CONSULTANT AGREEMENT
BETWEEN
GREASE MONKEY HOLDING CORPORATION,
A UTAH CORPORATION
AND
XXX X. XXXXXX
THIS CONSULTANT AGREEMENT is entered into February 5, 1997 by and between
Xxx X. Xxxxxx, an individual ("Xxxxxx") and Grease Monkey Holding Corporation, a
Utah corporation ("Grease Monkey").
1. CONSULTATION SERVICES. Grease Monkey hereby engages Xxxxxx to perform such
duties and services as may be assigned to him from time to time at the direction
or request of the President and CEO of Grease Monkey, provided that Xxxxxx shall
be obligated to perform only such services as do not materially interfere with
Xxxxxx'x ability to secure full-time employment with another company or business
endeavor.
2. TIME DEVOTED BY XXXXXX. Xxxxxx shall have sole control and discretion over
the time devoted to fulfilling his obligations under this Agreement; provided,
however, he shall devote such time as reasonably necessary to fulfill his duties
and services hereunder.
3. CONSULTING FEES. Grease Monkey will pay Xxxxxx a monthly consulting fee of
$16,071.00 at the end of each month. Grease Monkey shall report the consulting
fee on IRS form 1099.
4. EXPENSES. Grease Monkey will reimburse Xxxxxx at the end of each month for
reasonable business expenses which Grease Monkey determines were incurred by
Xxxxxx in connection with the performance of Xxxxxx'x duties and services
hereunder.
5. BENEFITS. As additional compensation hereunder, Grease Monkey shall
provide to Xxxxxx the medical benefits provided generally to Grease Monkey
employees. The consulting fee set forth in Paragraph 3 and the medical benefits
set forth in this Paragraph shall be the entire compensation payable to Xxxxxx
for his services hereunder. Grease Monkey shall not provide to Xxxxxx, any
additional benefits which Grease Monkey generally provides to its employees.
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6. INDEPENDENT CONTRACTOR. Both Grease Monkey and Xxxxxx agree that Xxxxxx
will act as an independent contractor in the performance of its duties under
this Agreement. Xxxxxx shall be responsible for payment of all taxes including
Federal, State and local taxes arising out of his activities in accordance with
this Agreement, including by way of illustration but not limitation, Federal and
State income tax, Social Security tax, Unemployment Insurance taxes, and any
other taxes or business license fees as required. Xxxxxx'x only compensation
shall be as provided in this Agreement. Grease Monkey shall not provide Xxxxxx
with any additional "fringe benefits" which may be available to its employees.
7. TERM OF AGREEMENT. The term of this Agreement shall be for two (2) years.
This Agreement will begin March 4, 1997 and will end March 3, 1999; provided,
however, Xxxxxx may terminate this agreement at any time by delivering written
notice of such to Grease Monkey fifteen (15) days prior to the effectiveness of
such termination; and provided, further, that Grease Monkey may terminate this
agreement for cause by delivering written notice of such termination with
reference to the cause thereto to Xxxxxx fifteen (15) days prior to the
effectiveness of such termination. "For cause" as such term is used in this
Paragraph, shall mean (i) a conviction of Xxxxxx of a felony (whether or not
such conviction is subject to appeal), (ii) fraud (iii) misappropriation of any
property or business of Grease Monkey or intentional damage to any property or
business of Grease Monkey, (iv) default of any term or obligation of this
Agreement, (v) death of Xxxxxx or illness or incapacity of Xxxxxx for a period
of more than eight consecutive weeks, or (vi) dishonesty, gross neglect of duty,
disparagement of Grease Monkey or other intentional acts or omissions which
negatively and materially impact or impair Grease Monkey's ability to conduct
its ordinary business in its usual manner.
Notwithstanding the foregoing, Xxxxxx shall not be deemed to have been
terminated for cause unless and until there shall have been delivered to him a
copy of a resolution adopted by the majority vote of not less than the entire
membership of the Board of Directors of Grease Monkey finding that in the good
faith opinion of the Board that Xxxxxx is guilty of the conduct set forth above.
Xxxxxx shall be given written notice of the meeting and grounds for possible
termination of this Agreement and together with his counsel shall be given the
opportunity to be heard before the Board.
Grease Monkey may terminate this Agreement at any time by delivering
written notice of such to Xxxxxx fifteen (15) days prior to the effectiveness
of such termination, but any termination other than for cause shall require the
immediate payment of the entire balance of the consulting fees under this
Agreement from the date of termination to the end of the term of this Agreement.
8. OTHER BUSINESS OF XXXXXX. It is recognized by Grease Monkey that Xxxxxx
may conduct business or become employed by a company that is entirely separate
from Grease Monkey's business, and nothing in this agreement shall be construed
to limit Xxxxxx'x
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freedom to continue any other business; provided, however, Xxxxxx shall
continue to devote his best efforts to the performance of his duties and
services hereunder and provided, further, such businesses or employment shall
not be in direct competition with Grease Monkey or otherwise violate the
terms of the non-competition covenant set forth below. Nothing in this
Agreement shall preclude Xxxxxx from acquiring, becoming employed by, or
securing a franchise for the operation of one or more existing or future
Grease Monkey stores; provided, however, Xxxxxx hereby acknowledges that no
agreements or understandings exist with respect to Xxxxxx'x acquiring,
becoming employed by, or securing a franchise for the operation of one or
more existing or future Grease Monkey stores.
9. PROPRIETARY INFORMATION. Xxxxxx shall use his best efforts to preserve and
protect the confidentiality of all proprietary and confidential information
regarding Grease Monkey and its affiliates which he obtains or of which he
otherwise becomes aware during the course of providing the services described in
this Agreement or which he obtained or became aware of during the course of his
prior employment by Grease Monkey (other than information that is already
publicly available or which he may be required by law to disclose)
("Confidential Information"). Xxxxxx shall not disclose any Confidential
Information to any entity other than (i) Grease Monkey's employees or its
designated agents, or (ii) other than as necessary in the ordinary course of
business. Xxxxxx acknowledges that the Confidential Information is a unique and
valuable asset of Grease Monkey, represents a substantial investment of time and
expense by Grease Monkey, and that any disclosure or other use of such
information other than for the benefit of Grease Monkey would cause irreparable
harm.
10. RECORDS. Xxxxxx will keep complete, accurate and authentic accounts,
notes, data and records ("Records") of his actions. The Records shall be the
property of Grease Monkey. Upon request, Xxxxxx will promptly deliver the
Records to Grease Monkey. Upon termination of this Agreement, Xxxxxx shall
deliver promptly to Grease Monkey all Records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables,
calculations or copies thereof, which relate in any way to the business,
property, practices or techniques of Grease Monkey, including, but not limited
to, all documents which in whole or in part contain any Confidential
Information.
11. NON-COMPETITION COVENANT.
a. AGREEMENT NOT TO COMPETE. Xxxxxx agrees that, during the term of this
Agreement he shall not, without the express written consent of Grease Monkey,
engage in competition with Grease Monkey, directly or indirectly, in any manner
or capacity (e.g., as an advisor, principal, agent, partner, officer, director,
stockholder, employee, member
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of any association, or otherwise) in any phase of any business of a type
conducted by Grease Monkey.
b. GEOGRAPHIC EXTENT OF COVENANT. The obligations of Xxxxxx under this
section 10 shall apply to all counties in which a Grease Monkey store or
franchise is operated.
c. INDIRECT COMPETITION. Xxxxxx further agrees that, during the term of
this Agreement, he will not, directly or indirectly, assist or encourage any
other person in carrying out, directly or indirectly, any activity that would be
prohibited by the above provisions of this Section 10 if such activity were
carried out by Xxxxxx, either directly or indirectly.
d. FRANCHISE OPERATION. Nothing in this covenant not to compete shall
preclude Xxxxxx from becoming an advisor, principal, agent, partner, officer,
director, stockholder, employee or otherwise associating with any present or
future franchisee for the operation of one or more Grease Monkey stores;
provided, however, Xxxxxx hereby acknowledges that no agreements or
understandings exist with respect to Xxxxxx'x acquiring, becoming associated
with, or securing a franchise for the operation of one or more existing or
future Grease Monkey stores.
12. MUTUAL RELEASE. Xxxxxx, for himself, his heirs, successors and assigns,
hereby releases and forever discharges Grease Monkey, its affiliated
corporation, successors and assigns, together with its respective agents,
servants, directors, officers (whether acting in their individual or official
capacities), members, employees, managers, shareholders, trustees, attorneys and
representatives, from any and all claims, actions, causes of action, suits,
demands, covenants, contracts or promises of every nature, character and
description, asserted or unasserted, known or unknown, which Xxxxxx ever had,
now has or may have in the future, for or by reason of any act, omission,
matter, cause or thing whatsoever occurring or arising from his employment or
consulting relationship with Grease Monkey. Xxxxxx agrees not to institute any
claim for damages, by charge or otherwise, nor authorize any other party,
governmental or otherwise, to institute any claim for damages via administrative
or legal proceedings against Grease Monkey, its affiliated corporation,
successors and assigns, together with its respective agents, servants,
directors, officers (whether acting in their individual or official capacities)
members, employees, managers, shareholders, trustees, attorneys and
representatives, for any such claims including, but not limited to, any claims
arising under or based upon any claim for wages, compensation or any other claim
arising under the Colorado Revised Statues, Title VII of the 1964 Civil Rights
Act (42 U.S.C. Section 2000, ET SEQ.), the Americans with Disability Act (42
U.S.C. Section 121 01, ET SEQ), or any contract, quasi contract or tort claims,
whether developed or undeveloped, arising from or related to Grease Monkey's
hiring of Xxxxxx, Xxxxxx'x employment with Grease Monkey, and the cessation of
Xxxxxx'x employment with Grease Monkey. Similarly, Grease Monkey and any other
person or entity released under this Agreement, covenants not to commence any
action for damages or losses for any reason
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or theory whatsoever, based upon any acts of Xxxxxx occurring prior to the
date of this Agreement. The provisions of this Paragraph 12 shall survive
any termination of this Agreement.
13. SHAREHOLDER RIGHTS. Nothing in this Agreement shall impair, limit or
infringe upon Xxxxxx'x rights as a shareholder of Grease Monkey. All options or
rights previously granted to Xxxxxx with respect to Grease Monkey stock shall
remain in effect throughout the term of this Agreement. Further, all employee
benefits such as 401 (k) plans or otherwise which would fully or partially vest
with the passage of time shall continue to vest in accordance with the plan
terms as if Xxxxxx were in the employ of the company throughout the term of this
Agreement.
14. ARBITRATION. Any dispute or the application of interpretation of this
Agreement shall be resolved pursuant to final and binding arbitration. The
arbitration shall be conducted pursuant to the American Arbitration Association
rules governing labor arbitration. The decision of the arbitrator shall be
final and binding on both parties and shall be appealable only pursuant to the
terms of the Colorado Arbitration Act, C.R.S. Section 00-00-000, ET SEQ. In
the event of an arbitration pursuant to this provision, the parties agree that
the loser will pay 100% of the arbitrator's fees plus reasonable attorneys' fees
and costs incurred by the winner. The determination of who is the winner and
the loser shall be made by the arbitrator and the arbitrator shall not have the
authority to declare neither or both sides the winner. Furthermore, the
determination of attorneys' fees and costs to be paid to the winner shall be
made by the arbitrator.
15. MISCELLANEOUS.
a. COUNTERPARTS. This Agreement may be executed in several counterparts,
and all so executed shall constitute one Agreement, binding on all parties
hereto, notwithstanding that all of the parties are not signatories to the
original or the same counterpart.
b. ASSIGNMENT. The agreement of Xxxxxx to render services hereunder is
personal in nature and shall not be assignable by Xxxxxx. The rights and
benefits of Xxxxxx under this Agreement shall not be subject to voluntary or
involuntary alienation, assignment or transfer. The terms and provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
successors and permissible assigns of the respective parties.
c. ENTIRE AGREEMENT. This Agreement is the entire agreement between
Xxxxxx and Grease Monkey pertaining to the subject matter hereof and supersedes
any and all prior negotiations, agreements, understandings and dealings
pertaining to the subject matter hereof, whether written or oral.
d. AMENDMENTS AND MODIFICATIONS. This Agreement cannot be changed
orally,
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and no agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such agreement is in writing and is signed by the
parties against whom enforcement of any waiver, change, modification or
discharge is sought.
e. SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall nonetheless remain in full force and effect.
f. EFFECT OF HEADINGS. Paragraph titles or captions contained in this
Agreement are inserted only as a matter of convenience and for reference. Such
titles and captions in no way define, limit, extend or describe the scope of
this Agreement nor the intent of any provision hereof.
g. GOVERNING LAW. The parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with the substantive laws of
the State of Colorado.
h. NOTICES. All notices provided for hereunder shall be in writing and
shall be deemed given and received (a) when personally delivered; (b)
transmitted by facsimile transmission, provided sender obtains an electronic
confirmation and also delivers a copy by mail or personal delivery, or (c)
forty-eight (48) hours after the same are deposited in the United States mail,
postage prepaid, registered or certified mail, return receipt requested,
addressed to the applicable party at the following address: (i) if to Xxxxxx, to
0000 X. Xxxxxx Xxxxx, Xxxxxx Xxxxxxxx 00000 and (ii) if to Grease Monkey, then
to 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, or at such other
address as he may designate from time to time.
IN WITNESS WHEREOF, the parties have executed this Consultant Agreement as
of the day and year first above written.
Grease Monkey Holding Corporation, a
Utah corporation
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Xxxxx X. Xxxxxxx, Chairman
By: /s/ XXX X. XXXXXX
---------------------------------
Xxx X. Xxxxxx
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