EXHIBIT 10v
AGREEMENT
This Agreement has been entered into as of January 1, 2004, by and between
Xxxxxxx Corporation ("Company"), with offices at 0000 Xxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 and E. N. Xxxxx Incorporated ("Consultant"), with
offices at 000 Xxxxxxxxx Xxxx, Xxxxxxx-Xxxxx, XX 00000.
WITNESSETH
WHEREAS, Company desires to engage Consultant to perform the Consulting
Services (as defined below) and Consultant has agreed to provide the Consulting
Services on the terms and conditions as described herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained below, the parties agree as follows:
1. Services to Be Rendered. Consultant agrees to provide the services
of interim chief financial and administrative officer, which shall include such
supervisory and management functions as may be commensurate with a chief
financial officer of a public company and such other duties are may from time to
time be assigned to Consultant by the Company's Chairman and Chief Executive
Officer (collectively the "Consulting Services"). Consultant agrees that Xxxx X.
Xxxxx shall be the individual primarily responsible for the performance of the
Consulting Services. Consultant's principal contact at the Company shall be its
Chairman and Chief Executive Officer.
2. Performance of Consultant. Consultant agrees to use its best
efforts, skills and abilities to faithfully perform the Consulting Services and
that the Consulting Services shall be performed in accordance with all
applicable federal, state and local laws, rules and regulations, including
without limitation, the Xxxxxxxx-Xxxxx Act of 2002 and the Securities Exchange
Acts of 1933 and 1934, respectively.
3. Fees._Company agrees to pay Consultant a fee of $30,000 per month
payable at the end of each month during the term of this Agreement. Consultant
agrees that it shall devote at least eighty percent (80%) of its time to
performance of the Consulting Services.
4. Reimbursement of Expenses. Company agrees to reimburse Consultant
for all travel expenses and other out of pocket expenses incurred by Consultant
while performing the Consulting Services on behalf of Company in accordance with
the Company's travel reimbursement policy in effect from time to time. When it
is necessary to travel by air, Company shall be obligated to reimburse
Consultant only for the cost of economy or coach airfare. Consultant shall
provide such documentation as Company shall reasonably request to support the
requested reimbursement.
5. Term. This Agreement shall commence on January 1, 2004 and shall
continue on a month-to-month basis until either party terminates this Agreement
for any reason upon thirty (30) days prior notice.
6. Rights, Data, and Inventions.
(a) Company's Rights. Company shall have the exclusive right to the
following: (i) all original technical data or written material originated and
prepared for Company pursuant to this Agreement, including designs, plans, and
specifications; (ii) all ideas, concepts, know-how, or techniques relating to
such technical data or written material developed during the course of this
Agreement by Consultant or its personnel, or jointly by Consultant and Company;
and (iii) all inventions, discoveries, or improvements, including ideas,
concepts know-how, or techniques that were (x) developed pursuant to this
Agreement or (y) conceived or originated by Consultant solely or jointly with
others at Company's request or expense in the course of Consultant's engagement,
or based on knowledge or information obtained from Company during the course of
such engagement.
(b) Disclosure by Consultant. Consultant will promptly communicate and
disclose to Company all such inventions, discoveries, and improvements, whether
patentable or not, referred to in Section 6(a) above. If requested by Company,
Consultant shall also execute all papers necessary to assign them to Company
free of encumbrances and restrictions. All such assignments shall include the
patent rights in this and all foreign countries.
7. Other Agreements.
(a) Confidential Information, Consultant agrees that all knowledge and
information which Consultant, its owners, officers or employees acquire (i) on
the Company's premises, (ii) from the Company or any of its employees, or (iii)
any third party relating to the Company is confidential and constitutes the
Company's trade secrets, including without limitation, information relating to
financial statements, projections, evaluations, plans, programs, customers,
suppliers,
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facilities, equipment and other assets, products, processes, manufacturing,
marketing, research and development, trade secrets, know-how, patent
applications that that have not been published, technology and other
confidential information and intellectual property of the Company. During the
term of this Agreement and thereafter, Consultant shall not disclose or make
accessible to anyone or make use of (other than in the regular course of the
business of the Company) any knowledge or confidential information which
Consultant, its owners, employees or officers shall have obtained from the
Company prior to or during the term of this Agreement, unless such information
has, through no fault of Consultant or its employees, officers or owners become
public knowledge or unless required to disclose it by governmental process. Upon
termination of this Agreement, Consultant shall promptly deliver to the Company
all documents in whatever form (including copies thereof) containing
confidential information of the Company that Consultant then possesses or has
under its control.
(b) Competition. Consultant agrees to not directly or indirectly use
the confidential information of the Company in any business, profession, or
other endeavor which competes directly or indirectly with the business of
Company. Consultant further agrees that, while this Agreement is in effect or
while Consultant is receiving payments pursuant to Section 3, Consultant shall
not directly or indirectly perform any services for any business, profession, or
other endeavor which competes directly or indirectly with the business of
Company. Consultant agrees not to perform such services either as an employee,
agent, independent contractor, owner, or otherwise. The parties have attempted
to limit Consultant's right to compete only to the extent necessary to protect
Company from unfair competition. The parties acknowledge, however, that
reasonable people may differ in making such a determination. Consequently, the
parties hereby agree that, if the scope or enforceability of the restrictive
covenant is in any way disputed at any time, a court or other finder of fact may
modify and enforce the covenant to the extent that it believes to be reasonable
under the circumstances existing at that time.
(c) Indemnification. Consultant shall indemnify and hold Company, its
employees, officers and directors harmless from any claims, losses, liabilities
and expenses, including reasonable attorney's fees, incurred by Company, its
employees, officers and directors in connection with the performance of the
Consulting Services or the breach by Consultant of any of the covenants
contained herein.
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(d) Remedies. Consultant acknowledges (i) that compliance with Sections
6, 7(a) and 7(b) is necessary to protect the business and good will of Company
and (ii) that a breach of any of these provisions will irreparably and
continually damage Company, for which money damages may not be adequate. In the
event that Consultant breaches or threatens to breach Sections 6, 7(a) or 7(b),
Consultant shall forfeit its rights to receive payments under Sections 3 and 4
above. In addition, the Company shall be entitled to preliminarily or
permanently enjoin Consultant from violating this Agreement in order to prevent
the continuation of such harm and/or obtain money damages insofar as they can be
determined. Nothing in this Agreement shall be construed to prohibit Company
from also pursuing any other remedy available to it, the parties having agreed
that all remedies are to be cumulative.
(e) Survival Notwithstanding anything to the contrary in this
Agreement, the obligations of Consultant under Sections 6, 7(a), 7(b) and 7(c)
above shall survive the termination of this Agreement.
(f) Status. Consultant's status under this Agreement shall be that of
an independent contractor and not that of an agent or employee of Company.
Except for certifications required of a chief financial officer by The
Xxxxxxxx-Xxxxx Act, applicable SEC regulations, the New York Stock Exchange, and
the Company's independent auditors, Consultant shall have no authority to and
shall not hold itself out as having any authority to bind Company.
(g) Company Matching Gift Program. During the term of this Agreement,
Consultant shall be eligible to participate in the Company's Matching Gift
Program in accordance with the terms and conditions of the Program. Consultant
shall be entitled to a maximum of $10,000 in matching contributions during the
term of this Agreement.
8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement
of the parties and supercedes all prior Agreements and understanding, oral and
written between the parties hereto, including without limitation the Consulting
Agreement between the parties, dated July 29, 2003. This Agreement may not be
modified except by a writing executed by both parties.
(b) Severability. If any provision, paragraph, or subparagraph of this
Agreement is adjudged by any court of law to be void or unenforceable in whole
or
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in part, such adjudication shall not be deemed to affect the validity of the
remainder of this Agreement, including any other provision, paragraph, or
subparagraph. Each provision, paragraph, and subparagraph of this Agreement is
declared to be separable from every other provision, paragraph, and subparagraph
constitutes a separate and distinct covenant.
(c) Headings. The headings have been inserted for convenience only and
are not to be considered when constructing the provisions of this Agreement.
(d) Governing Law. This Agreement shall be subject to and governed by
the laws of the State of Georgia irrespective of the fact that a party is or may
become a resident of a different state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
XXXXXXX CORPORATION E.N. XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
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Title: Senior Vice President Title: President
Date: 2/4/04 Date: 2/4/04
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