Exhibit 4.1
CONSULTANT AGREEMENT
This Consultant Agreement is made and entered into this 23 day of
December, 1999, by and between PolarShield, Inc., a Nevada corporation, with
its principal place of business in Houston, Texas (hereinafter referred to as
the "Company"), and Xxxxx Xxxxxx, an individual residing in Missouri City,
Texas (hereinafter referred to as "Consultant").
In consideration of the Company's engagement of Consultant, Consultant
agrees to the covenants contained herein.
In consideration of the following covenants and conditions, and other
good and valuable consideration, the parties hereto agree as follows:
1. SUPERSEDING AGREEMENT. This Agreement supersedes any and all other
employment agreements, written or oral, between the Company and Consultant.
A. ENGAGEMENT. The Company hereby engages Consultant personally and
Consultant hereby accepts the appointment for the term, at the compensation,
benefits and other consideration, and on the conditions specified in this
Agreement.
2. DUTIES AND RESPONSIBILITIES.
A. Consultant agree to act as a planning and marketing
consultant to the Company. Consultant shall be an
independent contractor responsible for carrying out
the details of the work under Consultant's own
supervision and control. Consultant shall advise the
Company on strategic business planning, including
capital and finance, marketing and sales, and
acquisitions and mergers.
B. Consultant shall conform to the rules, regulations,
instructions, personnel practices and policies of the
Company now in force or any changes therein which
hereafter may be adopted from time to time by the
Company and the rules of business ethics and the laws
of Texas and the United States.
3. TERM OF AGREEMENT; EFFECTIVE DATE.
A. This Agreement shall be effective as of, and the
effective date of this Agreement shall be, June 15,
1999.
B. The term of this Agreement shall expire on the first
anniversary of its commencement unless renewed (in
the manner hereinafter specified) OR unless sooner
terminated in accordance with the terms and
provisions hereinafter set forth. The Agreement shall
be extended month to month after the first
anniversary until terminated according to this
Agreement.
4. COMPENSATION OF CONSULTANT.
A. Consultant Fees. Consultant shall receive a fee of
not more than $10,000 per month based on performance
review by the President and Board plus discretionary
bonuses not exceed with the fee an aggregate of
$150,000 in a calendar year. The fees may be paid as
advances at the discretion of the Company against
future fee compensation that may be due.
B. INCENTIVES: In addition to the fees of Consultant,
Consultant shall receive bonuses based on the
performance of the Company as determined by the
Board.
C. CERTAIN OTHER BENEFITS: During the term of this
Agreement, Consultant shall be entitled to the
following additional benefits:
(1) Consultant shall be included in such
hospital, surgical, medical and dental
benefit plans, group term life insurance
plans, and pension, profit-sharing and/or
retirement plans as are from time to time
maintained by the Company (to the extent
maintained) at the same level of
contributions or benefits (as the case may
be) as other employees of the Company in the
rank executive officers.
(2) Consultant shall be reimbursed for
reasonably and necessarily incurred business
expenses in accordance with such policies
for approval and/or reimbursement as are
from time to time established by the Company
and uniformly applied to executive employees
of the Company; provided, however, that the
Company may refuse to reimburse Consultant
for expenses for which he cannot or does not
provide an accounting or documentation which
states the amount of expenditure, the date,
place, and essential character of the
expenditure, the business reason for the
expenditure and/or the nature of the
business derived or expected to be derived
as a result of the expenditure. The Company
shall determine, in its sole discretion,
those expenditures which constitute
"reasonable business expenses."
(3) Consultant shall be furnished with an
automobile or receive automobile allowance
of $500 per month and fuel reimbursement of
$.12 per mile driven for the company subject
to such policies (including, without
limitation, policies regarding personal use
of such automobile) as are uniformly applied
to executive employees of the Company.
(4) Consultant shall be entitled to such other
benefits as are then customarily furnished
to other executive officers and key
employees of the Company, including but not
limited to 401K Plans, stock bonus plans and
incentive stock plans.
5. CONFIDENTIAL INFORMATION OF COMPANY
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A. RESTRICTIVE COVENANT. During the term of this
Agreement, Consultant will have access to certain
confidential information of the Company and its
subsidiaries, parent and affiliated corporations and
certain shareholder records of same, including, but
not limited to, corporate books and records,
financial information, personnel information, lists
of customers, customer relations, special know-how,
trade secrets and other information. Consultant
recognizes and acknowledges that such confidential
information is a valuable, special and unique asset
of the Company and that the Company's business is
dependent on the same. To insure the continued
secrecy of this confidential information and in
consideration if his employment or continued
employment by the Company, Consultant agrees and
covenants that he will not at any time during the
term of this Agreement and for a period of two years
from the date of his termination with the Company,
regardless of the cause of such termination, either
directly or indirectly, or by aid to others:
(1) Make use of or divulge to any person, firm,
corporation or other entity (collectively
referred to as an "Entity") any trade
secrets, customer lists, or any other
information used by Consultant in his
performance of his duties on behalf of the
Company, or fail to keep confidential all
information obtained in the Company's
business.
(2) Provide, perform or aid, directly or
indirectly, in the providing or performance
of, any service which is the same as or
similar to any service performed or provided
by Consultant for the Company for or on
behalf of any Entity which was a client or
customer of the Company at the time of
termination of Consultant's association with
the Company (any such Entity being herein
referred to as the "Company's Customer").
(3) Discuss with an Company's Customer, or with
any Consultant or agent of any Company's
Customer, the possibility of Consultant's
providing or performing or aiding, directly
or indirectly, in the providing or
performing, of any service prohibited by
paragraph 6.A.(2) above, on behalf of such
Company's Customer.
(4) Discuss with any person who is, at the time
of such discussion, an Consultant of the
Company, the possibility of such person's
working for or with Consultant to provide or
perform (or aid, directly or indirectly, in
the providing or performing) on behalf of
any Entity any service which is the same as
or similar to any service provided by such
person in the scope of such person's
activity with the Company.
(5) Employ any person, who was an employee or
consultant of the Company on the date of
termination of Consultant's association with
the Company, to perform or provide (or aid,
directly or indirectly, in the providing or
performing) on behalf of any Entity any
service which is the same as or similar to
any service performed or provided by such
person in the scope of such person's
employment with the Company.
(6) Take any action, directly or indirectly,
which would tend to divert from the Company
any trade or business with any of the
Company's Customers or any Entity whose
identity or potential as
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a customer was confidential or learned by
Consultant during the course of his
association with the Company.
Consultant additionally covenants not to disclose to
any person, firm or corporation any information which is not
otherwise known to the public concerning the business,
customers or affairs of the Company or its subsidiaries or
affiliates which he may acquire in the course of or as an
incident to his service on behalf of the Company.
Consultant agrees that the provisions contained in
this Paragraph 6 are of vital importance to the Company and
that if any question shall ever arise as to whether any act of
Consultant is prohibited by this Paragraph 6, then, in all
instances in which it is reasonable to interpret any provision
of this Paragraph 6 to prohibit such act, such interpretation
shall be controlling notwithstanding that it may also be
reasonable to interpret such provision to permit such act. The
geographic area covered by this Restrictive Covenant is
Houston Metropolitan Region and any other area within the
State of Texas in which the Company is transacting business at
the time of termination of Consultant's employment (or within
the maximum area permitted by law surrounding the Company's
principal office in Houston, whichever is less).
B. WORK PRODUCT. Upon the termination of his engagement,
Consultant shall not take from the premises of the
Company, or otherwise retain, any records, files or
other documents, or copies thereof, relating to the
business or affairs of the Company. As further
consideration for said contract, Consultant hereby
assigns and agrees to assign to the Company, its
successors and assigns:
(1) All rights to maps, plats, documents,
brochures, notes, research material,
prospective customer lists, etc., which
Consultant made, conceived, or received
during the term of his association with the
Company;
(2) Consultant will promptly disclose to the
Company information relating to said maps,
plats, documents, brochures, research
material, prospective customer lists, etc.,
and will execute, acknowledge, and deliver
all papers and perform all other acts as may
be necessary in the opinion of the Company
to vest title to such material in the
Company, its successors and assigns.
C. REMEDIES. In the event of a breach or threatened
breach by Consultant of the provisions of this
Paragraph, the Company shall be entitled to seek an
injunction restraining Consultant from disclosing,
in whole or in part, the lists of the Company's
customers, rate and pricing structures, discount
policies or other confidential business information.
Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to
the Company for such breach or threatened breach,
including the recovery of damages from Consultant.
6. TERMINATION. The Company or Consultant may terminate this
agreement with or without cause, at any time. If this Agreement is terminated
then the Company shall have no further obligations hereunder except to pay
such compensation and other benefits as have accrued prior to the effective
date of termination. Consultant will continue to be bound by the covenants of
paragraphs 6 and 8.
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7. COVENANT NOT TO COMPETE. Consultant hereby agrees, covenants and
warrants, for a period of twelve (12) months from the expiration of the term
of this Agreement or termination, that he shall not, within any market, area
or territory served by the Company or the surviving entity of such Company's
present offices or those it may hereafter open, directly or indirectly,
solicit, contract, contact or consult with any of the customers or accounts
of the Company or those known to be in pursuit by the Company at the time of
Consultant's termination or become the Consultant of, or otherwise render
services to, any enterprise which competes directly or indirectly with the
customers or accounts of the Company or those known to be in pursuit by the
Company at the time of Consultants' termination.
Consultant further agrees that such limitations as to the period of
time, geographic area and types and scopes of restriction on his activities
specified herein are reasonable and necessary for the protection of the
goodwill and other business interests of the Company. However, should either
the time period or the geographic area provided herein be deemed invalid or
unenforceable in any respect, then Consultant recognizes and agrees that a
modification may be made to such time period or geographic area to protect
the Company with respect to the purpose of this covenant not to compete.
Consultant recognizes and agrees that any violation of any of the
provisions contained herein will cause such damage or injury to the Company
as would be irreparable and continuing and that the exact amount of such
damage might be difficult or impossible to ascertain and that, for such
reason, among others, the Company shall be entitled, as a matter of course,
to recover from Consultant an amount equal to five percent (5%) of the gross
xxxxxxxx of the Company's former client, as billed by the Consultant, his new
employer, or any other person or entity wrongfully acquiring the Company's
client, and also the Company shall be entitled to an injunction from any
court of competent jurisdiction restraining any further violation of this
covenant not to compete. Such right to any injunction shall be in addition
to, and not in limitation of, any other rights and remedies the Company may
have against Consultant, including the right to recover damages for any
breach of this covenant or other provisions of this Agreement. Should it
become necessary for the Company to enforce the terms of this Agreement
through injunctive or other proceedings, Consultant hereby waives any and all
claims, counterclaims or other causes of action assertable by them against
the Company, including, but not limited to, claims that this Agreement
violates the Texas Free Enterprise and Antitrust Act.
8. ASSIGNMENT OF AGREEMENT. The Company may assign this Agreement
(and this Agreement shall be deemed assigned) without the consent of the
Consultant in connection with any merger of the Company with or into any
other institution or entity; any other assignment of this Agreement by the
Company may be made only with the written consent of Consultant; in the event
of any such assignment, all covenants, conditions and provisions hereunder
shall inure to the benefit of and be enforceable by or against the successors
and assigns of the Company. The rights and obligations of Consultant under
this Agreement are personal to him, and no such rights, benefits or
obligations shall be subject to voluntary or involuntary alienation,
assignment or transfer.
9. NOTICE. Any notice given under this Agreement to either party
shall be given in writing. Any such notice shall be deemed to be given when
mailed to any such party by registered or certified mail, postage prepaid,
addressed to such party at the respective addresses set out below, or at such
other addresses as either party may hereafter designate (by written notice
provided in accordance with this paragraph) as its address for purposes of
notice hereunder:
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Consultant 4214 Lakecrest
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Address: Xxxxxxxx Xxxx, Xxxxx 00000
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The Company 0000 Xxxx Xxxx
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Address: Suite 245
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Xxxxxxx, Xxxxx 00000
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10. WAVIER OF BREACH. The wavier by either party of a breach of any
provision(s) of this Agreement shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision(s) of this Agreement.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties. No affirmation, representation, covenant or agreement not expressed
herein shall be binding on either party.
12. AMENDMENT. This Agreement may be changed, modified or amended at
any time and in any respect by the agreement of the parties hereto without the
consent of any other person; provided, however, that no change, modification or
amendment shall be binding unless same shall have been reduced to a writing and
signed by the party against whom enforcement of the change, modification or
amendment is sought.
13. APPLICABLE LAW. The parties intend and agree that the terms and
provisions of this Agreement and the performance of the parties hereunder shall
be governed by the laws of the State of Texas.
14. SEVERABILITY. In the event that any portion(s) of this Agreement is
declared to be invalid or illegal by final judgment of any court of competent
jurisdiction, the remainder of this Agreement shall remain in full force and
effect notwithstanding the invalidity or illegality of the other portion(s).
15. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original, but all of which, together,
shall constitute one and the same instrument.
EXECUTED in multiple counterparts at Houston, Texas on this 23 day
of DECEMBER, 1999, but with an effective date as set forth herein.
THE COMPANY:
POLARSHIELD,LLC
By: Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: President
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CONSULTANT
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
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