CONSULTING SERVICES AGREEMENT
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THIS CONSULTING SERVICES AGREEMENT (this "Agreement"), dated as of January
2, 1997, is between XXXXXX' EXPRESS, INC., a Colorado corporation ("Xxxxxx'
Express") and Xxxxxxx X. Xxxxxxxxx (the "Contractor").
Recitals
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A. The Contractor is in the business of providing services of benefit to
Xxxxxx' Express and Xxxxxx' Express desires to engage the services of the
Contractor under terms and conditions specified in this Agreement.
X. Xxxxxx' Express and the Contractor intend that their relationship not be
considered an employer-employee relationship and desire to set forth the basic
terms of the understandings between them in this Agreement.
Agreement
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IN CONSIDERATION of the foregoing recitals, other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
the mutual covenants set forth below, Xxxxxx' Express and the Contractor agree
as follows:
ARTICLE I
NATURE AND SCOPE OF SERVICES
Section 1.1 Engagement. Xxxxxx' Express hereby agrees to engage the
services of the Contractor and the Contractor hereby agrees to provide services
to Xxxxxx' Express on the terms and conditions set forth in this Agreement.
Section 1.2 Nature of Services. The Contractor shall provide services to
Xxxxxx' Express, as more fully described in Exhibit A, attached to and made a
part of this Agreement by this reference, as that Exhibit may be amended from
time to time by written agreement signed on behalf of Xxxxxx' Express and by the
Contractor.
Section 1.3 Commencement. The consulting services rendered by the
Contractor under the terms and conditions of this Agreement shall commence on
January 2, 1997.
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Section 1.4 Compliance with Applicable Laws. In performing services under
this Agreement, the Contractor shall comply with any and all applicable laws,
rules, orders, and regulations of any governmental or quasi-governmental agency
having jurisdiction over the activities of the Contractor or the business
activities of Xxxxxx' Express.
ARTICLE II
RELATION OF THE PARTIES
Section 2.1 Independent Contractor Status. At all times the Contractor
shall be considered for all purposes to be an independent contractor. The
Contractor shall not be considered an agent or employee of Xxxxxx' Express for
any purpose.
Section 2.2 Contractor Responsible For Own Taxes. The Contractor shall not
be entitled to participate in any plans, arrangements or distributions by
Xxxxxx' Express pertaining to or in connection with any benefits for regular
employees of Xxxxxx' Express, including, but not limited to, FICA contributions
and income tax withholdings. The Contractor shall be responsible for the payment
of all applicable taxes and the filing of all applicable tax reports and returns
with the appropriate government entities with respect to any income derived by
the Contractor pursuant to this Agreement.
Section 2.3 Contractor Responsible For Own Insurance. The Contractor shall
be responsible for providing his or her own insurance, including, without
limitation, liability insurance and xxxxxxx'x compensation.
Section 2.4 Independent Discretion. The Contractor shall use independent
discretion as to the means by which the duties described in Exhibit A are
accomplished. The methods and procedures for performing the services pursuant to
this Agreement are within the exclusive control of the Contractor.
Section 2.5 No Joint Venture. Xxxxxx' Express and the Contractor
acknowledge that nothing in this Agreement shall constitute them as partners or
joint venturers in the performance of any activities contemplated by this
Agreement.
Section 2.6 No Warranties Authorized. In connection with performance of
Contractor's obligations under this Agreement, the Contractor shall make no
warranties, oral or written, concerning any aspect of the business operations of
Xxxxxx' Express which are not provided to the Contractor, in writing, by Xxxxxx'
Express.
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ARTICLE III
COMPENSATION FOR SERVICES
Section 3.1 Service Fee. As compensation for the performance of the
Contractor's services under this Agreement, Xxxxxx' Express shall pay to the
Contractor a service fee of One Thousand and no/100 Dollars ($1,000) per month.
Section 3.2 Pre-Approved Expense Reimbursement. Xxxxxx' Express shall pay
for all customary, reasonable and pre-approved business expenses related to
performance of the Contractor's obligations under this Agreement. The Contractor
shall keep good and sufficient records of all expenses for which reimbursement
is requested. Payments for such reimbursements shall be made by Xxxxxx' Express
on a monthly basis. All single item expenses exceeding $100.00 and all aggregate
expenses exceeding $500.00 incurred in any given month must be pre-approved in
writing by Xxxxxx' Express.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. The term of this Agreement shall commence on January 2,
1997 and shall continue for a term of two years, unless terminated pursuant to
other provisions of this Agreement.
Section 4.2 Termination for Cause. Xxxxxx' Express may terminate this
Agreement for "cause" without prior written notice delivered to the Contractor.
For purposes of this Agreement, the term "cause" shall include, without
limitation: the Contractor's fraud, dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform duties assigned under this Agreement, willful violation of
any rule, law, regulation (other than traffic violations or similar offenses) or
a material breach of any term or condition of this Agreement.
Section 4.3 Termination for Disability. Xxxxxx' Express may, by a decision
of the President of Xxxxxx' Express, with the concurrence of the Board of
Directors of Xxxxxx' Express, terminate this Agreement on account of the
Contractor's disability, provided that Xxxxxx' Express shall have the absolute
obligation to continue to pay to the Contractor (or his or her estate or
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personal representative, as the case may be) an amount equal to the compensation
previously earned by the Contractor prior to the date of termination, on the
condition that the Contractor or the Contractor's representative sign an
agreement releasing Xxxxxx' Express from all further liability under this
Agreement, and Xxxxxx' Express shall have no further obligations under this
Agreement.
Section 4.4 Termination upon Death. This Agreement shall terminate upon the
Contractor's death, and Xxxxxx' Express shall have no further obligations under
this Agreement, provided that Xxxxxx' Express shall have the absolute obligation
to continue to pay to the Contractor (or his or her estate or personal
representative, as the case may be) an amount equal to the compensation
previously earned by the Contractor prior to the date of termination, and
Xxxxxx' Express shall have no further obligations under this Agreement.
Section 4.5 Termination by the Contractor. The Contractor may terminate the
Contractor's obligations under this Agreement as follows:
(a) upon the expiration of 10 days after the Contractor has given written
notice to Xxxxxx' Express that the Contractor has determined that Xxxxxx'
Express has breached any material term or condition of this Agreement,
unless Xxxxxx' Express shall have cured such breach to the satisfaction of
the Contractor within the 10 day period; or
(b) upon the expiration of 20 days after Xxxxxx' Express has been given
written notice by the Contractor that the Contractor has elected to
terminate this Agreement for any other reason.
ARTICLE V
CONFIDENTIALITY
Section 5.1 Confidential Information. During the term of this Agreement,
the Contractor may have access to and become familiar with various trade
secrets, techniques, inventions, processes, and compilations of information and
records which are owned, in whole or in part, by Xxxxxx' Express and which are
regularly used in the operation of its business, as well as various other types
of confidential information concerning Xxxxxx' Express' business and operations.
The Contractor shall not disclose any such trade secrets or other confidential
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information, nor use any of such trade secrets or other confidential
information, during the term of this Agreement or thereafter, except as required
in the course of performing Contractor's duties under this Agreement. All files,
records, documents, equipment, and similar items relating to Xxxxxx' Express'
business, whether prepared by the Contractor or otherwise coming into his or her
possession, shall remain the exclusive property of Xxxxxx' Express and, except
as may be required during the course of performance of Contractor's duties under
this Agreement, shall not be removed by the Contractor from the premises of
Xxxxxx' Express without the prior written consent of the President of Xxxxxx'
Express.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 No Assignment. This Agreement and all rights, benefits, duties
and obligations under this Agreement shall not be subject to execution,
attachment or similar process and, in the absence of written permission from
Xxxxxx' Express, may not be assigned, delegated, transferred, pledged or
hypothecated. Any such assignment, delegation, transfer, pledge, hypothecation,
execution, attachment or similar process, to the extent permitted by law, shall
be null, void and of no effect whatsoever, unless the written consent of Xxxxxx'
Express and the Contractor shall have first been obtained.
Section 6.2 Arbitration. If any controversy arises out of events or
provisions relating to or included within this Agreement other than violation of
the provisions of Article V, the same shall be arbitrated in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in effect
at the time of the dispute. Judgment on such arbitration award may be entered in
any court having jurisdiction.
Section 6.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid and effective under
applicable law, but if any provision of this Agreement is found to be prohibited
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
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Section 6.4 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or if mailed by United States
certified or registered mail, prepaid, to a party at the address for such party
contained in this Agreement or such other address as shall be provided in
writing by either party to the other.
Section 6.5 Successors and Assigns. This Agreement shall inure to the
benefit of the Contractor, his or her heirs, personal representatives and
assigns (if any) or its successors and assigns (if any), as the case may be, and
Xxxxxx' Express, its successors and assigns.
Section 6.6 Governing Law. This Agreement is made under, shall be construed
in accordance with, and shall be governed by the laws of the State of Colorado
as applied to contracts made and performed solely within the State of Colorado.
Section 6.7 Waiver and Modification. Any waiver, alteration or modification
of any of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties to this Agreement. The failure of either party
to enforce at any time, or for any period of time, any of the provisions of this
Agreement shall not be construed as a waiver of such provisions or of the right
of such party to enforce each and every provision of this Agreement in the
future.
Section 6.8 Indemnification. The Contractor agrees to indemnify and hold
harmless Xxxxxx' Express from any and all claims, losses or damage (including
any amount paid in reasonable settlement of litigation, either threatened or
pending) and all costs and expenses (including legal fees and other expenses
reasonable incurred in investigating or defending against litigation, either
threatened or pending) incurred by Xxxxxx' Express arising out of the
Contractor's performance of duties under this Agreement.
Section 6.9 Headings. The headings and captions contained in this Agreement
are for convenience only and are not to be construed as a part of this
Agreement.
Section 6.10 Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties to this Agreement and, except
as otherwise provided in this Agreement, there are no other agreements or
understandings, written or oral, in effect between the Contractor and Xxxxxx'
Express (or any other person or entity) specifically relating to the substance
of this Agreement.
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Section 6.11 Counterparts. This instrument may be executed in counterparts,
each of which shall be deemed an original, but both of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, Xxxxxx' Express and the Contractor have executed this
Agreement as of the day and year first above written.
XXXXXX' EXPRESS, INC.
By: /S/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, President
THE CONTRACTOR
/S/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
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EXHIBIT A
Nature of Services
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Duties and Obligations
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The Contractor shall perform the following services for Xxxxxx' Express:
1. Evaluate, advise and assist the Company with development and execution
of the Company's business plan.
2. Provide, on an as needed basis, food service and financial consulting to
customers of the Company.
3. Analyze sources of available capital to be used for pursuit of the
Company's business plan and expansion activities.
4. Assist the officers and directors of the Company with preparation and
filing of a registration statement with the Securities and Exchange Commission
to register shares of its common stock for sale to the public.
5. Assist the officers and directors of the Company with the offering and
sale of shares of the Company's common stock in compliance with applicable laws,
rules and regulations.
6. Serve as a liaison between the Company and its attorneys, accountants,
transfer agents, financial printers and other consultants.
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