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EXHIBIT 10.39
CONSULTING AGREEMENT
This Consulting Agreement is entered into as of March 27, 1997 by and
among Xxxxxxx X. Xxxxxxx, Waterton Management, LLC ("Waterton") and Jerry's
Famous Deli, Inc. (the "Company").
A. Xx. Xxxxxxx is managing member of Waterton, which is engaged in
the investment management business, and which through its affiliates is an
investor in the Company.
B. The Company desires to retain Xx. Xxxxxxx as a consultant, and
to confer on him in such capacity the advisory responsibilities set forth in
this Agreement.
C. In fulfilling the responsibilities set forth in this Agreement,
Xx. Xxxxxxx will rely as necessary on the assistance of Waterton.
C. In order to attract and retain the services of Xx. Xxxxxxx and
Waterton, the Company has agreed to provide to each of them the compensation set
forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Consulting Services. Effective the date hereof, and continuing
until December 31, 1998, the Company will retain Xx. Xxxxxxx as a consultant.
In such capacity Xx. Xxxxxxx will provide to the Company advice and
consultation with respect to sites to be leased or purchased, or other assets
or entities to be acquired by the Company. In providing such advice and
consultation, Xx. Xxxxxxx may rely on such assistance from Waterton as he
deems necessary or appropriate. Xx. Xxxxxxx will not be obligated to maintain
an office at the Company or to devote any minimum number of hours to the
fulfillment of the foregoing responsibilities. Rather, Xx. Xxxxxxx will consult
with and advise the Company's management and board of directors with respect to
such issues as are reasonably related to the advisory functions stated above,
and the number of hours to be devoted thereto by Xx. Xxxxxxx or by other
Waterton personnel shall be determined in the sole discretion of Xx. Xxxxxxx.
2. Title. To facilitate the performance by Xx. Xxxxxxx of the
services set forth above, the Company will name Xx. Xxxxxxx as its Interim
President (although Xx. Xxxxxxx will not be deemed an employee of the Company).
3. Consideration. In consideration of the services described in
paragraph 1 above, the Company shall (i) pay to Waterton a cash fee of $600,000
and (ii) shall issue to Xx. Xxxxxxx 200,000 shares of the Common Stock, par
value $.01 per share, of the Company. The cash fee specified above shall be
paid within five business days following the date of this Agreement. The shares
of Common Stock to be issued to Xx. Xxxxxxx will be registered upon issuance on
Form S-8 or other applicable form filed with the Securities and Exchange
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Commission ("SEC"), and shall be freely tradeable and not restricted. The
registration and issuance of such shares shall be effected as promptly as
practicable following the date hereof, but in no event later than April 30, 1997
(unless the SEC advises the Company that Form S-8 is not available to effect
such registration, in which case such registration and issuance will be effected
on another applicable form not later than June 30, 1997). The foregoing
compensation, cash and shares, will be fully vested as of the date hereof, and
will not be subject to forfeiture.
4. Other Services Not Foreclosed. The parties acknowledge and agree
that there may be certain significant acquisitions by the Company during the
term hereof as to which Xx. Xxxxxxx or Waterton, as applicable, may be entitled
to advisory fees in addition to those set forth herein. The Company shall not be
obligated to engage the services of Xx. Xxxxxxx or Waterton with respect to such
acquisitions, nor shall Xx. Xxxxxxx or Waterton be obligated to provide advice
or other services with respect thereto. However, in the event that Xx. Xxxxxxx
or Waterton on the one hand, and the Company on the other hand, agree that Xx.
Xxxxxxx or Waterton shall be engaged to provide advisory or other services with
respect to such acquisitions, the parties shall agree in good faith at that time
on the level of additional compensation to be paid in consideration of such
services.
The parties hereto have executed this Agreement as of March 27, 1997.
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
WATERTON MANAGEMENT, LLC
/s/ XXXXXXX X. XXXXXXX
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By: Xxxxxxx X. Xxxxxxx
Title: Managing Member
JERRY'S FAMOUS DELI, INC.
/s/ XXXXX XXXXXXXX
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By: Xxxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
