EXHIBITS 10.1
Contract - Xxxx X. Xxxxxx
12
CONSULTING AND OPTION AGREEMENT
This Consulting and Option Agreement is made and entered into to be effective as
of the date upon which services were first rendered in accordance herewith and
is by and between Xxxx X. Xxxxxx ("Consultant") and CNH Holdings Company
("Client"). Consultant is willing and able to provide various valuable services
for and on behalf of Client in connection with the business of Client. Client
desires to retain Client as corporate counsel on behalf of Client and Consultant
desires to be retained in that capacity upon the terms and conditions
hereinafter set forth. In consideration of the foregoing premises, the mutual
promises and agreements hereinafter set forth, and such other and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Client and Consultant agree as follows:
1. Services. Client hereby retains Consultant as corporate counsel and
Consultant hereby accepts and agrees to such retention. Consultant shall render
to Client services of such nature as are necessary to provide for the legal
matters attendant the Client.
2. Time, Place and Manner of Performance. Consultant shall render his services
at reasonable and convenient times and places. Except as aforesaid, the time,
place and manner of performance of the services hereunder, including the amount
of time to be allocated by Consultant to any specific service, shall be
determined in the sole discretion of Consultant.
3. Term of Agreement. This agreement shall begin October 15, 1997, and shall
terminate when the services have been fully rendered hereunder or when a change
in control of Client shall have occurred.
4. Compensation. Upon termination of this agreement, Client shall pay Consultant
a fee in the amount of $4,000 per month. At the option of Consultant, Consultant
may elect to take all or any portion of this amount in shares of the free
trading common stock of Client registered under a Form S-8 filed in accordance
with the terms and conditions set forth under the Securities Act of 1933, as
amended. The parties have agreed that the fair market value of this stock, after
considering the financial condition of Client, as well as the lack of a trading
market for the stock, is $.04 per share. This option is not transferrable by
Consultant.
5. Expenses. Client shall reimburse Consultant on demand for all expenses and
other disbursements, including, but not limited to, travel, entertainment,
mailing, printing and postage, incurred by Consultant, or any of his
subcontractors, on behalf of Client in connection with the performance of the
consulting services pursuant to this agreement. Expenses and disbursements in
excess of $100 shall have Client's prior approval. These expenses shall be paid
in cash, or, at the option of Consultant, in shares of Client's common stock
registered under Form S-8. If this non-transferrable option is exercised, said
shares shall be issued at the fair market value therefor, which Client and
Consultant agree will be the closing inside bid price therefor on the date of
payment.
6. Work Product. It is agreed that, prior to public distribution, all
information and materials produced for Client shall be property of Consultant,
free and clear of all claims thereto by Client, and Client shall retain no claim
of authorship therein.
7. Disclosure of Information. Consultant recognizes and acknowledges that
Consultant has and will have access to certain confidential information of
Client and its affiliates that are valuable, special and unique assets and
property of Client and such affiliates. Consultant will not, during or after the
term of this agreement, disclose, without the prior written consent or
authorization of Client, any such information to any person, except to
authorized representatives of Consultant or its affiliates for purposes of the
services to be rendered under this agreement, for any reason or purpose
whatsoever. In this regard, Client agrees that such authorization or consent to
disclosure may be conditioned upon the disclosure being made pursuant to a
secrecy agreement, protective order, provision of statute, rule, regulation or
procedure under which the confidentiality of the information is maintained in
the hands of the person to whom the information is to be disclosed or in
compliance with the terms of a judicial order or administrative process.
8. Conflict of Interest. Consultant shall be free to perform services for other
persons during the term of this agreement. Consultant will notify Client of the
performance of consulting services for any other person which would conflict
with the obligations of this agreement. Upon receiving such notice, Client may
terminate this agreement or consent to Consultant's outside consulting services.
Failure to terminate this agreement shall constitute Client's ongoing consent to
Consultant's outside consulting activities.
9. Miscellaneous Provisions. (a) Notices. Any notices required or permitted to
be given under this agreement shall be sufficient if in writing and delivered or
sent by registered or certified mail to the principle office of each party. (b)
Waiver of Breach. Any waiver by a party of a breach of any provision of this
agreement by the other party shall not operate or be
13
construed as a waiver of any subsequent breach by the waiving party. (c)
Assignment. This agreement and the rights and obligations of the parties
hereunder are not assignable by either party. (d) Applicable Law. It is the
intention of the parties hereto that this Agreement and the performance
hereunder and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the State of Nevada and
that in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with or by reason of this agreement, the laws of
the State of Nevada shall be applicable and shall govern to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any action
or special proceeding may be instituted. (e) Severability. All agreements and
covenants contained herein are severable, and in the event any of them shall be
held to be invalid by any competent court, the agreement shall be interpreted as
if such invalid agreements or covenants were not contained herein. (f) Entire
Agreement. This Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations between the parties. (g) Counterparts. This
agreement may be executed in counterparts, each of which shall be deemed an
original, but both of which taken together shall constitute but one and the same
document.
IN WITNESS WHEREOF, the parties hereto have entered into this agreement
effective as of the day and year first above written.
Consultant: CLIENT: CNH Holdings Company
/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
------------------- -----------------------------------
Xxxx X. Xxxxxx Xxxx X. Xxxxxx, President
14
