EXHIBIT 10.10
CONSULTANT'S COMPENSATION AGREEMENT
This Agreement, entered in to this 15th day of March 2002, is by and
between xXxxxxXxxxx.XX, Inc., a Nevada corporation (hereinafter referred to
as the "Company") and First Reserve Corporation, a California corporation
(hereinafter referred to as "Consultant") under the following terms and
conditions:
RECITALS:
A. The Company and Consultant desire to set forth the terms and
conditions on which the Company shall compensate the Consultant for prior
services rendered to the Company; and
B. In connection with the services performed by the Consultant for
the Company, the Company desires to restrict Consultant's rights to
disclose certain confidential information of the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. SERVICES PERFORMED BY THE CONSULTANT
1.1 The Company hereby acknowledges that the Consultant has
provided valuable consulting services to the Company for which the Company
desires to compensate the Consultant and which the Consultant is willing to
accept in full satisfaction of such prior consulting services rendered.
1.2 The services rendered by the Consultant were performed as an
independent contractor and not an agent or employee of the Company.
Consultant shall not have any power or authority to bind the Company. The
Company shall not provide office space or office materials to Consultant.
Except for the compensation to be provided herein, Consultant shall not be
entitled to any of the benefits provided by the Company to its employees.
Consultant shall be responsible for and shall pay any and all state,
federal, or local taxes on compensation paid to Consultant hereunder.
2. TERM
The term of this Agreement shall be for a period commencing
effective March 18, 2002, until terminated as provided in Section 5.
3. COMPENSATION
3.1 Percentage of Gross Sales. During the term of this
Agreement the Company shall pay to the Consultant consulting fees equal to
one percent (1%) of the total
worldwide gross sales of the Company. For purposes of this Agreement,
sales shall not be deemed completed until funds have been received and
been cleared by the Company's bank for disbursal to the Company.
3.2 Weekly Sales Statement. The Company shall deliver to
Consultant, at its offices in San Rafael, California, or to such other
address as Consultant may direct, on or before the two weeks following the
end of each calendar week during the term of this Agreement, a complete and
accurate statement (the "Weekly Sales Statement") of worldwide gross sales
by the Company of all products, during the term of this Agreement (the
"Weekly Sales Period"). The Weekly Sales Statement shall be certified as
accurate by an officer of the Company and shall include information as to
the product description, quantity sold, and gross selling price of the
products sold by the Company during the Weekly Sales Period, computation of
gross sales, the amount of consulting fees due, and any other information
Consultant may from time to time reasonably request. The Weekly Sales
Statement shall be furnished to Consultant whether or not revenues from
sales have been received, and whether or not consulting fees have been
earned by Consultant, during the Weekly Sales Period. Weekly Sales
Statements shall be in a form reasonably acceptable to Consultant.
3.3 Payment of Compensation. The amount shown in each Weekly
Sales Statement as being due Consultant shall be paid simultaneously with
the submission of the Weekly Sales Statement. The Company's Weekly Sales
Statements and all amounts payable to Consultant by the Company shall be
submitted to:
Xxxxxx Xxxxxxxx, President
First Reserve Corporation
00 Xxx Xxxxx
Xxx Xxxxxx, XX 00000
or such other address as Consultant may direct.
3.4 Audited Financial Statements; Corrections to Weekly Sales
Statements. Within ninety (90) days following each year-end, or, if the
Company is subject to the periodic reporting requirements under the
Securities Exchange Act of 1934, as amended, not later than the date of
filing of the year-end audited financial statements with the Securities and
Exchange Commission on Form 10-K or 10-KSB, the Company shall furnish to
Consultant audited financial statements for the prior year. If the
aggregate gross sales for such year reflected in the audited financial
statements shall be greater than the aggregate amount of gross sales set
forth in the Weekly Sales Statements for such year, the appropriate payment
shall be made within thirty (30) days following the furnishing of such
financial statements to Consultant. If the aggregate gross sales for such
year reflected in the audited financial statements shall be less than the
aggregate amount of gross sales set forth in the Weekly Sales Statements
for such year, the Company shall be allowed to offset such amount in the
next Weekly Sales Statement(s) and payment(s) made to Consultant.
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3.5 Accurate Books and Records. The Company agrees to keep
accurate books of account and records at its principal place of business
covering all transactions relating to the consulting fee granted herein and
pertaining to the items required to be shown in the Company's Weekly Sales
Statements to be submitted pursuant hereto, including without limitation,
invoices, correspondence, banking, financial, and other records.
Consultant and its duly authorized representatives shall have the right,
upon five (5) days' written notice, during normal business hours, to audit
the Company's books of account and records, and all other documents and
material in the possession or under the control of the Company, with
respect to the subject matter and the terms of this Agreement and to make
copies and extracts thereof. In the event that any such audit reveals an
underpayment by the Company, the Company shall within thirty (30) days'
written notice remit payment to Consultant in the amount of such
underpayment, plus interest calculated at the rate of five percent (5%) per
annum, from the date such payment(s) were actually due until the date such
payment is actually made. In the event that any such underpayment is
greater than Ten Thousand Dollars ($10,000), the Company shall reimburse
Consultant for the costs and expenses of such audit. In the event such
audit shall reveal a mistake resulting in an overpayment in any consulting
fee payment, the Company shall be allowed to offset such amount in the next
Weekly Sales Statement(s) and payment(s) made to Consultant.
4. CONFIDENTIALITY
4.1 Confidential Information. Consultant recognizes and
acknowledges that certain information, including, but not limited to,
(i) information pertaining to the financial condition of the Company;
(ii) its systems and methods of doing business; (iii) its agreements with
customers, suppliers or selling or marketing agents, including lists of
customers, selling agents, and marketing agents; or (iv) other aspects of
the business of the Company which are sufficiently secret to derive
economic value from not being disclosed (hereinafter "Confidential
Information") have been, or may be, made available or otherwise come into
the possession of Consultant by reason of its engagement with the Company.
Accordingly, Consultant represents that it has not, and agrees that it
will not, disclose any Confidential Information to any person, firm,
corporation, association, or other entity for any reason or purpose
whatsoever or make use to its personal advantage or to the advantage of
any third party, of any Confidential Information, without the prior written
consent of the Company. Upon written request of the Company, Consultant
shall return to the Company all documents which reflect Confidential
Information (including copies thereof). Notwithstanding anything
heretofore stated in this subsection 4.1, Consultant's obligations under
this subsection 4.1 shall not apply to information which has become
generally available to the public without any action or omission of
Consultant.
4.2 Records. All files, records, memoranda, and other documents
regarding former, existing, or prospective customers of the Company or
relating in any manner whatsoever to Confidential Information or the
business of the Company (collectively "Records"), whether prepared by
Consultant or otherwise coming into its possession, shall be the exclusive
property of the Company. All Records shall be immediately placed in the
physical possession of the Company upon its written request. The retention
and use by the Consultant of duplicates in any form of Records after such
written request is prohibited.
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4.3 Remedies. Consultant hereby recognizes and acknowledges
that irreparable injury or damage shall result to the Company in the event
of a breach or threatened breach by Consultant of any of the terms or
provisions of this Section 4, and Consultant therefore agrees that the
Company shall be entitled to an injunction restraining Consultant from
engaging in any activity constituting such breach or threatened breach.
Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company at law or in equity
for such breach or threatened breach, including, but not limited to, the
recovery of damages from Consultant.
5. TERMINATION
5.1 Termination by Mutual Consent. This Agreement may be
terminated upon the mutual agreement of the parties. The Consultant shall
not be entitled to receive any compensation following one hundred twenty
(120) days after the date of such termination, unless otherwise agreed in
writing by the parties.
5.2 Termination by Consultant. Consultant has the right to
terminate this Agreement for any reason, upon one hundred twenty (120) days
prior written notice to the Company. If this Agreement is terminated
pursuant to this subsection 5.2, the Consultant shall not be entitled to
receive any compensation following the date of such termination.
5.3 Consultant's Duties on Termination. In the event of
termination of this Agreement, Consultant agrees to deliver promptly to the
Company all equipment, notebooks, documents, memoranda, reports, files,
samples, books, correspondence, lists, or other written or graphic records,
and the like, relating to the Company's business, which are or have been in
its possession or under its control.
6. MISCELLANEOUS
6.1 Notices. All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement
shall be in writing addressed to the other party at the address set forth
below and shall be conclusively deemed to have been duly given when:
(a) Hand-delivered to the other party;
(b) Received when sent by telex or facsimile at the address
and number set forth below;
(c) The next business day after same have been deposited
with a national overnight delivery service, shipping prepaid, addressed to
the parties as set forth below with next-business day delivery guaranteed,
provided that the sending party receives a confirmation of delivery from
the delivery service provider; or
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(d) Three business days after mailing if mailed from within
the continental United States by registered or certified mail, return
receipt requested, addressed to the parties as set forth below.
Company: 000 Xxxxxxx Xxxxxx Xx.
00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile Number (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, President
With Copy to Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Facsimile Number (000) 000-0000
Consultant: First Reserve Corporation
00 Xxx Xxxxx
Xxx Xxxxxx, XX 00000
Facsimile Number (___) _________
Attention: Xxxxxx Xxxxxxxx
6.2 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or
parties will be entitled to recover reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to any other
relief to which it or they may be entitled.
6.3 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to
the subject matter contained in it and supercedes all prior and
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will
be binding unless executed in writing by all the parties or the applicable
parties to be bound by such amendment. No waiver of any of the provisions
of this Agreement will constitute a waiver of any other provision, whether
or not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
6.4 Governing Law. This Agreement and the rights and duties of
the parties hereto shall be construed and determined in accordance with the
laws of the State of California, and any and all actions to enforce the
provisions of this Agreement shall be brought in a court of competent
jurisdiction in Orange County, in the State of California, and in no other
place.
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6.5 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the
intent of the parties that all other provisions of this Agreement be
construed to remain fully valid, enforceable, and binding on the parties.
6.6 Assignment. The duties and obligations of the Employee
hereunder may not be transferred or assigned, except as otherwise expressly
authorized in writing by the Company. The Company shall have the right to
assign this Agreement to any successor of substantially all of its business
or assets, and any such successor shall be bound by all of the provisions
hereof.
6.7 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective
heirs, legal representatives, successors, and assigns.
6.8 Effect of Headings. The subject headings of the sections
and subsections of this Agreement are included for convenience only and
will not affect the construction of any of its provisions.
6.9 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one instrument. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by facsimile
also shall deliver a manually executed counterpart of this Agreement, but
the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Agreement.
6.10 Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms
and conditions of this Agreement, that each party has had the benefit of
counsel, or has been advised to obtain counsel, and that each party has
freely agreed to be bound by the terms and conditions of this Agreement.
7. CORPORATE APPROVALS
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by
the Board, is not in conflict with any Bylaw or other agreement and will be
a binding obligation of the Company, enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
THE COMPANY: xXxxxxXxxxx.XX, Inc.
By /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
Its President
CONSULTANT: First Reserve Corporation
By /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President
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