CONSULTING AGREEMENT
THIS
AGREEMENT,
made,
entered into, and effective this 3rd
day of
April, 2008 (the "Effective Date"), by and between Xxxxxxx X. Xxxxxxx, an
individual resident of the state of California (hereinafter referred to as
"Consultant"), VEBA
Administrators, Inc., doing business as Benefit Planning, Inc., a California
corporation, with its principal office located at 0000
Xxxxxxxxx Xxx, 0xx Xxxxx, Xxxxxx Xxx Xxx, XX 00000
("Corporation").
W
I T N E S S E T H:
WHEREAS,
Consultant will provide valuable services to the Corporation and the Corporation
realizes that Consultant has a keen understanding of the Corporation’s
operations such that it would be desirable to retain Consultant's services
under
a consulting agreement; and
WHEREAS,
Consultant shall provide such consulting services for the Corporation as an
independent contractor, with the understanding that he shall not be required
to
devote his full time to the business of the Corporation and shall be free to
pursue other personal and business interests.
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants of the parties herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto, it is agreed
as
follows:
1. CONSULTING
ARRANGEMENT.
The
Corporation hereby contracts for the services of Consultant and Consultant
agrees to perform such duties and responsibilities and to render advice and
consulting as may be requested by the Corporation from time to time during
the
term of this consulting arrangement in connection with the Corporation's
business throughout the United States and world wide ("Consulting Arrangement").
Said consulting services shall include services as agreed upon by the
Corporation and the Consultant required to service existing clients not to
exceed 35 hours. Consultant shall not be required to perform his duties at
the
Corporation's location, but shall be permitted to perform these at the location
of Consultant's choice. Consultant
shall use his best efforts to keep the Corporation informed of all corporate
business opportunities which shall come to his attention and appear beneficial
to the Corporation's business so that the Corporation can obtain the maximum
benefits from Consultant's knowledge, experience, and personal
contacts.
2. RELATIONSHIP
BETWEEN PARTIES.
During
the term of the Consulting Arrangement, Consultant shall be deemed to be an
independent contractor. He shall be free to devote his time, energy and skill
to
any such person, firm or company, as he deems advisable, except to the extent
he
is obligated to devote his time, energy and skill to the Corporation pursuant
to
the terms of this Agreement. The Corporation shall not withhold any taxes in
connection with the compensation due Consultant hereunder, and Consultant will
be responsible for the payment of any such taxes.
3. COMPENSATION
FOR THE CONSULTING ARRANGEMENT.
As
consideration for the services to be rendered under the Consulting Arrangement
by Consultant and as compensation for the income he could have otherwise earned
if he had not agreed to keep himself available to the Corporation hereunder,
the
Corporation and the Consultant have agreed to the following
compensation:
| (a) |
Corporation
shall pay Consultant compensation in the aggregate amount of One
Hundred
Thousand Dollars ($100,000) during the Consulting Period at the
rate of
Eight Thousand Three Hundred Thirty Three Dollars and 34/00 ($8,333.34)
per month commencing April 3, 2008, and continuing each month thereafter
for a total of twelve (12) months.
|
| (b) |
In
connection with the generation of new business, the Corporation shall
pay
fees to the Consultant as set forth on Schedule 1 attached hereto.
|
| (c) |
Corporation
shall reimburse Consultant for all expenses reasonably incurred by
Consultant in connection with the performance of Consultant's duties
under
this Agreement; provided that Consultant shall submit proof of such
expenses prior to reimbursement within a reasonable amount of time
following such expenses.
|
| (d) |
Corporation
shall provide Consultant with all necessary support in order for
Consultant to perform his duties hereunder, including, but not limited
to,
access to an office, secretarial support, office telephones, machinery,
equipment, supplies and other similar
items.
|
4. TERM
OF CONSULTING ARRANGEMENT.
The
Consulting Arrangement shall begin effective as of the Effective Date of this
Agreement and shall continue for a period of twelve (12) months (the "Consulting
Period").
5. TERMINATION.
This
Agreement may be terminated by either party upon sixty (60) days written notice
to the other party. The Consultant may terminate this Agreement in the event
that the employment of Xxxx Xxxxx, COO and President of the Corporation, is
terminated, effective immediately upon the effective date of such termination
of
employment.
6. ACCESS
TO BOOKS AND RECORDS. At
all
times during the Consulting Period, the Corporation will provide Consultant
and
his authorized representatives full access during normal business hours and
upon
reasonable prior notice to the premises, properties, books, records, assets,
liabilities, operations, contracts, financial information and other data and
information of or relating to the Corporation (including without limitation
all
written proprietary and trade secret information and documents, and other
written information and documents relating to intellectual property rights
and
matters).
2
7. NOTICES.
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if
sent by a nation-ally recognized overnight delivery service (receipt requested),
in each case to the appropriate addresses and facsimile numbers set forth below
(or to such other addresses and facsimile numbers as a party may designate
by
notice to the other parties):
IF
TO CONSULTANT:
Xxxxxxx
X. Xxxxxxx
0000
Xxxx
Xxx
Xxxxxxx
Xxxxx, XX 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
Copy
to:
Xxxxxxx
X. Xxxxx, Esq.
Reish
Xxxxxxx Xxxxxxx & Xxxxx
00000
Xxxxxxxx Xxxx., Xxxxx Xxxxx
Xxx
Xxxxxxx, XX 00000
Phone:
(000) 000-0000
Facsimile: (000)
000-0000
IF
TO CORPORATION:
VEBA
Administrators, Inc.
000
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxx 00000
Attn:
Xxxxxx Xxxx, CEO
Phone:
(000) 000-0000
Facsimile:
(000)
000-0000
Copy
to:
Xxxxxxx
X. Xxxxxxx, Esq.
Law
Offices of Xxxxxxx X. Xxxxxxx PLLC
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx
Xxxxxx, Xxx Xxxx 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
3
8. BINDING
EFFECT.
This
Agreement shall extend to, shall inure to the benefit of and shall be binding
upon all the parties hereto and upon all of their respective heirs, successors
and representatives.
9. ENTIRE
AGREEMENT. This
Agreement, including the agreements incorporated by reference, contains the
entire Agreement among the parties hereto with respect to the matters
contemplated hereby and supersedes all prior agreements and undertakings between
the parties with respect to such matters. This Agreement may not be amended,
modified or terminated in whole or in part, except in writing, executed by
each
of the parties hereto.
10. SEVERABILITY.
Should
any part of any provision of this Agreement be declared invalid by a court
of
competent jurisdiction, such decision or determination shall not affect the
validity of any remaining portion of such provision or any other provision
and
the remainder of the Agreement shall remain in full force and effect and shall
be construed in all respects as if such invalid or unenforceable provision
or
portion thereof were not contained herein. In the event of a declaration of
invalidity, the provision or portion thereof declared invalid shall not
necessarily be invalidated in its entirety, but shall be observed and performed
by the parties to the Agreement to the extent such provision is valid and
enforceable.
11. SECTION
HEADINGS.
The
section headings contained herein are for convenience of reference only and
shall not be considered any part of the terms of this Agreement.
12. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other
laws that would result in the application of the laws of another jurisdiction.
This Agreement shall be construed and interpreted without regard to any
presumption against the party causing this Agreement to be drafted. Each of
the
parties hereby unconditionally and irrevocably waives the right to a trial
by
jury in any action, suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. Unless the matter is subject
to Arbitration as provided in Section 13, below, each of the parties
unconditionally and irrevocably consents to the exclusive jurisdiction of the
courts of the State of California located in the County of Los Angeles and
the
Federal court in the Central District of California with respect to any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and each of the parties hereby unconditionally
and irrevocably waives any objection to venue in any such court.
4
13. ARBITRATION.
(a) Arbitrable
Claims.
To the fullest extent permitted by law, all disputes between Consultant (and
his
attorneys, successors, and assigns) and Corporation and its affiliates,
members, shareholders, directors, officers, employees, agents, successors,
insurers, attorneys, and assigns) of any kind whatsoever, including, without
limitation, all disputes relating in any manner to the employment or termination
of Consultant, and all disputes arising under this Agreement, (“Arbitrable
Claims”) shall be resolved by arbitration. All persons and entities specified in
the preceding sentence (other than Corporation and Consultant) shall be
considered third-party beneficiaries of the rights and obligations created
by
this Section on Arbitration.
(b) Procedure.
Arbitration of Arbitrable Claims shall be before the Judicial Arbitration and
Mediation Service (“JAMS”) in accordance with its Rules for the resolution of
disputes, as amended, and as augmented in this Agreement. Arbitration shall
be
final and binding upon the parties and shall be the exclusive remedy for all
Arbitrable Claims. Either party may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit or administrative action
in any way related to any Arbitrable Claim. Notwithstanding the foregoing,
either party may, at its option, seek injunctive relief pursuant to section
1281.8 of the California Code of Civil Procedure. All arbitration hearings
under
this Agreement shall be conducted in Los Angeles, California.
Corporation shall pay the arbitrator’s and JAMS’ fees and costs to the extent
required by law. If
the allocation of responsibility for payment of the arbitrator’s fees and costs
would render the obligation to arbitrate unenforceable, the parties authorize
the arbitrator to modify the allocation as necessary to preserve enforceability.
The arbitrator shall apply and follow California Substantive and Evidence Law.
The decision of the arbitrator shall be in writing and shall include a statement
of the essential conclusions and findings upon which the decision is based.
The
interpretation and enforcement of this agreement to arbitrate shall be governed
by the California Arbitration Act. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY
MAY
HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT
LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY,
OR
ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
14. ATTORNEYS'
FEES. In
the event of any dispute between parties to this Agreement, the prevailing
party
shall be entitled to immediate payment of all costs incurred by such party
in
such dispute, including, but not limited to, court costs and reasonable
attorneys' fees.
IN
WITNESS WHEREOF,
Consultant has hereunto put his hand, and the Corporation has caused this
instrument to be executed in its corporate name by its duly authorized officer,
all as of the day and year first above written.
| CONSULTANT: | CORPORATION: | ||
| VEBA Administrators, Inc., doing business
as Benefit Planning, Inc., a California corporation |
|||
| /s/ Xxxxxxx X. Xxxxxxx | /s/ Xxxxxx Xxxx | ||
|
Xxxxxxx X. Xxxxxxx |
Name: Xxxxxx Xxxx |
||
| Title: CEO |
6
SCHEDULE
1
This
Schedule I pertains only to new business generated by
Consultant.
| Type of revenue | Payment to Consultant | |
| Part A | ||
|
· Referrals
for TPA business
|
30%
of first year TPA fees (legal and plan admin), excludes amendments
and
restatement fees
|
|
| Part B | ||
|
· Installation
commission allowance/set up fees
|
30%
of fees
|
|
|
· Insurance
& Securities Commissions
|
50%/50%
split with NIVM (after Broker/Dealer fees)
|
|
|
· RIA
Services “solicitor fees”
|
50%/50%
split with NIVM
|
|
|
· RIA
Services TPA allowance
|
100%
NIVM
|
|
|
· Ins.
Commission referral (inside NIVM)
|
30%
referral fee (1st
year revenue only) (i.e. VFE)
|
|
|
· Ins.
Commission referral (outside NIVM)
|
50%/50%
split with NIVM (i.e. Xxxxxxxx)
|
|
|
· TPA
overrides from Ins. Carrier
|
100%
NIVM
|
7
