CONSULTING AGREEMENT
This Consulting Agreement
(this “Agreement”)
is entered into as of January 20, 2009 (the “Effective
Date”), between Best Energy Services, Inc., a Nevada corporation with
offices at 0000 Xxxxx,
Xxxxx
0000, Xxxxxxx, Xxxxx 00000, (“BES” or
the “Company”),
and Xxxxx X. Xxxxxxxx, an individual (“Consultant”).
Recitals
WHEREAS, Consultant was
employed by BES as its President and Chief Executive Officer pursuant to an
Employment Agreement dated March 5, 2008 (the “Employment Agreement”),
a copy of which is attached hereto as Exhibit A;
and
WHEREAS, Consultant resigned
from his employment with BES effective October 13, 2008; and
WHEREAS, BES and Consultant
entered into an Agreement setting forth the terms relating to the separation
payment to be made to Consultant pursuant to the Employment Agreement,
a copy of which is attached hereto as Exhibit B;
and
WHEREAS, Consultant desires to
perform, and BES desires to have Consultant perform, certain consulting services
as an independent contractor to BES on the terms set forth in this
Agreement.
Agreement
Now, Therefore, based on the
foregoing premises and in consideration of the agreements contained herein, the
parties agree as follows:
1. Prior
Affiliation. The parties acknowledge that Consultant’s
services for BES, as an officer and employee, have terminated as of October 13,
2008.
2. Appointment and
Acceptance. BES retains Consultant to provide the consulting
services defined in Section 3 below, and Consultant agrees to render such
services to BES,
in accordance with the terms and conditions set forth in this
Agreement.
3. Consulting
Services. Throughout the term of this Agreement, Consultant
shall provide such services to BES as BES may reasonably request from time to
time, including, without limitation,
daily oversight of BES’ American Rig Housing business unit, which are
collectively referred to as the “Services.” Consultant shall
report to the Company’s Chief Executive Officer.
4. Services
Commitment. At the request of BES, Consultant shall provide
BES with the Services at such times during normal working hours and at such
places as BES may reasonably request.
5. Term. The term of
this Agreement shall commence on January 15, 2009 and continue through June 15,
2009(the “Term”).
6. Consultant’s
Compensation. Consultant shall be entitled to the following
compensation, and no other compensation:
(a) For
Services, BES shall pay Consultant a consulting fee of $10,000.00 per
month. This amount will be payable in two installments of $5,000.00
each on the first and fifteen of each month during the Term.
(b) Consultant
shall be reimbursed for reasonable and documented actual business expenses
incurred by Consultant in the performance of his duties and responsibilities
under this Agreement
in
accordance with the policies and procedures of BES in effect from time to
time.
7. Termination.
(a) If BES
terminates this Agreement before the end of the term, BES is obligated to
compensate Consultant as if Consultant had provided Services for the entire
term;
and (ii)
Sections 8 (Relationship of the Parties) and 9 (Confidential Information) shall
survive termination of this Agreement.
(b) If
Consultant terminates this Agreement before the end of the term or advises that
he intends to terminate this Agreement before the end of the term, BES shall
have
the
right to accept Consultants termination notice early
(effectively choosing the date of termination) and shall have no obligation pay
Consultant any compensation
past the
termination date; and (ii) Sections 8 (Relationship of the Parties) and 9
(Confidential Information) shall survive termination of this
Agreement.
8. Relationship of
Parties.
(a)
Nature of
Contract. The parties acknowledge and agree that Consultant is
an independent contractor and is not an agent, partner or employee of BES,
and has
no authority to bind BES
in any manner without appropriate BES
approvals. Consultant shall perform the Services under the general
direction of , but
Consultant shall reasonably determine the manner and means by which
the Services are accomplished, subject to the terms of this Agreement
and the requirement that
Consultant shall at all times comply with applicable law.
(b) Taxes. Consultant
shall report as income the consulting fees and any and all other consideration
received by Consultant under this Agreement. BES shall
not withhold,
deduct or otherwise be responsible for any federal, state or local income or
employment taxes or make any contributions on behalf of Consultant
relating to the Consulting Fee or other consideration
received by Consultant under this Agreement.
(c)
No Participation in Employee
Plans. Consultant acknowledges and agrees that he is not
entitled to participate in any employee welfare or retirement plans
or programs of BES (including,
without limitation, medical insurance, life insurance, paid leave, vacation,
sick leave, pension, profit sharing, disability) and hereby waives all right to
participate in such
plans or
programs. This provision does not reflect any right that Consultant
may have as a former employee of BES to continue medical and/or dental
coverage that
he had while employed by BES,
subject to the terms of such plans.
9. Confidential
Information.
(a) BES
Information. Consultant agrees at all times during the term of
this Agreement and thereafter to hold in strictest confidence, and not to use
except for the benefit of BES, or to
disclose
to
any person without advance written authorization of BES, any Confidential
Information of BES. Consultant understands that “Confidential
Information” means any BES
proprietary information,
technical data, trade secrets or know-how, including, but not
limited to, research, product plans, product descriptions or specifications,
services, customer
lists and customers,
vendor lists and vendors, designer
lists and designers, market research or data, developments, inventions,
processes, technology,
designs, drawings, engineering, marketing, financesor
other business information disclosed to
Consultant by BES either directly or indirectly in writing or
orally. Consultant
further understands that Confidential Information does not include
any of the foregoing items which has become
publicly known and made generally available through
no wrongful act of Consultant or of others who were under confidentiality
obligations
as to the item or items involved.
(b) Third Party
Information. Consultant recognizes that BES has received and
in the future will receive from third parties their confidential or proprietary
information subject
to a duty on BES’s part to maintain the confidentiality of such
information and to use it only for certain limited
purposes. Consultant agrees 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
Consultant’s work for BES
consistent with BES’s agreement
with such third party.
10. Compliance with Other
Agreements. Consultant represents and warrants to BES that the
execution, delivery and performance of this Agreement will not conflict with or
result in the violation or breach
of any term or provision of any order, judgment, injunction,
contract, agreement, commitment or other arrangement to which Consultant is a
party or by which he is bound, including
without limitation any agreement restricting the sale of
products similar to BES’s products in any geographic location or
otherwise. Consultant acknowledges that BES is relying on his
representation
and warranty in entering into this Agreement, and Consultant agrees
to indemnify BES from and against all claims, demands, causes of action,
damages, costs or expenses (including attorneys’ fees)
arising from any breach thereof.
11. Miscellaneous
.
(a) Assignment. Consultant
shall not assign Consultant's rights or delegate Consultant's duties under this
Agreement either in whole or in part, except in the case of Consultant’s death,
any unpaid earned portion of the Consulting Fee shall be paid to
Consultant’s heirs. BES shall have the right to assign its rights and
delegate its duties under this Agreement in whole
or in part without the consent of Consultant so long as the assignee
agrees in writing to assume all obligations of BES under this
Agreement.
(b) Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas (without given effect to the principles of conflicts of
law).
Any litigation proceeding under this Agreement shall be confidential
in nature to the fullest extent permitted by applicable law.
(c) Severability. If
any provision of this Agreement is determined to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, then to the extent
necessary to make
such provision or this Agreement legal, valid or otherwise enforceable, such
provision shall be limited, construed or severed and deleted from this
Agreement, and the remaining
portion of such provision and
the remaining other provisions hereof shall survive, remain in full force and
effect and continue to be binding, and shall be interpreted to give effect
to the intention of the parties hereto insofar as that
is possible.
(d) Entire
Agreement. This Agreement and attachments hereto set forth the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior
and
contemporaneous agreements, written or oral, between them concerning such
subject matter.
(e) Headings. The
descriptive headings of the several Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(f) Amendment, Modification and
Waiver. This Agreement and its provisions may not be amended,
modified or waived except in a writing signed by Consultant and
BES.
(g) Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one
or more counterparts have been signed by each party hereto and
delivered to each party hereto.
(h) Construction. The
normal rule of construction that an agreement shall be interpreted against the
drafting party shall not apply to this Agreement. In this Agreement,
whenever
the context so requires, the masculine, feminine or neuter gender,
and the singular or plural number or tense, shall include the
others.
(i) Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be deemed effective (a) upon personal delivery, if delivered
by hand,
(b) upon receipt of electronic confirmation, if sent by
facsimile transmission, (c) three (3) days after the date of deposit in the
mails, if mailed by certified or registered mail (return receipt requested),
or (d) on the next business day, if mailed by
overnight mail service to the parties at their addresses set forth
below.
In the
case of BES:
Attention: Xxxx
Xxxxxxxxxx
0000
Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
With a
copy to:
Xxxxxx X.
Xxxxxx
Xxxxxxx
Xxxxxx LLP.
000 X.
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxx 00000
In the
Case of Employee:
Xx. Xxxxx
X. Xxxxxxxx
00000
Xxxxxxxxx Xx.
Xxxxxx,
XX 00000
(j) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns.
XXXXX
X. XXXXXXXX
By:_______________________________
Name:
____________________________
Title:
_____________________________
