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CONSULTING AGREEMENT
This Agreement dated October 1, 1994, by and between RPF, Inc., a
Pennsylvania corporation ("Contractor"), and Dart Group Corporation, a Delaware
corporation.
W I T N E S S E T H:
WHEREAS, Dart Group Corporation desires that Contractor supply the
services of Robert A. Marmon ("Marmon") to serve as the Chief Financial Officer
for Dart Group Corporation, and all its subsidiary corporations (excluding
Shoppers Food Warehouse Corporation), Chief Financial Officer for Crown Books
Corporation, and its subsidiary corporations, and Principal Financial Officer
for Trak Auto Corporation, and its subsidiary corporations (Crown Books
Corporation, Trak Auto Corporation, and Dart Group Corporation, and their
subsidiary corporations excluding Shoppers Food Warehouse Corporation are
collectively referred to as "Dart" or the "Companies"), and to perform related
services as may be assigned by Dart from time to time;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, and other good and valuable
consideration, the receipt, sufficiency and adequacy of which the parties
conclusively acknowledge, the parties hereto, intending to be legally bound,
agree as follows:
1. EMPLOYMENT
(a) DUTIES: Contractor hereby agrees that Contractor
shall cause its President, Marmon, accept appointment to the offices of Chief
Financial Officer for the Dart Group Corporation, and all its subsidiary
corporations (excluding Shoppers Food Warehouse Corporation), Chief Financial
Officer for Crown Books Corporation, and its subsidiary corporations, and
Principal Financial Officer for Trak Auto Corporation, and its subsidiary
corporations. The duties and responsibilities of Marmon shall be those
generally included in, but not limited to, the job description of public
company chief financial officers. Marmon shall report directly to, and shall
also perform such other related responsibilities as may be assigned by, the
Boards of Directors and the Executive Committee, if any, of each of the
Companies as may be appropriate. Marmon will have sole responsibility for the
retention, termination and selection of staff in all of Marmon's areas of
responsibility, subject to the approval of the appropriate Board of Directors
or Executive Committee for top level staff.
(b) TERM: The Term of this Agreement shall be for a
period of seven (7) months, commencing October 1, 1994, unless the Term expires
earlier pursuant to Section 4 below.
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(c) FULL TIME EMPLOYMENT: During the Term, Marmon shall
devote full time and attention to services for Dart, provided, however, Marmon
shall have the right to perform services for other clients up to a maximum of
two (2) days per month on a noncumulative basis. Marmon shall diligently
perform the duties and responsibilities under this Agreement, and it is hereby
acknowledged that those duties may require the rendering of services not only
during normal business hours, but over and beyond those hours as well.
(d) PLACE OF EMPLOYMENT AND TRAVEL: Marmon's principal
place of performing services hereunder shall be at the executive offices of
Dart in Landover, Maryland. If Dart's executive offices are moved from
Landover, Maryland, Marmon's principal place service shall be changed to the
location where such executive of offices are moved. Marmon agrees to travel
for the performance of his duties under this Agreement as Dart may request from
time to time.
(e) INSURANCE AND INDEMNIFICATION: Dart shall indemnify
Contractor and Marmon against all causes of action, claims or losses resulting
therefrom, directly or indirectly arising out of the engagement of Contractor
to the full extent consistent with Delaware law and the articles of
incorporation and bylaws of the Companies. Included in this indemnification
are all legal fees of the counsel of choice of Contractor on matters for which
indemnification is payable. This indemnification shall remain in full force
and effect even after termination of Contractor's services hereunder. This
indemnification shall lapse only if the claim arises from actions on the part
of Contractor or Marmon that have resulted in (i) conviction of an offense
involving moral turpitude, or (ii) for conviction of a felony.
2. COMPENSATION:
(a) FEES AND EXPENSES: Contractor shall be paid the sum
of Forty Eight Thousand Seven Hundred Fifty Dollars ($48,750.00) per month for
the Term. In addition, all reasonable expenses of Marmon required to perform
services as herein defined shall be reimbursable, including travel, food,
lodging, and incidental expenses when away from Merion Station, PA. Any
expenses reasonably incurred specifically for the benefit of Dart shall be
reimbursed. Original receipts shall be submitted as backup for expenses. When
travelling with employees of Dart, the standards and policies of Dart for
executives at the executive level shall govern reasonableness and nature of
expenditures reimbursed. When travelling alone, first class accommodations on
trains and/or airlines is authorized for any trip over one and one half hours.
(b) PAYMENT SCHEDULE: Fifty percent (50%) of the first
month's payment shall be made to Contractor on the 15th of October, and the
remaining fifty percent (50%) of the first month's payment shall be made to
Contractor on the 30th of October. Thereafter, payments shall be made to
Contractor on the last day of each calendar month during the Term.
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(c) EMPLOYEE BENEFITS:Contractor is an independent
contractor. No Employee Benefits are granted.
3. PROPRIETARY DATA:
(a) TRADE SECRETS AND OTHER CONFIDENTIAL INFORMATION:
During the Term and for three (3) years thereafter, Contractor and its
employees shall keep confidential any data, documents, or financial or other
information of a trade secret or confidential nature relating to Dart's past,
present or future operations (the "Proprietary Data"), shall not disclose the
Proprietary Data to any third parties other than officers, employees or agents
of Dart on a "need to know" basis, shall take all necessary steps to ensure
that such officers, employees or agents keep such Proprietary Data
confidential, and shall use the Proprietary Data only in connection with
rendering services to Dart. Upon the end of the Term, Contractor and its
employees shall promptly return to Dart the originals and all copies of the
Proprietary Data in the possession of Contractor, and shall not use any of the
Proprietary Data for its own benefit or for the benefit of any third parties.
The covenants contained in this Section 3(a) shall not apply to Proprietary
Data which is or becomes a matter of general knowledge in the industry
otherwise than by a breach of the provisions of this Section 3(a).
(b) INJUNCTIVE RELIEF: Contractor and its employees
acknowledge that the covenants contained in Section 3(a) are necessary for the
protection of the legitimate business interests of Dart and are reasonable
limitations of activities, that the rights of Dart are of a specialized and
unique character, and that immediate and irreparable damage will result to Dart
if Contractor fails to or refuses to perform or comply with such covenants.
Therefore, notwithstanding any election by Dart to claim damages from
Contractor as a result of any such failure or refusal, Dart may, in addition to
any other remedies and damages available, seek an injunction in a court of
competent jurisdiction to restrain any such failure or refusal, (and no bond or
other security shall be required in connection therewith) as applicable to
companies that compete with Dart or any of its subsidiaries and which operate
within the same geographic area as Dart or any of its subsidiaries. In that
connection, Contractor represents and warrants that his expertise and
capabilities are such that performance or compliance with the covenants (and
the enforcement thereof by injunction or otherwise) will not prevent him from
earning a livelihood. If a court refuses to enforce the covenants set forth in
Section 3(a) because they are found to be unreasonable, Contractor and Dart
agree to abide by any lesser restrictions (for instance, as to duration and
geographic area) that are found to be reasonable.
4. TERMINATION:
(a) DEATH, INABILITY: The Term shall expire upon the
death or disability of Marmon, whereupon Dart shall not have any further
obligations or liability hereunder except to pay the Contractor the unpaid
portion, if any, of Contractor's compensation accrued for the period up to the
date of Marmon's death.
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(b) WITH CAUSE: Dart shall have the right to terminate
the services of Contractor at any time for cause (as hereinafter defined) upon
at least five (5) days' written notice setting forth the specific details of
the action or inaction of Contractor which constitutes cause. For purposes of
the foregoing, "cause" shall mean only (i) the commission of any act which
shall be an offense involving moral turpitude under federal, state or local
law; or (ii) the conviction of a felony. Upon such termination, Dart shall
have no further obligations or liability hereunder except to pay Contractor the
unpaid portion, if any, of Contractor's compensation accrued for the period up
to the date of termination.
(c) DISSATISFACTION BY DART WITHOUT CAUSE: If Dart at
any time is for any reason dissatisfied with the management philosophy,
financial performance, attitude, compatibility or any other aspect of
Contractor's performance hereunder, Dart shall have the right to terminate the
services of Contractor upon at least thirty (30) days' notice to Contractor.
If Dart shall terminate the services of Contractor pursuant to this Section
4(c), the Term shall end and Dart shall not have any further obligations or
liability hereunder except to pay Contractor the unpaid portion, if any, in a
lump sum payment, of Contractor's compensation through the expiration of the
Term.
(d) DISSATISFACTION BY CONTRACTOR: If Contractor at any
time is for any reason dissatisfied with the terms and conditions of employment
hereunder, Contractor shall have the right to terminate his services under this
Agreement upon no less than sixty (60) days' notice to Dart. If Contractor
shall terminate his services pursuant to this Section 4(d), the Term shall end
at the expiration of the notice period and Dart shall have no further
obligations or liability hereunder except to pay to Contractor the unpaid
portion, if any, of Contractor's compensation accrued for the period up to the
date of termination.
5. MISCELLANEOUS:
(a) GOVERNING LAW: This Agreement shall be governed by
the laws of the State of Delaware applicable to agreements made by and to be
performed by Delaware corporations.
(b) AMENDMENT OF AGREEMENT: No amendment or variation of
the terms of this Agreement, with or without consideration, shall be valid
unless made in writing and signed by the Contractor and a duly authorized
representative of the Dart (other than Contractor).
(c) WAIVER OF CONDITIONS: A waiver of any of the terms
and conditions hereof shall not be construed as a general waiver by Dart, and
Dart shall be free to reinstate any such term or condition, with or without
notice to Contractor.
(d) ENTIRE AGREEMENT: This Agreement contains the
entire agreement between the parties and supersedes all prior oral and written
agreements, understandings, commitments, and practices between the parties,
whether or not fully performed by Contractor before the date of this Agreement.
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(e) HEADINGS: The section headings of this Agreement are
for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
(f) NOTICE: All notices, requests and other
communications under this Agreement shall be in writing and shall be deemed
given when delivered personally or upon receipt when sent by an express mail
service, provided that in each case a copy is mailed by first- class,
registered mail, return receipt requested, addressed as follows (or as may
otherwise have been specified by the intended recipient by notice as herein
provided);
If to Contractor:
RPF, Inc.
Att: Robert A. Marmon
339 N. Latches Lane
Merion Station, PA 19066
If to Dart:
Dart Group Corporation
Att: Messrs. L.G. Schafran
H. Ridgely Bullock
3300 - 75th Avenue
Landover, MD 20785
(g) SEVERABILITY: If any provision of this Agreement is
held invalid or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect. If any provision is held invalid
or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
(h) MERGER OR CONSOLIDATION: This Agreement shall not be
terminated by any merger, consolidation, transfer of all or substantially all
of the assets of Dart or voluntary or involuntary dissolution of Dart. In the
event of a merger or consolidation or upon the transfer of assets, the
surviving or resulting corporation or the transferee of Dart's assets shall be
bound by and shall have the benefit of the provisions of this Agreement, and
Dart shall take all actions necessary to ensure that such corporations or
transferee is bound by the provisions of this Agreement. This Agreement shall
be binding upon Dart notwithstanding any change in the composition of the Board
of Directors or change in ownership of Dart.
(i) NO COVENANTS: Contractor hereby represents and
warrants that neither it nor Marmon is subject to or bound by any employment
contract, restrictive covenant or other agreement or any order or decree that
prevents it from entering into this Agreement or from performing the
responsibilities as contemplated by this Agreement.
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(j) ATTORNEY'S FEES: If a dispute arises with respect to
Dart's obligations or the Contractor's rights under this Agreement, or if any
legal proceedings shall be brought to enforce or interpret any provisions
contained herein, or to recover damages for breach hereof, or in the event of
any other litigation involving this Agreement, Contractor shall recover from
Dart all attorneys' fees and costs and disbursements incurred as a result of
such dispute or legal proceeding, regardless of the outcome, but for actions of
Contractor or Marmon arising under Section 3, or the last sentence of Section
1(e) of this Agreement.
(k) ASSIGNMENT; BINDING EFFECT: This Agreement shall be
binding upon, and shall inure to the benefit of and be enforceable by, the
parties hereto and their respective successors and assigns, provided, that (A)
no right hereunder may be assigned by Contractor, or Marmon except that it
shall inure to the benefit of and be enforceable by the Contractor's personal
or legal representatives; and (B) unless Dart shall have complied with Section
5(h) hereof, no right hereunder may be assigned or transferred by Dart by
operation of law or otherwise. Any purported assignment or transfer in
violation of this Section 5(k) shall be null and void.
IN WITNESS WHEREOF, this Agreement has been signed by a duly
authorized member of the Executive Committee of Dart Group Corporation and by
Contractor as of the date first above written.
DART GROUP CORPORATION
BY: /s/H. Ridgely Bullock
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H. Ridgely Bullock
Chairman, Executive Committee
RPF, INC.
By: /s/Robert A. Marmon
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Robert A. Marmon
President
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