CONSULTING AGREEMENT FOR XXXXXX X. XXXXXXX
THIS CONSULTING AGREEMENT (this "Agreement"), made as of this 1st day of
January, 2011, between Iron Eagle Group, Inc., a corporation organized
under the laws of the State of Delaware (the "Company"), and Xxxxxx X.
XxXxxxx (the "Consultant").
BACKGROUND
WHEREAS, the Company is engaged in the business of acquisition of and
management of construction and construction-related companies (the
"Business").
WHEREAS, the Company desires to hire Consultant and Consultant desires
to work for the Company upon the terms and conditions hereinafter set
forth.
WHEREAS, this Agreement contains the entire understanding of consulting
arrangement with the Company and supersedes all discussions, proposals
or prior agreements, written or oral, and all other communications
relating to the subject matter hereinafter set forth.
WHEREAS, the provisions set out in this Agreement are to be interpreted
fairly between Consultant and Company and not in favor or against
either party.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the
parties, subject to the terms and conditions set forth herein, agree as
follows:
1. Definitions.
a. Cause. For purposes of this Agreement "Cause" with respect to the
termination by the Company of the Consultant's consulting shall mean
(i) failure by the Consultant to perform his duties for the Company
under this Agreement or to perform the directives of the Board of
Directors of the Company (the "Board") which, if capable of being
cured, remains uncured for more than 20 days after written notice from
the Board specifying such failure; (ii) misconduct by the Consultant
which causes material injury to the Company; (iii) a material breach or
violation by the Consultant of (a) any provision of this Agreement or
(b) any employment policy of the Company which, in each case, if
capable of being cured remains uncured for more than 20 days after
written notice specifying such violation or breach is given to
Consultant; or (iv) conviction of, or a plea of guilty or nolo
contendre to, a felony or other crime involving moral turpitude,
embezzlement, fraud or dishonesty (other than a traffic violation),
habitual alcohol abuse, drug abuse, or excessive absenteeism other than
for illness, after a warning (with respect to drunkenness or
absenteeism only) in writing from the Board to refrain from such
behavior.
b. Good Reason. When used with reference to a voluntary termination by
Consultant of his consulting with the Company, "Good Reason" shall mean
any of the following, if taken without Consultant's express written
consent (1) a reduction by the Company in the Consultant's annual fee
(including deferred fee) to an amount less than the Consultant's Base
Compensation (as defined in Section 4) or (2) the Executive is demoted
by means of a substantial reduction in authority, responsibilities or
duties usually consistent with the position described in Section 1
hereof.
c. Term. For purposes of this Agreement, the "Term" of this Agreement
shall start on January 1, 2011 ("Start Date") and shall be for four (4)
years from the Start Date hereof, unless sooner terminated in
accordance with the provisions hereof.
d. Renewal. This Agreement shall automatically renew on an annual
basis after the initial term as agreed upon by both parties in writing
sixty (60) days prior to end of the Term.
e. Post-Term Advisory Role. While not binding, there is an expectation
by both the Company and Consultant that Consultant will provide
advisory services after the expiration of the Term and any renewals
with the compensation to be mutually agreed upon.
2. Independent Contractor. Nothing herein shall be construed to create
an employer-Consultant relationship between the Company and Consultant.
Consultant is an independent contractor and not a Consultant of the
Company or any of its subsidiaries or affiliates. The consideration
set forth in Section 4 shall be the sole consideration due Consultant
for the services rendered hereunder. It is understood that the Company
will not withhold any amounts for payment of taxes from the
compensation of Consultant hereunder.
3. Position.
a. Duties. During the Term the Consultant shall be hired as a
consultant with the following duties: creating executive strategy,
targeting, conducting due diligence, and executing the acquisition of
companies that fit the Iron Eagle's business model and then becoming
responsible for the management of those companies, capital raising, and
communication with investors ("Duties"). Consultant will report to the
Chief Executive Officer ("CEO") and to the Board of Directors of the
Company ("Board"). In addition, Consultant will also be responsible for
such other duties that may be assigned to Consultant from time to time
by the Board. The Consultant shall devote his full time, energy and
attention to the business of the Company, and shall not, during the
Term, be engaged in any other activity that may interfere in any
respect with the performance of the Consultant's Duties. As part of
Consultant stated duties, Consultant agrees to meet quarterly (every
three months) with the Board, either in person or by teleconference to
review the Company's progress, direction, strategy and performance.
b. Company Policies. Consultant agrees to comply with all Company
policies and procedures in effect as of the Start Date as well as any
modifications or additions to those policies and procedures. This will
include by way of example and those contained in a Consultant handbook
or policy manual that is presently under development. Parties
understand however, that if there is a conflict between any policy or
procedure and any provision contained in this Agreement, the provisions
contained in this Agreement shall prevail.
4. Compensation. Notwithstanding anything else in the Agreement,
Consultant and Company agree that Consultant's compensation, severance,
signing bonus, auto allowance, and / or other benefits will accrue
until the registrant raises the necessary capital to fund its first
acquisition or acquisitions and the raise is at least ten million
dollars ($10,000,000). Such acquisition shall be deemed a closing
("Closing"). The date of the Closing is the "Closing Date".
a. Signing Bonus. The Company will pay Consultant a signing bonus
("Signing Bonus") consisting of:
i. Cash Signing Bonus. One Hundred Thirty Thousand ($130,000.00)
Dollars in cash/
ii. Equity Signing Bonus. One Hundred Thirty Thousand (130,000) shares
of the Company that will vest on January 1, 2012.
b. Base Fee. The Company will pay Consultant an annual gross base fee
("Base Fee") as defined below.
i. Cash Base Fee. The Company will pay Consultant an annual gross base
fee in cash of Two Hundred Fifty Thousand ($250,000.00) Dollars ("Cash
Base Fee") payable at least semi-monthly.
ii. Equity Base Fee. The Company will pay Consultant an annual equity
gross base fee ("Equity Base Fee") that shall vest annually as follows:
(a) January 1, 2012 - One Hundred Thousand (100,000)
shares
(b) January 1, 2013 - One Hundred Five Thousand (105,000)
shares
(c) January 1, 2014 - One Hundred Ten Thousand Two
Hundred Fifty (110,250) shares
(d) January 1, 2015 - One Hundred Fifteen Thousand Seven
Hundred Sixty-Three (115,763) shares
c. Bonuses. At the sole discretion of the Board, Consultant will be
eligible to receive a cash and equity bonus of up to 100% of Base Fee
each year. The relative percentage of cash and equity in the bonus
will be similar to the cash and equity mix in the Base Fee. The Bonuses
will be based upon actual performance of the Consultant and the Company
as determined by the Board. The equity portion of the bonus will be
paid in shares of the Company and will be fully vested on the date the
bonus is granted.
d. Incentive Compensation Plan in Iron Eagle. The Board shall create a
compensation committee ("Compensation Committee") to create an option
package for Consultant. The Compensation Committee will make annual
stock option grant awards ("Options") in a manner consistent with the
policies and procedures of Iron Eagle which will be based upon
Consultant's service to the Company and overall performance criteria.
The time, amount and grant of Options shall be in the sole discretion
of the board based upon Consultant's performance on an annual basis.
e. Annual Increase. The Board agrees to increase Consultant's fee at
least annually as of each anniversary of the Start Date at a minimum of
Five Percent (5%) per annum for the Cash Base Fee, Equity Base Fee, and
Bonuses with additional upside based on performance which shall be at
the sole discretion of the Board.
5. Expenses and Fringe Benefits
..
a. Expenses. During the Term, the Company shall reimburse the
Consultant for all ordinary and necessary business expenses reasonably
incurred by him with respect to the business of the Company and
submitted to the Company (with appropriate supporting documentation)
for reimbursement in accordance with the policies established from time
to time by the Board.
b. Auto Allowance. The Consultant shall be entitled to a monthly auto
allowance of $1,000.00, which includes all auto expenses, including,
but not limited to, mileage, lease, ownership, and/or insurance.
c. Other Benefits. During the Term, the Consultant also shall be
entitled to participate in or receive health and other benefits under
insurance and other Consultant benefit plans of the Company which are
generally available to its consultants.
d. Vacation. The Consultant shall be entitled to four (4) weeks paid
vacation, as well as a reasonable number of personal and sick days,
used as necessary.
6. Termination for Cause. The Company shall have the right to terminate
the Consultant for Cause, upon written notice to him of the termination
which notice shall specify the reasons for the termination and the date
of termination. In the event of termination for Cause, the Consultant
shall not be entitled to any further benefits under this Agreement. For
purposes of this Agreement, the "date of termination" with respect to
termination for Cause, shall mean the date set forth in the notice of
termination.
7. Disability. During the Term, if the Consultant becomes permanently
disabled, or is unable to perform his duties hereunder for 3
consecutive months, in each case as determined by the Board in its
reasonable discretion, the Company may terminate the consulting of the
Consultant. In such event, the Consultant shall not be entitled to any
further benefits under this Agreement other than payments under any
disability insurance policy which the Company may have obtained
generally for the benefit of its consultants.
8. Death Benefits. The Consultant's consulting arrangement hereunder
shall terminate upon his death. Upon the Consultant's death, the
beneficiaries designated by the Consultant shall be entitled to the
death benefits of any life insurance policy for the Consultant (not
including any "key man" life insurance policy, the benefits of which
are payable to the Company) paid for by the Company, but his estate
shall not be entitled to any further benefits under this Agreement,
with the exception of anything previously earned or accrued at the time
of Consultant's death.
9. Termination Without Cause or Resignation for Good Reason. The
Company may terminate the Consultant without Cause during the Term by
20 days prior written notice to the Consultant, and the Consultant may
resign for Good Reason during the Term upon twenty (20) days prior
written notice (the "Resignation Notice") to the Company specifying the
Good Reason, provided, however, the Resignation Notice must be preceded
by a written warning ("Warning Notice") from the Consultant to the
Company sent 25 days prior to the Resignation Notice, stating that Good
Reason exists and specifying the Good Reason. After the date of the
Consultant's Warning Notice, the Company may cure the Good Reason
within 20 days and, if it elects to do so, shall so notify the
Consultant promptly. If the Company terminates the Consultant's
consulting arrangement during the Term without Cause or if the
Consultant Resigns for Good reason, the Company shall pay the
Consultant a lump sum ("Lump Sum Payment") equal to one years' Base
Fee.
The Lump Sum Payment is in lieu of, and not in addition to, any
severance or non-competition payment due or to become due to the
Consultant under any separate agreement or contract between the
Consultant and the Company or pursuant to any severance payment plan,
program or policy of the Company.
As a condition to the receipt of the Lump Sum Payment, the Consultant
and the Company must first each execute and deliver to the other party
a bilateral mutual agreeable release releasing the Consultant, the
Company and its affiliates, and the officers, managers, employees,
consultants and agents of the Company and its affiliates, from any and
all claims and from any and all causes of action of any kind or
character that the Consultant or Company may have arising out of the
Consultant's consulting arrangement with the Company or the termination
of such consulting arrangement.
10. Resignation Without Good Reason. In the event that the Consultant
resigns from the Company at any time during the Term without Good
Reason, the Consultant shall not be entitled to any additional
compensation for the time after which he ceases to work for the
Company, and shall not be entitled to any of the other benefits
provided hereunder nor any severance payment due or to become due to
the Consultant under any separate agreement or contract between the
Consultant and the Company or pursuant to any severance payment plan,
program or policy of the Company.
11. Non-Disclosure/Non-Compete.
a. Non-Disclosure of Confidential Information. Except in the course of
Consultant's consulting arrangement with the Company and in the pursuit
of the business of the Company or any of its subsidiaries or
affiliates, the Consultant shall not, at any time during or following
the Term, directly or indirectly use for his own benefit or purpose, or
disclose to a third party or use for the benefit or purpose of any
person or entity other than the Company, any confidential information
or proprietary data of the Company or any of its subsidiaries or
affiliates. The Consultant acknowledges that confidential information
includes, among other things, information regarding sales, costs,
customers, employees, consultants, products, services, apparatus,
equipment, processes, formulas, marketing, or the organization,
business or finances of the Company. The Company and the Consultant
agree that as between them, all of the confidential information
constitutes important and material trade secrets of the Company and
affects the successful conduct of the Company's business and its
goodwill, and that any breach of any term of this section is a material
breach of this Agreement
..
b. Ownership of Competitive Businesses. While acting as a Consultant
for the Company, notwithstanding the foregoing, with the exception of
Iron Eagle, Consultant may own, directly or in directly, solely as an
investment, up to five percent (5%) of any class of Publicly Traded
Securities of any person or entity which owns a competitive business.
For the purposes of this Agreement, the term "Publicly Traded
Securities" shall mean securities that are traded on a national
securities exchange or listed on the National Association of Securities
Dealers Automated Quotation System.
c. Non-disparagement. The Parties acknowledge the importance of
maintaining the privacy of Company and all individuals who have, will
have or have had any relationship with such organizations as a current
or former Consultant, independent contractor, officer or director or
manager of such entities (the "Privacy Group"). For a period of
twenty-four (24) months after Termination, Consultant and Company will
not disparage the Consultant or Privacy Group in connection with
interviews, books and articles appearing in media, or participation on
a xxxxxxx xxxxxxxxxx show where any details other than the length of
Consultant's consulting arrangement and job title are discussed.
Moreover, Parties agree that the limitations and restrictions contained
in this subparagraph are part of the bargained for exchange and are
reflected in the consideration of the Parties under this Agreement.
d. Survival. This Section 11 shall survive the termination of the
Consultant's consulting arrangement hereunder and the expiration of
this Agreement.
12. GOVERNING LAW. THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY,
AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE PROVISIONS OF, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.
13. Entire Agreement. This Agreement supersedes all other prior
agreements and understandings with respect to the matters covered
hereby.
14. No Oral Amendment. The amendment or termination of this Agreement
may be made only in a writing executed by the Company and the
Consultant, and no amendment or termination of this Agreement shall be
effective unless and until made in such a writing.
15. Successors; Assignment. This Agreement shall be binding upon any
successor (whether direct or indirect, by purchase, merger,
consolidation, liquidation or otherwise) to all or substantially all of
the assets or stock of the Company, as well as to the surviving entity
in any merger between the Company and another entity or entities. This
Agreement is personal to the Consultant and the Consultant may not
assign any of his rights or duties hereunder, but this Agreement shall
be enforceable by the Consultant's legal representatives, executors or
administrators.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and is shall
not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
17. Modifications. No modification or alteration of any part of this
Agreement will be effective unless it is made in writing and signed by
Consultant and the Chairman of the Board and approved by the Board.
The provisions of this Agreement are binding on all assigns and
successors in interest. Since consulting involves personal services,
we agree that neither party may assign their rights or obligations
hereunder.
18. Dispute Resolution.
a. Subject to the exceptions noted in this Paragraph, if Company and
Consultant are unable to resolve any dispute on their own, both parties
agree to resolve the dispute in final and binding arbitration in front
of one arbitrator expert in areas relating to the dispute from the
Judicial Arbitration and Mediation Service ("JAMS") in accordance with
their then current employment arbitration rules. The venue for the
arbitration shall be New York City, New York.
b. Excluding any delay caused by JAMS, any arbitration contemplated
must be completed within 90 days of the filing of the arbitration
demand with JAMS. The arbitration hearing must be completed within a
single day and the arbitrator must provide a written opinion specifying
the reasons for the decision in writing within 10 business days of the
arbitration hearing.
c. This provision is self executing and in the event that either party
fails to appear at any properly noticed arbitration proceeding, an
award may be entered against such party notwithstanding said failure to
appear. Any arbitration award shall be enforceable by any court of
competent jurisdiction.
d. Notwithstanding the foregoing, any claim relating to the validity of
any Confidential Information or any other proprietary technology or
intellectual property shall not be determined by arbitration, but only
by a Federal District Court located in New York City, New York. We
also agree that any breach of the obligations under this Agreement
which relates to proprietary rights or Confidential Information or
which is otherwise not subject to remedy by monetary damages that will
cause irreparable harm will be entitled to injunctive relief in
addition to all other remedies provided in this Agreement or available
at law, in any court of competent jurisdiction.
e. Parties agree that any claim for arbitration must be submitted to
arbitration within the earlier of 12 months of termination of the
termination date of the consulting arrangement or 12 months from the
date of discovery. Any claim submitted beyond this period, Parties
agree is void.
f. Consultant agrees that the provisions of this Paragraph will apply
if Consultant has any dispute with any current or former Company
employee or board member relating directly or indirectly to
Consultant's work with the Company.
g. This Paragraph will survive termination of this Agreement.
IN WITNESS WHEREOF, the parties have the authority and have caused this
Agreement to be executed as of the day and year first written above.
By: /s/Xxxxxx X. XxXxxxx
Xxxxxx X. XxXxxxx, an individual
Date: 1/25/11
IN WITNESS WHEREOF, the parties have the authority and have caused this
Agreement to be executed as of the day and year first written above.
Iron Eagle Group, Inc.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
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