CONSULTING AGREEMENT
Exhibit 10.40
This AMENDMENT TO CONSULTING AGREEMENT (“Amendment”), dated as of July 12, 2010
between EPE Holding Corporation, a Delaware corporation (the “Company”), Xxxxxxxxx Xxxxxxx,
an individual (“Consultant”) and Xxxxx Xxxxxxx Enterprises, Inc., a Tennessee corporation
(“EPE”).
WITNESSETH:
WHEREAS, the Company, Consultant and EPE are parties to that certain Consulting Agreement
dated as of February 7, 2005 (the “Agreement”); and
WHEREAS, the Company, Consultant and EPE have each determined that it is in their interest to
enter into this Amendment to the Agreement; and
NOW, THEREFORE, in consideration of the mutual promises, representations and warranties set
forth herein, and for other good and valuable consideration, it is hereby agreed as follows:
1. Bonus. Simultaneous with the execution hereof, the Company will pay to Consultant
a bonus in the amount of TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000).
2. Compensation. Effective as of the date of this Amendment, in the first sentence of
Section 5 of the Agreement, the words “FIVE HUNDRED SIXTY THOUSAND DOLLARS ($560,000)” shall be
deleted and replaced with the words “EIGHT HUNDRED THOUSAND DOLLARS ($800,000).”
3. Complete Understanding. The Agreement and this Amendment constitutes the complete
understanding between the parties with respect to the subject matter hereof.
4. Governing Law. This Amendment shall be construed in accordance with and governed
by the laws of the State of New York, without regard to the conflicts of laws rules thereof. The
parties hereby irrevocably consent to the exclusive jurisdiction and venue of the courts situated
in the state and county of New York (federal and state).
5. Counterparts. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Amendment shall become effective when each party hereto shall have
received counterparts hereof signed by the other party hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first written
above.
| EPE HOLDING CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: Senior Vice President | ||||||
| /s/ Xxxxxxxxx Xxxxxxx | ||||||
| Xxxxxxxxx Xxxxxxx | ||||||
With respect to Section 2 of this
Amendment only:
Amendment only:
| XXXXX XXXXXXX ENTERPRISES, INC. | ||||
By:
|
/s/ Xxxxx Xxxxxxx Enterprises, Inc.
|
|||
| Title: Senior Vice President | ||||
[Signature Page to Amendment to PP Consulting Agreement]
