Exhibit 10.1
MAX & ERMA'S RESTAURANTS, INC.
INDEPENDENT CONTRACTOR
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made by and between Max & Erma's
Restaurants, Inc., an Ohio corporation with its principal offices located at
0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 (the "Company"), and Xxxxxx Xxxxxxxxx
residing 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 ("Consultant").
RECITALS
A. Company owns, operates and franchises Max & Erma's casual theme
restaurants (the "Company's Business").
B. Consultant has been employed by the Company since 1996 as its Vice
President of Marketing and Strategic Planning and has submitted her resignation
as an officer and employee of the Company and any of its subsidiaries effective
July 25, 2005, and thereafter intends to be self employed as a business
consultant in the areas of marketing, strategic planning and corporate
communications.
C. Company wishes to retain certain consulting services of Consultant on
the terms described below, and Consultant has agreed to provide such services.
AGREEMENT
In consideration of the foregoing, and of their mutual promises contained
herein, the parties agree as follows:
1. ENGAGEMENT; SCOPE OF SERVICES. Company hereby engages Consultant to
assist Company in its marketing, strategic planning and intranet development as
may be determined from time to time by Company's President and Chief Executive
Officer (the "Services"), and Consultant agrees to render the Services under the
terms and conditions set forth in this Agreement.
2. METHOD AND TIME OF PERFORMING THE SERVICES. Consultant shall exercise
her best efforts to perform the Services, and shall determine the method,
details, and means of performing the Services.
3. CONSULTING FEE AND EXPENSES.
(a) Company shall pay Consultant a consulting fee at an hourly rate
of $125.00 for the Services, which will be invoiced to Company within 10 days
after the conclusion of each month of the contract term.
(b) During the first six months of this Agreement, Company will
request that Consultant expend, and the Consultant agrees to expend, at least
260 hours rendering the Services, on such dates and times as the Company
reasonably requests, and Company will incur a liability to Consultant for at
least $32,500.00 during the six-month period this Agreement remains in effect
from July 25, 2005 through January 25, 2006.
(c) Company will reimburse Consultant for direct, reasonable and
necessary out-of-pocket expenses incurred in the performance of this Agreement
(such as out of town travel expenses, long distance telephone charges, copy
expenses, etc.), upon receipt of an invoice from Consultant and, if requested,
supporting documentation therefore; provided, however, that any expense item
exceeding $500 shall require pre-approval by Company.
4. SERVICES NOT EXCLUSIVE; LIMITATIONS ON SERVICES TO OTHERS. Company
acknowledges that Consultant intends to and may seek engagement by other clients
for consulting services, including services in the areas of marketing, strategic
planning and intranet development, during the Term (as defined below) of this
Agreement. However, Consultant agrees that during the Term of this Agreement,
Consultant shall not, directly or indirectly, in any capacity, for the benefit
of herself or any other party, provide services similar to the Services rendered
or to be rendered to Company hereunder to any competitive restaurant business as
defined in Exhibit A hereto without the express prior written consent of the
Company.
5. NO CONFLICT WITH OTHER AGREEMENTS. Consultant represents and warrants
to Company that the execution, delivery and performance by Consultant of this
Agreement will not conflict with or result in a breach of any of the terms,
conditions or provisions of, or constitute (with due notice or lapse of time or
both) a default under, any agreement or instrument to which Consultant is a
party or by which she is bound or any other legally enforceable duty of
Consultant to any former employer other than Company or person or entity for
whom she has previously provided consulting or employment services.
6. TERM AND TERMINATION; SURVIVAL.
(a) The initial term of this Agreement shall commence on the date it
is signed, which shall not be before July 25, 2005 (the "Effective Date"). This
Agreement shall terminate on the earliest of the following: (i) death or
disability of Consultant, rendering Consultant unable to perform her duties
under this Agreement; (ii) termination of this Agreement by Company by reason of
the breach thereof by Consultant; or (iii) January 25, 2006 (the "Term"). After
December 31, 2005, this Agreement shall automatically continue unless and until
either party gives at least fourteen (14) days advance written notice of
termination or Company gives written notice of breach of this Agreement by
Consultant.
(b) The agreements set forth in paragraphs 3, 8, 10, 11, 12, and 16
of this Agreement shall survive termination of this Agreement.
7. INDEPENDENT CONTRACTOR. The parties acknowledge and agree that
Consultant is an independent contractor with full rights to govern her own
conduct and agree that the Consultant shall have no authority to bind Company in
any respect whatsoever. Consultant is not an employee, partner or joint venturer
of Company. Consultant shall not be treated as an employee of Company for
federal or state tax purposes, unemployment or disability benefits, or for any
other withholding tax or insurance purposes. Consultant shall pay, when and as
due, any and all taxes and related assessments incurred as a result of payments
by Company to Consultant hereunder, including estimated taxes. Company shall
have no obligation to compensate Consultant or provide Consultant with benefits
in respect of sickness or accident, whether or not resulting from the
performance by Consultant of the obligations under this Agreement; retirement or
pension; or any other benefits provided by Company to any of its employees.
Consultant shall indemnify and hold harmless Company from and against all
assessments, claims, liabilities, costs, expenses, and damages that Company may
suffer or incur with respect to any of the foregoing matters.
8. RELEASE OF CLAIMS. In exchange for engaging Consultant as a consultant
to Company hereunder and the promise to pay the fees provided in this Agreement,
and other valuable consideration expressed in this Agreement, the adequacy of
which Consultant expressly acknowledges, Consultant hereby releases and forever
discharges Company, and all of its affiliates, parent corporations,
subsidiaries, divisions, predecessors, successors, and assigns, and all of their
respective directors, officers, agents and employees, personally and in their
representative and official capacities, from any and all local, state and
federal lawsuits, claims, remedies, damages, demands, discrimination suits or
charges, costs and attorneys fees, and any causes of action of whatever type or
nature, whether legal or equitable, whether known, unknown or unforeseen and
existing as of July 25, 2005. The rights, liabilities, claims and actions
released, waived and extinguished here by Consultant, and with respect to which
Consultant covenants not to xxx, shall include but not be limited to those
arising or which might arise under Title VII of the Civil Rights Act of 1964;
any and all claims under the Civil Rights Act of 1866; any and all claims under
the Americans With Disabilities Act of 1990; any and all claims under the Age
Discrimination in Employment Act, as amended, including the Older Workers
Benefit Protection Act of 1990; any and all claims under Family Medical Leave
Act of 1993; any and all claims under the Employment Retirement Income Security
Act; any and all claims for attorneys fees; any and all contract, tort or common
law claims, included but not limited to, any and all claims for compensation or
bonuses under any of Company's compensation plans; and any and all claims under
any federal, state or local statute or ordinance or under any federal, state or
local common law.
9. TIME PERIOD TO CONSIDER AGREEMENT AND TO REVOKE AGREEMENT; CONSULTATION
WITH COUNSEL. This Agreement was given to Consultant on July 14, 2005 to review,
with the agreement that Consultant have up to 21 days within which to consider
and sign the Agreement but in no event would the Agreement be signed by
Consultant before July
25, 2005. CONSULTANT AND COMPANY AGREE AND ACKNOWLEDGE THAT CONSULTANT HAS BEEN
ADVISED BY THIS WRITING THAT SHE HAS BEEN GIVEN UP TO TWENTY-ONE (21) DAYS
WITHIN WHICH TO CONSIDER THE TERMS OF THIS AGREEMENT, THAT SHE WAS ADVISED TO
CONSULT WITH LEGAL COUNSEL PRIOR TO SIGNING THIS AGREEMENT, AND THAT SHE HAS THE
RIGHT TO REVOKE THIS AGREEMENT, BY DELIVERING A WRITTEN REVOCATION NOTICE TO
COMPANY, FOR A PERIOD NOT TO EXCEED SEVEN DAYS AFTER THE DATE ON WHICH SHE
SIGNED THE AGREEMENT. Consultant and Company further agree that they have had
the opportunity to discuss the terms of this Agreement with their respective
attorneys, that this Agreement is written in a manner that they both understand,
and that they have fully reviewed with their attorneys the legal claims and
rights that are being released and the obligations of each party under this
Agreement. Consultant and Company further acknowledge that they fully and
completely understand and accept the terms of this Agreement and enter into it
freely, voluntarily, and of their own free will.
10. NON-COMPETITION. Consultant will not during the term of this
Agreement:
(a) engage or participate, directly or indirectly, either as
principal, agent, employer, employee, consultant, stockholder (except as the
holder of not more than two percent (2%) of the stock of any publicly traded
corporation), or in any other individual or representative capacity whatsoever,
in the operation, management or ownership of any business, firm, corporation,
association, or other entity engaged in any competitive restaurant business as
defined in Exhibit A hereto without the express prior written consent of the
Company;
(b) for herself or in conjunction with or on behalf of any other
individual or entity, solicit, divert, take away or endeavor to take away from
Company any employee of Company who was an employee of Company at any time
during the term of this Agreement.
11. CONFIDENTIAL INFORMATION; ASSIGNMENT OF INVENTIONS.
(a) As used herein, the term "Confidential Information" includes,
but is not limited to, all information and materials belonging to, used by, or
in the possession of Company (i) which have been disclosed or made known to, or
has come into the possession of Consultant as a consequence of or through
Consultant's relationship with Company before or after the date hereof, (ii)
which are related to Company's customers, potential customers, suppliers,
distributors, business strategies or policies, operating practices, operating
manuals, recipes, financial or sales results, sales and management techniques,
marketing plans, strategic plans, research or development, reports, records,
software, systems, source or object code, software documentation or instruction
or user manuals, and (iii) which have not generally been made available to the
general public by Company pursuant to a specific authorization in the ordinary
course of business by Company of the release of such information to the general
public or otherwise published and released by Company to the general public.
Notwithstanding the foregoing, Consultant may release Confidential Information
if (1) required by law, (2) necessary to establish a lawful claim or defense
against Company, (3) necessary to establish a lawful claim or defense against a
person or entity other than Company, but only with the permission, which shall
not be unreasonably withheld, of Company, or (4) necessary to respond to process
or appropriate governmental inquiry, but in each case of items (1) to (4)
hereof, only with prompt
and reasonable prior notice to Company to enable Company to seek appropriate
protective orders or otherwise protect the Confidential Information.
(b) Consultant agrees:
(i) that Consultant will promptly disclose and grant and does
hereby grant to Company its entire right, title and interest in and to all
customer lists, discoveries, developments, plans, designs, improvements,
inventions, formulae, software, documentation, processes, techniques,
know-how, patents, trade secrets and trademarks, copyrights and all other
data conceived, developed or acquired by her during the term of this
Agreement, whether or not patentable or registrable under copyright or
similar statutes, made or conceived or reduced to practice or learned by
Consultant, either alone or jointly with others, that result from or are
conceived during the performance of tasks assigned to Consultant by
Company or result from use of property, equipment, or premises owned,
leased or contracted for by Company ("Inventions"). Consultant agrees to
execute and deliver, from time to time, such documents as may be necessary
or convenient to effectuate the transfer of such Confidential Information
to Company and shall cooperate with and assist Company in every proper way
(at the expense of Company) in obtaining and from time to time enforcing
patents, copyrights, trade secrets, other proprietary rights and
protections relating to Inventions in any and all countries;
(ii) that Consultant will during the term of this Agreement
and thereafter safeguard all Confidential Information and, except as
specifically permitted below, Consultant will never disclose or use for
any purpose or benefit (other than for the purpose or benefit of Company)
any Confidential Information;
(iii) that, except in connection with the ordinary course of
Company's business, Consultant will not, either during the term of this
Agreement or thereafter directly or indirectly, disclose, disseminate or
otherwise make known or provide any Confidential Information, whether in
original form or in duplicated or copied form or extracts therefrom, and
whether orally or in writing, to any individual, partnership, company or
other entity, unless Company has given its prior written consent thereto;
(iv) that, except in connection with the ordinary course of
the performance of the Services, Consultant will not, either during the
term of this Agreement or thereafter, remove any Confidential Information
from the premises of Company either in original form or in duplicated or
copied form or extracts therefrom; and that upon termination of this
Agreement, Consultant will immediately surrender to Company, without
request, all Confidential Information, whether in original or duplicated
or copied form or extracts therefrom.
12. ASSIGNMENT. This Agreement shall be binding upon, and inure to the
benefit of, the successors and assigns of Company. Neither this Agreement nor
the rights or duties hereunder may be assigned or delegated by Consultant
without the prior written consent of Company.
13. MODIFICATION; WAIVER. This Agreement cannot be amended, changed,
modified, or discharged except by an agreement in writing signed by both Company
and Consultant. The failure by a party to insist upon strict performance of any
terms and provisions of this Agreement will not be deemed a waiver of any
subsequent default in the terms or provisions of this Agreement.
14. SEVERABILITY. The invalidity or unenforceability of any provisions
hereof shall in no way affect the validity or enforceability of any other
provision of this Agreement.
15. GOVERNING LAW. This Agreement and the performance of this Agreement
shall be governed by the laws of the State of Ohio without reference to its
conflict of laws rules.
16. NOTICES. All notices, consents, waivers or communications which are
required or permitted under this Agreement shall be sufficient if given in
writing and delivered personally or by registered or certified mail, return
receipt requested, postage prepaid as follows (or to such other addressee or
address as shall be set forth in a notice given in the same manner):
If to Company: If to Consultant:
MAX & ERMA'S RESTAURANTS, INC. XXXXXX XXXXXXXXX
P.O. Box 297830 0000 Xxxxxxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxx 00000
Xxxxxxxx, Xxxx 00000 Ph: (614) ____________
Ph: (000) 000-0000 Fax: (614) ___________
Fax: (000) 000-0000
All such notices shall be deemed to have been given on the date delivered or
mailed in the manner provided above.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties on the subject matter, and no representations, inducement, promises, or
agreements, oral or otherwise, between the parties, not embodied herein shall
have any force or effect.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
together constitute but one instrument, which may be sufficiently evidenced by
any counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date last written below.
CONSULTANT: COMPANY:
MAX & ERMA'S RESTAURANTS, INC.
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------- -------------------------------
Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxx, Chairman,
Chief Executive Officer and
President
Date Signed: July 25, 2005 Date Signed: July 25, 2005
Exhibit A
DEFINITION OF COMPETITIVE RESTAURANT BUSINESSES
Each of the restaurants listed below is recognized by the parties to be an
"American Casual Theme Restaurant" as defined in this Agreement, is competitive
to Max & Erma's Restaurants, and is illustrative of the definition of a
restaurant business which is competitive with the business of Max & Erma's
Restaurants, but not by way of limitation (the "Competitive Restaurant
Businesses"). There are other common and some well known restaurants that
unquestionably fit the definition of "American Casual Theme Restaurant" that are
not included in this list because of oversight or lack of knowledge. The lack of
inclusion of such restaurants in no way affects their relevance, importance, or
legal standing in this Agreement as Competitive Restaurant Businesses. The list
below is intended to act as an aid to categorize other restaurants that should
be included in the list of Competitive Restaurant Businesses, as well as to
clearly state that those restaurants listed below are specifically deemed
competitive with the business of Max & Erma's Restaurants.
"American Casual Theme Restaurant" shall include, but not be limited to the
following:
All Star Cafe Damon's Montana's
American Bandstand Fado Mountain Jack's
Applebee's Fatburger Ninety-Nine Restaurant & Pub
Atria's Fox and Hound O'Charley's
Bennigan's Fuddrucker's Pizzeria Uno
Xxxx Xxxxxxx'x Bistro Garfield's Planet Hollywood
Black-Eyed Pea Grindstone Charlie's Rainforest Cafe
Boston's Ground Round Red Xxxxx
Boulevard Grille Hamburger Hamlet Rocky's
Champp's Americana Hard Rock Cafe Ruby Tuesday's
Cheddar's Xxxxxxxx'x Xxxxx Bucket
Cheers Xxxxxxxx'x Xxxxxx Bones
Cheeseburger in Paradise Lucky 32 TGI Friday's
Chili's Xxxxxx Rockets X.X. Xxxx'x
Cladaugh's Kelsey's Ted's Montana Grill
Coco's McGuffy's Xxxx Xxxx'x
Cooker Mick's Trio
Dalt's Midtown Sundries Village Tavern
Mi Mi's Cafe Yo's Yo's/Yahoo's
