CONSULTING AGREEMENT
Effective
May 14, 2008, Xxxxx X. Xxxxxx ("Consultant")
and
Organic To Go, Inc., a Delaware corporation ("Company")
agree
as follows:
1. Services
and Payment. Consultant
shall undertake and complete the services (as described on Exhibit
A)
in
accordance with and on the schedule specified on Exhibit
A
(the
“Services”).
As
the only consideration due Consultant regarding the subject matter of this
Agreement, Company will pay Consultant in accordance with Exhibit
A.
2. Ownership;
Rights; Proprietary Information; Publicity.
a. Company
shall own all right, title and interest (including patent rights, copyrights,
trade secret rights, trademark rights, and all other intellectual and industrial
property rights of any sort throughout the world) relating to any and all
inventions (whether or not patentable), works of authorship, designations,
designs, know-how, ideas and information made or conceived or reduced to
practice, in whole or in part, by Consultant in connection with Services or
any
Proprietary Information (as defined below) (collectively, "Inventions")
and
Consultant will promptly disclose and provide all Inventions to Company. All
Inventions are work made for hire to the extent allowed by law and, in addition,
Consultant hereby makes all assignments necessary to accomplish the foregoing
ownership. Consultant shall assist Company, at Company's expense, to further
evidence, record and perfect such assignments, and to perfect, obtain, maintain,
enforce, and defend any rights assigned. Consultant hereby irrevocably
designates and appoints Company as her agent and attorney-in-fact, coupled
with
an interest, to act for and on Consultant's behalf to execute and file any
document and to do all other lawfully permitted acts to further the foregoing
with the same legal force and effect as if executed by Consultant.
b. All
Inventions and all other business, technical and financial information
(including, without limitation, the identity of and information relating to
customers or employees) that Consultant learns, develops or obtains in
connection with the Services or that are received by or for Company in
confidence, constitute "Proprietary
Information”.
Consultant shall hold in confidence and not disclose or, except in performing
the Services, use any Proprietary Information. However, Consultant shall not
be
obligated under this paragraph with respect to information that Consultant
can
document is or becomes readily publicly available without restriction through
no
fault of Consultant. Upon termination and as otherwise requested by Company,
Consultant shall promptly return to Company all items and copies containing
or
embodying Proprietary Information, except that Consultant may keep her personal
copies of her compensation records and this Agreement. Consultant has no
expectation of privacy with respect to Company's telecommunications, networking
or information processing systems (including, without limitation, stored
computer files, e-mail messages and voice messages) and Consultant's activity,
and any files or messages, on or using any of those systems may be monitored
at
any time without notice; provided that Consultant has an expectation of privacy
with respect to his networking or information processing systems (including,
without limitation, computer(s) which he owns, stored computer files and e-mail
messages) and Consultant's activity, and any files or messages, on or using
any
of those systems may not be monitored or viewed by Company at any
time.
c. As
additional protection for Proprietary Information, during the period that
Consultant provides the Services and for one (1) year thereafter, Consultant
will not (i) encourage or solicit any employee or consultant of Company to
leave
Company for any reason, provided however, that Consultant may hire Xxxxx Xxxxxxx
and Xxxxx Xxxxxxxx upon termination of this Agreement, (ii) engage in any
activity that is in any way competitive with the proposed business of Company
or
(iii) assist any other person or organization in competing or in preparing
to
compete with the proposed business of Company. Without limiting the foregoing,
Consultant may perform services for any person, provided that (i) such person
is
not a restaurant or cafe within a two (2) block radius of a location of a
business owned by Company as of the date of this Agreement or a business
purchased under the Agreement
of Purchase and Sale of Assets among FPO,
Inc., a Washington corporation doing business as “Mel’s Market,” “Mel’s
Delivery,” “Joelle’s,” “Soups du Jour” and “Simon’s,” Xxxxx
X.
Xxxxxx, Company and Organic to Go Food Corporation, a Delaware corporation,
dated as of May
14,
2008,
(ii)
such
person does not provide catering or food delivery in King County, Washington
and
(iii) such services do not represent a conflict of interest or a breach of
Consultant’s obligation under this Agreement or otherwise.
d. To
the
extent allowed by law, Section 2(a) and any license to Company hereunder
includes all rights of paternity, integrity, disclosure and withdrawal and
any
other rights that may be known as or referred to as "moral rights," "artist's
rights," "droit moral," or the like. Furthermore, Consultant agrees that
notwithstanding any rights of publicity, privacy or otherwise (whether or not
statutory) anywhere in the world and without any further compensation Company
may and is hereby authorized to use Consultant's name in connection with
promotion of its business, products and services.
e. If
any
part of the Services or Inventions is based on, incorporates, or is an
improvement or derivative of, or cannot be reasonably and fully made, used,
reproduced, distributed and otherwise exploited without using or violating
any
other technology or intellectual property rights owned or licensed by Consultant
and not assigned hereunder, Consultant hereby grants Company and its successors
a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable
right and license to exploit and exercise all such technology and intellectual
property rights in support of Company's exercise or exploitation of the
Services, Inventions, other work performed hereunder, or any assigned rights
(including any modifications, improvements and derivatives of any of
them).
3. Warranty.
Consultant warrants that: (a) the Services will be performed in a professional
and workmanlike manner and that none of such Services or any part of this
Agreement is or will be inconsistent with any obligation Consultant may have
to
others; (b) all work under this Agreement shall be Consultant's original work
and none of the Services or Inventions nor any development, use, production,
distribution or exploitation thereof will infringe, misappropriate or violate
any intellectual property or other right of any person or entity (including,
without limitation, Consultant); and (c) Consultant has the full right to
provide the Company with the assignments and rights provided for
herein.
4. Termination.
a. This
Agreement shall terminate automatically on May 14, 2009.
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b. If
either
party materially breaches a material provision of this Agreement, the other
party may terminate this Agreement upon not less than ten (10) days' notice,
unless the breach is cured within the notice period.
c. Company
may terminate this Agreement at any time, with or without Cause (as defined
below) upon not less than thirty (30) days' notice, but, if (and only if):
(i)
such termination is without Cause and (ii) Consultant signs a written release
of
all claims against Company arising from Consultant’s Services under this
Agreement and the termination of this Agreement, then Company shall continue
to
pay Consultant or his personal representative the monthly fee for the Services
until May 14, 2009.
d. Company
may terminate this Agreement due to Consultant’s death or a period of disability
for ninety (90) days during the term of this Agreement.
e. For
purposes of this Agreement, “Cause”
shall
mean:
(i) An
unauthorized use or disclosure by Consultant of the Company’s confidential
information or trade secrets, which use or disclosure causes material harm
to
Company;
(ii) Consultant’s
theft of Company assets; or
(iii) Consultant’s
conviction of, or plea of “guilty” or “no contest” to, a felony under the laws
of the United States or any state thereof which causes material harm to
Company.
This,
however, shall not be an exclusive list of all acts or omissions that Company
may consider as grounds for termination for Cause.
f. Sections
2 through 8 of this Agreement and any remedies for breach of this Agreement
shall survive any termination or expiration. Company may communicate the
obligations contained in this Agreement to any other (or potential) client
or
employer of Consultant.
5. Relationship
of the Parties; Independent Contractor; No Employee
Benefits.
Notwithstanding any other provision hereof to the contrary, Consultant is an
independent contractor and is not an employee, agent, partner or joint venturer
of Company and shall not bind or attempt to bind Company to any contract.
Consultant shall accept any reasonable directions issued by Company pertaining
to the goals to be attained and the results to be achieved by Consultant, but
Consultant shall be solely responsible for the manner and hours in which the
Services are performed under this Agreement. Consultant shall not be eligible
to
participate in any of Company’s employee benefit plans, fringe benefit programs,
group insurance arrangements or similar programs. Company shall not provide
workers’ compensation, disability insurance, Social Security or unemployment
compensation coverage or any other statutory benefit to Consultant. Consultant
shall comply at Consultant’s expense with all applicable provisions of workers’
compensation laws, unemployment compensation laws, federal Social Security
law,
the Fair Labor Standards Act, federal, state and local income tax laws, and
all
other applicable federal, state and local laws, regulations and codes relating
to terms and conditions of employment required to be fulfilled by employers
or
independent contractors. Consultant shall indemnify Company from any and all
claims, damages, liability, settlement, attorneys’ fees and expenses, as
incurred, on account of the foregoing or any breach of this Agreement or any
other action or inaction of Consultant.
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6. Assignment.
This
Agreement and the Services contemplated hereunder are personal to Consultant
and
Consultant shall not have the right or ability to assign, transfer, or
subcontract any obligations under this Agreement without the written consent
of
Company. Any attempt to do so shall be void. Company may assign its rights
and
obligations under this Agreement in whole or in part.
7. Notice.
All
notices under this Agreement shall be in writing, and shall be deemed given
when
personally delivered, or three days after being sent by prepaid certified or
registered U.S. mail to the address of the party to be noticed as set forth
herein or such other address as such party last provided to the other by written
notice.
8. Miscellaneous.
Any
breach of Section 2 or 3 of this Agreement will cause irreparable harm to
Company for which damages would not be an adequate remedy, and, therefore,
Company will be entitled to injunctive relief with respect thereto in addition
to any other remedies. The failure of either party to enforce her or its rights
under this Agreement at any time for any period shall not be construed as a
waiver of such rights. This Agreement constitutes the entire agreement between
the parties pertaining to its subject matter, and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties
with respect to such subject matter. No changes or modifications or waivers
to
this Agreement will be effective unless in writing and signed by both parties.
If any provision of this Agreement shall be determined to be illegal or
unenforceable, that provision will be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force
and
effect and enforceable. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without regard to the
conflicts of laws provisions thereof. In any action or proceeding to enforce
rights under this Agreement, the prevailing party will be entitled to recover
costs and attorneys fees. Headings herein are for convenience of reference
only
and shall in no way affect interpretation of the Agreement.
9. Arbitration.
Any
controversy or claim (except those regarding Inventions, Proprietary Information
or intellectual property) arising out of or relating to this Agreement, or
the
breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof, provided however, that each party will have a
right
to seek injunctive or other equitable relief in a court of law. The prevailing
party will be entitled to receive from the nonprevailing party all costs,
damages and expenses, including reasonable attorneys’ fees, incurred by the
prevailing party in connection with that action or proceeding, whether or not
the controversy is reduced to judgment or award. The prevailing party will
be
that party who may be fairly said by the arbitrator(s) to have prevailed on
the
major disputed issues. Consultant hereby consents to the arbitration in the
State of Washington in the county of King.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first set forth above.
| ORGANIC TO GO, INC. | ||||
| a Delaware corporation | ||||
|
/s/
Xxxxx X. Xxxxxx
|
By: |
/s/
Xxxxx Xxxxx
|
||
|
XXXXX X. XXXXXX |
Xxxxx Xxxxx, Chief Executive Officer |
|||
| Address: |
The
Xxxxxx Group
0000
0xx
Xxxxxx, Xxxxx 00
Xxxxxxx,
XX 00000
|
Address: |
0000
0xx Xxxxxx X, Xxxxx X
Xxxxxxx,
XX 00000
|
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EXHIBIT
A
TO
SERVICES
Consultant
shall spend forty (40) hours
per
month during the four-month period commencing the date of this Agreement and
twenty (20) hours per month during the subsequent eight-month period. Consultant
shall be permitted to take up to four (4) weeks of vacation during the term
of
this Agreement, provided that (i) such vacation is scheduled in advance at
times
which do not interfere with Company’s operations, (ii) no vacation is taken
during the ninety (90) day period commencing the date of this Agreement and
(iii) not more than ten (10) consecutive business days of vacation are taken
at
any one time.
CONSULTING
FEE
$8,333.33
per month paid in arrears on the 1st day of each calendar month, prorated for
any partial calendar month. The consulting fee shall continue to be payable
during the term of this Agreement regardless of Consultant’s death or
disability.
EXPENSES
Subject
to the limitation provided below, Company shall reimburse Consultant for all
reasonable expenses incurred by Consultant (including travel related expenses,
and overtime if any) in performing the services in the same manner and to the
same extent that Company reimburses or pays such expenses and overtime if any
incurred by its senior management employees in accordance with its own policies
and procedures. Advance written approval is required for any expense greater
than One Hundred Dollars ($100).
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