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Exhibit 10.27
CONSULTING AND OPTION CONTRACT
This CONTRACT is between Rockford Corporation, an Arizona
corporation ("Rockford") and Xxxxxxxx, Xxxxx & Xxxxxxxx, Inc., a Nevada
corporation ("3G"). Rockford and 3G agree as follows:
1 RECITALS.
1.1 Rockford Business. Rockford is in the business of manufacturing
and distributing high quality car and home audio products under various brand
names including "Rockford-Fosgate", "Hafler", "Rockford Xxxxxxxxxx", and
"Perfect Interface".
1.2 3G Consulting Services. 3G is in the business of providing
executive and other consulting services. 3G has provided certain services to
Rockford pursuant to a letter agreement dated February 8, 1992, and accepted by
3G on February 10, 1992 (the "Letter Agreement"). 3G has now agreed to provide
longer term executive and consulting services to Rockford through the person of
W. Xxxx Xxxxxx ("Xxxxxx"), one of 3G's associates.
1.3 Related Agreement. This Contract is interrelated to a
substantially contemporaneous Agreement (the "Agreement"), between Xxxxxx and
Xxxxxxxx X. Xxxxxx for herself individually and for the estate of Xxxx X. Xxxxxx
("Xxxxxx") the principal stockholder of Rockford, (1) providing for a side
option on 185,000 shares of Rockford stock to be granted by Xxxxxx to Xxxxxx,
(2) requiring that Xxxxxx devote "full time" (as defined therein) to his
services to Rockford, and (3) establishing certain non-compete and other
obligations. A copy of the Agreement is attached hereto as Exhibit 1 and made a
part hereof.
2 CONSULTING SERVICES AGREEMENT. For a term of not less than 3 years
from August 1, 1992, 3G shall provide executive and advisory services in the
turnaround and corporate redevelopment program of Rockford through the person of
its associate Xxxxxx working on a "full time" basis (as defined in the
Agreement) and such other of its associate(s) as it may assign to the Rockford
engagement with Rockford's advance approval.
2.1 Nature of Required Services. Rockford, 3G and Xxxxxx shall from
time to time agree on the exact nature of the consulting services to be
performed hereunder.
2.2 Xxxxxx'x Position. Xxxxxx shall serve on a "full time" basis as
a Director, President and CEO of Rockford, or in such other capacity as
Rockford, Xxxxxx, Xxxxxx and 3G may from time to time mutually determine, and he
shall carry out the duties of such offices on an independent contractor basis
and not as Rockford's employee or servant.
2.3 Advisory Director. 3G shall designate its associate Xxxxx
Xxxxxxxx to serve as an "Advisory Director" of Rockford during the term hereof
with the right to receive notice of, to attend, and to speak at meetings of
Rockford's Directors, but not to vote on any actions to be taken.
2.4 Compensation of 3G Associates. 3G shall pay, and bear
exclusively, all compensation of Suttle, Goldress, and any other 3G associate
working on the Rockford engagement.
3 ROCKFORD COOPERATION. In order to facilitate the performance of 3G's
consulting services under this Contract, Rockford agrees to extend full
cooperation to 3G and Xxxxxx, to provide full access to all of its employees,
officers, consultants and Directors and to provide full access to all of its
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files, books and corporate and financial records. Rockford also agrees to
consult and cooperate with Xxxxxx in the formulation and adoption of its
financial and operating policies and practices. Xxxxxx and 3G shall review and
approve all of Rockford's policies and practices proposed to be adopted and
shall participate in all major decisions which may have a significant impact on
their engagement; however, notwithstanding the foregoing, control of Rockford
and its business shall at all times be and remain in the control of Rockford's
Board of Directors.
4 TERMINATION. This Contract may be terminated at any time by either
of Rockford or 3G by 90 days notice in writing given to the other party.
Effective upon such termination Xxxxxx shall withdraw and be released from his
obligation to Rockford set forth in Section 2 of the Agreement.
5 COMPENSATION AND EXPENSES.
5.1 Base Retainer. Rockford agrees to pay to 3G as part of its
compensation under this Contract a retainer fee of $30,000 per month payable in
advance on the 8th day of each month. This retainer fee shall be non-refundable
except in the event that this Contract shall be terminated by 3G pursuant to the
provisions of Section 4 hereof effective on some day other than the 8th day of
the month, in which case the final fee payment shall be pro-rated or a refund
given for any unearned portion.
5.2 Bonus Fees. As additional compensation for 3G's services under
this Contract, Rockford shall pay to 3G up to $120,000 per year of bonus fees,
from and after October 1, 1992, until the termination of this Contract. Payments
of bonus fees shall be made on the 8th day of the month during the months of
February, April, July and October and shall be paid for the preceding calendar
quarter (for example, the first payment, if earned, will be due February 8,
1993, and will be for the quarter from October 1, 1992, through December 31,
1992). Bonus fees shall be paid at the rate of up to $30,000 per quarter, but
shall cumulate during the fiscal year up to a maximum of $120,000 per year.
Bonus fees shall be earned at the rate of 3.2% of the quarterly increase in
Earnings Before Interest & Taxes (but after any accrual for employee incentive
bonuses) ("EBIT") over Rockford's quarterly EBIT results for its 1992 fiscal
year. Attached hereto as Exhibit 2 is an example of the calculation of the
target bonus fee payments for Fiscal 1993, which should be repeated in 1994 and
thereafter during the term of this Contract.
5.3 Termination Fees. If this Contract is terminated by Rockford,
Rockford shall continue to pay to 3G its base retainer and bonus fees for a
period of 6 months commencing from the date of termination, provided that such
termination payments period shall not extend beyond the third anniversary of
this Contract.
5.4 Option Compensation. As contingent compensation for 3G's
services hereunder, Rockford hereby grants to 3G options on or before August 1,
1999 to purchase 50,000 of its authorized but unissued common stock at a price
of $23.00 per share, protected against dilution only from stock dividends, stock
splits, reverse stock splits, mergers, consolidations, recapitalizations and
corporate adjustments.
5.4.1 Contingency for Exercise and Expiration. 3G's right to
exercise these options shall be contingent upon Rockford's stock becoming
publicly traded, or Rockford being merged into or acquired by a private or
publicly owned concern (a "Successful Result"). If a Successful Result does not
transpire, or if 3G's options are not exercised, by August 1, 1999, the options
shall expire on that date. If the options become exercisable by reason of a
Successful Result they shall be exercisable only within 90 days after such event
and shall then expire.
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5.4.2 Vesting. 3G's options shall vest 25% on August 1, 1992
and 25% on each of August 1, 1993, 1994 and 1995, provided that 3G and Xxxxxx
shall on each such vesting date still be performing the services required of
them under this Contract and the Agreement and that no notice of termination
shall have been given by 3G to Rockford prior to such vesting date. They shall
also vest 100% upon an earlier Successful Result.
5.4.3 Limited Assignment Right. 3G shall have the right to
assign its options granted hereunder to and among its associates (including
Xxxxxx) or to any corporation, firm or joint venture formed by them to hold the
options, but no other assignment shall be permissible.
5.4.4 Investment Representation. The right of 3G or any
permitted assignee to exercise the options (or his or her share thereof) shall
be conditioned upon (1) qualification as an "accredited investor" as that term
is defined in the regulations of the SEC on the date of exercise of the options
and the making of adequate investment representations with respect to such
purchases or (2) other evidence reasonably satisfactory to Rockford (such as an
opinion of counsel) that the proposed exercise is exempt from registration
under, and otherwise complies with, applicable federal and state securities
laws.
5.4.5 Notice of Exercise and Payment upon Exercise. 3G or its
permitted assignee shall give Rockford written notice of its intention to
exercise the options, of the date on which it intends to exercise the options
(the "Closing Date" or "Exercise Date"), and of the number of shares to be
purchased, not less than 10 nor more than 90 days before the Closing Date. The
written notice shall create a binding obligation on 3G or its permitted assignee
to purchase the specified number of shares on the Closing Date. All shares
purchased shall be delivered by Rockford and paid for in cash by 3G or its
permitted assignee on the Closing Date.
5.4.6 Taxes and Election not to Issue Shares. 3G acknowledges
that, as an independent contractor, upon exercise of the options it (or its
permitted assignee) may become subject to (and is solely responsible for)
payment of tax on the excess of the fair market value of the shares purchased
over the option exercise price. Rockford may become entitled to a deduction in
the same amount pursuant to provisions of the Internal Revenue Code of 1986 and
IRS regulations thereunder (the "Code"). 3G (for itself and its permitted
assignees) agrees that Rockford may elect not to issue up to that percentage of
shares that is equal to the maximum marginal rate of taxes 3G (or its permitted
assignee) would be required by the Code to pay to the IRS upon exercise of the
options; Rockford shall pay the fair market value of any withheld shares to the
IRS for the account of 3G or its permitted assignee, as applicable. At the
option of 3G or its permitted assignee, 3G or its permitted assignee may pay to
Rockford the cash amount of the shares Rockford may elect not to issue, at the
time of the exercise of the options, in which event Rockford shall issue all the
shares for which options are exercised. Rockford represents that it will make an
election not to issue shares only upon advice of its professional advisors that
such action is necessary to protect its deduction (and then it will not issue
only the amount required by the Code); such an election shall not constitute an
admission by either 3G or Rockford that 3G is an employee of Rockford and 3G
shall at all times be an independent contractor to Rockford.
5.5 Expense Reimbursement. In addition to compensation provided
hereunder, Rockford shall reimburse 3G for its reasonable out of pocket expenses
incurred on Rockford's behalf, subject to Rockford's (1) advance approval of
expenses in excess of $2,500 in any month or $1,000 for any single item and (2)
right to require adequate documentation of expenses.
6 CONFIDENTIAL INFORMATION. During and after the term of 3G's
engagement pursuant to this Contract, 3G and its associates will keep
confidential, and will not reproduce, copy or disclose to any other person or
firm, any trade secrets and other proprietary or confidential information and
data concerning Rockford or its business ("Confidential Information"). 3G and
its associates will not, during
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or after the term of this Agreement, use (either alone or with others), disclose
to any person, or encourage anyone else to disclose, any Confidential
Information except within the scope of 3G's duties and responsibilities for
Rockford or with Rockford's consent.
7 RETURN OF ROCKFORD DOCUMENTS. Upon termination of 3G's engagement
pursuant to this Contract, 3G shall return to Rockford all records and documents
of or pertaining to Rockford (including, but not limited to, customer,
distributor, and supplier lists, names, or addresses) and shall not make, retain
or give to any other person any copy or extract of any such record or document.
"Record" includes, but is not limited to, information stored on computer.
8 NON-SOLICITATION. During and after the term of 3G's engagement for
Rockford pursuant to this Agreement and the Contract, 3G will not solicit, or
assist others to solicit, any customers, distributors, suppliers, or employees
of Rockford who did business or agreed to do business with Rockford at any time
before or during the term of 3G's engagement for Rockford pursuant to this
Contract. If this section is deemed unreasonable as to time or scope by any
court or arbitrator, then such court or arbitrator shall have authority to
modify this section as to time or scope, or both, so that this section is
reasonable and shall then enforce this section as modified. 3G acknowledges and
agrees that the market for Rockford's product is limited and international in
scope, so that any solicitation activities in violation of this section would
cause material harm to Rockford.
9 ACTIONS. 3G acknowledges that it would be difficult to determine
damages, and Rockford will not have an adequate remedy at law, if 3G breaches
this Contract. Accordingly, if 3G breaches this Contract, Rockford may seek
injunctive relief to enforce this Contract. Nothing in this section shall limit
or exclude any and all other rights, including rights to money damages, granted
to Rockford in law or equity.
10 SEVERABILITY. If any section of this Contract is deemed unreasonable
by a court or arbitrator, such section shall be severable from the remainder of
this Contract, which shall be enforced according to its terms irrespective of
the enforceability of the unreasonable section provided such enforcement is
consistent with the general intent of the parties as evidenced by this Contract
taken as a whole.
11 RELEASE AND INDEMNIFICATION. Rockford agrees to release, remise and
forever acquit 3G and each and all of its employees, representatives and
associates, including Xxxxxx, working on the Rockford engagement from any and
all legal or equitable liability to it, whether undertaken hereunder or pursuant
to the Letter Agreement, so long as such liability arises out of any action, or
failure to take action, on Rockford's behalf which 3G or any of its employees,
representatives, and associates believed in good faith to be in Rockford's best
interest and not in contravention of this Contract or the Agreement. In
addition, Rockford agrees to exonerate, indemnify and hold harmless 3G, its
employees, representatives and associates, including Xxxxxx (an "Indemnified
Party"), from and against any and all losses, damages, costs and expenses,
including all legal fees, court costs, and out-of-pocket expenses (a "Loss") in
any way arising out of or in connection with an Indemnified Party's activities
on Rockford's behalf and asserted against an Indemnified Party by Rockford, any
of its officers, Directors, debenture owners or stockholders, or any other
person, so long as such Loss arises out of any action, or failure to take
action, on Rockford's behalf which the Indemnified Party in good faith believed
to be in Rockford's best interest. In the event of a claim of Loss the
Indemnified Party shall notify Rockford promptly of the claim and Rockford shall
advance expenses incurred in connection with the claim on behalf of the
Indemnified Party. Rockford may decline to advance expenses if its Board of
Directors determines, in good faith and within 30 days after receiving notice of
the claim from the Indemnified Party, that the Indemnified Party is not entitled
to indemnification under the circumstances; however, such determination shall
not be binding upon the Indemnified Party in any action for indemnification
hereunder. Rockford shall be
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entitled to assume the defense of any claim, using counsel of its choice
reasonably satisfactory to the Indemnified Party, and shall thereafter not be
responsible for the fees of counsel to the Indemnified Party.
12 NON-ASSIGNABILITY. The rights and obligations of Rockford and 3G
under this Contract shall not be assignable except 3G's option rights to the
extent expressly permitted. Any other purported or attempted assignment of 3G's
or Rockford's rights hereunder shall constitute a material breach of this
Contract.
13 EMPLOYMENT OF 3G PERSONNEL BY ROCKFORD . In the event that Rockford
shall employ Xxxxxx or any other person working for 3G at any time during the
pendency of this Contract it shall become obligated to pay to 3G a sum equal to
35% of such person's salary and incentive bonus paid by Rockford during the
first year of such person's employment.
14 CONFLICTS WITH AGREEMENT. In the event of any conflict between the
provisions of this Contract and the terms of the Agreement, this Contract shall
rule the relations between Rockford and 3G and the Agreement shall regulate the
relations between Xxxxxx and Xxxxxx inter sese.
15 NOTICES. Notices under this Contract shall be effective upon
delivery or three days after mailing, certified or registered mail, return
receipt requested, to the addresses stated on the signature page of this
Contract (which may be changed by notice).
16 INTEGRATION AND AMENDMENT. This Contract is the entire agreement of
the parties with respect to the engagement of 3G by Rockford, supersedes all
prior agreements relating thereto (including the Letter Agreement) and may be
amended only by a written document signed by both parties.
17 GOVERNING LAW. Arizona law shall govern this Contract and any
disputes arising out of or related in any way to this Contract.
18 ATTORNEYS' FEES. In any proceeding arising out of or related to this
Contract, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and other expenses incurred in connection with such proceeding.
19 ARBITRATION. Disputes not resolved by agreement of the parties and
arising out of or related in any way to this Contract shall be submitted to
binding arbitration in metropolitan Phoenix, Arizona, before a single arbitrator
or, if the parties cannot agree upon a single arbitrator, before a panel of
three arbitrators, one selected by each party (within 10 days after notice of a
dispute and failure to agree upon a single arbitrator) and a third appointed by
the arbitrators selected by the parties. The selection of arbitrators and all
arbitration proceedings shall be in accordance with the rules of the American
Arbitration Association, as amended to the date of the proceedings, and judgment
upon the award may be entered in any court having jurisdiction. The arbitrators
shall render a decision within 30 days after their appointment and may award the
costs of arbitration as they see fit.
20 EXECUTION AND EFFECTIVE DATE. This Contract is executed and
effective as of the ___ day of _______ , 1993.
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Rockford Corporation Xxxxxxxx, Galef & Goldress, Inc.
By /s/ By /s/
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Xxxx Xxxxxx, Chairman Xxxxx Xxxxxxxx, President
Address: 2698 Junipero Address: 000 Xxxxx Xxxx. #000
Xxxxx 000 Xxxxxxx Xxxxxxx, XX 00000
Signal Xxxx, XX 00000
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