CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered
into as of January 1, 1999, by and between Vanguard Airlines,
Inc., a Delaware corporation (the "Company"), and Xxxx X. XxXxxxxx
(the "Consultant").
WHEREAS, the Company desires to retain the Consultant
from time to time to provide the Company with the Consultant's
expertise, and the Consultant desires to render such services to
the Company, all upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, the parties hereto agree as
follows:
1. RETAINER OF CONSULTANT. The Company may retain the
Consultant from time to time to render services to the Company as
requested by the Company, and the Consultant agrees that each such
retainer shall be subject to the terms and conditions of this
Agreement.
2. DUTIES OF CONSULTANT. The Consultant's duties under
this Agreement shall be as agreed upon from time to time by the
Consultant and the Company.
3. TERM. The term of this Agreement shall be for a
period of two years commencing on the date hereof, subject to the
provisions of Section 10 of this Agreement.
4. COMPENSATION.
a. QUARTERLY BILLING RATE. The Company shall pay the
Consultant based on a quarterly billing rate, payable
quarterly in cash or, at the election of the Consultant,
in options to purchase shares of common stock of the
Company (each, an "Option") with a substantially
equivalent value (as reasonably determined by the Board
of Directors of the Company), within 15 days after the
end of each calendar quarter. The quarterly billing rate
shall initially be at the agreed upon rate, and will
remain at that amount until agreed otherwise in writing.
Each Option granted under this Agreement shall be granted
in an amount and at an exercise price as shall be
determined by the Company. Furthermore, each such Option
shall be subject to the terms and conditions of a
Nonstatutory Stock Option Agreement in the form of
Exhibit A attached hereto.
b. EXPENSES. The Company will reimburse the Consultant for
reasonable outofpocket expenses incurred in connection
with services rendered to the Company pursuant to this
Agreement, including but not limited to any travel,
lodging, meals, gratuities, transportation, courier
service, photocopying, telecopying, telephone and similar
expenses.
c. INVOICES; PAYMENT. The Consultant shall furnish the
Company with a detailed invoice (including an itemization
of expenses incurred) in a form acceptable to the Company
at the end of each month during which the Consultant
performs services for the Company pursuant to this
Agreement or upon the termination of this Agreement. The
Company shall pay the amount owed within 30 days after
its receipt of the invoice.
5. INDEPENDENT CONTRACTOR. The parties intend that the
Consultant shall be an independent contractor, and not an employee
of the Company and, as a result, the Consultant is not eligible for
any of the benefits normally provided to employees of the Company.
The Consultant acknowledges that the Company has no control over or
with respect to the performance of the Consultant's duties under
this Agreement.
6. COMPANY PROPERTY. The Consultant (a) agrees that
all memoranda, notes, research, strategic plans, records, drawings,
artwork, or other creative material or documentation, whether made
or compiled by the Consultant alone or with others, or made
available to the Consultant, while working with the Company, shall
be and remain the property of the Company, (b) hereby grants and
assigns to the Company all right, title and interest in any and all
of the foregoing, and all goodwill of the Company's business with
respect thereto, to the Company, and (c) agrees to execute and
promptly deliver to the Company such written instruments or
documents, and to do such other acts, as the Company may request to
patent, copyright or otherwise protect any and all of the foregoing
and to vest all rights, title and interest therein in the Company.
All such items shall be considered work made for hire and prepared
by the Consultant within the scope of the Consultant's duties for
the Company.
7. CONFIDENTIAL INFORMATION. During the term of this
Agreement and thereafter, the Consultant agrees to maintain in
strictest confidence, and shall not, without the prior written
consent of the Company, directly or indirectly use, disclose or
disseminate to any other person, firm, organization or employee, or
otherwise employ, any trade secrets, confidential information or
confidential customer information made or compiled by the
Consultant, or made available to the Consultant, while working for
the Company. This obligation shall not apply to any trade secret
or confidential information (i) that shall have become generally
known to competitors of the Company (in the case of trade secrets)
or to the public (in the case of confidential information) through
no act or omission of the Consultant, or (ii) that shall have been
disclosed to the Consultant by a person or entity unaffiliated with
the Company that has legitimate possession thereof in its entirety,
and possesses the unrestricted right to make such disclosure. The
Consultant acknowledges that the Company may be bound by contract
with the Company's customers not to disclose any confidential
customer information.
8. RETURN OF MATERIAL TO COMPANY. The Consultant will
deliver to the Company, upon termination of this Agreement, and at
any other time upon the Company's request, all memoranda, notes,
research, strategic plans, records, drawings, artwork or other
creative material or documentation, whether made or compiled by the
Consultant alone or with others or made available to the Consultant
while working with the Company, pertaining to confidential customer
information, trade secrets, confidential information or other
inventions and works of the Company, and all confidential customer
information, trade secrets, confidential information and other
inventions and works of the Company in the Consultant's possession.
9. INJUNCTIVE RELIEF. The parties recognize that
irreparable damage will result to the Company from any violation of
this Agreement by the Consultant. The parties expressly agree
that, in addition to any and all other remedies available to the
Company for any such violation, the Company shall have the remedies
of restraining order and injunction, and any such other equitable
relief as may be declared or issued by a court to enforce the
provisions of Sections 6 through 8 above, without posting any bond
that might otherwise be required.
10. TERMINATION. In addition to termination upon the
expiration of the term of this Agreement pursuant to Section 3
hereof, the parties agree that either party can terminate this
Agreement at any time by giving 30 days' written notice of such
termination. The respective rights and obligations of the Company
and the Consultant pursuant to Sections 5 through 11 hereof shall
survive any termination of this Agreement. The Company shall also
be obligated to pay the Consultant pursuant to Section 4 hereof for
services rendered and expenses incurred prior to the effective date
of termination.
11. MISCELLANEOUS PROVISIONS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. This Agreement
shall be governed by the laws of the State of Missouri. This
Agreement represents the entire agreement of the parties hereto and
supersedes all prior agreements, negotiations, discussions and
preliminary agreements. This Agreement shall not be amended except
by written agreement signed by all of the parties hereto. In the
event one or more of the provisions contained in this Agreement or
any application thereof shall be deemed invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement or any
other application thereof shall not in any way be affected or
impaired thereby. The application of any provision of this
Agreement may be waived by the person or persons entitled to the
benefit thereof, provided, that no delay or failure on the part of
any person in exercising any right hereunder, and any partial or
single exercise thereof, shall constitute a waiver of any other
rights hereunder. Paragraph headings herein have no legal
significance. This Agreement shall not be assignable by either
party without the prior written consent of the other party, except
for an assignment by the Company to any entity to which the Company
may transfer substantially all of its assets.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
VANGUARD AIRLINES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP and General Counsel
/s/ Xxxx X. XxXxxxxx
Xxxx X. XxXxxxxx
Address: 000 XX Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
