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EXHIBIT 10.4
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 1st day
of March, 1996 between AVIATION GROUP, INC., a Texas corporation
("Corporation"), and XXXXXXX X. XXXX ("Consultant"), but effective for all
purposes as of the expiration or termination of the existing Consulting
Agreement between Consultant and Pride Aviation, Inc., which Consultant agrees
shall not be renewed.
RECITALS
A. Corporation desires to engage Consultant to provide certain
financial and business consulting services to Corporation with respect to
Corporation's businesses, and Consultant desires to accept such engagement, all
upon the terms and conditions hereinafter set forth.
B. This Agreement shall govern the consulting relationship
between the parties from the date hereof and it supersedes all previous
agreements between them, either written or oral, heretofore made.
NOW THEREFORE, in consideration of the covenants herein contained, the
parties hereto hereby agree as follows:
1. Recitals. The above recitals are true and correct.
2. Consulting Agreement. Corporation hereby engages the services
of Consultant to provide to Corporation and its subsidiaries the financial and
business consulting services hereinafter specified. Consultant hereby accepts
such engagement and agrees to provide the financial and business consulting
services hereinafter specified. Consultant is an independent contractor and
shall not be deemed or construed to be an employee or agent of Corporation or
any of its subsidiaries for any purposes whatsoever.
3. Services to be Provided by Consultant. Consultant shall make
himself available to Corporation and its subsidiaries, in person or by
telephone, from time to time, for the purpose of reviewing materials furnished
to Consultant with respect to the business and financial affairs of Corporation
and its subsidiaries, and of conferring or consulting with, and otherwise
advising, Corporation, its subsidiaries and their respective officers and
directors with respect to the management, development and expansion of the
businesses of Corporation and its subsidiaries and with respect to the
availability, terms and sources of financing for Corporation and its
subsidiaries from sources in the United States of America and, in particular,
the State of Louisiana. Consultant
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shall also confer with and assist Corporation and its subsidiaries in their
relationships with the Louisiana Economic Development Corporation, local and
state governmental agencies in the State of Louisiana, officials of Iberia
Parish, Louisiana and the Iberia Parish Airport Authority and other Louisiana
organizations, agencies and firms. Corporation may require Consultant to
travel in connection with his rendering of the foregoing services. Corporation
agrees to provide Consultant with any and all information which he may
reasonably request to enable him to carry out his obligations hereunder.
Consultant shall provide such services at such times as Corporation may
reasonably request or at such other times as may be mutually agreed upon by
Consultant and Corporation. Consultant shall devote such energy, skill, and
working time as may be necessary for the faithful and diligent performance of
the foregoing services, but in no event will such time be more than twenty
hours per week unless agreed to by Consultant.
4. Term. The term of this Agreement shall commence on the
effective date hereof and unless sooner terminated hereunder shall continue for
twenty-four (24) months thereafter.
5. Compensation. For all services rendered by Consultant to
Corporation hereunder, Consultant shall receive a fee of $6,000.00 per month
for the first twelve (12) months of the term hereof and $3,000.00 per month for
the second twelve (12) months of the term hereof.
6. Expenses. Corporation shall reimburse Consultant (upon the
submission by Consultant of reasonably itemized accounts thereof) for such
out-of-pocket costs and expenses as Consultant may reasonably incur in
connection with Consultant's performance of his services hereunder.
7. Confidential Data. Consultant recognizes and acknowledges that
the list of Corporation's customers, as it may exist from time to time, its
financial data, computer programs and future plans of Corporation are valuable,
special and unique assets of Corporation. At no time will Consultant disclose
any such list or information, or any part thereof to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever.
In the event of a breach or threatened breach by Consultant of the provisions
of this paragraph, Corporation shall be entitled to an injunction restraining
Consultant from disclosing in whole or in part, such list or information, or
from rendering any services to any person, firm, corporation, association or
other entity to whom such list or information, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein shall be construed
as prohibiting Corporation from pursuing any other remedies available to them
for such breach or threatened breach, including recovery of damages from
Consultant.
8. Termination.
(a) Consultant may elect to terminate this Agreement at
any time upon thirty (30) days prior written notice to Corporation.
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(b) The Agreement shall terminate upon the happening of
any of the following events:
(1) the death of Consultant;
(2) the dissolution of Corporation; or
(3) at any time by written agreement of the
parties.
(c) Corporation may elect to terminate this Agreement
upon thirty (30) days prior written notice to Consultant if:
(1) Consultant is grossly negligent in the
conduct of his services hereunder or wilfully derelict in his duties hereunder;
(2) Consultant commits any fraud or material
misrepresentation in connection with his services hereunder;
(3) Consultant violates any covenant in this
Agreement and does not cure such violation within ten (10) days after notice to
Consultant thereof; and
(4) Consultant or any of his affiliates files,
makes or commences any action, suit or claim against Corporation or any of its
subsidiaries or affiliates or any of their respective assets.
9. Payment of Compensation in Event of Termination.
Notwithstanding anything contained herein to the contrary, in the event
Consultant is terminated pursuant to paragraph 8 hereof, Corporation shall pay
Consultant all accrued but unpaid compensation but shall have no further
obligation to pay compensation hereunder.
10. Notices. All notices required to be given under this
Agreement shall be in writing, sent certified mail, return receipt requested,
postage prepaid, to the following addresses:
IF TO CONSULTANT: IF TO CORPORATION:
Xxxxxxx X. Xxxx Aviation Group, Inc.
461 Xxxxxx 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
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12. Waiver. The waiver by either party hereto of any breach of
any provision of this Agreement shall not operate or be construed as a waiver
of any other or subsequent breach by either party hereto.
13. Binding Effect and Assignment. This Agreement shall be binding
upon the parties hereto, their heirs, personal representatives and successors
and assigns. This Agreement is personal as to Consultant and may not be
assigned by Consultant without first obtaining the written consent of
Corporation. No duties of Consultant may be performed for him by any other
party.
14. Entire Agreement. This Agreement contains the entire
understanding of the parties relating to the engagement of Consultant by
Corporation. It may not be changed orally but only by an agreement in writing
signed by the parties against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of the
Agreement.
16. Waiver, etc. The failure of either of the parties hereto at
any time to enforce any of the provisions of this Agreement shall not be deemed
or construed to be a waiver of any such provision, nor in any way affect the
validity of this Agreement or any provision hereof or the right of either of
the parties hereto thereafter to enforce each and every provision of this
Agreement. No waiver of any breach of any of the provisions of this Agreement
shall be effective unless set forth in a written instrument executed by the
party against whom or which enforcement of such waiver is sought; and no waiver
of any such breach shall be construed or deemed to be a waiver of any other or
subsequent breach.
17. Relationship. It is the intent of the parties hereto that
Consultant shall be an independent contractor as to Corporation and its
subsidiaries and shall not be deemed or construed to be an agent, partner or
joint venturer of or with Corporation or any of its subsidiaries by reason of
this Agreement. Consultant shall serve solely as a consultant, adviser and
source of information and shall take no action on behalf of, or bind, either
Corporation or any of its subsidiaries with respect to any third parties by
virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
CORPORATION:
WITNESSES: AVIATION GROUP, INC.,
a Texas corporation
/s/ [ILLEGIBLE] By: /s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
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Title: Chairman & C.E.O.
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CONSULTANT:
/s/ [ILLEGIBLE] /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
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