Attached files
EXHIBIT
10.0
NEWCO
ICE CREAM
INDEPENDENT
CONTRACTOR AGREEMENT
This
Independent CONTRACTOR Agreement (the “Agreement”) is made and entered into as
of this 31st day of July, 2009, by and between Newco Ice Cream, Inc., a
Nevada corporation (the “Company”) and Joseph Masters and Phillip Nagele,
(“Contractors”).
WHEREAS,
the Company sells Ice Cream Gift Products (Business); and
WHEREAS,
the Company desires to retain the CONTRACTORS to provide services, and
CONTRACTORS desire to be so retained and to perform those services for the
Company.
NOW,
THEREFORE, CONTRACTORS and the Company agree as follows:
1. Character and Extent of
Services. During the term of this Agreement, CONTRACTORS shall
provide business advisory and sales services for the Company, specifically for
the Business.
2. Term. This
Agreement shall commence on the date first above written and shall continue for
a period of five (5) years, unless sooner terminated in accordance with the
terms of this Agreement. This agreement may be renewed yearly with 30 day
written notice signed by both parties.
3. Independent
Contractors. It is understood and agreed that CONTRACTORS are
independent Contractors in the performance of this contract, that CONTRACTORS
shall perform the contracting activity under the control of the Company as to
the result of such activity only and not as to the means by which such result is
accomplished and that CONTRACTORS are providing services on an as needed
basis. Further, CONTRACTORS shall not be entitled to participate in any
plans, insurance or similar benefits for Company employees, including, but not
limited to, vacation pay, sick leave, holiday pay, retirement benefits, social
security benefits, disability or unemployment insurance benefits, health or
accident insurance, etc. CONTRACTORS are neither an agent nor employee of
the Company, and has no authority whatsoever to bind the Company by contract or
agreement of any kind. The Company shall not withhold federal or state
income taxes from CONTRACTORS’s fees payable hereunder and shall not pay FICA,
state unemployment or other employment taxes or disability payments with respect
to the CONTRACTORS, such items and such payments being the sole responsibility
of the CONTRACTORS.
4. Compensation.
For and in consideration of the offer by the Company to retain the CONTRACTORS,
the CONTRACTORS will pledge any and all rights to their ownership and work
product assets to the Company, that were developed prior to this Agreement, as
listed in SCHEDULE A. For and in consideration of the services to be rendered by
CONTRACTORS to the Company, it is agreed that the Company shall pay
CONTRACTORS:
a. $100,000 in NEWCO stock
as follows: (i)
$50,000 restricted stock at filing of S-1with the United States Securities and
Exchange Commission, Shares of Purchaser’s restricted common
stock. (ii) $50,000 un-restricted stock at 6 month anniversary of
filing of S-1, Shares of Purchaser’s restricted common stock as traded on the
OTCBB.
b. Royalty:
$10 per sale that is generated directly from SICI's customer list, or comes
directly through any of the websites listed below, for 5 full years from
execution date, or until sale or change in control of NEWCO.
This fee
will be paid on last day of month, starting August 31, 2009.
5. Expenses. CONTRACTORS
shall be solely responsible for all expenses incurred by the CONTRACTORS during
the term of this Agreement and shall not be entitled to reimbursement from the
Company unless otherwise agreed to in advance by the Company in
writing.
1
6. Confidentiality.
CONTRACTORS acknowledges that, in the course of providing services hereunder,
CONTRACTORS will learn certain confidential information about the Company’s
business. CONTRACTORS agrees to keep all such information strictly
confidential and not use it for CONTRACTORS’s own benefit nor disclose or
divulge such information to any person outside of the Company. The parties
acknowledge that the provisions of this Section 6 shall not apply to any
information which: (i) had been rightfully in the possession of the recipient
prior to its disclosure to the recipient; (ii) had been in the public domain
prior to its disclosure to the recipient; (iii) has become part of the public
domain by publication or by any other means except an unauthorized act or
omission on the part of the recipient; (iv) had been supplied to the recipient
without restriction by a third party who is under no obligation to maintain such
information in confidence; or (v) is required to be disclosed by any federal or
state law, rule or regulation or by any applicable judgment, order or decree or
any court or governmental body or agency having jurisdiction in the
premises. The provisions of this Section 6 shall survive any termination
or expiration of this Agreement.
7. Covenant Not to
Compete. CONTRACTORS hereby agrees that CONTRACTORS will not,
either during while engaged by the Company or during the period of one (1) year
from the time of expiration or termination of this Agreement for whatever
reason, engage in any business activities on behalf of any enterprise which
competes with the Company in the Business, unless approved the by the Company in
writing. CONTRACTORS will be deemed to be engaged in such competitive
business activities if CONTRACTORS participate in such a business enterprise as
an employee, officer, director, CONTRACTORS, agent, partner, proprietor, or
other participant; provided that the ownership of no more than 2 percent of the
stock of a publicly traded corporation engaged in a competitive business shall
not be deemed to be engaging in competitive business activities.
CONTRACTORS
further agree that CONTRACTORS shall not for CONTRACTORS or for anyother person, firm, corporation,
partnership or other entity, for a period of one (1) year from the timeCONTRACTORS’ engagement under this
Agreement ceases (for whatever reason), directly or indirectly:
|
|
(i) solicit any sales agent, employee, former employee who was
employed by the Company in the preceding 90 days or full-time CONTRACTORS
of the Company for the purposes of hiring or retaining such sales agent,
employee or CONTRACTORS,
|
|
|
(ii) contact any present or prospective client of the Company to
solicit such a person to enter into a contract or arrangement with any
competitor of the Company, or
|
|
|
(iii) make known the names and/or addresses of such clients or any
information relating in any manner to the Company’s trade or business
relationships with such clients.
|
The provisions of this Section 7 shall survive any termination or expiration of
this Agreement.
8. Ownership of
Developments. All copyrights, patents, or other intellectual
property rights associated with any ideas, concepts, techniques, inventions,
processes, or works of authorship develop or created by CONTRACTORS during the
course of performing work for the Company or its clients (collectively, the
“Work Product”) shall belong exclusively to the Company and shall, to the extent
possible, be considered a work made by CONTRACTORS for hire for the Company
within the meaning of Title 17 of the United States Code. To the extent
the Work Product may not be considered work made by CONTRACTORS for hire for the
Company, CONTRACTORS agree to assign and automatically assigns at the time of
creation of the Work Product, without any requirement of further consideration,
any right, title, or interest the CONTRACTORS may have in such Work
Product. Upon the request of the Company, CONTRACTORS shall take such
further actions, including execution and delivery of instruments of conveyance,
as may be appropriate to give full and proper effect to such
assignment.
Solely for purposes of Sections 6, 7, 8 and 9 hereof only, the term “Company”
also shall include any existing or future subsidiaries of the Company that are
operating during the time periods described herein and any other entities that
directly or indirectly, through one or more intermediaries, control, are
controlled by or are under common control with the Company during the periods
described herein. The provisions of this Section 8 shall survive any
termination or expiration of this Agreement.
2
9. Remedies.
CONTRACTORS acknowledge and agree that the Company’s remedy at law for a breach
or threatened breach of any of the above provisions of Section 6, 7 and 8 would
be inadequate and the breach shall per se be deemed as
causing irreparable harm to the Company. In recognition of this fact, in
the event of a breach by CONTRACTORS of any of the provisions of Section 6, 7
and 8 of this Agreement, CONTRACTORS agree that, in addition to any remedy at
law available to the Company, the Company shall be entitled to obtain injunctive
relief, or any other appropriate equitable remedy, without having to post a bond
or other security. It is expressly understood and agreed by CONTRACTORS that
although the parties consider the restrictions contained in this Agreement to be
reasonable, if a court determines that the time or territory or any other
restriction contained in this Agreement is an unenforceable restriction on the
activities of CONTRACTORS, such provision in this Agreement shall not be
rendered void but shall be deemed to be amended to apply as to such maximum time
and territory and to such extent as such court may judicially determine or
indicate to be reasonable. The provisions of this Section 9 shall survive
any termination or expiration of this Agreement.
10. Termination.
This Agreement may be terminated by either party on thirty (30) days written
notice to the other party. In the event of such termination, CONTRACTORS
shall receive all sums owed through the date of termination and the Company
shall have no further liability to CONTRACTORS thereafter. The
Company will retain the assets listed in Schedule A.
11. Indemnification.
CONTRACTORS shall indemnify, defend and hold harmless the Company, its parent,
subsidiaries, affiliates and their directors, officers, employees, agents,
successors and assigns from and against any and all third party claims, suits
and liabilities (including reasonable attorney’s fees) arising out of or
resulting from, in whole or in part, any actual or alleged acts or omissions of
CONTRACTORS in connection with the performance of or failure to perform
CONTRACTOR's obligations under this Agreement. The provisions of this
Section 11 shall survive any termination or expiration of this
Agreement.
The
Company shall indemnify, defend and hold harmless CONTRACTORS, its parent,
subsidiaries, affiliates and their directors, officers, employees, agents,
successors and assigns from and against any and all third party claims, suits
and liabilities (including reasonable attorney’s fees) arising out of or
resulting from, in whole or in part, any actual or alleged acts or omissions of
the Company in connection with the performance of or failure to perform he
Company’s obligations under this Agreement. The provisions of this Section
11 shall survive any termination or expiration of this Agreement.
12. Representations of
CONTRACTORS. CONTRACTORS has represented and hereby represents and
warrants to the Company that CONTRACTORS is not subject to any restriction or
non-competition covenant in favor of any other person or entity, and that the
execution of this Agreement by CONTRACTORS and engagement by the Company and the
performance of duties hereunder will not violate or be a breach of any agreement
with a former employer or any other person or entity. Further, CONTRACTORS
agrees to indemnify the Company for any claim, including, but not limited to,
attorneys’ fees and expenses of investigation, by any such third party that such
third party may now have or may hereafter come to have against CONTRACTORS based
upon or arising out of any restriction or non-competition agreement or invention
and secrecy agreement between CONTRACTORS and such third party. The
provisions of this Section 12 shall survive any termination or expiration of
this Agreement.
13. Governing Law.
This Agreement shall be governed in all respects by the laws of the State of
Nevada.
14. Counterparts and
Facsimile. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument. A facsimile signature shall be considered the same as an
original.
15. Arbitration.
Any dispute or disagreement arising between the parties hereto in connection
with this Agreement, which is not settled to the mutual satisfaction of the
parties within thirty (30) days (or such longer period as may be mutually agreed
upon) from the date that either party informs the other in writing that such
dispute or disagreement exists, shall be submitted to arbitration in Las Vegas,
Nevada to a member of the American Arbitration Association ("AAA") to be
mutually appointed by the parties (or, in the event the parties cannot agree on
a single such member, to a panel of three members selected in accordance with
the rules of the AAA). The dispute or disagreement shall be settled in
accordance with the Commercial Arbitration Rules of the AAA and the decision of
the arbitrator(s) shall be final and binding upon the parties and judgment may
be obtained thereon in a court of competent jurisdiction. The prevailing
party shall be entitled to recover from the other party the fees and expenses of
the arbitrator(s) as well as reasonable attorneys' fees, costs and expenses
incurred by the prevailing party.
3
16. Post Closing Termination
Conditions: The Company will have the right to
(i) The
satisfactory completion by Company of an investigation of Contractors' assets as
per Schedule A and the approval of the results of such
investigation,
(ii) The
satisfactory completion by Company of CONTRACTORS' financial statements as of
and for the periods ended December 30, 2005, 2006, 2007 and 2008; June 30, 2009;
and for any period between June 30, 2009 and the closing date.
17. Access: From
and after the date of this Agreement, the Company and Contractors shall provide
each party’s’ attorneys, accountants, advisors, representatives, affiliates and
prospective lenders and investors with full and complete access to all assets,
contracts, books, records, financial statements and employees of Company and its
affiliates, and (b) compile and provide each party with such information as may
be reasonably requested. Each party will bear its respective costs of
due diligence. The parties will use best efforts to complete their
due diligence within 10 days after signing of this letter.
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
as of the day and year first set forth above.
| Joseph Masters | |
| By:___________________________________ | |
| Phillip Nagele | |
| By:___________________________________ | |
| Newco Ice Cream, Inc.: | |
| By:___________________________________ | |
| Matthew L. Schissler | |
| Chairman |
4
Schedule
A
|
|
|
|
List of
Assets:
|
Newco
will acquire and retain rights forever from this day forward to
the assets listed below in exchange for offering this Independent
Contractor Agreement. The assets below will survive any
termination of this agreement and remain solely in possession and owned by
Newco, with no rights granted to the
Contractors:
|
|
|
1.
Customer List with all contact information in its
entirety
|
|
|
2. Receiver
List in it's entirety.
|
|
|
3. Send-ice-Cream.com,
Collegeicecream.com and Icecreamgift.com,andany/all other domain
names. These websites will be delivered "as
is."
|
|
|
4. Merchant
processing system for websites.
|
5