CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of July 1, 1995, is by and
between Vari-Lite Holdings, Inc. (the "Company") and Xxxx X. Xxxxxx
("Consultant").
W I T N E S S E T H:
WHEREAS, the Company wishes to enter into a consulting relationship with
Consultant; and
WHEREAS, Consultant desires to enter into a consulting relationship with the
Company upon the terms and conditions hereinafter contained;
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth and of the mutual benefits accruing to the Company and to Consultant
from the consulting relationship to be established between the parties by the
terms of this Agreement, the Company and Consultant agree as follows:
1. CONSULTING RELATIONSHIP. The Company hereby retains Consultant, and
Consultant hereby agrees to be retained by the Company, as an independent
consultant, and not as an employee.
2. CONSULTING SERVICES. Consultant agrees that during the term of this
Agreement:
(a) POSITION AND DUTIES. Consultant will devote his best efforts to
this position as an independent consultant and will perform such
duties and execute the policies of the Company as determined by the
Board of Directors or President of the Company, or their designee.
Consultant shall exercise a reasonable degree of skill and care in
performing such duties.
(b) QUALIFICATIONS. Consultant's qualifications for providing
consulting services include:
(i) Extensive knowledge of entertainment production support
industry;
(ii) Expert in audio and sound systems, electrical distribution
systems and entertainment lighting systems;
(iii) Expert in sound mixing;
(iv) Extensive knowledge of sound and lighting technology;
(v) Expert in the structure and operations of the Company; and
(vi) Extensive business and social relationships in the Dallas,
Texas, business community.
(c) AVAILABILITY. Consultant shall be available to render services
to the Company under this Agreement upon receipt of five days'
written notice from the Company and for a minimum of 60 days during
any 12-month period commencing on the date of this Agreement or any
anniversary thereof. Consultant shall not be obligated to render in
excess of 90 days of service during any such 12-month period.
Consultant shall not be obligated to render any services under this
Agreement during any such period when he is unable to do so due to
illness, disability or injury.
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(d) AUTHORITY. Consultant shall have no authority over any employee
or officer of the Company, except as may be necessary in routine
performance of his duties hereunder, nor shall the Company be
required in any manner to implement any plans or suggestions
Consultant may provide.
3. COMPENSATION.
(a) CONSULTING FEE. The Company agrees to pay Consultant for his
services performed under this Agreement at the rate of $8,333 per
month or $100,000 per year ("Consulting Fee"), whether or not
services are actually rendered hereunder.
(b) SPLIT-DOLLAR INSURANCE. Consultant shall be eligible, directly
or indirectly through a designated owner, to receive benefits
(including the right to designate one or more beneficiaries) under
(i) Life Insurance Policy No. A1013721L, from American General Life
Insurance Company and any Split-Dollar Life Insurance Agreement and
Assignment of Life Insurance Policy as Collateral between the Company
and the designated owner of such policy with respect to such policy
and (ii) any additional or substitute split-dollar insurance policy,
plan or program hereafter obtained or established for, or made
available to, officers or directors of the Company; provided,
however, that at any time during the Consulting Term the terms of any
such split-dollar insurance policies, plans or programs shall be
equivalent to or exceed the terms, taken as a whole, of the policies
described in clause (i) above, as currently in effect.
(c) OTHER EMPLOYEE BENEFITS. Except as expressly provided in this
Agreement, Consultant shall not be entitled, based on his status as a
consultant, to participate in or receive benefits under any programs
maintained by the Company for its employees, including, without
limitation, life, medical and disability benefits, pension, profit
sharing or other retirement plans or other fringe benefits.
4. BUSINESS EXPENSES.
(a) OUT-OF-POCKET EXPENSES. The Company shall reimburse Consultant
for all reasonable out-of-pocket expenses incurred by Consultant in
the conduct of the Company's business, provided that Consultant
submits expense accounts accompanied by receipts and vouchers within
12 months following the expenditures.
(b) OFFICE SPACE EXPENSES. The Company shall pay Consultant and/or
Consultant's designees an aggregate of $1,000 per month to reimburse
Consultant for expenses incurred in connection with the maintenance
of offsite office space provided by Consultant for the benefit of the
Company, including, but not limited, to the hiring of support staff.
5. TERM. This Agreement shall continue for a term of three years commencing
as of the date first above written, provided that such term shall
automatically be extended for one year for each complete year Consultant
provides services hereunder. The term as originally set forth or as
automatically extended is referred to hereinafter as the "Consulting
Term."
6. TERMINATION. This Agreement may be terminated by either party at any time
in accordance with the following provisions. In the event of such
termination, Consultant's rights and entitlements shall be determined in
accordance with the following provisions.
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(a) DEATH. If Consultant dies, this Agreement shall terminate as of
the date of death. Upon termination due to Consultant's death,
Consultant's estate shall receive the Consulting Fee through the end
of the month in which the death occurs.
(b) DISABILITY. If Consultant suffers a Permanent Disability (as
defined below), the Company may terminate this Agreement by written
notice effective as of the Date of Disability (as defined below). If
this Agreement is terminated by reason of a Permanent Disability,
from the Date of Disability until the end of the Consulting Term in
effect immediately prior to the termination, the Company shall pay to
Consultant his Consulting Fee.
For the purpose of this Agreement, "Permanent Disability" shall
mean the inability to perform the services required hereunder due to
mental or physical disability which prevents Consultant from
substantially performing his duties hereunder and continues for
either (i) a total of 180 working days during any 12-month period or
(ii) 150 consecutive working days. "Date of Disability" shall mean
the date following the last of such days to so occur. If either
party disputes, after notice from the other, that Consultant is
disabled, such dispute shall be submitted to a physician mutually
satisfactory to Consultant and the Company. If the parties are
unable to agree on a mutually satisfactory physician, each shall
select a reputable physician, who shall select a third physician
whose determination of Consultant's ability to perform shall be
conclusive and binding on the parties. Evidence of such disability,
as so certified, shall be conclusive notwithstanding that a
disability policy, or clause in an insurance policy, covering
Consultant shall contain a different definition of "permanent
disability." The Company shall pay the fees and expenses of each
physician so appointed.
(c) FOR CAUSE. The Company may terminate this Agreement for Cause
(as defined below) at any time, without any additional notice. The
Company shall inform Consultant as to the grounds for such
termination. Consultant shall not be entitled to damages for such
termination and shall have no claim for such damages, and shall be
entitled after such termination to receive the Consulting Fee only
through the date of termination.
For purposes of this Agreement, "Cause" shall mean (i) the
willful, continued and material failure by Consultant to follow the
reasonable and lawful directions of the Board of Directors in
connection with Consultant's duties hereunder or to comply with any
provision of this Agreement, but only after (1) the Chairman of the
Executive Committee of the Board of Directors ("Executive Committee")
(or, if Consultant is the Chairman, another member of the Executive
Committee elected by the member or members thereof other than
Consultant), pursuant to resolutions adopted by a majority of the
members of the Executive Committee (excluding Consultant if he is a
member of the Executive Committee), delivers a written demand to
Consultant for substantial performance specifically setting forth the
manner in which the Executive Committee believes Consultant has
failed to follow such directions or to comply with this Agreement and
(2) the failure to follow such directions or to comply with this
Agreement continues for a period of 30 days; (ii) Consultant's gross
negligence or intentional misconduct in the performance of his duties
hereunder; (iii) Consultant's conviction of a felony; or (iv) the
commission by Consultant of any act involving embezzlement or fraud.
(d) WITHOUT CAUSE OR CONSTRUCTIVE TERMINATION. The Company may
terminate this Agreement for other than death, disability, breach or
injurious conduct or Change of Control (as defined below) upon 30
days prior written notice.
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If at any time during the Consulting Term, an event of Constructive
Termination (as defined below) occurs, then Consultant shall have the
right upon 30 days prior written notice to the Company to terminate
his services hereunder. Such termination shall be deemed a
"Constructive Termination" of this Agreement by the Company.
In addition to any other rights of Consultant, if termination is
(i) by the Company for other than death, disability, breach or
injurious conduct or Change of Control, or (ii) on the basis of a
Constructive Termination, from the date of termination until the end
of the Consulting Term, the Company shall pay to Consultant his
Consulting Fee.
For purposes of this Agreement, "Constructive Termination" means
the following:
(i) the continued and material failure of the Company to
comply with its covenants and obligations under this Agreement,
but only after (A) Consultant delivers written demand to the
Company for substantial performance specifically setting forth
the manner in which he believes the Company has so failed to
comply with its covenants and obligations and (B) such material
failure continues for a period of ten days;
(ii) the assignment to Consultant of any duties inconsistent
in any respect with Consultant's position, duties
or responsibilities as contemplated in Section 2 of this
Agreement, which results in a diminution in such position,
duties or responsibilities, excluding for this purpose any
isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by Consultant;
(iv) any purported termination by the Company of this
Agreement other than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 10(c)(iii) of this Agreement, provided that the
successor referred to therein has received at least ten days
prior written notice from the Company or Consultant of the
requirements of Section 10(c)(iii).
(e) CHANGE OF CONTROL. Upon 30 days prior written notice to the
other party stating the grounds for such termination, either the
Company or Consultant may terminate this Agreement as the result of a
Change of Control.
A "Change of Control" shall be deemed to have occurred if (i) the
Company is merged or consolidated with another corporation and as
a result of such merger or consolidation less than 50% of the
outstanding voting securities of the surviving or resulting
corporation are owned in the aggregate by the former shareholders of
the Company; (ii) the Company sells all or substantially all of its
assets to another corporation, which is not a wholly-owned subsidiary
of the Company; (iii) any person or group within the meaning of the
Securities Exchange Act of 1934, as amended, acquires (together with
voting securities of the Company held by such person or group) 30% or
more of the outstanding voting securities of the Company (whether
directly, indirectly, beneficially or of record) pursuant to any
transaction or combination of transactions; (iv) there is a change of
control of the Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934,
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as amended, whether or not the Company is then subject to such
reporting requirements; or (v) the individuals who, at the
beginning of any period of twelve consecutive months, constituted
the Board of Directors cease, for any reason, to constitute at
least a majority thereof, unless the nomination for election or
election by the Company's shareholders of each new director of the
Company was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for
election was previously so approved. Notwithstanding the
foregoing, however, a Change of Control shall not be deemed to have
occurred upon the consummation of an initial public offering of the
Company's capital stock or the issuance of capital stock by the
Company approved by a vote of at least two-thirds of the directors
then in office.
If this Agreement is terminated as a result of a Change of
Control or if Consultant elects to terminate this Agreement as the
result of a Change of Control at any time within two years after the
Change of Control, then from the date of termination until the end of
the Consulting Term, the Company shall pay to Consultant his
Consulting Fee (the "Severance Payments").
(f) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. If Severance
Payments pursuant to Section 6(e) of this Agreement become subject to
the excise tax (the "Excise Tax") imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended ("Code"), the Company shall
pay to Consultant an additional amount (the "Gross-Up Payment") such
that the net amount retained by Consultant, after deduction of any
Excise Tax on the Severance Payments (and any federal, state and
local income tax and Excise Tax upon the payment provided for by this
Section 6(f)), shall be equal to the Severance Payments.
(i) For purposes of determining whether any of the Severance
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (A) any other payment or benefit
received or to be received by Consultant in connection with a
Change of Control and the subsequent termination of this
Agreement (whether such termination is pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with
the Company, with any other person whose actions resulted in the
Change of Control or with any person affiliated with the Company
or such other person) shall be treated as a "parachute payment"
within the meaning of Section 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel selected by the
Company's independent auditors and reasonably acceptable to
Consultant such other payments or benefits (in whole or in part)
do not constitute parachute payments (including by reason of
Section 280G(b)(4)(A) of the Code) or such excess parachute
payments (in whole or in part) represent reasonable compensation
for services actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the "base amount" (as
determined according to Section 280G(b)(3) of the Code, any
final or temporary regulations promulgated under Section 280G of
the Code and any interpretations thereof by the Internal Revenue
Service) allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax, (B) the amount of the
Severance Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (1) the total amount
of the Severance Payments and (2) the amount of excess parachute
payments within the meaning of Section 280G(b)(1) of the Code
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(after applying clause (A) above), and (C) the value of any non-
cash benefit, deferred payment or other benefit shall be
determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
(ii) For purposes of determining the amount of the Gross-Up
Payment, Consultant shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest marginal rate of
taxation in the state and locality of Consultant's residence on
the date of termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such
state and local taxes. If the Excise Tax is subsequently
determined to be less than the amount taken into account
hereunder at the time of Consultant's termination of employment,
Consultant shall repay to the Company, at the time that the
amount of such reduction in Excise Tax is finally determined,
the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local
income tax imposed on the Gross-Up Payment being repaid by
Consultant to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income
tax deduction) plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. If the
Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of Consultant's
employment (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment
in respect of such excess (plus any interest, penalties or
additions payable by Consultant with respect to such excess) at
the time that the amount of such excess is finally determined.
Consultant and the Company shall each reasonably cooperate with
the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for
Excise Tax with respect to the Severance Payments.
(g) TIME FOR PAYMENT. Except as otherwise provided in this Section
6, the Company shall pay any Consulting Fee, or portion thereof, due
to Consultant or his heirs or legal representatives under this
Section 6 on the Company's regularly scheduled paydays.
7. ADDITIONAL OBLIGATIONS OF CONSULTANT.
(a) TITLE TO CERTAIN TANGIBLE PROPERTY. All tangible materials
(whether original or duplicates) including, but not limited to,
equipment purchase agreements, file or data base materials in
whatever form, books, manuals, sales literature, equipment price
lists, training materials, client record cards, client files,
correspondence, documents, contracts, orders, messages, memoranda,
notes, agreements, invoices, receipts, lists, software listings or
printouts, specifications, models, computer programs and records of
any kind in the possession or control of Consultant which in any way
relate or pertain to the Company's business, including the business
of subsidiaries or other affiliates of the Company, whether furnished
to Consultant by the Company or prepared, compiled or acquired by
Consultant during his consulting relationship with Company, shall be
the sole property of the Company. At any time upon request of the
Company, and in any event promptly upon termination of this
Agreement, Consultant shall deliver all such materials to the
Company.
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The Company shall be under no obligation to pay to Consultant any
sums of money then due Consultant or becoming due thereafter until
Consultant has complied with the provisions of this Section 7(a).
(b) TITLE TO CERTAIN INTANGIBLE PROPERTY. Consultant shall
immediately disclose and assign to the Company all his right, title
and interest in any inventions, models, processes, patents,
copyrights and improvements thereon relating to services or processes
or products of the Company or its affiliates that he conceives or
acquires during any consulting relationship with the Company or that
he may conceive or acquire during a period of one year after
termination of this Agreement.
(c) CONFIDENTIAL INFORMATION; RECORDS. Consultant recognizes that
Consultant's retention by the Company is one of the highest trust and
confidence by reason of Consultant's access to and contact with
certain trade secrets, confidential business practices and
proprietary information of the Company (collectively, "Trade
Secrets"). Consultant shall use his best efforts and exercise utmost
diligence to protect and safeguard the Trade Secrets. Except as may
be required by the Company in connection with this Agreement, or with
the prior written consent of the Company, Consultant shall not,
either during the Consulting Term or thereafter, directly or
indirectly, use for Consultant's own benefit or for the benefit of
another, or disclose, disseminate or distribute to another, any of
the Trade Secrets (whether or not acquired, learned, obtained or
developed by Consultant alone or in conjunction with another) of the
Company or of any other person with whom the Company has a business
relationship. All memoranda, notes, records, drawings, documents or
other writings whatsoever made, compiled, acquired or received by
Consultant during the Consulting Term arising out of, in connection
with or related to any activity or business of the Company (other
than records and personal notes received or prepared by Consultant in
his capacity as a director of the Company) are and shall continue to
be the sole and exclusive property of the Company, and shall,
together with all copies thereof, be delivered to the Company by
Consultant immediately when Consultant ceases to be retained by the
Company, or at any other time upon the Company's demand.
(d) NONCOMPETITION AGREEMENT. Consultant acknowledges and agrees
that as a result of his consulting relationship with the Company,
including, without limitation, the experience he will gain therefrom
and the information he will acquire regarding the Trade Secrets, he
will be able to injure the Company if he should compete with the
Company in a business that is competitive with the business conducted
or to be conducted by the Company. For these reasons, Consultant
hereby agrees as follows:
(i) Without the prior written consent of the Company,
Consultant shall not, during the term of this Agreement,
directly or indirectly, either as an individual, a partner or a
joint venturer, or in any other capacity, (A) invest (other than
investments in publicly-owned companies which constitute not
more than 1% of the voting securities of any such company) or
engage in any business that is competitive with that of the
Company or its affiliates, (B) accept employment with or render
services to a competitor of the Company or any of its affiliates
as a director, officer, agent, employee or consultant,
(C) contact, solicit or attempt to solicit or accept business
from any (1) customers of the Company or its affiliates or
(2) person or entity whose business the Company or its
affiliates is soliciting or (D) contact, solicit or attempt to
solicit or accept or direct business
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that is competitive with such business being conducted by the
Company or any of its affiliates during the term of this
Agreement from any of the customers of the Company or any of
its affiliates. For purposes of this Section 7, a
"competitor" specifically includes persons, firms, sole
proprietorships, partnerships, companies, corporations or
other entities that market products and/or perform services in
direct or indirect competition with the products marketed
and/or services performed by the Company or its affiliates
anywhere in the world. Without limiting the generality of the
foregoing, the Company's products and services include, but
are not limited to, professional and architectural lighting,
sound reinforcement, stages and stage sets, design and
production management and other similar products and services
for concert touring, theatre, television and film, corporate
events and conventions, commercial buildings and similar
markets. As used in this Section 7, "affiliates" shall mean
persons or entities that directly, or indirectly through one
or more intermediaries, control or are controlled by, or are
under common control with, the Company.
(ii) Upon termination of this Agreement for any reason, and
for a period of two years thereafter, Consultant shall not,
directly or indirectly, either as an individual, a partner or a
joint venturer, or in any other capacity, in any geographic
market in which the Company or any of its affiliates is doing
business on the date of termination, (A) contact, solicit or
attempt to solicit or accept business from any party (1) who, on
the date of termination of this Agreement or within one year
prior thereto, was a customer of the Company or its affiliates,
or (2) whom Consultant solicited, contacted or otherwise dealt
with on behalf of the Company or any of its affiliates within
one year prior to such date of termination or (B) hire or
solicit or in any manner attempt to influence or induce any
employee of the Company or its affiliates to leave the
employment of the Company or its affiliates, nor shall he use or
disclose to any person, partnership, association, corporation or
other entity any information obtained during the term of this
Agreement concerning the names and addresses of employees of the
Company or its affiliates. Notwithstanding the foregoing, if
this Agreement terminates for any reason and the Company fails
to perform timely its obligations under Section 6 of this
Agreement, Consultant's obligations under this Section 7(d)
shall permanently terminate; provided, however, that the Company
shall not thereby be released of its obligations under this
Agreement, including, without limitation, its payment
obligations under Section 6.
(e) ACKNOWLEDGEMENTS. Consultant acknowledges and recognizes that
the enforcement of any of the nondisclosure and noncompetition
provisions in Section 7 of this Agreement by the Company will not
interfere with Consultant's ability to pursue a proper livelihood.
Consultant further represents that he is capable of pursuing a career
in other industries other than the Company's to earn a proper
livelihood. Consultant recognizes and agrees that the enforcement of
this Agreement is necessary to ensure the preservation and continuity
of the business and goodwill of the Company. Consultant agrees that
due to the nature of the Company's business, the noncompetition
restrictions set forth in this Agreement are reasonable as to time
and geographic area. At any time during the Consulting Term and for
a period of two years thereafter, the Company may request Consultant
to supply such information as the Company deems necessary to
ascertain whether or not Consultant has complied with, or has
violated, the restrictive covenants of
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Section 7 of this Agreement. Consultant shall furnish the requested
information to the Company within 10 days following the receipt of
such request.
(f) REMEDIES. Consultant recognizes and acknowledges that the
ascertainment of damages in the event of his breach of any provision
of Section 7 of this Agreement would be difficult, and Consultant
agrees that the Company, in addition to all other remedies it may
have, shall have the right to specific performance or injunctive
relief to enforce its terms if there is such a breach, without any
requirement to post bond or other security.
(g) SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, the provisions of Section 7 of this Agreement shall
survive any termination of this Agreement.
8. NOTICES. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the
other shall be in writing and shall be either (i) delivered in person,
(ii) mailed by registered or certified mail, return receipt requested,
postage prepaid, (iii) delivered by overnight express delivery service or
same-day local courier service or (iv) delivered by facsimile
transmission, to the addresses set forth below.
If to Company: Vari-Lite Holdings, Inc.
000 Xxxxx Xxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to Consultant: Xxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Notices delivered personally, by overnight express delivery, local courier
or facsimile shall be deemed communicated as of actual receipt; mailed
notices shall be deemed communicated as of three days after mailing. Any
party may change its address for notice by written notice in accordance
with this Section given to the other parties.
9. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement (including, without limitation, whether termination has been for
"conduct injurious to the Company" pursuant to Section 6(c)) shall be
settled by binding arbitration. Any such arbitration proceedings shall be
conducted as follows:
(a) Arbitration shall be conducted by three arbitrators, one to be
selected by each of the parties and the third to be designated by the
two arbitrators so selected. If the two arbitrators cannot agree on
the third arbitrator, the American Arbitration Association in Dallas,
Texas, where the arbitration shall take place shall select the third
arbitrator.
(b) The arbitration shall follow the standard rules and procedures
of the American Arbitration Association, except as otherwise provided
herein. The arbitrators shall substantially comply with Texas rules
of evidence, shall grant essential but limited discovery, shall
provide for the exchange of witness lists and exhibit copies, shall
conduct a pretrial hearing and shall consider dispositive motions.
Each party shall have the right to request the arbitrators to make
findings of specific factual issues.
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(c) The arbitrators shall complete their proceedings and render
their decision within 40 days after submission of the dispute to
them, unless both parties agree to an extension. Each party will
cooperate with the arbitrators to comply with procedural time
requirements, and the failure of either to do so shall entitle the
arbitrators to extend the arbitration proceedings accordingly and to
impose sanctions on the party responsible for the delay, payable to
the other party.
(d) The majority decision of the arbitrators shall contain findings
of facts on which the decision is based, including any specific
factual findings requested by either party, and shall further contain
the reasons for the decision with reference to the legal principles
on which the arbitrators relied. Such decision of the arbitrators
shall be final and binding upon the parties, and accordingly the
Company and Consultant shall promptly comply with the terms of such
award, and a judgment by a court of competent jurisdiction may be
entered in accordance therewith.
(e) The fees and expenses of the arbitrators in connection with the
resolution of disputes pursuant hereto shall be borne by the party
who does not prevail in the arbitration.
(f) The Company and Consultant hereby consent to the jurisdiction of
the courts of the State of Texas for purposes of entering judgment
with respect to an arbitration award.
10. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the Company and Consultant concerning the subject
matter hereof and supersedes all prior agreements or understandings,
written or oral, with respect thereto. No attempted modification or
waiver of any of the provisions hereof shall be binding on either
party unless in writing and signed by both Consultant and the
Company.
(b) COSTS. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he
or it may be entitled.
(c) SUCCESSORS AND ASSIGNS.
(i) This Agreement shall be binding upon, inure to the
benefit of and be enforceable by Consultant and Consultant's
legal representatives. This Agreement is personal to Consultant
and without the prior written consent of the Company shall not
be assignable by Consultant otherwise than by will or the laws
of descent and distribution.
(ii) This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and its successors
and assigns. The Company shall have the right to assign this
Agreement to a parent, affiliate or subsidiary corporation or to
any corporation succeeding to substantially all of the assets
and business of the Company whether by merger, consolidation,
acquisition or otherwise.
(iii) The Company shall require any successor (whether
direct or indirect, by merger, consolidation, acquisition or
otherwise) to all or substantially all of the business
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and/or assets of the Company expressly to assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no
such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid that
assumes and agrees to perform this Agreement by operation of
law, or otherwise.
(d) APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. The
parties acknowledge and agree that this Agreement and the obligations
and undertakings of the parties hereunder will be performable in
Dallas, Dallas County, Texas.
(e) AMENDMENT. This Agreement may be amended, or a new agreement
substituted, at any time and from time to time only by a written
instrument duly authorized and executed by the Company and
Consultant.
(f) WAIVER. The waiver by either party of a breach or violation of
any provision of this Agreement shall not operate as or be construed
as a waiver of any subsequent breach hereof.
(g) PARTIAL INVALIDITY AND SEVERABILITY. If any one or more of the
provisions contained in this Agreement for any reason is held to be
illegal, invalid or unenforceable, the illegality, invalidity or
unenforceability will not affect, impair or invalidate any other
provision of this Agreement, which will be construed as if the
illegal, invalid or unenforceable provision had not been contained in
this Agreement and, in lieu of each illegal, invalid or unenforceable
provision, there will be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable. In addition, however, Consultant agrees that the
provisions of Sections 9 and 10 of this Agreement each constitute
separate agreements independently supported by good and adequate
consideration and shall be severable from the other provisions of,
and shall survive, this Agreement. The existence of any claim or
cause of action of Consultant against the Company, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants and agreements of
Consultant contained in Section 7.
(h) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall
constitute one agreement.
[THE NEXT FOLLOWING PAGE IS THE SIGNATURE PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CONSULTANT:
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
COMPANY:
Vari-Lite Holdings, Inc.
By:/s/ X.X. Xxxxxxxx III
---------------------------------------
X. X. Xxxxxxxx III
Chairman of the Board and President
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