agreement shall be as follows:
5.1. Term. The engagement of the Consultant shall continue for a
term commencing on the date of this Agreement and ending on September 30,
2005 (the "Term").
5.2. Termination. Beginning October 1, 2005, the term of this
Agreement shall be extended automatically from year to year, subject to
termination by either party upon thirty days (30) written notice. Upon
termination, all sections of this Agreement (other than Sections 1.3 and
6.10) shall terminate, unless both parties mutually agree otherwise in
writing.
5.3. Termination for Cause. Either party may terminate this
Agreement at any time for cause.
(i) For purposes of Xxxxxxx'x right to terminate this
Agreement, cause shall be defined as: any act of
dishonesty, any gross carelessness or misconduct, or any
unjustifiable neglect or failure to perform your duties
under this Agreement, which
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neglect or failure is not corrected within thirty (30)
days after written notice.
(ii) For purposes of Consultant's right to terminate this
Agreement, cause shall be defined as: failure of Xxxxxxx
to remit payments required hereunder in a timely manner.
5.4. Automatic Termination. Notwithstanding other provisions of this
Agreement, the engagement of Consultant shall automatically terminate,
without notice, upon the death or permanent disability of Consultant.
6. General Terms. This Agreement shall be subject to the following terms
and conditions:
6.1. Assignment by Consultant. Consultant may not assign his rights
or delegate his obligations hereunder.
6.2. Severability. Each paragraph of this Agreement is severable,
and should any court or other governmental body of competent jurisdiction
declare any provision of this Agreement invalid or unenforceable by reason
of any rule of law or public policy, all other provisions hereof shall
remain in full force and effect.
6.3. Enforcement. If at the time of enforcement of this Agreement, a
court holds that the restrictions stated herein are unreasonable under
circumstances then existing and therefore unenforceable, the parties agree
that the maximum period, scope or area deemed reasonable under such
circumstances will be substituted for the stated period, scope or area as
contained in this Agreement.
6.4. Waiver of Breach. The waiver by Xxxxxxx of a breach by
Consultant of any provision of the Agreement shall not operate or be
construed as a waiver of any subsequent breach by the Consultant.
6.5. Binding Effect. The rights and obligations of the parties under
the Agreement shall inure to the benefit of each party and shall be
binding upon the successors and assigns of Xxxxxxx.
6.6. Entire Agreement and Changes. This instrument contains the
entire agreement of the parties. It may be changed only by an agreement in
writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
6.7. Execution in Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed
an original agreement, but all of which together shall constitute one and
the same instrument.
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6.8. Applicable Law. The Agreement shall be governed by the laws of
the State of Illinois.
6.9. Notices. Any notice, request, instruction, correspondence or
other document to be given hereunder by either party to the other (herein
collectively called "Notice") shall be in writing and delivered personally
or mailed, postage prepaid, or by facsimile, as follows:
If to Xxxxxxx:
Xxxxxxx Cable, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Chief Financial Officer
With a Copy to:
Xxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Xxxxxx X. XxXxxx
If to Consultant:
Xxxxx Xxxxxxxxx
0000 00xx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Notices given by personal delivery or mail shall be effective upon
actual receipt by the person to whom addressed. Notice given by facsimile
shall be effective at the time when receipt is confirmed by the sending
facsimile machine. Any party may change any address or facsimile number to
which Notice is to be given to it by giving Notice as provided.
6.10. Inventions; Developments. Consultant agrees to hold in
confidence and to disclose to Xxxxxxx fully and promptly in writing, all
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inventions, improvements, discoveries, formulas, processes, technical
information, systems, designs, trademarks, trade names, service marks and
suggestions relating in any way to the business of Xxxxxxx or its
affiliates whether patented, patentable or unpatentable ("Developments"),
which, during the period of your engagement by Xxxxxxx are made, developed
or conceived by you, either solely or jointly with others in the course of
such employment or with the use of Xxxxxxx'x time, materials or
facilities, or relating to any subject matter with which your work with
Xxxxxxx is or may be concerned, or relating to any problems arising in
Xxxxxxx'x business of which you have been or may become informed by reason
of your engagement.
Consultant agrees that all Developments either independently or
jointly development with Xxxxxxx are the property of Xxxxxxx and shall be
considered "work for hire." Consultant hereby assigns, and agrees to
assign to Xxxxxxx during your engagement and thereafter, all your rights
to and evidence of such rights to the Developments, whether or not patent
applications are filed thereon. Consultant agree, whenever requested to do
so by Xxxxxxx during your employment or thereafter, without charge to
Xxxxxxx, but at its expense, to grant to Xxxxxxx or its nominee your
entire interest in any or all of such Developments by executing,
acknowledging and delivering all documents and by rendering all assistance
such as giving testimony in support of a particular invention, which
Xxxxxxx may deem necessary or proper for that purpose and for the purpose
of perfecting in Xxxxxxx title to patents, copyrights or other rights
therefore and reissues, renewals, continuations, divisions, or extensions
of such rights, both domestic and foreign.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Consulting
Agreement on the date and year first above written.
CONSULTANT
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
XXXXXXX CABLE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: EVP/CFO
