EXHIBIT 10.42
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 31st day of December, 1997, by and between Waste Recovery, Inc., a
Texas corporation (the "Company"), and Xxxxxx X. Xxxxxxxx ("Consultant").
This Agreement hereby supersedes any other consulting or employment
agreements or understandings, written or oral, between the Company and
Consultant.
W I T N E S S E T H :
WHEREAS, Consultant has been an employee of the Company since its founding
in 1982, and has served as President of the Company and, most recently, as Vice
Chairman of the Board of Directors of the Company; and
WHEREAS, Consultant's employment agreement with the Company is to expire at
December 31, 1997, and at such time Consultant shall resign as an employee of
the Company; and
WHEREAS, it is the desire of the Company to engage Consultant as a
consultant in order to enjoy the benefits of Consultant's business experience
and background and business contacts;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
representations, warranties, covenants and agreements contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and upon the terms and subject to the conditions
hereinafter set forth, the parties do hereby agree as follows:
DUTIES AND TERM OF CONSULTANCY. The Company hereby engages
Consultant, and Consultant hereby accepts such engagement, as a consultant to
consult with and assist the Company with respect to the scrap tire disposal and
conversion business (the "Business") to be conducted by the Company following
the Closing and with respect to business advice, business development and
investment opportunities relating to the Business or to the Company generally.
The term of this Agreement shall be for one (1) year commencing January 1, 1998
and thereafter for consecutive renewal terms each of one (1) year (the "Term")
unless and until either party to this Agreement provides not less than three (3)
months' written notice to the other of its or his election not to renew this
Agreement at the end of the initial term or any renewal term.
FEES AND BENEFITS.
As a fee for the performance of Consultant's duties under this
Agreement, the Company shall pay Consultant $10,000 per month during the
term hereof, payable monthly or in such other increments in accordance with
the Company's payroll practices as existing from time to time during the
Term.
Consultant shall be eligible for bonus opportunities with respect
to (i) the development of business for the Company by or with the
assistance of Consultant during the Term and (ii) acquisitions made by the
Company with respect to which Consultant has provided significant
assistance and guidance during the Term, as follows:
DEVELOPMENT OF BUSINESS. In the event that Company obtains
a regional or national account (E.G., Wal-Mart, Sears or the
like) providing for the payment of fees to the Company for
the receiving, hauling, handling and/or disposal of scrap
tires ("tipping fees") during the Term, the Company shall
pay Consultant an aggregate commission of $.01 per scrap
tire (determined with respect to each individual unit of the
account and for the first eighteen (18) months of providing
the applicable individual unit with scrap tire disposal
services), payable in the following increments:
(A) Fifty percent (50%) (or $.005 per tire) shall be paid
at the time of commencement of the services with
respect to an account for each scrap tire estimated to
be picked up under the agreement on an annual basis, as
determined and agreed upon in good faith by the Company
and Consultant. Such amount shall be paid in three (3)
equal monthly increments over the first three (3)
months following the commencement of services by the
Company with respect to the account.
(B) Fifty percent (50%) (or $.005 per tire) shall be paid
with respect to each scrap tire with respect to which
the Company actually collects tipping fees in
connection with its services on behalf of the account.
Such amount shall be determined on a monthly basis and
paid on or before the 15th day of the following month
for the term of the Company's agreement with the
account or for eighteen (18) months, whichever is
shorter.
ACQUISITIONS. In the event that Consultant identifies,
negotiates on behalf of and/or otherwise assists the Company
with respect to an acquisition by the Company of the stock,
assets or contract rights of an unaffiliated third party,
the Company shall pay Consultant an advisory fee of $10,000
at the closing of such acquisition.
The obligations of the Company to pay any amounts accrued under this Section
2(b) shall survive the expiration or termination of this Agreement.
The Company shall pay all premiums for coverage of Consultant and
his dependent family members under health, hospitalization, disability,
dental, life and other
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insurance plans of the Company to ensure coverage of such individuals to
the same extent provided by the Company prior to Consultant's
termination of employment with the Company.
The Company shall take such actions as shall be necessary to
cause the stock options previously granted to Consultant by the Company to
remain exercisable during the Term to the extent that such options were
exercisable at the date of this Agreement.
Upon execution of this Agreement, the Company shall cause title
to the 1992 Mercury Grand Marquis automobile (vehicle identification number
0XXXX00XXXX000000) to be transferred to Consultant.
During the Term, Consultant shall have the use of an office at
the Company's executive offices in Dallas, Texas with the use of a
telephone, copier and telecopier to perform Consultant's services
hereunder. In the event that the Company relocates its executive offices
during the Term, the Company shall provide Consultant with, or assist
Consultant financially in order to secure, modest office arrangements with
the office equipment described above.
The Company shall reimburse Consultant for all business travel
and other out-of-pocket expenses reasonably incurred by Consultant in the
performance of his services pursuant to this Agreement. All such
reimbursable expenses shall be appropriately documented in reasonable
detail by Consultant in a manner and format consistent with the Company's
expense reporting policies from time to time in effect.
TERMINATION; RIGHTS ON TERMINATION. This Agreement and Consultant's
engagement may be terminated in any one of the following ways:
DEATH. The death of Consultant shall immediately terminate the
Agreement with termination or severance fees due to Consultant's estate for
whatever time period is remaining under the Term or for six (6) months,
whichever amount is lesser.
GOOD CAUSE. The Company may terminate the Agreement after
written notice to Consultant for good cause, which shall be: (i)
Consultant's breach of this Agreement and the failure to cure after ten
(10) days' written notice is delivered to Consultant by the Company; (ii)
Consultant's negligence in the performance or nonperformance of any of
Consultant's duties and responsibilities hereunder and the failure to cure
after ten (10) days' written notice is delivered to Consultant by the
Company; (iii) Consultant's dishonesty, fraud or misconduct with respect to
the business or affairs of the Company that adversely affects the
operations or reputation of the Company; (iv) Consultant's conviction of a
felony crime; or (v) chronic alcohol abuse or illegal drug abuse by
Consultant. Consultant may terminate the Agreement after written notice to
the Company for good cause, which shall be the Company's breach of this
Agreement and the failure to cure after ten (10) days' written notice is
delivered to the Company by Consultant. In the event of a termination of
this Agreement by the Company for good cause, as enumerated above,
Consultant shall have no right to any termination or severance fees. In
the event of a termination of this Agreement by Consultant for good cause,
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as enumerated above, Consultant shall be entitled to receive from the
Company, in a lump sum payment due on the effective date of termination,
the fees payable to Consultant as then in effect for whatever time period
is remaining under the Term of this Agreement.
RELATION OF PARTIES.
INDEPENDENT CONTRACTOR. It is expressly understood and agreed
that Consultant will remain at all times an independent contractor, and
that nothing contained herein shall be construed to be inconsistent with
such status. Consultant shall not take any actions or make any
representations to any person that would suggest that any relationship
exists between the Company and Consultant other than as independent
contractor. Consultant shall have no right or authority to assume or
create any obligations on behalf of the Company, express or implied, nor
shall Consultant represent to any person that he has such authority or that
he serves the Company in any capacity other than as an outside consultant.
The Company shall not retain, nor attempt to exercise, the right to control
or direct Consultant in his manner of operation or any other means, method
or course of operation, except as set forth in this Agreement.
TAXES. Consultant shall pay all federal, state and local income,
social security, unemployment and excise taxes required to be paid by
independent contractors.
NOTICES. Any notice, request, instruction, document or other
communication to be given hereunder by either party hereto to the other party
hereto shall be in writing and validly given if (i) delivered personally, (ii)
sent by telecopy with electronic confirmation of receipt, (iii) delivered by
overnight express, or (iv) sent by registered or certified mail, postage
prepaid, as follows:
If to the Company:
Waste Recovery, Inc.
000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xxxxxxxxxx
Telecopy No. (000) 000-0000
If to Consultant:
Xx. Xxxxxx X. Xxxxxxxx
0000 Xxxxxx
Xxxxxx, Xxxxx 00000
or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally, or sent by telecopy or overnight express in
the manner provided herein shall be deemed to have been duly given to the party
to whom it is directed upon actual receipt by such party. Any notice that is
addressed and mailed in the manner herein provided shall be conclusively
presumed to have been
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given to the party to whom it is addressed at the close of business,
local time of the recipient, on the fourth day after the day it is so
placed in the mail.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto with respect to the matters covered hereby, and supersedes
all prior agreements and understandings, both written and oral, between the
parties hereto with respect to the subject matter hereof, and no party shall be
liable or bound to the other in any manner by any representations or warranties
not set forth herein.
SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any
rights, interests or obligations hereunder may be assigned by either party
hereto without the prior written consent of the other party hereto, and any
purported assignment in violation of this Section 7 shall be null and void.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
HEADINGS. The headings of the sections of this Agreement are inserted
for convenience of reference only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party that is entitled to
the benefits thereof, and this Agreement may be modified or amended by a written
instrument executed by the Company and Consultant. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
both parties. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, ENFORCED AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO ITS
CHOICE OF LAW PRINCIPLES).
INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to
be executed as of the date first above written.
THE COMPANY:
WASTE RECOVERY, INC.
By: _______________________________
Printed Name: _____________________
Title: ____________________________
CONSULTANT:
____________________________________
Xxxxxx X. Xxxxxxxx
