CONSULTING AGREEMENT
EXHIBIT
10.4
This
Consulting Agreement
(“Agreement”) is entered into this 15th
day of
March, 2006 between M. Xxxxxxx Xxxx and/or assigns (“Consultant”), a business
engaged in providing consulting services, through its partners, subsidiaries
or
affiliates and Xxxxxxx Drilling Corporation, a corporation located in Houston,
Texas (“Client” or the “Company”), in connection with the rendering by
Consultant to Client of consulting services, as described herein below, for
and
in consideration of the compensation described.
WHEREAS,
Client
is a Nevada corporation and desires to retain Consultant to perform certain
consulting services as described herein and Consultant is willing to render
and
provide such service to the Company.
THEREFORE,
in
consideration of the mutual agreements and covenants set forth in this
Agreement, and intending to be legally bound hereby, the parties agree as
follows:
1.
Engagement of Consultant.
The
Company hereby engages and retains Consultant to render to the Company the
consulting services (the “Consulting Services”) described in paragraph 2 for the
period commencing on the date this Agreement is executed by both parties and
ending twelve (12) months thereafter (the “Consulting Period”).
2.
Description of Consulting Services.
The
Consulting Services rendered by Consultant hereunder shall consist of
consultations with management of the Company as such management may from time
to
time require during the term of this Agreement. Such consultation with
management shall be with respect to legal consultations (“Legal Consultations”).
Legal consultations may include the Company’s relationship with the community at
large, prospective client negotiations, contract negotiations, and such other
matters as may be agreed upon between the Company and Consultant.
3.
Compensation For Consulting Services.
The
Company shall pay to Consultant for said services rendered hereunder, payable
as
follows: Beginning April 1, 2006, and for four (4) consecutive months
thereafter, Consultant shall receive Eight Thousand Dollars ($8,000.00) per
month; beginning August 1, 2006 and for four (4) consecutive months thereafter,
Consultant shall receive Ten Thousand Dollars ($10,000) per month; beginning
December 1, 2006, and for three ((3) years thereafter, Consultant shall receive
Twelve Thousand Dollars ($12,000) per month. Consultant shall receive Twelve
Thousand Dollars ($12,000) per month for the three (3) years, up to and until
May 1, 2009. Consultant shall receive a car allowance of One Eight Hundred
Dollars ($800) per month for all aforementioned months and all consecutive
months thereafter up to and until May 1, 2009. Any and all reasonable expenses
incurred by Consultant beyond the aforementioned car allowance shall be
reimbursed by Company, within fifteen (15) days after Consultant presents such
expenses for payment.
4.
Health Insurance.
The
Consultant shall be eligible to receive health insurance and life insurance
benefits available through the Company, under to the same or similar plan
offered to the Company’s employees and/or other consultants. In addition to and
except for the matters governed by this Agreement, the Consultant shall be
entitled to: (i) benefits and perquisites, including but not limited to pension
plans, deferred compensation plans, stock options, annual bonus plans, long
term
incentive plans, group life insurance, disability, sickness and accident
insurance and health benefits under such plans and programs as maybe provided
by
the Company to other consultants of the Company from time to time; and (ii)
paid
vacation as well as holidays, leave of absence and leave for illness and
temporary disability in accordance with the policies of the
Company.
5.
Nonexclusive Undertakings.
The
Company expressly understands and agrees that Consultant shall not be prevented
or barred form rendering services of the same nature as or a similar nature
to
those described in this Agreement, or of any nature whatsoever, for or on behalf
of any person, firm, corporation, or entity other than the Company. Company
understands and accepts that Consultant is currently providing consulting
services to other private and public companies and will continue to do so during
the term of this Agreement. Company also understands and accepts that Consultant
will seek new clients to provide its consulting services to during the term
of
this Agreement.
6.
Disclaimer of Responsibility for Acts of the Company.
The
obligations of the Consultant described in this Agreement consists solely of
the
furnishing of information and advice to the Company. In no event shall
Consultant be required by this Agreement to act as the agent of the Company
or
otherwise to represent or make decisions for the Company. All final decisions
with respect to acts of the Company or its subsidiaries or affiliates. whether
or not made pursuant to or in reliance on information or advice furnished by
Consultant hereunder, shall be those of the Company or such subsidiary or
affiliates, and the Consultant shall under no circumstances be liable for any
expense incurred or loss suffered by the Company as a consequence of such
decision.
7.
Limitation of Services.
It is
understood between the parties that neither the Consultant nor any of its
partners or principals are providing legal service, accounting services,
underwriting services, securities placement services, nor sale of securities,
and such services must be retained by the Company at its own cost and expense.
It is expressly acknowledged that Consultant will utilize its best efforts
in
performing the services contemplated hereby but no representations are made
as
to the ultimate success of any transaction or other action undertaken by the
Company.
8.
Termination of Relationship.
This
Agreement shall, unless sooner terminated as provided herein below, continue
until for the duration of the Consulting Period as defined in paragraph 1 herein
above. Such term shall be renewed upon mutual agreement of the parties. This
Agreement shall terminate upon the happening of any one of the following
events:
A.
Either
Consultant or the Company may terminate this Agreement upon thirty (30) days
written notice to the other that a material breach by the other of the terms
or
covenants of this Agreement shall have occurred and such breach shall not have
been cured with in ten days after such notice.
B.
Consultant or Company shall have the right (but not the obligation) to terminate
this Agreement upon written notice to the Company if it reasonably determines
that the Company or any of its directors, officers or controlling shareholders
has engaged in any unlawful, wrongful or fraudulent act.
C.
Consultant shall have the right (but not the obligation) to terminate this
Agreement upon written notice to the Company if it shall determine that any
material facts concerning the Company represented to it during the course of
performing its services are misstated or untrue or that the Company has
intentionally failed to provide Consultant with material facts concerning the
Company.
9.
Miscellaneous.
A.
Notices.
Any
notice or other communication required or permitted by any provision of this
Agreement shall be in writing and shall be deemed to have been given or served
for all purposes if delivered personally or sent by registered or certified
mail, return receipt requested, postage prepaid, addressed to the parties as
follows:
To
Consultant: M.
Xxxxxxx Xxxx
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
To
the Company: Xxxxxxx
Drilling Corporation
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
B.
Entire Agreement.
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter of this Agreement and supersedes all prior discussions between
the parties. There are no terms, obligations, covenants, express or implied
warranties, representations, statements or conditions other than those set
forth
in this Agreement. No variations or modification of this Agreement or waiver
of
any of its terms or provisions shall be valid unless in writing and signed
by
both parties.
C.
Amendment.
This
Agreement shall not be modified or amended except by written agreement of the
parties hereto.
D.
Governing Law.
Each of
the provisions of this Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Texas, excluding its laws relating
to conflict of laws.
E.
Counterpart.
This
Agreement may be executed in any number of counterparts, all of which shall
be
considered one and the same agreement.
X.
Xxxxx; Partial Exercise.
No
failure or delay by any party in exercising any right, power or privilege under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
G.
Severability.
Should
any part of the Agreement for any reason be declared invalid or unenforceable,
such decision shall not affect the validity or enforceability of any remaining
portion, which remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid or unenforceable portion thereof
eliminated and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any reason,
be
hereafter declared invalid or unenforceable. Should any material term of this
Agreement be in conflict any laws or regulations, the parties shall in good
faith attempt to negotiate a lawful modification of this Agreement which will
preserve, to the greatest extent possible, the original expectation of the
parties.
11.
Indemnification and Hold Harmless.
In
connection with Consultant’s performing the services enumerated herein above,
Consultant and its partners and principals will to a great extent be relying
on
information provided the Company and its officers and directors. Although
Consultant will be reviewing all materials provided to it in connection with
performing its duties, Consultant will not be conducting an independent “due
diligence review”. Consequently, as a condition to Consultant’s performing the
task enumerated herein, the Company and its officers and directors and each
of
them hereby agree to indemnify and hold Consultant and its officers, directors,
partners and principals harmless against any losses, claims, damages,
liabilities and expenses, whether joint or several and to defend them against
any and all actions or causes of actions or threats of actions to which they
may
become subject and will reimburse them for any legal or other expenses including
attorney’s fees and disbursements reasonably incurred by them in connection with
investigation, preparing or defending any actions commenced or threatened or
claim whatsoever whether or not resulting in any liability insofar as such
are
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in any information provided to Consultant or (b) any omission
or
alleged omission of a material fact necessary to make any information provided
to us not misleading.
In
witness whereof,
the
undersigned parties hereto have executed this Agreement on the dates set forth
opposite their respective signatures.
Dated:
3/15/06 M.
Xxxxxxx Xxxx
By:
/s/M.
Xxxxxxx Xxxx
Dated:
3/15/06 Xxxxxxx
Drilling Corporation
By:
/s/W.
Xxxxx Xxxxxxxx
Secretary/Treasurer
