Exhibit 10.11
CONSULTING AGREEMENT
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This consulting agreement is made on June 7, 1999 between Stilden Co. Inc.
(SCI), a Texas corporation, and The XxxXxx.xxx (TBH) a Florida Corporation.
Stilden Co. Inc. desires to be a consultant to The XxxXxx.xxx and The XxxXxx.xxx
desires to have Stilden Co. Inc. consult with them.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
Term
The term of this agreement shall be for a period of three years commencing May
1, 1999 and ending on March 31, 2002. The contract will automatically be renewed
in one-year increments unless either party terminates via giving written notice,
by January 31st each year starting with January 31, 2002.
ARTICLE II
Services
SCI shall perform all duties as may from time to time be assigned by the Board
of Directors. SCI shall devote adequate business time to the duties hereunder
and shall, to the best of their ability, perform such duties in a manner, which
will faithfully and diligently further the business and interests of the
Company.
ARTICLE III
Fees
SCI shall receive a $40,000 monthly base fee, and a $1,500 monthly car
allowance. The company will provide the lead consultant as designated by SCI,
with paid health, dental, vision and life insurance during the term of this
agreement. SCI will be eligible for the formula bonus plan as approved the Board
of Directors, in which SCI will have the opportunity to earn 100% of their base
compensation in bonus. SCI will also be eligible for discretionary bonus as
dictated and approved by the Board of Directors.
Stock Options
SCI shall be granted stock options at the discretion of the composition
committee and/or the Board of Directors at their discretion. The number of
stock options granted annually shall equal or be greater than any grants to any
other employee, officer or director on an annual basis. All stock options shall
be immediately vested except as specifically agreed to by the Board of Directors
and SCI.
ARTICLE IV
Non-Disclosure and Secrecy
SCI agrees that, during the term of this Agreement, and at all times thereafter,
they will keep all TBH information in strictest confidence and will not himself
either directly or indirectly use or allow to be used for its benefit, or the
benefit of others, disseminate or disclose any Confidential Information or Trade
Secrets (as such terms are defined below) used and/or obtained in providing the
Services hereunder, except to parties to this Agreement, regardless of whether
the Confidential information of Trade Secrets have been conceived or developed,
in whole or in part by SCI. SCI acknowledges and agrees that the terms
"Confidential Information" and "Trade Secrets" as used in this Agreement include
without limitation, the whole or any portion or phase of any design, process,
service, procedure, formula, improvement, customer list, information with
respect to customer requirements and practices, marketing research and
developments information, statistical data, sources, of merchandise, technical
information, computer models, and all other information concerning the industry
and business in which the TBH concept operates and which is of value in the
operation of TBH business, or is otherwise understood to be, of a confidential
character and which has not been published or otherwise understood to be, or a
confidential character and which has not been published or otherwise become a
matter of general public knowledge. SCI agrees that all Trade Secrets and
Confidential Information are and shall be the property of TBH regardless of
whether conceived or developed by SCI pursuant to the Services.
SCI acknowledges and agrees that any and all Trade Secrets, Confidential
Information, computer programs, documentation and other copyrightable or
trademark materials that SCI is required to prepare or work on as part of SCI'S
duties hereunder shall be the property of TBH and to that end, SCI hereby
irrevocably assigns, transfers, sets over and conveys to TBH all of SCI's
rights, title and interest in and to all such information, including, without
limitation, SCI'S copyrights or rights of
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trademark. SCI's irrevocable assignment hereunder shall be deemed to have been
coupled with an interest.
Upon termination or earlier expiration of this Agreement SCI shall surrender to
TBH, at any time of such expiration or termination of this Agreement or upon
demand by TBH at any time all material of a confidential and secret nature,
including without limitation, the Confidential Information and Trade Secrets,
and any other documents of a proprietary nature as may then be in SCI (a)
possession or control.
ARTICLE V
Acceleration
In the event that the number of members of the Board of Directors of the Company
equal to the majority of the Board as of the Effective Date hereof are replaced
by other members or if the Company is a party to a merger or sale. SCI shall
have the right to accelerate payment of all fees due over the full term of the
contract by giving 30 days written notice to the Company.
ARTICLE VI
Miscellaneous
1. Injunctive Relief SCI acknowledges and agrees that any breach of
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obligations to be performed by and pursuant to Article IV is likely to result in
irreparable harm to TBH and SCI therefore consents and agrees that if it
violates any such obligations, TBH shall be entitled, among and in addition to
any other rights and remedies available under this Agreement or otherwise, to
temporary and permanent injunctive relief to prevent SCI from committing or
continuing a breach of such obligations.
2. Entire Agreement This agreement constitutes the whole Agreement between
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the parties hereto and there are no other terms other than those contained
herein. This Agreement supersedes my prior contract or understanding related to
retaining SCI.
3. Amendment No variation of this Agreement shall be deemed valid unless in
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writing and signed by the parties hereto.
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4. Governing Law This agreement shall be construed and enforced in
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accordance with the laws of Texas.
5. Severability Each provision of this Agreement is intended to be severable
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from the other so that if any provision or term hereof is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not effect the
validity of the remaining provisions and terms hereof.
6. Indemnity and Hold Harmless TBH agrees to indemnify and does not hold
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harmless SCI from and against any and all liabilities, claims, demands, damages,
costs and expenses (including attorney's fees) resulting from, arising our of,
or occasioned by any TBH business related activity or the duties provided by SCI
hereunder.
7. Assignment This Agreement may not be assigned by SCI to any other person
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or party without TBH prior written consent which may be withheld in TBH's sole
discretion. Notwithstanding the forgoing, TBH may assign this Agreement to any
successor corporation or an affiliated company or subsidiary. In the case of
assignment by TBH, Assignee shall assume, in writing all TBH obligations.
8. Representation and Warranty Each Consultant hereby agrees that any
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documents produced with respect to the Services and/or the Concept shall be
marked "Confidential" and "Property of The Big Xxxxx.Xxx" whether these
documents are produced by SCI or by a vendor chosen by SCI.
9. Captions Captions used in this Agreement are used for convenience only
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and are not intended to, nor are they to be construed to, have any substantive
meaning or control in the construction of the Agreement.
10. Notices Any Notice given by one party to any other party hereunder shall
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be delivered to the party at the address indicated below that party's signature
to this Agreement. Such notice shall be given to U.S. Mail, certified, and shall
be deemed delivered on the date of actual receipt or the date of first refusal
to accept delivery.
11. Representation by Counsel Each party agrees and acknowledges that it has
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had the opportunity to consult with independent legal, tax and financial counsel
of each party's choice in order to be advised with respect to the effect of the
Agreement.
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12. Construction Any issues with respect to construction or interpretation of
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this Agreement are to be resolved without resort to the presumption that any
ambiguities in this Agreement should be construed against the drafter.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx XxXxxxx
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Xxxxx X. Xxxxx Xxxxxxx XxXxxxx
President President/CEO
Stilden Co. Inc. The XxxXxx.xxx
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