CONSULTANT'S AGREEMENT
THIS CONSULTANT'S AGREEMENT is executed on the 30th day of August,
2000, ("Effective Date") by and between Grow Biz International, Inc., having its
principal office at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 ("Grow Biz"), and Xxxxxx Technologies, LLC, a Florida limited
liability company, having its principal office at 0000 Xxxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000 ("Xxxxxx"):
RECITALS
WHEREAS, Xxxxxx is engaged in the business of franchising the right to
own and operate Computer Renaissance(R) retail stores ("Business") and has
invested substantially in the development of techniques, programs, services,
systems, information, trade secrets, discoveries, improvements, developments,
and other confidential property; and that Xxxxxx must ensure that all
information relating to those clients and franchisees remain confidential and
that the goodwill established to its clients and franchisees is maintained; and
WHEREAS, Grow Biz acknowledges that it is essential to the conduct of
Xxxxxx' business and to its clients and franchisees that such information be
kept confidential and treated as secret and that Xxxxxx' client and franchisee
relationships must be protected; and
WHEREAS, Grow Biz and its principals are extremely knowledgeable in the
affairs of the Business and has great expertise in dealing with franchise
systems including, without limitation, vendor relationships; and
WHEREAS, Grow Biz desires to enter into a business relationship with
Xxxxxx to provide general consulting services and assistance with the Business
as well as to aid in Xxxxxx' business development, client and franchisee
retention.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, ten dollars ($10.00), and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Grow Biz and Xxxxxx hereby agree:
1. Agreement. Xxxxxx hereby contracts with Grow Biz to provide certain
services (defined below), and Grow Biz hereby accepts the contract, upon the
terms and conditions set forth in this Consultant's Agreement ("Agreement").
Xxxxxx and Grow Biz agree that Grow Biz is an independent contractor with
regards to the work performed by Grow Biz for Xxxxxx. Both Xxxxxx and Grow Biz
acknowledge that no principal/agent relationship exists and that neither party
is the employer or the employee of the other party.
2. Term. Subject to the provisions of termination as hereinafter
provided, the term of this Agreement shall begin on the Effective Date hereof,
and shall have a term of five (5) years, although the business relationship may
be terminated at the will of Xxxxxx or at the will of Grow Biz as provided
hereunder, and may be extended by mutual written agreement of the parties. If
Xxxxxx terminates this agreement for any reason, with or without cause, Xxxxxx
shall pay to Grow Biz within 15 days an amount in cash equal to the total of all
remaining installments that would have been paid over the period referenced in
Section 3 hereof.
3. Compensation. Grow Biz shall receive Two Million and No/100 Dollars
($2,000,000.00) as compensation for any and all services of every nature
rendered and to be rendered by Grow Biz in connection with this Agreement
("Consulting Fee"). Xxxxxx shall make sixty (60) equal monthly installments of
Thirty Three Thousand Three Hundred Thirty Three and 33/100 Dollars
($33,333.33). Notwithstanding the foregoing, Xxxxxx may pay all or any portion
of the Consulting Fee during the term of this Agreement, upon providing Grow Biz
with ninety (90) days' prior written notice of such payment.
4. Duties. Grow Biz and its principals shall make themselves available
to and will consult with Xxxxxx with respect to transition related and business
strategy matters during the term of this Consultant's Agreement, including
without limitation, client and franchise development, business and vendor
contacts, provided that Grow Biz personnel may provide such services at its
corporate headquarters during normal business hours, unless otherwise agreed to
in writing. Grow Biz, or its principals, shall be reimbursed for any expenses
they may incur in providing consulting services to Xxxxxx.
5. Extent of Service. Grow Biz shall devote as much of its working
time, energy, and attention to its duties, set forth above, as is mutually
acceptable to Xxxxxx and Grow Biz.
6. Taxes. Grow Biz is solely responsible for paying any and all
necessary and appropriate federal, state, and local taxes which are due and
owing by Grow Biz as a result of this Agreement. Xxxxxx will issue appropriate
documents to Grow Biz for federal income tax purposes in accordance with the
requirements of the Internal Revenue Code. Grow Biz agrees to be solely
responsible for the preparation of all appropriate federal, state, and local tax
reports and returns related to its performance of services under this Agreement.
7. Dissolution During Agreement. If Grow Biz dissolves or files for
bankruptcy protection ("Dissolution") during the term of this Agreement, this
Agreement shall terminate and Xxxxxx shall have no further financial obligations
to Grow Biz; however, Dissolution shall not be deemed to include where Grow Biz
merges with another entity, substantially all of Grow Biz's assets are purchased
by another entity or any other business transaction where any one or more of the
businesses or Grow Biz continue (collectively referred to as "Successor Grow
Biz"), so long as the Successor Grow Biz agrees in writing to be bound by this
Agreement.
8. Confidentiality. Grow Biz shall maintain as confidential and shall
not use or disclose (except as required by law or as authorized in writing by
Xxxxxx) any confidential or proprietary information or materials relating to the
Business (the "Confidentiality Restriction"). In the event any party hereto is
required by law to disclose any confidential information, such party shall
promptly (and in any event prior to final disclosure) notify each other party in
writing, which notification shall include the nature of the legal requirement
and the extent of the required disclosure, and shall cooperate with each other
party to preserve the confidentiality of such information consistent with
applicable law.
9. Covenant Not to Compete. The restrictive covenants, as set forth in
the Asset Purchase Agreement between these parties and CompRen, Inc. of even
date, are incorporated herein by reference and shall be binding on Grow Biz.
10. Consideration. Grow Biz expressly acknowledges and agrees that: (a)
the execution by Xxxxxx of this Agreement constitutes full, adequate, and
sufficient consideration to Grow Biz from Xxxxxx for the duties, obligations,
and covenants of Grow Biz under this Agreement, including, by way of
illustration and not by way of limitation, the agreements, covenants, and
obligations of Grow Biz under Paragraph 8 of this Agreement; and (b) Xxxxxx has
a legitimate business interest in obtaining Grow Biz' commitment to the Covenant
Not to Compete. Xxxxxx expressly acknowledges and agrees similarly with respect
to the consideration received by it from Grow Biz under this Agreement.
11. Notices. Any and all notices shall be given pursuant to this
Agreement; such notices shall be in writing, shall be either hand delivered or
sent by certified United States mail, return receipt requested, and shall be
addressed to the signatories at the addresses shown on the signature page of
this Agreement or at any subsequent address provided by one party to the other
in writing.
12. Consent To Personal Jurisdiction and Venue; Waiver of Jury Trial.
Grow Biz hereby consents to personal jurisdiction and venue, for any action
brought by Xxxxxx arising out of a breach or threatened breach of this
Agreement, exclusively in the United States District Court for the Middle
District of Florida, Tampa Division; Grow Biz hereby agrees that any action
brought by it alone or in combination with others, against Xxxxxx, whether
arising out of this Agreement or otherwise, shall be brought exclusively in the
United States District Court for the Middle District of Florida, Tampa Division.
Grow Biz and Xxxxxx hereby agree that any controversy which may arise under this
Agreement would involve complicated and difficult factual and legal issues,
accordingly Xxxxxx and Grow Biz intentionally waive any right to request a jury
trial in any action arising out of, or based upon this Agreement and any
agreement contemplated to be executed in conjunction herewith.
13. Acknowledgments. Grow Biz hereby acknowledges that it has been
provided with a copy of this Agreement for review prior to signing it, that it
has been advised and given the opportunity to have this Agreement reviewed by
its own attorney prior to signing it, that it understands the purposes and
effects of this Agreement, and that he has been given a signed copy of this
Agreement for its own records. Grow Biz acknowledges that Xxxxx & Xxxxxxxx, P.A.
represents Xxxxxx only and has not given Grow Biz any advice or counsel
regarding this Agreement.
14. Waiver. The waiver by either party of a breach or threatened breach
of this Agreement by the other party (the "Breach Party") shall not be construed
as a waiver of any subsequent breach by the Breach Party. The refusal or failure
of Xxxxxx to enforce the Confidentiality Restrictions of Paragraph 8 and/or the
Restrictive Covenants of Paragraph 9 of this Agreement (or any similar
agreement) against any employee, agent, or independent contractor, for any
reason, shall not constitute a defense to the enforcement by Xxxxxx of the
Confidentiality Restrictions of Paragraph 8 or the Restrictive Covenants of
Paragraph 9, nor shall it give rise to any claim or cause of action by such
employee, agent, or independent contractor or consultant against Xxxxxx.
15. Prevailing Parties. The prevailing party in any litigation
involving this Agreement shall be entitled to its reasonable attorneys' fees.
16. Independent Contractor. Grow Biz specifically acknowledges and
agrees that it is an independent contractor and not an employee of Xxxxxx.
Nothing contained in this Agreement shall be construed as to create an
employee/employer relationship between Xxxxxx and Grow Biz.
17. Rules of Construction.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between its signatories pertaining to the subject matters of the Agreement, and
it supersedes all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the signatories in connection
with the subject matters of the Agreement. Except as otherwise herein provided,
no covenant, representation, or condition not expressed in this Agreement, or in
an amendment made and executed in accordance with the provisions of the
subparagraph (b) of this paragraph, shall be binding upon the signatories or
shall affect or be effective to interpret, change, or restrict the provisions of
this Agreement.
(b) Amendments. No change, modification, or termination of any of the
terms, provisions, or conditions of this Agreement shall be effective unless
made in writing and signed by all signatories to this Agreement.
(c) Governing Law. This Agreement shall be governed and construed in
accordance with the statutory and decisional law of the State of Florida
governing contracts to be performed in their entirety in Florida..
(d) Severability. If any paragraph, subparagraph, or provision of this
Agreement, or the application of such paragraph, subparagraph, or provision, is
held invalid by a court of competent jurisdiction, the remainder of the
Agreement, and the application of such paragraph, subparagraph, or provision to
persons or circumstances other than those with respect to which it is held
invalid, shall not be affected.
(e) Headings and Captions. The titles and captions of paragraphs and
subparagraphs contained in this Agreement are provided for convenience of
reference only, and they shall not be considered a part of this Agreement for
purposes of interpreting or applying this Agreement; such titles or captions are
not intended to define, limit, extend, explain, or describe the scope or extent
of this Agreement or any of its terms, provisions, representations, warranties,
or conditions in any manner or way whatsoever.
(f) Continuance of Agreement. The rights, responsibilities, and duties
of the signatories to this Agreement, and the covenants and agreements contained
in this Agreement, shall continue to bind the signatories, shall continue in
full force and effect until each and every obligation of the signatories
pursuant to this Agreement (and any document or agreement incorporated hereby by
reference) shall have been fully performed, and shall be binding upon the
successors and assigns of the signatories.
(g) Ambiguity. It is the intention of both Xxxxxx and Grow Biz that the
normal rule of construction to the effect of any ambiguities are to be resolved
against the drafting party shall not be utilized in the interpretation or
construction of this Agreement. Both parties shall be deemed to have
participated equally in the drafting of this Agreement.
IN WITNESS WHEREOF, the signatories have executed this Agreement the
day and year first above written.
WITNESSES: GROW BIZ INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
Name: /s/ Xxxxxxxx X'Xxxxxx Xxxx Xxxxxx, Chairman and Chief
Executive Officer
______________________________ 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Name: ________________________ Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
XXXXXX TECHNOLOGIES, LLC, a
Florida limited liability company
By Its Managing Member:
/s/ Xxxxxxxx X'Xxxxxx Xxxxxx Computer Concepts, Inc.,
Name: ________________________ a Florida corporation
____________________________ By: /s/ Xxxx X. Xxxxxx
Name: ______________________ Xxxx X. Xxxxxx, its President
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
