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Exhibit 10.36
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of July 1,
1997, by and between Xxxxxx X. Xxxxxxxx ("Consultant") and NES Acquisition
Corp., a Delaware corporation (the "Company"). The Company and Consultant are
sometimes collectively referred to herein as the "Parties" and individually as a
"Party."
WHEREAS, Consultant has been an employee, officer, director and stockholder
of Sprint Industrial Services, Inc., a Texas corporation ("Sprint"), and as
such, possesses special knowledge, abilities and experience regarding the
business of Sprint. The Company, Sprint and the stockholders of Sprint are
parties to an Asset Purchase Agreement, dated as of July 1, 1997 (the "Purchase
Agreement"), whereby the Company shall purchase substantially all of the assets
of the Sprintank division of Sprint ("Sprintank"). The Company desires to
obtain the services of Consultant to consult with and perform services as an
independent contractor for the Company with respect to its businesses, and
Consultant desires to provide services to the Company upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Consulting Services. The Company hereby engages Consultant as an
independent contractor, and not as an employee, to render consulting services to
the Company as hereinafter provided, and Consultant hereby accepts such
engagement, for a period commencing on the date hereof and terminating on the
second anniversary of the date hereof (the "Consulting Period"). Consultant
shall not have any authority to bind or act on behalf of the Company. During
the Consulting Period, Consultant shall render such consulting services to the
Company in connection with the Company's business as the Company from time to
time reasonably requests and which shall be consistent with Consultant's past
services for Sprintank; provided that during the Consulting Period, Consultant
shall not be required to perform such services for more than ten working days
out of every month.
2. Compensation; Reimbursement. As long as Consultant does not materially
breach the provisions of this Agreement or the Noncompetition Agreement, dated
as of the date hereof, between the Company and Consultant, in consideration of
Consultant's consulting services set forth in paragraph 1 above, during the
Consulting Period the Company shall pay to Consultant $10,000 on the first day
of each month. Consultant shall not be entitled to any fringe benefits or
perquisites from the Company. However, the Company shall reimburse Consultant
for reasonable expenses incurred by Consultant in the course of performing the
duties specified in this Agreement, subject to the Company's policies with
respect to reporting and documentation of such expenses.
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3. Confidential Information. Consultant acknowledges that all information
concerning the business and affairs of Sprintank and/or the Company or any of
its affiliates which (i) is confidential and proprietary to Sprintank and/or the
Company or any of its affiliates, (ii) confers a competitive advantage on
Sprintank and/or the Company or any of its affiliates, or (iii) would be
detrimental or embarrassing to Sprintank and/or the Company or any of its
affiliates if disclosed (collectively, "Confidential Information") is the
property of the Company or such affiliate. Therefore, Consultant agrees that
Consultant shall not disclose to any unauthorized person or use for Consultant's
own purposes any Confidential Information without the prior written consent of
the Chief Executive Officer of the Company (the "CEO"), unless and to the extent
that the aforementioned matters (i) become generally known to and available for
use by the public (other than by reason of any disclosure by Consultant), (ii)
are independently developed by a person or entity that is not a party to this
Agreement (other than as a result of any disclosure by Consultant), or (iii) are
required by law or by the order of any court of competent jurisdiction or
government agency to be disclosed, in which case, (A) Consultant will use
reasonable best efforts to notify the Company promptly of such request or
requirement so that the Company may seek an appropriate protective order or
waive compliance with the provisions of this Section 1, and (B) if, in the
absence of such a protective order or waiver, Consultant is compelled to
disclose any Confidential Information, Consultant will use reasonable best
efforts to limit such disclosure to Confidential Information which is so
required to be disclosed and to obtain an order or other assurance that
confidential treatment will be accorded to any Confidential Information
disclosed. Consultant shall deliver to the Company at the end of the Consulting
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documentation (and copies thereof) relating to the business of Sprintank or the
Company and its affiliates which Consultant may then possess or have under
Consultant's control.
4. Inventions and Patents. Consultant acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether patentable or not) which
primarily relate to the actual or anticipated business, research and development
or existing or future products or services of the Company and its subsidiaries
and which are conceived, developed or made by Consultant during the Consulting
Period ("Work Product") belong to the Company. Consultant shall promptly
disclose such Work Product to the CEO and perform all actions reasonably
requested by the CEO (whether during or after the Consulting Period) to
establish and confirm such ownership (including, without limitation,
assignments, powers of attorney and other instruments).
5. Tax Returns. Consultant shall file all tax returns and reports required
to be filed by him on the basis that Consultant is an independent contractor,
rather than an employee, as defined in Treasury Regulation Section
31.3121(d)-1(c)(2).
6. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and its affiliates, successors and assigns and
shall be binding upon and inure to the benefit of Consultant and Consultant's
legal representatives and assigns; provided that in no event shall Consultant's
obligations to perform future services for the Company be delegated
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or transferred by Consultant without the prior written consent of the Company
(which consent may be withheld in the Company's sole discretion). The Company
may assign or transfer its rights hereunder to any of its affiliates or to a
successor entity in the event of merger, consolidation or transfer or sale of
all or substantially all of the assets of Sprintank or the Company.
7. Modification or Waiver. No amendment, modification or waiver of this
Agreement shall be binding or effective for any purpose unless it is made in a
writing signed by the Party against which enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Company or
Consultant in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by the Company or
Consultant of any such right or remedy shall preclude other or further exercises
thereof. A waiver of right or remedy on any one occasion shall not be construed
as a bar to or waiver of any such right or remedy on any other occasion.
8. Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of Texas, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Texas or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Texas.
9. Severability. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then such provision or
term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement.
10. No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any Party.
11. Consultant's Representations. Consultant represents and warrants to
the Company that (i) Consultant's execution, delivery and performance of this
Agreement does not and shall not conflict with, or result in the breach of or
violation of, any other agreement, instrument, order, judgment or decree to
which Consultant is a party or by which Consultant is bound, (ii) Consultant is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any person or entity (other than the Company) and
(iii) upon the execution and delivery of this Agreement, this Agreement shall be
the valid and binding obligation of Consultant, enforceable in accordance with
its terms.
12. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or one day
after being sent by Federal
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Express or other reputable overnight carrier or five days after being sent by
certified or registered mail addressed to the other Party hereto at such Party's
address shown below:
If to the Company:
NES Acquisition Corp.
c/o National Equipment Services
0000 Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Perl
If to Consultant:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
or at such other address as such Party may designate by written notice to the
other Party.
13. Captions. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement shall be enforced and construed
as if no caption had been used in this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same instrument.
* * * *
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IN WITNESS WHEREOF, the undersigned have executed this Consulting Agreement
as of the date first above written.
NES ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
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Its: CEO
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
