EXHIBIT 10.46
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT is made as of this 30th day of June, 1996, by and
among GENERAL BUSINESS SERVICES, INC., a Texas corporation having a principal
business address of 1010 -1020 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxx, XX 00000 and
XXXXX X. XXXXXXXX & CO., a Colorado corporation having a principal business
address of 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxx, XX 00000 (collectively
the "Company") and W. XXXX XXXXX, individually, having a residence address of
000 Xxxx Xxxx, Xxxx, XX 00000 (the "Consultant").
WHEREAS, the Company consists of two (2) service concept franchise
companies owned by The Xxxxx Group, Inc. and affiliated with other franchise
companies and certain other related business interests and it is the desire of
the Company to engage the services of the Consultant, as an independent
contractor and not as an employee, to perform consulting services for the
Company in regard to special projects assigned by the Chief Executive Officer of
the Company for the operation of the Company.
WHEREAS, it is the desire of the Consultant to consult with the officers,
the Board of Directors and the administrative staff of the Company, and to
undertake, for the Company, consultation as to the direction of certain
functions in the management of the Company and such other special projects as
may be assigned by the Company's Chief Executive Officer.
WHEREAS, in consideration of the mutual promises contained in this
Consulting Agreement, the parties agree as follows:
1. Term. The respective duties and obligations of the parties to this
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Consulting Agreement shall be for a period of three (3) years, commencing on
July 1, 1996. The parties agree that this Agreement may be extended for an
additional term or terms upon the mutual agreement of both parties.
2. Obligations of Consultant. Consultant shall make himself available to
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consult with and perform services at the direction of the Board of Directors,
officers, and administrative department heads at reasonable times as agreed upon
between the Consultant and the Company concerning matters which Consultant and
the Chief Executive Officer agree, in writing, are responsibilities of the
Consultant. Initially, Consultant and the Chief Executive Officer agree that
Consultant shall perform those services outlined on Exhibit "A".
3. Services Rendered to Others by Consultant. The Company and the
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Consultant agree that the Consultant may represent, perform services for and be
employed by such additional clients, persons or companies as the Consultant, in
his sole discretion, sees fit.
CONSULTING AGREEMENT -- PAGE 1
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4. Compensation. For services rendered under this Consulting Agreement,
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the Consultant shall receive a base fee of $305,000, which shall be payable in
full by Company upon execution of this Agreement unless otherwise directed by
Consultant. Once paid, the fee shall be nonforfeitable and nonrefundable. In
addition, Consultant shall be reimbursed for expenses, other than ordinary
office overhead, incurred and directly attributable to services rendered under
this Consulting Agreement. As a condition to payment of expenses, Consultant
shall discuss such expenses with the Company in advance and provide a report of
such expenses for the previous month, supported by invoices, to the Chief
Financial Officer of the Company no later than the 10th day of each month. The
Consultant shall be reimbursed on or before the 20th day of the same month for
the previous month's authorized expenses. In addition, Consultant shall be paid
$500 for each prospective franchisee candidate who signs a contract and becomes
a franchisee for the Company if that candidate visited with Consultant "one-on-
one" either in Oklahoma City, OK or otherwise at the Company's request as
verified by the Company's records. If a prospective franchisee candidate who
has visited with Consultant by telephone, as verified by the Company's records,
signs a contract and becomes a franchisee for the Company, Consultant shall be
paid $250. Such payments shall be made on the 20th day of each month for the
previous month.
5. Stock Options. Consultant is hereby granted non-qualified stock
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options to acquire 25,000 shares of common stock of the Company's parent, The
Xxxxx Group, Inc., in accordance with the Non-qualified Stock Option Agreement
attached hereto as Exhibit "B".
6. Limited Liability. The Consultant shall not be liable to the Company,
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or to anyone who may claim any right due to his relationship with the Company,
for any acts or omissions on the part of the Consultant or the agents or
employees of Consultant in the performance of the Consultant services under this
Consulting Agreement, except when such acts or omissions are due to willful
misconduct or culpable negligence. The Company shall hold the Consultant
harmless from any obligations, costs, claims, judgments, attorney's fees or
attachments arising from our growing out of the services rendered to the Company
pursuant to the terms of this Consulting Agreement or in any way connected with
the rendering of such services, except when the same shall arise due to the
willful misconduct or culpable negligence of the Consultant and the Consultant
is adjudged to be guilty of willful misconduct and culpable negligence by a
court of competent jurisdiction.
7. Applicable Law. This Consulting Agreement shall be construed under
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and in accordance with the laws of the State of Texas.
8. Parties Bound. This Consulting Agreement shall be binding on and
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inure to the benefit of the parties to it and their respective heirs, executors,
administrators, legal representatives, successors and assigns when permitted by
this Consulting Agreement.
CONSULTING AGREEMENT -- PAGE 2
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9. Legal Construction. If any one or more of the provisions contained in
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this Consulting Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions and this Consulting Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained in it.
10. Remedies. If any action at law or in equity is necessary to enforce
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or interpret the terms of this Consulting Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which the party may be entitled.
11. Entire Agreement. This Consulting Agreement constitutes the sole and
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only agreement of the parties to it as to the subject matter hereof and
supersedes any prior understandings or written or oral agreements between the
parties respecting this subject matter.
12. Effective Date. This Consulting Agreement is effective as of July 1,
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1996.
GENERAL BUSINESS SERVICES, INC.
BY: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Treasurer
XXXXX X. XXXXXXXX & CO.
BY: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Treasurer
CONSULTANT:
/s/ W. Xxxx Xxxxx,
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W. Xxxx Xxxxx, individually
CONSULTING AGREEMENT -- PAGE 3
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EXHIBIT "A"
Consultant shall attend the Annual Convention of the Company scheduled to be
held in Las Vegas, Nevada on August 1 - 8, 1996 to facilitate a smooth
transition from Consultant's role as President of the Company to a consulting
role.
Consultant shall teach at the PTM scheduled for the fall of 1996.
Consultant shall continue to host meetings with prospective franchisee
candidates in Consultant's office in Oklahoma City, OK on one (1) day per month
for the balance of 1996, 1997 and 1998. The date each month will be mutually
agreed upon in advance by Consultant and the Company.
EXHIBIT "B"
NON-QUALIFIED STOCK OPTION AGREEMENT
OF
THE XXXXX GROUP, INC.
