CONSULTING AGREEMENT
Exhibit 10.1
This
Consulting Agreement (the "Agreement") is made this 6th day of August, 2007,
between Deep Down,
Inc., located at 00000 Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxx 00000 (the
"Company") and Strategic Capital Services, Inc., located at 00000 Xxxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxx 00000 (the "Consultant").
ARTICLE
I
TERMS
AND DUTIES
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1.1
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The
Consultant is hereby engaged for a three-year period commencing August 6,
2007 (the "Initial Term"), and the Consultant hereby accepts the
engagement by providing the services of Xxxxxx X. Xxxxxxxxxxx, Xx.
("Xxxxxxxxxxx") as Chairman and Chief Acquisitions Officer. The Initial
Term shall be automatically renewed for up to two successive consecutive
one (1) year periods (each, a "Renewal Term" and the Initial Term and
Renewal Term are collectively referred to as the "consulting period")
thereafter unless either party sends notice to the other party, not more
than 270 days and not less than 90 days before the end of the
then-existing consulting period, of such party's desire to terminate the
Agreement at the end of the then-existing term, in which case this
Agreement will terminate at the end of the then- existing term. Consulting
services will be provided at the Company address or at such other places
as may be directed by the Company. The Consultant agrees that time is to
be scheduled by the Company and to devote reasonable productive time,
ability and attention to the business of the Company during the term of
this Agreement, subject to the direction and supervision of the
Company.
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ARTICLE
II
COMPENSATION
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2.1
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As
compensation for services rendered under this Agreement, the Consultant
shall be entitled to receive a base consulting fee of One Hundred Eighty
Thousand and NO/100 DOLLARS ($180,000.00) per annum payable twice monthly
plus an amount equal to Federal and State payroll withholdings customarily
withheld for an employee earning this compensation, including but not
limited to FICA and Medicare. The consulting fee may be increased annually
at the discretion of the Board of Directors. The Consultant is also
entitled to annual bonuses as determined by the Board of Directors. The
Consultant shall provide such reasonable business hours as the Company
shall dictate, but at least forty hours per
week.
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4
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2.2
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Xxxxxxxxxxx
shall be eligible to participate in any and all benefits as are available
from time to time to
key executive officers, directors and employees (and
their families) of the Company, including all health,
medical, dental, and life insurance benefits. The Company shall pay 100 % of all premiums with respect to
such plans for Xxxxxxxxxxx. Xxxxxxxxxxx may, at his option, elect to be reimbursed for medical
insurance premiums incurred for medical insurance not provided
through the Company. Xxxxxxxxxxx will be entitled to four weeks paid vacation. Xxxxxxxxxxx
will also be entitled to $1,000 per month as an expense allowance to pay for the cost of a
vehicle, insurance, gasoline, maintenance, repairs and other unanticipated
costs.
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ARTICLE III
TERMINATION
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3.1
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If the Consultant willfully
breaches or habitually neglects the duties which he is required
to perform under the terms of the
Agreement, the Company may at its option terminate this Agreement by
giving written notice of termination to the
Consultant.
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3.2
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Willfully breaches is defined as
misappropriation of Company' s assets, being intoxicated or under the influence of drugs or
alcohol while on the job, being convicted of a felony, or not willingly corning to
work.
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ARTICLE IV
NON-COMPETITION BY
CONSULTANT
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4.1
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Consultant agrees that this
covenant is a separate contract in and of itself. In the event
that any of the prior clauses of this
contract should fail, this separate contract shall be binding upon the parties. Consultant
covenants and agrees that during his consultancy with Company and upon termination of
their engagement, whether by termination of this Agreement, by wrongful discharge,
or otherwise, Consultant shall not directly or indirectly, within Texas, enter into or engage
generally in direct competition with the Company's business, as a Consultant in any
business providing identical services as Company or own a business which provides
identical services as Company either individually or as a Consultant, officer, director,
independent contractor, or shareholder or otherwise, during the term of this Agreement or for
three (3) months after termination. This covenant on the part of Consultant shall be construed
as an agreement independent of any other provision of this Agreement; and the existence of
any claim or cause of action of Consultant against
Company, whether
predicated on this Agreement or otherwise, shall not constitute a
defense to the
enforcement by Company of this section. Company shall be entitled to such
extra remedies as injunctions, stays or restraining orders to enforce its rights
hereunder.
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4
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4.2
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The Consultant will not solicit or
divert or attempt to solicit or divert, any business, patronage, or clients of the
Company from the Company to himself or a competitor or rival of
Company for three (3)
months from the date of Consultant's withdrawal or termination from
the
Company,
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4.3
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During the term of this Agreement,
the Consultant will not communicate or divulge to or forthe benefit of any competitor or
rival of the Company, any of the trade secrets or
processes of the
Company including client list or pricing information, and used by the
Company. Notwithstanding the foregoing,
upon termination of this Agreement and the Non-Compete period, Consultant shall not be
prohibited from contacting any prospective client or determine appropriate pricing for
any products and/or services on behalf of any new Company.
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4.4
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The Consultant states that he has
read this Agreement in full and understands the termsand language in Article IV. The
Consultant has had outside counsel of his choosing review the Covenant of Noncompete and
counsel has explained all terms and conditions to him. The Consultant swears that he is
not under any duress or coercion to enter this Covenant of
Noncompete, but is
doing it of his own free will in order to gain the experience, specialized
training and
especially the extra compensation offered by
Company.
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4.5
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Confidentiality of this business
is very important as the nature of the business is
securing the customers confidence.
Therefore, Consultant may not directly or indirectly make known
to any person, firm
or corporation the names, addresses or any information pertaining to or
regarding any
customer of the Company during or after termination of
employment through the end of the Non-Compete
period.
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ARTICLE V
GENERAL PROVISIONS
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5.1
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Any notices to be given hereunder
by either party to the other may be effected either by personal delivery in writing or by
mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to the parties at the address appearing in the introductory
paragraph of this Agreement, but each party may change her address by written notice in
accordance with the
paragraph. Notices delivered personally shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of three (3) days
after mailing.
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5.2
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This Agreement supersedes any and
all other agreements, either oral or written, between the parties hereto with respect to
the employment of the Consultant by the Company and contains all of the covenants and
agreements between the parties with respect to such employment in any
manner whatsoever.
Any changes or amendments must be in writing, signed by all the parties, or they
are null and void.
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5.3
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5.4
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Where context and circumstances
require, the gender of all words used in this contract shall include the masculine, feminine
and neuter.
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EXECUTED
in Xxxxxx County, Texas on
the day and year first above written.
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COMPANY:
By: /s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President &
CEO
CONSULTANT:
STRATEGIC
CAPITAL SERVICES, INC.
/s/
Xxxxxx X. Xxxxxxxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxxxxxxx, Xx.
Title:
President
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