CONSULTING AGREEMENT

Exhibit 10.2

CONSULTING AGREEMENT

     This Consulting Agreement (the “Agreement”) is made by and between Xxxxxx Drilling Company, a company organized and existing under the laws of the State of Delaware (hereinafter “COMPANY”), and Xxxxxx X. Xxxxxx, an individual residing in Houston, Texas (hereinafter “CONSULTANT”) effective as of March 28, 2009.

     WHEREAS, the CONSULTANT and COMPANY have entered into a Separation Agreement and Release effective as of March 27, 2009, in connection with CONSULTANT’s separation from the COMPANY as the Vice President, General Counsel and Corporate Secretary (the “Separation Agreement”);

     WHEREAS, pursuant to the terms of the Separation Agreement, the parties have agreed to enter into this Agreement for the provision of consulting services by CONSULTANT to COMPANY;

     WHEREAS, the COMPANY desires to retain CONSULTANT’s services during the interim period and to facilitate the transition to a new general counsel; and

     WHEREAS, the CONSULTANT is willing to provide consulting services to the COMPANY in accordance with the terms of this Agreement.

     NOW, THEREFORE, in consideration of the mutual promises herein contained, COMPANY and CONSULTANT agree as follows:

1. Scope of Service

The COMPANY and CONSULTANT recognize that CONSULTANT previously acted in the capacity of the COMPANY’s Vice President, General Counsel and Corporate Secretary and that the Scope of Service CONSULTANT will render under this Agreement shall be substantially different and more limited than the services previously provided by the CONSULTANT in his capacity as Vice President, General Counsel and Corporate Secretary of the Company.

	(a)		CONSULTANT has been retained by the COMPANY to provide certain services to the COMPANY solely with regard to transitioning pending matters, including, but not limited to litigation, operations, finance, corporate/administration, compliance, corporate records, governance, corporate structure, benefits, and related issues to the COMPANY.
	(b)		CONSULTANT is not retained to engage outside counsel, to enter into contracts or commitments for the COMPANY, and agrees not to do so.
	(c)		CONSULTANT shall be free to engage in consulting services for others, provided, however, such other activities shall not interfere with his rendering services to the COMPANY.

(d) CONSULTANT shall provide such other consulting services as the COMPANY and CONSULTANT may agree, without additional compensation. The services described in subparagraphs 1(a)-(d) may be referred to hereinafter collectively as the “Consultant Services”.

2.		Nature of Relationship Between Parties
		The CONSULTANT shall render the Consultant Services in this Agreement as an independent contractor. Except as otherwise agreed to by the COMPANY, CONSULTANT will have no authority or power to bind the COMPANY in relation to third parties or to represent to third parties that CONSULTANT has authority or power to bind the COMPANY. It is not the intention of the parties to this Agreement to create, by virtue of this Agreement, any employment relationship, trust, partnership or joint venture between CONSULTANT and the COMPANY or any of its affiliates or, except as specifically provided in this Agreement, to make them legal representatives or agents of each other or to create any fiduciary relationship or additional contractual relationship among them.
3.		Compensation

	(a)		In consideration for CONSULTANT performing the Consultant Services for the term of this Agreement, COMPANY agrees to pay CONSULTANT a monthly consulting fee of US$24,458, payable monthly, in arrears on the 27th day of each month, prorated on a weekly basis for any partial month.
	(b)		In addition to the above compensation, COMPANY will reimburse CONSULTANT for all reasonable out of pocket expenses incurred by CONSULTANT consistent with COMPANY’s policies on reimbursement of business expenses. CONSULTANT will submit an itemized statement of expenses to COMPANY on a monthly basis for costs incurred incidental to the performance of his duties as a CONSULTANT.
	(c)		CONSULTANT will also be provided with office access, computer, cell phone, blackberry and other reasonable support services, including home internet access, during the period of this Agreement consistent with the office support and services he was receiving as an employee. The consideration described in subparagraphs 3(a)-(c) may be referred to hereinafter collectively as the “Consultant Compensation”.
	(d)		The Consultant Compensation shall be CONSULTANT’s sole compensation for performing the Consultant Services.

4. Term

This Agreement shall commence on March 28, 2009, and shall continue in effect through May 27, 2009; provided, however, such term may be extended thereafter by mutual agreement of the parties.

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5.		Consultant’s Standard of Care
		Subject to the other provisions of this Agreement, CONSULTANT shall provide the Consultant Services with the same degree of care, skill and prudence that would be customarily exercised for what he reasonably believes to be in the best interest of the COMPANY.
6.		Independent Contractor

	(a)		Except as otherwise provided herein or in the Separation Agreement, the status of CONSULTANT shall be that of an independent contractor and CONSULTANT shall not be eligible for participation in benefit plans offered by COMPANY to its employees.
	(b)		COMPANY acknowledges and agrees that CONSULTANT may engage directly or indirectly in other activities during the term of this Agreement, including the provision of legal services to other companies and persons. However, this provision shall not relieve CONSULTANT of his obligations under paragraph 7 of this Agreement.
	(c)		CONSULTANT shall be solely responsible for satisfaction of all tax obligations with regard to compensation earned pursuant to this Agreement, and agrees to hold COMPANY harmless from any liability for unpaid taxes or penalties in conjunction with earnings hereunder.

7.		Confidentiality
		The CONSULTANT acknowledges and agrees that all Confidential Information about the COMPANY that was previously provided in the course of employment with the COMPANY and Confidential Information that will be provided to him in the course of the Term of this Agreement are and will continue to be the exclusive property of the COMPANY. The CONSULTANT agrees to keep all Confidential Information in strict confidence, not disclosing any Confidential Information to any third person except (i) as consented to in writing by the CEO of the COMPANY or (ii) as required by law or judicial or regulatory process; provided, however, that CONSULTANT shall not be obligated to keep in confidence any information which has become generally available to the public without any breach by CONSULTANT of this paragraph 7. If requested by the COMPANY, CONSULTANT will obtain from any third party to whom he discloses any Confidential Information the written agreement (in form and substance satisfactory to the COMPANY in its sole discretion) of such third party to keep such information confidential. The CONSULTANT agrees to continue to abide by COMPANY policies regarding confidentiality.

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8.		Protective Covenants
		The COMPANY agrees to provide CONSULTANT with Confidential Information, which CONSULTANT has not had access to or knowledge of before the execution of this Agreement. The CONSULTANT agrees that to protect the COMPANY’s Confidential Information, it is necessary to enter into the following restrictive covenants, which are ancillary to the enforceable promises between the COMPANY and CONSULTANT in paragraph 8 of this Agreement:

	(i)		Non-Solicitation. The CONSULTANT agrees that during (A) the Term of the Agreement and (B) for a one-year period following the Term of the Agreement (the “Post Consulting Period” and, together with the Term, the “Restricted Period”) will not, directly or indirectly, either individually or as a principal, partner, agent, consultant, contractor, employee, or as a director or officer of any corporation or association, or in any other manner or capacity whatsoever, except on behalf of the COMPANY, solicit business, or attempt to solicit business, in products or services competitive with products or services sold by the COMPANY, from any customer or client, or prospective customer or client, with whom CONSULTANT had contact or solicited during the (24) months that immediately proceeded the execution of this Agreement or during the Term of the Agreement. Notwithstanding the foregoing, nothing in this Agreement or in the Separation Agreement shall limit CONSULTANT’s right to provide legal services to any person or entity that is a present or potential competitor of the COMPANY.
	(ii)		Non-Recruitment. The CONSULTANT also agrees that during the Restricted Period, he will not, directly or indirectly, hire, solicit, induce, recruit, engage, go into business with, encourage to leave their employment or contractor relationship with the COMPANY, or otherwise cease their employment or contractor relationship with the COMPANY, or otherwise contract for services with, any employee or contractor of the COMPANY.
	(iii)		Nature of the Restrictions. The CONSULTANT agrees that the time, geographical area, and scope of restrained activities for the restrictions in this paragraph 8 are reasonable, especially in light of the COMPANY’s desire to protect its Confidential Information. If a court concludes that any time period, geographical area, or scope of restrained activities specified in paragraph 8 of this Agreement is unenforceable, the court is vested with the authority to reduce the time period, geographical area, and/or scope of restrained activities, so that the restrictions may be enforced to the fullest extent permitted by law. Additionally, if CONSULTANT violates any of the restrictions contained in this paragraph 8, the Restricted Period shall be suspended and will not run in favor of the CONSULTANT from the time of the commencement of any such violation until the time when the CONSULTANT cures the violation to the COMPANY’s satisfaction.

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9.		Agreement to Return Company Property/Documents
		Following the termination of CONSULTANT’s consulting arrangement for any reason, CONSULTANT agrees that: (i) he will not take with him, copy, alter, destroy, or delete any files, documents or other materials whether or not embodying or recording any Confidential Information, including copies, without obtaining in advance the written consent of an authorized COMPANY representative; and (ii) he will promptly return to the COMPANY all Confidential Information, documents, files, records and tapes (written or electronically stored) that have been in his possession or control regarding the COMPANY, and he will not use or disclose such materials in any way or in any format, including written information in any form, information stored by electronic means, and any and all copies of these materials. He further agrees to return to the COMPANY immediately all COMPANY property, including, without limitation, keys, equipment, computer(s) and computer equipment, devices, COMPANY cellular phones, other COMPANY telephonic equipment, COMPANY credit cards, data, lists, information, correspondence, notes, memos, reports, or other writings prepared by the COMPANY or himself on behalf of the COMPANY other than the iPhone and laptop referred to in paragraph 9 of the Separation Agreement.
10.		Termination
		This Agreement may be terminated by the COMPANY at any time for Cause. “Cause” means (i) a material breach or violation of this Agreement by CONSULTANT, unless cured to the COMPANY’s satisfaction within ten (10) business days following written notice given to CONSULTANT by the COMPANY; (ii) the failure or refusal of CONSULTANT to perform timely and fully the Consultant Services or to comply fully with his obligations under this Agreement, unless such default is cured to the COMPANY’s satisfaction within ten (10) business days following written notice given to CONSULTANT by the COMPANY; (iii) conviction of or a plea of no lo contendere or similar plea by CONSULTANT of a crime involving theft, dishonesty or moral turpitude, or the entry of a court order or administrative decree or order against the CONSULTANT, agreed or otherwise, involving allegations of criminal or civil fraud; or (iv) CONSULTANT’s breach of the non-solicitation covenant in paragraph 8 of this Agreement. “Good Reason” means a material breach or violation of this Agreement by the COMPANY, unless cured to CONSULTANT’s satisfaction within ten (10) business days following written notice given to the COMPANY by CONSULTANT. If this Agreement is terminated for Cause, the COMPANY’s obligation to pay Consultant Consideration not earned, as of the date of the event giving rise to the Cause termination, shall end immediately. Moreover, CONSULTANT agrees to forfeit the right to any unpaid Consultant Consideration owed by the COMPANY at the time of his termination for Cause. If this Agreement is terminated by the COMPANY without Cause, or if CONSULTANT terminates this Agreement for Good Reason, then the COMPANY shall promptly pay CONSULTANT the balance of the Consultant Consideration for the then current Term.
11.		Survival
		The provisions set forth in paragraphs 7, 8 and 9 shall survive termination or expiration of

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		this Agreement for any reason. In addition, all provisions of this Agreement which expressly continue to operate after the termination of this Agreement shall survive termination or expiration of this Agreement in accordance with the terms of such provisions.
12.		No Assignment or Subcontracting
		CONSULTANT shall not assign or subcontract in whole or in part any of the services to be furnished under this Agreement, nor shall CONSULTANT assign any payment due or to become due hereunder from COMPANY without the prior written consent of the COMPANY.
13.		Governing Law
		This Agreement shall be governed and interpreted in accordance with the laws of the State of Texas, not including any choice-of-law rule of the State of Texas, which may direct or refer any such interpretation to the laws of any other state or county.
14.		Dispute Resolution
		If any dispute arises out of or is related to this Agreement or CONSULTANT’s employment or separation from employment with the COMPANY for any reason, and the parties to this Agreement cannot resolve the dispute, the dispute shall be submitted to final and binding arbitration. The arbitration shall be conducted in accordance with the American Arbitration Association’s (“AAA”) National Rules for the Resolution of Employment Disputes (“Rules”). If the parties cannot agree to an arbitrator, an arbitrator will be selected through the AAA’s standard procedures and Rules. The COMPANY and CONSULTANT shall share the costs of arbitration, unless the arbitrator rules otherwise, with the parties agreeing that if CONSULTANT challenges this arbitration provision based on the allocation of costs between the parties, then the arbitrator shall decide the proper allocation of costs. The COMPANY and CONSULTANT agree that the arbitration shall be held in Houston, Texas. Arbitration of the parties’ disputes is mandatory, and in lieu of all civil causes of action or lawsuits either party may have against the other arising out of the Agreement or CONSULTANT’s employment or separation from employment with the COMPANY, with the exception that the COMPANY alone may seek a temporary restraining order and temporary injunctive relief in a court to enforce the terms of this Agreement. CONSULTANT acknowledges that by agreeing to this provision, he knowingly and voluntarily waives any right he may have to a jury trial based on any claims he has, had, or may have against the COMPANY, including any right to a jury trial under any local, municipal, state or federal law including, without limitation, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Age Discrimination In Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Commission on Human Rights Act, claims of harassment, discrimination or wrongful termination, and any other statutory or common law claims.

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15.		Injunctive Relief
		The CONSULTANT acknowledges and agrees that the covenants, obligations and agreements of the CONSULTANT contained in this Agreement concern special, unique and extraordinary matters and that a violation of any of the terms of these covenants, obligations or agreements will cause the COMPANY irreparable injury for which adequate remedies at law are not available. Therefore, the CONSULTANT agrees that the COMPANY alone will be entitled to an injunction, restraining order, or all other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain the CONSULTANT from committing any violation of the covenants, obligations or agreements referred to in this Agreement before submitting this matter to binding arbitration. These injunctive remedies are cumulative and in addition to any other rights and remedies the COMPANY may have against the CONSULTANT. The COMPANY and the CONSULTANT irrevocably submit to the exclusive jurisdiction of the state courts and federal courts in the city of the COMPANY’s headquarters (Houston, Texas) regarding the injunctive remedies set forth in this paragraph and the interpretation and enforcement of this paragraph 15 solely insofar as the interpretation and enforcement relate to an application for injunctive relief in accordance with this Agreement. Further, the parties irrevocably agree that (a) the sole and exclusive appropriate venue for any suit or proceeding relating to injunctive relief shall be in the courts listed in this paragraph 15; (b) all claims with respect to any application for injunctive relief shall be heard and determined exclusively in these courts; (c) these courts will have exclusive jurisdiction over the parties to this Agreement and over the subject matter of any dispute relating to an application for injunctive relief; and (d) each party waives all objections and defenses based on service of process, forum, venue, or personal or subject matter jurisdiction, as these defenses may relate to an application for injunctive relief in a suit or proceeding under the provisions of this paragraph 15.

        IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

XXXXXX DRILLING COMPANY
 

By:  

Name:  

Title:  

XXXXXX X. XXXXXX
 

Name:  

Date: 

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