EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Contract") made as of this 10th day of May
1999, by and between XXXXXXXXX MOBILE FUELING, INC. (the "Company"), a Florida
corporation having offices at 0000 X.X. 00xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000, and SPECIAL SITUATIONS, INC. ("Xxxxxxxx"), a Florida corporation having
offices at 000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, the Company desires to secure the services of Xxxxxxxx as a
consultant, and Xxxxxxxx desires to provide such services to the Company;
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. ENGAGEMENT OF CONSULTANT. The Company hereby engages Xxxxxxxx
to perform, and Xxxxxxxx hereby agrees that it will render the
business consulting and investor relations services described
in paragraph 3 below during the Term of this Contract. If the
Company should merge into or be acquired by another
corporation, this Contract may be canceled by such successor
corporation upon thirty days written notice to Xxxxxxxx. In
the event of such termination, the unvested portion of the
stock granted to Xxxxxxxx under Section 4(b) shall immediately
be issued to Xxxxxxxx.
2. TERM OF CONTRACT. This Contract shall become effective as of
the date noted above and shall continue, unless sooner
terminated by the Company or Xxxxxxxx in accordance with its
terms until May 31, 2001.
3. SERVICES OF CONSULTANT. During the Term of this Contract,
Xxxxxxxx will provide the following services for the benefit
of the Company:
(a) Act as liaison between the Company and the investment
financial community, stockbrokers and potential
investors in the Company's common stock and warrants.
(b) Review press releases and other public information
notices upon the request of the Company.
(c) Assist the Company, by using investor contacts and
knowledge of the investor market, to increase the
liquidity and trading volume of the Company's stock.
(d) Assist the Company in obtaining broader analyst and
institutional following for its stock. Stimulate the
publication of reports by analysts and investment
letter publications.
(e) Contact and meet with key investors on behalf of the
Company.
(f) Arrange invitations for the Company's management to
make presentations before key investors and others
who have an interest in the Company's stock.
(g) Otherwise advise and assist the Company in
maintaining satisfactory relations with its
investors, promoting the good name and business of
the Company by meetings and conferences with investor
groups and members of the financial community, and
perform other investor and financial public relations
services, as requested by the Company.
4. COMPENSATION FOR SERVICES.
(a) In consideration of the services to be rendered and
performed by Xxxxxxxx during the term of this
Contract, the Company will pay Xxxxxxxx a fee of
$7,500 per month, commencing June 1, 1999 for each
month of this Contract, which fee shall include all
out of pocket expenses of Xxxxxxxx.
(b) The Company will issue to Xxxxxxxx 30,000 shares of
the Company's unregistered common stock, of which
10,000 shares shall be issued to Xxxxxxxx
immediately, 10,000 shares shall be issued to
Xxxxxxxx at the end of the first year of this
agreement and 10,000 shares shall be issued to
Xxxxxxxx at the end of the second year of this
agreement, subject, in each case, to forfeiture as
provided in Section 7.
(c) A one time cash payment of $25,000 to be made on or
before June 15, 1999.
5. BEST EFFORTS COMMITMENT. Xxxxxxxx and its principals will use
their full and best efforts to perform these services for the
Company and will devote at least 30 hours per week to the
performance of the services described in Section 3.
6. CONFIDENTIALITY OF INFORMATION. Xxxxxxxx agrees that neither
it nor its employees or agents will, during the Term of this
Contract, or at any time thereafter, disclose or divulge or
use, directly or indirectly, for its own benefit or the
benefit of any other person or entity, any confidential
information, data, trade secrets, inventions, programs, and
business policies and procedures (together, "Protected
Information") in relation to the business of the Company
learned in connection with its work for the Company. The
provisions of this paragraph shall survive the termination of
the Contract, and shall continue until the Protected
Information becomes public knowledge through no fault of
Xxxxxxxx or any of its employees or agents. Xxxxxxxx
acknowledges that it is aware, and that it will advise each of
its employees and agents who is informed as to the matters
which are the subject of this agreement, that the United
States securities laws prohibit persons who are in possession
of material, non-public information concerning an issuer from
purchasing or selling securities of such issuer and from
communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities, and
Xxxxxxxx agrees to comply with such laws, and to ensure
compliance with such laws by any employees or agents it
utilizes to provide services hereunder.
7. TERMINATION. Xxxxxxxx'x services may be terminated at any time
by the Company upon written notice. If Xxxxxxxx'x services are
terminated by the Company without cause, Xxxxxxxx will be
entitled to receive and retain the unvested portion of any
stock grant pursuant to Paragraph 4 above along with the
portion of any monthly fee due up to the date of termination.
If services are terminated by the Company for justifiable
cause, as hereafter defined, Xxxxxxxx will not be entitled to
any compensation after the date of
termination, and the unvested portion of any stock grant shall
be forfeited.
A. If Xxxxxxxx terminates this agreement for any reason,
Xxxxxxxx shall not be entitled to any payments after
the date of termination and shall forfeit the
unvested portion of any stock grant.
B. For purposes of this Agreement, "justifiable cause"
shall mean only the following:
B1. The conviction of Xxxxxxxx or any of its
principals of a felony involving moral
turpitude, fraud, illegal narcotic use,
alcohol abuse, or dishonesty, or any crime
in connection with his provision of services
to the Company that causes the Company a
substantial detriment, but specifically
shall not include traffic offenses, except
the offenses of driving under the influence
of alcohol or any illegal narcotic, or
driving while intoxicated;
B2. Continual neglect of duties specified in
Section 3 or refusal to carry out the lawful
policies of the Company as adopted by the
Board of Directors, provided that in either
event Xxxxxxxx has received written notice
from the Board of Directors or management of
the Company of such neglect or refusal and
Xxxxxxxx fails to cure such breach within
ten (10) days of receipt of notice;
B3. Xxxxxxxx or any of its principals takes
unlawful advantage of a corporate
opportunity, unless: (a) it first offers the
corporate opportunity to the Company and
makes disclosure concerning the conflict of
interest and the corporate opportunity, and
the corporate opportunity is rejected by the
Company in writing in advance; or (b)
Xxxxxxxx'x taking of the corporate
opportunity is ratified by a majority of
disinterested members of the Board of
Directors; provided also that such taking of
corporate advantage shall not constitute
"justifiable cause" if (i) Xxxxxxxx'x
failure to offer the corporate opportunity
to the company resulted from a good faith
belief that the business activity did not
constitute a corporate opportunity, and (ii)
not later than fifteen (15) days after
receiving written notice from the Board of
Directors challenging the taking of the
corporate opportunity, the corporate
opportunity is to the extent possible
offered to the Company.
B4. "Justifiable cause" includes disability as
defined herein. For purposes of this
Agreement, Xxxxxxxx shall be "disabled" or
under "disability" if, as a result of
incapacity due to physical or mental
illness, N. D. Xxxxxxxx shall have been
absent from the substantial performance of
his duties under this Agreement for one
month, and, within 10 days after written
notice of termination is given (which notice
may only be given after the end of the
one-month absence), N. D. Xxxxxxxx shall not
have returned to the performance of his
duties under this Agreement, in which event
the Company may terminate Xxxxxxxx'x
employment under this Agreement for
"disability."
B5. Death of N. D. Xxxxxxxx.
C. If there is a dispute as to whether or not
"justifiable cause" shall exist, the parties agree to
settle the dispute by arbitration in accordance with
the commercial arbitration rules of the American
Arbitration Association, and the judgment of the
arbitrator(s) may be entered in any court having
jurisdiction thereof. Each party agrees to pay all of
its own legal fees and costs associated with any
legal proceedings concerning the interpretation of
this Agreement.
8. COVENANT NOT TO COMPETE.
X. Xxxxxxxx covenants and agrees that, in order to
protect the Company's interest in its business,
operations, and assets during the term of this
Contract and or a period of two (2) years following
the termination of this Contract Xxxxxxxx will not,
without the prior written consent of the Company,
directly or indirectly:
A1. Engage, whether by virtue of stock
ownership, partnership, joint venture
arrangement, trust arrangement, management
responsibilities or otherwise, in
corporations, partnerships, business trusts,
joint ventures, companies, businesses,
organizations, and for ventures which market
or distribute services which are competitive
with the Company's services within one
hundred (100) miles of any of the locations
within the United States that the Company
conducts operations at the time of
termination of this Agreement; or
A2. Become interested, directly or indirectly,
whether as principal, owner, stockholder,
partner, agent, officer, director, employee,
salesman, joint venturer, consultant,
advisor, independent contractor, or
otherwise, in any person, firm, partnership,
association, venture, corporation, or entity
engaging directly or indirectly in any of
the activities engaged in by the Company; or
A3. Knowingly solicit the employment of any of
the Company personnel.
B. In the event of a breach or a threatened breach by
Xxxxxxxx of the provisions contained in this
Contract, the Company, without the necessity of
posting bond or proving actual damage to Company,
shall be entitled to temporary and permanent
injunctive relief restraining Xxxxxxxx from
disclosing, in whole or in part, any Protected
Information, whether or not specifically described in
this Contract, or from rendering services to any
person, firm, corporation, association, or other
entity prohibited under this Section 8.
C. Nothing contained in this Contract shall construed as
prohibiting the Company from pursuing any other
remedies, including recovery of actual and punitive
damages, that may be available to the Company for
such breach or threatened breach against Xxxxxxxx or
any other person or entity.
9. NOTICES. All notices, requests, payments, or other
communication hereunder shall be in writing and shall be
deemed to have been given when delivered personally or by
courier or three days after being sent by registered or
certified mail, postage prepaid, to the following address or
addresses or such other address as the parties may designate
in writing in
accordance with this paragraph:
If to the Company: XXXXXXXXX MOBILE FUELING, INC.
0000 X.X. 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxxxx, President and CEO
If to Xxxxxxxx: SPECIAL SITUATIONS, INC.
000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: N. D. Xxxxxxxx
10. MISCELLANEOUS. This Contract may not be assigned by either
party hereto without the prior written consent of the other
party and shall be interpreted under the laws of the State of
Florida. Venue for any action brought hereunder shall be in
Broward County, Florida
IN WITNESS WHEREOF, the parties hereto have executed this contract on the date
above written.
SPECIAL SITUATIONS, INC. XXXXXXXXX MOBILE FUELING, INC.
A Florida corporation A Florida corporation
By: /s/ XXXXXX XXXXX XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxx Xxxxx Xxxxxxxx, President Xxxxxxx X. Xxxxxxxxx, President
& CEO
