Exhibit 10.26


 


CONSULTING AGREEMENT
(the “Agreement”) dated as of May 10, 2005 (the “Effective Date”) by and
between, JACKSON HEWITT INC., a Virginia
corporation (the “JH”) and Perb Fortner (“Mr.
Fortner” or the “Consultant”).


 


WHEREAS, the Company has accepted the retirement and resignation of Mr.
Fortner from active service with Jackson Hewitt Tax Service Inc. (“JHTS”) and
its subsidiaries, including JH (collectively, the “Company”).


 


WHEREAS, Mr. Fortner had immediately prior to his retirement and resignation
served the Company in the role of Executive Vice President, Operations and had
been involved in certain ongoing Company projects.


 


WHEREAS, JH desires to continue its business relationship with Mr.
Fortner by retaining Mr. Fortner as a consultant to perform consulting services,
providing the Company with guidance and advice from time to time in connection
with its franchise operations and other specific projects, and Mr. Fortner is
willing to perform such services, upon the terms and conditions herein.


 


NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants hereinafter set forth,
the parties hereto have agreed, and do hereby agree, as follows:


 


1.                                       Retention; Duties.


 


(a)                                  Subject to the
terms and conditions set forth herein, JH hereby retains the Consultant, and
the Consultant hereby accepts such retention, to act as a consultant with
respect to providing the Company guidance and advice in the areas of its
franchise operations, including technology matters, and other related business matters
and projects, from time to time during the term of this Agreement as the
Company may designate as directed by the Company’s Chief Executive Officer.  In particular, Consultant agrees to attend
and fully participate in the Company’s annual Franchisee Convention in Las
Vegas, Nevada (the “Convention”) as directed by the Company.  The Consultant shall remain available, via
telephone, facsimile and e-mail, during the term of this Agreement.


 


(b)                                 Consultant
agrees to travel on prearranged Company business at the direction of the
Company, including the Convention. Company shall provide reimbursement for all
reasonable, customary and necessary travel expenses.


 


(c)                                  Consultant
shall be reimbursed for reasonable and customary business expenses while
performing work at the direction of JH, subject to prior approval of expenses
and upon submission of satisfactory documentation.  Expenses to be reimbursed in accordance with
JH policies.


 


(d)                                 Consultant
shall be available to perform his consulting duties from


 


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corporate headquarters in Parsippany, New Jersey through July 31,
2005, unless JH instructs otherwise.


 


(e)                                  Consultant
shall devote the number of hours set forth below during the term of this
Agreement:


 


(i) Effective Date through July 31, 2005, Consultant shall provide
forty (40) hours per week of service, with the exception of the week of the
Convention, at which Consultant shall be present at Convention and available
and working at all times needed from June 3, 2005 to June 9, 2005;


 


(ii) August 1, 2005 through the Term (as defined below),
Consultant shall provide up to twenty (20) hours per week of service as
projects warrant and as directed by the JH.


 


2.                                       Term. 
The term of this Agreement shall commence as of the Effective Date and
continue until October 31, 2006 (the “Term”)  .


 


3.                                       Compensation.


 


(a)                                  As
compensation for his services provided hereunder, JH shall pay the Consultant
at the rate of $20,000 (twenty thousand dollars) per month.  Consultant shall not be required to submit an
invoice for services rendered on a monthly basis.  JH shall pay the Consultant in accordance
with the Company’s normal payroll practices.


 


(b)                                 To
facilitate Consultant’s duties hereunder, the Company hereby makes a gift of
the Consultant’s laptop and cellular phone. 
Consultant shall not be entitled to take Consultant’s laptop until all
information currently residing on it has been reviewed by Human Resources and
the Company has determined what is appropriate to remain on the laptop to
further Consultant’s role for the benefit of the Company.  Consultant shall be responsible for ongoing
charges for the cellular phone, except in accordance with paragraph 1(c) above.


 


4.                                       Independent Contractor.  The relationship created hereunder is that of
the Consultant acting as an independent contractor.  It is expressly acknowledged and agreed that
the Consultant shall have no authority to bind the Company to any agreement or
obligation with any third party.


 


5.                                       Representations and Warranties and Covenants of the
Consultant.  The
Consultant hereto, hereby represents and warrants to the Company:


 


(a)                                  he
has the power and authority to execute and deliver this Agreement and to
perform the duties and responsibilities contemplated hereby;


 


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(b)                                 that
neither the execution of this Agreement nor performance hereunder will (i)
violate, conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under the terms, conditions or provisions of any
contract, agreement or other instrument or obligation to which he is a party,
or by which he may be bound, or (ii) violate any order, judgment, writ,
injunction or decree applicable to him.


 


6.                                       Representations and Warranties of the Company.  The Company hereby represents and warrants to
the Consultant:


 


(a)                                  it
is a corporation duly organized validly existing and in good standing under the
laws of the state of incorporation and it has qualified to do business as a
foreign corporation in the jurisdictions, if any, outside of such state, in
which it does business and is required to so qualify;


 


(b)                                 it
has full corporate power and authority to execute and deliver this Agreement
and to perform the duties and responsibilities contemplated hereby;


 


7.                                       Confidentiality And Non-Competition.


 


(a)  Unless otherwise required by
law or judicial process, Consultant shall keep confidential all confidential
information known to Consultant concerning the Company, whether obtained during
his course of employment, consultancy or otherwise, until such information is
publicly disclosed by the Company or otherwise becomes publicly disclosed other
than through Consultant’s actions; provided, that Consultant shall provide
notice to the Company in advance of any disclosure required by law or judicial
process in a timely manner to permit the Company to oppose such compelled
disclosure.


 


(b)  Consultant agrees that during the Term and
for a period of six months after the Term, he shall not, directly or
indirectly, as a principal, officer, director, employee or in any other
capacity whatsoever, without the prior written consent of the Company, engage
in, or be or become interested or acquire any ownership of any kind in, or
become associated with, or make loans or advance property to any person engaged
in or about to engage in, any business activity that is in competition with any
of the businesses then engaged in by the Company, including operating a tax
preparation business, whether as a franchisor, franchisee, independent or
otherwise, except as a franchisee of the Company if the Company agrees in
writing.  Consultant acknowledges that
the Company’s business is national in scope and as such the geographic
restriction of this provision is the United States and that such geographic
restriction is necessary and appropriate. 
Nothing in this Agreement shall prevent Consultant from making or
holding any investment in any amount in securities traded on any national
securities exchange or traded in the over the counter market, provided said
investments do not exceed one percent (1%) of the issued and outstanding stock
of any one such corporation.


 


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(c)  With respect to the matters set forth in Section 7,
the Company shall be entitled to seek equitable relief, including injunctions
or specific performance, in addition to the other remedies available to it.


 


8.                                       Taxes. 
Consultant shall be
responsible for all taxes.  The Company
shall, if it determines appropriate, deduct from all amounts payable under this
Agreement all federal, state, local and other taxes required by law to be
withheld with respect to such payments.


 


9..                                    Assignment.  This Agreement shall not be assigned by the
Company or the Consultant without the prior written consent of the other.


 


10.                                 Notices.  Any notice required or permitted to be given
pursuant to this Agreement shall be deemed to have been duly given when
delivered by hand or sent by certified or registered mail, return receipt
requested and postage prepaid, overnight mail or telecopier as follows:


 


	
  If to the Company:

  	
   

  	
  Jackson Hewitt Inc.

  
	
   

  	
   

  	
  c/o Jackson Hewitt Tax Service Inc.

  
	
   

  	
   

  	
  7 Sylvan Way

  
	
   

  	
   

  	
  Parsippany, New Jersey 07054

  
	
   

  	
   

  	
  Telephone: (973) 496- 3929

  
	
   

  	
   

  	
  Telecopier: (973) 496-2810

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to the Consultant:

  	
   

  	
  Perb Fortner

  
	
   

  	
   

  	
  1 Concord Lane

  
	
   

  	
   

  	
  Morristown, New Jersey 07960

  



 


or at such other address as any party shall designate by notice to the
other party given in accordance with this Paragraph 10.


 


11.                                 Governing Law.  This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New Jersey
applicable to agreements made and to be performed entirely in New Jersey. This
Agreement and any dispute arising under or relating to any provision of this
Agreement shall be governed by and construed in accordance with the laws of the
State of New Jersey.  Venue for any
action arising out of this Agreement shall only be brought in the federal
courts in the county of Morris, New Jersey, or if such court does not have
jurisdiction, such other court having jurisdiction in New Jersey.  The parties waive any right to a jury
trial.  Each party shall pay its or his
own expenses in connection with all matters arising under or relating to any
provision of this Agreement.


 


12.                                 Waiver of Breach; Partial Invalidity.  The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.


 


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If any provision, or part thereof, of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and not in any way affect or render invalid or
unenforceable any other provisions of this Agreement, and this Agreement shall
be carried out as if such invalid or unenforceable provision, or part thereof,
had been reformed, and any court of competent jurisdiction or arbiters, as the
case may be, are authorized to so reform such invalid or unenforceable
provision, or part thereof, so that it would be valid, legal and enforceable to
the fullest extent permitted by applicable law.


 


13.                                 Entire Agreement.  This Agreement constitutes the entire
agreement between the parties and there are no representations, warranties or
commitments except as set forth herein. 
This Agreement supersedes all prior agreements, understandings, negotiations
and discussions, whether written or oral, of the parties hereto relating to the
transactions contemplated by this Agreement, with the exception of any
non-compete, non-solicit or confidentiality agreement between Mr. Fortner and
the Company, which agreement shall survive Mr. Fortner’s retirement from active
employment in accordance with its own terms, and any other agreement entered
into on or after the date hereof shall survive according to their own terms. This
Agreement may be amended only by a writing executed by the parties hereto.


 


IN WITNESS WHEREOF,
the Consultant and the Company have executed or have caused to be duly
executed, this Agreement as of the day and year above written.


 


	
   

  	
   

  	
  JACKSON HEWITT INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael D. Lister

  	
   

  
	
   

  	
   

  	
   

  	
  Michael D. Lister, Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Perb Fortner

  	
   

  
	
   

  	
   

  	
   

  	
  Perb Fortner, Consultant

  



 


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