EXHIBIT 10.3 - Executive Consulting Agreement
EXECUTIVE CONSULTING AGREEMENT
THIS EXECUTIVE CONSULTING AGREEMENT (this "Agreement"), dated November 1, 2012,
is by and between Xxxxx X. Xxxxx ("Consultant") and Signal Advance, Inc. or any
subsequent surviving entity ("Company).
R E C I T A L S:
WHEREAS, Company's board of directors (the "Board") desires to contract for
services in a Consulting capacity and the Consultant desires to be so engaged
in such capacity;
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I: Term
1.1 Consulting. Company contracts with Consultant and Consultant accepts the
consultancy under the terms and conditions of this Agreement.
1.2 Term. The term of this Agreement shall be for Twenty-Four (24) months with
an annual open option thereon as set forth herein and shall be effective as of
November 1, 2012, and shall terminate on October 31, 2014. Unless written notice
of termination is given to Consultant, or Company, not less than three (3)
months prior to the termination of this Agreement, this Agreement will be
extended for additional twelve (12) month periods.
A. Option Term. Upon the condition that there is no breach of any condition or
term of this Agreement at the time of exercise, this Agreement may be extended
annually, for an additional period of twelve (12) months, on the same terms and
conditions of this Agreement, unless modified or amended upon the written
consent of Company and Consultant.
ARTICLE II: Compensation
2.1 Compensation. For all services rendered by Consultant, Company shall pay
Consultant a base compensation commencing on January 2, 2012, of One Hundred
Eight Thousand Dollars ($108,000) per year payable in cash or equivalent value
on Corporate Securities, provided at the Consultants prevailing acquisition
rate, at the discretion of the Consultant.
A. Compensation Adjustment. Compensation is to be increased by Six Thousand
Dollars ($6,000) per year up to a maximum annual compensation of One Hundred
Twenty Thousand Dollars ($120,000). Any further compensation increases will
be determined by the Broad of Directors.
Company and Consultant recognize that certain "Events" (as defined in the
following paragraph) may occur which will give rise to an automatic
compensation increase. Upon the occurrence of any one of the Events listed in
the following paragraph, Consultant's compensation shall be increased to One
Hundred Twenty Thousand ($120,000) per year during the term of this Agreement.
Such increase shall be automatic upon the happening of any one of the Events
listed below.
B. Definition of "Events." For purposes of this Agreement and particularly, the
compensation increases described in the foregoing paragraph, any one of the
following shall be considered an "Event":
i. Merger. A merger with a third party entity, whereby at least fifty-one
percent (51%) of Company's outstanding common stock is merged with such entity.
ii. Sale/Acquisition. A sale or acquisition of at least fifty-one percent of
Company's outstanding common stock or the sale of all or substantially all of
Company's assets to a third party entity.
iii. Capital. Company's raising at least $1 million through the sale of equity
securities.
2.2 Earned Monetary Bonuses. Consultant shall be entitled to an annual bonus
as determined by the Company's Board of Directors. Consultant's performance
shall be reviewed annually to determine the payment of bonuses.
2.3 Automobile. Company will provide to Consultant the use of an automobile of
Consultant's choice at a gross purchase price not to exceed Twenty Thousand
($20,000). Company agrees to replace the automobile with a new one at
Consultant's request no more often than once every three years. Company will
pay all automobile operating and maintenance expenses and will either, procure,
and maintain in force, an automobile insurance policy which includes liability,
comprehensive and collision coverage, or reimburse Consultant the cost of
procuring said insurance coverage.
2.4 Stock Option Consideration. While currently not available, Consultant, as
partial consideration for his services, shall be entitled to participate in and
receive any Stock Options available under any future options plan as
determined by the Company's Board of Directors. Such determination shall be
made on an annual basis.
2.5 Consultant Benefits. In addition to the foregoing, Consultant shall be
entitled to the following:
A. Holidays. Consultant will be entitled to at least Ten (10) paid holidays
each calendar year and ten (10) personal days. Company will notify Consultant
on or about the beginning of each calendar year with respect to the holiday
schedule for the coming year. Personal holidays, if any, will be scheduled in
advance subject to requirements of Company. Such holidays must be taken during
the calendar year and cannot be carried forward into the next year. Consultant
is not entitled to any personal holidays during the first six months of
consultancy.
B. Vacation. Following the first six months of this contract, Consultant shall
be entitled to twenty (20) paid vacation days each year.
C. Sick Leave. Consultant shall be entitled to sick leave and emergency leave
of up to thirty (30) days. Additional sick leave or emergency leave over and
above paid leave provided by the Company, if any, shall be unpaid and shall be
granted at the discretion of the board of directors.
D. Medical Insurance. Company agrees to:
i. Provide Consultant and his immediate family medical insurance at no charge
to the Consultant, or
ii. Reimburse Consultant for acquiring such medical insurance coverage, and/or
iii. Reimburse Consultant for 'out-of-pocket' medical expenses for Consultant
and his immediate family.
The total cost of medical insurance plus reimbursement of medical expenses
shall not exceed Fifteen Percent (15%) of the base Compensation per year.
E. Pension and Profit Sharing Plans. Consultant shall be entitled to
participate in any pension or profit sharing plan or other type of plan
adopted by Company for the benefit of its officers and/or regular consultants.
F. Expense Reimbursement. Consultant shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred by
Consultant in the performance of Consultant's duties. Consultant will maintain
records and written receipts as required by the Company policy and reasonably
requested by the board of directors to substantiate such expenses.
G. Education/Professional Development Reimbursement: Consultant shall be
entitled to reimbursement for educational/professional development expenses
consistent with the goals of the Company up to an amount of Five Thousand
Dollars ($5,000) per year.
ARTICLE III: Duties of Consultant
3.1 Duties. Consultant is engaged as President and CEO; and shall have authority
over such decision-making and managerial duties regarding the business of
Company; and shall supervise and direct all of the business of Company according
to business plans and strategies provided by Company, reporting only to the
Board. The precise services of Consultant may be extended or curtailed by mutual
agreement of Company and Consultant from time to time.
3.2 Extent of Services. Consultant shall devote so much of his productive time,
ability and attention to the business of the Company as is necessary to fulfill
his duties; and shall perform all such duties in a professional, ethical and
businesslike manner. Consultant will not, either during the term of this
Agreement and for a period of twelve (12) months thereafter, directly or
indirectly engage in any other business, either as an consultant, Company,
consultant, principal, officer, director, advisor, or in any other business
capacity, which is competitive with the business of the Company, without the
express written consent of the Company. Furthermore, the Board may require that
Consultant account for his time spent performing his duties hereunder at any
time.
Upon such notice, Consultant shall account for his time and deliver such
accounting to the Board until further notified. Based upon such records, the
Board, in its sole discretion, may adjust Consultant's flexible and/or full time
off (FTO) and/or compensation during such period accordingly.
3.3 Engaging in Other Consulting. Consultant hereby agrees to undertake the
responsibilities for and devote his productive time, abilities, and attention
to the business of Company during the term of this Agreement. Any outside
consultancy in any capacity is acceptable to the extent that there is no
conflict with the duties and obligations of consultant's role as President
and CEO of Company.
3.4 Accountability. Consultant shall be directly responsible to the Board.
3.5 Code of Ethics. Consultant agrees to comply with the 'Code of Ethics and
Business Conduct' in the conduct of his business on behalf of Company.
(Copy attached)
ARTICLE IV: Duties of Company
4.1 Payment of Compensation and Provision of Benefits. During the terms hereof,
Company agrees to pay all compensation, benefits, allowances and FTO due to
Consultant as set forth herein.
4.2 Working Facilities. Company shall provide offices, administrative help and
such other facilities and services as are suitable to his position and
appropriate for the performance of his duties.
ARTICLE V: Disability; Death During Consultancy
5.1 Disability. If Consultant is unable to perform his services by reason of
illness or incapacity for a period of more than one (1) month, the compensation
thereafter payable to him during the continued period of such illness or
incapacity for a period not to exceed twelve (12) months shall be sixty percent
(60%) of Consultant's then current compensation.
Consultant's full compensation shall be reinstated upon his recovery.
Notwithstanding anything to the contrary, Company may terminate this Agreement
at any time after Consultant shall be absent from his consultancy, for whatever
cause, for a continuous period of more than twelve (12) months, and the
obligations of Company shall thereupon terminate. If it is determined, pursuant
to the terms of this Agreement, that Consultant is disabled or incapacitated
and cannot discharge the duties and responsibilities contemplated hereunder,
Company shall have the right to hire an consultant to replace him in whatever
position he may have at that time.
In lieu of the foregoing, Company may obtain disability insurance for
Consultant. Should this occur, pragraph 5.1 shall be null and void and the
terms of said disability insurance shall govern, so long as the terms in such
policy are equal to or greater than the terms outlined in Section 5.1.
5.2 Death During Engagement. If Consultant dies during the term of engagement,
Company shall pay to the estate of Consultant the compensation which would
otherwise be payable to Consultant up to the end of the month in which death
occurs. In addition, Company shall pay a sum equal to two (2) year's
compensation payable in equal monthly installments after the death of Consultant
to the spouse of Consultant or if he is not survived by his spouse, then to
Consultant's heirs in equal shares, or if there are no such surviving heirs,
to the estate of Consultant.
ARTICLE VI: Confidential Information; Trade Secrets; Proprietary Rights,
Intellectual Property
6.1 Confidentiality. Consultant hereby acknowledges that he has received, and/or
will receive in the future, information regarding the business of Company,
including but not limited to customer lists, product information, business
strategy, consultant agreements, which information is deemed confidential
information (the "Confidential Information").
The parties hereto recognize and acknowledge that the Confidential Information
is proprietary and integral to Company's business and agrees to keep such
Confidential Information confidential and not disclose the same to any third
person, corporation and/or entity for a period of two (2) years subsequent to
the termination of this Agreement or termination of Consultant as an consultant
of Company, whether such termination is with or without cause.
6.2 Products. All products relating to Company's business, designed, improved
or enhanced by Consultant, will be the sole property of Company and Consultant
will not be allowed to possess or use them unless Company agrees in writing
thereto. Whenever requested to do so by Company, Consultant will execute any and
all applications, assignments or other instruments that Company deems necessary
to protect Company's interests therein. Consultant's obligations hereunder shall
survive the termination of Consultant's contract with respect to inventions,
discoveries and improvements conceived or made by Consultant during the term of
the Consultancy described in this Agreement.
6.3 Intellectual Property. Consultant agrees to assign to Company inventions,
trade secrets, technological improvements and any other Intellectual Property
he develops, originates, improves or discovers during his consultancy arising
in the performance of his duties, confined to the scope of his duties and that
is related to the intellectual property previously assigned by the Consultant to
the Company.
ARTICLE VII: Non-Competition
7.1 Non-Competition. During the term of Consultant's agreement set forth in
this Agreement, and for a period of one (1) year thereafter, Consultant will
not directly or indirectly be an owner, partner, director, manager, officer
or consultant or otherwise render services or be associated with any business
that competes with Company.
ARTICLE VIII: Termination / Note Purchase
8.1 Termination With Cause. With cause, Company may terminate this Agreement
upon thirty (30) days' notice to Consultant. In such event, Consultant shall
continue to render his services and shall be paid his regular compensation up
to the date of termination. Severance allowance shall be equal to six (6)
month's compensation of Consultant. For purposes of this Agreement,
termination "with cause" shall be for any of the following:
A. Any breach of any material obligations owed to Company;
B. Failure to follow the directive of the Company's board of directors; or
C. Conviction of a felony or any act involving moral turpitude.
8.2 Termination Without Cause. Company may terminate Consultant without cause
upon thirty (30) days written notice. Upon termination without cause by Company,
Consultant shall be entitled to cash compensation equal to the greater of the
following: (A) the then existing base compensation of Consultant, as defined in
Article 2.1, for the remainder of the term of this Agreement; or (B) the then
existing base compensation of Consultant, as defined in Article 2.1, for a
period of twelve (12) months from the date of termination without cause. In the
event of termination without cause, all cash compensation, as referred to above,
shall be paid to Consultant on a monthly basis.
8.3 Termination Upon Sale of Business. Notwithstanding anything to the contrary,
Company may terminate this Agreement upon thirty (30) days' written notice upon
the happening of any of the following events which any one event will be treated
as a termination without cause for purposes of severance allowance pursuant to
this Agreement.
A. The sale by Company of substantially all of its assets to a single purchaser
or a group of associated purchasers;
B. The sale, exchange or other disposition, in one transaction, of at least
fifty percent (50%) of the outstanding common shares of the Company;
C. A decision by Company to terminate its business and liquidate its assets; or
the merger or consolidation of Company in a transaction in which the
shareholders of Company receive at least fifty percent (50%) of the outstanding
voting shares of the new or continuing corporation.
D. Notwithstanding the foregoing, should Company agree to sell all or
substantially all of its assets, Company shall purchase Consultant's Shares for
an amount of the greater of the Stock Purchase Price or the same price sold by
other of Company's shareholders.
ARTICLE IX: General Provisions
9.1. Waiver of Breach. The waiver by Company of breach of any provisions of
this Agreement by Consultant shall not operate or be construed as a waiver of
any subsequent breach by Consultant. No waiver shall be valid unless in writing
and signed by an authorized officer of Company.
9.2 Assignment. Consultant acknowledges that the services to be rendered by him
are unique and personal. Accordingly, Consultant may not assign any of his
rights and obligations under this Agreement. The rights and obligations of
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of Company.
9.3 Modification. This Agreement may not be modified, changed or altered orally
but only by an agreement in writing signed by the party against an enforcement
of any waiver, change, modification, extension or discharge as sought.
9.4. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Texas without regard to Conflict of Laws.
9.5 Integration Clause. This instrument contains the entire agreement between
the parties hereto and supersedes any and all prior written and/or oral
agreements. This Agreement may be altered or modified only in writing signed by
the parties hereto.
9.6 Notices. Any notice required or desired to be given under this Agreement
shall be deemed given if in writing sent by certified mail to the parties at
each party's last known address.
9.7 Attorneys' Fees. Should any party seek the enforcement of any term of this
Agreement, the prevailing party thereunder shall be entitled to attorneys' fees
and costs for the enforcement of such term or provision.
9.8 Arbitration. In the event of any dispute arising under this Agreement,
including any dispute regarding the nature, scope or quality of services
provided by either party hereto, its is hereby agreed that such dispute shall
be resolved by binding arbitration to be conducted through the American
Arbitration Association, to be arbitrated in accordance with its rules and
regulations and procedures in Houston, Texas. In the event of any such
arbitration, pending resolution of the arbitration and the award of costs by the
arbitrator, each party hereto shall advance one-half of the amounts, if any,
requested by the arbitrator and/or the sponsoring organization.
IN WITNESS WHEREOF, the parties executed this Agreement as of the effective date
indicated above.
Consultant: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
For Signal Advance, Inc. (Company): /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Corporate Secretary
