CONSULTING AGREEMENT
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AGREEMENT made this 29th day of December, 2000, between Ranger
Industries, Inc., a Connecticut corporation ("Ranger") and Xxxxxx X. Xxxxxx (the
"Consultant"). Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Merger Agreement (as defined herein).
W I T N E S S E T H:
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WHEREAS, the Consultant has served as Chief Executive Officer and
President of Ranger and has gained significant and valuable knowledge and
experience with respect to the business of Ranger in such capacities; and
WHEREAS, Ranger has entered into an Agreement and Plan of Merger and
Reorganization, dated as of December 29, 2000, by and among Xxxxxxxxx
Enterprises, Inc. ("Xxxxxxxxx"), Ranger and BEI Acquisition Corporation ("BEI")
(the "Merger Agreement") pursuant to which BEI shall merge with and into
Xxxxxxxxx and Xxxxxxxxx would become the surviving corporation in exchange for
the issuance of 14,720,000 newly issued shares of common stock, par value $.01
per share, of Ranger to the Xxxxxxxxx shareholders (the "Merger"); and
WHEREAS, Ranger and the Consultant are parties to an Employment
Agreement dated as of August 4, 1998 (the "Employment Agreement"); and
WHEREAS, Ranger wishes to provide for the continued involvement of
the Consultant in Ranger's business following the Merger by engaging and
retaining the Consultant to provide consulting services to Ranger and the
Consultant desires to perform such services; and
WHEREAS, Ranger will not have any physical presence in the State of
Connecticut during the Consulting Period (as defined herein).
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties, herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows.
1. Engagement as Consultant. As of the Closing, the Employment Agreement
is hereby terminated and Ranger shall engage the Consultant, and the Consultant
shall serve Ranger, as a consultant on a non-exclusive basis on the terms and
conditions set forth herein and in Appendix 1 hereto.
2. Term. The term of Consultant's engagement shall be the one year period
commencing as of the Closing Date of the Merger (the "Closing," this period
hereinafter to be referred to as the "Consulting Period"), unless extended by
mutual consent of both parties.
3. Duties. During the Consulting Period, the Consultant shall, upon no
less than three (3) business days notice, make himself available to Ranger
during normal business hours to provide consultation and advice on those matters
affecting the business and affairs of Ranger set forth on Appendix 1 hereto;
provided that the Consultant's performance of such duties shall not exceed ten
(10) hours in any month and shall not interfere with the Consultant's other
business activities.
4. Place of Performance. The Consultant may, in his sole discretion,
perform all duties under this Agreement in person or telephonically.
5. Compensation and Related Matters.
(a) Compensation. Ranger shall pay to the Consultant at the time of
the closing of the Merger a consulting fee of one hundred thousand dollars
($100,000) (the "Consulting Fee") in cash by wire transfer of immediately
available funds for services to be rendered during the Consulting Period.
(b) Expenses. Ranger shall promptly reimburse the Consultant for all
reasonable and customary expenses incurred by the Consultant in performing the
duties hereunder, including without limitation, all travel expenses and
telephone charges incurred in the service of Ranger, provided that such charges
are incurred rendering services under this Agreement.
6. Termination. Consultant's engagement may be terminated by mutual
consent of both parties hereto and Ranger may terminate the Consultant's
engagement only for Cause as provided in this Section 6. "Cause" shall mean the
Consultant's intentional and material breach of its obligations under this
Agreement. If Ranger desires to terminate Consultant's engagement for Cause,
Ranger shall provide to the Consultant written notice describing the grounds
deemed to constitute Cause. The Consultant shall have thirty (30) days from
receipt of such notice to cure the Cause. If the Consultant shall fail to cure,
Ranger may terminate the Agreement by written notice. Upon such termination, the
Consultant shall refund to Ranger a pro rata portion of the Consulting Fee,
based on the number of days remaining from the date of termination to the end of
the Consulting Period.
7. Indemnification. Ranger agrees to defend, hold harmless and indemnify
the Consultant for costs, liabilities and expenses, including reasonable
attorneys' fees, that may be incurred arising out of any and all claims related
to the Consultant's performance under this Agreement other than such claims
arising out of Consultant's intentional breach of this Agreement. Ranger shall
advance to the Consultant all costs and expenses incurred by the Consultant,
including attorney's fees and expenses as they are incurred provided that the
Consultant agrees to refund such amounts to Ranger if it shall ultimately be
determined by a non-appealable judgment that Consultant was not entitled to such
indemnification.
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8. Notice. Unless otherwise specified in this Agreement, notices, demands
and all other communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the intended party at the address as set forth under such party's
name on the signature page hereto, except that notices of change of address or
other contact information shall be effective only upon receipt.
9. Modification of Agreement; Governing Law. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by the Consultant and Ranger. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, nor any single or partial
exercise of any right, power or privilege, preclude any further exercise thereof
or the exercise of any other such right, power or privilege. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of laws principles.
10. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
12. Entire Agreement. This Agreement sets forth the entire Agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by the
parties hereto; and any prior agreement of the parties in respect of the subject
matter contained herein is hereby terminated and canceled.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement on the date first above written.
RANGER INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Secretary
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Appendix 1
Duties of Xxxxxx X. Xxxxxx, Consultant
o Advise with respect to the transition of ownership of the business of Ranger
to Xxxxxxxxx and the integration of the business of Ranger into and with the
business of Xxxxxxxxx.
o Advise with respect to the transfer of records and record-keeping strategies
to Xxxxxxxxx.
o Advise with respect to the communications with shareholders in connection
with the transfer of ownership of Ranger.
