CONSULTING AGREEMENT
EXHIBIT
10.11
This
Agreement is made and entered into this 6th day of December 2005, by and between
Xxxxxxx Technologies Corp, a Delaware corporation (the “Company”),
and
Xxxxxx X. Xxxxxxx, an individual (the “Consultant”)
WITNESSETH
Whereas,
Company desires to enter into an Consulting Agreement with Consultant;
and
Whereas,
Consultant desires to act as a consultant to Company on the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, for and in consideration of the mutual exchange of promises herewith,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
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Responsibilities.
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(a)
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Consultant
is hereby engaged as a general business consultant to Company, and
shall
report directly to the President of Company.
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(b)
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Consultant
is obligated to provide full time efforts toward meeting or exceeding
Company’s goals and objectives.
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(c)
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Consultant
shall lend any and all subject matter expertise, knowledge, skills
and
experience to achieve Company goals and
objectives.
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2.
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Compensation.
For all services rendered by Consultant to Company, Consultant shall
be
entitled to compensation of Warrants in the amount of One Hundred
Thousand
Dollars in current value and a $150,000.00 per annum, in the amount
$12,500.00 monthly, payable on or before the 15th
day of each month during the Term, commencing on December 15, 2005,
prorated for any partial month at the commencement or expiration
or
termination of the Term. For purposes hereof a month shall mean a
calendar
month.
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3.
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Term.
The term of this Agreement (the “Term”)
shall commence on the date hereof and shall continue for the term
of
Twenty Four months, unless terminated or extended as provided in
Section
10. Termination or expiration of this Agreement shall not extinguish
any
rights of compensation of Consultant due for the Term as herein provided,
nor any obligations of Consultant to Company arising for activities
up to
the date of such termination or expiration. If the Stock Purchase
between
Xxxxxxx Technologies and Resilent LLC does not take place this agreement
will be null and void.
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4.
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Expenses.
Company will reimburse Consultant for all business and travel expenses
reasonably incurred by Consultant in the performance of his duties
hereunder during the Term upon submission by Consultant of proof
of
incurrence thereof upon forms from time to time utilized by Company
for
executive employee expense reports.
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5.
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Time
and Efforts.
Consultant agrees to devote such time and use such commercially reasonable
best efforts in the performance of his duties as may be required
to
skillfully and completely perform the services requested by Company
hereunder. During the Term of this Agreement, Consultant agrees that
he
will not perform any activities or services or accept any other consulting
engagements as would be inconsistent with this Agreement or the
relationship between the parties, or as would interfere with, or
present a
conflict of interest concerning, Consultant’s services to Company.
Consultant warrants and represents to Company that his services hereunder
will not constitute a breach of any contract, agreement or obligation
of
Consultant to any other party.
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6.
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Independent
Contractor.
Consultant agrees to provide his services as an independent contractor
and
not as an employee or officer of Company. Consultant acknowledges
and
agrees that he does not have the power, express or implied, to make
any
promise, warranty or representation on behalf of Company in any manner.
Consultant will not hire or engage any third-party consultants, lawyers,
accountants or other advisors on behalf of Company without the prior
approval of Company. Consultant acknowledges that Company is not
responsible for any federal or state taxes in respect to payment
of his
compensation hereunder and that it is his responsibility to calculate
and
pay tax obligations according to the requirements of applicable
law.
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7.
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Applicable
Law; Venue.
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(a)
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This
agreement shall be governed by and under the laws of the State of
Nebraska
without giving effect to conflicts of law principles. If any provision
hereof is found invalid or unenforceable, that part shall be amended
to
achieve as nearly as possible the same effect as the original provision
and the remainder of this Agreement shall remain in full force and
effect.
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(b)
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Any
dispute arising under or in any way related to this Agreement shall
be
brought in the State or Federal courts located in
Nebraska.
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8.
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Severability.
If any provision of this Agreement is held invalid or unenforceable,
it
shall be adjusted rather than voided, if possible, in order to achieve
the
intent of the parties to the extent possible. In any event, all other
provisions of this Agreement shall be deemed valid and enforceable
to the
fullest extent possible.
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9.
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Termination,
Modification, or Waiver.
This Agreement may not be terminated by Company prior to the expiration
of
the Term except for cause and then only upon 180 days prior written
notice
and payment for all services rendered through the date of such termination
delivered with such notice. For purposes hereof, “cause” means any of the
following acts or omissions of Consultant: (i) repeated failure to
follow
reasonable and lawful written directives of the President or the
Board of
Directors; (ii) willful misconduct that causes any material injury
to the
financial condition or business reputation of Company; (iii,) any
act of
fraud, theft, misappropriation or embezzlement or other similar conduct
with respect to any aspect of the business or assets of Company;
(iv) drug
use or alcohol use that materially interferes with the performance
hereunder; or (v) conviction of a felony, crime involving fraud or
misrepresentation, or conviction o any other crime the effect of
which is
likely to have a material adverse effect on the business or reputation
of
Company. No amendment, alteration, or change to this Agreement shall
be
effective unless in writing and signed by Consultant and Company.
The term
may be extended after the initial term, subject to negotiations and
written agreement between Consultant and Company. Consultant may
terminate
this Agreement at any time upon 30 days prior written notice to
Company.
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10.
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Confidentiality.
Consultant acknowledges that (luring the course of performance of
his
consulting services for Company, Consultant will acquire confidential
and
non-public information pertaining to Company and its business, including
investment plans or strategies, trade secrets, customer lists, vendor
and
customer contacts and the details thereof, pricing policies, operational
methodology, marketing and merchandising plans or strategies, business
acquisition plans, personnel acquisition plans, confidential information
of third parties which is subject to a nondisclosure or confidentiality
agreement between such third parties and Company, and other information
pertaining to the business of Company that is not publicly available
(collectively, the “Confidential Information”). Consultant shall not,
during the Term, directly or indirectly disclose to any person, except
to
Company or its officers and agents or as reasonably required in connection
with Consultant’s duties on behalf of Company, or use, except on behalf of
Company, any Confidential Information acquired by Consultant during
the
Term. Consultant shall not, at any time after the termination or
expiration of the Term, directly or indirectly disclose to any person
any
Confidential Information nor use the Confidential Information for
any
purpose whatsoever. Upon termination or expiration of the Term for
any
reason, or upon Company’s request, Consultant shall return to Company all
documents and materials (including software) relating directly or
indirectly to the Confidential Information. Consultant acknowledges
that
all such documents and materials arc and shall remain the property
of
Company.
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11.
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Binding
Effect.
This Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective heirs, personal and legal
representatives, successors and assigns; provided that since this
is a
contract for personal services of Consultant, Consultant may not
assign
this Agreement without the prior written consent of Company which
may be
granted or withheld as Company determines in its sole
discretion.
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12.
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Counterparts.
For the convenience of the parties hereto, any number of counterparts
hereof may be executed, and each such executed counterpart shall
be deemed
to be an original instrument. A facsimile transmission of this Agreement
bearing a signature on behalf of a party will be legal and binding
on such
party.
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13.
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Paragraph
Headings.
The Section headings contained in this Agreement are for convenience
only
and shall in no manner be construed as a part of this
Agreement.
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14.
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Gender
and Number.
Where the context so requires, the masculine gender shall be construed
to
include the feminine and/or neuter and vice versa, and the singular
shall
be construed to include the plural and the plural the
singular.
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15.
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Integration.
This Agreement constitutes the entire agreement of the parties hereto
with
respect to the subject matter hereof and supersedes and terminates
all
prior agreements, arrangements and policies between the parties with
respect to the subject matter hereof.
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16.
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Notices.
Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be furnished either by personal
delivery, overnight mail or by certified mail, return receipt requested,
to the principal office address of the party to whom such notice
is being
sent.
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Consultant:
Xxxxxx
X.
Xxxxxxx
00000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
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Telephone:
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000-000-0000
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Facsimile
(manual): 000-000-0000
Company:
Xxxxxxx
Technologies Corp
0000
Xxxxx 000xx
Xxxxxx
Xxxxx,
XX
00000
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Telephone:
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000-000-0000
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Facsimile:_____________
Either
party may change his or its address for notice and communications hereunder
by
delivery of written notice of such change to the other party.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the date first above written.
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CONSULTANT
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COMPANY
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Xxxxxxx
Technologies Corp
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/s/
Xxxxxx X.
Xxxxxxx
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By:
/s/ Xxxxx
Xxxxxxxxx
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Xxxxxx
X. Xxxxxxx, Individually
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Xxxxx
Xxxxxxxxx CEO, President
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