S-8 Exhibit 3.3
Xxxxx Xxxxxxxxxx - Consulting Agreement
AGREEMENT dated as of _September 14, 2001_ by and between ND Holdings, Inc.,
a Corporation organized and existing under the laws of the State of North
Dakota, having an office and principal place of business at 0 Xxxxx Xxxx,
Xxxxx, Xxxxx Xxxxxx 00000 (hereinafter referred to as the "Company"), and
Xxxxx Xxxxxxxxxx, an individual with a business address at 14 North Main,
Rugby, North Dakota, (hereinafter referred to as the "Consultant").
W I T N E S S E T H:
WHEREAS, NDH desires to procure the independent services and access the
business knowledge and contacts of Consultant upon the terms herein set
forth; and
WHEREAS, Consultant desires to render services upon the terms herein set
forth.
NOW THEREFORE, in consideration of the premises herein, and the mutual
promises and undertakings herein contained and for other good and valuable
consideration, the parties agree as follows:
NDH hereby contracts with the Consultant and the Consultant hereby accepts
this consulting assignment upon the terms and conditions hereinafter set forth.
1. Duties: This contract is made in order that NDH may procure access to
the business, financial advisory and brokerage firm knowledge,
securities broker contacts and experience of Consultant. Consultant
agrees to provide Consultant's professional knowledge, energies and
endeavors to the business of NDH in the manner requested by NDH's
President from time to time, and in strict accordance with the ethical
standards of a securities and business professional. The Consultant
agrees to act as an independent contractor and agrees to use his
personal and business knowledge, contacts and experience to assist NDH
in establishing and developing a fee based financial advisory business.
This agreement is not intended to prohibit or deter Xxxxxxxxxx from
using his name, contacts, reputation and goodwill in any non-security
or non-insurance (other than property and casualty insurance which is
not prohibited ) related business.
2. Term: The term of this Agreement shall begin and be effective the first
date written above, and shall continue for a period of three months
thereafter.
3. No compensation provided for in this Agreement shall require NDH to
deduct therefrom Social Security, Medicare, federal or state income
taxes. All taxes on compensation paid to Consultant shall be reported
by Consultant to the appropriate taxing authorities as self employment
income and all applicable taxes will be paid by Consultant.
4. As total compensation for the three month period, Consultant shall
receive 33,000 shares of no-par common stock of NDH. Said common
shares described in this paragraph shall be issued in a private
transaction exempt from registration under Securities and Exchange or
any state registration requirements and shall be subject to the resale
restrictions on unregistered securities. Consultant may request that
NDH register the shares of ND Holdings, Inc. earned by him pursuant to
this contract on a Form S-8 registration and NDH shall promptly prepare
and file said S-8 registration statement if such registration is
reasonably available to NDH.
5. Confidentiality and Disclosure of Information: The Consultant
recognizes and acknowledges that NDH is engaged in the furnishing of
certain financial services, securities brokerage and other customer
related services some of which are intangible and not quantifiable and
that there may be techniques and concepts which become a part of the
proprietary rights of NDH in and to NDH's techniques, operations and
procedures. During the course of Consultant's contract hereunder, the
Consultant may develop or come into contact with, as same may exist
from time to time, such techniques, operations and procedures, all of
which are valuable, special and unique assets of NDH's business. The
Consultant shall not, during or after the term of Consultant's
contract, without the prior written consent of NDH, remove any
software, files, records, lists, materials, documents, names or other
matters which may come to Consultant's attention, including copies or
abstractions therefrom, or Consultant's own notes made therefrom;
disclose the names of NDH's customers, other consultants, employees or
agents or any part thereof, nor make use of, nor disclose, divulge or
reveal the files, records, materials, documents, or client names,
owned by NDH to any person, firm, corporation, association or any other
entity, for any reason or purpose whatsoever. The Consultant shall not
disclose, write, publish or otherwise disseminate any material,
factual, fictitious or otherwise that may make reference to or be based
upon any reference to NDH or any customer or other consultant or
employee of NDH, files, records, materials, documents, names or other
matters of NDH. The Consultant further covenants and agrees that
Consultant shall retain all such knowledge and information which
Consultant shall acquire and develop during Consultant's contract
respecting the customers and other confidential information in trust for
the sole benefit of NDH and its successors and assigns. In the event
of a breach or threat of breach by the Consultant of the provisions of
this paragraph, NDH shall be entitled to an injunction, restraining the
Consultant from any breach or threatened breach of the terms of this
Agreement without the posting of any bond or security. Nothing herein
shall be construed as prohibiting NDH from pursuing any other remedies
available to NDH for such breach or threat of breach, including the
recovery of damages from the Consultant.
6. Non Solicitation of Employees and Agents: Consultant during the period
commencing on the date hereof and ending one year after the termination
of the Consultant's contract with NDH for any reason, the Consultant
shall not directly or indirectly induce or attempt to induce any of the
employees or representatives of NDH to leave the employ of or
association with NDH, or solicit the business of any client or customer
of NDH.
7. Covenant to Report: The Consultant shall promptly communicate and
disclose to NDH all observations made and data obtained by Consultant in
the course of Consultant's contract. All written materials, records,
software and documents made by the Consultant or coming into
Consultant's possession during the term of this Agreement concerning the
business or affairs of NDH, shall be the sole property of NDH, and upon
the termination of the contract period or upon the request of NDH
during this period, the Consultant shall promptly deliver the same to
NDH, or any affiliate designated by it. The Consultant agrees to render
to NDH, or any affiliate designated by it, such reports of the
activities undertaken by the Consultant or conducted under the
Consultant's discretion pursuant hereto during the contract period as
NDH may request. In the event of a breach or threat of breach by the
Consultant of the provisions of this paragraph, NDH shall be entitled to
an injunction, restraining the Consultant from any breach or threatened
breach of the terms of this Agreement. Nothing herein shall be
construed as prohibiting NDH from pursuing any other remedies available
to NDH for such breach or threat of breach, including the recovery of
damages from the Consultant.
8. Termination: All compensation shall cease upon termination of this
contract if terminated in accordance with this section. This
Agreement may be terminated by mutual written agreement, by passage of
time or may also terminate upon the occurrence of any one of the
following events:
(a) NDH's bankruptcy, general assignment or trust mortgage for the
benefit of creditors, receivership or involuntary dissolution of
NDH; In such event Consultant would have such rights and claims
as are available under applicable bankruptcy regulations.
(b) Consultant's death or disability as determined by a physician
appointed by NDH.
(c) If after written notice of specific failure to carry out duties
under this contract (the "defined failure") and a fourteen day
opportunity to cure the defined failure, NDH's President
determines in his sole discretion that Consultant has failed
carry out his duties and responsibilities as required by this
contract.
(d) The commission of any crime, or violation of any federal, state or
self regulatory organization rule by Consultant which would by
law or regulatory rule prevent Consultant from carrying out his
duties and responsibilities under this agreement.
9. Amendment or Alterations: No amendment or alteration of the terms of
this Agreement shall be valid unless made in writing and signed by both
NDH and the Consultant.
10. Choice of Law and Venue: This Agreement shall be governed by the laws
of the State of North Dakota. Any action brought concerning this
contract shall be venued in Minot, North Dakota.
11. Notices: Any notices or tenders required or permitted to be given
under this Agreement shall be sufficient, if in writing and if sent by
registered mail to the business address of the Consultant or to the
residence of the legal representative of the estate of the Consultant
or to the principal place of business of NDH and shall be deemed given
when mailed.
12. Waiver of Breach: The waiver by NDH or by Consultant of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any prior or subsequent breach by either of the parties
hereto.
13. Binding Effect: The terms of the Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
personal representatives, successors and assigns.
14. This agreement is subject to the acceptance of the Board of Directors
of NDH.
15. Entire Agreement: This instrument contains the entire agreement of the
parties.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the day and year first above written.
NDH:
ND Holdings, Inc.
By: _____s/s Xxxxxx Walstad________________________________
Print Name and Title: __CEO_____________________
Consultant:
Xxxxx Xxxxxxxxxx
Signature: _____s/s Xxxxx Wollenburg____________________________
