Exhibit
10.40
CONSULTANT AND
NON-COMPETE AGREEMENT
THIS
CONSULTANT AND NON-COMPETE AGREEMENT (Agreement) is made as of the
____ day of ________________, 2006, by and between Colfax Financial
Corporation, a Utah corporation, (the “Company”) and
Flash Motors, Inc. (the “Consultant”).
W
I T N E S S E T H:
WHEREAS, the
Company desires to retain the Consultant, and the Consultant has
agreed to provide the services of Harry March to serve as the
consultant at the office of the Company located at 7607 East
McDowell Road, Scottsdale Arizona 85257, (the “Office”)
in accordance with the terms hereof:
NOW,
THEREFORE, in consideration of the mutual agreements contained
herein, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1.
Engagement
.
The
Company hereby retains the Consultant as its Consultant, and the
Consultant hereby accepts such retention, subject to the terms and
conditions contained herein.
2.
Term
.
The
term of the Consultant’s engagement shall commence on the
date hereof and shall continue thereafter for a period of five (5)
years.
3.
Duties
.
(a)
The
Consultant shall serve the Company in rendering financial,
marketing and management advice for the Company as well as such
other related or similar services as may be requested by the
Company from time to time.
(b)
The
Consultant shall serve the Company loyally, faithfully and to the
best of the Consultant’s abilities and shall devote working
time and efforts to the performance of duties hereunder, except as
otherwise agreed in writing between the parties. The
Consultant shall not during the term hereof engage in any business
competitive with the business of the Company.
(c)
The
Consultant shall not provide any services to another company or
individual, directly or indirectly, that the Company has not
approved.
(d)
The
Consultant shall not engage in any business activities that
materially interfere with the performance of the Consultant’s
obligations under this Agreement provided however that nothing in
this Agreement shall be construed to interfere with or otherwise
affect the rendering of services by Consultant and or Harry March
in compliance with Consultant’s independent professional
responsibilities.
(e)
Nothing in this
Agreement shall be construed to interfere with or otherwise affect
the rendering of services by the Consultant in compliance with the
Consultant’s independent professional responsibilities.
4.
Compensation
.
The
Company shall pay to the Consultant a total sum of ONE MILLION FOUR
HUNDRED THOUSAND DOLLARS ($1,400,000) in consideration for its
engagement, to be paid as follows:
(a)
FOUR
HUNDRED THOUSAND DOLLARS ($400,000) payable to Consultant pursuant
to the terms of the Promissory Note (attached hereto as Exhibit A);
and
(b)
ONE
MILLION DOLLARS ($1,000,000) payable to Consultant pursuant to the
terms of the Promissory Note (attached hereto as Exhibit
B).
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of 4
5.
Termination on
Disability or Death .
(a)
If
Harry March shall die during the term hereof, this Agreement and
the Consultant’s engagement hereunder shall terminate
immediately upon Harry March’s death, except that Harry
March’s estate and the Consultant shall be entitled to
receive all compensation specified hereunder.
(b)
If
Harry March, due to physical or mental disability or incapacity,
shall have been unable to perform fully the Consultant’s
duties hereunder for any sixty (60) days during any twelve (12)
consecutive months, as determined in good faith by the Company,
then the Company may terminate this Agreement and the
Consultant’s engagement hereunder by written notice to the
Consultant and/or Harry March’s legal guardian, effective
immediately upon delivery of such notice, except that the
Consultant or Harry March’s guardian shall be entitled to
receive all compensation specified hereunder.
6.
Termination of
Engagement .
(a)
The
Company may at any time terminate this Agreement and the
Consultant’s engaged hereunder by written notice to
Consultant immediately upon delivery of such notice if:
(i)
Neither Consultant
nor Harry March shall commit an act constituting a felony;
or
(ii)
Neither Consultant
nor Harry March shall have committed a material breach of any
provision of the Agreement; or
(iii)
Neither Consultant
nor Harry March shall commit any willful or intentional act that
could reasonably be foreseen to materially injure the reputation,
business or business relationships of the Company, or subject it to
any material liability. Upon such termination for cause, it
is further understood and agreed that Consultant and/or Harry March
shall be entitled to receive all compensation specified
hereunder.
7.
Non-Disclosure of
Confidential Informa
