EXHIBIT 10.11
INDEPENDENT CONSULTANT AND COMMISSION AGREEMENT
This CONSULTANT AGREEMENT (the "Agreement"), is made by and between Pro Squared,
Inc. ("Pro ") with offices at 0000 Xx. Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000, and Xxxxxxx X. Xxxxxxx ("Consultant").
WITNESSETH:
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This Agreement is based upon the following recitals:
1. Pro desires to retain the services of Consultant for the project or
purpose described herein, and Consultant desires to provide such services for
Pro at Pro 's facilities in work location(s) owned or operated by Pro or an
affiliate of Pro at various locations within the United States, its territories
and possessions on the terms and conditions set forth below;
2. Consultant is a citizen or legally authorized resident of the United
States who accepted employment for this project while residing in the United
States, and who delivered this Agreement to Pro for acceptance in Houston,
Texas;
3. This Agreement was accepted and executed by or on behalf of Pro at
Houston, Texas; and
4. Pro and Consultant desire that only the laws of the United States and
the State of Texas, and not those of any other jurisdiction, shall govern this
Agreement and any disputes arising under this Agreement.
Therefore, in consideration of the foregoing and of the premises set forth
before the parties hereto intending to be legally, bound, agree as follows:
1. TERM:
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The term of this agreement shall be one year from the date entered below.
It may be cancelled by either party at May 30, 2002 or August 31, 2002 on
provision of 30 days written notice. The agreement will end on December 31,
2002 unless mutually agreed to extend.
Effective Date: January 1, 2002
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2. FEES AND COMMISSIONS:
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Fees will be in accordance with the following:
A base commission payment of $5,000.00 per month will be paid on the 15th and
the 1st through May 30, 2002. In addition, a commission of 7.5% of the gross
consulting revenue will be paid for any client referred to PRO by consultant.
Effective June 1, 2002, the base commission payment will be $2,500.00 per month
paid on the 15th and 1st, through December 31, 2002. The commission will
increase to 12.5% effective June 1, 2002 for all clients referred to PRO b
consultant.
Special commission for Sprint revenues. During the initial term the commission
paid on Sprint revenues will be 10%. Effective June 1, 2002 it will increase to
12.5%.
Special commission for Waste Management Revenues. During the term of this
agreement the commission paid on Waste Management or it's affiliates revenues
will be 25% for first 90 days and 20% thereafter.
Billable hours worked by Xxxxxxx on a client assignment will be paid to him at
50% of the billable rate to that client. There will be no additional commission
paid for any gross consulting revenues resulting from Xxxxxxx'x billable hours.
There will also be a special commission rate for the life of this agreement for
any internet or CD based training revenues. The commission will be 50% of the
Gross sales less any direct costs. Direct costs are not to include any
overhead, general or administrative costs.
All commission payments will continue until the shorter of either, one, twenty
four months, or, two, the cancellation of the consulting agreement by the
client. Commission payments will survive the early cancellation of this
agreement so long as consultant is not competing with PRO .
Consultant agrees that in no event will the commissions paid exceed 50% of the
gross margin to PRO .
Definition of Gross Consulting Revenue: That revenue that results from the
execution of project management assignments for clients for whatever scope. It
shall not include travel expenses, or other direct expenses including equipment,
or other direct costs of the job excluding labor.
Definition of Gross margin: The gross margin will be the result of gross
consulting revenue, less all direct costs of the project, including direct labor
cost. It does not include any provision for general and administrative expense.
3. TAXES AND INSURANCE:
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The Consultant is strictly responsible for all state, federal, local or
jurisdictional taxes or fees, including, but not limited to, self-employment,
income, worker's compensation, unemployment taxes, and licensing or registration
fees, that may accrue as a result of this engagement.
4. PER DIEM TRAVEL, MOVING AND RELOCATION EXPENSES:
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Pro agrees to pay for travel and other business related expenses that have been
pre approved by the President of Pro .
Consultants will be provided a per diem, in accordance with guidelines
established by Pro for meals, laundry, dry cleaning and other miscellaneous
expenses while on assignment or traveling on company business.
Transportation to and from the work site will be provided as deemed necessary by
Assignment Management and may be shared or dedicated vehicles.
All Lodging, Transportation and Per Diem expenses will be paid separately from
the bi-weekly or monthly labor reimbursement.
Transportation: Coach Class air transportation will be provided or reimbursed
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for approved travel.
Travel Expenses: The actual, reasonable costs incurred for all other authorized
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travel expenses will be reimbursed with proper documentation.
5. PROCESSING EXPENSES:
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A drug screen may be required for all newly hired Consultants. In addition, the
Consultant will require any necessary safety training, or orientation necessary
to access Client facilities. Any costs associated with these requirements will
be the responsibility of Pro . Any costs associated with Passports, Visas or
inoculations required for foreign assignments will also be borne by Pro .
FEE AGREEMENT
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1.1 ACCEPTANCE OF AGREEMENT BY PRO. Consultant's signing of this Agreement
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constitutes a conditional offer by Consultant to begin assignment with Pro for
the project described in this Agreement. In order to become effective, this
Agreement must be accepted by Pro , Consultant must satisfactorily complete any
applicable requirements of Pro (e.g., drug test and trial period), and
Consultant must comply with and meet all requirements for entry into Client
premises, including safety orientation and security clearance, if required.
DISPUTE RESOLUTION
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1.2 GOVERNING LAW. This Agreement has been made, executed by or on behalf
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of Pro , delivered and accepted in Houston, Texas, United States of America, and
the parties intend and agree that this Agreement is to be governed, interpreted,
construed, and enforced only in accordance with the laws of the United States
and the State of Texas without reference to the choice of law principles thereof
or the laws of any other jurisdiction. Each party hereby waives any and all
rights or defenses available under the laws of the foreign work location not
recognized or available under the laws of Texas.
1.3 DISPUTES,ARBITRATION AGREEMENT: All disputes, claims, and/or requests
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for specific contractual performance, or other equitable relief, or damages or
any other matters in question between the parties arising out of this agreement
shall be submitted for arbitration, solely. Demand shall be submitted for
arbitration, solely. Demand shall be made to the American Arbitration
Association and shall be conducted in Houston, Texas by a one-person arbitrator,
unless the parties mutually agree otherwise. Arbitration shall be in accordance
with the commercial rules of the American Arbitration Association. The Award of
the Arbitrator shall be final and judgment may be entered upon it in any court
having jurisdiction thereof, and the prevailing party shall be entitled to costs
and reasonable attorney's fees arising out of such arbitration.
2. MISCELLANEOUS
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4.1 WAIVER OF FOREIGN BENEFITS. In consideration for employment and the
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termination and other benefits contained in this Agreement, Consultant
voluntarily waives the right to receive or pursue recovery of any other
termination or other benefits under the law of any jurisdiction other than that
specified in this Agreement.
4.2 NON-COMPETITION. During the term of this Agreement and for the period
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that commissions continue to be paid, thereafter, Consultant will not compete
with Pro . "Competing with Pro " means (a) soliciting Pro 's customers with
whom Consultant has dealt with during performance of this Agreement, either (i)
to cease to do business with Pro , (b) soliciting any employee of Pro to leave
his or her employment with Pro or to breach his or her employment obligations
with Pro , or (c) hiring, soliciting or offering employment, directly or
indirectly, to any Pro employee or staff with whom Consultant has dealt with
during performance of this Agreement. The parties agree that the remedy at law
for the breach of the provisions of this paragraph shall be inadequate and
Consultant consents to the granting of an injunction enjoining any breach of
this Agreement.
4.3 CONSULTANT COVENANTS. Consultant convenants not to:
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(a) become involved in a conflict of interest, including participation in, or
solicitation of, business with a Client of Pro
(b) violate applicable provisions of the United States Foreign Corrupt Practices
Act, which generally prohibits improper payments to foreign government officials
or candidates for office (Pro will explain these requirements in greater detail
upon request);
(c) disclose any confidential business information of Pro , defined as all
information about Pro 's business, prospects, processes or operations obtained
by Consultant during his or her employment; or
(d) work or provide services to anyone else for compensation or otherwise while
employed by Pro without advance written consent of Pro .
4.4 DRUG TESTING. Pro prohibits the possession, transfer, sale or use of
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alcohol, illegal drugs or controlled substances on the Pro 's premises and
during working hours. Consultant agrees to submit to a test or tests for
alcohol, illegal drugs or controlled substances if requested by the Pro , such
tests to be conducted by collection and analysis of blood or urine samples.
Consultant also agrees that the results of such tests may be reported to the Pro
for the purposes of determining Consultant's compliance with this policy.
4.5 SEVERABILITY. Any provision of this Agreement prohibited by applicable
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law shall be invalid only to the extent of such prohibition and the other
provisions of this Agreement shall remain in full force and effect.
4.6 ASSIGNMENT. Neither Consultant nor Pro may assign this Agreement to
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third parties, except Pro may assign this Agreement to an affiliate under the
control of Pro without the prior consent of Consultant. Such assignment by Pro
without consent of Consultant is effective upon notice to Consultant.
4.7 AMENDMENT: NO ORAL MODIFICATION. No amendment, extension, waiver or
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modification of the terms of this Agreement shall be valid unless set forth in
an instrument in writing signed by both parties hereto. No oral amendment,
extension, waiver or modification of the terms of this Agreement shall be
binding upon the parties to this Agreement.
4.8 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
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the parties regarding the subject matter contained herein; this Agreement
supersedes all prior agreements, arrangements, representations and
understandings, written or oral, relating to the subject matter hereof.
4.9 HEADINGS. The paragraph headings used in this Agreement are for
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convenience only and shall not affect the interpretation of this Agreement.
IN WITNESS WHEREOF, this Consultant Agreement has been signed by each of the
parties to be effective on the date accepted by Pro.
RULES AND REGULATIONS OF PRO
The following Rules and Regulations apply to all Consultants assigned to PRO
subsidiaries and affiliates. These rules are intended to inform Consultants of
the standard of conduct expected of them while they are assigned to perform
duties for Pro 's subsidiaries and affiliates. Pro may revise or supplement
the rules from time to time as circumstances, applicable law and Pro needs
dictate. Violation of the rules may subject Consultants to discipline. By way
of example, disciplinary actions may include verbal warning, written warning,
suspension without pay to a maximum of fourteen (14) days, or termination.
The following offenses would subject the Consultant to discipline, as described
above. Depending on the severity and circumstances, these offenses may make
appropriate more severe discipline or by passing one or more of the disciplinary
steps outlined above, and may constitute urgent reasons or basis for loss of
confidence justifying immediate dismissal.
1. Violation of established safety rules or practices, including failure to
wear or use required personal protective equipment.
2. Failure to perform job assignments at an acceptable level of quality or
speed because of incompetence, carelessness or negligence.
3. Use of abusive language toward an employee, contractor, local resident or
client.
4. Insubordination, failure to carry out assigned work or instructions in a
reasonable period of time or defiance of authority.
5. Unauthorized or excessive absences or tardiness.
6. Negligently damaging, destroying or losing Pro property, including Pro
owned or leased vehicles.
7. Disruptive activities or horseplay on Pro premises or during work.
8. Gambling on Pro property.
9. Failure to report an occupational injury or accident.
10. Intimidation or coercion of an employee by Consultant for membership or
non-membership in any religious organization, society, fraternity or labor
organization, or because of race, color, age, religion, sex, national origin,
veteran status or disability.
11. Unauthorized solicitation of employees.
12. Sexual harassment, requests for sexual favors and/or other verbal or
physical conduct of a sexual nature, or any other violation of the Pro 's policy
on sexual harassment.
13. Sleeping while on the job.
14. Conduct on or off the job which damages or could damage the Pro 's good
will or reputation.
Offenses, which due to their severity, normally will result in immediate
termination on a first offense, and therefore constitute urgent reason for
dismissal, include but are not limited to the following:
1. Theft or embezzlement, actual or attempted, of Pro property or of the
property of another individual on Pro premises or while away from Pro premises
but on Pro time or business.
2. Provoking a fight or attempting to inflict injury to an employee or other
consultant, contractor, local resident or client during working time, while on
Pro property or while away from Pro property but on Pro time or business.
3. Conviction of a felony or similarly serious crime.
4. Willfully destroying or damaging Pro property or the property of
customers or contractors. Unauthorized use or loss of Pro , customers' or
contractors' property, equipment of facilities.
5. Unauthorized taking of Pro documents or information or disclosure of
confidential information or trade secrets.
6. Intentional or unintentional acts that could result in an acute hazard to
any personnel or significant property loss or damage.
7. Deliberate misrepresentation or falsification of information or records
in connection with any Pro business or toward any employee of Pro , including
applications for employment, physical examinations or tests, and/or claims for
expenses, benefits or reimbursement.
8. Accepting a gratuity or kickback contribution in connection with the
placement of or consideration for the placement of Pro business with another
individual, organization or Pro . Undisclosed ownership or participation in any
business entity that does or seeks to do business with the Pro other than stock
ownership in a publicly traded business entity that does not exceed 5% of the
total ownership or equity in such business entity.
9. Being at work under the influence of alcohol or using alcoholic beverages
on Pro premises.
10. Possession, use, sale or transfer of illegal drugs and/or controlled
substances on Pro property or during working hours, or being under the
influence of illegal drugs or controlled substances during working hours.
11. Refusal or failure to take a test to detect the presence or use of
alcohol, drugs or controlled substances if requested by a supervisor, a member
of management, or a Pro safety or health official, or attempting to alter,
frustrate or obscure the results of any such test of any Pro Consultant or
contractor.
CONSULTANT ASSIGNMENT AGREEMENT
ACKNOWLEDGMENT OF CONSULTANT
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I acknowledge that I have read the above Consultant Agreement, understand it,
had sufficient opportunity to seek financial, tax and legal advice to my
satisfaction, and voluntarily signed it intending to be bound by the provisions
hereof.
CONSULTANT
/s/ XXXXXXX X. XXXXXXX
JANUARY 18, 2002
ACCEPTANCE BY PRO
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For and on behalf of
PRO SQUARED, INC.
BY: /s/ XXXXX XXXXXXXX
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TITLE: PRESIDENT
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AFFILIATE:
DATE: JANUARY 18, 2002
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