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Exhibit 10.53
CONSULTING
AGREEMENT
The
following agreement dated as of April 30, 2008 (this
“Agreement”), contains the terms by which Edward A.
Dayoob (“Consultant”) will provide consulting services
to Whitehall Jewelers, Inc. (“Whitehall”).
1.
Term . This Agreement shall commence on the date first
written above and shall continue for an initial term of one (1)
year (the “Initial Term”), unless earlier terminated by
Consultant or Whitehall at any time during the Initial Term by
giving the other party at least 30 days’ prior written
notice. If this Agreement has not been terminated by either party
prior to the expiration of the Initial Term (or any renewal term),
the Initial Term (or any subsequent renewal term) shall be
automatically extended for an additional thirty (30) days. This
Agreement shall immediately terminate upon the death, disability,
incapacity or adjudication of incompetency of Consultant as
determined in the sole discretion of Whitehall.
2.
Scope of Services . Consultant shall report to the Chief
Executive Officer (“CEO”) of Whitehall. Consultant
shall provide consulting services in the areas of merchandising,
marketing and corporate strategy (including, but not limited to
mergers and acquisitions). For the consideration designated in
Section 5.1, Consultant shall be generally available at mutually
agreeable times for telephonic consultations with Whitehall
management and vendors not to exceed eight (8) hours per
week.
3.
Relationship .
3.1.
The services of Consultant shall be performed by Edward Dayoob
unless otherwise agreed to by Whitehall.
3.2.
Consultant shall render the services in a diligent, conscientious
manner in his capacity as an independent contractor, not as an
employee of Whitehall. Consultant is and shall be deemed for all
purposes to be an independent contractor of Whitehall. Consultant
acknowledges that this Agreement is not an employment contract.
Consequently, the consideration paid to Consultant hereunder shall
not be deemed to be wages, and therefore, shall not be subject to
any withholdings or deductions. Consultant shall have no authority
to bind Whitehall or to incur other obligations on behalf of
Whitehall.
3.3.
Nothing contained herein shall be construed to create a
relationship of employer and employee between Whitehall and
Consultant. Subject to the terms of this Agreement, Consultant
shall have the sole discretion to determine the manner and means by
which Consultant shall perform his duties, the specific hours of
work and where such services are to be performed. Except as
specifically agreed to by Consultant, Whitehall acknowledges and
agrees that Consultant may render all services via telephone and/or
email and that no travel (other than specifically agreed to by
Consutlant) will be required. Consultant shall be solely
responsible for all wages, salaries and benefits of any employees
of the Consultant.
3.4.
Whitehall shall have no ownership interest in Consultant’s
business.
3.5
Consultant agrees that Whitehall shall have a right of first
refusal on all investment opportunities, potential mergers or
acquisitions or other strategic initiatives or
alternatives
(collectively “Investment
Opportunities”) identified by Consultant during the term of
this Agreement. Consultant shall present Whitehall with each
Investment Opportunity that Consultant identifies prior to
discussing such Investment Opportunity with any other prospective
investor and Whitehall shall have the right to pursue any such
Investment Opportunity on terms determined by Whitehall. If
Whitehall does not opt to pursue such Investment Opportunity within
30 days after Consultant presents Whitehall, in writing, with such
Investment Opportunity, Consultant may discuss such Investment
Opportunity with other prospective investors. Consultant shall be
entitled to retain or take on assignments for other clients,
provided that Consultant does so in accordance with his obligations
hereunder and Consultant is available to perform his duties
hereunder.
4.
Exculpation; Indemnification .
4.1
Whitehall shall indemnify and hold harmless Consultant from any and
all liabilities, claims, costs (including, but not limited to
reasonable attorneys’ fees and expenses and including any
investigative, legal and other expenses incurred in connection
with, and any amounts paid in, any settlement, provided that
Whitehall shall have approved such settlement), damages and
expenses arising from, related to or otherwise connected with the
performance by Consultant of his obligations under this Agreement,
except in the case of Consultant’s material breach of this
Agreement, violation of law, gross negligence, willful misconduct
or reckless disregard of such obligations.
4.2
Consultant shall indemnify and hold harmless Whitehall, its
affiliates and Whitehall’s and its affiliates’ members,
partners, officers, agents and employees from any and all
liabilities, claims, losses, costs (including, but not limited to
reasonable attorneys’ fees and expenses and including any
investigative, legal and other expenses incurred in connection
with, and any amounts paid in, any settlement, provided Consultant
shall have approved such settlement), damages and expenses arising
from, related to or otherwise connected with Consultant’s
activities performed for persons other than Whitehall.
5.
Consideration .
5.1.
Compensation .
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(a)
Whitehall agrees to pay Consultant for the Services the amount of
five thousand dollars ($5,000) per month. Such payment shall be
made by Whitehall on the first day of each month.
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(b)
Additionally, Whitehall agrees to pay Consultant an additional fee
of $5,000 per day for any special projects or assignments as
mutually agreed to by Whitehall and Consultant.
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5.2
Stock Options . It is agreed and acknowledged by Whitehall
that there shall be a continuation of vesting of Consultant’s
previously granted stock options in accordance with the terms of
the July 20, 2007 Stock Option Agreement between Whitehall and
Consultant.
5.3
Bonus Award : It is agreed and acknowledged by Whitehall
that there shall be a continuation of vesting of Consultant’s
Bonus Award in accordance with the terms of the July 20, 2007 Bonus
Award Agreement between Whitehall and Consultant.
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5.4.
Whitehall shall issue an Internal Revenue Service Form 1099 to
account for any payments pursuant to paragraph 5.1.
5.5.
Whitehall shall reimburse Consultant monthly for all documented and
reasonable out-of-pocket expenses and travel expenses associated
with performing his duties for Whitehall during the term hereof;
provided that Consultant shall obtain the prior written consent of
Whitehall in any month in which such expenses are expected to
exceed $2,000.
6.
Representation . Consultant expressly represents and
warrants to Whitehall that as of the date of signing this
Agreement, Consultant is not and will not become a party to any
contract or agreement) that will or may restrict in any way his
ability to fully perform
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