EXHIBIT 10.8
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement"), effective as of the 15th day
of January, 1997 (the "Effective Date"), is by and between APPLIED VOICE
RECOGNITION, INC., a Utah corporation with its principal offices in Houston,
Texas (the "Company"), and XXXXXXX AND COMPANY, a Texas corporation (the
"Consultant").
The parties agree as to the following:
1. Engagement. The Company agrees to engage the Consultant on a non-
exclusive basis and the Consultant accepts such engagement for the period
beginning on January 15, 1997 and ending on February 15, 1998, unless earlier
terminated in accordance with the terms of Section 5 (the "Consulting Period").
2. Consulting Services. During the Consulting Period, the services
rendered by the Consultant shall be performed exclusively by Xxxxxxxxx X.
Xxxxxxx, an employee of Consultant, or by another employee or associate of
Consultant, provided that such other employee or associate is under Xx.
Xxxxxxx'x supervision has been approved in advance by the Company. Such
services shall include, without limitation, review of strategic and operational
plans and participation in the planning process; review of financial budgets,
controls and reports; review of expansion plans; review of investment
opportunities (including, without limitation, mergers, acquisitions, expansions
or sale of majority or minority interests in the Company); participation in
communications with the Board of Directors of the Company; and assisting the
Chairman of the Board of Directors and the President of the Company as
requested. The services to be performed by the Consultant pursuant to this
Agreement shall be referred to herein as the "Services." Notwithstanding
anything in this Agreement to the contrary, during the term of this Agreement,
the Consultant shall not be prohibited from and shall be allowed to provide
services (including services identical to the Services) to persons or entities
other than the Company; provided, however, that the performance of such services
by the Consultant shall not prevent the Consultant from performing, or relieve
the Consultant of Consultant's obligation to perform, the Services pursuant to
this Agreement.
3. Time. During the Consulting Period, the Consultant's employee,
Xxxxxxxxx X. Xxxxxxx, shall render at least two (2) full eight (8) hour days per
calendar month for the period from the Effective Date through June 30, 1997, and
at least one (1) full eight (8) hour day per calendar month for the period from
July 1, 1997 through February 15, 1998 (including attendance at meetings of the
Board of Directors of the Company) of Services.
4. Consulting Fee. The Consultant will be paid a fee of SIX THOUSAND AND
NO/100 DOLLARS ($6,000.00) per month during the Consulting Period (the
"Consulting Fee"). The Consulting Fee shall be payable on the first day of each
month. In addition, Consultant will be reimbursed by the Company for reasonable
business expenses incurred by the Consultant, which shall
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be pre-approved and supported by such documentation as shall be reasonably
requested by the Company and paid promptly upon the Company's receipt of such
documentation.
5. Termination. Consultant's engagement and this Agreement shall
terminate upon the earliest to occur of any of the following events (the actual
date of such termination being referred to herein as the "Termination Date"):
(a) The death of the Consultant;
(b) The written agreement of the Consultant and the Company;
(c) At the Company's option, immediately in the event of the violation
of any provisions of this Agreement by the Consultant or if the Consultant fails
to perform the Services requested of the Consultant pursuant to this Agreement
and such failure continues for a period of ten (10) days following written
notice from the Company to the Consultant; or
(d) At either party's option and in such party's sole discretion, upon
thirty (30) days' prior written notice to the other party.
6. Confidential Information. During the term of this Agreement, the
Consultant may have access to confidential information of the Company including,
but not limited to, financial information, personnel information, lists of
financial information, personnel information lists of customers and suppliers
and other trade secrets. To insure the continued secrecy of this confidential
information, the Consultant agrees that Consultant will not, and Consultant
agrees to ensure that Consultant's employees will not, at any time while engaged
as a Consultant pursuant to this Agreement at any time or thereafter divulge
such confidential information to any party not associated with the Company. The
Consultant shall not take from the premises of the Company, or otherwise retain,
and shall surrender to the Company, any such confidential information and any
records, files or other documents, or copies thereof, relating to the business
or affairs of the Company.
7. Dispute Resolution. The parties agree that all disputes or questions
arising in connection with this Agreement and/or the termination of Employee's
employment hereunder shall be settled by a single arbitrator pursuant to the
rules of the American Arbitration Association in the City of Houston, Texas, and
the award of the arbitrators shall be final, non-appealable, conclusive and
enforceable in a court of competent jurisdiction.
8. General.
(a) Assignment. This Agreement and the rights and obligations of the
Consultant hereunder shall not be transferable or assignable by the Consultant
without the prior written consent of the Company.
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(b) Notices. Any notice, demand or request which may be permitted,
required or desired to be given in connection therewith shall be given in
writing and directed to the Company and the Consultant as follows:
If to the Company: Applied Voice Recognition, Inc.
0000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
With Copy to: Xxxxx, Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Consultant: Xxxxxxx and Company
00000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Notices shall be deemed properly delivered and received when and if either: (i)
personally delivered; (ii) delivered by nationally-recognized overnight courier;
(iii) when deposited in the U.S. Mail, by registered or certified mail, return
receipt requested, postage prepaid or (iv) sent via facsimile transmission with
confirmation mailed by regular U.S. mail. Any party may change its notice
address for purposes hereof to any address within the continental United States
by giving written notice of such change to the other parties hereto at least
fifteen (15) days prior to the intended effective date of such change.
(c) Entire Agreement; Amendments and Waivers; Successors and Assigns.
This Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties, and there are no warranties, representations or other agreements
between the parties in connection with the subject matter hereof except as set
forth specifically herein or contemplated hereby. No supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. The failure of a party to exercise any right or
remedy shall not be deemed or constitute a waiver of such right or remedy in the
future. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (regardless of whether
similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly provided. This Agreement is intended to bind and inure to
the benefit of and be enforceable by the Consultant, the Company and
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their respective successors and permitted assigns, provided that in no event
shall Consultant's obligation to perform future services for the Company be
delegated or transferred by the Consultant.
(d) Severability. If any provision of the Agreement is rendered or
declared invalid, illegal or unenforceable by reason of any existing or
subsequently enacted legislation or by decree of a court of last resort, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed or
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
(e) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument
(f) Governing Law. The provisions of this Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of Texas
(excluding any conflicts-of-law rule or principle that might refer same to the
laws of another jurisdiction).
(g) Independent Contractor. The Consultant is an independent
contractor with the responsibility for, and control over, the details and means
of performing the Services. Nothing contained in this Agreement shall be
construed as constituting the Consultant as agent, representative or employee of
the Company and the Consultant shall not represent to the contrary to any
person. The Consultant shall not be entitled to any benefits afforded to
employees of the Company, except as otherwise specifically contemplated herein.
(h) Defined Terms. Each of the following terms is defined in the part
or Section of this Agreement set forth opposite such term:
Term Section
------------------- --------
Agreement Preamble
Company Preamble
Consultant Preamble
Consulting Fee 4
Consulting Period 1
Effective Date Preamble
Services 2
Termination Date 5
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the Effective Date.
COMPANY:
APPLIED VOICE RECOGNITION, INC., a Utah
corporation
By: /S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, President
CONSULTANT:
HUNTER AND COMPANY, a Texas corporation
By: /S/ XXXXXXXXX X. XXXXXXX
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Xxxxxxxxx X. Xxxxxxx, President
Signature Page to
Consulting Agreement
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