EXHIBIT 10.17
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of the 1st day of April, 1998 between WORK International
Corporation, a Texas corporation (the "Company"), and the Bollard Group, LLC
(the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to engage the Consultant and the Consultant
desires to perform consulting services for the Company.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Consultant hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms have
the meanings prescribed below:
AFFILIATE when used to indicate a relationship with any person, means: (i)
any corporation or organization of which such person is an officer, director or
partner or is directly or indirectly the beneficial owner of at least 10% of the
outstanding shares of any class of equity securities or financial interest
therein; (ii) any trust or other estate in which such person has a beneficial
interest or as to which such person serves as trustee or in any similar
fiduciary capacity; or (iii) any person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, or is acting as agent on behalf of, or as an officer or director
of, such person. As used in the definition of Affiliate, the term "control"
(including the terms "controlling," "controlled by" or "under common control
with") means the possession, direct or indirect, of the power to direct, cause
the direction of or influence the management and policies of a person, whether
through the ownership of voting securities, by contract, through the holding of
a position as a director or officer of such person, or otherwise.
COMPANY means WORK International Corporation, a Texas corporation, the
principal executive office of which is located at 000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, or any Affiliate thereof.
CONFIDENTIAL INFORMATION means information which is delivered to, comes
into the possession of, or which the Consultant was given access to by the
Company and is used in the business of the Company or its Affiliates and (i) is
proprietary to, about or created by the Company or its Affiliates, (ii) gives
the Company or its Affiliates some competitive business advantage, (iii) the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (iv) is
designated as Confidential Information by the Company or its Affiliates, is
known by the Consultant to be considered confidential by the Company or its
Affiliates, or from all the relevant circumstances should reasonably be assumed
by the Consultant to be confidential and proprietary to the Company or its
Affiliates, or (v) is not generally known by non-Company personnel. Any such
information that becomes publicly known through no act or fault of the
Consultant shall cease to be Confidential Information for purposes of this
Agreement. Such Confidential Information includes, without limitation, the
following types of information and other information of a similar nature
(whether or not reduced to writing or designated as confidential):
(a) Internal personnel and financial information of the Company or its
Affiliates, vendor information (including vendor characteristics, services,
prices, lists and agreements), purchasing and internal cost information,
internal service and operational manuals, and the manner and methods of
conducting the business of the Company or its Affiliates;
(b) Marketing and development plans, price and cost data, price and
fee amounts, pricing and billing policies, quoting procedures, marketing
techniques, forecasts and forecast assumptions and volumes, and future
plans and potential strategies (including, without limitation, all
information relating to any acquisition prospect and the identity of any
key contact within the organization of any acquisition prospect) of the
Company or its Affiliates which have been or are being discussed;
(c) Names of customers and their representatives, contracts (including
their contents and parties), customer services, and the type, quantity,
specifications and content of products and services purchased, leased,
licensed or received by customers of the Company or its Affiliates; and
(d) Confidential and proprietary information provided to the Company
or its Affiliates by any actual or potential customer, government agency or
other third party (including businesses, consultants and other entities and
individuals).
CONSULTANT means Bollard Group, LLC, a Texas limited liability corporation,
the principal executive office of which is located at 000 Xxxxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, and any personnel or Affiliates thereof.
CONSULTING FEE shall have the meaning assigned thereto in Section 41
hereof.
CONSULTING PERIOD shall have the meaning assigned thereto in Section 3
hereof.
DATE OF TERMINATION shall have the meaning assigned thereto in Section 5
hereof.
EFFECTIVE DATE means April 1, 1998.
IPO shall mean the Company's initial public offering.
NOTICE OF TERMINATION means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Consultant's consulting under the provision so indicated, and
(iii) specifies the termination date, if such date is other than the date of
receipt of such notice.
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2. GENERAL DUTIES OF THE COMPANY AND THE CONSULTANT. The Company hereby
engages the Consultant, and the Consultant agrees to provide management and
investment banking advice and assistance in order to help the Company prepare
for the IPO, which services shall include those services described on Exhibit A
hereto. While acting in this capacity, the Consultant shall devote time and
effort to the tasks assigned to the Consultant by the Company and shall perform
those tasks in a timely and professional manner. Consultant agrees that such
services will require that it be involved in and be available to provide
services on a regular basis. The Consultant's services hereunder shall be
performed at such locations as the parties hereto may mutually agree upon from
time to time.
3. TERM. Unless sooner terminated pursuant to other provisions hereof, the
Consultant's period of engagement under this Agreement shall commence on the
Effective Date and terminate on December 31, 1998 (the "Consulting Period").
4. COMPENSATION AND BENEFITS.
4.1 CONSULTING FEE. As compensation for services to the Company, the
Company shall pay the Consultant, beginning on the Effective Date and continuing
up to and including the Date of Termination, $30,000 per month (the "Consulting
Fee"), payable on the first day of each month beginning on April 1, 1998 and
continuing through the Consulting Period until the Date of Termination.
4.2 REIMBURSEMENT OF EXPENSES. The Consultant may from time to time until
the Date of Termination incur various business expenses customarily incurred by
such consultants, including, without limitation, travel, entertainment and
similar expenses incurred for the benefit of the Company. The Company shall
reimburse the Consultant for all such reasonable out-of-pocket expenses from
time to time, at the Consultant's request, upon submission of an appropriate
expense report by such persons with supporting information regarding such
expenses.
5. TERMINATION. This Agreement will terminate automatically upon the earliest
to occur of (the "Date of Termination"): (i) the termination of this Agreement
by the Company or the Consultant on 30 days' written notice to the other party;
(ii) the successful completion of the IPO; (iii) the liquidation or dissolution
of the Company or the Consultant; (iv) the entry by a court of a decree or order
of relief against, or the commencement by, the Company or the Consultant, of a
case or proceeding (whether voluntary or involuntary) under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law; or
(v) the expiration of the Consulting Period. Any termination of this Agreement
by the Company or by the Consultant shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 71 of
this Agreement.
6. CONSULTANT'S CONFIDENTIALITY OBLIGATION.
6.1 The Consultant hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this Section 6. The Consultant
acknowledges that all such Confidential Information is in the nature of a trade
secret.
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6.2 As a consequence of the Consultant's acquisition or anticipated
acquisition of Confidential Information, the Consultant shall occupy a position
of trust and confidence with respect to the affairs and business of the Company
and its Affiliates. In view of the foregoing and of the consideration to be
provided to the Consultant, the Consultant agrees that it is reasonable and
necessary that the Consultant make each of the following covenants:
(a) Until the Date of Termination and for all times thereafter, the
Consultant shall not disclose Confidential Information to any person or
entity, either inside or outside of the Company, other than as necessary in
carrying out its duties and responsibilities as set forth in Section 2
hereof, without first obtaining the Company's prior written consent (unless
such disclosure is compelled pursuant to court orders or subpoena, and at
which time the Consultant shall give notice of such proceedings to the
Company);
(b) Until the Date of Termination and for all times thereafter, the
Consultant shall not use, copy or transfer Confidential Information other
than as necessary in carrying out its duties and responsibilities as set
forth in Section 2 hereof, without first obtaining the Company's prior
written consent; and
(c) On the Date of Termination, the Consultant shall promptly deliver
to the Company (or its designee) all written materials, records and
documents made by the Consultant or which came into its possession during
the Consulting Period concerning the business or affairs of the Company or
its Affiliates, including, without limitation, all materials containing
Confidential Information.
7. MISCELLANEOUS.
7.1 NOTICES. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when delivered by hand or mailed by
registered or certified mail, return receipt requested, as follows (provided
that notice of change of address shall be deemed given only when received):
If to the Company to:
President
WORK International Corporation
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to the Consultant to:
Xxxxxxx X. Xxxxxxx
Bollard Group
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
or to such other names or addresses as the Company or the Consultant, as the
case may be, shall designate by notice to the other party hereto in the manner
specified in this Section 71.
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7.2 INDEPENDENT CONTRACTOR STATUS. The relationship between the
Company and the Consultant is that of an independent contractor.
7.3 WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
7.4 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Company, its successors, legal representatives and assigns,
and upon the Consultant, its successors, legal representatives and assigns;
provided, however, the Consultant agrees that its rights and obligations
hereunder are personal to it and may not be assigned without the express written
consent of the Company.
7.5 ENTIRE AGREEMENT; NO ORAL AMENDMENTS. This Agreement, together
with any exhibit attached hereto and any document, policy, rule or regulation
referred to herein, replaces and merges all previous agreements and discussions
relating to the same or similar subject matter between the Consultant and the
Company and constitutes the entire agreement between the Consultant and the
Company with respect to the subject matter of this Agreement. This Agreement
may not be modified in any respect by any verbal statement, representation or
agreement made by any Consultant, officer, or representative of the Company or
by any written agreement unless signed by an officer of the Company who is
expressly authorized by the Company to execute such document.
7.6 SEVERABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
7.7 JURISDICTION; ARBITRATION. The laws of the State of Texas shall
govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof. Any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration located in Houston, Texas, administered by the
American Arbitration Association in accordance with its applicable arbitration
rules, and the judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof, which judgment shall be
binding upon the parties hereto.
7.8 INJUNCTIVE RELIEF. The Company and the Consultant agree that a
breach of any term of this Agreement by the Consultant would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Consultant's duties or responsibilities hereunder.
7.9 COUNTERPARTS. This Agreement may be executed by facsimile
signature and in any number of counterparts, each of which will be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement on this _____ day of May, 1998, to be effective as of
the Effective Date.
COMPANY:
WORK INTERNATIONAL CORPORATION
-------------------------------------
X. Xxxxxxxx French,
President and Chief Executive Officer
CONSULTANT:
BOLLARD GROUP, LLC
-------------------------------------
Xxxxxxx X. Xxxxxxx,
Manager
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EXHIBIT A
1. FINANCING. The Consultant will assist the Company in determining its
long and short-term capital requirements, in determining the best method of
fulfilling the Company's capital requirements, in locating sources of equity as
well as long and short-term debt financing, in preparing formal presentations
to potential investors and lenders, in negotiating the terms and conditions of
such financing and in consummating such financing and equity funding.
2. FINANCIAL CONTROLS AND SYSTEMS. The Consultant will assist the
Company in determining the need for and in devising and installing financial,
accounting and other office and business systems and controls.
3. MANAGEMENT PERSONNEL. The Consultant will assist the Company in the
conduct of management interviews and reviews to determine appropriate managerial
candidates and the efficiency of the current managerial organization of the
Company, the level of performance of the Company's executives and managers, and
the need to eliminate or add additional executive or managerial positions. The
Consultant will assist the Company in locating and hiring personnel to fill any
vacancy which may exist from time to time in executive or managerial positions
within the Company.
4. PROMOTION OF BUSINESS ASSOCIATIONS. The Consultant, through travel,
entertainment and otherwise, will assist the Company in developing and
maintaining business associations and relations with persons, companies or
institutions (such as existing and potential lenders, investors, customers and
suppliers) who are in a position to further the interests of the Company.
5. ACQUISITIONS. The Consultant will assist the Company in locating
possible acquisition candidates, in investigating and evaluating the condition,
financial and otherwise, of potential acquisition candidates, in structuring or
determining the format of acquisition transactions, in negotiating the terms and
conditions of acquisitions, in obtaining any financing which may be required in
connection with an acquisition and in carrying out and effecting the actual
acquisition.
6. GENERAL. The Consultant will generally assist the Company in
developing business investment and management plans and programs, in formulating
polices and objectives, and in carrying out such plans, programs and policies.
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