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Exhibit 10.9
CONSULTING AGREEMENT
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THIS AGREEMENT, made and entered into as of __________, 1995 between
Xxx Xxxxxx ("Consultant"), and Xxxxxxx Real Estate, Inc., a Maryland
corporation ("Company");
WITNESSETH THAT:
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WHEREAS, Company desires to retain the services of Consultant as a
consultant and Consultant desires to provide such services to Company;
NOW, THEREFORE, the parties agree as follows:
1. TERM. Subject to the terms and conditions of this Agreement,
Company hereby retains the services of Consultant as a consultant for the Term
(as defined below) and Consultant hereby agrees to render consulting services
to Company during the Term in accordance with this Agreement. The "Term" shall
be the three year period commencing on the merger of Xxxxxx Properties
Corporation ("Xxxxxx") with and into the Company (the "Effective Date").
Notwithstanding the foregoing or any other provision of this Agreement, this
Agreement shall become effective only upon the merger of Xxxxxx with and into
the Company and if such merger does not occur prior to July 1, 1996, this
Agreement shall be of no force and effect and shall terminate automatically
without any further actions of the parties.
2. DUTIES. Consultant agrees that, during the Term he shall
consult and advise with the Company on such matters relating to retail real
estate matters of the Company as requested from time to time by the Company;
provided, however, that Consultant shall not pursuant to this Agreement be
required to perform any day-to-day services for the Company and shall not be
required to devote more than 10 hours per month to the performance of
consulting services to the Company pursuant to this Agreement. The Company
shall use its reasonable best efforts to provide Consultant with at least one
weeks' notice prior to the times at which the Company will require the services
of Consultant pursuant to this Agreement. Subject to the provisions of Section
5, nothing in this Section 2 shall preclude Consultant from performing services
for persons or entities other than Company to the extent he is able to properly
carry out his responsibilities under this Section 2.
3. CONSULTING FEES. Subject to the terms and conditions of this
Agreement, during the Term while he is obligated to provide services to Company
pursuant to this Agreement, Consultant shall be entitled to the following
payments:
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(a) an annual "Consulting Fee" of $135,000, which Consulting Fee
shall be paid annually on the Effective Date, the first
anniversary of the Effective Date and the second anniversary
of the Effective Date, respectively; and
(b) reimbursement for reasonable business expenses which are
incurred by Consultant in performing consulting services for
the Company pursuant to this Agreement and which are approved
in advance by the Company's Chief Executive Officer.
4. DUTIES AND FEES UPON TERMINATION. Consultant shall have no
obligation to provide services pursuant to this Agreement, and Company shall
have no obligation to pay any Consulting Fees to Consultant, for periods after
the last day of the Term.
5. CONFIDENTIALITY. Consultant hereby agrees that:
(a) except as may be required by law or the lawful order of a
court or agency of competent jurisdiction or as otherwise
consented to in writing by Company, he will keep secret and
confidential indefinitely all non-public information
concerning Company and its affiliates (including Xxxxxx) which
is acquired by or disclosed to him during the course of his
engagement by Company pursuant to this Agreement (or was
acquired by or disclosed to him during the course of his prior
employment with Xxxxxx) and not to disclose such information,
either directly or indirectly, to any other person, firm, or
business entity or to use it in any way; and
(b) upon the expiration of the Term, he will promptly return to
Company any and all records, documents, physical property,
information or other materials relating to the business of
Company and its affiliates (including Xxxxxx) obtained or
prepared by him during the course of his engagement by the
Company pursuant to this Agreement (or was obtained or
prepared by him during the course of his prior employment with
Xxxxxx), unless the Company consents to his retention of such
materials.
Nothing in the foregoing provisions of this Section 5 shall be construed so as
to prevent Consultant from using in connection with his employment for himself,
for an employer other than Company or otherwise, knowledge which was acquired
by him during the course of his engagement by Company pursuant to this
Agreement (or his prior employment with Xxxxxx) and which is
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generally known to persons of his experience in other companies in the same
industry. Consultant acknowledges that Company would be irreparably injured by
a violation of this Section 5 and agrees that Company, in addition to any other
remedies available to it for such breach or threatened breach, including,
without limitation, the recovery of damages, shall be entitled to an injunction
restraining Consultant from any actual or threatened breach of this Section 5,
or to any other appropriate equitable remedy, without any bond or other
security being required.
6. RELATIONSHIP OF THE PARTIES. It is agreed and understood
between the parties to this Agreement that the services performed by Consultant
pursuant to this Agreement will be performed as an independent contractor and
not as an employee of Company or its affiliates.
7. NOTICES. All notices hereunder shall be in writing and shall
be deemed sufficiently given if personally delivered, sent by registered or
certified mail, postage prepaid, sent by overnight courier or facsimile, at
such addresses as the parties may from time to time provide to each other.
8. NONALIENATION. Consultant's interests under this Agreement
are not subject to the claims of his creditors and may not otherwise be
voluntarily or involuntarily assigned, alienated or encumbered.
9. APPLICABLE LAW. The provisions of this Agreement shall be
construed in accordance with the laws of the state of Illinois.
10. WAIVER OF BREACH. No waiver by any party hereto of a breach
of any provision of this Agreement by the other party, or of compliance with
any condition or provision of this Agreement to be performed by such other
party, will operate or be construed as a waiver of any subsequent breach by
such other party or any similar or dissimilar provisions and conditions at the
same or any subsequent time. The failure of any party hereto to take any
action by reason of such breach will not deprive such party of the right to
take actions at any time while such breach continues.
11. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of Company, its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of Company's assets and business.
12. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provision of this Agreement, and this
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Agreement will be construed as if such invalid or unenforceable provision were
omitted (but only to the extent that such provision cannot be appropriately
reformed or modified).
13. AMENDMENT. This Agreement may be amended or cancelled only by
mutual agreement of the parties hereto without the consent of any other person.
So long as Consultant lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof, and
supersedes all prior and contemporaneous agreements, if any, between the
parties relating to the subject matter hereof.
IN WITNESS WHEREOF, Consultant has hereunto set his hand and Company
has caused these presents to be executed in its name and on its behalf, all as
of the day and year first above written.
_________________________
Xxx Xxxxxx
Xxxxxxx Real Estate, Inc.
By________________________
Its______________________
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