PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") dated as of July 12,
1999 is between Xxxxxxx X. Xxxxx ("Consultant") and North American Technologies
Group, Inc. ("Company").
BACKGROUND
A. The Consultant is a certified public accountant and an experienced
financial professional.
B. The Company desires to retain the services of the Consultant for
business and financial advice, and the Consultant desires to perform such
services in such position on the terms set forth below.
NOW, THEREFORE, intending to be legally bound hereby, the parties agree as
follows:
1. Term.
(a) This Agreement shall be for a period of time ("Consulting Term")
commencing on July 12, 1999 and ending on March 31, 2000. Thereafter, the
Agreement may be extended on a month-to-month basis upon the mutual agreement of
both parties.
(b) The Consulting Term shall terminate on the date of Consultant's
death, in which event compensation owing to Consultant through the date of
Consultant's death shall be paid to his estate. Consultant's estate will not be
entitled to any other compensation under this Agreement.
2. Duties. Consultant shall provide business and financial consultation
services as more fully described on Exhibit A hereto.
3. Compensation. During the Consulting Term, the Company shall compensate
Consultant as set forth on Exhibit B hereto.
4. Agreement not to Solicit Consultants.
(a) Consultant will not, while at any time during the term of this
Agreement and for a period of twelve (12) months following the termination of
such Agreement, whether as an individual, or in any capacity, directly or
indirectly, solicit, employ, contract or retain any employee of the Company
without its written consent.
(b) Consultant agrees that the remedy at law for any breach of this
Paragraph 4 would be inadequate and that the Company, its affiliates and
subsidiaries, shall be entitled to injunctive relief in addition to any other
remedy it may have upon breach of any provision of this Paragraph 4.
5. Proprietary Information.
(a) Consultant acknowledges that Consultant will have access to
certain proprietary and confidential information of the Company, as well as its
affiliates, subsidiaries, and their clients, which confidential and proprietary
information includes, but is not limited to, contemplated new products and
services, marketing and advertising campaigns, sales projections, creative
campaigns and themes, and financial information of the Company. Consultant
agrees to hold in confidence any such knowledge and information of a secret or
confidential nature with respect to the Company, as well as its affiliates,
subsidiaries and their clients during the Consulting Term or thereafter, other
than in connection with performing Consultant's services for the Company in
accordance with this Agreement, except to the extent that such information shall
have become public knowledge other than as a result of a violation of this
Agreement by the Consultant or of a breach by any other persons who have agreed
not to discuss, publish or make use of such information.
(b) The Consultant agrees that the remedy at law for any breach of
this Paragraph 5 would be inadequate and that the Company, its affiliates and
subsidiaries, shall be entitled to injunctive relief in addition to any other
remedy it may have upon breach of any provision of this Paragraph 5.
6. Representations and Warranties of Consultant. Consultant hereby
represents and warrants to the Company as follows: (i) Consultant has the legal
capacity and unrestricted right to execute and deliver this Agreement and to
perform all of his obligations hereunder; (ii) the execution and delivery of
this Agreement by Consultant and the performance of his obligations hereunder
will not violate or be in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement, or other understanding to which Consultant is
a party or by which he is or may be bound or subject; and (iii) Consultant is
not a party to any instrument, agreement, document, arrangement, or other
understanding with any person (other than the Company) requiring or restricting
the use or disclosure of any confidential information or the provision of any
employment, consulting or other services that would prohibit the Consultant from
performing the services contemplated by this Agreement.
7. Limitation or Remedies. Except as specifically provided in Paragraph
4(b) and Paragraph 5(b) hereof, Consultant's entire liability and Company's
exclusive remedy for damages from any cause whatsoever, including, but not
limited to, non-performance or misrepresentation, and regardless of the form of
actions, shall be limited to the amount which has been paid to Consultant by the
Company for performance hereunder. In no event will Consultant be liable for
damages caused by the Company's negligence, or for special, incidental or
consequential damages, lost profits, lost use of equipment, loss of stored
memory, cost of substitute equipment or other down-time costs, even if
Consultant has been advised of the possibility of such damages, or for any claim
against the Company by any other party. No action rising out of this Agreement,
regardless of the form of action, may be brought by Consultant more than one
year after the action has occurred.
8. Termination with Cause. If either Party breaches this Agreement, the
other Party may terminate the Agreement or the Exhibit upon ten (10) business
days written notice to the
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other, unless the breach is cured, to the satisfaction of the non-breaching
Party, within the notice period.
9. Termination without Cause. Consultant or the Company may terminate
this Agreement, in whole or in part, at any time without cause following thirty
(30) day written notice to the other Party.
10. Force Majeure. Either party shall be excused for delay in the
performance of any obligations hereunder when such delay is the result of or
attributable to the elements, acts of God, governmental authority,
unavailability of parts from manufacturer, delays in transportation or any other
cause beyond their reasonable control.
11. Choice of Law. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
Texas.
12. Successors and Assigns. Neither this Agreement, nor any of
Consultant's rights, powers, duties or obligations hereunder, may be assigned by
Consultant. This Agreement shall be binding upon and inure to the benefit of
Consultant and his heirs and legal representatives and the Company and its
successors. Successors of the Company shall include, without limitation, any
company or companies acquiring, directly or indirectly, all or substantially all
of the assets of the Company, whether by merger, consolidation, purchase, lease
or otherwise. Any such successor referred to in this paragraph shall thereafter
be deemed "the Company" for the purpose hereof.
13. Waiver. Any waiver or consent from the Company or Consultant with
respect to any term or provision of this Agreement or any other aspect of the
Company's or Consultant's conduct or services hereunder shall be effective only
in the specific instance and for the specific purpose for which given and shall
not be deemed, regardless of frequency given, to be a further or continuing
waiver or consent. The failure or delay of the Company or Consultant at any
time or times to require performance of, or to exercise any of its powers,
rights or remedies with respect to any term or provision of this Agreement or
any other aspect of the Company's or Consultant's conduct or services hereunder
in no manner (except as otherwise expressly provided herein) shall affect the
Company's or Consultant's right at a later time to enforce any such term or
provision.
14. Savings Clause. The failure of the Company or the Consultant to at
any time enforce any provision hereof shall never be construed to be a waiver of
such provision or of the Company or the Consultant to enforce each and every
provision hereof at any time. In the event any paragraph, provision or clause,
or any combination of same hereof shall be found or held to be unenforceable at
law or in equity, or under any ordinance, statute or regulation, such findings
or holdings shall not in any way affect the other paragraphs, provisions and
clauses which shall remain in full force and effect, and which shall, to the
extent possible, be interpreted and applied so as to effectuate the intent of
the paragraphs, provisions or clauses held to be unenforceable.
15. Miscellaneous.
(a) This Agreement and any exhibits attached hereto represent the
entire agreement between the Parties. Any modification to this Agreement may be
made only in
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writing executed by the duly authorized representatives of Consultant and the
Company. Exhibits, attachments and amendments to this Agreement shall take
precedence in case of conflicting terms between the terms of the Agreement, and
those of the exhibits, attachment or amendment.
(b) Consultant represents and agrees that he fully understands his
rights to discuss all aspects of this Agreement with his private attorney, that
to the extent he desires, he availed himself of this right, that he has
carefully read and fully understands all of the provisions of the Agreement,
that he is competent to execute this Agreement, that his decision to execute
this Agreement has not been obtained by any duress and that he freely and
voluntarily enters into this Agreement, and that he has read this document in
its entirety and fully understands the meaning, intent, and consequences of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Professional Services
Agreement as of the date first above written.
NORTH AMERICAN TECHNOLOGIES
GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
DESCRIPTION OF SERVICES TO BE PROVIDED BY CONSULTANT
Consultant shall be elected to the position of Treasurer and Chief Financial
Officer of North American Technologies Group, Inc. Acting in this capacity,
Consultant will provide financial, business and management advice to the Board,
President, Officers and staff of the Company as required. He will take
responsibility for all accounting, tax, financial reporting and cash management
requirements of the Company. He will direct and take responsibility for all
filings, reports and other matters pertaining to compliance with the SEC rules
and regulations governing operation of the Company. He will handle all
negotiations with banks and other financial institutions as required in the
normal course of company business. He will assist and advise in matters of
strategy as regards the ongoing development of company business as his
experience allows. Consultant's services will be made available on an as-needed
basis and Consultant will guarantee to make not less than one-half of his
professional time available to the Company if required.
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EXHIBIT B
COMPENSATION SCHEDULE
Consultant's services will be billed to the Company on a monthly basis at the
rate of $200.00/hour actually worked. Company will pay for these services with
a combination of cash and Common Stock in the Company as follows:
. Part A - $80.00/hour paid in cash
. Part B - The equivalent of $120.00/hour in shares of the Company's
Common Stock. The number of shares shall be determined by dividing
amounts earned at the rate of $120.00/hour by the average of the closing
stock prices for the month worked.
Invoices will be paid within 5 days of their acceptance. The Company will
endeavor to have stock certificates issued as quickly as is possible. The
responsibility for all other taxes on monies or stock delivered to the
Consultant will be the sole responsibility of the Consultant. Consultant will,
however, be reimbursed for normal business expenses in accordance with Company
policy.
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