EXECUTION COPY
CONSULTING AGREEMENT, dated as of April 3, 2006 (the
"AGREEMENT"), between Midnight Holdings Group, Inc., a
Delaware corporation (the "CORPORATION"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(the "CONSULTANT").
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The Corporation wishes to engage Consultant, and Consultant wishes to
be engaged by the Corporation, pursuant to the terms set forth in this
Agreement.
The parties desire to set forth the terms upon which the Consultant
will be engaged by the Corporation.
1. WORKING RELATIONSHIP.
(a) SERVICES. The Corporation hereby engages the Consultant
to perform, and the Consultant shall perform for the Corporation, services as
are described in EXHIBIT A (attached hereto and incorporated herein) (the
"SERVICES"). The Consultant shall perform all of the Services in a professional
and diligent manner, in accordance with all applicable laws, and in accordance
with all policies and standards of the Corporation. The Consultant will devote
twenty (20) hours per week to the performance of the Services during the term of
this Agreement. In connection with the performance of the Services, the
Consultant will report to and follow the direction of the Corporation's
President and Chief Executive Officer (the "CEO"). Upon prior written approval
of the CEO, the Consultant may devote additional hours to the performance of the
Services during the term of this Agreement.
(b) INDEPENDENT CONTRACTOR. Notwithstanding any term or
provision in this Agreement to the contrary, the Consultant is an independent
contractor with respect to the performance of the Services, and not an employee
or agent of the Corporation, and neither the Corporation nor the Consultant
shall be liable for or bound by, contractually or otherwise, any representation,
act or omission of the other party in connection with the performance of the
Services. The Consultant agrees not to take any action which leads, or could
reasonably be expected to lead, a third party to believe that the Consultant has
the power or authority to bind or otherwise obligate the Corporation in
connection with the performance of the Services, except with the prior written
consent of the Corporation, which may be withheld in its sole discretion.
2. COMPENSATION; TERMS OF COMPENSATION.
(a) In consideration of the Consultant's performance of his
duties and obligations under this Agreement (including, without limitation, the
Services) the Corporation will:
(i) pay the Consultant at a rate of US$6,666 per pay
period for Services performed during the term of this Agreement, which
represents a rate of US$159,984 per calendar year. Payments of consulting fees
shall be made at the end of each of the
Corporation's pay periods during which the Consultant performed the Services. It
being understood that the Corporation has 24 pay periods during a calendar year.
Consulting fees for any partial period shall be prorated;
(ii) pay the Consultant at a rate of US$125 per hour
for any Services performed during any given week above the requisite twenty (20)
hours per week during the term of this Agreement. The Consultant will invoice
the Corporation for the consulting fees in this Section 2(a)(ii), in a form
reasonably satisfactory to the Corporation, and the Corporation agrees to pay
such invoices on a monthly basis after receipt thereof. Consulting fees for any
partial period shall be prorated;
(iii) reimburse the Consultant for his reasonable
travel and other expenses incurred in connection with the performance of the
Services, as are evidenced by receipt or other appropriate written evidence of
such expenditures as required by the Corporation); PROVIDED, HOWEVER, that the
Consultant shall obtain the written consent of the Corporation prior to
incurring any aggregate expenses in any calendar month in excess of US$3,000, in
connection with the performance of the Services; and,
(iv) grant the Consultant a warrant to purchase
150,000 shares of common stock, par value $0.00005 per share of the Corporation,
exercisable from July 1, 2006 to July 1, 2010 at an exercise price of $1.00 per
share with a "cashless" exercise provision.
(b) The Consultant shall be responsible for keeping accurate
records of all work performed and such records shall be subject to review and
final approval by the Corporation in its sole discretion for purposes of
determining compliance with the provisions in clauses (i) through (iii) of
Section 2(a).
3. TERMINATION OF AGREEMENT. The term of this Agreement shall
commence on the date hereof and shall terminate upon thirty (30) days written
notice to the other party. In the event of termination, the Consultant shall be
entitled to payment for Services performed prior to the effective date of
termination.
4. COVENANTS.
(a) For purposes of this Section 4, the following terms
shall have the following definitions.
(i) "BUSINESS" means any business or activity in
which the Corporation or any of its subsidiaries or affiliates is engaged, or is
actively preparing to engage, during the term of this Agreement, including,
without limitation, the operation and service of retail automobile aftermarket
products and auto concierge service centers.
(ii) "COMPETITIVE ACTIVITIES" means the following
activities or businesses (i) developing, producing, marketing, selling or
distributing products or services which compete with the Business, operations or
activities of the Corporation or any of its subsidiaries or affiliates, (ii)
soliciting or endeavoring to cause any Person who or which is or was a customer,
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supplier, service provider or vendor of the Corporation or its affiliates at any
time during the term of this Agreement, to terminate or adversely alter the
volume or nature of their business relationship with the Corporation or any of
its subsidiaries or affiliates (including, without limitation, to use any
products or services which compete with the Business if offered by anyone other
than the Corporation or its affiliates), and (iii) causing or assisting any
Person in any way to do, or attempt to do, any of the foregoing in clauses (i)
or (ii) above, directly or indirectly.
(iii) "CONFIDENTIAL INFORMATION" means any information
of a confidential or proprietary nature pertaining to the Business, operations
or activities of the Corporation or of any of its subsidiaries or affiliates, or
of any other Person with which the Consultant has been involved as a direct or
indirect result of the Consultant's performance of consulting or other services
(including, without limitation, as a director, manager, employee, officer,
employee, advisor, agent, consultant or other independent contractor) for, the
Corporation, or any of its subsidiaries or affiliates, including, without
limitation, any (i) plans, strategies (including, economic and market data and
research selection and analysis strategies), tactics, policies, resolutions,
inventions, patents, trademarks, copyrights, trade secrets, know how, patent or
trademark applications and other intellectual property or other proprietary
information of the Corporation, (ii) information regarding litigation or
negotiations, (iii) any marketing information, sales or product plans, prospects
and market research data, (iv) financial information, cost and performance data
and any debt arrangements, equity ownership or securities transaction
information, (v) technical information, technical drawings and designs, (vi)
personnel information, personnel lists, resumes, personnel data, organizational
structure, compensation and performance evaluations, (vii) customer, vendor or
supplier information, (viii) information regarding the existence or terms of any
agreement or relationship between the Corporation or any of its subsidiaries or
affiliates and any other party, and (ix) any other information of whatever
nature, including, without limitation, information which gives to the
Corporation or any of its subsidiaries or affiliates an opportunity to obtain an
advantage over its competitors who or which do not have access to such
information; PROVIDED, HOWEVER, that Confidential Information shall not include
(A) information which is or becomes (through no improper action by the
Consultant) generally available to the public, or (B) information that was in
the possession of the Consultant or known by such Consultant without restriction
prior to receipt from the Corporation.
(iv) "INVENTIONS" means any and all inventions,
discoveries and improvements made, conceived, created, developed or contributed
to by the Consultant during the term of this Agreement which are (i) directly or
indirectly related to the Business, operations or activities of the Corporation
or any of its subsidiaries or affiliates, (ii) directly or indirectly related to
the Consultant's engagement by, or performance of other services (including as a
director, manager, officer, advisor, agent, representative, consultant or other
independent contractor) for, the Corporation or any of its subsidiaries or
affiliates, or (iii) based upon Confidential Information.
(v) "PERSON" means an individual, partnership,
corporation, limited liability company, limited liability partnership, trust,
joint venture, joint stock company or unincorporated organization.
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(vi) "REMAINING RIGHTS" means all of the Consultant's
rights, titles and interests in and to the following intellectual property as of
the date of this Agreement: any and all inventions, discoveries, improvements,
sales approaches, sales material, training material, computer software,
documentation, and other copyrightable works or any other intellectual property
(including, but not limited to, materials or services subject to trademark or
service ▇▇▇▇ registration), made, conceived, created, developed or contributed
to by the Consultant during the term of this Agreement which are (i) directly or
indirectly related to the business, operations or activities of the Corporation
or any of its subsidiaries or affiliates, (ii) directly or indirectly related to
the Consultant's engagement by, or performance of other services (including as a
director, manager, officer, advisor, agent, representative, consultant or other
independent contractor) for, the Corporation or any of its subsidiaries or
affiliates, or (iii) based upon confidential or proprietary information which is
or was owned by the Corporation or any of its subsidiaries or affiliates at the
time that such intellectual property was made, conceived, created, developed or
contributed to by the Consultant.
(vii) "WORK FOR HIRE" means any and all sales
approaches, sales material, training material, computer software, documentation,
other copyrightable works or any other intellectual property (including, but not
limited to, materials or services subject to trademark or service ▇▇▇▇
registration, but excluding Inventions) made, conceived, created, developed or
contributed to by the Consultant during the term of this Agreement and which are
(i) directly or indirectly related to the Business, operations or activities of
the Corporation or any of its subsidiaries or affiliates, (ii) directly or
indirectly related to the Consultant's engagement by, or performance of other
services (including as a manager, officer, advisor, agent, representative,
consultant or other independent contractor) for, the Corporation or any of its
subsidiaries or affiliates, or (iii) based upon Confidential Information.
(b) In consideration for, and as a condition to,
Consultant's engagement and the compensation referred to in this Agreement:
(i) The Consultant shall not directly or indirectly
participate or engage in, or assist, any Competitive Activities in the United
States of America prior to the six-month anniversary of the end of the term of
this Agreement. Each of the Consultant and the Corporation recognize that the
territorial, time and scope limitations set forth in this Section 4(b)(i) are
reasonable and are properly required for the protection of the Corporation's
legitimate interest in client relationships, goodwill and trade secrets of the
Corporation's business. In the event that any such territorial time or scope
limitation is deemed to be unreasonable by a court of competent jurisdiction,
the Consultant and the Corporation agree, and the Consultant submits, to the
reduction of any or all of said territorial, time or scope limitations to such
an area, period or scope as said court shall deem reasonable under the
circumstances. If partial enforcement is not possible, the provision shall be
deemed severed, and the remaining provisions of this Agreement shall remain in
full force and effect. It shall not be a breach of this Section 4(b)(i) as a
result of the ownership by the Consultant of less than an aggregate of five
percent of any class of stock of a Person engaged in Competitive Activities,
provided that such stock is listed on a national securities exchange or is
quoted on the National Market System of the Nasdaq Stock Market.
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(ii) Prior to the Two-year anniversary of the end of
the term of this Agreement, the Consultant shall not directly or indirectly
solicit, recruit, hire or engage any (i) Persons employed or retained as
consultants or other independent contractors by the Corporation or any of its
subsidiaries or affiliates, (ii) strategic partners of the Corporation or any of
its subsidiaries or affiliates, (iii) customers, clients, vendors or suppliers
of the Corporation or any of its subsidiaries or affiliates, with whom the
Consultant has had contact with during the term of this Agreement, or (iv) other
Persons with whom or which the Corporation or any of its subsidiaries or
affiliates maintains a commercial relationship, or encourage any such Persons
described in clauses (i), (ii), (iii) or (iv) above to terminate or adversely
alter their relationship with the Corporation or any of its subsidiaries or
affiliates (including, without limitation, soliciting or endeavoring to cause
any such Person to use any products or services offered or provided by a Person
other than the Corporation or its subsidiaries or affiliates which compete with
the Business, products or services of the Corporation or any of its subsidiaries
or affiliates).
(c) The Consultant agrees that he shall not use or disclose
(except to the extent necessary during the term of this Agreement in connection
with the necessary and proper performance of the Consultant's duties on behalf
of the Corporation and in good faith, or as required by law or governmental
authority) any Confidential Information until such information ceases to be
Confidential Information. Upon the end of the term of this Agreement, or upon
the earlier request of the Corporation, the Consultant, and his legal or
personal representatives will promptly return to the Corporation any and all
information, documents or other materials relating to or containing Confidential
Information which are, and any and all other property of the Corporation which
is, in the Consultant's possession, care or control, regardless of whether such
materials were created or prepared by the Consultant and regardless of the form
of, or medium containing, such information, documents or other materials.
(d) (i) The Consultant shall promptly disclose to the
Corporation any and all Inventions. The Consultant shall promptly communicate to
the Corporation all information, details and data pertaining to any Inventions
in such form as the Corporation requests. The Consultant agrees that Inventions
are the property of the Corporation, and any and all rights, titles or interests
in and to Inventions which the Consultant may have in any and every jurisdiction
are hereby assigned by the Consultant to the Corporation in full. Whenever the
Consultant is requested to do so by the Corporation, during or after the term of
this Agreement, the Consultant shall use his best efforts to execute and
deliver, at the Corporation's sole cost and expense, any and all applications,
assignments or other documents or instruments deemed reasonably necessary or
advisable by the Corporation to apply for and obtain Letters Patent of the
United States or any foreign country or to otherwise protect, confirm or
establish the Corporation's full and exclusive interests in any Inventions. The
obligations set forth in this Section 4(d) shall be binding upon the successors,
assigns, executors, administrators and other legal representatives of the
Consultant.
(ii) Any and all Works for Hire shall be considered
"works made for hire" under the copyright laws of the United States or property
of the Corporation under applicable federal, state, local and foreign trademark
laws (as appropriate). The Consultant shall promptly communicate to the
Corporation any and all Works for Hire, and any and all information, details and
data pertaining to any Works for Hire, in such form as the Corporation requests.
To the extent that Works for Hire fail to qualify as (A) "works made for hire"
under the
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copyright laws of the United States or any other jurisdiction or (B) property of
the Corporation under applicable federal, state, local or foreign trademark
laws, the Consultant hereby assigns each Work for Hire and all right, title and
interest therein in any and every jurisdiction to the Corporation. Whenever the
Consultant is requested to do so by the Corporation, during or after the term of
this Agreement, the Consultant shall use his best efforts to execute and
deliver, at the Corporation's sole cost and expense, any and all applications,
assignments or other documents or instruments deemed reasonably necessary or
advisable by the Corporation to apply for and confirm and effectuate full and
exclusive ownership of Works for Hire in the Corporation, including, but not
limited to, ownership of any moral rights under the copyright law of any nation,
or any other rights under the intellectual property laws of any nation. The
obligations set forth in this Section 4(d)(ii) shall be binding upon the
successors, assigns, executors, administrators and other legal representatives
of the Consultant.
(iii) The Consultant shall bear the burden of proof
that any invention, discovery, improvement or other intellectual property
(including, without limitation, Inventions and Works for Hire) made, conceived,
created, developed or contributed to by the Consultant was first made,
conceived, created, developed or contributed to before or after the term of this
Agreement. The Consultant shall bear the burden of proof that any invention,
discovery, improvement or other intellectual property (including, without
limitation, Inventions and Works for Hire) made, conceived, created, developed
or contributed to by the Consultant during the term of this Agreement is
unrelated to any of the Business, operations or activities of the Corporation or
any of its subsidiaries or affiliates, to the Consultant's engagement by, or
performance of other services (including, without limitation, as a director,
manager, employee, officer, advisor, agent, representative, consultant or other
independent contractor) for, the Corporation or any of its subsidiaries or
affiliates, and was not based upon Confidential Information.
(e) The Consultant hereby transfers, assigns, conveys,
grants and sets over to the Corporation and its successors and assigns forever,
and the Corporation hereby accepts, assumes and acquires from the Consultant for
itself and its successors and assigns forever, all of the Consultant's right,
title and interest in and to the Remaining Rights in any and every jurisdiction.
The Consultant hereby covenants and agrees that, at any time and from time to
time after the date hereof, at the request of the Corporation or its successors
or assigns, he will use his best efforts to (i) promptly and duly execute and
deliver, or cause to be executed and delivered to the Corporation, all such
further documents and instruments, and (ii) promptly take all such other and
further action, as may be reasonably requested by the Corporation to more
effectively transfer, assign, convey, grant, set over, vest, protect, confirm
and establish full and exclusive right, title and interest in and to all of the
Remaining Rights in and to the Corporation and its successors and assigns
forever in any and every jurisdiction, including, without limitation, any and
all applications, assignments or other documents or instruments deemed necessary
or advisable by the Corporation to apply for and obtain Letters Patent of the
United States or any foreign jurisdiction. The obligations set forth in this
Section 4(e) shall be binding upon the successors, assigns, executors,
administrators and other legal representatives of the Consultant. The Consultant
hereby represents and warrants to the Corporation that the Consultant has not
transferred any right, title or interest in or to the Remaining Rights to any
other Person as of the date of the execution of this Agreement and, as of the
date of the execution of this Agreement, has not entered into any agreement to
do so.
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(f) The Consultant acknowledges and admits that a breach of
any of the covenants contained in this Section 4 will cause the Corporation
irreparable harm. The Consultant further acknowledges and admits that the
damages resulting from such a breach will be difficult or impossible to
ascertain, and will be of the sort that cannot be compensated by money or other
damages. The Corporation shall be entitled to seek specific performance or other
injunctive relief to compel compliance with such terms and provisions, without
requirement of posting a bond. The Consultant therefore waives (and is estopped
from asserting in a court of law or equity) any argument that the breach, or
threatened breach, of any of the covenants contained in this Section 4 does not
constitute irreparable harm for which an adequate remedy at law is unavailable.
Nothing contained in this Section 4 or elsewhere in this Agreement shall be
construed as prohibiting the Corporation from pursuing any other remedies
available at law or in equity for a breach, or threatened breach, by the
Consultant of any of the covenants contained in this Section 4.
(g) If a court declares that any term or provision of this
Section 4 is invalid or unenforceable, the parties to this Agreement agree that
the court making the determination of invalidity or unenforceability shall have
the power to reduce the scope, duration or area of the term or provision, to
delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified.
5. NON-DISPARAGEMENT. The Consultant agrees that during and at
all times following the term of this Agreement the Consultant shall not (i)
disparage the Corporation, its subsidiaries or affiliates or their respective
products, services, directors, officers or employees and (ii) directly or
indirectly make or cause to be made any oral or written statement which, or is
reasonably likely to be detrimental in any material respect to the Business,
operations, activities or reputation of the Corporation or any of its
subsidiaries or affiliates or their respective directors, officers, or
employees.
6. CONSULTANT REPRESENTATIONS AND WARRANTIES. The Consultant
hereby represents, warrants and acknowledges to, and agrees with, the
Corporation as follows: (a) the Consultant has the requisite legal capacity,
power and authority to execute, deliver and perform this Agreement and there are
no agreements or understandings that would make unlawful the Consultant's
execution or delivery of this Agreement or the performance of the Consultant's
duties and obligations hereunder, (b) the execution and delivery of this
Agreement and the performance of the Consultant's duties and obligations under
this Agreement, will not conflict with, or breach or cause a default under, or
give any party a right to damages under, or terminate, or require the giving of
notice under, any other agreement to which the Consultant is a party or by which
he or his assets are bound, (c) in connection with the Consultant's performance
of this Agreement, the Consultant will not violate any non-solicitation or
non-disclosure covenant by which he is bound, or use or disclose or infringe
upon any confidential or proprietary information or intellectual property
obtained from, derived from, or developed for, any third party, (d) the
Consultant has had full opportunity to seek advice and representation by
independent counsel of his own choosing in connection with the review,
interpretation, negotiation, execution and delivery of this Agreement.
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7. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contemplated hereby and supersedes
all prior agreements or understandings among the parties with respect to such
matters.
8. DESCRIPTIVE HEADINGS. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
9. NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing and sufficient if delivered personally or
sent by telecopy (with confirmation of receipt) or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to the Consultant: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Corporation: Midnight Holdings Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Reitler ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Each such notice, request or communication shall be effective when received or,
if given by mail, when delivered at the address specified in this Section or on
the fifth business day following the date on which such communication is posted,
whichever occurs first.
10. SURVIVAL. The representations, warranties, covenants and
agreements contained in Sections 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17 and
18 shall survive the termination of this Agreement.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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12. BENEFITS OF AGREEMENT. This Agreement is for the sole benefit
of the parties hereto and not for the benefit of any third party, including
creditors of the parties hereto.
13. AMENDMENTS AND WAIVERS. No modification, amendment or waiver
of any provision of, or consent required by, this Agreement, nor any consent to
any departure herefrom, shall be effective unless it is in writing and signed by
the parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
14. ASSIGNMENT. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by any party hereto without
the prior written consent of the other party. Any instrument purporting to make
an assignment in violation of this Section 14 shall be void. All covenants,
agreements and undertakings in this Agreement made by and on behalf of any party
hereto shall bind and inure to the benefit of the successors and permitted
assigns of such party.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISIONS).
16. CONSENT TO JURISDICTION. EACH OF THE CORPORATION AND THE
CONSULTANT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF
ANY FEDERAL OR STATE COURT OF NEW YORK SITTING IN NEW YORK CITY AND IRREVOCABLY
AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED EXCLUSIVELY
IN SUCH COURTS. EACH OF THE CORPORATION AND THE CONSULTANT AGREES NOT TO
COMMENCE ANY LEGAL PROCEEDING RELATED HERETO EXCEPT IN SUCH COURT. EACH OF THE
CORPORATION AND THE CONSULTANT IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING IN ANY SUCH
COURT AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
17. WAIVER OF JURY TRIAL. EACH OF THE CORPORATION AND THE
CONSULTANT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT HE OR IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
OF THE CORPORATION AND THE CONSULTANT HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
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REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 17.
18. TAXES. The Consultant shall be responsible for the filing of
any and all documents and for the payment of any and all taxes to any federal,
state and local government, however denominated, associated with compensation to
be made to the Consultant hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
Midnight Holdings Group, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
SCHEDULE A
Duties and Responsibilities:
i. Identify and repair any current operations holes, develop and
implement solutions and actions.
ii. Stabilize and increase the top line revenue, set targets,
goals and action plans for each Service Facility to return to
consolidated Gross Revenue of $18.9K per day.
iii. Review internal candidates, select, train and provide
leadership to newly appointed Regional Operations Leaders
(ROL)
iv. Divide Service Center operations into two Regions and assign
responsibility to two respective ROL's and establish clear
goals and objectives.
v. Develop a incentive compensation program for the position of
ROL
vi. Review the current Collision Revision Partner Store Operations
and make a recommendation to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ relative to any
current facilities that will not support the ▇▇▇ model.
vii. Stabilize the Collision Revision partnership and implement the
contracts.
viii. Support finance in inventory reconciliation.
ix. Bring the company operations to a level that would be
conducive to the hiring of a Director of Sales. Stabilized,
operating efficiently and on a measurable track for gross
revenue sales growth.
x. Interview Director of Sales candidates and meet a consensus
with other members of the executive team on the selection of a
candidate.
xi. Indoctrinate, train and lead new hire to ensure success as
Director of Sales.
xii. Evaluate Director of Sales performance with the goal of
assuming the position of COO.
xiii. Assist in the facility expansion of the company through new
store openings and or acquisitions.
xiv. Move help desk function from vendor to in house support.
xv. Develop an overall Service Center employee recognition
program.
xvi. Develop a business relationship with NAPA and/or other
national parts/vendor relationships xvii. Perform additional
duties and responsibilities as may be delegated by the CEO
from time to time