EXHIBIT 10.15
CONSULTING AGREEMENT
W. XXXXXX XXXXXXX
CONSULTING AGREEMENT
AGREEMENT made as of this 1st day of September 2014 by and between
Terex Energy Corporation, a Colorado Corporation the ("Company"), located at 000
Xxxx Xx. Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx and W. Xxxxxx Xxxxxxx, located at 8950
Scenic Pine Dr. (the "Consultant" or "Xxxxxxx").
WHEREAS, Xxxxxxx is licensed to practice law in the State of Colorado
and is member of the American Bar Association, and;
WHEREAS, the Company desires professional guidance and advice regarding
financing, management, legal, oil and gas acquisitions and general business
advice and desires Consultant to aid it in business matters; and
WHEREAS, Consultant has expertise in the area of corporate structure,
corporate finance, mergers and acquisitions and oil and gas;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties hereto agree as follows:
1. DUTIES, SCOPE OF AGREEMENT, AND RELATIONSHIP OF THE PARTIES
(a) The company hereby agrees to retain Consultant as in house legal
counsel and advisor and consultant on business matters, consistent with
Consultant's expertise and ability, and Consultant agrees to consult with the
Company during the term of this Agreement. All parties understand that
Consultant has many other business interests and will devote as much time as in
its discretion as necessary to perform its duties under this Agreement. In
addition, the company understands that consultant's efforts on behalf of his
other interests are the sole and separate property of Consultant.
(b) The services rendered by Consultant to the company pursuant to this
Agreement shall be as an independent contractor, and this Agreement does not
make Consultant the employee, agent, or legal representative of the Company for
any purpose whatsoever, including without limitation, participation in any
benefits or privileges given or extended by the Company to its employees. No
right or authority is granted to Consultant to assume or to create any
obligation or responsibility, express or implied, on behalf of or in the name of
the company. The company shall not withhold for Consultant any federal or state
taxes from the amounts to be paid to consultant hereunder, and Consultant agrees
that he will pay all taxes due on such amounts.
(c) Consultant agrees to make available to Company his services, which
include legal, strategic planning, assistance in business development,
assistance in the acquisition of oil and gas properties, management, and the
structuring of new debt and equity offerings. Consultant shall provide planning
for and other advisory services as the Company may specifically request.
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2. TERM. This Agreement shall be for a term of 3 years.
3. COMPENSATION.
(a) Company agrees to pay Consultant no less than a Base Fee of
$150,000.00 per year. In addition to the Base Salary, Consultant shall be paid a
monthly car allowance of six hundred dollars.
(b). BENEFITS. At its cost, Company shall reimburse Consultant for the
costs of medical health insurance, dental and vision insurance, disability
income insurances and other such benefits at the level afforded the same level
executives and consultants of the Company. Consultant shall be entitled to
participate in any Incentive Stock Option plan.
(c) Consultant shall be entitled to four (4) weeks of paid vacation &
sick leave beginning the 1st and ending after the last calendar year of
engagement and for each calendar year during the term of this Agreement.
Vacation shall be at a mutually agreed upon time, such agreement not to be
unreasonably withheld. Said vacation and sick leave shall be fully earned the
first and last calendar years of engagement.
(d) BUSINESS EXPENSES. Company shall reimburse Consultant for all
reasonable and necessary business expenses including highway tolls incurred by
him in carrying out his duties under this Consulting Agreement so long as such
expenses are properly documented in accordance with the Company's policies for
expense reimbursement.
(e) COMPANY RESOURCES. As a matter of convenience, Consultant will have
limited use of Company's resources for personal purposes, including telephone,
copy machine, vehicles, staff and such other resources as the parties may agree.
Company will reimburse Consultant for the cost of a mobile phone. Consultant
shall provide his own personal computer and the Company shall pay for any
upgrades or replacement computer for office and home use, and such other
equipment as the parties may agree in accordance with the Company's usual
practice. Upon termination or expiration of this Agreement the Consultant may
retain the personal computer.
(f) OTHER SOURCES OF INCOME/EARNINGS. The Company understands that the
Consultant has other sources of income and earning through consultancy, or
positions in associations, companies, enterprises or ventures where the Company
had or has an existing relationship; and that these relationships will continue
and that new and additional relationships and sources of income may be
established in the future. The Company agrees that these relationships and
sources of income may continue as long as the Consultant fulfills his duties and
responsibilities and as long as the Consultant hereby warrants that there is no
current relationship that constitutes even the perception of a conflict of
interest or that would preclude the Consultant from the fulfillment of duties
and responsibilities.
(g) Consultant Options. Upon the effective date of this Agreement the
Consultant will be the legal and beneficial owner of 250,000 options at no cost
to Consultant. The options shall be vested ratably over the term of this
agreement. The options shall have an exercise price of $.10. The Consultant
shall be entitled to participate in any and all incentive programs, including,
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without limited the generality of the foregoing, share option plans, share and
or cash bonus plans as established from time to time by the board of directors.
4. TERMINATION. The following shall apply:
(a). Death. In the event of Consultant's death during this Agreement,
this Agreement and the Consultants duties shall terminate.
(b). ILLNESS OR INCAPACITY. If, during any term of this Agreement,
Consultant shall become unable to perform his duties by reason of illness or
incapacity, then Company, may, at its option, terminate this Agreement. In such
event, the notice period shall be not less than the applicable elimination
period in any employee disability plan of the Company in which Consultant
participates. It is agreed that the determination of illness or incapacity shall
be made upon the basis of qualified medical evidence and if, during the notice
period, Consultant returns to work and is capable of carrying out his duties,
then Company's right to terminate for illness or incapacity is suspended.
(c) FOR CAUSE. Upon thirty (30) days written notice, the Consultants
engagement hereunder may be terminated without further liability on the part of
the Company for Cause. Only the following shall constitute "Cause" for such:
(i) Conviction of a felony, a crime or moral turpitude or
commission of an act of embezzlement or fraud against the Company or
any subsidiary or affiliate thereof:
(ii) Deliberate dishonesty of the Consultant resulting in
damages to the Company or any subsidiary or affiliate thereof;
(iii) Dereliction of duty, misfeasance or malfeasance.
In the event of a termination for cause the Consultant shall not be
entitled to the benefits of any bonus for the period preceding the termination
nor will the company be required to repurchase any of the shares owned by the
Consultant as hereinafter provided.
(d) Termination at will by the Company. The Company may terminate this
agreement at will upon 60 days written notice. In the Company decides to
terminate this agreement the company shall repurchase fifty percent of the
Consultants shares including shares acquired by exercising any options up to
five hundred thousand at a price equal to ninety percent of the average trading
price over the 60 days preceding the notice of termination. The Company shall
pay fifty percent of the repurchase within price within 30 days of termination
and the balance within 60 additional days.
(e) Resignation by Consultant. The Consultant may resign and terminate
this agreement on 60 days written notice and he shall not be required to render
any further services to the Company.
(f) SET-OFF. The Company shall not be entitled to any set off against
any cash compensation to be provided to the Company under this Agreement, or any
and all compensation received by the Consultant while he was also receiving
compensation from any other company, unless a Conflict of Interest arises. In
such case the Consultant shall inform the Company of any such amounts of cash
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compensation pertaining to the conflict of interest and shall refund to the
Company any related amounts paid by the Company. It is acknowledged that
Consultant is also a director of Three Forks Inc.
Should Consultant terminate this with or without Good Reason, he agrees
to assist Company for a period of time not less than thirty (30) days in order
to effect a smooth transition, unless otherwise requested by Company.
5. EXPENSES
The Company shall reimburse Consultant for all reasonable and necessary
expenses incurred by him in carrying out its duties under this Agreement.
Consultant shall submit related receipts and documentation with his request for
reimbursement.
6. RENEWAL; TERMINATION
(a) This Agreement shall continue in effect until terminated by the
parties or its expiration date.
(b) Subject to the continuing obligations of Consultant under Section 8
below, either party may terminate this Agreement at any time if the other party
shall fail to fulfill any material obligation under this Agreement and shall not
have cured the breach within 10 days after having received notice thereof.
(c) Termination or expiration of this Agreement shall not extinguish
any rights of compensation that shall accrue prior to the termination.
7. CHANGE IN CONTROL
In a Change of control event, the Corporation shall treat this
Agreement as terminated by Corporation without cause in which event Corporation
shall be obligated to provide the Consultant with a severance payment in lieu of
notice. Such severance payment shall be payable on the 15th day following the
date on which the Corporation notifies the Consultant of his termination and
shall consist of the following amounts:
1. The Consultants compensation salary through the date of termination
specified in the notice of termination at the rate in effect at the time notice
of termination was given, plus an amount equal to the amount, if any, of any
awards previously made to the Consultant which have not been paid.
2. In lieu of further compensation and benefits for periods subsequent
to the date of termination, an amount which shall be equal to the compensation
and benefits which would otherwise have been payable to or paid on behalf of the
Consultant for the (6) month period following the date of termination.
3. Any remaining or outstanding stock grants, options or awards shall
fully vest with a cashless option provision.
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8. CONFIDENTIAL INFORMATION
(a) "Confidential Information," as used in this Section 7, means
information that is not generally known and that is proprietary to the Company
or that the Consultant is obligated to treat as proprietary. This information
includes, without limitation:
(i) Trade secret information about the Company and its
products or assets;
(ii) Information concerning the Company's business as the
Company has conducted it since the Company's incorporation or as it may
conduct it in the future; and
(iii) Information concerning any of the Company's past,
current, or possible future products, including (without limitation)
information about the Company's research, development, engineering,
purchasing, manufacturing, accounting, marketing, selling, or leasing
efforts.
(b) Any information that Consultant reasonably considers Confidential
Information, or that the Company treats as Confidential Information, will be
presumed to be Confidential Information (whether Consultant or others originated
it and regardless of how it obtained it).
(c) Except as required in its duties to the Company, Consultant will
never, either during or after the term of this Agreement, use or disclose
confidential Information to any person not authorized by the Company to receive
it.
(d) If this Agreement is terminated, Consultant will promptly turn over
to the Company all records and any compositions, articles, devices, apparatus
and other items that disclose, describe, or embody Confidential Information,
including all copies, reproductions, and specimens of the Confidential
Information in its possession, regardless of who prepared them. The rights of
the Company set forth in this Section 7 are in addition to any rights of the
Company with respect to protection of trade secrets or confidential information
arising out of the common or statutory laws of the State of Colorado or any
other state or any country wherein Consultant may from time to time perform
services pursuant to this Agreement. This Section 7 shall survive the
termination or expiration of this Agreement.
9. FALSE OR MISLEADING INFORMATION
The Company warrants that it will provide Consultant with accurate
financial, corporate, and other data required by Consultant and necessary for
full disclosure of all facts relevant to any efforts required of Consultant
under this Agreement. Such information shall be furnished promptly upon request.
If the Company fails to provide such information, or if any information provided
by the Company to Consultant shall be false or misleading, or if the Company
omits or fails to provide or withholds relevant material information to
Consultant , then, in such event, any and all fees paid hereunder will be
retained by Consultant as liquidated damages and this Agreement shall be null
and void and Consultant shall have no further obligation hereunder. Further, by
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execution of this Agreement, the Company hereby indemnifies Consultant from any
and all costs for expenses or damages incurred and holds Consultant harmless
from any and all claims and/or actions that may arise out of providing false or
misleading information or by omitting relevant information in connection with
the efforts required of Consultant under this Agreement.
10. MISCELLANEOUS
(a) SUCCESSORS AND ASSIGNS. This Agreement is binding on and ensures to
the benefit of the Company, its successors and assigns, all of which are
included in the term the "Company" as it is used in this Agreement and upon
Consultant, its successors and assigns. Neither this Agreement nor any duty or
right hereunder will be assignable or otherwise transferable by either party
without the written consent of the other party, except that the Company shall
assign this Agreement in connection with a merger, reorganization, business
combination, consolidation, assignment, sale or other disposition of
substantially all of its assets or business. This Agreement will be deemed
materially breached by the Company if its successor or assign does not assume
substantially all of the company's obligations under this Agreement.
(b) MODIFICATION. This Agreement may be modified or amended only by a
writing signed by both the Company and Consultant.
(c) GOVERNING LAW. The laws of Colorado will govern the validity,
construction, and performance of this Agreement. Any legal proceeding related to
this Agreement will be brought in an appropriate Colorado court, and both the
Company and Consultant hereby consent to the exclusive jurisdiction of that
court for this purpose.
(d) CONSTRUCTION. Wherever possible, each provision of this Agreement
will be interpreted so that it is valid under the applicable law. If any
provision of this Agreement is to any extent invalid under the applicable law,
that provision will still be effective to the extent it remains valid. The
remainder of this Agreement also will continue to be valid, and the entire
Agreement will continue to be valid in other jurisdictions.
(e) WAIVERS. No failure or delay by either the Company or Consultant in
exercising any right or remedy under this Agreement will waive any provision of
the Agreement, nor will any single or partial exercise by either the Company or
Consultant of any right or remedy under this Agreement preclude either of them
from otherwise or further exercising these rights or remedies, or any other
rights or remedies granted by any law or any related document.
(f) CAPTIONS. The headings in this Agreement are for convenience only
and do not affect this Agreement's interpretation.
(g) ENTIRE AGREEMENT. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings, and understandings
between the parties concerning the matters in this Agreement.
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(h) NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing and sent by registered first-class
mail, postage prepaid, and shall be effective five days after mailing to the
addresses stated below. These addresses may be changed at any time by like
notice.
In the case of the Company: Terex Energy Corporation.
000 Xxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
In the case of Consultant: W. Xxxxxx Xxxxxxx
0000 Xxxxxx Xxxx Xx.
Xxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
"The Company" "Consultant"
By: By:
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