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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
4849 Evanswood Drive, Columbus, Ohio 43229
(the "Company"), and Bonnie Brannigan
residing 7112 Timberview Drive, Dublin,
Ohio 43017 ("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.
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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.
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(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 sue, 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
Emplo
