CONSULTING AGREEMENT
Exhibit
10.11
CONSULTING
AGREEMENT,
dated the 31st
day of March, 2006, by and between Accountabilities, Inc., a
Delaware corporation having executive offices at 000 Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 (the “Company”), and Xxxxx
Xxxxxxxxxx (the “Consultant”) residing at 00000 Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000.
W
I T N E S S E T H :
WHEREAS,
the
Consultant has used his considerable knowledge of and experience providing
consulting services regarding the identification, evaluation, structuring,
negotiating and closing of the US Temp Services, Inc. acquisition and has
provided invaluable assistance and advice with respect to, specifically, the
acquisition of certain branches of US Temp Services, Inc., located in
Burbank, California, Montebello, California, Stockton, California, Colorado
Springs, Colorado and Las Vegas, Nevada (the “Business”);
and
WHEREAS,
the Company
obtained the benefit of Consultant’s special knowledge and experience regarding
the US Temp Services, Inc. acquisition; and
WHEREAS,
the Company
desires to compensate Consultant for his services;
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and agreements herein
contained the Company and the Consultant hereby agree as follows:
1. Term. The
Company hereby engages Consultant to render the consulting services as
hereinafter set forth, and Consultant hereby agrees to render such services
for
a period of three years commencing on the date hereof and terminating on March
31, 2009 (the “Term”).
2. Consulting
Services. The Company hereby retains the Consultant, and the
Consultant agrees to render consulting and advisory services to the Company
during the Term hereof in connection with the Business, from time to time,
and
as the Chief Executive Officer of the Company may reasonably request. Consultant
shall not be required to expend any minimum number of hours hereunder and the
rendering of all consulting services shall be subject in priority to
Consultant's own business interests.
3. Consulting
Fees. In consideration for (i) the availability of
Consultant to render the services, (ii) the services to be rendered by
Consultant during the Term, and (iii) the other provisions of this Agreement,
the Company shall pay compensation to the Consultant as
follows:
1
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3.1
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Sixty
Thousand Dollars ($60,000) payable in weekly installments for the
first
year of service under this
Agreement;
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3.2
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Sixty
Thousand Dollars ($60,000) payable in
weekly installments for the second year of service
under this Agreement;
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3.3
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Thirty
Thousand Dollars ($30,000) payable in
weekly installments for the third year of service;
and
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3.4
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Eighty
Thousand (80,000) shares of Accountabilities restricted Common Stock,
post
5-for-1 reverse stock split, issued in the name of Xxxxx Xxxxxxxxxx,
within ninety (90) days of the Closing Date of the Asset Purchase
Agreement.
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4. Expenses.
The fee due hereunder shall include all expenses of the Consultant.
5. Health
Insurance. Company will provide individual health insurance
coverage for Consultant for the Term of this Agreement.
6. Confidentiality,
Non-Compete, Non-Solicitation
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6.1
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Any
commercial information, technical information, trade secrets, inventions,
formulas, software, databases, operations, customers, business methods
or
practices (“Confidential Information”) of the Company which is acquired,
including without limitation in writing, orally or by electronic
means, by
the Consultant from the Company (or vice versa), during the term
of this
Agreement shall be kept confidential, and shall not be disclosed
to any
third party.
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6.2
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Each
party shall return to the other the Confidential Information obtained
from
the other upon the termination of this Agreement, and shall not utilize
this Confidential Information for any
purpose.
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6.3
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Confidential
Information does not include any information that at the time of
disclosure to the receiving party (a) is generally available to and
known
by the public (other than as a result of a disclosure by the receiving
party or any of its representatives), or (b) was available to the
receiving party on a non-confidential basis from a source that is
not and
was not prohibited from disclosing such information to the receiving
party
by a contractual, legal or fiduciary
obligation.
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6.4
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If
the Consultant is required by deposition, interrogatory, request
for
documents, subpoena, civil investigative demand or similar process
to
disclose any of the Confidential Information, the disclosing party
shall
provide the non-disclosing party with written notice of such requirement
no less than ten (10) business days prior to disclosing any Confidential
Information.
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2
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6.5
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During
the Term of this Agreement and for three (3) years after its expiration
(“Restricted Period”) the Consultant will not, directly or indirectly,
individually or as part of or on behalf of any other person, company,
employer or other entity hire or attempt to solicit for hire or encourage
to end his or her relationship with the Company, any person who has
been
employed by the Company at any time within the twelve (12) months
prior to
such action (“Covered Employee”), any customer or former customer that was
directly serviced or contacted by the Consultant (the “Covered
Customers”). If during the Restricted Period any Covered
Employee accepts employment with the Consultant or Covered Customer
utilizes and business entity owned by, represented by or for which
the
Consultant is an agent, it will be presumed that the Covered Employee
was
hired or the Covered Customer was solicited in violation of this
provision
(“Presumption”). This Presumption may only be overcome by a
showing by a preponderance of the evidence that the Consultant was
not
directly or indirectly involved in hiring, soliciting or encouraging
the
Covered Employee to leave employment or Covered Customer to terminate
business with the Company.
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6.6
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During
the Term of this Agreement and the Restricted Period, the Consultant
agrees to not contact, by a principal, or any agent, any distributor
of
the Company, without the written consent of the Company Any
contact by the Consultant during the Restricted Period will allow
the
Company to seek immediate injunctive relief, and the Company may
be
granted a Temporary Restraining Order or Permanent Injunctive Relief
by
the Court and the Consultant shall be liable for any damages, including
reasonable attorney’s fees.
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7.
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Miscellaneous
Provisions.
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7.1
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Severability. In
the event that any provision of this Agreement is found to be illegal
or
unenforceable by any court or tribunal of competent jurisdiction,
then to
the extent that such provision may be made enforceable by amendment
to or
modification thereof, the parties agree to make such amendment or
modification so that the same shall be made valid and enforceable
to the
fullest extent permissible under existing law and public policies
in the
jurisdiction where enforcement is sought, and in the event that the
parties cannot so agree, such provision shall be modified by such
court or
tribunal to conform, to the fullest extent permissible under applicable
law, to the intent of the Parties in a valid and enforceable manner,
if
possible and if not possible, then be stricken entirely from the
Agreement
by such court or tribunal and the remainder of this Agreement shall
remain
binding on the parties hereto.
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7.2
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Amendment. No
amendment or modification of the terms or conditions of this Agreement
shall be valid unless in writing and signed by all parties to be
bound
thereby.
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3
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7.3
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Governing
Law. This Agreement shall be interpreted,
construed, governed and enforced according to the internal laws of
the
State of New York without regard to conflict or choice of law principles
of New York or any other jurisdiction. This Agreement shall be
executed in New York and is intended to be performed in New
York. In the event of litigation arising out of this Agreement,
the parties hereto consent to the personal jurisdiction of the State
of
New York, County of New York.
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7.4
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No
Waiver. If any party to this Agreement fails to,
or elects not to enforce any right or remedy to which it may be entitled
hereunder or by law, such right or remedy shall not be waived, nor
shall
such non-action be construed to confer a waiver as to any continued
or
future acts, nor shall any other right or remedy be waived as a result
thereof. No right under this Agreement shall be waived except
as evidenced by a written document signed by the party waiving such
right,
and any such waiver shall apply only to the act or acts expressly
waived
in said document.
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7.5
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Counterparts. This
Agreement may be executed in any number of counterparts, and each
such
counterpart will, for all purposes, be deemed an original instrument,
but
all such counterparts together will constitute but one and the same
Agreement.
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7.6
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Binding
Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and upon their
respective heirs, successors, assigns and legal
representatives.
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7.7
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Counsel. Each
of the parties hereto represents that it, she or he has consulted
legal
counsel in connection with this Agreement, or has been given full
opportunity to review this Agreement with counsel of his, her or
its
choice prior to execution thereof. The parties hereto waive all
claims that they were not adequately represented in connection with
the
negotiation, drafting and execution of this Agreement. Each
party further agrees to bear its own costs and expenses, including
attorneys’ fees, in connection with this Agreement. If any
party initiates any legal action arising out of or in connection
with
enforcement of this Agreement, the prevailing party in such legal
action
shall be entitled to recover from the other party all reasonable
attorneys’ fees, expert witness fees and expenses incurred by the
prevailing party in connection
therewith.
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7.8
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Notices. All
notices and demands permitted, required or provided for by this Agreement
shall be made in writing, and shall be deemed adequately delivered
if
delivered by hand or by mailing the same via the United States Mail,
prepaid certified or registered mail, return receipt requested, or
by
priority overnight courier for next business day delivery by a nationally
recognized overnight courier service that regularly maintains records
of
its pick-ups and deliveries and has daily deliveries to the area
to which
the
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4
notice
is
sent, addressed to the parties at their respective addresses as shown
below:
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Name
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Address
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To
the Company:
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Accountabilities,
Inc.
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000
Xxxxx Xxxx
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Xxxxx
000
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Xxxxxxxxx,
XX 00000
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Facsimile: (000)
000-0000
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With
a Copy To:
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Xxxxxxx
Xxxxx, P.C.
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0
Xxxx Xxxxx
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Xxxx
Xxxxx, Xxx Xxxx 00000
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Facsimile: (000)
000-0000
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To
Consultant:
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Xx.
Xxxxx Xxxxxxxxxx
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00000
Xxxxx
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Xxxxxx,
XX 00000
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Notices
delivered personally shall be deemed communicated as of the date of actual
receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and notices
sent by overnight courier shall be deemed communicated as of the date one (1)
business day after sending.
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7.9
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Entire
Agreement. This Agreement and the Ancillary Agreements set forth the
entire agreement and understanding of the parties hereto in respect
of the
subject matter contained herein, and supersedes all prior agreements,
promises, understandings, letters of intent, covenants, arrangements,
communications, representations or warranties, whether oral or written,
by
any party hereto or by any related or unrelated third
party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be
delivered
pursuant to the terms hereof are hereby expressly made a part of
this
Agreement, and all references herein to the terms “this Agreement”,
“hereunder”, “herein”, “hereby” or “hereto” shall be deemed to refer to
this Agreement and to all such
writings.
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5
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the date
first above written.
| CONSULTANT: | ACCOUNTABILITIES, INC. | |||
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/s/
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/s/
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Name:
Xxxxx
Xxxxxxxxxx
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Name:
Xxxxx
Xxxxxxx
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Title
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Title:
President
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