(i) Consulting Agreement-Xxxxxxx Xxxxxx
CONSULTING AGREEMENT
DATE: November 15, 1998
PARTIES: XXXXXXX XXXXXX (the "Consultant")
SWIFTY CARWASH & QUIK-LUBE, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective November 15, 1998 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding management and operations. The Consultant shall perform and discharge
well and faithfully for the Company such consulting services during the term of
this Agreement as may be assigned to the Consultant from time to time by the
President of the Company; provided, however, that no such services shall require
the availability of the Consultant not less than 250 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee of
Seventy-Two Thousand Five Hundred Dollars ($72,500) per year, payable in monthly
installments upon the Effective date of this Agreement.
2.2 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until November 15,
2001 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement may be extended upon written notice by the Company for
successive one-month periods subject to either party's right to terminate the
consulting relationship following the end of the Initial Term.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, 6, and 7, which provisions shall
survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Section 5 of this Agreement
reasonable for the purpose of preserving the goodwill, proprietary rights, and
going concern value of the Company and its subsidiaries, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in Section 5 is an unenforceable restriction
on the activities of the Consultant, the provisions of such restriction shall
not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable. Alternatively, if the court referred to
above finds that any restriction contained in Section 5 or any remedy provided
in Section 8 of this Agreement is unenforceable, and such restriction or remedy
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained in this Agreement
or the availability of any other remedy. The provisions of Section 5 shall in no
respect limit or otherwise affect the obligations of the Consultant under other
agreements with the Company.
SECTION 7. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
7.1 Intellectual Property. The Consultant shall promptly disclose, grant,
and assign to the Company for its sole use and benefit any and all designs,
inventions, improvements, technical information, know-how and technology, and
suggestions relating in any way to the products of the Company or its
subsidiaries or capable of beneficial use by customers to whom products or
services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
7.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
SECTION 8. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5 and 7 of
this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5 and 7, the Consultant agrees that, in addition to its
remedy at law, at the Company's option, all rights of the Consultant under this
Agreement may be terminated, and the Company shall be entitled without posting
any bond to obtain, and the Consultant agrees not to oppose a request for,
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Section 5 and consequently agrees upon any
such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 8 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
9.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
9.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: Xxxxxxx Xxxxxx
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As to Company: Swifty Carwash & Quik-Lube, Inc.
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All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
9.4 Litigation Expense. In the event of a default under this Agreement, the
defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
9.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
9.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
9.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
SWIFTY CARWASH & QUIK-LUBE, INC.
By:___/s/ Xxxxxx Steele_________________ ___/s/ Xxxxxxx Lipsch___________
XXXXXXX XXXXXX
Title:____President_____________________
