CONSULTING AGREEMENT
Exhibit 10.3
This
Consulting Agreement (the "Agreement") is made this 6th day of August, 2007,
between Deep Down. Inc., located at 00000 Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxx 00000
(the "Company") and Xxxxxx X. Xxxxxx & Associates, located at 0000 Xxxxx
Xxxxxx Xx.; Xxxxxxx, XX 00000, (the "Consultant").
ARTICLE
I
TERMS
AND DUTIES
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1.1
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The
Consultant is hereby engaged for a period commencing on August 6, 2007 and
ending May 31, 2010 (the "Initial Term"), and the Consultant hereby
accepts the engagement by providing the services of Xxxxxx X. Xxxxxx
("Xxxxxx") as Chief Financial Officer. The Initial Term shall be
automatically renewed for up to two successive consecutive one (1) year
periods (each, a ''Renewal Term" and the Initial Term and Renewal Term are
collectively referred to as the "consulting period") thereafter unless
either party sends notice to the other party, not more than 270 days and
not less than 90 days before the end of the then-existing consulting
period, of such party's desire to terminate the Agreement at the end of
the then- existing term, in which case this Agreement will terminate at
the end of the then-existing term. Consulting services will be provided at
the Company address or at such other places as may be directed by the
Company. The Consultant agrees that time is to be scheduled by the Company
and to devote reasonable productive time, ability and attention to the
business of the Company during the term of this Agreement, subject to the
direction and supervision of the
Company.
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ARTICLE
II
COMPENSATION
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2.1
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As
compensation for services rendered under this Agreement, the Consultant
shall be entitled to receive a base consulting fee of One Hundred Eighty
Thousand and NO/100 DOLLARS ($180,000.00) per annum payable twice monthly
plus an amount equal to Federal and State payroll withholdings customarily
withheld for an employee earning this compensation, including but not
limited to FICA and Medicare. The consulting fee may be increased annually
at the discretion of the Board of Directors. The Consultant is also
entitled to annual bonuses as determined by the Board of Directors. The
Consultant shall provide such reasonable business hours as the Company
shall dictate, but at least forty hours per
week.
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Page 1 of
4
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2.2
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Xxxxxx
shall be eligible to participate in any and all benefits as are available
from time to time to key executive officers, directors and employees (and
their families) of the Company, including all health, medical, dental, and
life insurance benefits. The Company shall pay 100 % of all premiums with
respect to such plans for Xxxxxx. Xxxxxx may, at his option, elect to be
reimbursed for medical insurance premiums incurred for medical insurance
not provided through the Company. Xxxxxx will be entitled to four weeks
paid vacation. Xxxxxx will also be entitled to $1,000 per month as an
expense allowance to pay for the cost of a vehicle, insurance, gasoline,
maintenance, repairs and other unanticipated
costs.
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2.3
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The
Employment Agreement dated May 31, 2007 is hereby terminated and replaced
by this Consulting Agreement. Notwithstanding the foregoing, the 3,000,000
options granted pursuant to the Employment Agreement remain as validly
existing options.
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ARTICLE
III
TERMINATION
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3.1
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If
the Consultant willfully breaches or habitually neglects the duties which
he is required to perform under the terms of the Agreement, the Company
may at its option terminate this Agreement by giving written notice of
termination to the Consultant.
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3.2
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Willfully
breaches is defined as misappropriation of Company' s assets, being
intoxicated or under the influence of drugs or alcohol while on the job.
being convicted of a felony, or not willingly coming to
work.
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ARTICLE
IV
NON-COMPETITION
BY CONSULTANT
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4.1
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Consultant agrees that this
covenant is a separate contract in and of itself. In the event that
any of the prior
clauses of this contract should fail, this separate contract shall be
binding upon the
parties. Consultant covenants and agrees that during his consultancy with
Company and upon
termination of their engagement, whether by termination of this
Agreement, by
wrongful discharge. or otherwise, Consultant shall not directly or
indirectly, within
Texas, enter into or engage generally in direct competition with the
Company's business,
as a Consultant in any business providing identical services as Company or
own a business which
provides identical services as Company either individually or as a
Consultant, officer,
director, independent contractor, or shareholder or otherwise, during the
term of this
Agreement or for three (3) months after termination. This covenant on the
part of Consultant
shall be construed as an agreement independent of any other provision of
this Agreement; and
the existence of any claim or cause of action of Consultant against
Company. whether
predicated on this Agreement or otherwise, shall not constitute a
defense to the
enforcement by Company of this section. Company shall be entitled to such
extra remedies as
injunctions, stays or restraining orders to enforce its rights
hereunder.
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Page 2 of
4
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4.2
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The Consultant will not solicit or
divert or attempt to solicit or divert, any business, patronage, or clients of the
Company from the Company to himself or a competitor or rival of
Company for three
(3)
months from the date
of Consultant's withdrawal or termination from the
Company.
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4.3
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During the term of this Agreement,
the Consultant will not communicate or divulge to or for the benefit of any competitor or
rival of the Company, any of the trade secrets or processes of the Company including client
list or pricing
information, and used by the Company. Notwithstanding the foregoing,
upon termination of this Agreement and the Non-Compete period, Consultant shall not be
prohibited from contacting any prospective client or determine appropriate pricing for
any products and/or
services on behalf of any new
Company.
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4.4
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The Consultant states that he has
read this Agreement in full
and understands the
terms and language in Article IV. The
Consultant has had outside counsel of his choosing review the Covenant of Noncompete and counsel has
explained all terms and conditions to him. The Consultant swears that he is
not under any duress or coercion to enter this Covenant of Noncompete, but is doing it of his
own free will in order to gain the experience, specialized training and especially the extra
compensation offered by
Company.
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4.5
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Confidentiality of this business
is very important as the nature of the business is securing the customers confidence.
Therefore, Consultant may not directly or indirectly make known
to any person, firm or corporation
the names, addresses or any information pertaining to or regarding any customer of the
Company during or after termination of employment through the end of the
Non-Compete period.
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ARTICLE V
GENERAL PROVISIONS
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5.1
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Any notices to be given hereunder
by either party to the other may be effected either by personal delivery in writing or by
mail, registered or certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to the parties at the address appearing in the introductory
paragraph of this Agreement, but each party may change her address by written notice in
accordance with the paragraph. Notices delivered personally shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of three
(3)
days after
mailing.
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Page 3 of
4
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5.2
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This
Agreement supersedes any and all other agreements, either oral or written,
between the parties hereto with respect to the employment of the
Consultant by the Company and contains all of the covenants and agreements
between the parties with respect to such employment in any manner
whatsoever. Any changes or amendments must be in writing, signed by all
the parties, or they are null and
void.
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5.3
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5.4
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Where
context and circumstances require, the gender of all words used in this
contract shall include the masculine, feminine and
neuter.
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EXECUTED
in Xxxxxx County, Texas on the day and year first above
written.
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COMPANY:
By: /s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President & CEO
CONSULTANT:
XXXXXX
X. XXXXXX & ASSOCIATES
/s/
Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx Title:
President
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