INTERIM SERVICES AGREEMENT
Exhibit 10.1
This interim services agreement (the “Agreement”) is dated as of November 8, 2015, and is between Xxxxxx X. Xxxxx (“Xxxxx”), a individual having an office at 00000 X. Xxxxx Xxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, and Xxxxx Industries, Inc. (the “Company”), a Delaware corporation, having an office at 000 X. Xxxxxxxxx Xxx., Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, the Company desires to have Quinn furnish certain services to the Company and its subsidiaries, as described in Section 1.01 (the “Services”), and Xxxxx has agreed to furnish Services pursuant to the terms and conditions set forth herein.
WHEREAS, both the Compensation and Audit Committees of the Board of Directors of the Company (the “Board”) approved this Agreement and recommended the Board’s approval, and the Board has voted to approve this Agreement. Accordingly, the Company has all requisite power and authority to execute, deliver and perform this Agreement, and the execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Company.
Section 1. Engagement of Xxxxx
1.01. The Services.
(a) | During the term of this Agreement, Xxxxx shall provide to the Company the non-exclusive services of interim Chief Executive Officer of the Company in accordance with the terms and provisions of this Agreement and shall continue to serve as Chairman of the Board. Xxxxx will perform all duties normally associated with that of a Chief Executive Officer, including, without limitation, responsibility for the general management and control of the business and affairs of the Company and responsibility to keep the Board appropriately informed regarding the business and affairs of the Company. In his capacity as the interim Chief Executive Officer of the Company, Xxxxx shall be subject to the oversight of the Board and shall report to the Board. During the term of this Agreement as set forth in Section 2, Xxxxx shall devote such time and effort as is reasonably necessary to fulfill the statutory and fiduciary duties of the Chief Executive Officer of the Company. |
1.02. Xxxxx shall have all necessary authority to incur any obligation and enter into any transaction on behalf of the Company as is customary for a chief executive officer of a public company to carry out his or her duties and responsibilities in such position and as required by this Agreement.
Section 2. Term and Termination
2.01. This Agreement shall commence effective as of November 6, 2015, and shall continue for a period of six months, unless the Agreement is terminated before the six-month anniversary as provided in Section 2.02 below, provided, however, that at the conclusion of the initial term, the parties may agree to renew this Agreement on a month-to-month basis.
2.02. This Agreement may be terminated (i) by the Company at any time without Cause; (ii) immediately upon Xxxxx’x death, permanent and total disability, or resignation as the Chief Executive Officer; (iii) immediately by the Company for Cause; (iv) immediately upon the Company’s appointment of a permanent Chief Executive Officer of the Company; or (v) upon the mutual written consent of the Company and Xxxxx.
2.03. For the purposes of this Agreement, “Cause” shall mean, with respect to the termination of this Agreement, fraud, gross negligence, criminal conduct or willful misconduct by Xxxxx, as applicable, or breach of any fiduciary duties by Xxxxx, in connection with performing Services hereunder, as reasonably determined by the Board.
2.04. In the event this Agreement is terminated pursuant to Section 2.02 above, Xxxxx shall cease to perform Services. If the termination of this Agreement takes effect on a day other than the end of a calendar month, Xxxxx'x monthly fee shall be prorated based on the number of days that Xxxxx performed Services during such calendar month until termination.
2.05. Upon termination of this Agreement, Xxxxx shall cooperate with the Company to provide an orderly management transition with respect to the Services and the Company shall pay Xxxxx reasonable fees and expenses in connection therewith,
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provided that any such fees are agreed upon between the parties prior to Xxxxx providing any additional services under this Section 2.05.
Section 3. Payments to Xxxxx
3.01. In consideration of Services furnished by Xxxxx hereunder, the Company shall pay to Xxxxx a monthly fee in the amount of One Hundred Thousand Dollars ($100,000). Within seven days of the date hereof, the Company shall pay Xxxxx an amount representing the pro rata portion of the fee for the month of November 2015. Thereafter, Xxxxx shall be paid his monthly fee in arrears on the 15th and last day of each month.
3.02. The Company shall reimburse Xxxxx for all reasonable expenses incurred by Xxxxx in the performance of the Services hereunder and all matters related thereto, including, but not limited to, reasonable temporary housing expenses in the Milwaukee, Wisconsin area and reasonable travel expenses to and from St. Louis or New York for the purposes of providing the Services hereunder. Xxxxx shall prepare documentation of such expenses as required by the Company’s existing policies and procedures related to expense reimbursement, and the Company shall promptly reimburse Xxxxx for such expenses after receipt and approval of such documentation and any additional documentation the Audit Committee of the Board (the “Audit Committee”) may require. The aforementioned expenses will be subject to the periodic review and approval of the Audit Committee. The payment of such expenses shall be reported in accordance with applicable Internal Revenue Service statutes and regulations.
3.03. The provisions of Section 3.02 shall survive the expiration or earlier termination of this Agreement to the extent such expenses have previously been incurred or are incurred in connection with such expiration or termination. For the avoidance of doubt, the expenses payable by the Company to Xxxxx as described in Section 3.02 are exclusive of, and in addition to, the monthly fees payable to Xxxxx pursuant to Section 3.01.
3.04 Subject to the terms of this Agreement, Xxxxx shall have complete control of the means, manner, and method by which he will perform the Services, the times at which the Services will be performed, and the sequence of performance of the Services. The Company shall not be responsible for the withholding of taxes, workers compensation, employee benefits or any other employer liability for Xxxxx. Without limiting the generality of the foregoing, the parties acknowledge and agree that Xxxxx is an independent contractor and that Xxxxx is not an employee of the Company and that he will not be treated or regarded as an employee of the Company for federal or state tax purposes. Xxxxx agrees that he will timely file all appropriate tax returns and make all payments to applicable taxing authorities (including the IRS) which result from the Company’s payment to him as an independent contractor.
Section 4. Limitation on Liability. Xxxxx shall reasonably rely on information provided to him about the Company that is provided by the Company or the Company’s subsidiaries, employees, agents or representatives. In no event shall Xxxxx be liable for any error or inaccuracy of any report, computation or other information or document produced in accordance with this Agreement, for whose accuracy the Company assumes all responsibility, unless any such error or inaccuracy results from the fraud, gross negligence, willful misconduct or reckless disregard of Xxxxx in performing Services. Notwithstanding any provision herein to the contrary, except with respect to fraud, gross negligence, willful misconduct or reckless disregard by Xxxxx in performing Services, Xxxxx’x aggregate liability with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed the amounts paid hereunder by the Company to Xxxxx as fees for the Services, excluding the reimbursable expenses under Section 3.02.
Section 5. Indemnification and D&O Insurance
5.01. The Company hereby agrees to indemnify Xxxxx and hold Xxxxx harmless to the maximum extent permitted under the Company’s Second Amended and Restated Certification of Incorporation, the Company’s Bylaws and applicable law against and in respect of any and all claims, liabilities, damages, losses, costs or expenses, including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or other costs and reasonable expenses of investigating or defending against any claim or alleged claim of any nature whatsoever resulting from Xxxxx’x good faith performance of Services under this Agreement (a “Claim”).
5.02. Promptly after receipt by Xxxxx of notice of any Claim, Xxxxx shall notify the Company in writing; provided, however, that the failure of Xxxxx to give timely notice hereunder shall not affect Xxxxx’x rights to indemnification hereunder, except to the extent that the Company can demonstrate actual, material prejudice to it as a result of such failure. Xxxxx shall reasonably cooperate with appropriate requests of the Company with regard to the defense of any Claim. The Company shall maintain authority and control of the defense of any such Claim and the authority to settle or otherwise dispose of any such Claim (provided that Xxxxx shall have the right to reasonably participate at his own expense in the defense or settlement of any such
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Claim). In no event, however, may the Company agree to any settlement of any Claim that would affect any of Xxxxx’x rights or obligations, or that would constitute an admission of guilt or liability on the part of Xxxxx, without Xxxxx’x express prior written consent.
5.03. If Xxxxx should reasonably determine his interests are or may be adverse to the interests of the Company, Xxxxx may retain his own counsel in connection with a Claim or alleged Claim or action hereunder, in which case the Company shall be liable, to the extent permitted under this Section 5, to Xxxxx for any reasonable and documented legal, accounting or other directly related fees and expenses incurred by Xxxxx in connection with his investigating of or defense against such Claim or alleged Claim or action.
5.04. At all times during which Xxxxx is acting as the non-employee interim Chief Executive Officer of the Company, the Company shall purchase and maintain, at its own expense, directors and officers liability insurance providing coverage for Xxxxx in the same amount as for members of the Board in respect of acts and omissions of Xxxxx in his capacity as the interim Chief Executive Officer or as a director of the Company and occurring during Xxxxx’x service as the non-employee interim Chief Executive Officer or service as a member of the Board (or both), which coverage (to the extent otherwise maintained for members of the Board) shall continue for so long as Xxxxx is subject to liability (or threatened claim of liability) for any act or omission otherwise covered by such insurance. These obligations shall survive the termination of this Agreement.
Section 7. Non-Exclusive Arrangement. The Company understands that Xxxxx currently provides and will continue to provide managerial, executive and director services to certain other companies and entities, and acknowledges that such activities shall not constitute a breach of this Agreement and nothing contained in this Agreement shall in any way restrict Xxxxx from providing managerial, executive or director services to other companies or entities.
Section 8. General
8.01. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior representations and agreements, whether oral or written, and cannot be modified, changed, waived or terminated except by a writing signed by both of the parties hereto. No course of conduct or trade custom or usage shall in any way be used to explain, modify, amend or otherwise construe this Agreement.
8.02. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, sent by nationally recognized overnight carrier, one day after being sent, or mailed by first class registered or certified mail, return receipt requested, five days after being sent.
8.03. This Agreement shall be governed by and construed under the laws of the State of New York and the parties hereby submit to the personal jurisdiction of any federal or state court located therein, and agree that jurisdiction shall rest exclusively therein, without giving effect to the principles of conflict of laws.
8.04. This Agreement may not be assigned directly or indirectly, by operation of law or otherwise, by any party hereto (including in connection with a sale or transfer of all or substantially all of business or assets of such party, whether by sale, merger, operation of law, or otherwise in connection with a change of control) without the prior written consent of the other parties to this Agreement. This Agreement shall solely inure to the benefit of and be binding upon the parties hereto and their permitted (in accordance with the foregoing) successors and assigns.
8.05. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
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8.06. Sections 2.04, 2.05, 3.02, 3.03, 4, 5, 6 and 8.03 and this Section 8.06 shall survive any expiration or termination of this Agreement.
The parties have duly executed this Agreement as of the date first above written.
XXXXXX X. XXXXX | ||
By: | /s/ Xxxxxx X. Xxxxx |
XXXXX INDUSTRIES INC. | |||
By: | /s/ Xxxxx X. Xxxxxx | ||
Name: | Xxxxx X. Xxxxxx | ||
Title: | Chief Financial Officer |
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