CONSULTING AGREEMENT
BY AND BETWEEN
PORTEC RAIL PRODUCTS, INC.
AND
XXXX X. XXXXXX
THIS CONSULTING AGREEMENT (the "Agreement") is made as of January 1, 2008,
by and between Portec Rail Products, Inc. (the "Company"), a West Virginia
corporation, and Xxxx X. Xxxxxx (the "Consultant").
WHEREAS, the Company has requested the Consultant to provide consulting
services for the Company for the term and in the manner set forth in this
Agreement; and
WHEREAS, Consultant has agreed to perform consulting services for the
Company pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the following meanings.
(a) "Beginning Date" means the date of this Agreement.
(b) "Consulting Fee" has the meaning set forth in Section 2(c)(i).
(c) "Consulting Services" has the meaning set forth in Section 2(a)(ii).
(d) "Contract Term" has the meaning set forth in Section 2(b).
(e) "Termination Date" means December 31, 2008.
2. SERVICES, COVENANTS AND COMPENSATION
(a) Corporate Opportunities; Services and Duties.
(i) Corporate Opportunities. Consultant agrees that during the
Contract Term, Consultant shall not, directly or indirectly, usurp any
corporate opportunity of the Company or engage in any business that would
detract from Consultant's ability to apply his best efforts to the
performance of his duties hereunder.
(ii) Consulting. Subject to and upon the terms and conditions
contained in this Agreement, (i) the Company hereby agrees to engage
Consultant as an independent contractor and (ii) Consultant agrees to be
engaged by the Company for the Contract Term and to render Consulting
Services to the Company. The Consulting Services shall consist of providing
strategic and operational advice as requested at the discretion of the
Company.
(b) Contract Term. Consultant's engagement pursuant to this Agreement shall
commence as of the Beginning Date and shall terminate at 5:00 p.m., Pennsylvania
time, on the Termination Date (the "Contract Term").
(c) Consideration.
(i) Consulting Fee. In consideration for the Consulting Services,
Consultant shall be paid Thirty-Six Thousand and 00/100 Dollars
($36,000.00) annually (the "Consulting Fee") in twelve (12) equal monthly
installments, payable on the 15th day of each month during the Contract
Term.
(ii) Bonus. In addition to the Consulting Fee, Consultant shall
participate in the Company's annual bonus plan for executives and shall be
eligible for incentive bonuses thereunder at the discretion of the Company.
(iii) Expenses. Company shall reimburse Consultant for all reasonable
business expenses incurred by Consultant at the request of the Company in
accordance with the Company's expense reimbursement policies.
(iv) Consultant shall be entitled to receive normal and customary fees
for his service on the Company's board of directors.
(v) No Additional Consideration. It is understood by Consultant and
the Company that Consultant shall not be entitled to the provision of any
benefits (e.g., medical, dental and disability insurance; vacation; 401(k)
contributions, etc.) other than as specifically set forth in this Section
2.
3. INDEPENDENT CONTRACTOR
Nothing herein shall be construed to create an employee-employer
relationship between the Company and Consultant. Consultant is an independent
contractor and not an employee of the Company or any of its subsidiaries or
affiliates. The consideration set forth in Section 2 shall be the sole
consideration due Consultant for the services rendered hereunder. It is
understood that the Company will not withhold any amounts for payment of taxes
from the compensation of Consultant hereunder. Consultant will not represent
himself to be, or hold himself out as an employee of the Company.
4. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
(b) Severability. If, for any reason, any provision of this Agreement, or
any part of any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
(c) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior agreement between the
Company and any predecessor of the Company and Consultant with respect to the
subject matter hereof. This Agreement may not be changed or modified, except by
an instrument in writing executed by the Consultant and the Company.
(d) Headings. The headings of sections and paragraphs herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
(e) Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Company: President and Chief Executive Officer
Portec Rail Products, Inc.
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
To the Consultant: Xxxx X. Xxxxxx
000 0/0 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
[Signature Page Follows]
ATTEST: PORTEC RAIL PRODUCTS, INC.
/s/ Xxxx X. Xxxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------ ----------------------------------
Secretary Xxxxxxx X. Xxxxxxxxxx
President and Chief Executive Officer
WITNESS: CONSULTANT:
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxx X. Xxxxxx
------------------------------------ -------------------------------------
Xxxx X. Xxxxxx
