February 7, 2007 Mr. Clarence A. Davis
EXHIBIT
10.3
February
7, 2007
Xx.
Xxxxxxxx X. Xxxxx
c/x
Xxxxxx, Inc.
00
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxx
Xxxxxxxxxx
XX 00000
Dear
Xx.
Xxxxx:
This
will
confirm our engagement of you as an independent consultant to Xxxxxx, Inc.
(“Xxxxxx”),
on
the following terms and conditions:
Services
and Reporting
You
will
assist the management team in determining, articulating and executing its
strategic plan. In this connection, you will you will exercise your professional
business judgment and devote such time as you deem necessary to the fulfillment
of your task. In connection with the services you will provide pursuant to
this
letter agreement, you will serve at the pleasure of Nestor’s
Board of
Directors and will report to such Board of Directors or any committee of the
Board of Directors established or designated for that purpose.
Term
It
is
anticipated that you will provide services to Xxxxxx
under
this letter agreement for a period of between 2 and 4 months, though this letter
agreement may be extended by mutual agreement or terminated by either party
at
any time for any reason.
Remuneration
For
your
services, you will be paid a flat fee of $25,000 per month, which amount shall
be prorated for any partial month in which you provide services. For avoidance
of doubt, you will be paid a prorated amount only if you or Xxxxxx terminates
this agreement other than at the end of a month. You will be paid by
Xxxxxx
on the
first business day of each month following the month in which you provide
services pursuant to this letter agreement.
Expenses
You
will
be reimbursed by Xxxxxx
for all
of your reasonable expenses incurred by you in connection with the services
you
provide under this letter agreement, including travel, transportation and meal
expenses. You will be required to comply with Nestor’s
current
expense reimbursement policy.
Independent
Contractor
In
acting
as a consultant to Xxxxxx
under
this letter greement, you will be acting at all times as an independent
contractor and not as an agent or employee of Xxxxxx.
You
agree not to hold yourself out as an agent or employee of Xxxxxx
except
and to the extent specifically authorized in a prior writing by Xxxxxx.
As an
independent contractor, you will have discretion over the means and method
of
the performance of the consulting services, which you provide. You agree to
comply with and abide by all applicable laws and regulations in the performance
of your services.
Taxes
and Withholding
Unless
otherwise required by applicable law, you will be solely and exclusively liable
for all Federal, State and local taxes levied against amounts earned by you
hereunder. Xxxxxx
will not
withhold any portion of amounts due to you pursuant to this letter agreement
for
payment of any taxes. You are solely responsible for the payment of any such
taxes and the filing of any returns or other required documents with the proper
taxing authorities.
Indemnification
In
connection with the performance of your services hereunder, Xxxxxx
will
indemnify you in accordance with and in the manner provided Exhibit
A attached
to this letter agreement.
Resignation
from Audit Committee
You
and
XXXXXX
recognize that your retention by the Xxxxxx
as a
consultant impairs your ability to meet the independence requirements for
members of Nestor’s
Audit
Committee. Accordingly, upon acceptance of this letter agreement by you, you
automatically, and without any further action on your part, resign from the
Audit Committee. By executing a counterpart to this letter agreement,
Xxxxxx
accepts
your resignation from the Audit Committee. You and Xxxxxx
acknowledge that you remain a member of Nestor’s
Board of
Directors and will continue to do so until the expiration or earlier termination
in accordance with Nestor’s
governing
documents and applicable law.
Miscellaneous
This
letter agreement contains the complete agreement concerning the arrangement
between the parties and supersedes all other prior agreements between the
parties.
No
waiver
or modification of this letter agreement may be made except in writing duly
executed by the party against whom enforcement of such waiver or modification
is
sought.
This
letter agreement has been entered into, delivered and is to be governed by,
construed, interpreted and enforced in accordance with the laws of the State
of
Rhode Island (without giving reference to choice-of-law provisions) from time
to
time in effect.
Kindly
sign and return the enclosed copy of this letter confirming the Consultant's
acceptance of the foregoing Agreement.
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Very
truly yours,
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XXXXXX,
INC.
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By:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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Executive
Vice President and CFO
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ACCEPTED
AND AGREED TO THIS
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7th
Day of February 2007
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By:
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx
X. Xxxxx
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EXHIBIT
A
INDEMNIFICATION
Xxxxxx
shall
(a) indemnify you if you were or are a party or are threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of Xxxxxx
to
procure a judgment in its favor by reason of the fact that you are or were
a
consultant of Xxxxxx
against
expenses (including attorneys’ fees) actually and reasonably incurred by you in
connection with the defense or settlement of such action or suit, and (b)
indemnify you if you were or are a party or are threatened to be made a party
to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of Xxxxxx),
by
reason of the fact that you are or were a consultant of Xxxxxx
expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any such action,
suit
or proceeding, in each case to the fullest extent permissible under subsections
(a) through (e) of Section 145 of the General Corporation Law of the State
of
Delaware or the indemnification provisions of any successor statute. The
foregoing right of indemnification shall in no way be exclusive of any other
rights of indemnification to which you may be entitled, under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, and
shall inure to the benefit of your, executors and administrators.
-4-
