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EXHIBIT 10.4
CONSULTING AGREEMENT
This Agreement is made at Chicago, Illinois this 18th of January, 2000,
between XXXXXXX COMPUTER SERVICES, INC. ("Xxxxxxx") and XXXXXX X. XXXXXX
("Consultant").
WHEREAS, Xxxxxxx is in the business of print management services,
including eCommerce, distribution logistics, digital asset management, inventory
management, and print organization; and
WHEREAS, Consultant has most recently been the Chairman and Chief
Executive Officer of Xxxxxxx, and otherwise has extensive knowledge and
experience in the print management service business and knowledge of and
relationships with consumers of print management services; and
WHEREAS, Consultant has decided to retire from his employment with
Xxxxxxx; and
WHEREAS, Xxxxxxx and Consultant desire to enter into an agreement under
which Xxxxxxx may from time to time call upon and utilize the expertise and
knowledge of Consultant and Consultant will be available to consult with
Xxxxxxx;
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants contained herein, Xxxxxxx and Consultant hereby agree as follows:
1. Consulting Services Provided. During the term of this Agreement,
Consultant agrees to make himself available to consult with the directors,
officers, employees and agents of Xxxxxxx regarding the business and operations
of Xxxxxxx, print management services in general, customer relationships and
contracting, and such other matters within the expertise of Consultant at such
reasonable times and places as Xxxxxxx may reasonably request; provided,
however, that Consultant shall not without his prior written consent be required
to provide consulting services on more than five (5) days in any calendar month.
2. Term of Agreement. The term of this Agreement shall begin on the
date hereof and shall continue for a period of twelve (12) calendar months until
the first anniversary of the date hereof.
3. Fees and Other Payments. In exchange for Consultant providing the
consulting services set out in Paragraph I above, and for Consultant's other
undertakings herein, Xxxxxxx agrees to pay Consultant the sum of $960,000,
payable in a single lump sum on the first anniversary of the date hereof which
is the last day of the term of this Agreement as described in Paragraph 2 above.
Xxxxxxx further agrees to reimburse Consultant for reasonable, direct
out-of-pocket expenses (which shall not include overhead or similar expenses)
actually incurred in the performance of his consulting services hereunder, upon
proper substantiation in accordance with Xxxxxxx'x normal expense reimbursement
procedures.
4. Confidentiality. Consultant agrees that any and all Confidential
Information is and shall remain the property of Xxxxxxx to be held in strict
confidence by Consultant solely for
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Xxxxxxx'x benefit, and shall not be used or otherwise disclosed to any other
parties at any time, whether during the term of this Agreement or thereafter,
without obtaining Xxxxxxx'x prior written consent. "Confidential Information"
includes all technical, business and personnel information, or other information
that relates to past, present and future research, development and business
activities of Xxxxxxx and its subsidiaries and affiliates (including, without
limitation, customer, client and vendor lists and related information), however
communicated or disclosed to Consultant in the performance of any services for
Xxxxxxx. Confidential Information shall not include information that becomes
generally available to the public (other than by acts or omissions of
Consultant).
5. Xxxxxxx Property. Neither this Agreement nor Xxxxxxx'x disclosure of
Confidential Information shall be considered, by implication or otherwise, to
transfer to Consultant any rights in any trademark, tradename, invention
(whether patentable or not), procedure, data, copyright, trade secret, or any
other intellectual property or other property of Xxxxxxx.
6. Nonsolicitation. Consultant agrees that, during the term of this
Agreement and for one calendar year thereafter, he shall not (a) solicit any
employee of Xxxxxxx or any of its subsidiaries to leave the employment thereof
or in any way interfere with the relationship of such employee with Xxxxxxx or
its subsidiaries or (b) induce or attempt to induce any customer, supplier,
licensee or other individual, corporation or other business organization having
a business relation with Xxxxxxx or its subsidiaries to cease doing business
with Xxxxxxx or its subsidiaries or in any way interfere with the relationship
between any such customer, supplier, licensee or other person and Xxxxxxx or its
subsidiaries.
7. Noncompetition.
(a) Consultant agrees that this Agreement is an exclusive consulting
agreement and that he will not, during the term of this Agreement, directly or
indirectly engage in, or be employed by, or act as a consultant to, or be a
director, officer, owner or partner of, or acquire a substantial interest in,
any business activity or entity which competes significantly with Xxxxxxx or any
of its subsidiaries; provided, however, that "significant" competition shall not
include involvement in any line of business that contributes less than five
percent (5%) of the gross revenues of Xxxxxxx and its subsidiaries or
contributes less than five percent (5%) of the gross revenues of another
business entity or activity with which Consultant becomes associated. In
particular, but not by way of limitation, Consultant shall not, during the term
of this Agreement, be employed by, or act as a consultant to, or be a director,
officer, owner or partner of, or acquire a substantial interest in, or otherwise
participate in the business of, any of the following companies or their
subsidiaries or affiliates: (i) Xxxxx Corporation Limited; (ii) Xxxxxxxx and
Xxxxxxxx, (iii) The Standard Register Company; (iv) Mail-Well, Inc.; (v)
Consolidated Graphics, Inc.; (vi) Workflow Management, Inc.; (vii) Quebecor
Inc.; or (viii) Corporate Express, Inc.
(b) If Consultant desires to be employed by, or otherwise provide
services for, any entity during the term of this Agreement, and is uncertain
whether such employment or the provision of such services might violate
subparagraph (a) above, Consultant may contact the then current Chief Executive
Officer of Xxxxxxx in writing by facsimile or overnight courier requesting
approval by Xxxxxxx of the proposed employment or the provision of such
services.
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Xxxxxxx agrees to respond in writing to any such request for approval as soon as
reasonably practicable, but in no event later than fourteen (14) days from the
date on which such request was sent or mailed. If Consultant receives no written
response from Xxxxxxx within such fourteen (14) day period, the approval of
Xxxxxxx with respect to the employment or the provision of services for which
approval was requested shall be deemed to have been given and Xxxxxxx shall not
thereafter have a right to assert any claim against Consultant under
subparagraph (a) in connection with such employment or the provision of such
services. Xxxxxxx further agrees that any request for approval submitted by
Consultant hereunder shall be kept strictly confidential and only employees of
Xxxxxxx directly involved in such approval process shall be privy to the
information contained in any such request for approval.
8. Breaches of Certain Covenants. Consultant expressly acknowledges and
agrees that a breach of either Paragraph 4, 6 or 7 of this Agreement will be
treated as a material breach of this Agreement. Furthermore, any such breach
would not be readily or appropriately compensable in damages, and Consultant
expressly agrees and that each provision, restriction and/or covenant of such
paragraphs shall be enforceable by injunctive relief.
9. Independent Contractor. Consultant shall be an independent
contractor and not an employee or agent of Xxxxxxx for any purpose. Consultant
does not have any right to, and will not attempt to, obligate Xxxxxxx to any
third party in any manner and will not act in any manner that might lead a third
party to think that Consultant can obligate Xxxxxxx. Consultant shall
specifically state that he is an independent contractor and that he cannot
obligate Xxxxxxx.
10. Employee Benefits. Consultant represents, warrants and agrees that
he shall not be entitled to, and he waives and disclaims any entitlement to, any
employee benefit, compensation or incentive by virtue of this Agreement other
than the payment specifically provided for in Paragraph 3 of this Agreement.
11. Taxes. Consultant agrees that he shall be exclusively liable for
the payment of all federal and state taxes that may be due as the result of the
compensation paid to him hereunder.
12. Waiver. Any delay or failure of any party hereto at any time to
require performance by any other party of any provision of this Agreement shall
in no way affect the right of such party to require performance of that or any
other provision of this Agreement and shall not be construed as a waiver of any
subsequent breach of any provision, a waiver of the provision itself, or a
waiver of any other right under this Agreement.
13. Payment of Certain Expenses. Xxxxxxx agrees to pay promptly as
incurred, to the fullest extent permitted by law, all legal fees and expenses
which the Consultant may reasonably incur as a result of any contest by Xxxxxxx,
the Consultant or others of the validity or enforceability of, or liability
under, any provision of this Agreement (including as a result of any contest
initiated by the Consultant about the amount of any payment due pursuant to this
Agreement) (together with an additional amount such that after payment by the
Consultant of Consultant's applicable Federal, state and local taxes on such
additional amount, Consultant shall retain an amount equal to the total of
Consultant's applicable Federal, state and local taxes arising due to the
payment of legal fees and expenses under this Section 13), plus in each case
interest on
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any delayed payment at the interest rate applicable from time to time under
Xxxxxxx'x primary revolving credit agreement, or in the absence of such a rate,
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code; provided, however, that Xxxxxxx shall not be obligated to make such
payment of fees and expenses with respect to any contest in which Xxxxxxx
prevails over the Consultant.
14. Amendment. Except as provided in Paragraph 15 hereof, no provision
of this Agreement shall be deemed amended unless such amendment shall be in
writing and signed by the party against whom the amendment is to be enforced.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and all prior
agreements, representations, statements, negotiations and undertakings on the
subject matter hereof are superseded hereby.
16. Invalidity of any Provision. If any one or more of the provisions
of this Agreement should be determined to be invalid, illegal or unenforceable
in any respect under any applicable statute o r rule of law, they s4all be
deemed to be modified to the minimum extent necessary to cure such invalidity,
illegality or unenforceability, and any court is hereby authorized to determine
the extent of such modification and to enforce this Agreement as so modified.
17. Governing Law. This Agreement shall be construed under and governed
by the internal laws, and not the laws of conflict, of the State of Illinois.
18. Notice. Unless otherwise specified in this Agreement, any notice or
other communication permitted or required hereunder shall be in writing and
provided to the respective parties as set forth below:
(a) If to Consultant to:
Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
(b) If to Xxxxxxx to:
Xxxxxxx Computer Services, Inc.
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
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Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first set forth above.
Witness: XXXXXX X. XXXXXX
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Attest: XXXXXXX COMPUTER SERVICES, INC.
------------------------------ By:
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Title:
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