CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of
April 1, 2010, by and between SMSA EL PASO II ACQUISITION CORP., a Nevada
corporation (the “Company”), and XXXXXXX XXXXXXXX, an individual with offices at
00000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 (the “Consultant”).
WITNESSETH:
WHEREAS, the Company desires
to retain the consulting services of the Consultant and to have the Consultant
serve as the Company’s Chairman of the Board, President and Chief Executive
Officer, and the Company wishes to acquire and be assured of Consultant’s
consulting services on the terms and conditions hereinafter set forth;
and
WHEREAS, the Consultant
desires to serve and consult with the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual terms, covenants, agreements and conditions
hereinafter set forth, the Company and the Consultant hereby agree as
follows:
1. Consulting
Relationship. (a) The Company hereby retains the
Consultant to consult with the Company from time to time and to perform the
consulting services provided in Section 3 hereof, and the Consultant hereby
agrees to perform such consulting services, for the period set forth in Section
2 hereof. During the Consulting Term (as hereinafter defined),
Consultant shall not be deemed to be an employee of the Company but shall be an
independent contractor and all of the terms and conditions of this Agreement
shall be interpreted in light of that relationship. This Agreement
does not create any employer-employee, agency or partnership
relationship. As an independent contractor, Consultant’s expenses
shall be limited to those expressly stated in this Agreement.
(b) To
the best of the Consultant’s knowledge: (i) the Consultant is under
no obligation to any former employer or other party that is in any way
inconsistent with, or that imposes any restriction upon, the Consultant’s
acceptance of its engagement hereunder by the Company, the engagement of the
Consultant by the Company, or the Consultant’s undertakings under this Agreement
and (ii) its performance of all the terms of this Agreement and its engagement
by the Company as a consultant does not and will not breach any agreement to
keep in confidence proprietary information acquired by the Consultant, or any
affiliate thereof, in confidence or in trust prior to its engagement by the
Company.
2. Term. (a) This
Agreement commences as of the date set forth above and will continue for an
initial term of one (1) year (the “Initial Term”). After the Initial
Term, this Agreement shall be automatically renewed on a year-to-year basis
unless either party hereto gives written notice of termination (the “Termination
Notice”) to the other party hereto not less than 90 days prior to the last day
of the then existing term. The Initial Term and any extension of the
term of this Agreement pursuant to this Section 2(a) is hereinafter referred to
as the “Consulting Term”). Notwithstanding the foregoing, the
Consulting Term shall terminate upon the death of the
Consultant.
(b) Notwithstanding
Section 2(a) hereof, the Company may terminate this Agreement at any time for
“Cause”. For purposes of this Agreement, “Cause,” shall
mean:
(i) any
fraud, misappropriation or embezzlement by the Consultant in connection with the
Company’s business;
(ii) any
conviction of or guilty plea to a felony or a gross misdemeanor by the
Consultant that has or can be expected to have a detrimental effect on the
Company or on the Consultant’s ability to perform the Consultant’s
duties;
(iii) any
communication or disclosure by the Consultant that may result in potential harm
or damage to the reputation or business prospects of the Company, as determined
in the sole discretion of the Company; or
(iv) a
breach by the Consultant of the provisions of Section 6 or 7
hereof.
3. Duties.
(a) The
Consultant shall consult with management of the Company regarding the business
of the Company as requested by the Company’s Board of Directors or management
from time to time, and shall have the title of President and Chief Executive
Officer of the Company during the Consulting Term; provided, however, that the fee
payable to the Consultant pursuant to Section 4(a) hereof shall constitute
consideration for any such service and the Consultant shall not be entitled to
any additional compensation in respect of such service. The
Consultant shall faithfully and competently perform such consulting services at
such times and places and in such manner as the Board of Directors of the
Company shall from time to time determine.
(b) The
Consultant also shall be entitled to serve as Chairman of the Board of the
Company’s Board of Directors during the Consulting Term; provided, however, that, except
as the Board shall otherwise determine from time to time, the fee payable to the
Consultant pursuant to Section 4(a) hereof shall constitute consideration for
any such service and the Consultant shall not be entitled to any additional
compensation in respect of such service on the Board.
(c) During
the Consulting Term, the Consultant shall not be required to provide any
specified number of hours of service to the Company. The Consultant
and his affiliates may, during the term of this Agreement, engage in such other
employment and activities as they may see fit, it being agreed that the
engagement of the Consultant is non-exclusive and that nothing herein contained
shall be deemed to prohibit or bar the Consultant or any of its affiliates from
engaging in such other activities as they may see fit so long as such activities
do not interfere with the performance of the Consultant’s duties pursuant to the
terms of this Agreement and do not violate the terms of paragraphs 6 or 7
herein.
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4. Fees and
Expenses.
(a) Monthly
Fee. During the Consulting Term, the Company shall pay the
Consultant a non-refundable fee of Fifteen Thousand Dollars ($15,000) per month
on the first business day of each month.
(b) Expenses. The
Consultant shall be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by the Consultant in the performance of
the Consultant’s duties hereunder in accordance with the Company’s policies
applicable (on and after the date hereof) thereto.
(c) Withholding,
Etc. In conformity with the Consultant’s independent
contractor status and without limiting any of the foregoing, the Consultant
understands that no deduction or withholding for taxes or contributions of any
kind shall be made by the Company. The Consultant agrees to accept
exclusive liability for the payment of all self employment taxes or
contributions for unemployment insurance or pensions or annuities or social
security payments which are measured by the remuneration paid to the Consultant
or the Consultant’s agents, if any, as independent contractors and to reimburse
and indemnify the Company for any such taxes or contributions or penalties which
the Company may be compelled to pay as a result of the Consultant’s non payment
of the same as a self employed individual. The Consultant also agrees
to take all action and comply with all applicable administrative regulations
necessary for the payment by the Consultant of such.
5. Benefits. During
the Consulting Term, Consultant shall be eligible to participate in any Company
fringe benefit plans or any other compensation or benefit plans the Company
maintains for its own employees.
6. Inventions and Confidential
Information. The Consultant hereby covenants, agrees and
acknowledges as follows:
(a) The
Company is engaged in a continuous program of research, design, development,
production, marketing and servicing with respect to its businesses.
(b) The
Consultant’s engagement hereunder creates a relationship of confidence and trust
between the Consultant and the Company with respect to certain information
pertaining to the business of the Company and its Affiliates (as hereinafter
defined) or pertaining to the business of any client or customer of the Company
or its Affiliates which may be made known to the Consultant by the Company or
any of its Affiliates or by any client or customer of the Company or any of its
Affiliates or learned by the Consultant during the period of Consultant’s
engagement by the Company.
(c) The
Company possesses and will continue to possess information that has been
created, discovered or developed by, or otherwise become known to it (including,
without limitation, information created, discovered or developed by, or made
known to, the Consultant during the period of Consultant’s engagement or arising
out of Consultant’s engagement) or in which property rights have been or may be
assigned or otherwise conveyed to the Company, which information has commercial
value in the business in which the Company is engaged and is treated by the
Company as confidential.
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(d) Any
and all inventions, products, discoveries, improvements, processes,
manufacturing, marketing and services methods or techniques, formulae, designs,
styles, specifications, data bases, computer programs (whether in source code or
object code), know-how, strategies and data, whether or not patentable or
registrable under copyright or similar statutes, made, developed or created by
the Consultant (whether at the request or suggestion of the Company, any of its
Affiliates, or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) during the period of
Consultant’s engagement by the Company which may pertain to the business,
products or processes of the Company or any of its Affiliates (collectively
hereinafter referred to as “Inventions”), will be promptly and fully disclosed
by the Consultant to an appropriate executive officer of the Company (other than
Consultant) without any additional compensation therefor, all papers, drawings,
models, data, documents and other material pertaining to or in any way relating
to any Inventions made, developed or created by Consultant as
aforesaid. For the purposes of this Agreement, the term “Affiliate”
or “Affiliates” shall mean any person, corporation or other entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. For the purposes of this definition,
“control” when used with respect to any person, corporation or other entity
means the power to direct the management and policies of such person or entity,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
(e) The
Consultant will keep confidential and will hold for the Company’s sole benefit
any Invention which is to be the exclusive property of the Company under this
Section 6 for which no patent, copyright, trademark or other right or protection
is issued.
(f) The
Consultant also agrees that the Consultant will not without the prior
written consent of the Board of Directors of the Company (i) use for
Consultant’s benefit or disclose at any time during Consultant’s engagement by
the Company, or thereafter, except to the extent required by the performance by
the Consultant of the Consultant’s duties as a consultant of the Company, any
information obtained or developed by the Consultant while engaged by the Company
with respect to any Inventions or with respect to any customers, clients,
suppliers, products, employees, financial affairs, or methods of design,
distribution, marketing, service, procurement or manufacture of the Company or
any of its Affiliates, or any confidential matter, except information which at
the time is generally known to the public other than as a result of disclosure
by the Consultant not permitted hereunder, or (ii) take with the
Consultant upon termination of its engagement by the Company any document or
paper relating to any of the foregoing or any physical property of the Company
or any of its Affiliates.
(g) The
Consultant acknowledges and agrees that a remedy at law for any breach or
threatened breach of the provisions of this Section 6 would be inadequate and,
therefore, agrees that the Company and its Affiliates shall be entitled to
injunctive relief in addition to any other available rights and remedies in case
of any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting the Company or any of its
Affiliates from pursuing any other rights and remedies available for any such
breach or threatened breach.
(h) The
Consultant agrees that upon termination of Consultant’s engagement by the
Company for any reason, the Consultant shall immediately return to the Company
all documents and other property in Consultant’s possession belonging to the
Company or any of its Affiliates.
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(i) Without
limiting the generality of Section 8 hereof, the Consultant hereby expressly
agrees that the foregoing provisions of this Section 6 shall be binding upon the
Consultant’s partners, employees, successors and legal
representatives.
7. Non-Competition. (a) The
term “Non-Compete Term” shall mean the period during which Consultant is engaged
hereunder and the one-year period thereafter.
During
the Non-Compete Term:
(i) the
Consultant will not make any statement or perform any act intended to advance an
interest of any direct competitor of the Company or any of its Affiliates in any
way that will or may injure an interest of the Company or any of its Affiliates
in its relationship and dealings with existing customers or clients, or
knowingly solicit or encourage any employee of the Company or any of its
Affiliates to do any act that is disloyal to the Company or any of its
Affiliates or inconsistent with the interest of the Company or any of its
Affiliate’s interests or in violation of any provision of this
Agreement;
(ii) the
Consultant will not discuss with any customers or clients of the Company or any
of its Affiliates the present or future availability of services or products of
a business, if the Consultant has or expects to acquire a proprietary interest
in such business or is or expects to be a consultant, employee, officer or
director of such business, where such services or products are directly
competitive with services or products which the Company or any of its Affiliates
provides;
(iii) the
Consultant will not make any statement or do any act intended to cause any
customers or clients of the Company or any of its Affiliates to make use of the
services or purchase the products of any directly competitive business in which
the Consultant has or expects to acquire a proprietary interest or in which the
Consultant is or expects to be made an employee, officer or director, if such
services or products directly compete with the services or products sold or
provided or expected to be sold or provided by the Company or any of its
Affiliates to any customer or client; and
(iv) the
Consultant will not directly or indirectly (as a director, officer, employee,
manager, consultant, independent contractor, advisor or otherwise) engage in
direct competition with, or own any interest in, perform any services for,
participate in or be connected with (i) any business or organization which
engages in direct competition with the Company or any of its Affiliates in any
geographical area where any business is presently carried on by the Company or
any of its Affiliates, or (ii) any business or organization which engages in
direct competition with the Company or any of its Affiliates in any geographical
area where any business shall be hereafter, during the period of the
Consultant’s engagement by the Company, carried on by the Company or any of its
Affiliates, if such business is then being carried on by the Company or any of
its Affiliates in such geographical area; provided, however, that the
provisions of this Section 7(a) shall not be deemed to prohibit the Consultant’s
ownership of not more than one percent (1%) of the total shares of all classes
of stock outstanding of any publicly held company. At the end of the
Consultant’s engagement, the Company, in good faith, shall provide to the
Consultant a list of the Company’s then-existing direct competitors, Affiliates,
customers, businesses, organizations and others to which this Section 7
refers.
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(b) During
the Non-Compete Term, the Consultant will not directly or indirectly hire,
engage, send any work to, place orders with, or in any manner be associated with
any supplier, contractor, subcontractor or other person or firm which rendered
manufacturing or other services, or sold any products, to the Company or any of
its Affiliates if such action by Consultant would have a material adverse effect
on the business, assets or financial condition of the Company or any of its
Affiliates.
(c) In
connection with the foregoing provisions of this Section 7, the Consultant
represents that Consultant’s experience, capabilities and circumstances are such
that such provisions will not prevent Consultant from earning a
livelihood. The Consultant further agrees that the limitations set
forth in this Section 7 (including, without limitation, any time or territorial
limitations) are reasonable and properly required for the adequate protection of
the businesses of the Company and its Affiliates. It is understood
and agreed that the covenants made by the Consultant in this Section 7 (and in
Section 6 hereof) shall survive the expiration or termination of this
Agreement.
(d) For
purposes of this Section 7, proprietary interest in a business is ownership,
whether through direct or indirect stock holdings or otherwise, of one percent
(1%) or more of such business.
(e) The
Consultant acknowledges and agrees that a remedy at law for any breach or
threatened breach of the provisions of this Section 7 would be inadequate and,
therefore, agrees that the Company and any of its Affiliates shall be entitled
to injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting the Company or any of its
Affiliates from pursuing any other rights and remedies available for any such
breach or threatened breach.
8. Non-Assignability. (a) Neither
this Agreement nor any right or interest hereunder shall be assignable by the
Consultant or its legal representatives without the Company’s prior written
consent.
(b) Except
as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation or to exclusion, attachment, levy or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no
effect.
9. Binding
Effect. Without limiting or diminishing the effect of Section
8 hereof, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, legal representatives and
assigns.
10. Notice. Any
notice required or permitted to be given under this Agreement shall
be sufficient if in writing and either delivered in person or sent by first
class certified or registered mail, postage prepaid, if to the Company, at the
Company’s principal place of business, attention: Chief Financial Officer (with
a copy to Xxxxx Xxxxxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxx X. Xxxxxxx, Esq.), and if to the Consultant, at Consultant’s
office address set forth above, or to such other address or addresses as either
party shall have designated in writing to the other party
hereto.
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11. Severability. The
Consultant agrees that in the event that any court of competent jurisdiction
shall finally hold that any provision of Section 6 or 7 hereof is void or
constitutes an unreasonable restriction against the Consultant, such provision
shall not be rendered void but shall apply with respect to such extent as such
court may judicially determine constitutes a reasonable restriction under the
circumstances. If any part of this Agreement other than Section 6 or
7 is held by a court of competent jurisdiction to be invalid, illegible or
incapable of being enforced in whole or in part by reason of any rule of law or
public policy, such part shall be deemed to be severed from the remainder of
this Agreement for the purpose only of the particular legal proceedings in
question and all other covenants and provisions of this Agreement shall in every
other respect continue in full force and effect and no covenant or provision
shall be deemed dependent upon any other covenant or provision.
12. Waiver. Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant or condition, nor
shall any waiver or relinquishment of any right or power hereunder at any one or
more times be deemed a waiver or relinquishment of such right or power at any
other time or times.
13. Entire Agreement;
Modifications. This Agreement constitutes the entire and final
expression of the agreement of the parties with respect to the subject matter
hereof and supersedes all prior agreements, oral and written, between the
parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
14. Applicable Law and
Venue. This Agreement shall be interpreted and
construed in accordance with the laws of the State of New York, without regard
to its conflicts of law provisions. Any action to enforce the terms
of this Agreement shall be brought in a court of proper jurisdiction within the
State of New York.
15. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
16. Survival. The
termination of Consultant’s engagement hereunder shall not affect the
enforceability of Sections 6 or 7.
17. Further
Assurances. The parties agree to execute and deliver all such
further instruments and take such other and further action as may be reasonably
necessary or appropriate to carry out the provisions of this
Agreement.
18. Headings. The
Section headings appearing in this Agreement are for purposes of easy reference
and shall not be considered a part of this Agreement or in any way modify, amend
or affect its provisions.
19. Facsimile
Signatures. Facsimile signatures will be accepted as
originals.
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IN WITNESS WHEREOF, the
Company and the Consultant have duly executed and delivered this Agreement as of
the day and year first above written.
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SMSA
EL PASO II ACQUISITION
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CORP.
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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Title:
President and CEO
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CONSULTANT:
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/s/ Xxxxxxx
Xxxxxxxx
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Xxxxxxx
Xxxxxxxx
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