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EXHIBIT 10.8
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
effective as of January 1, 1998 the "Effective Date") by and between XXX X.
XXXX, (the "Consultant"), and THRIFT MANAGEMENT, INC., a Florida corporation
(the "Company").
W I T N E S S E T H
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WHEREAS, the Company is in the business of owning and operating retail
thrift stores;
WHEREAS, the Consultant provides various business consulting services
to businesses such as the Company;
WHEREAS, the Company desires to retain the Consultant to consult with
the Company regarding strategies for development and expansion of the Company's
business, including advice with respect to mergers and acquisitions; and
WHEREAS, the Consultant and the Company desire to enter into this
Agreement under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. ENGAGEMENT. The Company hereby retains the Consultant, and the
Consultant hereby accepts such engagement, on the terms and conditions set forth
herein. During the term of this Agreement and any renewal(s) hereof (all
references herein to the term of this Agreement shall be deemed to include
references to all periods of renewal, if any), the Consultant shall devote such
time and perform diligently such services as provided in Section 3, but shall
not be required to devote any specific number of hours to such service.
2. TERM. The term of this Agreement shall be six months commencing on
the Effective Date (the "Contract Term") unless sooner terminated as provided in
Section 6. The Agreement will automatically renew for additional six-month
periods upon the expiration of the preceding Contract Term, unless notice of
termination of the Agreement is given prior to the expiration of a six-month
period pursuant to Section 6.
3. CONSULTANT'S SERVICES; EXPENSES.
a. During the term of this Agreement, the Consultant shall:
i. provide consultation services to the Company for
the purpose of assisting the Company in developing and expanding the business of
the Company;
ii. assist the Company in developing, studying and
evaluating capital-raising and merger and acquisition proposals; and
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iii. report to the Company and perform such services
as may be requested by the Company in accordance with this Agreement.
b. The Company agrees to reimburse the Consultant for any
pre-approved out-of-pocket expenses related to duties undertaken by the
Consultant pursuant to this Agreement.
4. COMPENSATION. (a) As compensation for the services rendered by the
Consultant under this Agreement, the Company grants to the Consultant
non-qualified stock options (the "Options") to purchase an aggregate of 66,000
shares of the $.01 par value per share common stock of the Company (the "Common
Stock"), exercisable at a price of $2.00 per share. The Options shall vest and
become exercisable by the Consultant as follows: (a) 5,000 of the Options shall
vest immediately upon execution of this Agreement, (b) an additional 5,000 shall
vest at the end of the next six-month period and (c) 14,000 shall vest at the
end of every six-month period thereafter until all of the 66,000 Options are
vested and become exercisable. Vested Options shall expire five years from the
date of this Agreement. If the Agreement is terminated with or without cause by
either the Company or the Consultant, any Options that have not vested as of the
date of such termination shall expire.
(b) The Company agrees to use its best efforts to register for
public resale the shares of Common Stock underlying the Options as soon as
reasonably practicable following the execution of this Agreement.
5. AGREEMENT NOT TO RESELL UNDERLYING SHARES. The Consultant hereby
agrees that he will not sell any shares of Common Stock obtained by exercise of
the Options for a period of one year from the date of each such exercise.
6. TERMINATION. This Agreement may be terminated by either party with
or without cause upon not less than 15 days' written notice given prior to the
expiration of the then-current Contract Term given to the non-terminating party
in accordance with Section 12.
7. CONFIDENTIAL INFORMATION. The Company and the Consultant understand
that prior to and during the term of this Agreement, the Company may, from time
to time, make available to the Consultant, certain financial, business and other
proprietary information concerning the Company's operations (collectively,
"Confidential Information") and that such Confidential Information may otherwise
come into the possession of the Consultant. Confidential Information includes,
without limitation, information relating to the strategies, plans, assets,
customers, suppliers, employees, and business activities of the Company. The
Consultant agrees that all such Confidential Information furnished or disclosed
to it or otherwise obtained by it will be treated as confidential and will not
be disclosed or divulged by the Consultant, directly or indirectly, to any other
person or entity. Confidential Information shall not include information which
becomes generally available to the public other than as a direct or indirect
result of a disclosure by the Consultant.
8. INDEPENDENT CONTRACTOR. Nothing in this Agreement is intended nor
shall be construed to create an employer/employee relationship, or a joint
venture relationship, or to
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allow the Company to exercise control or direction (except as specifically set
forth in the Agreement) in the matter or method by which the Consultant performs
the services required under this Agreement; provided that the Consultant
performs such services in a manner consistent with the standards governing such
services and the provisions of this Agreement. The Consultant understands and
agrees that: (a) it will not be treated as an employee of the Company for
federal tax purposes; (b) it shall not by virtue of this Agreement be entitled
to any of the benefits afforded to any employees of the Company, except as
specifically set forth in the Agreement; and (c) it shall indemnify and hold the
Company harmless from and against any and all loss or liability arising with
respect to such payments, withholdings and benefits.
9. ATTORNEYS' FEES. In the event any litigation or controversy arises
out of or in connection with this Agreement between the parties hereto, the
prevailing party in such litigation or controversy shall be entitled to recover
from the other party all reasonable attorneys' fees, expenses and suit costs,
including those associated with any appellate or post-judgment collection
proceedings.
10. SURVIVAL. Notwithstanding anything to the contrary herein, the
provisions of Sections 7, 8, and 9 shall survive any termination or expiration
of this Agreement.
11. NOTICES AND DEMANDS. Any notice, request, demand, offer, payment or
communication required or permitted to be given by any provision of this
Agreement shall be deemed to have been delivered and given for all purposes if
written and (a) if delivered personally or by courier or delivery service, at
the time of such delivery, or (b) if directed by registered or certified United
States mail, postage and charges prepaid, addressed to the intended recipient at
the address specified below, at such time that the intended recipient or his
agent signs or executes the receipt or (c) if by telefax (facsimile) at the time
received by the intended recipient as evidenced by the confirmation:
if to the Consultant: Xxx X. Xxxx
Broad and Xxxxxx
Miami Center, Suite 3000
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Telefax No.: (000) 000-0000
or at any other address designated by the Consultant to the Company in writing,
and
if to the Company: Thrift Management, Inc.
0000 X. Xxxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx, President and
Chief Executive Officer
Telefax No.: (000) 000-0000
or at any other address and/or telefax designated by the Company to the
Consultant in writing.
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12. SEVERABILITY. If any provision of this Agreement, the deletion of
which would not adversely affect the receipt of any material benefit by any
party hereunder or substantially increase the burden of any party hereto, shall
be held to be invalid or unenforceable to any extent, the same shall not affect
in any respect whatsoever the validity or enforceability of the remainder of
this Agreement.
13. WAIVER OR MODIFICATION. No waiver or modification of this Agreement
of any covenant, condition or limitation herein contained shall be valid unless
in writing and duly executed by the party to be charged therewith. Furthermore,
no evidence of any waiver or modification shall be offered or received in
evidence in any proceeding, arbitration or litigation between the parties
arising out of or affecting this Agreement, or the rights or obligations of any
party hereunder, unless such waiver or modification is in writing and duly
executed as aforesaid.
14. ENTIRE AGREEMENT AND ASSIGNMENT. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter of
this Agreement and supersedes any and all previous agreements between the
parties, whether written or oral, with respect to such matter. The parties agree
that this Agreement may not be assigned by either party without the prior
written consent from the other party.
15. APPLICABLE LAW, BINDING EFFECT AND VENUE. This Agreement shall be
construed and regulated under and by the laws of the State of Florida without
application of the principles of conflicts of laws. The Agreement shall inure to
the benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and permitted assigns. Venue for any arbitration or
action related to or arising out of this Agreement shall lie in Broward County,
Florida.
16. MULTIPLE COPIES OR COUNTERPARTS OF THE AGREEMENT. The original and
one or more copies of this Agreement may be executed by one or more of the
parties hereto. In such event, all of such executed copies shall have the same
force and effect as the executed original and all of such counterparts taken
together shall have the effect of a fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date indicated above.
CONSULTANT:
/s/ XXX X. XXXX
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XXX X. XXXX
COMPANY:
THRIFT MANAGEMENT, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President and
Chief Executive Officer
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