EXHIBIT 10.24
CONSULTING AGREEMENT
This Agreement is entered into effective as of the 8th day of June,
2000, by and between REDLINE PERFORMANCE PRODUCTS, INC. (hereinafter the
"COMPANY") and MAVERICK AND COMPANY BUSINESS SOLUTIONS, LTD. (hereinafter the
"CONSULTANT").
RECITALS
The Company is in the business of developing, manufacturing,
distributing and selling recreational vehicles. The Consultant is knowledgeable
and experienced in sales, marketing and developing dealer networks. The Company
seeks to obtain the services of the Consultant and the Consultant desires to be
engaged by the Company, and each is willing to enter into this agreement (the
"AGREEMENT"), all on the terms and subject to the conditions contained herein.
All dollar amounts specified herein shall be in US dollars unless noted
otherwise.
AGREEMENT
NOW, THEREFORE in consideration of the premises and the mutual
covenants herein, the parties hereto agree as follows:
1.) Engagement. The Company hereby engages the Consultant as an
independent consultant and the Consultant hereby accepts the engagement upon the
terms and conditions hereinafter set forth. The Consultant shall, from time to
time, at such times as the Company's management may reasonably request, consult
with, advise, assist and perform services for the Company, with respect to
matters as to which the Consultant has special competence. In providing such
consultation and other assistance under this Agreement the Consultant will use
the Consultant's best efforts to provide the Company and its management with
advice, assistance and instruction which is in the best interests of the Company
and its business operations. The parties agree and understand that Consultant's
services will be performed primarily from its location in Winnipeg, Manitoba and
Consultant's employee will travel only to the extent reasonably necessary to
perform its duties hereunder.
2.) Description of Consulting Services. The Consultant shall assist the
Company in developing a national and international network of dealers for the
sale and distribution of the Company's products. Notwithstanding the foregoing
sentence, Consultant will not have the authority or the right to sign any
contract on behalf of or otherwise bind the Company.
3.) Term. Except as otherwise provided in this Agreement, the
obligations set forth hereunder shall commence on the date first set forth above
and shall terminate: (a) upon the Consultant's willful failure to perform
services in accordance with the terms of this Agreement,
as and when determined by the Company or commission of fraud, misappropriate,
embezzlement or other acts of dishonesty or conviction for any crime punishable
as a felony or as a gross misdemeanor involving moral turpitude, which actions,
in the judgment of the Company, have a material adverse effect upon Consultant's
ability to perform the duties under this agreement; or (b) if this agreement is
terminated by the Company for any reason, other than 3.(a) above, on or before
December 31, 2003, Consultant will be provided with 4 months notice whereby only
the monthly consulting fee, plus reasonable expenses, will be paid; if this
agreement is terminated between January 1, 2004 and December 31, 2004,
Consultant will be provided with 5 months notice whereby only the monthly
consulting fee, plus reasonable expenses, will be paid; and if this agreement is
terminated on January 1, 2005 or later, Consultant will be provided with 6
months notice whereby only the monthly consulting fee, plus reasonable expenses
will be paid.
4.) Compensation.
(a) Consulting Fee. As compensation to the Consultant for services
rendered by the Consultant to the Company hereunder, the Company shall
pay the Consultant a consulting fee of Six Thousand Six Hundred Fifty
Dollars ($6,650) per month. The consulting fee shall be payable to the
Consultant not more than fifteen (15) days after the Company receives
an invoice from the Consultant stating in reasonable detail the number
of hours worked by the Consultant for the benefit of the Company.
(b) Bonuses. The Consultant shall be eligible to receive annual bonuses
when the Company is successful in meeting its goals and objectives in
areas of which the Consultant has been contracted to assist. The annual
bonus shall be subject to the terms of a bonus plan to be developed by
the Company and Consultant once sufficient data is compiled and agreed
upon.
(c) Expense Reimbursement. The Consultant shall not be entitled to any
expense reimbursement from the Company other than that which the
Company, in its sole discretion, agrees in writing to reimburse.
(d) Stock Options. Company will grant as of the effective date of this
Agreement to Consultant stock options to purchase fifty thousand
(50,000) of the Company's shares of common stock at an exercise price
of One and 25/100 Dollars ($1.25) per share. The stock options shall be
exercisable and vest in accordance with the terms of a separate stock
option agreement to be entered into by Consultant and the Company.
5.) Independent Contractor Status. The parties hereto agree that:
(a) Independence. The Consultant, its employees and agents shall not be
considered agents or employees of the Company for any purpose. The
Consultant shall be an independent contractor. The Company shall not
exercise any supervision over the Consultant in the performance of the
Consultant's services hereunder, nor shall the Company require the
Consultant's compliance with detailed orders or instructions. The
Consultant, its employees and agents shall have no right or authority
to assume or create any obligation or responsibility, express or
implied, on behalf of or in the name of the
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Company, or to accept service of legal process addressed to or intended
for the Company, or to bind the Company in any manner whatsoever. The
Consultant shall indemnify and hold the Company harmless from any and
all actions, proceedings, losses and costs arising from worker's
compensation benefits payable on account of injury or death to the
Consultant's agents or employees arising out of any activity during the
course of performance of the consulting services provided for hereunder
and claims for bodily injury or death or property loss or damage
sustained by the Consultant or Consultant's agents or employees, except
to the extent caused by the gross negligence or willful misconduct of
the Company, its agents or employees.
(b) Payment and Withholding Responsibility. The Consultant acknowledges
that its employees and agents are not employees of the Company and that
the Consultant is responsible for the payment of employment taxes,
income tax withholding, employee benefits and other expenses which
relate to the Consultant's employees. The Consultant hereby agrees to
defend, indemnify and hold the Company harmless for any costs or
expenses incurred or paid by the Company which arise from the
Consultant's failure to make all such payments. Upon request therefor,
the Consultant shall provide the Company with written evidence of
payment of all applicable federal and state self-employment and income
taxes (including, without limitation, FICA and social security).
6.) Indemnification. The Consultant shall indemnify and hold the
Company, its assignees, officers, directors, agents, or employees, harmless from
any and all actions, proceedings, losses and costs (including, without
limitation, reasonable attorneys' fees and other costs and expenses of
litigation) which arise out of the negligence, recklessness or misconduct of the
Consultant.
7.) Inventions.
(a) Consultant Original Works. The Consultant has identified on
Schedule A, attached hereto and incorporated herein by reference, a
complete list of all inventions or improvements which have been made or
conceived or first reduced to practice by the Consultant alone or
jointly with others prior to the date of this Agreement and which the
Consultant desires to exclude from the operation of this Agreement. If
there is no such list on Schedule A, the Consultant represents that the
Consultant has made no such inventions or improvements at the time of
signing this Agreement.
(b) Definition of Inventions. The term "INVENTIONS" for purposes of
this Agreement shall mean developments, designs, creations, code,
improvements, original works of authorship, formulas, processes,
know-how, techniques, inventions or other protectable proprietary
information or developments, whether or not protection has been
obtained or applied for under applicable laws.
(c) Disclosure of Inventions. The Consultant hereby agrees to disclose
promptly to the Company (or any persons designated by it) all
Inventions: (i) which are made or conceived or reduced to practice by
the Consultant, either alone or jointly with others,
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during the period of the Consultant's engagement by the Company under
this Agreement, or which are reduced to practice during the period of
twelve months following the termination of the Consultant's engagement,
that relate to or are useful in the present or future business of the
Company; or (ii) which result from tasks assigned the Consultant by the
Company under this Agreement, or from the Consultant's use of premises
or other resources owned, leased or contracted for by the Company.
(d) Ownership of Inventions. The Consultant agrees that all Inventions
described in Subsection 7(c) which the Company in its sole discretion
determines to be related to or useful in its business or its research
or development, or which result from work performed by the Consultant
for the Company, shall be the sole and exclusive property of the
Company and its assigns, and the Company and its assigns shall have the
right to use or to apply for patents, copyrights or other statutory or
common law protections for such Inventions in any and all countries.
The Consultant further agrees to assist the Company in every proper way
(but at the Company's expense) to obtain and from time to time enforce
patents, copyrights and other statutory or common law protections for
such Inventions in any and all countries. To that end, the Consultant
will execute all documents for use in applying for and obtaining such
patents, copyrights and other statutory or common law protections
therefor and enforcing the same, as the Company may desire, together
with any assignments thereof to the Company or to persons or entities
designated by the Company. The Consultant's obligations under this
Subsection 8(d) shall continue beyond the termination of the
Consultant's engagement by the Company, but the Company shall
compensate the Consultant at a reasonable rate after such termination
for time actually spent by the Consultant at the Company's request in
providing such assistance.
(e) Works for Hire. The Consultant hereby acknowledges that all
original works of authorship which are made by the Consultant (solely
or jointly with others) within the scope of the Consultant's engagement
which are protectable by copyright are "works for hire", as that term
is defined in the United States Copyright Act (17 U.S.C. Section 101).
(f) Power of Attorney. In the event the Company is unable, after
reasonable effort, to secure the Consultant's signature on any document
needed to apply for, obtain or enforce any intellectual property rights
relating to any Invention with respect to which the Consultant has made
an inventive contribution, whether because of the Consultant's
unavailability, or physical or mental incapacity, or for any other
reason whatsoever, the Consultant hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as the
Consultant's agents and attorneys-in-fact to act for and in the
Consultant's behalf and stead solely for and in connection with the
execution and filing of any such documents with the same legal force
and effect as if such acts were performed by the Consultant.
8.) Disclosure of Company Confidential Information.
(a) Definition of Confidential Information. For purposes of this
Agreement, "CONFIDENTIAL INFORMATION" means any information that is not
generally known to the
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public that relates to the existing or reasonably foreseeable business
of the Company which has been expressly or implicitly protected by the
Company or which, from all of the circumstances, the Consultant knows
or has reason to know that the Company intends or expects the secrecy
of such information to be maintained. Confidential Information
includes, but is not limited to, information contained in or relating
to pricing information, product designs, marketing plans or proposals,
customer, accounting or financial information, know-how, trade
practices, trade secrets and other proprietary information of the
Company, whether written, oral or communicated in another type of
medium, whether disclosed directly or indirectly, whether disclosed
prior to or during the term of this Agreement, whether disclosed before
or after the date of this Agreement, whether originals or copies, and
whether or not legal protection has been obtained or sought under
applicable law. The Consultant shall treat all such information as
Confidential Information regardless of its source and whether or not
marked as confidential.
(b) Consultant Shall Not Disclose Confidential Information. The Company
shall provide to the Consultant reasonable quantities of Confidential
Information concerning the Company and the Company's business from time
to time as requested by the Consultant. The Consultant will not, during
the term of this Agreement or following the termination of this
Agreement, use, show, display, release, discuss, communicate, divulge
or otherwise disclose Confidential Information to any person, firm,
corporation, association, or other entity for any reason or purpose
whatsoever, without the prior written consent or authorization of the
Company.
(c) Scope. The Consultant's covenant in the forgoing Subsection to not
disclose Confidential Information shall not apply to information which,
at the time of such disclosure, may be obtained from sources outside of
the Company, its agents, lawyers or accountants, so long as those
sources did not receive the information directly or indirectly as the
result of the Consultant's actions.
(d) Title. All documents or other tangible or intangible property
relating in any way to the business of the Company which are conceived
or generated by the Consultant or come into the Consultant's possession
during the term of this Agreement shall be and remain the exclusive
property of the Company and the Consultant agrees to return all such
documents, and tangible and intangible property, including, but not
limited to, all records, manuals, books, blank forms, documents,
letters, memoranda, notes, notebooks, reports, data, tables,
calculations or copies thereof, which are the property of the Company
or which relate in any way to the business, customers, products,
practices or techniques of the Company and all other property of the
Company, including, but not limited to, all documents which in whole or
in part contain any Confidential Information of the Company which in
any of these cases are in the Consultant's possession or under the
Consultant's control, to the Company upon the termination of this
Agreement, or at such earlier time as the Company may request.
(e) Compelled Disclosure. In the event a third party seeks to compel
disclosure of Confidential Information by the Consultant by judicial or
administrative process, the Consultant shall promptly notify the Board
of Directors of the Company of such
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occurrence and furnish to such Board of Directors a copy of the demand,
summons, subpoena or other process served upon the Consultant to compel
such disclosure, and will permit the Company to assume, at its expense,
but with the Consultant's cooperation, defense of such disclosure
demand. In the event that the Company refuses to contest such a
third-party disclosure demand under judicial or administrative process,
or a final judicial order is issued compelling disclosure of
Confidential Information by the Consultant, the Consultant shall be
entitled to disclose such information in compliance with the terms of
such administrative or judicial process or order.
9.) Consultant Representations and Warranties.
(a) No Breach of Prior Agreements. The Consultant represents and
warrants that performance of the terms of this Agreement as a
consultant of the Company does not and will not cause the Consultant to
breach any agreement, commitment or understanding the Consultant has
with any other party, whether formal or informal, to assign to such
other party inventions the Consultant may hereafter make, or to keep in
confidence proprietary information of such other party which the
Consultant acquired or learned prior to the Consultant's engagement by
the Company.
(b) Proprietary Information of Others. The Consultant represents and
warrants that the Consultant has not brought and will not bring to the
Company, or use for the benefit of the Company, any materials or
documents of a former employer (which, for purposes of this Section,
shall also include persons, firms, corporations and other entities for
which the Consultant has acted or is currently acting, as an
independent contractor or consultant) that are not generally available
to the public or to the trade, unless the Consultant has obtained
written authorization from any such person or entity permitting the
Consultant to retain and use said materials or documents. With respect
to any materials or documents that the Consultant may bring to the
Company for use in the course of the Consultant's engagement, the
Consultant hereby further represents and warrants that the Consultant's
use (or the Company's use) of such materials or documents will not
violate the intellectual property rights of any former employer of the
Consultant, or any other party.
(c) Work Permits and Visas. Consultant has or will obtain all necessary
work permits and visas necessary for it and its employees to perform
its duties hereunder.
10.) Subsequent Competition.
(a) Customers and Suppliers. During the Consultant's engagement by the
Company, and for a period of one year thereafter, the Consultant shall
not, either directly or indirectly, either alone or in concert with
others, solicit or entice or in any way divert any customer or supplier
of the Company as of the date of any such termination, to do business
with any business entity in competition with the Company, if the
Consultant's knowledge of the identity of, and other pertinent
information about, any such customer or supplier was learned by the
Consultant in the course and scope of the Consultant's engagement by
the Company, and could not otherwise be obtained from public sources or
records.
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(b) Business. During the Consultant's engagement by the Company, the
Consultant agrees not to plan or otherwise take any preliminary steps,
either alone or in concert with others, to set up or engage in any
business enterprise that would be in competition with the Company. For
a period of one year after termination of the Consultant's engagement,
the Consultant will not accept any employment or engage in any
activities which the Company determines in good faith to be competitive
with the Company, if the loyal and complete fulfillment of the duties
of the Consultant's competitive employment or activities would
inherently call upon the Consultant to disclose or use the contents of
the Company's Confidential Information, or any portion thereof, which
have been entrusted to the Consultant by the Company.
(c) Nature of Restrictions. Nothing contained in this Agreement shall
be construed to prevent the Consultant from engaging in a lawful
profession, trade or business after the termination of the Consultant's
engagement by the Company. This Agreement shall be construed only as
one which prohibits the Consultant from engaging in acts which are
unfair to the Company, and which are in violation of the confidence and
trust reposed in the Consultant by the Company with respect to its
Confidential Information and intellectual property.
11.) Solicitation of Company Employees. During the Consultant's
engagement by the Company, and for one year thereafter, the Consultant will not,
directly or indirectly, alone or in concert with others, solicit any of the
Company's employees for employment or other engagement by any other company
which is, by any reasonable standard, in competition with the Company. The
Consultant understands that the above restraint is necessary in order to reduce
the risk that the Company's Confidential Information will be disclosed to and
used by its competitors to its detriment.
12.) Subsequent Notification. Upon the termination of the Consultant's
engagement under this Agreement, the Consultant hereby authorizes the Company to
notify any other party, including without limitation, the Consultant's future
employers, future partners and customers of the Company, as to the existence of
this Agreement, and the existence of the Consultant's covenants and
responsibilities with respect to the Confidential Information entrusted to the
Consultant hereunder.
13.) Survival of Restrictive Covenants. The provisions of Sections 5,
6, 7, 8, 9, 10, 11 and 12 of this Agreement shall survive the expiration of the
term of the Consultant's engagement hereunder, and shall be binding upon the
Consultant following the termination of the Consultant's engagement under this
Agreement.
14.) Miscellaneous.
(a) Nondisclosure of Agreement. The parties agree that this Agreement,
and its terms and conditions, shall remain confidential and shall not
be disclosed by the Consultant to any person except by order of a court
of competent jurisdiction or with the written consent of the Company.
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(b) Entire Agreement; Modification. This Agreement constitutes the full
and complete understanding and agreement of the parties with respect to
the services to be provided by the Consultant to the Company, and
supersedes any prior or contemporaneous understanding or agreement,
whether written, oral or communicated in any other type of medium,
between the parties relating thereto. No amendment or modification of
any provision of this Agreement shall be binding unless made in writing
and signed by the parties hereto.
(c) Assignment. The rights and benefits of the Company and its
permitted assigns under this Agreement shall be fully assignable and
transferable to any other entity (subject to that entity's assumption
of the obligations hereunder): (i) which is an affiliate of the
Company, as that term is defined under federal securities law; or (ii)
which is not an affiliate and with which the Company has merged or
consolidated, or to which it may have sold substantially all its assets
in a transaction in which it has assumed the liabilities of the Company
under this Agreement. In the event of any such assignment or transfer,
all covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by or against the successors and assigns of the
Company. This Agreement shall not be assignable by the Consultant
without the prior written consent of the Company, but all obligations
and agreements of the Consultant hereunder shall be binding upon and
enforceable against the Consultant and Consultant's successors.
(d) Notices. To be effective, all notices, consents or other
communications required or permitted hereunder shall be in writing. A
written notice or other communication shall be deemed to have been
given hereunder: (i) if delivered by hand, when the notifying party
delivers such notice or other communication to the other party; (ii) if
delivered by facsimile or overnight delivery service, on the first
business day following the date of such notice or other communication
is transmitted by facsimile or timely delivered to the overnight
courier; or (iii) if delivered by mail, on the third business day
following the date such notice or other communication is deposited in
the U.S. mail by certified or registered mail addressed to the other
party. Mailed or faxed communications shall be directed as follows
unless written notice of a change of address or facsimile number has
been given in writing in accordance with this Section:
If to the Company: REDLINE PERFORMANCE PRODUCTS, INC.
0000 Xxxxxxx Xxx
Xxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxx Xxxxxxxx
Facsimile No. 000-000-0000
If to the Consultant: MAVERICK AND COMPANY BUSINESS
SOLUTIONS, LTD.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX X0X0X0
ATTN: Xxxxxx Xxxxxx
Facsimile No. 000-000-0000
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(e) Waiver. No waiver of any term, condition or covenant of this
Agreement by a party shall be deemed to be a waiver of any subsequent
breaches of the same or other terms, covenants or conditions hereof by
such party.
(f) Construction. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective or valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
(g) Titles. Titles to sections and subsections of this Agreement are
solely for convenience and do not modify or interpret any provisions
contained therein.
(h) Representation by Counsel; Interpretation. The Company and the
Consultant each acknowledge that they have been, or have had the
opportunity to be, represented by legal counsel in connection with this
Agreement and the matters contemplated by this Agreement. Accordingly,
any rule of law or any legal decision that would require interpretation
of any claimed ambiguities in this Agreement against the party that
drafted it has no application and is expressly waived. The provisions
of this Agreement shall be interpreted in a reasonable manner to effect
the intent of the parties.
(i) Arbitration. All disputes or claims arising out of or in any way
relating to this Agreement shall be submitted to and determined by
final and binding arbitration under the rules of the American
Arbitration Association. Arbitration proceedings may be initiated by
the Company or the Consultant upon notice to the other and to the
American Arbitration Association, and shall be conducted by three
arbitrators under the rules of the American Arbitration Association in
Minneapolis, Minnesota or such other location mutually agreed upon by
the parties; provided, however, that the Company and the Consultant may
agree following the giving of such notice to have the arbitration
proceedings conducted with a single arbitrator. The notice must
describe, in general, the issues to be resolved in any such arbitration
proceeding. The arbitrators shall be selected by agreement of the
Company and the Consultant from a list of ten or more arbitrators
proposed to the Company and the Consultant by the American Arbitration
Association, or may be persons not on such list as agreed to by the
Company and the Consultant. If the Company and the Consultant fail to
agree on one or more of the persons to serve as arbitrators within 15
days of delivery of the list as proposed by the American Arbitration
Association, then at the request of the Company or the Consultant such
arbitrators shall be selected at the discretion of the American
Arbitration Association. If the arbitrators shall determine that any
arbitration proceeding was commenced by a party frivolously or without
any basis, or primarily for the purpose of harassment or delay, the
arbitrators may assess such party the cost of such proceedings
including reasonable attorneys' fees of the other party. In all other
cases, each party to the arbitration proceedings shall bear its own
costs and its pro-rata share of its fees and expenses charged by the
arbitrators and the American Arbitration Association in connection with
any arbitration proceeding. Notwithstanding the foregoing, nothing
herein will prevent a party from seeking and obtaining equitable relief
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from a court of competent jurisdiction pending a final decision of the
arbitrators and the proper filing of such decision with such court.
(j) Governing Law; Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Minnesota,
without regard to such state's choice of law provisions. Actions or
proceedings litigated in connection with this Agreement, if any, shall
be venued exclusively in the state and federal courts located in the
county of Hennepin, State of Minnesota.
(k) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, and all such counterparts
shall constitute one instrument.
(signature page follows)
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement effective as of the day and year first above written.
COMPANY: CONSULTANT:
REDLINE PERFORMANCE PRODUCTS, INC. MAVERICK AND COMPANY BUSINESS
SOLUTIONS, LTD.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------------- --------------------------
Its: Vice President Its: President
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SCHEDULE A
LIST OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
----- ---- --------------------
NOTICE: Consultant's failure to include information in this Schedule shall be
deemed a "NONE" response.
NAME OF CONSULTANT:
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