CONSULTING AGREEMENT
Exhibit 10.1
This Agreement is made and entered into this 16th day of May 2008, by and between Xxxxxxxx
Corporation (“Xxxxxxxx”) and Xxxx X. Xxxxxx (“Consultant”), as follows:
In consideration of and subject to the provisions of this Agreement, Consultant will provide,
during the Consulting Term (as defined herein), the Services (as defined herein) in accordance with
the following terms and conditions:
| 1. | Services. Consultant shall render consulting services, as required by the Chief
Executive Officer of Xxxxxxxx, or his designees, (i) to develop and refine the Xxxxxxxx
Strategic Plan and (ii) to assist with any other projects or initiatives (the “Services”).
Consultant shall be reasonably available to Xxxxxxxx averaging four (4) days per month during
the Consulting Term (as defined herein). Consultant shall also be reasonably available to
travel on business for Xxxxxxxx. In rendering the Services, Consultant shall comply with all
Xxxxxxxx policies and procedures. |
| 2. | Consulting Term. This Agreement shall become effective on June 1, 2008 and shall
continue through November 30, 2008 (the “Consulting Term”). This Agreement shall not be
renewed by its own terms, and any further rendition of services by Consultant beyond November
30, 2008 shall require the execution of a new consulting agreement. |
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| 3. | Compensation. |
| a. | Consulting Fee. Consultant shall receive Eleven Thousand and no/100
Dollars ($11,000.00) per month (the “Consulting Fee”) for the Services provided under
this Agreement. |
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| b. | Reimbursable Expenses. Xxxxxxxx shall reimburse Consultant for
approved and reimbursable expenses incurred by Consultant in providing the Services,
which shall include expenses for the actual cost of transportation (including first
class air travel), subsistence and related incidental expenses. Travel arrangements
shall be coordinated through Xxxxxxx Wagonlit. Such expenses must be approved in
advance in connection with the Services, and of the kind and nature normally reimbursed
by Xxxxxxxx, in accordance with Xxxxxxxx standard policies and procedures. |
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| c. | Invoice. Consultant shall provide an invoice for all amounts due
under this Agreement at the end of each month in which Services are provided. Such
invoice shall include a specific description of Services provided. Such invoices shall
be sent to Xxxxxxxx Corporation, 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000; Attention:
Xxxxxxxx Xxxxxxx. |
| 4. | Taxes; Independent Contractor. Consultant shall render the Services hereunder as an
independent contractor and not as an employee, agent, partner, or joint venturer of Xxxxxxxx
or any of its subsidiaries, divisions, affiliates or related entities. Consultant is not
authorized to, nor shall he make any attempt to, make any commitments, agreements or binding
obligations for or on behalf of Xxxxxxxx unless previously authorized by the Chief Executive
Officer or his designees. Consultant shall receive, as total and sole compensation for the
Services, the amounts set for in Paragraph 3. Consultant shall be responsible for payment of
all taxes and other charges of whatever nature on the compensation. Consultant will prepare and file all
necessary and appropriate tax forms, returns and other tax and regulatory filings to reflect
Consultant’s independent contractor status. The compensation paid to Consultant shall
constitute full payment and satisfaction for all services of every kind and connection with
the Services. As an independent contractor, Consultant shall not be eligible by reason of
this Agreement to participate in any benefit, insurance, compensation, bonus, vacation,
severance, health and welfare or retirement program offered at any time by Xxxxxxxx to
Xxxxxxxx employees. This Agreement shall not, however, affect any rights or benefits
Consultant has or is entitled to by virtue of his prior status as an employee of Xxxxxxxx or
other agreements entered into by Consultant and Xxxxxxxx prior to the effective date of this
Agreement. |
| 5. | Confidential Information/Work Product. In the course of providing Services,
Consultant will be furnished with certain data and information that is confidential or
proprietary to Xxxxxxxx, affiliates of Xxxxxxxx and/or third parties. As a condition to the
commencement and continuance of this Agreement, Consultant shall keep such data and
information strictly confidential in accordance with the following terms: |
| a. | Confidential Information. Consultant agrees that all information
furnished or disclosed to Consultant by Xxxxxxxx or which is otherwise obtained from
Xxxxxxxx and/or its subsidiaries, divisions, affiliates or related entities (whether
written, oral or by visual inspection) together with all Work Product (as defined
herein) in connection with the performance of Services (the “Confidential Information”)
shall be received, maintained and protected in confidence by Consultant and shall not
be disclosed to any other person or entity or used by Consultant in any way or for any
other person or entity, except as is specifically agreed to in advance in writing by
Xxxxxxxx. All Confidential Information shall be used solely for the purposes of
providing the Services. Consultant’s confidentiality obligations with respect to
Confidential Information shall continue indefinitely and shall survive the termination
of this Agreement; provided, however, that the foregoing obligations shall not apply to
any Confidential Information which (i) is in the public domain on a non-confidential
basis prior to the date of this Agreement or (ii) comes into the public domain on a
non-confidential basis after the date of this Agreement through no fault of Consultant. |
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Consultant agrees to take all reasonably required measures to protect the
confidentiality of the Confidential Information furnished or disclosed by Xxxxxxxx under
this Agreement. |
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Consultant agrees that all Confidential Information disclosed by Xxxxxxxx shall remain
the property of Xxxxxxxx, and that same shall be returned to Xxxxxxxx (or, if directed
by Xxxxxxxx, destroyed) upon termination of this Agreement, or upon any earlier written
request of Xxxxxxxx. Consultant acknowledges that unauthorized disclosure and/or use of
Confidential Information may cause irreparable harm to Xxxxxxxx and that Xxxxxxxx may
enforce the provisions hereof through an injunction without proof of damage. |
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Consultant shall not make any unauthorized disclosure to Xxxxxxxx of any confidential
information in his possession which belongs to a third party. |
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The confidentially and non-use obligation hereof shall also apply to all or any
information or data developed or prepared by Consultant in performing the Services, and
which is confidential or otherwise restricted pursuant to this Agreement. In addition,
Consultant agrees that any invention, improvement, method or other item or matter which
relates to the subject of this Agreement or to Xxxxxxxx’x present or contemplated business, shall
be kept strictly confidential by Consultant, and shall be disclosed to and is hereby
assigned by Consultant to Xxxxxxxx without additional compensation from Xxxxxxxx. |
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| b. | Work Product. All Work Product created by Consultant under this
Agreement is and shall be the exclusive property of Xxxxxxxx, and may not be shared
with or disclosed to any other party without Xxxxxxxx’x consent. Consultant hereby
irrevocably assigns to Xxxxxxxx, without additional compensation, all right, title and
interest in and to the Work Product. “Work Product” means everything that is produced,
conceived or developed by Consultant in the course of performing Services for Xxxxxxxx
under this Agreement, including, without limitation, any and all reports, analyses,
studies, documentation, notes, drawings, computer programs (source code, object code
and listings), customer lists, inventions, creations and deliverables. During and
after the Consulting Term, Consultant will assist Xxxxxxxx in every reasonable way, at
Xxxxxxxx’x expense, to secure, maintain and defend for Xxxxxxxx’x benefit all
copyrights, patent rights, mask work rights, trade secret rights and other proprietary
rights in and to the Work Product. To the extent that Consultant has intellectual
property rights or other proprietary rights that are incorporated in or necessary to
the use of the Work Product, Consultant grants Xxxxxxxx and its subsidiaries,
divisions, affiliates, and related entities a royalty-free, irrevocable, worldwide,
non-exclusive license to use, disclose, reproduce, modify, make derivative works,
license and distribute such intellectual property or other propriety rights. To the
extent any Work Product is a Work Made for Hire as that phrase is defined by the United
States Copyright laws, Consultant agrees that such Work Product shall be owned by and
be for the express benefit of Xxxxxxxx. |
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Upon termination of this Agreement, or upon any earlier written request of Xxxxxxxx, the
Work Product and all copies thereof shall be returned to Xxxxxxxx or, if directed by
Xxxxxxxx, destroyed. |
| 6. | Compliance with Laws/Conflict of Interest. Consultant shall fully comply with all
applicable laws, regulations, rules and other requirements of the United States and of any
applicable state or foreign government. Consultant shall not pay or offer to pay for meals,
refreshments, entertainment or similar expenses for, or provide or offer to provide any gift
or thing irrespective of its value to, any United States or foreign government employee or
official, any company, political party or candidate, or person or entity, to attempt to
influence a government or customer to assist Xxxxxxxx. Consultant warrants and represents
that he is familiar with and agrees to comply with all applicable laws, regulations, Executive
Orders and other requirements governing the use and handling of classified information,
procurement and procurement integrity, influence of public officials and other legal, ethical
and compliance requirements. |
| 7. | Personal Nature of Services. It is mutually understood that Consultant will perform
the Services personally and that no other person shall be retained by Consultant to perform
the Services except on written approval of Xxxxxxxx. Consultant further agrees that this
Agreement is not assignable by him without the written consent of Xxxxxxxx. Nothing herein
contained shall prevent Consultant, should he so elect, from assigning this Agreement to a
professional corporation in which he is the majority shareholder, provided that all Services
shall be provided by the Consultant herein designated personally. |
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| 8. | Termination. This Agreement may be terminated by Xxxxxxxx with immediate effect
upon: (i) Xxxxxxxx’x reasonable belief that Consultant has violated any applicable law,
regulation or provision of this Agreement; (ii) Consultant’s failure to timely provide any action or item
required by this Agreement, or (iii) the appearance of a conflict of interest. In addition,
either party may also terminate this Agreement for any reason on thirty (30) days’ notice.
The parties agree that the flexibility to obtain the Services hereunder is critical, and
therefore it is essential for the compensation, competition, confidentiality and termination
provisions to be structured as provided by this Agreement. These factors do no affect
Consultant’s independent contractor status. |
| 9. | Notices. Any notice required or permitted hereunder will be sent by Registered or
Certified Mail, postage prepaid, to Consultant at 10811 Isola Xxxxx Xxxxx, Xxxxxxx Xxxxx, XX
00000; and to Xxxxxxxx at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000; Attention: General
Counsel, Legal Department, or to such other address for such notices as designated from this
time by either party by written notice to the other. |
| 10. | Modification. Any modification of this Agreement shall be made only by a specific
written amendment to this Agreement signed by Consultant and the Chief Executive Officer of
Xxxxxxxx. |
| 11. | Severability. The provisions of this Agreement shall be deemed to be severable.
Invalidating any one provision by a court of competent jurisdiction shall not invalidate any
other provision. In the event a court of competent jurisdiction determines that any of the
restrictions contained in this Agreement is unenforceable, the parties agree that such
restriction shall be deemed modified to allow it to be enforceable while accomplishing the
most similar purpose. The parties nevertheless agree that the provisions of this Agreement
are reasonable, and jointly urge any court considering the matter to enforce the provisions of
this Agreement to the fullest lawful extent. |
| 12. | Complete Agreement. This Agreement constitutes the full and complete agreement of
Xxxxxxxx and Consultant regarding the subject matter hereof and supersedes and cancels any
prior agreements or understandings, whether written or oral, with respect to such subject
matter. |
| 13. | Governing Law. The parties expressly agree that this Agreement shall be construed
and governed by the law of the state of North Carolina without giving effect to choice of law
provisions. |
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date and
year first above written.
| XXXXXXXX CORPORATION | ||||
| BY: | ||||
| Xxxxxxxx X. Xxxxxx President and Chief Executive Officer |
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| CONSULTANT | ||||
| BY: | ||||
| Xxxx X. Xxxxxx | ||||
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