EXHIBIT 10.3
BUSINESS CONSULTING AGREEMENT
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THIS BUSINESS CONSULTING AGREEMENT (this "Agreement") is made and
entered into this 1st day of March 2004, by and between BEVERAGE NETWORK OF
HAWAII, INC., a corporation organized and existing under the laws of Florida
with offices at 4800 N.W. 15th Avenue, Bay 1-A, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Company") and XXXXXXXX X. XXXXXX, a consultant
with mailing address at XX Xxx 0000, Xxxxxxx, XX 00000. (hereinafter referred to
as the "Consultant").
RECITALS
A. The Company desires to avail itself of the Consultant's experience,
skills and abilities, and background and knowledge, and is willing to engage the
Consultant upon the terms and conditions set forth herein.
B. The Consultant agrees to be engaged and retained by the Company upon
said terms and conditions.
C. The parties hereto have each established a valuable reputation and
goodwill in their respective businesses.
D. Each party hereto, by virtue of its relationship with the other
party, will become familiar with and possessed with the manner, methods and
other confidential information pertaining to the other party's business
activities.
NOW, THEREFORE, in consideration of the recitals, promises and
conditions in this agreement, the Consultant and the Company agree as follows:
1. CONSULTING SERVICES. The Company hereby engages Consultant to render
the services hereinafter described during the term hereof. It is understood and
agreed that during the term of this Agreement, Consultant is free to engage in
any other commercial activities provided however that this shall not involve the
commercialization, either direct or indirect of any juice containing soft drink
beverage whether in competition with the Company's business or not. It is also
understood and agreed that Consultant may travel outside of the State of Hawaii
for several months of each year that this Agreement is in effect. Consultant
shall only be required to advise Company of his travel intentions with
reasonable anticipation of each trip:
(a) Consult with Company as directed concerning the company's
operations and employees in the State of Hawaii and assist the Company in the
recruitment of its key management personnel.
(b) Render advice with respect to expanding and distributing
the Company's products in Hawaii and the US mainland.
(c) Assist Company's employees in the negotiation of Company's
contracts with suppliers and
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customers in the state of Hawaii when so required by the Company.
The services identified above shall be rendered on an "As Needed"
basis, Company shall give Consultant reasonable notice of its needs hereunder to
take into account Consultant's other commitments and travel plans. Consultant
shall not be required to render more than 40 hours of service in any calendar
month. Services may be provided by the Consultant from his home.
2. TERM. The term of this Agreement is for one year and shall be
renewed automatically for further one year renewal terms until terminated by
either party hereto as follows:
(a) Consultant may terminate this agreement at any time during
its term or any renewal term by giving 60 days written notice to the Company.
(b) The Company may terminate this Agreement in the event of
(i) the death of Consultant, (ii) "For Cause". Cause is defined as habitual
neglect of duties or responsibilities, (iii) conviction of a felony, (iv) in the
event that Consultant has received minimum Consulting Fees of $550,000 under the
terms of this Agreement, or (v) The Company ceases doing business under the Maui
Juice Company trademark.
3. CONSULTING FEE. The Company shall pay to the Consultant or to the
Consultant's corporation a consulting fee equal to one percent (1%) of the
company's net proceeds (such payments are hereinafter collectively referred to
as the "Consulting Fees"). For purposes of this paragraph, the term "net
proceeds" shall mean the Company's gross receipts from sales of products of the
Company's Business to the Customers, whether retail or wholesale, less the price
of any returned products, any discounts, rebates or credits customarily issued
in the same or similar business, sales and other commissions granted by the
Company to third parties, any applicable sales taxes (including, but not limited
to, excise, use, currency repatriation and similar taxes) and any shipping
charges that are billed separately. In the event that in any calendar quarter
that this Agreement is in effect the Consulting Fees are less than $1,250, then
in addition to the actual Consulting Fees the Company shall pay Consultant an
amount equivalent to the difference between the actual Consulting fees
calculated from the Company's net proceeds and $1,250.
(a) Payment of Fee. On the tenth (10th) day of each quarter
during the term hereof, the Company shall issue Consultant or the Consultant's
corporation a check for the amount of the Consulting Fees payable to Consultant
for the prior quarter.
(b) Commissions After Termination. After the expiration or
termination of this Agreement, the Consultant shall not be entitled to any
Consulting Fees.
4. EXPENSES OF THE CONSULTANT. The Company shall reimburse Consultant
for reasonable out of pocket expenses incurred by the Consultant in the
performance of his duties hereunder. All expenses must be pre-approved in
writing by the Company and must be supported by bona fide receipts.
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5. COOPERATION. Both parties shall cooperate fully with each other in
the performance of the their respective obligations under this Agreement
including, without limitation, providing all necessary information, executing
all documents and performing all actions reasonably required in connection with
such performance.
6. INDEPENDENT CONTRACTOR. This Agreement shall not constitute an
employer- employee relationship. It is the intention of the parties that the
Consultant shall be at all times an independent contractor of the Company. The
Consultant shall not have any authority to act as the agent of the Company and
shall not have the authority to, and shall not, bind the Company to any
agreements or obligations with a third party except as otherwise authorized by
the Company. Subject to the express provisions herein, the manner and means
utilized by the Consultant in the performance of its services hereunder shall be
under the sole control of the Consultant.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Both parties acknowledge
that it is their policy to maintain as secret and confidential all valuable
information heretofore or hereafter acquired, developed or used by each other in
relation to their respective business, operations, employees and contacts which
may give a competitive advantage in either party's industries (all such
information is hereinafter referred to as "Confidential Information"). The
parties recognize that, by reason of the relationship of the parties, the
parties may acquire Confidential Information of the other party. The parties
recognize that all such Confidential Information is the property of the owning
party. In consideration of the parties entering into this Agreement, the parties
agree that:
(a) They shall never, directly or indirectly, publicly
disseminate or otherwise disclose any Confidential Information obtained during
the term of this Agreement without the prior written consent of either party, it
being understood that the obligation created by this subparagraph shall survive
the termination of this Agreement;
(b) At all times, the parties shall exercise all due and
diligent precautions to protect the integrity of any of the other party's
documents embodying Confidential Information (which shall be marked
"Confidential" by the supplying party prior to delivery and, if not so marked,
shall not be deemed to embody Confidential Information), and upon termination of
this Agreement, each party shall return all such documents (and copies thereof)
in its possession or control to the other party; and
(c) In recognition of the foregoing, the parties represent,
warrant and covenant that they will not in the future use or disclose any of
such Confidential Information for the benefit of any person or other entity or
organization under any circumstances at any time.
8. INDEMNIFICATION. The acts, statements and representations made by
the Consultant without the approval of the Company to third parties which are
not made in reliance upon information and/or material furnished to the
Consultant by the Company, rather written or oral, are the sole responsibility
of the Consultant, and the Consultant agrees to indemnify the Company, its
directors, officers, stockholders,
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representatives, agents and affiliates (collectively, the "Affiliated Parties")
for any liability, claims, losses and expenses, including legal costs and
expenses incurred by the Company or its Affiliated Parties that result from the
Consultant's representations made without the approval of the Company.
9. TAXES. All taxes, duties and other governmental fees or charges
arising from the Consultant's receipt of remuneration shall be borne by the
Consultant, except to the extent that the Company is responsible for the fees,
costs and expenses in connection with the provisions of Section 6 hereof.
10. NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be deemed to be properly given when
personally served in writing or by courier, telegraphed, telexed or by facsimile
transmission or sent by express, registered or certified mail, postage prepaid,
addressed to the other party at the address provided above. Either party may, by
written notice to the other, change the address to which notices to such party
are to be delivered or mailed in accordance with this section.
11. BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their respective legal
representatives, administrators, executors, successors, subsidiaries and
affiliates.
12. ARBITRATION. Except as specifically provided herein, any dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a single arbitrator mutually
selected by the parties, in the State of Florida, Broward County, in accordance
with the rules of the American Arbitration Association then in effect. If the
parties are unable to agree on a single arbitrator, each party shall select an
arbitrator and the two arbitrators selected by the parties shall select a third
arbitrator. If three arbitrators are selected, they shall act by majority vote.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
13. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Florida, without giving
effect to the choice of law principles thereof. If it becomes necessary for any
party to institute legal action to enforce the terms and conditions of this
Agreement, and such legal action results in a final judgment in favor of such
party ("Prevailing Party"), then the party or parties against whom said final
judgment is obtained shall reimburse the Prevailing Party for all direct,
indirect or incidental expenses incurred, including, but not limited to, all
attorney's fees, costs and other expenses incurred throughout all negotiations,
arbitrations or appeals undertaken in order to enforce the Prevailing Party's
rights hereunder.
14. ASSIGNMENT. Any attempt by either party to assign any rights,
duties or obligations that arise under this Agreement without the prior written
consent of the other party shall be void and shall constitute a breach of the
terms of this Agreement.
15. ENTIRE AGREEMENT; Modification. This Agreement constitutes the
entire agreement between the Company and the Consultant. No promises,
guarantees, inducements or agreements, oral or written, express or implied, have
been made regarding the provision of any services, other than as contained in
this
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Agreement. This Agreement can be modified only in writing signed by both parties
hereto.
16. SEVERABILITY. If any term or provision of this Agreement is
determined to be illegal, unenforceable, or invalid in whole or in part for any
reason, such illegal, unenforceable, or invalid provisions or part(s) thereof
shall be stricken from this Agreement and such provision shall not affect the
legality, enforceability, or validity of the remainder of this section, then the
stricken provision shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is similar in tenor to the stricken
provision as is legally possible.
17. CONTINUING EFFECT. Sections 5, 8, 9 and 11 shall survive the
expiration or the termination of obligations of each party to the other.
18. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
19. FAIR MEANING. This Agreement shall be construed in accordance with
its fair meaning and not for or against either party on account of which party
drafted this Agreement.
20. AUTHORIZATION. Each party represents and warrants that: (a) the
signatory shown below has the authority to bind the party on whose behalf he/she
is signing to the terms of this Agreement; (ii) the execution and delivery of
this Agreement and the performance of such parties obligations hereunder have
been duly authorized; and (iii) the Agreement is a valid and legal agreement
binding on such parties and enforceable in accordance with its terms.
21. ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, SUCH PARTY HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL, OR EACH
HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS
WAIVED SUCH RIGHT AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION THEREOF.
22. FURTHER ASSURANCE. The parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall take such
other actions as may be reasonably required or appropriate to carry out the
intent and purposes of this Agreement.
23. FORCE MAJEURE. Neither of the parties shall be responsible for
failure to fulfill its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to war, sabotage, insurrection,
riots, civil disobedience and the like, acts of governments and agencies
thereof, labor disputes, accidents, fires or Acts of God. In such event, the
delayed party shall perform its obligations hereunder within a reasonable time
after the cause of the failure has been remedied, and the other party shall be
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obligated to accept such delayed performance. During any period that performance
of its obligations by one party is delayed or suspended pursuant to this
section, the performance of the obligations of the other party shall be
similarly delayed or suspended, including, without limitation, any obligation of
a party to pay money owed based on delayed performance of obligations of the
other party.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
BEVERAGE NETWORK OF HAWAII, INC.
By:_____________________
Name: Title:
XXXXXXXX X. XXXXXX
By:_____________________
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