Exhibit 10.9
CONSULTING AGREEMENT
--------------------
This Consulting Agreement is made and entered into as of February 21, 2001
between R. Lee Barclay ("Consultant") and Midas, Inc., a Delaware corporation
(the "Company").
WITNESSETH:
WHEREAS, the Company is engaged in the business of franchising and
manufacturing after market car products and services;
WHEREAS, the Company desires to have available the services of the
Consultant to assist the Company in developing and advancing the businesses from
time to time carried on by the Company;
WHEREAS, the Company desires to obtain assurance that the Consultant will
remain available to the Company as a consultant; and
WHEREAS, the Consultant desires to provide consulting services to the
Company on the terms set forth herein;
NOW, THEREFORE, the Consultant and the Company, in consideration of the
agreements, covenants and conditions contained herein, hereby agree as follows:
1. Engagement for Consulting Services.
----------------------------------
(a) For the term of this Agreement (as hereinafter defined), the
Company agrees to engage the Consultant;
(i) to assist the Company in developing and advancing the
business engaged in by the Company;
(ii) to assist the Company in matters related to general
accounting and financing;
(iii) in such other capacities as may be agreed to by the parties
hereto.
(b) The Consultant agrees to make himself available to the Company for
such purposes for the term of this Agreement.
(c) The Consultant's status under this Agreement shall be that of an
independent contractor. This Agreement shall not affect benefits to
which Consultant is otherwise entitled as a retired employee of the
Company.
(d) It is expressly understood by the parties that the consulting
services contemplated hereby will be on an as needed basis; provided,
however, the Consultant agrees to make himself available for an
average of 15 days of consulting services each calendar month as
requested by the CEO of the Company during the term of this Agreement.
(e) The Consultant agrees to perform faithfully the duties assigned to
him hereunder to the best of his ability and (subject to Subsection
(d) of the Section) to remain available to consult with and render
services to the Company hereunder.
2. Compensation.
------------
(a) As compensation for the engagement hereunder, the Company agrees
to pay to the Consultant a fee of $22,250 per month for the term of
his Agreement.
(b) The Company shall provide Consultant with office space and
reimburse him for reasonable out-of-pocket expenses incurred in the
performance of his duties hereunder.
(c) Payment of the compensation and expenses provided for in this
Section will be made by the Company monthly upon receipt of an
itemized bill from the Consultant.
3. Confidential Information.
------------------------
The Consultant agrees that he will not, at any time during the term of
this Agreement or thereafter, divulge any trade secrets or other
confidential information of or relating to the Company or any of its
subsidiaries, except to the extent that the Company may so authorize
in writing, and that upon the termination of this Agreement the
Consultant will surrender to the Company
Page 2
all records and other documents (together with all copies thereof)
obtained or created by the Consultant or entrusted to him during the
course of its performance of services hereunder. For purposes of this
Section 3, information about the Company or any of its subsidiaries
shall be treated as confidential until it has been published or is
generally or publicly known outside the Company. The covenants
contained in this Section 3 shall survive the termination of this
Agreement.
4. Business Ideas.
--------------
(a) The Consultant acknowledges that the Company will own all rights
in all "Business Ideas" (as hereinafter defined) which are originated
or developed in conjunction with the services contemplated hereunder
by the Consultant (either alone or with employees or consultants of
the Company.)
(b) The Consultant agrees that during the term of this Agreement he
will:
(i) assign to the Company all Business Ideas and promptly execute
all documents which the Company may reasonably require to perfect
its patent and other rights to such Business Ideas throughout the
world; and
(ii) promptly disclose to the Company all information concerning
all Business Ideas, inventions, data and developments, whether or
not originated or developed by the Consultant, which come to his
attention and which concern any business carried on by the
Company or any of his subsidiaries.
(c) The Consultant further agrees that, following the termination of
his engagement hereunder, he will:
(i) disclose to the Company all Business Ideas relating to
matters with which the Consultant came into contact during the
term of this Agreement; and
(ii) assign to the Company all such Business Ideas and promptly
execute all documents which the Company may reasonably require to
perfect its rights to such Business Ideas.
Page 3
(d) For purposes of this Section 4, "Business Ideas" shall mean all
ideas, whether or not patentable, which are originated or developed by
the Consultant and which deal with the manufacture, marketing,
distribution franchising or sale of automobile products and services
or development of any business involved in such activities or the
acquisition of other companies or business units involved in such
activities.
5. Term.
----
This Agreement shall be for a term of one-year commencing on May 1,
2001 and ending on April 30, 2002.
6. Assignment and Succession.
-------------------------
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and be binding upon its successors and
assigns. The Consultant may not assign any of its rights or
obligations hereunder.
7. Entire Agreement.
----------------
This Agreement contains the entire agreement between the Company and
the Consultant concerning the subject matter hereof. In the event that
the Consultant's services include work in connection with the
acquisition and divestiture of other companies, or business units, the
Consultant agrees that he shall not be entitled to any finder's or
broker's fee, commission, or similar compensation for such services,
and that the compensation provided hereunder shall constitute full
consideration for such services.
8. Applicable Law.
--------------
This Agreement shall at all times be construed, interpreted and
enforced in accordance with the laws of the State of Illinois.
Page 4
IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be executed by a duly authorized officer as of the day and year
first above written.
MIDAS INTERNATIONAL CORPORATION
/s/ Wendel H. Province
By: ______________________________
Chief Executive Officer
/s/ R. Lee Barclay 2/21/01
______________________________
R. Lee Barclay Consultant
/s/ Robert H. Sorensen
___________________________
Witness
Page 5