WILSON HOLDINGS, INC. CONSULTING AGREEMENT
Exhibit
10.1
XXXXXX
HOLDINGS, INC.
This
Consulting Agreement (“Agreement”) is made and entered
into as of the 18th day of September 2007, by and between Xxxxxx Holdings,
Inc.,
a Nevada corporation (“Company”), and Xxxx Xxxxxxx
(“Consultant”).
R
E C I T A L S
WHEREAS,
the Company,
in an effort to reduce expenditures as it commences its homebuilding operations,
as described in detail in its Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 2007, and Consultant have agreed that Consultant will
transition from an employee to a consultant to the Company; and
WHEREAS,
the Company
desires to retain Consultant as an. independent contractor to perform consulting
services for the Company and Consultant is willing to perform such services,
on
terms set forth more fully below.
A
G R E E M E N T
NOW,
THEREFORE, in
consideration of the mutual promises contained herein, the parties hereby
agree
as follows:
1. SERVICES
A. Through
October 31, 2007 or the date of filing of the Company’s Form 10-K, whichever is
later, Consultant will continue to serve as an employee and as the Company’s
Chief Financial Officer. Consultant’s obligations, including those
related to certification, are expressly contingent upon the Company providing
Consultant with all information reasonably requested by Consultant in a timely
manner. Company acknowledges and agrees that from the date of this Agreement
until the date Consultant discontinues his service as an employee, Consultant’s
vacation days will not be deducted from his salary.
B. Beginning
on the date of filing of the Company’s Form 10-K or November 1, 2007, whichever
is later, through October 31, 2008, Consultant’s role with Company will be that
of a consultant, and will consist solely of (i) reviewing and providing comments
on the Company’s periodic filings with the Securities and Exchange Commission,
(ii) advising the Company on its Xxxxxxxx-Xxxxx Act compliance and
implementation efforts, (iii) advising the Company regarding
financing and joint venture matters, and (iv) transitioning of his
responsibilities to the Chief Accounting Officer.
C. Company
understands and acknowledges that Consultant has a majority ownership in Izon
Consulting LLC and Khurana LLC, which provide accounting consulting services
to
other companies, entities and individuals. Nothing in this agreement
shall preclude Consultant from managing or providing accounting consulting
services for or through these entities, or from otherwise providing similar
services for other entities. Consultant may also serve as a director
or trustee of other organizations, or engage in charitable, civic, and/or
governmental activities provided that such service and activities do not prevent
Consultant from performing the duties required of Consultant under this
Agreement. Consultant may engage in personal activities, including,
without limitation, personal investments, provided that such activities do
not
interfere with Consultant’s performance of duties hereunder.
2. COMPENSATION
A. Consultant
will receive his current salary and benefits through October 31, 2007 or the
date of Filing of the Company’s Form 10-K, whichever is
later. Consultant’s consulting fee will be equal to $11,500 per month
beginning November 1, 2007 or the date of Filing of the Company’s Form 10-K
whichever is later, through October 31, 2008. Consultant will not be
eligible to participate in any of the Company’s benefit plans.
B. Consultant’s
unvested stock options grants (i.e. totaling 500,000 shares of common stock)
will be amended to accelerate in full on November 1, 2007 (i.e. 375, 000 shares
of common stock to have an exercise price of $3.25 per share; 125,000 shares
of
common stock to have an exercise price of $2.26 per
share). Consultant will have 90 days following October 31, 2008 to
exercise any vested stock options.
3. MUTUAL
RELEASES
A. Except
for a claim to enforce the terms of this Agreement, or as otherwise provided
herein, Company, for itself and for each of its directors, officers, employees,
agents, attorneys, heirs, grantees, successors and assigns, past and present,
hereby releases and forever discharges Consultant, in any capacity, as well
as
any entity in which he is a partner or owner, including Khurana LLC and Izon
Consulting LLC (the “Consultant Releasees”), from and
against any and all claims, liabilities, demands, obligations, losses, causes
of
action and suits of any kind or nature, whether known or unknown, which any
of
them has or might have against the Consultant Releasees.
B. Except
for a claim to enforce the terms of this Agreement, or as otherwise provided
herein, Khurana, for himself and for any entity in which he is a partner or
owner, including Khurana LLC and Izon Consulting LLC, hereby releases and
forever discharges Company, for itself and for each of its directors, officers,
employees, agents, attorneys, heirs, grantees, successors and assigns, past
and
present (the “Company Releasees”), from and against
any and all claims, liabilities, demands, obligations, losses, causes of action
and suits of any kind or nature, whether known or unknown, which any of them
has
or might have against the Company Releasees.
C. Consultant
represents and warrants that Consultant does not presently have on file, and
further represents and warrants to the maximum extent allowed by law that
Consultant will not hereafter file, any lawsuits, claims, charges, grievances
or
complaints against the Company and/or the Company Releasees in or with any
administrative, state, federal or governmental entity, agency, board or court,
or before any other tribunal or panel or arbitrators, public or private, based
upon any actions or omissions by the Company and/or the Company Releasees
occurring prior to the date of this Agreement. To the extent that
Consultant is still entitled to file any administrative charge with any
governmental agency, Consultant hereby releases any personal entitlement to
reinstatement, back pay, or any other types of damages or injunctive relief
in
connection with any civil action brought on his behalf after his filing of
any
administrative charge. The foregoing notwithstanding, nothing herein
shall be construed to limit Consultant’s cooperation in any government
investigation. The Company represents and warrants that it does not
presently have on file, and further represents and warrants to the maximum
extent allowed by law that the Company will not hereafter file, any lawsuits,
claims, charges, grievances or complaints, civil, criminal or otherwise, against
Consultant in or with any administrative, state, federal or governmental entity,
agency, board or court, or before any other tribunal or panel or arbitrators,
public or private, based upon any actions or omissions by Consultant occurring
prior to the date of this Agreement. The foregoing notwithstanding,
nothing herein shall be construed to limit the Company’s cooperation in any
government investigation
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4. CONFIDENTIALITY
A. Definition. “Confidential
Information” means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customers, customer lists, markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or other
business information disclosed by the Company either directly or indirectly
in
writing, orally or by drawings or inspection of parts or
equipment.
B. Non-Use
and Non-Disclosure. Consultant will not, during or
subsequent to the term of this Agreement, use the Company’s Confidential
Information for any purpose whatsoever other than the performance of the
Services on behalf of the Company or disclose the Company’s Confidential
Information to any third party. It is understood that said
Confidential Information shall remain the sole property of the Company.
Consultant further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information including, but not
limited to, having each employee of Consultant, if any, with access to any
Confidential Information, execute a nondisclosure agreement containing
provisions in the Company’s favor identical to Sections 2, 3 and 4 of this
Agreement. Confidential Information does not include information which is known
to Consultant at the time of disclosure to Consultant by the Company as
evidenced by written records of Consultant, has become publicly known and made
generally available through no wrongful act of Consultant, or has been
rightfully received by Consultant from a third party who is authorized to make
such disclosure.
C. Former
Employer’s Confidential Information. Consultant agrees
that Consultant will not, during the term of this Agreement, improperly use
or
disclose any proprietary information or trade secrets of any former or current
employer or other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant, if any, and
that
Consultant will not bring onto the premises of the Company any unpublished
document or proprietary information belonging to such employer, person or entity
unless consented to in writing by such employer, person or entity. Consultant
will indemnify the Company and hold it harmless from and against all claims,
liabilities, damages and expenses, including reasonable attorneys’ fees and
costs of suit, arising out of or in connection with any violation or claimed
violation of a third party’s rights resulting in whole or in part from the
Company’s use of the work product of Consultant under this
Agreement.
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D. Third
Party Confidential Information. Consultant recognizes
that theCompany has received and in the future will receive from third parties,
including without limitation, Company clients and prospective clients, their
confidential or proprietary information subject to a duty on the Company’s part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. Consultant agrees that Consultant owes the Company
and
such third parties, during the term of this Agreement and thereafter, a
duty to hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or to
use
it except as necessary in carrying out the Services for the
Company.
5. OWNERSHIP
A. Assignment. Consultant
agrees that all copyrightable material, notes, records, drawings, designs,
inventions, improvements, developments, discoveries and trade secrets
(collectively, “Inventions”) conceived, written, made
or discovered by Consultant (solely or in collaboration with others) during
the
period of this Agreement in performing the Services hereunder, are the sole
property of the Company. Consultant further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Consultant further acknowledges that all Inventions
which constitute original works of authorship (solely or jointly with others)
within the scope of and during the term hereof which qualify for protection
by
copyright are “works made for hire” as that term is defined in the United States
Copyright Act.
B. Further
Assurances. Consultant agrees to assist Company, or its
designee, at the Company’s expense, in every proper way to secure the Company’s
rights in the Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary
in
order to apply for and obtain such rights and in order to assign and convey
to
the Company, its successors, assigns and nominees the sole and exclusive right,
title and interest in and to such Inventions, and any copyrights, patents,
mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant’s obligation to execute or cause to be executed,
when it is in Consultant’s power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
C. Pre-Existing
Materials. Consultant agrees that if in the course of
performing the Services, Consultant incorporates into any Invention developed
hereunder any invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant has an
interest, (i) Consultant shall inform Company, in writing before
incorporating such invention, improvement, development, concept, discovery
or
other proprietary information into any Invention; and (ii) the Company is
hereby granted and shall have a nonexclusive, royalty-free, perpetual,
irrevocable, worldwide license to make, have made, modify, use and sell such
item as part of or in connection with such Invention. Consultant shall not
incorporate any invention,
improvement, development, concept, discovery or other proprietary information
owned by any third party into any Invention without Company’s prior written
permission.
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6. ASSIGNMENT
The
parties acknowledge and agree that neither this Agreement nor any right
hereunder nor interest herein may be assigned or transferred by either party
without the express written consent of the non-assigning party.
7. INDEPENDENT
CONTRACTOR
It
is the
express intention of the parties that Consultant is an independent contractor.
Nothing in this Agreement shall in any way be construed to constitute Consultant
as an agent, employee or representative of the Company, but Consultant shall
perform the Services hereunder as an independent contractor. Consultant further
agrees to indemnify and hold harmless the Company and its directors, officers,
and employees from and against all taxes, losses, damages, liabilities, costs
and expenses, including attorneys’ fees and other legal expenses, arising
directly or indirectly from (i) any negligent, reckless or intentionally
wrongful act of Consultant or Consultant’s assistants, employees or agents,
(ii) a determination by a court or agency that the Consultant is not an
independent contractor, or (iii) any breach by the Consultant or
Consultant’s assistants, employees or agents of any of the covenants contained
in this Agreement.
8. NON-DISPARAGEMENT
The
parties acknowledge and agree that
they will not make or cause to be made any statement, observation or opinion,
or
communicate any information (whether oral or written) that in any way disparages
or is likely in any way to harm the reputation of the other
party. However, nothing herein shall preclude either party from
providing truthful testimony in any legal proceeding pursuant to subpoena or
other legal means of compelling testimony, and the providing of such truthful
testimony shall not constitute a breach of this provision in any
respect.
9. REPRESENTATIONS
Based
upon information and advice from the Company’s auditors and counsel, Consultant
represents that all statements and actions he has taken as the Company’s Chief
Financial Officer have been accurate, to the best of his
knowledge. Consultant also represents that, to the best of his
knowledge, all filings required to have been made by him pursuant to Section
16
of the Securities Exchange Act of 1934 relating to his ownership of the
Company’s securities have been filed, and that no additional filings pursuant to
Section 16 of the Securities Exchange Act of 1934 were required relating to
the
purchase of the Company’s securities.
Based
upon information and advice from the Company’s auditors and counsel, Company
represents that all statements and actions taken by the Company’s Chief
Executive Officer have been accurate, to the best of his knowledge.
Based
upon information and advice from the Company’s auditors and counsel, both the
Company and Consultant represents that, to the best of their knowledge, all
Current Reports on Form 8-K that were required to have been filed by the Company
have been filed.
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10. PAYMENT
UPON DEFAULT
In
the
event the Company (i) fails to pay Consultant his consultant payments or (ii)
violates the non-disparagement provision of the Agreement (¶ 8) prior to October
31, 2008, the Company will pay Consultant an amount equal to
$275,000. In the event Consultant violates the non-disparagement
provision of the Agreement (¶ 8) prior to October 31, 2008, Consultant will pay
the Company $275,000. In the event either party pays this default
payment, the Agreement will automatically terminate with no further obligations
owed to or by either party.
11. INDEMNIFICATION
Consultant
agrees to indemnify and hold
harmless the Company, in an amount not to exceed $30,000, for any judgment
against the Company based upon an action by Xxxxxx Xxxxxx for xxxxxxxxx alleged
to be owed by the Company.
12. PRIOR
AGREEMENTS
This
Agreement supersedes all prior
discussions and agreements among the parties with respect to the subject matter
hereof (specifically including the Employment Agreement made and entered into
by
and between the Company and the Consultant on or about February 14, 2007) and
contains the sole and entire agreement between the parties hereto with respect
thereto.
13. FEES
AND EXPENSES
A. Each
party will bear their own costs and expenses in connection with the negotiation
of the Agreement.
B. In
the event of any litigation to enforce rights and obligations under this
Agreement, the prevailing party in such litigation proceedings shall be entitled
to recover, from the non-prevailing party, the prevailing party’s reasonable
costs and attorney’s fees, in addition to all other legal or equitable remedies
to which it may otherwise be entitled.
14. GOVERNING
LAW
This
Agreement shall be governed by and
construed in accordance with the laws of the State of Texas applicable to
contracts executed and performed in such state without giving effect to
conflicts of law principles.
15. JURISDICTION
With
respect to any suit, action, or
other proceeding arising from (or relating to) this Agreement, the Company
and
Consultant hereby irrevocably agree to the exclusive personal jurisdiction
and
venue of the United States District Court for the Western District of Texas
(and
any Texas State Court within Xxxxxx County, Texas).
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16. COUNTERPARTS
This
Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
| Xxxxxx Holdings, Inc. | Xxxx Xxxxxxx | |||||||
| By: | /s/ Xxxxx Xxxxxx | /s/ Xxxx Xxxxxxx | ||||||
| Print Name: | Xxxxx Xxxxxx | Address: | ||||||
| Title: | President and CEO | |||||||
| Address: | ||||||||
