CONSULTANT AGREEMENT
This
Consultant Agreement (“Agreement”) is made by and between XXXX’X,
INC.,
a
Delaware corporation, and its subsidiaries, with an address at 00000 Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (collectively, the “Company”) and
XXXXXX
XXXXXXXXXX
(the
“Consultant”), and is effective beginning on the Separation Date as set forth
below.
This
Agreement represents the agreement mutually reached in connection with the
matters outlined herein. Therefore, for and in good consideration of the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
by
the parties, both the Company and the Consultant hereby agree as
follows:
1.
Resignation of Employment from the Company.
The
Consultant hereby submits and the Company hereby accepts the Consultant’s
voluntary resignation as Senior Vice President and Chief Financial Officer
and
as an officer, agent, and employee of the Company effective April 20, 2007
(the
“Separation Date”). Accordingly, effective as of the Separation Date the
Consultant’s employment with the Company will be permanently and irrevocably
terminated. The Consultant’s participation in any benefit plans will end in
accordance with the terms of such plans. The Consultant will be paid all wages
or compensation actually owed as of the Separation Date, and the Company will
pay the Consultant for any reasonable unreimbursed business expenses, which
remain outstanding as of the Separation Date. Unless Consultant is terminated
for Cause (as defined below), all unvested stock option and restricted stock
grants previously made shall continue to vest during the term of this agreement;
and in the event of termination of this agreement, any unvested stock options
or
restricted stock grants shall vest immediately and/or become
unrestricted.
2.
Consulting Relationship.
For the
period beginning on the Separation Date and ending April 20, 2009, unless
otherwise terminated pursuant to the terms of this Agreement (the “Consulting
Period”) the Consultant’s relationship with the Company will be solely that of
an independent contractor and not as an employee of the Company (the “Consulting
Relationship”) for the consideration provided for in this Agreement and upon the
following terms and conditions:
(a)
Consulting Services.
During
the Consulting Period, the Consultant agrees to furnish to the Company advisory
and consulting services related to Finance and Accounting matters and other
related consulting services as based upon the direction of the Chief Executive
Officer and the Chairman of the Board of Directors of the Company (the
“Consulting Services”). The Consultant will perform all Consulting Services in a
timely, good, and professional manner. The Consultant agrees to provide the
Company with Consulting Services requested by the Company from time to time
in
an amount not more than 60 hours of actual services per month (the “Maximum
Requirement”). Provided the Consultant does not violate the provisions of this
Agreement, the Consultant may hold employment and/or provide other consulting
services to persons or parties other than the Company. Both the Company and
the
Consultant acknowledge and agree that at all times subsequent to the Separation
Date that the relationship between the parties shall be solely that of an
independent contractor and nothing in this Agreement or otherwise shall
constitute the Consultant as an employee, agent, or officer of the
Company.
(b)
Consulting Fees.
The
Company will pay the Consultant a gross consulting fee of $12,500 each month
(the “Consulting Fee”) during the Consulting Period in connection with the
Consultant’s performance of Consulting Services. The Company agrees to pay all
reasonable and actual expenses incurred by the Consultant in the sole and direct
performance of Consulting Services, including but not limited to, travel
expenses. The Company shall also provide the Consultant with office space in
connection with the performance of Consulting Services, provided, however,
all
such expenses must be reasonably necessary, actual and approved in advance
by
the Company. The Consultant acknowledges that he has no other claims for
compensation, bonus, or other incentive payments.
(c)
Termination of Consulting Relationship.
Notwithstanding any agreement to the contrary, unless extended by written
agreement of the parties, the Consulting Period and all obligations of the
Company pursuant to this Paragraph 2, including, without limitation, the
obligation to pay the Consulting Fee, shall automatically terminate (1) April
20, 2009 or (2) an event giving rise for a termination for Cause of the
Consulting Relationship. A termination for “Cause” of the Consulting
Relationship shall include: (i) a willful and material failure or refusal by
the
Consultant to timely, properly and professionally perform Consulting Services
pursuant to this Agreement; (ii) a breach or violation by the Consultant of
any
of the terms, covenants, or provisions of this Agreement; or (iii) any unlawful
misconduct by the Consultant, including, without limitation, the commission
of
an act of fraud or embezzlement against the Company or the commission of a
crime
involving moral turpitude.
3.
Enforcement and Representations.
Each
party acknowledges that the restrictions and agreements contained in this
Agreement are necessary for the protection of the other party and that any
breach of any of the provisions of this Agreement by a party will cause the
other party irreparable damages for which the other party could not be
adequately or reasonably compensated for in monetary damages. Accordingly,
each
party consents to the issuance of an injunction in favor of the other party,
where a party has acted upon reasonable information concerning the potential
breach, to enjoin the breach of any covenant of the other party contained in
this Agreement by any court of competent jurisdiction. Nothing contained in
this
Paragraph shall be in limitation of any other rights or remedies that a party
may have at law or in equity should the other party breach the terms of this
Agreement. The Consultant also represents and warrants to the Company, as of
the
date hereof, that the execution, delivery and performance by the Consultant
of
the terms and provisions of this Agreement do not require the consent of any
spouse or other person which has not already been obtained and that this
Agreement constitutes a legal, valid and binding obligation of the Consultant
and is enforceable against the Consultant in accordance with its
terms.
4.
Governing Law, Venue, and Severability.
The
Company and the Consultant agree that Texas law shall govern the construction,
interpretation, and enforcement of this Agreement, and the parties agree that
venue for any action brought to enforce this Agreement shall be a court of
competent jurisdiction in the County of Xxxxxx, State of Texas. If any
provision, or portion thereof, of this Agreement shall for any reason be held
to
be invalid or unenforceable or to be contrary to public policy or any law,
then
the remainder of this Agreement shall be affected thereby. If at any time the
Consultant claims that any portion of this Agreement is unenforceable or
invalid, the Consultant must immediately tender back all consideration paid
to
the Consultant pursuant to this Agreement, and provide written notice of the
basis for the Consultant’s claim.
5.
Compliance with Securities Laws.
The
Consultant agrees to comply with any applicable federal and state securities
laws including, without limitation, compliance with any applicable reporting
requirements under Section 16 of the Securities Exchange Act of 1934, as
amended, for a period of six (6) months after the Separation Date. The
Consultant should consult with an attorney of his choice after the Separation
Date to determine any continuing obligations he may have with respect to the
federal and state securities laws including applicable xxxxxxx xxxxxxx
regulations and Section 16 reporting obligations.
6.
Entire Agreement.
The
Company and the Consultant agree that no promises or representations were or
are
made which do not appear written in this Agreement; that this Agreement,
contains the voluntary and entire agreement between the parties and supersedes
any and all previous verbal or written promises, representations, agreements,
negotiations and discussions between the parties; that this is a final and
binding settlement agreement; that neither of the parties are relying on any
representation or promise that does not appear in this Agreement; that this
Agreement is the result of negotiations between the parties after the
opportunity to consult with counsel of each of the parties own respective
choosing; and that this Agreement cannot be terminated or changed except by
a
writing signed by a duly authorized representative of the Company and the
Consultant.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized representatives as of the Separation
Date.
COMPANY:
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By:
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/s/Xxxxxx Xxx III | ||
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Xxxxxx
Xxx, III
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Chariman
of the Board
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Xxxx'x,
Inc.
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CONSULTANT:
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By:
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/s/Xxxxxx Xxxxxxxxxx | ||
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Xxxxxx
Xxxxxxxxxx
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