EXHIBIT 10.9
CONSULTING AGREEMENT
THIS AGREEMENT, effective June 1, 1996, by and between XXXXX X.
XXXXX, XX. (hereinafter called "Counselor") and Xxxxxx Oil Corporation
(hereinafter called "Client").
WITNESSETH:
WHEREAS, Client is desirous to retaining Counselor as an independent
financial consultant for the period and upon the terms and conditions
provided herein;
NOW, THEREFORE, for and in consideration of the compensation to be
paid Counselor hereunder and the mutual covenants herein contained,
Counselor and Client hereby agree as follows:
1. TERM. The term of this Agreement shall be for a period beginning
on the first day of the calendar month following the date of this Agreement
(or on the date hereof if such date is the first day of a calendar month)
and continuing for twelve (12) consecutive calendar months thereafter.
This Agreement shall be automatically renewed for successive twelve (12)
month periods unless written notice of termination is given by one party to
the other party at least thirty (30) days prior to the expiration date of
any such twelve (12) month period, including the initial twelve (12) month
period.
2. FEES. Client shall pay the Counselor for his services hereunder
a fee of $275.00 per hour, payable on or before ten (10) days after the end
of each calendar month during the term of this Agreement.
3. TIME. Counselor shall upon request of Client devote to Client as
much time as is available and required.
4. SERVICES. During the term of this Agreement, Counselor shall, in
the capacity of an independent contractor, furnish such financial, tax,
strategic, marketing and operational planning and review of Client's
internal data, including financial statements, on a regular basis, as
requested by Client. It is understood and agreed that (a) Counselor will
be providing only consulting services and will not be providing legal, tax
or accounting services and Client shall not rely upon him for such
services, and (b) Counselor is providing services to Client on a limited
basis and is, therefore, engaged in the same or other services for other
clients and is not in any manner prohibited from engaging in such other
business or businesses as Counselor may desire. In addition, it is
understood that Client shall cooperate with Counselor in endeavoring to
schedule his work hereunder so that it will not unreasonably interfere with
his other business or businesses.
5. EXPENSES. Upon proper accounting, Counselor shall be reimbursed
for all reasonable travel and other out-of-pocket expenses incurred by him
in connection with his consultation with Client. All such expenses shall
be reimbursed to Counselor with the monthly fee payment due after said
accounting is submitted to Client.
6. TEMPORARY INCAPACITY. Counselor shall be excused from performing
any consulting services hereunder for Client during periods of temporary
incapacity.
7. CONFIDENTIAL INFORMATION. All information relating to the
business of Client and its affiliates including, but not limited to, the
identity of customers and suppliers, arrangements with which such customers
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and suppliers and technical data relating to the Client's facilities and
services, shall be treated as confidential by Counselor both during and
after the term of this Agreement. Except with the prior written approval
of Client, or as required by law, Counselor shall not disclose any of such
information at any time to any person except authorized personnel of Client
and its affiliates. In the event of a breach or threatened breach by
Counselor of the provisions of this paragraph, the Client shall, in
addition to any other available remedies, be entitled to an injunction
restraining Counselor from disclosing, in whole or in part, any of such
information or from rendering any services to any person to whom any of
such information may have been disclosed or is threatened to be disclosed.
8. WORK PAPERS. All data, drawings and other records or written
material prepared or complied by Counselor under the terms of this
Agreement or furnished to Counselor during the term hereof by Client, any
of its affiliates or any person dealing with the Client or any of its
affiliates shall, as between Counselor or Client and its affiliates, be the
sole and exclusive property of the Client and its affiliates, and none of
such data, drawings or other records or written material shall be retained
by Counselor upon termination of this Agreement.
9. TERMINATION. Except as provided in paragraph 1. above, Client
cannot terminate this Agreement except upon the occurrence of one of the
following contingencies:
(a) Should Counselor die;
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(b) Should Counselor, for more than six months, by reason of injury
or illness become incapable of satisfactorily performing his
duties hereunder; or
(c) Should Counselor be adjudicated a bankrupt or be convicted of a
felony or a crime involving moral turpitude or a crime which in
the sole judgment of the Client adversely affects the utility of
his services; or
(d) Should Counselor fail to comply with the terms and conditions
hereof.
Counselor or his heirs or personal representatives shall be given written
notice of Client's intent to terminate this Agreement pursuant to this
paragraph and shall have thirty (30) days after receipt of such notice to
correct, if possible, the specified contingency.
10. AMENDMENT. This Agreement shall not be changed orally, but only
by a written instrument to which Client and Counselor are both parties.
11. INDEPENDENT CONTRACTOR. Counselor shall employ his own means and
methods of accomplishing the projects assigned to him by Client form time
to time and shall not be subject to the control of Client in respect to the
details of such work. It is understood and agreed that Counselor shall act
as an independent contractor in the performance of his obligations and
services under this Agreement and no employer-employee relationship exists
between Client and Counselor.
12. PAYEE. It is further understood and agreed that Counselor is
performing the services hereunder as a partner of Xxxxx, Mayborn Company,
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Ltd., a Texas limited partnership, and all payments due Counselor hereunder
shall be made payable to Xxxxx, Mayborn Company, Ltd. at the address
specified in paragraph 14. below.
13. INTERPRETATION. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, and shall also bind and
inure to the benefit of any successor of Client by merger or consolidation
or any assignee of all or substantially all of its properties.
14. NOTICES. Any notices required or permitted to be given under
this Agreement shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested,
addressed as follows:
If to Counselor: Xxxxx X. Xxxxx, Xx.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
If to Client: Xxxxxx Oil Corporation
X.X. Xxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
15. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Texas.
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EXECUTED to become effective on the day and year first above written.
/S/ XXXXX X. XXXXX, XX.
Xxxxx X. Xxxxx, Xx.
"Counselor"
XXXXXX OIL CORPORATION
"Client"
by: /S/ XXXXX XXXXXX
Xxxxx Xxxxxx, President
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[LETTERHEAD OF XXXXX, MAYBORN COMPANY, LTD. APPEARS HERE]
September 30, 1997
Mr. Xxxxx Xxxxxx
President
Xxxxxx Oil Company
X.X. Xxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Dear Xxxxx:
Over the past month I have been reviewing the billing rate which Xxxxx, Mayborn
Company, Ltd. uses for my consulting time. After reviewing the rates charged by
senior partners of major consulting, accounting and law firms, we have concluded
that we should increase the minimum hourly rate for my services to $375.00 per
hour effective January 1, 1998. However, since your present billing rate is
$275.00 per hour, I plan to phase in the new billing rate by adjusting my
billing rate for services to your company during calendar year 1998 to $325.00.
The billing rate will be raised to $375.00 for services rendered on or after
January 1, 1999.
If you have any questions regarding the change in billing rates, please do not
hesitate to call me.
Best regards.
Yours very truly,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Enclosure
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