EXHIBIT 10.10
CONSULTING AGREEMENT
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THIS AGREEMENT is entered into as of December 1, 1996, by and between
A.S.V., Inc., a Minnesota corporation, 000 Xxxx Xxxx, X. X. Xxx 0000, Xxxxx
Xxxxxx, Xxxxxxxxx 00000 (the "Company"), and Xxx Partners, Inc., a Florida
corporation, 0000 Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Consultant").
WHEREAS, the Company seeks consulting and advisory services related
generally to strategic and financial analysis, and receiving other advice
concerning its business.
WHEREAS, as of October 1, 1996, the Company and Consultant orally agreed
that Consultant would provide the services herein contemplated in exchange for a
warrant to purchase 150,000 shares of the Company's common stock.
WHEREAS, this agreement sets forth in writing the understanding of the
parties with respect to the consulting services Consultant is to provide to the
Company.
NOW, THEREFORE, in consideration of good and adequate consideration and in
light of the above recitals, the parties do agree as follows:
1. Services Provided.
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1.01. Basic Services Provided. The Consultant agrees, from time to time
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at the request of and subject to direction by the Company, to provide consulting
and advisory services relating to strategic and financial analysis relating to
the Company and its business.
Consultant agrees to provide the foregoing services in a good and
faithful manner, using its reasonable best efforts to increase Company
shareholder value and otherwise promote the best interests of the Company, as
the Company may from time to time articulate.
1.02. Amount of Services Provided. The Company and the Consultant agree
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that, while the amount of advisory services provided will vary from time to
time, the Company shall be entitled under this Agreement to an average of 20
hours of consulting services per month.
2. Effective Date; Termination.
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2.01. Effective Date; Termination. This Agreement shall be effective as
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of the date set forth in the first paragraph (the "Effective Date") and shall
continue in
effect for a period of five years or until terminated by either party upon 30
days prior written notice to the other party.
2.02. Obligations Following Termination. The Consultant shall return all
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copies of the Company's Confidential Information (as defined in Section 5 below)
to the Company.
3. Compensation. Concurrent with the execution of this Agreement, the Company
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shall issue to Consultant a warrant, substantially in the form of Exhibit A
hereto, to purchase a total of 150,000 shares of the Company's Common Stock,
$.01 par value per share. The exercise price for the warrant granted pursuant
to this Section 3.02 shall be $16.50 per share. The warrant shall be
exercisable for a period of ten (10) years from the date of this Agreement.
4. Compliance with Law; No Conflicts. The Consultant hereby represents and
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warrants to and covenants with the Company as follows:
(a) the Consultant shall comply with all applicable laws in the
performance of this Agreement including, without limitation, the federal
securities laws;
(b) the Consultant acknowledges receipt of the Company's policies
applicable to its officers and directors regarding trading in Company
securities and agrees to be bound by such policies;
(c) the Consultant is currently, and will at all times during the
term of this Agreement remain, under no conflict of interest in the
performance of this Agreement due to personal, financial or professional
relationships with or payments from any competitors of the Company or from
any enterprise. The Consultant shall promptly disclose in writing to the
Company any relationship or payment during the term of this Agreement which
comes within the foregoing sentence. If requested by the Company, the
Consultant shall withdraw from involvement on behalf of the Company or the
other party.
5. Confidential Information. The Consultant hereby acknowledges that the
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Company may disclose to the Consultant certain sensitive and confidential
information ("Confidential Information") relating to the Company's products and
the Company's business strategy, marketing plans, cost and price structures, and
other similar information related thereto. The Consultant shall not disclose
such Confidential Information to any third party or use for his own benefit or
of the benefit of any other person, except as is strictly necessary in the
performance of this Agreement. The foregoing duty shall terminate three years
after the termination of this Agreement. The foregoing duty in this Section 5
shall not apply to any
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information which is: (a) already known to the Consultant prior to its
disclosure by the Company; (b) provided to the Consultant by another party not
under any duty of confidentiality to the Company; or (c) already in the public
domain through no act or fault of the Consultant.
6. Miscellaneous.
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6.01. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Minnesota, excluding its choice of law
rules.
6.02. Entire Agreement. This Agreement shall constitute the only
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agreement between the Company and the Consultant relating to the subject matter
hereof, and no representations, promises, understandings, or agreement, oral or
otherwise, not herein contained shall be of any force or effect. This Agreement
supersedes all other written or oral communications between the parties relating
to the subject matter hereof.
6.03. Modification; Waiver; Special Arrangements. No modification,
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amendment or waiver of any provision of this Agreement shall be valid unless it
is in writing and signed by the party against whom it is sought to be enforced.
No waiver at any time of any provision of this agreement shall be deemed a
waiver of any other provision of this Agreement at that time or a waiver of that
or any other provision at any other time.
6.04. Severability. If any provision of this Agreement shall be held
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invalid or unenforceable, the remainder of this Agreement shall nevertheless
remain in full force and effect. If any provision is held invalid or
unenforceable only with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
A.S.V., INC.
By _____________________________________
Its ____________________________________
XXX PARTNERS, INC.
By _____________________________________
Its ____________________________________
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