CONSULTING AGREEMENT
EXHIBIT
10.10
THIS
CONSULTING AGREEMENT ("Agreement"), is made as of December 6, 2007,
between X.X.X. Transportation Services, Inc. ("Company"), a Delaware
corporation, and Xxxxxx X. Xxxxxx ("Consultant").
WHEREAS,
Consultant serves as a member of the Board of Directors of Company
("Board"); and
WHEREAS,
Consultant is an executive with a wide range of business experience and
skills; and
WHEREAS,
Company desires to have the benefit of Consultant's knowledge and
experience in a consulting capacity; and
WHEREAS,
Consultant desires to provide consulting services to Company on the terms
and subject to the conditions set forth in this Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Consulting
Arrangement.
Company hereby retains and engages Consultant to perform consulting
services for and on behalf of Company, from the date hereof until the Consulting
Term (as hereinafter defined) is terminated in accordance with the terms and
conditions hereinafter set forth, and Consultant hereby accepts such
engagement.
(a) Duties as Consultant.
Consultant, upon reasonable notice, shall furnish to Company consulting services
which shall include consultation and advice as to management and operation of
the Company and such other consulting activities as Company may reasonably
request and as are reasonably acceptable to Consultant pursuant to this
Agreement. Subject to any fiduciary duties Consultant owes to Company by virtue
of being a member of the Board, Consultant shall be free to engage in any other
employment or businesses whatsoever.
(b) Fees. In
consideration for the services rendered under this Section 1, Company shall pay
Consultant a sum of One Hundred Thousand and NO/100s Dollars ($100,000.00) per
year, payable beginning September 1 and on each December 1, March 1, June 1 and
September 1 thereafter (the "Quarterly Compensation") until the end of the
Consulting Term, as hereinafter defined.
(b) Independent
Contractor. Consultant's services pursuant to this Section 1 shall be
rendered as an independent contractor and shall not constitute Consultant as an
employee or agent of Company for any purpose, including but not limited to
entitlement to participation in any benefits available to employees of Company;
provided, however, that the foregoing shall not (i) be construed as modifying or
eliminating any of Consultant's rights to receive benefits from the Company
which arise under any other agreement between Company and Consultant, or (ii)
prohibit Consultant from receiving any options or shares under the Company's
stock option plan that may, from time to time, be granted to Consultant by the
Board or in consideration of Consultant acting as a member of the Board.
Although the Company may specify the results to be achieved by Consultant, the
Company shall not control or direct Consultant as to the details or means by
which such results are accomplished. Further, Consultant shall be solely
responsible for the payment of any federal, state or local income or payroll
taxes attributable to the fees to be paid under this Agreement and shall hold
the Company, its officers, directors and employees harmless from any liability
arising from the failure to pay such taxes.
(c) Expenses. Company
shall reimburse Consultant for any reasonable and necessary expenses incurred by
him in connection with the performance of his services hereunder.
2. Term.
The term of this Agreement as it relates to consulting services performed
by Consultant pursuant to Section 1 shall be for a period of one (1) year from
the date hereof (the "Initial Term") and shall be automatically renewed for
subsequent one (1) year periods (each a "Subsequent Term") until terminated
pursuant to the provisions set forth in Section 3 (the Initial Term and each
Subsequent Term shall be collectively referred to herein as the "Consulting
Term").
3. Termination.
This Agreement shall terminate on the earlier of (1) 5 years from the
date hereof; (2) death of the Consultant; (3) disability of the Consultant; or
(4) mutual agreement. Upon the termination of this Agreement, payment of all
compensation to Consultant, including Quarterly Compensation shall cease, except
as otherwise agreed by the parties.
4. Governing
Law.
This Agreement shall be governed by and interpreted under the laws of the
State of Arkansas.
5. Notices.
All notices, demands and requests given or required to be given by either
party hereto to the other party shall be in writing. All such notices, demands
and requests shall be deemed to have been properly given if served in person,
sent by registered or certified mail, return receipt requested, postage prepaid,
sent by telefacsimile (and receipt confirmed) or by prepaid nationally
recognized overnight delivery service providing proof of delivery, addressed as
follows:
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If
to Company:
If
to Consultant:
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X.X.X.
Transportation Services, Inc
000
Xxxx Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx, XX 00000
Attn:
Xxxxxx Xxxxxx, CEO
FAX:
(000) 000-0000
Xxxxxx
X. Xxxxxx
00000
Xxxxxxxx Xxxx
Xxxxxx,
XX 00000
FAX:
(000) 000-0000
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Notices,
demands and requests sent pursuant to this section shall be deemed to be
received if received by telefacsimile (and receipt confirmed), by person, on the
date of delivery, by registered or certified mail, three (3) business days after
mailing, and if sent by prepaid overnight delivery service, on the next business
day.
6. Contents
of Agreement, Amendment and Assignment.
This Agreement sets forth the entire understanding between the parties
hereto with respect to the subject matter hereof and cannot be changed, modified
or terminated except upon written amendment executed by the parties hereto. All
of the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the successors and assigns of the parties
hereto, except that the duties, responsibilities and rights (including all
rights to receive payment) of Consultant hereunder are of a personal nature and
shall not be assignable in whole or in part by Consultant.
7. Severability.
If any provision of this Agreement or application thereof to anyone under
any circumstances is adjudicated to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable
provision or application.
8. Non-Waiver
of Default.
Any failure of any party hereto, on one or more occasions, to enforce and
require the strict keeping and performance of any of the terms and conditions of
this Agreement shall not constitute a waiver of any such terms or conditions at
any future time and shall not prevent such party from insisting on the strict
keeping and performance of such terms and conditions at any later
time.
9. Captions.
The captions or headings of the Sections or other subdivisions hereof are
inserted only as a matter of convenience or for reference and shall have no
effect on the meaning of the provisions hereof
10. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement.
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COMPANY
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By:
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/s/
Xxxxxx X. Xxxxxx
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CONSULTANT
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx, an individual
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