Exhibit 10.24
AGREEMENT
This Agreement, made as of the 11th day of February, 2002 by and
between Valley National Gases, Inc., a corporation, ("VALLEY") whose address is
00-00xx Xxxxxx, Xxxxxxxx, XX 00000 and August X. Xxxxx ("XXXXX") whose address
is 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, Valley conducts business and operations, inter alia, for the
sale and distribution of welding supply products, industrial and specialty
gases, liquid propane, robotics, fire safety equipment as well as products and
services related thereto ("BUSINESS"); and
WHEREAS, Xxxxx has extensive management and organizational expertise
and skills with respect to oversight, operation and control of the Business;
and,
WHEREAS, Valley desires to retain Xxxxx as a consultant and advisor
relative to the oversight, management, organization and control of Valley and
its Business; and Xxxxx desires to be retained by Valley as a consultant and
advisor as aforesaid; and
WHEREAS, Valley and Xxxxx by the execution and delivery of this
Agreement do hereby formalize this consulting arrangement.
WITNESSETH in consideration the mutual promises hereinafter contained
Valley and Xxxxx agree as follows:
1. Duties. During the Term of this Agreement, Xxxxx shall consult with
and advise Valley with respect to the oversight, management, organization and
control of Valley and its Business, as reasonably requested by Valley and at
such times and places as mutually agreeable to Xxxxx and Valley.
2. Term. The term of this Agreement shall be four (4) months commencing
on the 11th day of February, 2002 and terminating on the 10th day of June, 2002.
The Term may be extended, from time to time, after the stated expiration herein
by mutual agreement of Xxxxx and Valley.
3. Independent Contractor Status. It is understood that Xxxxx is an
independent contractor, retained by Valley pursuant to the terms and conditions
of this Agreement, and he shall not otherwise hold himself out to the public as
an employee or partner of Valley. This Agreement does not constitute an
employment contract and nothing in this Agreement grants to or creates for the
benefit of Xxxxx any employment relationship, status, rights, privileges or
benefits. As such Xxxxx is responsible, where necessary, to secure at his sole
cost, worker's compensation, insurance, disability, benefits and any other
insurance as may be required by law. Valley will not provide, nor will it be
responsible to pay for benefits for Xxxxx. Any benefits, if provided by Xxxxx
for himself and/or his staff, including but not limited to, health insurance,
paid vacation, paid holidays, sick leave or disability insurance coverage of
whatever nature, shall be secured and paid for by Xxxxx.
4. Tax Duties and Responsibilities. Xxxxx is responsible for the
payment of all required payroll taxes, whether federal, state or local in
nature, including, but not limited to, income taxes, social security taxes,
federal unemployment compensation taxes, and any other fees, charges, licenses
or other payments required by law.
5. Employee's of Independent Contractor. Xxxxx may employ as many
employees as he requires in discharging his duties and providing the consulting
services to be provided by him hereunder, such matter resting entirely with his
own discretion. Valley need not be advised to the employment of such
individuals. Such persons are employees of Xxxxx, and he shall be deemed
employer of such persons. As such, Xxxxx shall be responsible for compensation
as well as all necessary insurance and payroll deductions for such persons,
including but not limited to, federal, state and local income taxes, social
security taxes, unemployment compensation taxes, workers compensation coverage,
etc.
6. Indemnification. Xxxxx shall not be liable for the acts, negligence
or defaults of third parties in and about the supervision, management,
operations and control of Valley and its Business, including especially, but not
limited to the acts, negligence or defaults of any employee, agent or
representative of Valley; nor shall Xxxxx be liable for anything done or not
done in good faith, including errors of judgment, acts done or committed on the
advice of counsel, or mistakes of fact or law; and
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Xxxxx shall, without prejudice to any other rights which he may have, be
indemnified by Valley against all liability and expense reasonably incurred by
him in connection with any claim, action, suit or proceeding of whatever nature
in which he may involved as a party or otherwise by reason of the foregoing.
7. Business of Independent Contractor. During the term of this
Agreement, Xxxxx may engage in any other business which does not conflict with
his duties hereunder or conflict with Valley's business. It is understood that
Xxxxx will not devote his entire time and efforts to his duties under this
Agreement. The parties agree that Xxxxx will not be requested to provide more
than forty (40) hours of consulting services hereunder during any one (1) week
during the Term of the Agreement.
8. Supervision. Xxxxx shall not be subject to the provisions of any
personnel handbook or the rules and regulations of applicable employees to
Valley since Xxxxx shall fulfill his duties hereunder independent of and without
supervision or control by Valley.
9. Compensation. Xxxxx shall be compensated for consulting services
hereunder as follows:
x. Xxxxx shall be compensated at the rate of Eighty Dollars
($80.00) per hour for consulting services rendered for Valley
pursuant to this Agreement.
b. Valley shall reimburse Xxxxx for all out of pocket expenses
reasonably incurred by him, while rendering consulting
services to Valley as provided for in this Agreement.
x. Xxxxx shall furnish Valley an itemized statement for
consulting services rendered hereunder and time expended
relative thereto as well as such expenses reasonably incurred
as provided for next above, following each month during the
Term of this Agreement and as well following the last day of
the Term of this Agreement. Valley shall remit to Xxxxx
payment for such consulting services rendered and expenses
incurred as reflected upon said statements within twenty (20)
days after receipt thereof.
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10. Assignment by Xxxxx. Xxxxx shall not sell, assign or transfer this
Agreement without prior written consent of Valley, which consent may be withheld
by Valley, for any reason, in its sole and absolute discretion; except that
Xxxxx may freely assign this Agreement to any corporation, limited liability
company or other business entity solely owned and operated by Xxxxx.
11. Assignment by Valley. Valley's rights, privileges, obligations and
liabilities under this Agreement shall inure to the benefit of and be binding
upon their respective successors and assigns.
12. Waiver of Breach. The waiver by Valley of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by Xxxxx. The waiver by Xxxxx of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by Valley.
13. Arbitration. Any dispute between Xxxxx and Valley concerning the
terms of this Agreement, including whether a breach has occurred, will be
settled by arbitration in Wheeling, Ohio County, West Virginia and will be
governed by the rules and procedures of the American Arbitration Association.
The costs (exclusive of attorneys' fees) of arbitration will be equally divided,
one-half (1/2) to Xxxxx and one-half (1/2) to Valley. The losing party will be
solely responsible for both sides' attorneys' fees.
14. Notices. All notices required to be given hereunder shall be in
writing and shall be sent by certified mail, postage prepaid, to Valley and/or
to Xxxxx at the addresses indicated below, unless written notice of change of
address is provided to other party at the address indicated.
To Valley: Valley National Gases, Inc., Inc., 00 - 00xx
Xxxxxx, Xxxxxxxx, Xxxx Xxxxxxxx
00000; Attention: Xxxxxxx X. Xxxxxxxxxx.
To Xxxxx: August X. Xxxxx, 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000
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15. Entire Agreement. This instrument contains the entire agreement
between the parties, and supercedes all prior agreements or understandings,
written or oral, between Valley and Xxxxx. This Agreement may not be changed
orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of West Virginia.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
11th day of February, 2002.
VALLEY NATIONAL GASES, INC., A WEST VIRGINIA
CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxxxx 2/21/02
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Its Chief Executive Officer
/s/ August X. Xxxxx Feb 19, 2002
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AUGUST X. XXXXX
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