EXHIBIT 10.06
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of the 1st day of
November, 1994 by Xxxxx Industries, Inc. ("Xxxxx") and E. Xxxxxxx Xxxxx and Xxxx
X. Xxxxx (individually "Consultant", and collectively "Consultants").
RECITALS
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X. Xxxxx designs, manufactures and distributes highly engineered fluid
handling and industrial controls products worldwide in a wide range of
industrial markets. Its corporate headquarters are located in Bogart, Georgia.
B. E. D. Kenna is a former Chairman of Xxxxx'x Board of Directors and has
been affiliated with Xxxxx businesses for many years, during all of which time
Xxxx X. Xxxxx has been his spouse, and both of E. D. and Xxxx X. Xxxxx have
established investor, lender, and business contacts and relationships which have
benefited Xxxxx for many years.
X. Xxxxx desires to retain Consultants as consultants, and not as
employees, and Consultants desires to be in the service of Xxxxx, and to refrain
from competing with Xxxxx or otherwise using Xxxxx'x trade secrets, proprietary
and confidential information, except in the furtherance of their consulting
service with Xxxxx.
NOW THEREFORE, in consideration for the covenants and promises set forth
below, Xxxxx and Consultants agree upon the following terms and conditions:
CONSULTANT SERVICES AND FEE
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1. Consultant Services. Xxxxx retains Consultants and Consultants agree
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to provide services to Xxxxx, at Xxxxx'x sole discretion and otherwise upon the
terms and conditions set forth in this Agreement.
2. Consultant Term. Retention of Consultants shall commence on November
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1, 1994.
3. Consultant Fee. As the fee for the performance of services to Xxxxx,
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Consultants shall be paid jointly a retainer of $4,166.67 per month (the
"Consultant Fee"). Xxxxx shall also reimburse Consultants for their reasonable
expenses of travel, out of town lodging and meals and other related expenses of
providing consulting services to Xxxxx.
4. Duties and Term. Consultants agree to serve Xxxxx faithfully,
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diligently and to the best of their ability and shall be responsible for the
development and support of projects assigned to either of them by Xxxxx. At all
times Consultants will be subject to the policies, procedures, directions and
restrictions as the Chairman of the Board of Xxxxx may reasonably adopt from
time to time. The Consultants' contributions to Xxxxx will include advice in
such areas as general corporate planning and strategies, corporate finance and
marketing, business development, executive compensation and providing
introductions and liaison to and with investors, lenders and business leaders
and contacts known to Consultants that might be beneficial to Xxxxx.
Consultants agree to serve, and the Consultant Fee will be paid, until the
earlier to occur of October 31, 2004 or the death of the last surviving
Consultant, at which time all Consultant Fee payments will cease. Upon the
death of either one of the Consultants prior to October 31, 2004, the Consulting
Fee will continue to be paid to the other Consultant.
COVENANT NOT TO COMPETE AND CONFIDENTIALITY
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5. Covenant Not To Compete. From the date of this Agreement to the date
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services of the Consultants to Xxxxx are terminated for any reason, neither
Consultant will, directly or indirectly, engage in, assist, disclose any
information (except where expressly authorized in the performance of his or
duties as a consultant made under confidentiality nondisclosure agreements with
third parties), solicit the customers of Xxxxx or have any ownership interest
in, any person, firm, corporation, partnership, association, agency or business
(whether as principal, agent, holder of any equity security, except either
Consultant may be the holder of less than I% of the equity securities of public
companies whose equity securities are traded on nationally recognized securities
markets, or other instruments convertible into an equity security) or as an
employee, consultant or otherwise engage in marketing, leasing or otherwise
distributing products of the type designed, purchased for resale or distribution
or manufactured, sold, distributed or leased by or engage in any other activity
of a nature which is competitive with that of the business of Xxxxx.
6. Confidentiality. Consultants acknowledge and agree that all
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information, documents and records, practices and procedures utilized by Xxxxx
in the conduct of its business, of or to which Consultants have or may gain
knowledge, are confidential and constitute valuable trade secrets of Xxxxx, and
that any disclosure or unauthorized use of Confidential Information would cause
irreparable harm and loss to Xxxxx. Consultants shall not disclose or use any
Confidential Information outside the intended purposes of this Agreement and
shall hold all Confidential Information as strictly confidential.
INDEPENDENT CONTRACTOR
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7. Independent Contractor. Consultants are independent contractors and
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are not and shall make no claim that they are employees, agents, servants or
representatives of Xxxxx. Consultants shall have no authority to transact
business, enter into agreements or otherwise make commitments on behalf of Xxxxx
unless expressly authorized to do so in writing by Xxxxx.
MISCELLANEOUS PROVISIONS
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8. Equitable Remedies. In the event of a Consultant's breach or
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violation of his or her obligations set out in paragraph 5 and/or 6 hereof, such
Consultant agrees hereby that Xxxxx would not have an adequate remedy at law and
that Xxxxx shall be entitled, without posting a bond, to an injunction
restraining any breach and to other appropriate equitable relief. Each
Consultant hereby waives the right to use as a defense to any equitable action
against the allegation that Xxxxx has an adequate remedy of law. The equitable
remedy provided Xxxxx shall be in addition to any other remedies it may have and
nothing in this provision shall be construed as prohibiting Xxxxx from pursuing
any other remedy available to it, including without limitation withholding of
payments otherwise due the Consultant and the refund of past payments made to
Consultant.
9. Consultant's Non-Assignment. Consultants may not alienate,
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hypothecate, pledge, encumber, assign or otherwise transfer any rights under
this Agreement.
10. Severability. If any provision of this Agreement shall be determined
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to be invalid or unenforceable, either in whole or in part, this Agreement shall
be deemed amended to delete or modify, as necessary, if any provisions and to
alter the balance of this Agreement in order to render the provision valid and
enforceable.
11. Choice of Law. This Agreement shall be construed and interpreted in
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accordance with the laws of the State of Georgia. Each party consents to
service of process at their respective addresses listed in this Agreement and to
jurisdiction and venue in the federal district court or state courts of Xxxxxx
County, Georgia.
12. Notice. All notices, requests, demands and other communications
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shall be in writing and shall be deemed to have been duly given upon the date of
service if served personally upon the party for whom intended, or if mailed
postage pre-paid by registered or certified first class mail, return receipt
requested, or by express or telephone facsimile, to such party at its address
shown below, or as otherwise designated by such party or addressee in writing,
it shall be deemed to have been given when mailed.
If to Xxxxx: Xxxxx Industries, Inc.
000 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
000-000-0000 phone
000-000-0000 fax
Attn: Xxxxxxx X. Key
President and Chief Executive Officer
If to Consultants: E. Xxxxxxx Xxxxx
Xxxx X. Xxxxx
00000 Xxxxxx Xxxxx Xxxx
Apartment B- 1 00
X. Xxxx Xxxxx, XX 00000
000-000-0000 phone
000-000-0000 fax
/S/ Xxxxxxx X. Key /S/ E. Xxxxxxx Xxxxx
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Xxxxx Industries, Inc. E. Xxxxxxx Xxxxx
By: Xxxxxxx X. Key
Chief Executive Officer /S/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
