EX-10.9
CONSULTING AGREEMENT
AGREEMENT made as of the 9th day of April, 2002 (the "Effective Date"),
between AMERICAN ENERGY SERVICES, INC., with offices at 0000 Xxxxxxxx, Xxxxxxx,
Xxxxx 00000 ("Company"), and XXX XXXX, residing at _________________
("Consultant").
W I T N E S S E T H:
WHEREAS, in recognition of the Consultant's experience and abilities, the
Company desires to assure itself of the services of the Consultant in accordance
with and subject to the terms and conditions provided herein; and
WHEREAS, the Consultant wishes to perform services for the Company in
accordance with and subject to the terms and conditions provided herein; and
NOW, THEREFORE, in consideration of the mutual premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. ENGAGEMENT AS CONSULTANT. The Company hereby agrees to engage the
Consultant, and the Consultant hereby agrees to perform services for the
Company, on the terms and conditions set forth herein.
2. TERM. The term of this Agreement shall commence on the Effective Date,
and unless terminated earlier or extended as provided below, shall continue for
a period of five (5) years from such date (the "Term").
3. POSITION; DUTIES. During the Term, the Consultant shall perform such
services including, but not limited to, the pursuit of business relationships
with Exxon Mobil Corp., Anadarco Petroleum Corporation, Calpine Corporation,
utility companies or agencies in the state of Texas and several other major oil
and gas companies or agencies. Consultant will also assist the Company in the
restructuring of the Company's outstanding debt with Xxxxx Fargo Bank as well as
other matters related to the business of the Company as the Consultant and the
Company shall mutually agree. The scheduling of such time shall be mutually
agreeable to the Consultant and the Company. The Company acknowledges that the
Consultant is permitted to pursue other activities, whether of a personal or
business nature and, accordingly, may not always be immediately available to the
Company.
4. PLACE OF PERFORMANCE. The Consultant shall perform its duties and
conduct its business at such locations as are reasonably acceptable to the
Consultant and the Company.
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5. INDEPENDENT CONTRACTOR. During the Term, the Consultant shall be an
independent contractor and not a joint venturer, partner or employee of the
Company. Accordingly, Consultant shall be responsible for payment of all taxes,
including Federal and State income tax, Social Security tax, Unemployment
Insurance tax, and any other taxes or business license fees as required.
6. COMPENSATION. As compensation for the Consultant's services during the
Term, at the Effective Date, the Company shall issue to the Consultant one
million five hundred thousand (1,500,000) shares of the Company's common stock,
no par value per share (the "Consulting Fee").
7. TERMINATION. Notwithstanding the provisions of Section 2 hereof, the
Consultant's engagement may be terminated by the Company as follows:
(a) By action taken by the Board, the Consultant's engagement may be
terminated only for cause (as defined below), effective as of such time as the
Board shall determine. Upon termination of the Consultant's engagement pursuant
to this Section 7(a), the Company shall have no further obligation or duties to
the Consultant.
(b) In the event (i) of the death of the Consultant or (ii) the Consultant
becomes disabled, that is the inability of the Consultant, by reason of physical
or mental disability, to continue substantially to perform his duties hereunder
for any period of ninety (90) consecutive days ("disabled"). Upon any
termination of the Consultant's engagement under this Section 7(b), the Company
shall have no further obligations or duties to the Consultant, and the
Consultant shall have no further obligations or duties to the Company, except as
provided in Section 10.
(c) For purposes of this Agreement, the Company shall have "cause" to
terminate the Consultant's engagement under this Agreement only upon (i) the
engaging by the Consultant in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Company, monetarily or
otherwise, (ii) the conviction of the Consultant of a felony, or (iii) gross
negligence on the part of the Consultant. The Company shall give written notice
to the Consultant, which notice shall specify the grounds for the proposed
termination and the Consultant shall be given thirty (30) days to cure if the
grounds arise under clause (iii) above.
Should this Agreement be terminated pursuant to Section 7(a) or (c), the
Company shall have the right to place a stop transfer order on the shares
representing the Consulting Fee and thereby prevent the Consultant from the sale
and/or transfer of the shares representing the Consulting Fee.
8. ISSUANCE OF STOCK CERTIFICATE TO CONSULTANT.
The Company shall cause to be issued and delivered to Consultant a stock
certificate bearing the signatures of its President and Secretary. The Company
shall take all corporate action necessary for the stock certificate issuance to
be legally valid and irrevocable, including
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obtaining the prior unanimous written consent of its Board of Directors. The
stock certificates representing the Consulting Fee shall bear the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO AMERICAN ENERGY SERVICES,
INC. THAT SUCH REGISTRATION IS NOT REQUIRED."
9. REGISTRATION OBLIGATIONS.
The Company expressly agrees to register, with the Securities and Exchange
Commission, the shares of common stock issued to the Consultant as the
Consulting Fee in a registration statement on Form S-8, if and when available
(and all related qualifications under the state securities laws.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) As used in this Agreement, "Confidential Information" means
information which is presented to the Consultant by the Company or developed,
conceived or created by the Company, or disclosed to the Consultant or known by
or conceived or created by the Consultant during the Term, with respect to the
Company, its business or any of its products, processes, and other services
relating thereto relating to the past or present business or any plans with
respect to future business of the Company or relating to the past or
present-business of a third party or plans with respect to future business of a
third party which are disclosed to the Consultant. Confidential Information
includes, but is not limited to lists of clients and vendors and other
information relating thereto; marketing information; price lists; cost
information; financial data and information; business plans and processes;
documentation with respect to any of the foregoing; stock ownership in the
Company; know-how; processes and structures; product information; product
contents and formulae; manufacturing and production techniques and methods;
research and development information; the contents of this Agreement; and any
other information of the Company that the Company informs the Consultant or the
Consultant should know, by virtue of his position or the circumstances in which
the Consultant learned such other information, is to be kept confidential.
Confidential Information also includes similar information obtained by the
Company in confidence from its vendors, licensors, licensees, customers and/or
clients. Confidential Information may or may not be labeled as confidential.
(b) Except as required in the performance of the Consultant's duties as an
Consultant, the Consultant will not, during or after his engagement, directly or
indirectly, use any Confidential Information or disseminate or disclose any
Confidential information to any person, firm, corporation, association or other
entity. The Consultant shall take all reasonable measures to protect
Confidential Information from any accidental, unauthorized or premature use,
disclosure
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or destruction. The foregoing prohibition shall not apply to any Confidential
Information which: (i) was generally available to the public prior to such
disclosure; (ii) becomes publicly available through no act or omission of the
Consultant, (iii) is disclosed as reasonably required in a proceeding to enforce
the Consultant's rights under this Agreement or (iv) is disclosed as required by
court order or applicable law.
(c) Upon termination of the Consultant's engagement with the Company for
any reason or at any time upon request of the Company, the Consultant agrees to
deliver to the Company all materials of any nature which are in the Consultant's
possession or control and which are or contain Confidential Information, or
which are otherwise the property of the Company or any vendor, licensor,
licensee, customer or client of the Company, including, but not limited to
writings, designs, documents, records, data, memoranda, tapes and disks
containing software, computer source code listings, routines, file layouts,
record layouts, system design information, models, manuals, documentation and
notes.
11. TIME PERIODS NOT LIMITED. Any period of time set forth in this
Agreement shall not be construed to permit the Consultant to engage in any of
the prohibited acts set forth in this Agreement after such period if such acts
would otherwise be prohibited by any applicable statute or legal precedent.
12. EQUITABLE RELIEF. Consultant acknowledges that the services to be
rendered by the Consultant hereunder are of a special character which gives them
a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law. Furthermore, a breach by the
Consultant of any of the provisions contained herein, including, but not limited
to, the provisions contained in Section 10, will cause the Company irreparable
injury and harm. The Consultant expressly agrees that, notwithstanding anything
which is contained in this Agreement to the contrary, the Company shall be
entitled to injunctive or other equitable relief to prevent the Consultant's
breach or anticipated breach of this Agreement, including, but not limited to,
the Consultant's breach of the provisions contained in Section 10 of this
Agreement. Resort to such equitable relief, however, shall not be construed to
be a waiver of any other rights or remedies which the Company may have for
damages or otherwise.
13. NO MITIGATION; NO SET-OFF. In the event of any termination of the
Consultant's engagement under Section 7, the Consultant shall be under no
obligation to seek other employment and there shall be no offset against any
amounts due the Consultant under this Agreement on account of any remuneration
attributable to any subsequent employment that the Consultant may obtain.
14. SUCCESSORS; BINDING AGREEMENT.
(a) The Company shall require any successor to all or substantially all of
the business or assets of the Company, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
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(b) This Agreement and all rights of the Consultant hereunder shall inure
to the benefit of and be enforceable by the Consultant's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. This Agreement is personal to and may not be assigned by
the Consultant.
15. MISCELLANEOUS.
(a) HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(b) ENFORCEABILITY. If any provision which is contained in this Agreement
should, for any reason, be held to be invalid or unenforceable in any respect
under the laws of any State of the United States, such invalidity or
unenforceability shall not affect any other provision of this Agreement.
Instead, this Agreement shall be construed as if such invalid or unenforceable
provisions had not been contained herein.
(c) NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, to the other party
hereto at her or its address as set forth in the beginning of this Agreement.
Either party may change the address to which notices, requests, demands and
other communications hereunder shall be sent by sending written notice of such
change of address to the other party in the manner above provided.
(d) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Texas.
(e) ENTIRE AGREEMENT. The parties have not made any representations,
warranties or covenants with respect to the subject matter hereof which is not
set forth herein, and this Agreement constitutes the entire agreement between
them with respect to the subject matter hereof. All understandings and
agreements heretofore had between the parties with respect to the subject matter
hereof are merged in this Agreement which alone fully and completely expresses
their agreement. This Agreement may not be changed, modified, extended,
terminated or discharged orally, but only by an Agreement in writing, which is
signed by all of the parties to this Agreement.
(f) FURTHER ACTIONS. The parties agree to execute any and all instruments
and documents, and to take any and all such further actions reasonably required
to effectuate this Agreement and the intents and purposes hereof.
WAIVER. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions, (ii) the
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acceptance of performance of anything required by this Agreement to be performed
with knowledge of the breach or failure of a covenant, condition or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other breach of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
AMERICAN ENERGY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
THE CONSULTANT
/s/ Xxx Xxxx
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Xxx Xxxx
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