EXHIBIT 10.35
August 19, 2005
R. Ernest Waaser
6 Red Oak Drive
Batesville, IN 47006
RE: LITIGATION SUPPORT CONSULTING AGREEMENT
Dear Ernest:
In light of your past position with Hill-Rom and knowledge you have acquired
over the past several years, we will need your assistance to successfully
prosecute and defend various pending legal matters (including the Spartanburg
litigation, the Mextel litigation, the Versus litigation, the Joseph Piacentile
(Qui Tam) litigation as well as others). We recognize that such assistance may
require you to invest substantial time and divert your attention away from other
matters. Accordingly, we are proposing to enter into this Litigation Support
Consulting Agreement under which the Company would agree to compensate you for
your time and effort in exchange for your willingness to make yourself available
and provide assistance to Hill-Rom and its legal team(s). Please note that you
will not be compensated for any time spent actually testifying but we will
compensate you for all time spent preparing for such testimony or otherwise
serving in any capacity other than as an actual deponent or witness.
Specifically, in addition to the obligations set forth in your Separation &
Release Agreement (i.e. Paragraph No. 25), we propose the following:
CONSULTANT FEES
We will pay you a fixed monthly retainer for a period of twelve (12) months in
the amount of Eight Thousand, Three Hundred, Thirty-three Dollars and
Thirty-Three Cents ($8,333.33) for all time spent on such matters subject to a
maximum of Two Hundred and Fifty (250) hours (the "hourly cap") for such period.
Once the hourly cap is reached, we would agree to pay you the balance of any
unpaid monthly retainer within fourteen (14) days. Upon expiration of the twelve
(12) month period or exhaustion of the hourly cap, the Company will have the
option to continue to engage your services at the fixed hourly rate of Five
Hundred Dollars and No Cents ($500.00) for the duration of any litigation for
which your services are needed, subject to a per diem rate of Three Thousand
Five Hundred Dollars and No Cents ($3,500.00) per day. In addition to the
foregoing retainer and hourly fee, we will reimburse you for all reasonable
expenses incurred at the Company's request provided such expenses have been
approved in advance.
DUTIES AND RESPONSIBILITIES
As one of our outside litigation consultants, you will be expected to provide
assistance to the Company in the following areas:
- Identifying relevant documents, personnel and potential witnesses;
- Assisting in defending against any class certification(s);
- Helping craft discovery responses;
- Participating in preparing yourself (and others) for deposition;
- Assisting the Company to prepare for various pre-trial matters;
- Assisting the Company to prepare for trial;
- Formulating settlement strategies;
- Formulating litigation defense strategies;
- Formulating arguments and strategies for possible appeals; and
- Performing any other duties requested which may assist the Company in
its litigation efforts.
PAYMENT TERMS
The above monthly retainer shall be paid on the 15th of each month. Because of
the constraints imposed by the American Jobs Creation Act of 2004, which added
Section 409A to the Internal Revenue Code, and absent clear regulations
concerning the payment of such consulting fees, any amounts due prior to
February 1,2006 (excluding expenses) will be delayed and paid as a lump sum on
that date. You will be required to submit appropriate documentation of all
expenses incurred, which shall be reimbursed within thirty (30) days following
review and approval. Assuming this arrangement is converted from a monthly
retainer to hourly rate, we will ask you to submit detailed invoices to the
Company on the 5th of every month for all time worked along with any expenses
incurred during the preceding month. The Company agrees to pay such invoices
within thirty (30) days following receipt of a correct and undisputed invoice.
The Company will issue you a Form 1099 for any compensation paid to you under
this arrangement.
TERM
The term of this Agreement shall commence on September 1, 2005 and shall run
until the conclusion of the above-listed legal matters, at which time this
Agreement will be deemed to have expired by its own terms. Upon termination, all
obligations shall cease other than the payment of any accrued consulting fees or
expenses. The obligation to maintain information shared as confidential,
however, shall survive the termination of this Agreement and shall continue
until such information is no longer considered confidential or has been made
public through no fault of your own.
OTHER CONDITIONS
- You agree to make yourself reasonably available to meet and confer
with the Company, its employees, attorneys and designated
representatives at such times and places as required to adequately
perform the above services. Subject to business and litigation needs,
we will attempt to respect your time and schedule.
- You agree that such services shall be performed as an independent
contractor, not as an employee of Hillenbrand Industries or Hill-Rom,
and shall be performed in an ethical and professional manner
consistent with the highest of expectations.
- You agree to maintain any applicable privileges (including
attorney-client privilege) and keep all information disclosed to you
as strictly confidential consistent with the terms of your Separation
and Release Agreement;
- You agree not to disclose or use any information provided to you for
any purpose other than to further the Company's interests unless
expressly authorized by the Company in writing or required by law
after having provided timely notice thereof to the Company.
- You agree that you will be responsible for any and all taxes due on
account of any payments received under the terms of this Agreement. We
will issue you a Form 1099 for all compensation provided to you during
the relevant calendar year.
- You agree that, if called to testify (for deposition or trial), you
will do so truthfully.
- The rights and obligations set forth above shall be independent of
(and shall not replace) any rights or obligations either you or the
Company may have in any other written agreement, specifically
including those set forth in either your Employment Agreement or
Separation and Release Agreement.
If the above is acceptable, I ask that you sign and return the enclosed copy of
this letter to me along with a copy to Patrick deMaynadier.
On behalf of the Company,
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Rolf Classon
Interim CEO and President
cc: Patrick DeMaynadier, Esq.
AGREED AND ACCEPTED
R. Ernest Waaser
/s/
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Printed:
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Dated:
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