CONSULTING AGREEMENT
BETWEEN
XXXX STORES, INC.
AND XXXXXX X. XXXXXX
This Agreement is made as of April 1, 1999 (the "Effective Date")
through March 31, 2002 (the Completion Date"), by and between
Xxxx Stores, Inc., a Delaware corporation ("Ross") and Xxxxxx X.
Xxxxxx ("Consultant"). This Agreement amends and restates the
prior agreement, dated April 1, 1997, and any subsequent oral
modifications.
RECITAL
Consultant desires to perform, and Ross desires to have
Consultant perform, consulting services as an independent
contractor to Ross.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES
1.1 Performance. Consultant agrees to perform consulting
services for Ross as deemed necessary.
1.2 Payment.
(a) Ross agrees to pay Consultant $20,000 per calendar
quarter, payable on the first day of each calendar quarter.
(b) Ross agrees to pay the salary and benefits for a
Financial Administrator for the period in which consulting
services are rendered.
(c) Pursuant to the terms of that certain Split-Dollar
Agreement by and among Xxxx, Xxxxxx X. Moldaw and Citicorp Trust
South Dakota dated as of February 8, 1999, Ross agrees to pay a
portion of the premiums of the Split-Dollar Life Insurance Policy
No. VP60622150 with Pacific Life Insurance Company (the "Policy")
through the Completion Date of this Agreement.
(d) Consultant and his spouse will be eligible to
participate in Ross' medical plan and supplemental medical plan.
Ross agrees to pay the annual premiums of the medical plans for
consultant and his spouse.
2. RELATIONSHIP OF PARTIES
2.1 Independent Contractor. Consultant is an independent
contractor and not an agent or employee of Ross. Consultant will
perform consulting services specified by Ross, but Consultant
will determine, in Consultant's sole discretion, the manner and
means by which the services are accomplished, subject to the
requirement that Consultant shall at all times comply with
applicable law. Ross has no right or authority to control the
manner or means by which the services are accomplished.
Consultant may represent, perform services for, or be employed by
such additional clients, persons or companies as Consultant sees
fit.
2.2 Employment Taxes and Benefits. Consultant will report
as self-employment income all compensation received by Consultant
pursuant to this Agreement. Consultant will indemnify Ross and
hold it harmless from and against all claims, damages, losses and
expenses, including reasonable fees and expenses of attorneys and
other professionals, relating to any obligation imposed by law on
Ross to pay any withholding taxes, social security, unemployment
or disability insurance, or similar items in connection with
compensation received by Consultant pursuant to this Agreement.
Consultant will not be entitled to receive any vacation or
illness payments, or to participate in any plans, arrangements,
or distributions by Company pertaining to any bonus, stock
option, profit sharing, insurance or similar benefits for
Company's employees except as expressly provided in this
Agreement.
3. TERMINATION
3.1 Termination. Either Ross or Consultant may terminate
this Agreement at any time, for any reason or no reason, by
giving 30 days' prior written notice to the other party.
3.2 Confidential Information. Consultant agrees during the
term of his consultancy and thereafter to take all steps
necessary to hold Ross' confidential information in strict
confidence and not to disclose such confidential information.
Upon the termination of this Agreement for any reason, Consultant
will promptly notify Ross of all confidential information in
Consultant's possession and, in accordance with Ross'
instructions, will promptly deliver to Ross all such confidential
information.
4. GENERAL
4.1 Governing Law: Severability. This Agreement will be
governed by and construed in accordance with laws of the State of
California excluding that body of law pertaining to conflict of
laws. If any provision of this Agreement is for any reason found
to be unenforceable, the remainder of this Agreement will
continue in full force and effect.
4.2 Successors and Assigns. Neither this Agreement nor any
of the rights or obligations of Consultant arising under this
Agreement may be assigned or transferred without Ross' prior
written consent. This Agreement will be for the benefit of Ross'
successors and assigns, and will be binding on Consultant's heirs
and legal representatives.
4.3 Notices. Any notices under this Agreement will be sent
by certified or registered mail, return receipt requested, to the
address specified below or such other address as the party
specifies in writing. Such notice will be effective upon its
mailing as specified.
4.4 Complete Understanding: Modification. This Agreement,
together with the Policy, constitutes the complete and exclusive
understanding and agreement of the parties and supersedes all
prior understandings and agreement, whether written or oral, with
respect to the subject matter hereof. Any waiver, modification
or amendment of any provision of this Agreement will be effective
only if in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of
the Effective Date.
XXXX STORES, INC. CONSULTANT
By: /s/Xxxxxxx Xxxxxxx /s/Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxxx
Vice Chairman and
Chief Executive
Officer
Address: Address:
0000 Xxxxxxx Xxxxxx x/x Xxxxxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000-0000 000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
