EXHIBIT 10.6
CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into as of this 1st day of July, 2002,
by and between Xxxxxx'x, Inc., a Wisconsin corporation (the "Company") and
Xxxxxx X. Xxxxxxx, an individual ("Consultant").
RECITALS:
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The Company is engaged in, among other things, the wholesale distribution
and retail sale of food, groceries, general merchandise and other products (the
"Business").
Consultant has been employed by the Company for more than 30 years, most
recently as its President and Chief Executive Officer, and during his employment
by the Company has acquired a great depth of knowledge, experience and expertise
in all aspects of the Company's Business. The Consultant is also intimately
familiar with the Company's industry and markets, its business plans and
strategies, and its competition.
The Consultant has recently ceased his employment with the Company, and the
Company wishes to continue to have access to the Consultant's specialized
knowledge and experience for a transitional period, for the benefit of its new
senior management.
The Consultant is willing to provide consulting services to the Company and
its management in an independent contractor capacity, for the consideration and
on the terms provided in this Agreement.
AGREEMENT:
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THEREFORE, in consideration of the premises set forth above, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
l. Consulting Services. During the Consulting Period (as hereinafter
defined), Consultant will make himself available at reasonable times at the
offices and other facilities of the Company located in the Pewaukee, Wisconsin
area, to act as a consultant and advisor to the Company and its management in
connection with the operation and management of the Business, including, without
limitation, consultation regarding maintenance and development of relationships
with customers and key vendors; marketing and business development; business
expansion strategies, including expansion into new markets and the development
of new facilities; human resource and personnel matters; and all other aspects
of the Company's Business. In connection therewith Consultant will perform such
consulting and advisory
services as the Company's President or Board of Directors shall reasonably
request of him from time to time. Without limiting the generality of the
foregoing, Consultant will cooperate fully with the Company and will render such
assistance to the Company as the Company and its counsel may reasonably request
from time to time in connection with the prosecution, defense, compromise or
settlement of any claim, demand, action, suit or proceeding pertaining to the
Company or in which it may be involved, unless Consultant is an adverse party
with respect to any such claim, demand, action, suit or proceeding.
The inability of Consultant to render services hereunder during the
Consulting Period by reason of temporary absences, vacations, temporary or
permanent illness or disability or incapacity, provided the same does not
materially deprive the Company of the benefit of Consultant's services, will not
constitute a failure by Consultant to perform his obligations hereunder and will
not be deemed a breach or default hereunder.
2. Consulting Fees. In consideration of the services to be performed by
Consultant during the Consulting Period pursuant to Section l hereof, and
Consultant's agreement to make himself available to perform such services, as
well as Consultant's compliance in all material respects with the other
provisions of this Agreement, the Company will pay Consultant a monthly
consulting fee at the rate of seventeen thousand five hundred dollars
($17,500.00) per month for each month of the Consulting Period. Such consulting
fees will be due and payable on the 1st day of every month during the Consulting
Period, commencing on July 1, 2002.
3. Term. (a) The term of this Agreement (the "Consulting Period") will be
for a period of twenty-four (24) months, commencing on July 1, 2002 and ending
on June 30, 2004, unless earlier terminated as follows:
(i) The Consulting Period will terminate upon the written agreement of
the parties;
(ii) The Consulting Period will terminate upon the death or permanent
disability of Consultant. The term "permanent disability" of Consultant
shall mean mental or physical illness, disability or incapacity which
renders Consultant unable to perform his duties hereunder effectively for a
continuous period of at least one hundred eighty (180) days;
(iii) The Company may terminate the Consulting Period for "cause" at
any time upon written notice to Consultant stating the facts constituting
such "cause." For purposes of this Section 3, the term "cause" means the
occurrence, during the Consulting Period, of any of the following: the
diversion or attempted diversion by Consultant of business from the Company
for Consultant's personal gain or benefit; gross incompetence by Consultant
in the performance of his duties hereunder; habitual abuse by Consultant of
alcohol or narcotics; Consultant's being convicted of a felony offense or
pleading guilty or nolo contendere to same; willful misconduct by
Consultant which results in a material injury to the Company or its
Business; or a material and wilful breach by Consultant of any provision of
this Agreement, including without limitation any provision of Sections 4
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through 7 hereof, provided such failure or noncompliance is not remedied by
Consultant within thirty (30) days following written notice to Consultant
from the Company specifying in reasonable detail the nature of such failure
or noncompliance.
(b) Upon termination of the Consulting Period, the Company will pay to
Consultant the full amount of any unpaid consulting fees due pursuant to Section
2 of this Agreement prior to the date of such termination, and the Company shall
not be obligated to make any further payments to Consultant. Consultant's
obligations set forth in Sections 4 through 7 hereof shall survive the
termination of the Consulting Period.
4. Nondisclosure and Nonuse of Confidential Information. (a) During the
Consulting Period and for a period of two (2) years thereafter, Consultant will
not disclose or use at any time any Confidential Information (as defined below)
of which Consultant is or becomes aware, whether or not such information is
developed by him, except to the extent that such disclosure or use is authorized
by the Company or is directly related to and required by Consultant's
performance of such services. Consultant will take all appropriate steps to
safeguard Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft, to the extent such Confidential Information is in
Consultant's possession or subject to his control.
(b) As used in this Agreement, the term "Confidential Information"
means information that is not generally known to or ascertainable (through
lawful or proper means) by the public and that is used, developed or obtained by
the Company in connection with its business, including but not limited to (i)
products or services, (ii) fees, costs and pricing structures, (iii) designs,
(iv) analysis, (v) drawings, photographs and reports, (vi) computer software,
including operating systems, applications and program listings, (vii) flow
charts, manuals and documentation, (viii) data bases, (ix) accounting and
business methods, (x) inventions, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice, (xi) customers and clients and customer or client lists, (xii)
copyrightable works, (xiii) all technology and trade secrets, and (xiv) all
similar and related information in whatever form. Confidential Information shall
not include any information (X) that is generally known to or ascertainable
(through lawful and proper means) by the public prior to the date Consultant
proposes to disclose or use such information, or (Y) that has been independently
acquired or developed by Consultant without violating any of his obligations
under this Agreement. Information shall not be deemed to have been published or
available merely because individual portions of the information have been
separately published or are separately available, but only if all material
features comprising such information have been published or are available in
combination.
5. The Company's Ownership of Intellectual Property. In the event that
Consultant, as part of any activities on behalf of the Company, generates,
authors or contributes to any invention, design, new development, device,
product, method or process (whether or not patentable or reduced to practice or
comprising Confidential Information), any copyrightable work (whether or not
comprising Confidential Information) or any other form of Confidential
Information relating directly or indirectly to the Company's business as now or
hereinafter
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conducted (collectively, "Intellectual Property"), Consultant acknowledges that
such Intellectual Property is the exclusive property of the Company and hereby
assigns all right, title and interest in and to such Intellectual Property to
the Company. Any copyrightable work prepared in whole or in part by Consultant
will be deemed "a work made for hire" under Section 201(b) of the 1976 Copyright
Act, and the Company shall own all of the rights comprised in the copyright
therein. Consultant shall promptly and fully disclose all Intellectual Property
to the Company and shall cooperate with the Company to protect the Company's
interests in and rights to such Intellectual Property (including, without
limitation, providing reasonable assistance in securing patent protection and
copyright registrations and executing all documents as reasonably requested by
the Company, including, without limitation, such requests that occur after the
date hereof).
6. Return of Materials. As requested by the Company from time to time,
Consultant shall promptly deliver to the Company all copies and embodiments, in
whatever form, of all Confidential Information and Intellectual Property in
Consultant's possession or within his control (including, but not limited to,
written records, notes, photographs, manuals, notebooks, documentation, program
listings, flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information or Intellectual Property)
irrespective of the location or form of such material and, if requested by the
Company, shall provide the Company with written confirmation that all such
materials have been delivered to the Company.
7. Common Law of Torts or Trade Secrets. In addition to the Company's
rights and Consultant's duties as specifically set out in this Agreement, the
Company will retain all such rights, and Consultant will be bound by all such
duties, to protect the Company's Confidential Information, as are or may be
provided under the law, including without limitation the Wisconsin Trade Secrets
Act (Wis. Stat. `134.90). Nothing herein will diminish the Company's common law
and statutory rights to:
(i) keep such information secret for as long as the law allows;
(ii) protect such information from disclosure to any third party,
wherever located;
(iii) protect such information from use by any person, including
Consultant, not authorized by the Company; and
(iv) seek any remedies and take any measures necessary to protect the
Company's Confidential Information
8. Expense Reimbursement. The Company will reimburse Consultant for his
out-of-pocket expenses reasonably incurred in connection with the performance of
Consultant's duties hereunder, subject to the submission of documentation
substantiating such expenses and other compliance with the Company's written
policies, if any, regarding expense reimbursement, and provided further that the
Company approves in advance and in writing any expense in excess of $1,000.00.
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9. Independent Contractor. Consultant shall at all times be an independent
contractor, and Consultant will be responsible for all employment and income
taxes on his compensation hereunder. Neither party will assert that an
employment relationship exists or take any action inconsistent with the
independent contractor status of Consultant. Consultant shall have no authority
to bind the Company to any agreement, commitment or obligation of any nature,
except to the extent such authority is expressly conferred upon him by the
Company in writing (exclusive of this Agreement) and Consultant will not take
any action inconsistent with the provisions of this Section.
10. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect or impair the validity or enforceability of any
other provision. The parties agree that in the event any court of competent
jurisdiction shall determine that any provision of this agreement is invalid or
unenforceable in whole or in part, then this Agreement shall be construed as if
such invalid or unenforceable provision were not contained herein.
11. Notices. All notices under this Agreement shall be in writing and any
notice shall be considered to be given and received in all respects on the day
it is personally delivered or deposited in the United States mail, first class,
postage prepaid, addressed as follows or to such other address as may be
designated by one party to the other by notice duly given (provided, that
written notice given in any other manner shall nonetheless be effective upon its
actual receipt by the person entitled to receive it):
If to the Company:
Xxxxxx'x, Inc.
00000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Vice President, Secretary and Treasurer
If to Consultant:
Xxxxxx X. Xxxxxxx
X00 X00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
12. Assignment. This Agreement may not be assigned by the Company without
the written consent of Consultant, except that if the Company shall merge or
consolidate with or into, or transfer substantially all of the Business or the
assets thereof to another corporation or other form of business or other entity,
this Agreement may be assigned to such a successor and it shall be binding upon
and inure to its benefit. Consultant may not assign, pledge or encumber this
Agreement or any interest herein.
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13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, the Company's successors and permitted assigns
and Consultant's heirs and legal representatives.
14. Amendment. This Agreement may be amended only by a written instrument
executed by the parties hereto or their respective successors, assigns, heirs or
legal representatives, as applicable.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
XXXXXX'X, INC.
By /s/ Xxxxxx X. Xxxx
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Its Vice President
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx ("Consultant")
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