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Exhibit 10.21
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement"), dated as of June 25, 1999,
between Consolidated Stores Corporation, an Ohio corporation (the "Company"),
and Xxxxxxx X. Xxxxxx ("Consultant").
RECITALS
A. The Company and Consultant desire to enter into a consulting
arrangement;
B. The Company has determined that it is in the best interests of the
Company and its shareholders to enter into this Agreement setting forth the
obligations and duties of both the Company and Consultant; and
C. The Company wishes to assure itself of the services of Consultant
for the period hereinafter provided, and Consultant is willing to serve as a
consultant to the Company for said period, upon the terms and conditions
provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and Consultant (individually, a
"Party" and together, the "Parties") agree as follows:
1. CONSULTING PERIOD. Subject to the provisions for earlier termination
as hereinafter provided, the Company shall engage Consultant on the terms and
conditions set forth for a term commencing on the date hereof and continuing
through and until the earlier of (a) October 15, 2003; or (b) the end of any
period during which severance payments are being made to Consultant pursuant to
the Employment Agreement of even date herewith among Consultant, KB Xxxx.xxx LLC
and K.B. Consolidated, Inc. ("Consulting Period").
2. CONSULTING SERVICES. During the Consulting Period, Consultant shall
provide the Company, at such times and as may be requested by the Company, with
advice and recommendations concerning various matters respecting the business of
the Company, including, without limitation, advice and recommendations as to
investor relations and the public dissemination of information by the Company.
At the request of the Company, Consultant shall meet periodically with the
Company's executive officers, Board of Directors or such other persons as may be
designated by the Company for the purpose of providing the consulting services
as set forth herein. The Company and Consultant expressly acknowledge and agree
that the consulting services to be provided under this Agreement shall be
performed as an independent contractor, and not as an agent or employee of the
Company.
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3. PAYMENTS.
(a) As consideration for entering into this Agreement, the Company
shall pay to Consultant a one-time, lump sum cash bonus in the amount of
Eighty-Seven Thousand Dollars ($87,000), payable within thirty (30) days
after the date of this Agreement.
(b) As consideration for the obligations of Consultant under this
Agreement, the Company shall pay to Consultant Ten Thousand Dollars
($10,000) per annum during the term of the Consulting Period, payable in
accordance with the regular payroll practices of the Company.
(c) During the Consulting Period, Consultant shall be entitled to
prompt reimbursement by the Company for all reasonable out-of-pocket
expenses incurred by him in performing consulting services requested by the
Company under this Agreement, upon submission of such accounts and records
as may be required under Company policy.
4. TERMINATION OF CONSULTING PERIOD.
(a) DEATH OR DISABILITY. The Consulting Period will terminate upon
the death or " Disability" of Consultant. For purposes of this Agreement,
"Disability" shall mean the illness or other physical or mental disability
of Consultant, resulting in his inability to perform substantially his
consulting duties under this Agreement for a period of one hundred eighty
(180) or more consecutive days or for two hundred seventy (270) days in the
aggregate during any consecutive (12) month period.
(b) Upon Termination of the Consulting Period pursuant to this
Section 4, all obligations and liabilities of the Parties under this
Agreement shall cease unless otherwise set forth herein.
5. CONFIDENTIALITY. Consultant agrees that during the Consulting Period
and for a period of one (1) year after termination of the Consulting Period, he
will hold in strictest confidence and will not use or disclose any information
regarding the techniques, processes, business plans, services, pricing, trade
secrets, customers, suppliers, prospect names, or other proprietary or
confidential information of the Company, including, without limitation,
information relating to the current or planned products, services, sales,
employees or business of the Company, except as such disclosure or use may be
required in connection with Consultant's consulting services hereunder. Upon
termination of the Consulting Period, Consultant will deliver to the Company any
and all materials that contain such proprietary or confidential information and
will not retain any copies, reproductions or summaries of any such materials.
All property of the Company shall be returned by Consultant promptly and in good
condition except for normal wear. The Consultant acknowledges that upon adequate
proof of violation of any legally enforceable provision of this Section 5, the
Company shall be entitled to seek injunctive relief and may obtain a temporary
order restraining any threatened or further breach.
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6. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors, heirs
(in the case of Consultant) and assigns. No rights or obligations of the Company
under this Agreement may be assigned or transferred by the Company except that
such rights or obligations may be assigned or transferred pursuant to (a) a
merger or consolidation in which the Company is not the continuing entity or (b)
a sale or liquidation of all or substantially all of the assets of the Company,
provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law. The Company further
agrees that, in the event of a sale of assets or liquidation as described in the
preceding sentence, it will use its best efforts to cause such assignee or
transferee expressly to assume the liabilities, obligations and duties of the
Company hereunder. No obligations of Consultant under this Agreement may be
assigned or transferred by Consultant.
7. ENTIRE AGREEMENT. Except to the extent otherwise provided herein,
this Agreement contains the entire understanding and agreement between the
Parties concerning the subject matter hereof and supersedes any prior
agreements, whether written or oral, between the Parties concerning the subject
matter hereof.
8. AMENDMENT OR WAIVER. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by both Consultant and
an authorized officer of the Company. No waiver by either Party of any breach by
the other Party of any condition or provision contained in this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by Consultant or an authorized officer
of the Company, as the case may be.
9. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
10. SURVIVORSHIP. The respective rights and obligations of the Parties
hereunder shall survive any termination of the Consulting Period to the extent
necessary to the intended preservation of such rights and obligations as
described in this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Ohio, without
reference to principles of conflict of laws.
12. NOTICES. Any notice given to either Party shall be in writing and
shall be deemed to have been given when delivered personally or one (1) day
after having been sent by overnight courier service or three (3) days after
having been sent by certified or registered mail, postage prepaid, return
receipt requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may subsequently give
such notice of:
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If to the Company: Consolidated Stores Corporation
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
With a copy to: Benesch, Friedlander, Xxxxxx & Xxxxxxx LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
If to Consultant: Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx Xxxx Xxxxx
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Xxxxxxxxx, Xx 00000-0000
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13. HEADINGS. The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Consultant have caused this
Consulting Agreement to be executed as of the date and year first above
written.
CONSOLIDATED STORES CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Executive Vice President
CONSULTANT
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
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