Exhibit 10.55
PERSONAL SERVICES AGREEMENT
This Personal Services Agreement (the "Agreement") is by and between
Cap Rock Electric Cooperative, Inc., referred to in this "Agreement" as
"Company," and Xxxxxxx X. Xxxxxxx, referred to in this Agreement as
"Consultant." Company is an electric cooperative corporation, located at 000
Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx, and is engaged in the business of,
among other things, electric utility distribution. Consultant is an
individual, located at 00 Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000. Company
and Consultant are collectively referred to in this Agreement as the
"Parties."
I.
RECITALS
COMPANY DESIRES TO:
A. Retain Consultant's exclusive services pursuant to this Personal
Services Agreement to assist the Company in its efforts to acquire
telephone and telecommunications companies; and
B. Obtain Consultant's advice concerning telecommunications and
telephone companies, including, but not limited to, advice concerning
acquiring such companies; and
C. Company shall retain the services of Consultant as an Independent
Contractor to assist Company in the acquisition of telephone and
telecommunication companies.
CONSULTANT AGREES AS FOLLOWS:
A. Consultant hereby accepts and agrees to perform such services as an
Independent Contractor and Consultant for Company, and Consultant
agrees to perform the duties set forth above. During the term of this
Agreement, Consultant shall devote so much of his time as is necessary
to perform the services set forth herein, and shall report directly to
the President/CEO of Company, but Consultant shall remain an
Independent Contractor and not an employee of Company; and
B. Consultant agrees to perform faithfully, industriously, and to the
best of Consultant's ability, experience, and talents, all of the
duties that may be required of Consultant by the express and implicit
terms of this Agreement, to the reasonable satisfaction of Company.
Such duties shall be provided at such place as the needs, business or
opportunities of Company may require from time to time. Consultant
shall devote sufficient time and attention to rendering services on
behalf of Company and in furtherance of Company's best interests, and
shall be available to devote a minimum of forty (40) hours per week to
Company's business. However, the hours that Consultant performs the
services and the ways in which Consultant performs the services shall
be determined by Consultant in accordance with the requirements and
schedule of the company. Consultant shall, as stated above, be an
Independent Contractor and not an employee of Company. During the term
of this Agreement Consultant shall provide his personal services with
regard to the acquisition of telephone and telecommunication companies
exclusively to the Company.
II.
CONSULTATION SERVICES
A. Xxxxxxx X. Xxxxxxx agrees to act as Consultant and to advise Company
with respect to the acquisition of telephone and telecommunication
companies. Consultant shall further assist the Company in acquiring
such companies. The Parties agree that any written or oral consultation
provided by Consultant is advisory, involving Consultant's judgment
based on experience, and that there is no guarantee of any particular
result from the consultation.
B. The services to be performed pursuant to this Agreement include, but
are not limited to, assisting and advising Company with respect to the
acquisition of telephone and telecommunication companies and such other
and unrelated services and duties as may be requested of Consultant by
Company.
C. Consultant shall perform his duties under this Agreement personally.
Consultant shall not delegate the performance of those duties to any
other person without first obtaining Company's written consent.
III.
INDEPENDENT CONTRACTOR STATUS
Company and Consultant agree that Consultant shall perform his duties
under this Agreement as an Independent Contractor. The Consultant is not to be
deemed an employee of
PERSONAL SERVICES AGREEMENT - PAGE 2
CAPROCK/CONTRACTS/XXXXXXX.XXXXXXX.PERSONAL.SER.AGMNT/110299
Company, and Consultant shall not have or claim any right arising from
employee status. Consultant agrees that Consultant is not entitled to any
compensation or benefits, including, but not limited to, any right to
participate in the Company's retirement plans, 401(k) plans, or any other
benefits provided to employee of the Company. Consultant has the sole
discretion to determine the manner in which the consultation services are to
be performed. However, Company retains the right to exercise final judgment
with respect to the ultimate development of the products and has
responsibility for such development.
IV.
MATERIALS
Consultant shall provide his own office, vehicle, office
furnishings, employee benefits, telephones, equipment, and utilities, etc.
and all other materials necessary for Consultant to perform his duties under
this Agreement. However, Consultant shall be reimbursed for reasonable
expenses as approved by the President/CEO as set forth in Paragraph VII below.
V.
CONSULTATIONS AND REPORTS
A. Consultations shall be orally communicated between Consultant and
the Xxxxx X. Xxxxxx when appropriate. On Company's request, Consultant
shall prepare any reports or other written documents that are
reasonable or mutually agreed upon. Consultation may be made in person
between Consultant and Xxxxx X. Xxxxxx when mutually convenient and
mutually agreed upon.
B. Company agrees to provide Consultant with access to Company's
personnel and information, as needed when necessary to enable
Consultant to perform his duties under this Agreement.
PERSONAL SERVICES AGREEMENT - PAGE 3
VI.
COMPENSATION
A. Consultant shall be paid an annual payment for his services of
$133,500.00 payable on the first and fifteenth of each month.
Immediately upon the execution of this Agreement by both parties,
Consultant shall be paid $20,000.00 (which shall be deducted from the
$133,500.00 payment referred to above).
B. Additionally, for each and every entity that is purchased or
acquired by the Company, or created as a result of Consultant's
efforts, Consultant will receive a one percent (1%) equity ownership in
such companies at such time as all ownership and control of such entity
has been completely and finally transferred to Company.
C. Other than the above payments, Consultant shall receive no other
royalty or renumeration for his services under this Agreement.
D. Consultant's payment as set forth in paragraph VI, "A" above, shall
be made to Consultant based upon Consultant working forty seven (47)
weeks annually pursuant to this Agreement, less thirteen (13)
non-working holidays. Additionally, Consultant shall be allowed up to
thirteen (13) days of sick leave per year, to be used only if
Consultant is physically unable to perform his normal business
activities pursuant to this Agreement, with unused days to carry over
to subsequent years. However, any sick days not used at the time the
Agreement is terminated will be forfeited by Consultant.
E. The payment to Consultant pursuant to paragraph VI "A" above shall
be adjusted each subsequent year of this Agreement to reflect the
Dallas area of cost of living adjustment.
VII.
EXPENSES
Consultant shall be responsible for payment of all expenses that are
reasonably incurred by Consultant in the performance of this Agreement,
including, but not limited to travel and entertainment expenses, office and
telephone expenses, etc. (estimated to amount to approximately $30,000.00 per
year), and Company shall reimburse Consultant for all such expenses as are
approved by the President/CEO or his designee.
PERSONAL SERVICES AGREEMENT - PAGE 4
VIII.
CONFIDENTIALITY
A. Consultant agrees that all information communicated to Consultant
with respect to the products, including any confidential information
gained by Consultant or his representatives by reason of association or
employment with Company or its associates is confidential. Consultant
further agrees that all information, conclusions, recommendations,
reports, advice, or other documents generated by Consultant pursuant to
this Agreement are confidential.
B. Consultant promises and agrees that Consultant shall not disclose
any confidential information to any other person unless specifically
authorized in writing by Company to do so. If Company gives Consultant
written authorization to make any disclosures, Consultant shall do so
only within the limits and to the extent of that authorization.
C. Consultant shall use his best efforts to prevent inadvertent
disclosure of any confidential information to any third party by using
the same care and discretion that Consultant uses with any similar data
Consultant designates as confidential.
D. Consultant acknowledges and agrees that all information concerning
the products and any future and proposed products of Company
constitutes an exceptionally valuable trade secret of Company. That
information includes, but is not limited to the facts that the products
is planned or in production, as well as any descriptions of the
features of the products.
E. Consultant recognizes that Company has and will have information
regarding products, prices, apparatus, costs, discounts, business
affairs, processes, trade secrets, technical matters, customer lists,
product design, copyrights, and other vital information (collectively
"information") which are valuable, special and unique assets of
Company. Consultant agrees that the Consultant will not at any time or
in any manner, either directly or indirectly, divulge, disclose, or
communicate in any manner any information to any third party without
the prior written consent of the Company. Consultant will protect the
information and treat it as strictly confidential. A violation by
Consultant of this paragraph shall be a material violation of this
Agreement and will justify legal and/or equitable relief.
PERSONAL SERVICES AGREEMENT - PAGE 5
IX.
USE OF CONFIDENTIAL INFORMATION
Consultant shall not use any confidential information or circulate
it to any other person or persons, except when specifically authorized in
advance by Company and then only to the extent necessary for any of the
following:
A. Conducting negotiations, discussions, or consultations with
designated Company representatives;
B. Supplying Company with goods or services at its order;
C. Preparing confidential estimates, bids or proposals, and invitations
for bids or requests for proposals for submission to Company; or
D. Accomplishing any purpose Company may later specify in writing.
X.
COPIES OF CONFIDENTIAL INFORMATION
Consultant agrees that copies of confidential information may not be
made without the express written permission of Company and that at the
termination of this Agreement all such copies shall be returned to Company
along with the originals.
XI.
RETURN OF MATERIALS
At Company's request, Consultant shall promptly return to Company
all confidential materials at the conclusion of the work on, the project to
which the materials relate.
PERSONAL SERVICES AGREEMENT - PAGE 6
XII.
CONFIDENTIALITY OF RELATIONSHIP
The Parties acknowledge and agree that the fact that Company is
using Consultant's services as an Independent Contractor is confidential.
Neither of the Parties may disclose that fact to others, except as necessary
with regard to the filing of income taxes and other necessary documents,
unless it has been approved by the other party's written permission.
XIII.
NON-COMPETITION
During the term of this Agreement, and for a period of one(l) year
thereafter, except with the written consent of Company, Consultant shall not
engage, either directly or indirectly, in a business which is in competition
with Company within the State of Texas. However, should Company become
insolvent, be dissolved, or cease to exist, then Consultant shall be free to
compete with Company. Further if Company violates the terms of this
Agreement, then Consultant shall be free to compete with Company.
XIV.
OWNERSHIP OF WORK PRODUCT
A. Consultant agrees that he will promptly and completely inform and
disclose to Company all inventions, designs, improvements, and
discoveries that Consultant may have during the term of this Agreement
that pertain or relate to the business of Company or to any
experimental work carried on by Company, whether conceived by
Consultant alone or with others and whether or not conceived during
regular working hours. All such inventions, designs, improvements, and
discoveries shall be the exclusive property of
PERSONAL SERVICES AGREEMENT - PAGE 7
Company. Consultant shall assist Company in obtaining patents on all
such inventions, designs, improvements, and discoveries deemed
patentable by Company.
B. Notwithstanding the above, should Consultant develop or invent any
product upon which Company obtains a patent and which thereby leads to
increased sales or revenue for Company, then Consultant shall receive a
bonus or a commission on such invention in an amount to be determined
by the Board of Directors.
C. Notwithstanding the above paragraphs, should Company dissolve,
become insolvent, or cease to exist during the term of this Agreement
or thereafter, then the rights to any patents invented or developed by
Consultant during the term of this Agreement shall revert to Consultant
and Company shall sign any documents necessary to transfer such rights
to Consultant.
XV.
TERM/TERMINATION OF CONTRACT
A. This Agreement shall be for an initial term of three (3) years.
If Consultant is in violation of this Agreement, Company may terminate
Consultant's services without notice and with compensation to Consultant only
to the date of such termination.
B. This Agreement may be terminated at any time upon the mutual
agreement of the Parties.
C. Unless either party gives the other ninety thirty (90) days
written notice prior to the expiration of the original term of this Agreement
or any extension thereof, the Agreement shall automatically be renewed for a
term of one (1) year, and the Agreement shall continue to automatically renew
each year unless either party gives the other party notice of intent to
terminate the Agreement as set forth herein.
PERSONAL SERVICES AGREEMENT - PAGE 8
XVI.
INDEMNIFICATIONS
In addition to other similar provisions set forth elsewhere in this
Agreement, both parties agree that Consultant agree shall perform his duties
as an Independent Contractor for the Company. In performing his duties under
this Agreement, Consultant shall for all purposes be deemed an Independent
Contractor. Consultant shall be solely responsible for all costs and
liabilities associated with him, or any of his employees, including, but not
limited to, all taxes or other similar payments related to the services the
Consultant performs for the Company, income taxes, social security payments,
and employment taxes. Consultant acknowledges that he is not entitled to any
benefits or payments of any kind that employees of Company may receive, and
that Consultant's sole compensation for rendering the services set forth in
this Agreement is the payment to be received by Consultant pursuant to this
Agreement. Further, in the event that the Internal Revenue Service or any
other agency assesses any liability against the Company for such payments,
Consultant agrees to indemnify and hold Company harmless from any such claims
or assessments. Although Consultant and his employees shall have certain
responsibilities to the Company as set forth in more detail herein,
Consultant and his employees shall at all times remain under the direction
and control of Consultant and shall not in any way be considered as employees
of the Company or as joint employees of the Company and Consultant.
Consultant shall indemnify the Company and hold the Company harmless from any
and all claims by the Consultant or any of his employees for personal
injuries or other claims arising out of the performance of Consultant or his
employees of duties or obligations of the Consultant pursuant to this
Agreement.
PERSONAL SERVICES AGREEMENT - PAGE 9
XVII.
ASSIGNMENT OF CONTRACT
Neither of the Parties may assign this Agreement or any rights under
the Agreement without prior written consent of the other party.
XVIII.
GOVERNING LAW
The Parties agree that this Agreement has been made in Texas and that
it shall be governed by and construed pursuant to the laws of the State of
Texas.
XIX.
ENTIRE AGREEMENT
This Agreement is the complete and exclusive statement of the mutual
understanding of the parties. This Agreement supersedes and cancels all previous
written and oral agreements and communications between the Parties relating to
the Consultant services that are the subject matter of this Agreement.
XX.
NOTICE
Any notice required or permitted by this Agreement shall be deemed
to have been completed if in writing and delivered personally or mailed by
first-class, registered, or certified mail, postage prepaid to the other
party.
PERSONAL SERVICES AGREEMENT - PAGE 10
A. Notices to Company shall be sent to:
Cap Rock Electric Cooperative, Inc.
000 X. Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
B. Notices to Consultant shall be sent to:
Xxxxxxx X. Xxxxxxx
00 Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXI.
ATTORNEY'S FEES
If any legal action is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees
in addition to any other relief to which that party may be entitled.
XXII.
SEVERABILITY
If any court of competent jurisdiction determines that any part of this
Agreement is invalid or unenforceable, that determination shall not impair or
nullify the remainder of this Agreement.
XXIII.
AMENDMENT
The Parties agree that they may amend this Agreement only by a written
agreement duly executed by persons authorized to execute agreements on behalf of
the Parties.
PERSONAL SERVICES AGREEMENT - PAGE 11
This Agreement shall become effective as of December 16, 1999.
COMPANY
By: /s/ [ILLEGIBLE]
------------------------------
Date: 11/29/99
----------------------------
CONSULTANT
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Date: 11-12-99
----------------------------
PERSONAL SERVICES AGREEMENT - PAGE 12
