Exhibit 10.6
INDEPENDENT CONTRACTOR
NON-DISCLOSURE AND
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made as of the 13th day of October, 2005, between SPEAKING
ROSES INTERNATIONAL, INC., an Utah Corporation, ("Company"), and Xxxxx Xxxx
("Contractor").
RECITALS:
A. Company is engaged in developing ideas, concepts, characters, literature,
programs, processes, patents and methods designed to promote processes and
products in the decoration industry. In particular, Company has developed
processes whereby letters, characters, information, and pictures can be applied
to organic matter such as flowers, fruit, consumable foods, and other organic
materials as well as complete processes for selling, obtaining orders,
processing and potentially applying to or embossing upon other items of a
non-organic nature. All of such items are hereafter collectively referred to
herein as "the Product."
B. Contractor desires to provide services to the Company as an independent
contractor.
C. Contractor desires to review the Product as well as any other ideas and
concepts of Company relating to applying or embossing of letters, characters,
information, and pictures upon any item and may thereafter seek a license from
Company to use the Product and other ideas, programs, patents, methods or
trademarks held by Company ("the Disclosure Purpose"). Company is willing to
disclose the information described in these Recitals, and as otherwise described
herein, but only following the execution of this Agreement by Contractor and
upon compliance with the terms hereof.
NOW THEREFORE, in consideration of the mutual promises and covenants herein, the
parties agree as follows:
1. Compensation and Services.
(a) As full and complete consideration for the services described in Section
1(b), the Company will issue to Contractor shares of its common stock in amount
as determined in Exhibit A. The shares will be issued without registration under
the Securities Act of 1933, as amended, and will bear a restrictive legend
limiting transfer.
(b) Contractor will provide consulting services as needed relating to the
formation of the Company's business model and strategies. As requested,
Contractor will meet with brokers, analysts, investment bankers and potential
investors.
(c) As consideration for entering into this Agreement, the Company shall pay to
Contractor the amount of $50,000 determined as set forth in Exhibit A and shall
issue an additional 150,000 shares of its common stock.
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2. Proprietary Information. All information pertaining to the Product and any
other ideas or concepts of the Company pertaining to embossing including, but
not limited to, all or portions of the following types of information which may
be provided by Company shall be considered "Proprietary Information."
(a) Any financial information regarding the business operations of Company,
including but not limited to, financial statements, including balance sheets,
profit and loss statements, budgets, projections, revenue and expense
projections, cost information, pricing, sources of supply, tax returns, profit
margins, lease terms or other supporting documentation pertaining to any of such
information.
(b) All policies, processes, procedures, sales data or statistics, manufacturing
methods, patents, trademarks or trade names, trade dress concepts, technical
data, corporate or business opportunities, marketing ideas, records, and
procedures, profit margins, advertising concepts or ideas, customer lists,
concepts or ideas, the content of any magazine or other publication of Company
(whether in print media, electronic form or available through an Internet or
Intranet site) and any other information which is not generally known outside of
Company, whether existing at the time of execution of this Agreement or
developed in whole or in part hereafter.
(c) Contractor acknowledges that none of the Proprietary Information is in the
public domain or is otherwise susceptible to general public use.
(d) Nothing herein shall be deemed to grant any license or other right to use
any of the Proprietary Information beyond its use by Contractor pursuant to this
Agreement to evaluate whether Contractor wishes to use the Product or any other
program or materials of Company. The right to further use by Contractor of any
Proprietary Information shall be made only upon a separate license granted by
Company and upon the terms and conditions set forth therein.
(e) The type and extent of the Proprietary Information to be disclosed shall be
at the discretion of Company. Contractor shall have no right to require
disclosure of specific items of Proprietary Information.
3. Confidentiality. Contractor will hold the Proprietary Information in strict
confidence and will not further disclose the same to any other party or person
without the prior written consent of Company. Notwithstanding the limitations
imposed by this Agreement, Contractor may disseminate the Proprietary
Information to employees of Contractor or other third parties associated with
Contractor in any capacity who are directly assisting or are anticipated to
assist or participate with Contractor in connection with the evaluation of use
of the Character or related marks or other Proprietary Information in connection
with Companies owned or operated by Contractor ("the Disclosure Purpose").
Provided however, any such employees or third parties shall similarly hold the
Proprietary Information in confidence and shall not further disclose the same
without the prior written consent of Company. Contractor shall further inform
those employees or third parties to whom Proprietary Information is provided of
the obligations contained in this Agreement.
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4. Return of Information. Upon the conclusion or completion of the Disclosure
Purpose, the Proprietary Information shall be returned to Company. Such return
of Proprietary Information shall include all documents, notes, drawings,
specifications, programs, processes, data, and all copies thereof, whether in
hard copy or any electronic media form. Contractor shall not retain any copy,
summary or other reproduction of any of the Proprietary Information, in either
print media or electronic form. Provided further, Contractor shall make no use
of the Proprietary Information in any manner detrimental to Company during the
time Contractor holds the Proprietary Information or thereafter, including, but
not limited to, (i) solicitation of the customers or Contractors of Company or
(ii) use of the Proprietary Information to obtain any competitive advantage over
Company.
5. Miscellaneous.
5.01 Amendments. This Agreement may not be changed, waived, discharged or
terminated orally, but only by an instrument in writing, signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
5.02 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Utah. It is agreed that
venue for any action relating to this matter shall be in Salt Lake County, Utah.
5.03 Injunction; Attorney Fees. This Agreement may be specifically enforced.
Damages for breach of this Agreement may also be awarded to Company. The parties
agree that in any action for specific enforcement that no party shall assert as
a defense that any other party has an adequate remedy at law for damages. In the
event that any party is successful in any suit or proceeding brought or
instituted by it to enforce any of the provisions of this Agreement or on
account of any damages sustained by any party by reason of the violation by the
other party of any of the terms or provisions of this Agreement to be performed
by such party, the prevailing party shall recover its reasonable attorney fees
and costs from the non-prevailing party as determined by the court, including
such on appeal.
5.04 Waiver. A waiver of any term or covenant must be in writing and signed by
the party against whom such waiver is asserted. A waiver in one instance shall
not be deemed a continuing waiver nor restrict the ability of any party to
insist upon full and complete performance of that term or covenant in the
future.
5.05 Integration. This Agreement shall supersede and be in lieu of all other
agreements and understandings, whether written or oral, and contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may only be amended or modified in a further written agreement signed by all
parties hereto.
5.06 Binding Effect. The terms, covenants, conditions and restrictions contained
in this Agreement shall be binding upon the successors and assigns of the
parties hereto. This Agreement is specifically binding upon any other persons or
entities, which have any relationship with Contractor, including but not limited
to franchise holders, joint venturers or partners. Contractor shall require
adherence from such third parties to the terms of this Agreement and further
agrees to indemnify, defend and hold Company harmless for damages and costs
suffered by Company as a result of a breach hereof by such third parties.
5.07 Continuing Effect. The terms hereof shall survive the end of the term
hereof or completion of the Disclosure Purpose and shall continue to be binding
thereafter.
5.08 Termination. This Agreement may be terminated by either party by giving 30
days written notice.
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________________________________________________________________________________
This Agreement is executed as of the date stated above.
Contractor: Xxxxx Xxxx Speaking Roses International, Inc.
Signature:/s/Xxxxx Xxxx Signature: /s/Xxxx X. Xxxxxxxxxxxx
Chief Executive Officer
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EXHIBIT A
1. Compensation shall be determined on the following schedule:
a. Full day (6-10 hours) at $1750.00 per day
b. Half day (3-6 hours) at $1000.00 per half day
c. Hourly (if less than 3 hours) at $250.00 per hour
2. Contractor shall be paid in common stock of the Company valued at 80% of the
closing price at the end of the previous week.
3. Common Stock shall be issued quarterly.
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