CONSULTING AGREEMENT
Exhibit 10.1
This AGREEMENT (hereinafter referred to as the “Agreement”), dated as of June 8, 2010, between
Cincinnati Xxxx Inc. (hereinafter referred to as the “Company”) and Xxxxx X. Xxxx ( referred to
herein as “Ross”).
WHEREAS, pursuant to the terms of an Amended and Restated Employment Agreement effective
January 1, 2009 (the “Employment Agreement”) Ross is employed as Chief Operating Officer of the
Company; and
WHEREAS, in accordance with the terms of the Employment Agreement, Ross has provided notice to
the Company of his resignation of employment, which resignation shall become effective on August 8,
2010 (the “Effective Date”); and
WHEREAS, in the course of his employment Ross has obtained unique and valuable knowledge and
expertise with respect to the business of the Company; and
WHEREAS, in order to minimize the disruption of the Company’s business operations as the
result of Ross’ resignation, and to facilitate a smooth transition to a named successor, the
Company wishes to retain access to Ross’ services as a consultant on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth and of the promises
contained herein, the Company and Ross hereby agree as follows.
1. Termination of Employment. Effective as of the Effective Date, Ross’ employment by
the Company shall terminate, and Ross shall be entitled to receive the payments and other benefits
provided in the event of a resignation under Section 13.F. of the Employment Agreement. It is the
intent of Ross and the Company that Ross’ “separation from service” (as such term is defined for
the purposes of Section 409A of the Internal Revenue Code of 1986) shall be deemed to have occurred
on the Effective Date.
2. Engagement as Consultant. Effective as of the Effective Date, the Company shall,
and does hereby, engage Ross as a consultant to the Company, and Ross hereby accepts such
engagement. In the performance of his services hereunder, Ross shall report and be responsible to
the Chief Executive Officer of the Company.
3. Consulting Assignment. Ross shall, as requested, provide assistance and expertise
to the management of the Company on various matters relating to the conduct of the Company’s
business. Such matters shall include, but shall not be limited to, the following:
| (a) | finalization of the 2011 financial plan; | ||
| (b) | preparation of materials for the 2010 Board of Directors strategy meeting; | ||
| (c) | evolution of the management succession plan for operations and sales leadership roles; |
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| (d) | selection of a successor to the Chief Operating Officer position; | ||
| (e) | reorganization of the leadership structure in the operations and sales functions at Cincinnati Xxxx Inc., Cincinnati Xxxx Telephone and Cincinnati Xxxx Wireless; and | ||
| (f) | such other matters as may be reasonably requested by the Chief Executive Officer of the Company. |
4. Status as Independent Contractor. Beginning on the Effective Date, and at all
times during the term of this Agreement, Ross shall be an independent contractor and not an
employee of the Company. Subject to the provisions of the Employment Agreement and Paragraph 6
hereof, Ross shall be free to take other employment and/or perform other consulting assignments.
The manner in which Services are rendered by Ross will be within Xxxx’x sole control and
discretion. Ross will not have authority to speak for, represent, or obligate Company in any way.
The Company shall not treat Ross as an employee for purposes of FICA, the Social Security Act,
FUTA, income tax withholding, worker’s compensation, unemployment insurance, pension, or any other
expense and/or fringe benefit customarily paid by an employer on behalf of an employee, except to
the extent that such participation may otherwise be available to Ross as a former employee of the
Company (for example, by an election of health care continuation coverage under applicable law).
Ross is solely responsible with respect to, and will pay, all self-employment taxes and income
taxes which are due on account of his status as an independent contractor.
5. Term. The term during which consulting services shall be provided under this
Agreement (the “Term”) shall begin on the Effective Date and end 9 months after the Effective Date.
The Term may be extended by mutual agreement of Ross and the Company. Either party hereto may
terminate this Agreement at any time and for any or no reason prior to the expiration of the Term
by providing written notice from the terminating party to the other party, delivered not less than
30 calendar days prior to the specified date of termination. In the event of such termination by
the Company for any reason other than Ross’ material breach of this Agreement, the Company shall
pay to Ross the unpaid portion of the compensation due to Ross under Paragraph 6 hereof for the
remainder of the Term. In the event that this Agreement is terminated by Ross, or by the Company
due to Ross’ material breach of this Agreement, any further obligation of the Company to pay the
compensation described in Paragraph 6 shall cease.
6. Ross’ Compensation. As consideration for Ross’ agreement to provide the services to
be performed hereunder, the Company shall pay Ross $85,000.00 per month, payable on the last day of
each calendar month during the Term, and prorated for fractions of a month. The Company will
reimburse Ross for Ross’ reasonable travel expenses incurred in performing services under this
Agreement.
7. Continued Applicability of Certain Employment Agreement Provisions. Ross and the
Company agree and acknowledge that certain provisions of the Employment Agreement shall survive the
termination of Ross’ employment, and shall continue to apply to Ross during the term of this
Agreement and thereafter. Consequently, the covenants and restrictions contained in following
provisions of the Employment Agreement are hereby incorporated by reference into this Agreement and
shall continue to be binding on Ross with respect both to his services as an
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employee and, except
as otherwise provided herein, with respect to services as a consultant hereunder after the
Effective Date:
| (a) | Section 7 (Confidentiality); | ||
| (b) | Section 8 (New Developments); | ||
| (c) | Section 9 (Surrender of Material on Termination); | ||
| (d) | Section 10 (Remedies) (but solely with respect to disputes arising under the Employment Agreement); | ||
| (e) | Section 11 (Covenant Not to Compete, No Interference, No Solicitation); and | ||
| (f) | Section 12 (Goodwill). |
The one-year time periods specified in Sections 8 and 11 of the Employment Agreement shall commence
upon the termination of Ross’ services under this Agreement. Ross agrees and acknowledges that he
is not, as of the Effective Date, engaged in any activity which would violate any provision of the
Employment Agreement. Notwithstanding the foregoing, and the requirements of Section 9 of the
Employment Agreement, Ross may, during the term of this Agreement, retain certain materials
necessary and appropriate for the performance of his services hereunder as may be mutually agreed
to by Ross and the Company. Upon termination of this Agreement, the requirements of Section 9 of
the Employment Agreement shall become fully effective, and Ross shall fully comply with the terms
thereof.
8. Indemnification. With respect to any actions or omissions of Ross in connection
with his services under this Agreement or the Employment Agreement, the Company shall indemnify
Ross to the same extent, and subject to the same terms and conditions, generally applicable to the
Company’s executive officers. The provisions of this Paragraph 8 shall survive the termination of
this Agreement.
9. Miscellaneous.
(a) Severability. The failure of any provision of this Agreement or the Employment
Agreement shall in no manner affect the right to enforce the remaining portions of this Agreement
or the Employment Agreement, and the waiver by either party of any breach of any provision of this
Agreement or the Employment Agreement shall not be construed to be a
waiver by such party of any succeeding breach of such provision or a waiver by such party of
any breach of any other provision. If any court construes any of the covenants herein, or any part
thereof, to be unenforceable because of the duration of such provisions or the area covered
thereby, such court shall have the power to reduce the duration or area of such provision and, in
its reduced form, such provision shall then be enforceable and shall be enforced.
(b) Entire Agreement. The foregoing, together with the provisions of the Employment
Agreement described in Paragraph 6, contain the entire agreement between the Company and Ross with
respect to Ross’ engagement as a consultant, and. no modification shall be binding upon a party
unless the same is in writing signed by such party.
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(c) Governing Law/Arbitration. This Agreement shall be governed by the laws of the
state of Ohio. Any controversy, claim or dispute arising out of, accruing, or relating to this
Agreement shall be resolved exclusively by binding arbitration in accordance with the then
applicable rules of the American Arbitration Association (“AAA”). The arbitration shall be heard
before a single neutral arbitrator who will have no power or authority to award treble, punitive,
exemplary, or consequential, damages. The proceeding will be held in Cincinnati, Ohio. The decision
of the arbitrator shall be final and binding, and the parties irrevocably submit to the
jurisdiction of the courts of Xxxxxxxx County, Ohio for enforcement of the arbitral award. Each
party shall pay their own fees and expenses in connection with the arbitration, with the expenses
of the arbitrator to be shared equally, except that, in the event that Ross prevails with respect
to any proceeding or matter in connection with the arbitration, then the Company shall pay all or a
proportionate share, as applicable, of Ross’ expenses in connection with such proceeding or matter.
No provision of this Agreement shall limit the right of a party to obtain interim equitable relief
from a court of competent jurisdiction before, after, or during the pendency of any arbitration.
(d) Assignment. This is an agreement for personal services involving a relation of
confidence and a trust between the Company and Ross. As such, all rights and duties of Ross
arising under this Agreement, and the Agreement itself, are non-assignable by Ross.
(e) Notices. Any notice required or permitted to be given under this Agreement shall
be sufficient if in writing and if delivered personally or by certified mail to Ross at Xxxx’x
place of residence as then recorded on the books of the Company or to the Company at its principal
office.
(f) Successors and Assigns. Subject to the requirements of subsection (d) above, this
Agreement shall be binding upon Ross, the Company and the Company’s successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date herein
first set forth above.
CINCINNATI XXXX INC.
| By: | /s/ Xxxx X. Xxxxxxx | /s/ Xxxxx X. Xxxx | |||
| Xxxx X. Xxxxxxx | Xxxxx X. Xxxx | ||||
| Title: | Chief Executive Officer | ||||
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