AMENDED CONSULTING AGREEMENT TEXHOMA ENERGY, INC.
Exhibit 10.3
AMENDED CONSULTING
AGREEMENT
TEXHOMA
ENERGY, INC.
CONSULTING AGREEMENT, dated as of
__________, 2008, to be effective as of July 1, 2008 (this “Agreement”), by and
between TEXHOMA ENERGY, INC., a corporation organized and existing under the
laws of the State of Nevada (the “Company”), and Sure Engineering LLC (“Sure”)
and IBRAHIM XXXX XXXX, a principal of Sure (the “Consultant”) (collectively
sometimes referred to as the “Parties” and individually sometimes referred to as
a “Party” or “Each Party”). Unless otherwise indicated, all
references to Sections are to Sections in this Agreement. This Agreement is
effective as of the “Effective Date” set forth in Section 14 below.
W I T N E S S E T H :
WHEREAS, the Company desires
to obtain the services of Consultant and Consultant desires to be employed by
the Company upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants, agreements, and
considerations herein contained, the Company and the Consultant hereto agree as
follows:
1.1. Consulting
Services. The Company hereby retains the Consultant as a
Director of the Company, and as Vice President of Operations (“Employment”), to
provide, and the Consultant hereby agrees to provide, financial, petroleum
engineering, management and general business advisory services to the Board of
Directors (the “Services”) as the Board of Directors may reasonably deem to be
necessary and beneficial to its efficient and effective operation of its
business operations in general. Such Services shall be rendered on a
non-exclusive basis.
1.1. Consulting
Period. (a) The period during which the Consultant shall
render the Services shall commence on July 1, 2008 (the “Effective Date”) and
shall continue for on a month to month basis thereafter for a period of up to
one (1) year (the “Term”), unless terminated prior to such one (1) year
anniversary by either party with written notice (“Notice of Termination”) to the
non-terminating party received at least ten (10) days prior to the end of any
month (the “Termination Time Period”) of the Term of this
Agreement. Any Notice of Termination received within the Termination
Time Period set forth above shall be effective to terminate this Agreement as of
the last day of the month during which such Notice of Termination is received by
the non-terminating party.
2. Scope of Employment.
(a) During the Employment, Consultant
will serve as a Director of the Company. In that connection,
Consultant will (i) devote his time, attention, and energies to the business of
the Company and will diligently and to the best of his ability perform all
duties incident to his employment hereunder; (ii) use his best efforts to
promote the interests and goodwill of the Company; and (iii) perform such other
duties commensurate with his office as the Board of Directors of the Company may
from time-to-time assign to him;
(b) Section 2(a) shall not be construed
as preventing Consultant from (i) serving on corporate, civic or charitable
boards or committees, or (ii) from giving Consultant the ability to consult with
and assist other companies and individuals so as not to be adverse or compete
with the Company (unless the Board of Directors is aware such competition or
potential competition with the Company); and
(c) In
connection with Consultant’s Employment with the Company, Consultant shall
travel for and on behalf of Company to such locations in North America which the
Company believes it is in the best interest for such Consultant to travel to
(the “Travel”), subject to Consultants availability to travel to such
location. Consultant shall be reimbursed by the Company for any
reasonable business expenses and traveling costs associated with any such
Travel. Consultant shall only be required to Travel (i.e., be away
from his office) for a maximum of twenty-one (21) days (“Travel Days”) for each
year that Consultant is employed by the Company pursuant to this Agreement
(“Maximum Travel Days”). Travel Days shall be defined as days in
which Consultant is unable to work at least eight (8) hours in his office from
the hours of 8:00 A.M. to 6:00 P.M. Central Standard Time due to such
Travel. In the event that Consultant shall use up such Maximum Travel
Days prior to the end of any twelve (12) month period covered by this Agreement,
Consultant agrees that he will use his best efforts to continue to be available
for Travel as may be required by the Company (“Additional Travel”); provided
that such Consultant is reimbursed at a reasonable rate (in addition to the
compensation provided to Consultant under Section 3(a) below) for such time and
expense which Consultant is required to spend in connection with such Additional
Travel.
3. Compensation and Benefits During
Agreement. During the Agreement, the Company shall provide compensation to
Consultant as follows.
(a) Company shall pay Sure compensation
of $2,500 per month in consideration for the services performed by
Consultant.
(b) Sure
shall earn 10,000,000 restricted shares of the Company’s common stock concurrent
with Consultant’s entry into this Agreement in consideration for agreeing to
perform the Services and to be bound by the terms and conditions of this
Agreement, (the “Common Stock”). The Common Stock shall be issued to
the Consultant at such time as the Company chooses and not later than when it is
able to obtain shareholder approval and affect an increase in its total number
of authorized but unissued shares of common stock.
(c) The
Company shall reimburse Consultant for business expenses incurred by Consultant
in connection with the Employment in accordance with the Company’s then-current
policies, including any reimbursement for reasonable Travel expenses as provided
in Section 2(c) above).
(d)
Consultant will be eligible to participate in any incentive program or
discretionary bonus program of the Company which may be implemented in the
future by the Board of Directors.
(e) Consultant
will be eligible to participate in any stock option plan of the Company which
may be approved in the future by the Board of Directors.
4. Confidential
Information.
(a) Consultant acknowledges that the
law provides the Company with protection for its trade secrets and confidential
information. Consultant will not disclose, directly or indirectly,
any of the Company’s confidential business information or confidential technical
information to anyone without authorization from the Company’s
management. Consultant will not use any of the Company’s confidential
business information or confidential technical information in any way, either
during or after the Employment with the Company, except as required in the
course of the Employment.
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(b)
Consultant will strictly adhere to any obligations that may be owed to former
employers insofar as Consultant’s use or disclosure of their confidential
information is concerned.
(c) Information will not be
deemed part of the confidential information restricted by this Section 4 if
Consultant can show that: (i) the information was in
Consultant’s possession or within Consultant’s knowledge before the Company
disclosed it to Consultant; (ii) the information was or became generally known
to those who could take economic advantage of it; (iii) Consultant
obtained the information from a party having the right to disclose it to
Consultant without violation of any obligation to the Company, or (iv)
Consultant is required to disclose the information pursuant to legal process
(e.g., a subpoena), provided that Consultant notifies the Company immediately
upon receiving or becoming aware of the legal process in question. No
combination of information will be deemed to be within any of the four
exceptions in the previous sentence, however, whether or not the component parts
of the combination are within one or more exceptions, unless the combination
itself and its economic value and principles of operation are themselves within
such an exception or exceptions.
(d) All originals and all copies of any
drawings, blueprints, manuals, reports, computer programs or data, notebooks,
notes, photographs, and all other recorded, written, or printed matter relating
to research, manufacturing operations, or business of the Company made or
received by Consultant during the Employment are the property of the
Company. Upon Termination of the Employment, whether or not for
Cause, Consultant will immediately deliver to the Company all property of the
Company which may still be in Consultant’s possession. Consultant
will not remove or assist in removing such property from the Company’s premises
under any circumstances, either during the Employment or after Termination
thereof, except as authorized by the Company’s management.
(e) For a period of One (1) year after
the date of Termination of the Employment, Consultant will not, either directly
or indirectly, hire or employ or offer or participate in offering employment to
any person who at the time of such Termination or at any time during such one
year period following the time of such Termination was an employee of the
Company without the prior written consent of the Company.
5. Ownership of Intellectual
Property.
(a) The Company will be the sole owner
of any and all of Consultant’s Inventions that are related to the Company’s
business, as defined in more detail below.
(b) For purposes of this Agreement,
“Inventions” means all inventions, discoveries, and improvements (including,
without limitation, any information relating to any techniques, processes,
formulas, developments or experimental work, work in progress, or business trade
secrets), along with any and all other work product relating
thereto.
(c) An Invention is “related to the
Company’s business” (“Company-Related Invention”) if it is made, conceived, or
reduced to practice by Consultant (in whole or in part, either alone or jointly
with others, whether or not during regular working hours), whether or not
potentially patentable or copyrightable in the U.S. or elsewhere, and it either:
(i) involves equipment, supplies, facilities, or trade secret information of the
Company; (ii) involves the time for which Consultant was or is to be compensated
by the Company; (iii) relates to the business of the Company or to its actual or
demonstrably anticipated research and development; or (iv) results, in whole or
in part, from work performed by Consultant for the Company.
(d) Consultant will promptly disclose
to the Company, or its nominee(s), without additional
compensation, all Company-Related Inventions.
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(e)
Consultant will assist the Company, at the Company’s expense, in protecting any
intellectual property rights that may be available anywhere in the world for
such Company-Related Inventions, including signing U.S. or foreign patent
applications, oaths or declarations relating to such patent applications, and
similar documents.
(f) To the extent that any
Company-Related Invention is eligible under applicable law to be deemed a “work
made for hire,” or otherwise to be owned automatically by the Company, it will
be deemed as such, without additional compensation to
Consultant. In some jurisdictions, Consultant may have a right,
title, or interest (“Right,” including without limitation all right, title, and
interest arising under patent law, copyright law, trade-secret law, or
otherwise, anywhere in the world, including the right to xxx for present or past
infringement) in certain Company-Related Inventions that cannot be automatically
owned by the Company. In that case, if applicable law permits
Consultant to assign Consultant’s Right(s) in future Company-Related Inventions
at this time, then Consultant hereby assigns any and all such Right(s) to the
Company, without additional compensation to Consultant; if not, then Consultant
agrees to assign any and all such Right(s) in any such future Company-Related
Inventions to the Company or its nominee(s) upon request, without additional
compensation to Consultant.
6. Non-competition. As a
condition to, and in consideration of, the Company’s entering into this
Agreement, and giving Consultant access to certain confidential and proprietary
information, which Consultant recognizes is valuable to the Company and,
therefore, its protection and maintenance constitutes a legitimate interest to
be protected by the provisions of this Section 6 as applied to Consultant and
other employees similarly situated to Consultant, and for ten dollars ($10) and
other good and valuable consideration, the receipt and sufficiency of which
Consultant hereby acknowledges, Consultant acknowledges and hereby agrees as
follows:
(a) that Consultant is and will be
engaged in the business of the Company;
(b) that Consultant has occupied a
position of trust and confidence with the Company prior to the Effective Date,
and that during such period and the period of Consultant’s Employment under this
Agreement, Consultant has, and will, become familiar with the Company’s trade
secrets and with other proprietary and confidential information concerning the
Company;
(c) that the obligations of this
Agreement are directly related to the Employment and are necessary to protect
the Company’s legitimate business interests; and that the Company’s need for the
covenants set forth in this Agreement is based on the following: (i)
the substantial time, money and effort expended and to be expended by the
Company in developing technical designs, , oil and gas surveys and production
estimations, marketing plans and similar confidential information; (ii) the fact
that Consultant will be personally entrusted with the Company’s confidential and
proprietary information; (iii) the fact that, after having access to the
Company’s technology and other confidential information, Consultant could become
a competitor of the Company; and (iv) the highly competitive nature of the
Company’s industry, including the premium that competitors of the Company place
on acquiring proprietary and competitive information; and
(d) The Consultant hereby agrees that
it and its employees shall preserve the confidentiality of and shall not
disclose to any person, firm, corporation, association, or entity any
information relating to the business of the Company acquired by the Consultant
and its employees during the term of this Agreement to the extent that such
information is secret and unpublished and is not commonly known in the industry
in which the Company is engaged other than as required to disclose
by law or legal process as described in greater detail under Section 4,
above.
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7. Legal
Fees and Expenses. In the event of a lawsuit, arbitration, or other
dispute-resolution proceeding between the Company and Consultant arising out of
or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys’ fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the
benefit of and be binding upon (i) the Company and its successors and assigns;
(ii) Consultant and Consultant’s heirs and legal representatives, except that
Consultant’s duties and responsibilities under this Agreement are of a personal
nature and will not be assignable or delegable in whole or in part; and (iii)
Consultant Parties as provided in Section 10.
(b) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
Acquisition or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
"the Company" shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph
(b) of this Section 9 or to the extent prohibited by applicable law, any
dispute, controversy or claim arising out of or relating to this Agreement will
be submitted to binding arbitration before a single arbitrator in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association in effect on the date of the demand for
arbitration. The arbitration shall take place before a single
arbitrator, who will preferably but not necessarily be a
lawyer. Unless otherwise agreed by the parties, the arbitration shall
take place in the city in which the Company’s principal office space is located
at the time of the dispute or was located at the time of Termination of the
Employment (if applicable). The arbitrator is hereby directed to take
all reasonable measures not inconsistent with the interests of justice to
expedite, and minimize the cost of, the arbitration proceedings.
(b) To protect inventions, trade
secrets, or other confidential information of Section 4, and/or to enforce the
non-competition provisions of Section 6, the Company may seek temporary,
preliminary, and/or permanent injunctive relief in a court of competent
jurisdiction, in each case, without waiving its right to
arbitration.
(c) At the request of either party, the
arbitrator may take any interim measures s/he deems necessary with respect to
the subject matter of the dispute, including measures for the preservation of
confidentiality set forth in this Agreement.
(d) Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
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10. Indemnification.
(a) The Company agrees to
indemnify and hold harmless Consultant, his nominees and/or assigns (a reference
in this Section 10 to Consultant also includes a reference to Consultant’s
nominees and/or assigns) against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (incurred in any and all actions, suits, proceedings and
investigations in respect thereof and any and all legal and other costs,
expenses and disbursements in giving testimony or furnishing documents in
response to a subpoena or otherwise), including without limitation, the costs,
expenses and disbursements, as and when incurred, of investigating, preparing or
defending any such action, suit, proceeding or investigation that is in any way
related to the Consultant’s employment with the Company (whether or not in
connection with any action in which the Consultant is a party). Such
indemnification does not apply to acts performed by Consultant, which are
criminal in nature or a violation of law. The Company also agrees that
Consultant shall not have any liability (whether direct or indirect, in contract
or tort, or otherwise) to the Company, for, or in connection with, the
engagement of the Consultant under the Agreement, except to the extent that any
such liability resulted primarily and directly from Consultant’s gross
negligence and willful misconduct.
(b) These indemnification
provisions shall be in addition to any liability which the Company may otherwise
have to Consultant or the persons indemnified below in this sentence and shall
extend to the following: the Consultant, his affiliated entities, partners,
employees, legal counsel, agents, and controlling persons (within the meaning of
the federal securities laws), and the officers, directors, employees, legal
counsel, agents, and controlling persons of any of them (collectively,
the “Consultant Parties”).
(c) If any action, suit,
proceeding or investigation is commenced, as to which any of the Consultant
parties propose indemnification under the Agreement, they shall notify the
Company with reasonable promptness; provided however, that any failure to so
notify the Company shall not relieve the Company from its obligations hereunder.
The Consultant Parties shall have the right to retain counsel of their own
choice (which shall be reasonably acceptable by the Company) to represent them,
and the Company shall pay fees, expenses and disbursements of such counsel; and
such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by the
Company. The Company shall be liable for any settlement of any claim against the
Consultant Parties made with the Company’s written consent, which consent shall
not be unreasonably withheld. The Company shall not, without the prior written
consent of the party seeking indemnification, which shall not be reasonably
withheld, settle or compromise any claim, or permit a default or consent to the
entry of any judgment in respect thereof, unless such settlement, compromise or
consent includes, as an unconditional term thereof, the giving by the claimant
to the party seeking indemnification of an unconditional release from all
liability in respect of such claim.
(d) The indemnification
provided by this Section 10 shall not be deemed exclusive of, or to preclude,
any other rights to which those seeking indemnification may at any time be
entitled under the Company's Articles of Incorporation, Bylaws, any law,
agreement or vote of shareholders or disinterested Directors, or otherwise, or
under any policy or policies of insurance purchased and maintained by the
Company on behalf of Consultant, both as to action in his Employment and as to
action in any other capacity.
(e) Neither Termination nor completion
of the Employment shall effect these indemnification provisions which shall then
remain operative and in full force and effect.
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11. Termination
This Agreement and the consulting
relationship created hereby will terminate (i) upon the disability or death of
Consultant under Section 11 (a) or 11(b); (ii) with cause under Section 11 (c);
(iii) for good reason under Section 11 (d); (iv) or without cause under Section
11(e).
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(a)
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Disability. Company
shall have the right to terminate the employment of Consultant under this
Agreement for disability in the event Consultant suffers an injury,
illness, or incapacity of such character as to substantially disable him
from performing his duties without reasonable accommodation by Consultant
hereunder for a period of more than sixty (60) consecutive days upon
Company giving at least thirty (30) days written notice of
termination.
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(b)
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Death. This agreement
will terminate on the Death of the
Consultant.
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(c)
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With
Cause. Company may terminate this Agreement at any time
because of, (i) the conviction of Consultant of an act or acts
constituting a felony involving moral turpitude, dishonesty or theft or
fraud; or (ii) Consultant’s negligence in the performance of his duties
hereunder.
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(d)
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Good
Reason. The Consultant may terminate his employment for
“Good Reason” by giving Company ten (10) days written notice
if:
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(i)
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he
is assigned, without his express written consent, any duties materially
inconsistent with his positions, duties, responsibilities, or status with
Company as of the date hereof, or a change in his reporting
responsibilities or titles as in effect as of the date
hereof;
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(ii) his
compensation is reduced; or
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(iii)
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Company
does not pay any material amount of compensation due hereunder and then
fails either to pay such amount within the ten (10) day notice period
required for termination hereunder or to contest in good faith such
notice.
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(e)
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Without Cause. Either
party may terminate this Agreement without cause as provided in Section
1.1, above.
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12. Obligations
of Company Upon Termination. In the event of the termination of
Consultant’s employment pursuant to Section 11 (a), (b), (c), (d) or (e),
Consultant will be entitled only to the compensation earned by him hereunder as
of the date of such termination (plus life insurance or disability
benefits).
12. Representations of
Consultant and Sure.
(a) Consultant and Sure recognize that
the Common Stock has not been registered under the Securities Act of 1933, as
amended (“Act”), nor under the securities laws of any state and, therefore,
cannot be resold unless the resale of the Common Stock is registered under the
Act or unless an
exemption from registration is available. The Consultant and Sure may
not sell the Common Stock without registering them under the Act and any
applicable state securities laws unless exemptions from such registration
requirements are available with respect to any such sale;
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(b) The
Consultant and Sure are acquiring the Common Stock for his, her or its own
account for long-term investment and not with a view toward resale,
fractionalization or division, or distribution thereof, and it does not
presently have any reason to anticipate any change in its circumstances,
financial or otherwise, or particular occasion or event which would necessitate
or require the sale or distribution of the Common Stock. The
Consultant and Sure confirm and represent that they are able (i) to bear the
economic risk of its investment, (ii) to hold the Common Stock for an indefinite
period of time, and (iii) to afford a complete loss of its
investment. The Consultant and Sure also represent that they have (i)
adequate means of providing for their current needs and possible personal
contingencies, and (ii) have no need for liquidity in this particular
investment; and
(c) The Consultant and Sure acknowledge
that they are “Accredited Investors” as defined in Rule 501 of Regulation D of
the Act as adopted by the Securities and Exchange Commission; that the
Consultant and Sure are not “U.S. Persons” and the issuance of the Common Stock
and the transactions evidenced by this Agreement is exemption from registration
pursuant to Regulation S of the Act; and/or that the Consultant and Sure are
aware of the business operations and financial condition of the Company
including the risks associated therewith and have access to and have reviewed
similar information regarding the Company as would be included in a registration
statement, and as such; the issuance of the Common Stock is exempt from
registration under the Act.
(d) The Consultant and Sure acknowledge
that they have reviewed and are familiar with the Company’s XXXXX filings on the
Securities and Exchange Commission’s website at xxx.xxx.xxx,
including the audited financial statements contained in its Annual Report on
Form 10-K, interim unaudited financial statements contained in its Quarterly
Reports on Form 10-Q, and the results of operations, description of business and
risk factors contained therein.
14. Other
Provisions.
(a) All notices and statements with
respect to this Agreement must be in writing. Notices to the Company
shall be delivered to the Chairman of the Board or the Chief Executive Officer
or President of the Company. Notices to Consultant may be delivered
to Consultant in person, by email or fax, or sent to Consultant’s then-current
mailing address as indicated in the Company’s records.
(b) This Agreement sets forth the
entire agreement of the parties concerning the subjects covered herein; there
are no promises, understandings, representations, or warranties of any kind
concerning those subjects except as expressly set forth in this
Agreement.
(c) Any modification of this Agreement
must be in writing and signed by all parties; any attempt to modify this
Agreement, orally or in writing, not executed by all parties will be
void.
(d) If any provision of this Agreement,
or its application to anyone or under any circumstances, is adjudicated to be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability will not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable
provision or application and will not invalidate or render unenforceable such
provision or application in any other jurisdiction.
(e) This Agreement will be governed and
interpreted under the laws of the United States of
America and the laws of the State of Texas as applied to contracts made and
carried out in Texas by residents of Texas.
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(f) No
failure on the part of any party to enforce any provisions of this Agreement
will act as a waiver of the right to enforce that provision.
(g)
Section headings are for convenience only and shall not define or limit the
provisions of this Agreement.
(h) This Agreement may be executed in
several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts. A copy of this
Agreement signed by one party and faxed to another party shall be deemed to have
been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an
original for all purposes.
[Remainder
of page left intentionally blank. Signature page follows.]
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14. Summary
of Terms of Employment
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Effective
Date
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July
1, 2008
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Term
& Commitment
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Month-to-month,
full-time for up to one (1) year
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Office
/ Position
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Director,
Vice President of Operations
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Salary
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$2,500
per month and shares of restricted Common Stock as provided in Section 3
above
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This
Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Consultant acknowledges that
he (i) has read and understood the entire Agreement; (ii) has
received a copy of it (iii) has had the opportunity to ask questions and consult
counsel or other advisors about its terms; and (iv) agrees to be bound by
it.
Executed
to be effective as of the Effective Date.
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TEXHOMA ENERGY,
INC.,
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CONSULTANT:
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| /s/ Xxx Xxxxx | /s/ Xxxxxxx Xxxx Xxxx |
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XXX
XXXXX
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XXXXXXX
XXXX XXXX
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Chief
Executive Officer
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Consented
and Agreed to by:
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SURE ENGINEERING,
LLC
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By:
/s/ Ibrahim Xxxx Xxxx
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Its:
Manager
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Printed
Name: I. Xxxx Xxxx
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