EXHIBIT 10.6
Consulting Agreement
Agreement made as of the day of February, 2004, by and between Sparta
Commercial Services, LLC, a Delaware limited liability company having an address
at X.X. Xxx 00, Xxx Xxxx, XX 00000 (the "Company") and Xxxxx Xxxxxx, having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, XX 00000 ("Consultant").
RECITALS
A. The Consultant has rendered valuable services to the Company and the
Company desires to retain and utilize the services of the Consultant to
enhance the growth and profitability of the Company, and the Consultant is
willing to serve as a consultant to the Company; and
B. The Consultant acknowledges that while in the service of the Company,
and/or any affiliate thereof, the Company must take reasonable steps to
protect its ideas, methods, developments, strategies, business plans and
financial and other information of the Company which are confidential
and/or proprietary in nature and which are of significant value to other
persons or entities that operate in the Company's industry.
NOW THEREFORE, in consideration of the mutual promises made acknowledged,
the parties hereto hereby agree as follows:
AGREEMENTS
1. Consulting Services. The Company hereby engages Consultant as an
independent contractor, and not as an employee, to render consulting
services to the Company as hereinafter provided, and Consultant hereby
accepts such engagement. Consultant shall not have any authority to bind or
act on behalf of the Company. Consultant shall consult with the Company
regarding (a) mergers and acquisitions, marketing strategies, structure of
deals and strategic relationships and alliances; and (b) such other matters
as the Consultant and the Company may periodically agree. Consultant shall
be free to determine the time and location and the manner in which he shall
render the consulting services described herein and he shall not be
required to devote any minimum number of hours per year to rendering such
services.
2. Term. This Agreement shall be for one year commencing on the date above
written and shall terminate on the first anniversary of the date of this
Agreement.
3. Company. For purposes of this Agreement, the term "Company" shall, unless
the context dictates otherwise, also mean any of the Company's subsidiaries
or affiliates.
4. Compensation. For its services hereunder, Consultant shall receive a fee in
the amount of $100,000.00, payable on or before the transfer of control of
Tomahawk Industries. Said fee shall be the only compensation of any kind
payable to the Consultant hereunder unless previously agreed in writing by
the Company.
5. Expenses. Subject to the Company's prior written approval in each instance,
the Company shall reimburse the Consultant for his normal and reasonable
expenses incurred in the performance of the Consultant's duties hereunder
including for travel, entertainment and similar items. As a condition of
reimbursement, the Consultant agrees to provide the Company with copies of
all invoices and receipts, and otherwise account to the Company in
sufficient detail to allow the Company to claim an income tax deduction for
such paid item, if such item is deductible. Reimbursement for expenses
shall be made monthly.
6. Confidentiality and Competitive Activities. The Consultant agrees that
during the Term of this Agreement he will be in a position of special trust
and confidence and will have access to confidential and proprietary
information about the Company's business plans. The Consultant agrees that
for the Term of this Agreement and for a period of five (5) years following
the termination of this Agreement for any reason neither Consultant nor any
affiliate thereof will directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate
officer, director, or in any similar individual or representative capacity,
engage or participate in any business that is in competition, in any manner
whatsoever, with the Company. Notwithstanding anything in the foregoing to
the contrary, the Consultant shall be allowed to invest as a shareholder in
publicly traded companies in the same business as the Company provided that
such investment shall not cause Consultant to be deemed an affiliate
thereof. For purposes of this Agreement, the term "affiliate" shall have
the meaning ascribed to it by Rule 144(a)(i) of the Securities Act of 1933,
as amended.
7. Trade Secrets.
a. Special Techniques. It is hereby agreed that the Company has developed
or acquired, without limitation, certain technology, know-how, unique
or special methods, processes and techniques, trade secrets, and
special customer arrangements, supplier and customer lists and
arrangements, and other proprietary rights and confidential
information and shall during the Term continue to develop, compile and
acquire said items (all hereinafter collectively referred to as the
"Company Property"). It is expected that the Consultant will gain
knowledge of and utilize the Company Property in the course of
performing his consulting services, and will be in a position of trust
with respect to the Company Property.
b. Company Property. It is hereby agreed that the Company Property shall
remain the Company's sole property. If the Consultant's engagement is
terminated for whatever reason, the Consultant agrees not to copy,
make known, disclose or use, any of the Company Property without the
Company's prior written consent, which shall not be unreasonably
withheld. In such event, the Consultant further agrees not to endeavor
or attempt in any way to interfere with or induce a breach of any
prior proprietary contractual relationship that the Company may have
with any employee, customer, contractor, supplier, or representative,
for five (5) years from the date of termination of this Agreement. The
Consultant agrees upon termination of engagement to deliver to the
Company all Company Property in Consultant's possession or control, in
whatever form contained, including without limitation electronically
stored data The Consultant recognizes that the violation of covenants
and agreements contained in this Section 7 may result in irreparable
injury to the Company, which would not be fully compensatable by way
of money damages.
c. Covenant Not to Compete. For a period of five (5) years from the date
of any termination of the Consultant's engagement with the Company,
neither the Consultant nor any of his employees shall directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in
any other individual or representative capacity, engage or participate
in any activities which are the same as, or competitive with, the
activities in which the Company is engaged.
8. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter
herein, and supersedes and replaces any prior agreements and
understandings, whether oral or written between them with respect to
such matter.
b. No Implied Waivers. The failure of either party at any time to require
performance by the other party of any provision hereof shall not
affect in any way the right to require such performance at any time
thereafter, nor shall the waiver by either party of a breach of any
provision hereof be taken or held to be a waiver of any subsequent
breach of the same provision or any other provision.
c. Personal Services. It is understood that the services to be performed
by the Consultant hereunder are personal in nature and the obligations
to perform such services and the conditions and covenants of this
Agreement cannot be assigned by the Consultant. Subject to the
foregoing, and
except as otherwise provided herein, this Agreement shall inure to the
benefit of and bind the successors and assigns of the Company.
d. Severability. If for any reason any provision of this Agreement shall
be determined to be invalid or inoperative, the validity and effect of
the other provisions hereof shall not be affected thereby, provided
that no such severability shall be effective if it causes a material
detriment to any party.
e. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of Texas.
f. Notices. All notices, requests, demands, instructions or other
communications required or permitted to be given under this Agreement
shall be in writing, and shall be deemed to have been duly given upon
delivery, if delivered personally, or if given by prepaid telegram, or
mailed first-class postage prepaid, registered or certified mail,
return receipt requested, shall be deemed to have been given
seventy-two (72) hours after such delivery, if addressed to the other
party at the addresses set forth on the signature page below. Either
party hereto may change the address to which such communications are
to be directed by giving written notice to the other party hereto of
such change in the manner above provided.
g. Merger, Transfer of Assets, or Dissolution of the Company. This
Agreement shall not be terminated resulting from either merger or
consolidation in which the Company is not the consolidated or
surviving company or a transfer of all or substantially all of the
assets of the Company. In such event, the rights, benefits and
obligations herein shall automatically be assigned to the surviving or
resulting company or to the transferee of the assets.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Sparta Commercial Services, LLC
By: /s/ X.X. Xxxxxx
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X.X. Xxxxxx, Member
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Consultant
