CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
as of November 22, 2002 (the "Effective Date") by and between XXXX XXXXXXX,
(the "Consultant"), and TMI HOLDINGS, INC., a Florida corporation (the
"Company").
W I T N E S S E T H
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WHEREAS, the Company desires to retain the Consultant to consult with the
Company regarding strategies for development and expansion of the Company's
business, including advice with respect to mergers and acquisitions; and
WHEREAS, the Consultant and the Company desire to enter into this Agreement
under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, the parties hereto agree as follows:
1. ENGAGEMENT. The Company hereby retains the Consultant, and the
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Consultant hereby accepts such engagement, on the terms and conditions set forth
herein. During the term of this Agreement and any renewal(s) hereof (all
references herein to the term of this Agreement shall be deemed to include
references to all periods of renewal, if any), the Consultant shall devote such
time and perform diligently such services as provided in Section 3, but shall
not be required to devote any specific number of hours to such service.
2. TERM. The term of this Agreement shall be five years commencing on the
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Effective Date (the "Contract Term"). The Agreement will automatically expire
upon the expiration of the preceding Contract Term.
3. CONSULTANT'S SERVICES; EXPENSES.
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a. During the term of this Agreement, the Consultant shall:
i. provide consultation services to the Company for the purpose of
assisting the Company in developing and expanding the business of the
Company;
ii. assist the Company in developing, studying and evaluating
capital-raising and merger and acquisition proposals; and
iii. report to the Company and perform such services as may be
requested by the Company in accordance with this Agreement.
b. The Company agrees to reimburse the Consultant for any pre-approved
out-of-pocket expenses related to duties undertaken by the Consultant pursuant
to this Agreement.
4. COMPENSATION. As compensation for services rendered by Consultant under
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this Agreement, the Company shall pay Consultant an aggregate of $500,000, which
shall be paid in five equal annual installments, commencing on the Effective
Date of $100,000 each by the Company assigning to Consultant the sum of $100,000
per year each year during the term hereof of the sum due to the Company under
that original Promissory Note in the original principal amount of $1,175,000
made by Thrift Ventures, Inc., to the Company, a copy of which is attached
hereto as Exhibit A.
5. TERMINATION. This Agreement is non-cancelable. This Agreement may be
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terminated only in the event Consultant is not available at reasonable times to
perform his duties hereunder.
6. CONFIDENTIAL INFORMATION. The Company and the Consultant understand that
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prior to and during the term of this Agreement, the Company may, from time to
time, make available to the Consultant, certain financial, business and other
proprietary information concerning the Company's operations (collectively,
"Confidential Information") and that such Confidential Information may otherwise
come into the possession of the Consultant. Confidential Information includes,
without limitation, information relating to the strategies, plans, assets,
customers, suppliers, employees, and business activities of the Company. The
Consultant agrees that all such Confidential Information furnished or disclosed
to it or otherwise obtained by it will be treated as confidential and will not
be disclosed or divulged by the Consultant, directly or indirectly, to any other
person or entity. Confidential Information shall not include information which
becomes generally available to the public other than as a direct or indirect
result of a disclosure by the Consultant.
7. INDEPENDENT CONTRACTOR. Nothing in this Agreement is intended nor shall
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be construed to create an employer/employee relationship, or a joint venture
relationship, or to allow the Company to exercise control or direction (except
as specifically set forth in the Agreement) in the manner or method by which the
Consultant performs the services required under this Agreement; provided that
the Consultant performs such services in a manner consistent with the standards
governing such services and the provisions of this Agreement. The Consultant
understands and agrees that: (a) it will not be treated as an employee of the
Company for federal tax purposes; (b) it shall not by virtue of this Agreement
be entitled to any of the benefits afforded to any employees of the Company,
except as specifically set forth in the Agreement; and (c) it shall indemnify
and hold the Company harmless from and against any and all loss or liability
arising with respect to such payments, withholdings and benefits.
8. ATTORNEYS' FEES. In the event any litigation or controversy arises out
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of or in connection with this Agreement between the parties hereto, the
prevailing party in such litigation or controversy shall be entitled to recover
from the other party all reasonable attorneys' fees, expenses and suit costs,
including those associated with any appellate or post-judgment collection
proceedings.
9. SURVIVAL. Notwithstanding anything to the contrary herein, the
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provisions of Sections 7, 8, and 9 shall survive any termination or expiration
of this Agreement.
10. NOTICES AND DEMANDS. Any notice, request, demand, offer, payment or
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communication required or permitted to be given by any provision of this
Agreement shall be deemed to have been delivered and given for all purposes if
written and (a) if delivered personally or by courier or delivery service, at
the time of such delivery, or (b) if directed by registered or certified United
States mail, postage and charges prepaid, addressed to the intended recipient at
the address specified below, at such time that the intended recipient or his
agent signs or executes the receipt or (c) if by telefax (facsimile) at the time
received by the intended recipient as evidenced by the confirmation:
if to the Consultant: Xxxx Xxxxxxx
or at any other address designated by the Consultant to the Company in writing,
and
if to the Company: TMI Holdings, Inc.
or at any other address and/or telefax designated by the Company to the
Consultant in writing.
11. SEVERABILITY. If any provision of this Agreement, the deletion of which
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would not adversely affect the receipt of any material benefit by any party
hereunder or substantially increase the burden of any party hereto, shall be
held to be invalid or unenforceable to any extent, the same shall not affect in
any respect whatsoever the validity or enforceability of the remainder of this
Agreement.
12. WAIVER OR MODIFICATION. No waiver or modification of this Agreement of
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any covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith. Furthermore, no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding, arbitration or litigation between the parties arising out of
or affecting this Agreement, or the rights or obligations of any party
hereunder, unless such waiver or modification is in writing and duly executed as
aforesaid.
13. ENTIRE AGREEMENT AND ASSIGNMENT. This Agreement constitutes the entire
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agreement of the parties hereto with respect to the subject matter of this
Agreement and supersedes any and all previous agreements between the parties,
whether written or oral, with respect to such matter. The parties agree that
this Agreement may not be assigned by either party without the prior written
consent from the other party.
14. APPLICABLE LAW, BINDING EFFECT AND VENUE. This Agreement shall be
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construed and regulated under and by the laws of the State of Florida without
application of the principles of conflicts of laws. The Agreement shall inure
to the benefit of and be binding upon the parties hereto and their heirs,
personal representatives, successors and permitted assigns. Venue for any
arbitration or action related to or arising out of this Agreement shall lie in
Broward County, Florida.
15. MULTIPLE COPIES OR COUNTERPARTS OF THE AGREEMENT. The original and one
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or more copies of this Agreement may be executed by one or more of the parties
hereto. In such event, all of such executed copies shall have the same force
and effect as the executed original and all of such counterparts taken together
shall have the effect of a fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated above.
CONSULTANT:
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
COMPANY:
TMI HOLDINGS, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
