EXHIBIT 10.3
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as
of the 1st day of January, 2002, by and between Xxxx Bros. Transportation Inc.,
a Delaware corporation (the "Company"), and Xxxxxxx Xxxx, an individual resident
of Alabama ("Consultant").
RECITALS
A. Consultant has served the Company in numerous capacities since
its founding, including most recently as a member of the Company's board of
directors (the "Board of Directors") and as Chairman of the Board of Directors.
Effective January 1, 2002, Xxxxxxx Xxxx resigned from his position as a member
of the Board of Directors and from his position as Chairman of the Board of
Directors.
B. As a result of his extensive service to the Company as a
founder, employee, officer and director, Consultant has acquired knowledge,
information and experience concerning the Company's business and operations, and
the industry in which the Company operates, that is of substantial value to the
Company.
C. The Company desires to engage Consultant as a consultant, and
Consultant desires to provide services to the Company as a consultant.
AGREEMENT
SECTION 1. CONSULTING DUTIES AND EXTENT OF SERVICES. The Company
hereby engages Consultant as a consultant, and Consultant agrees to consult with
the Company on the terms and conditions set forth in this Agreement. Consultant
shall provide such advice and expertise, and shall perform such duties and
services from time to time, during the term of this Agreement as the Company
shall reasonably request. The services to be provided by Consultant shall
include, without limitation, negotiating equipment and tire agreements,
reviewing equipment requirements, researching and investigating equipment,
advising the Company regarding certain ongoing litigation matters, advising the
Company regarding construction projects and providing the Company with an
experienced perspective on the trucking industry. Consultant shall perform such
services for a term of two (2) years, beginning on the date of this Agreement
and ending on the second anniversary hereof. This Agreement may be extended by
written consent of the parties hereto. The Company shall provide Consultant with
an office and reasonable administrative assistance and shall reimburse
Consultant for all reasonable business expenses incurred by Consultant at the
direction or request of the Company upon receipt by the Company of documentation
of such expenses.
SECTION 2. CONSIDERATION.
(a) As consideration for the services rendered to the
Company during the term of this Agreement, Consultant shall receive from the
Company monthly payments in the amount of $12,166.67, payable at the end of each
month during the term of this Agreement.
(b) As additional consideration for the services rendered to
the Company by Consultant during the term of this Agreement, the Company shall
pay for health care insurance for Consultant substantially the same as that
provided to the Company's executive officers.
SECTION 3. RELATIONSHIP OF PARTIES. Nothing contained in this
Agreement is intended to create the relationship of employer / employee and
Consultant shall be and continue to operate under this Agreement as an
independent contractor. Consultant acknowledges and agrees that he is entitled
to no compensation or other benefit from the Company with respect to this
Agreement other than expressly provided for herein. Consultant shall be solely
responsible for his own income and other tax reporting and payment with respect
to the fees payable under this Agreement (including, without limitation,
self-employment taxes), and the Company shall have no obligation to withhold any
portion of the fees provided for under this Agreement for purposes of employee
withholding taxes, or otherwise.
SECTION 4. BINDING EFFECT ON SUCCESSORS, ASSIGNEES, ETC. Neither
Party may assign nor may it delegate any rights or obligations hereunder without
first obtaining the written consent of the other Party; provided, however, that
the Company may assign this Agreement to any of its affiliates. This Agreement
shall be binding on and inure to the benefit of any immediate, intermediate or
ultimate successor of the business or assets of the Company by way of merger,
consolidation, reorganization, dissolution, sale or transfer of assets,
liquidation, or otherwise.
SECTION 5. MERGER CLAUSE. This Agreement constitutes the full and
complete understanding and agreement of the parties with respect to the subject
matter hereof, and cannot be amended, modified or supplemented in any respect
except by agreement in writing, signed by the parties hereto.
SECTION 6. CHOICE OF LAW. This Agreement shall be controlled,
construed and governed in all respects by the laws of the State of Alabama
without regard to conflict of laws and principles.
SECTION 7. SEVERABILITY. If any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Consultant has executed this Agreement,
effective as of the date and the year first above written.
XXXX BROS. TRANSPORTATION, INC.
By /s/ XXXXXXX X. XXXXXX
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Its CFO
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/s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
