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Exhibit 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into as of the 1st day of
June, 1999 by and between Lahaina Acquisitions, Inc., a Colorado corporation,
and its successors (hereinafter referred to as the "Company"), and Xxxxxx X.
Xxxxxxxx (hereinafter referred to as "Consultant").
WITNESSETH:
WHEREAS, Consultant possesses significant knowledge and experience in
the management of private and public corporations and has been engaged by the
Company to provide certain consulting services to it; and
WHEREAS, the Company desires to enter into this Agreement with
Consultant to set forth in detail the consulting services to be provided to the
Company, and to provide for the payment for such services by the Company, and
Consultant wishes to provide such consulting services, all upon the terms and
subject to the conditions contained herein;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Engagement and Term. Subject to the terms and conditions of this
Agreement, the Company hereby retains Consultant to provide the consulting
services described in Section 2 below, and Consultant hereby accepts such
engagement. The term of this Agreement shall commence on the date hereof and
shall continue for a period of two years (the "Term"), provided that this
agreement may be terminated at any time after twelve months and prior to the
expiration of the Term upon 90 days written notice of either party. If no term
is indicated in any agreement, other than this Agreement, between the Client and
the Company, the term of such agreement shall be two years from the date of the
initial activity for each consulting situation. The initial date and the term
for each assignment shall be listed on a separate form, Addendum "A", each
signed copy of which shall become a part of this Agreement.
2. Description of Services. During the term of this Agreement, as
requested from time to time by the Company, Consultant shall provide to the
Company, or other affiliates, or entities related to the Company, advice
regarding matters for either the Company or other affiliates, or entities
related to the Company, as set forth more fully below. The consulting activities
which the Consultant may provide to the Company may include advice relating to
mergers, acquisitions, strategic planning, marketing communications and public
relations ("Communication Services"), technology
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Consulting Agreement between
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Xxxxxx X. Xxxxxxxx
June 1, 1999
implementation and, at the request of the Company, the Consultant shall also
provide (i) advice regarding the management of the Company, (ii) financial
advice regarding the Company's operations, (iii) advice relating to corporate
governance issues and (iv) strategic planning advice (the "Management Consulting
Services", only together with Communication Services, the "Services"). The
activities for which such advice is provided shall be listed on a separate sheet
whose form and content shall be as shown in Addendum "A" of this Agreement. Upon
signature by the Company and the Consultant, each Addendum "A" shall become a
part of this Agreement.
3. Non-Exclusivity of Services. The Company acknowledges that
Consultant shall be engaged by the Company on a full-time basis. The Company
further acknowledges that Consultant may not be available at all times to
respond promptly to requests for the provision of Services due to other business
commitments; however, Consultant shall use reasonable efforts to respond within
a reasonable time to requests for Services by the Company.
4. Place of Engagement. The Services to be performed by Consultant
pursuant to this Agreement shall be rendered primarily from the offices of the
Consultant or at one or more suitable locations designated by the Company, with
the mutual agreement of the Consultant.
5. Compensation. In consideration of Consultant's Services hereunder,
for and during the Term of this Agreement, the Company shall pay Consultant a
consulting fee equal to $10,000 per month, payable one month in advance, in
addition to a one-time payment of $30,000 for services rendered prior to June 1,
1999 and supplemental compensation which shall be paid as a fee equal to two
percent of the value of any transaction set forth on Addendum "A" of this
Agreement. The value used in computing the fee shall be equal to the gross
funding amount in the case of debt or equity transactions, or asset value in the
case of an asset sale or purchase, or in the case of a purchase or sale of a
business or operation. Fees involved shall be provided from the companies listed
on any and all forms titled Addendum "A", a copy of which form is attached to
this Agreement, and subsequently added to this Agreement during its Term. Such
fees shall include all compensation, including but not limited to cash
compensation, equity, warrants, options, consulting fees or long term incentive
options. The Company shall pay to the Consultant its portion of the fees within
48 hours of completion of the transaction by the Company. The Company shall
provide the consultant with medical
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Consulting Agreement between
Lahaina Acquisitions, Inc. and
Xxxxxx X. Xxxxxxxx
June 1, 1999
benefits comparable to and of equal value with the medical benefits the Company
provides its senior executives. The 2% fee shall be offset by annual salary.
For the equity, options, warrants and other equity-related items
referenced in this Section 5, such items shall be listed in the name, either
personal or company, provided by the Consultant and shall be registered,
transferred and available for sale under terms not less favorable than those
provided to any other individual or entity.
6. Expenses & Office Support. The Company shall reimburse the
Consultant for all expenses incurred as a result of the performance of its
duties under this Agreement within 10 days of a request by the Consultant to be
reimbursed for such expenses. The Consultant shall provide receipts and other
expense documentation in a form not different to that required by employees of
the Company. The Company shall also provide office space and
administrative/secretarial support to the Consultant, either directly or through
reimbursement to the Consultant. All travel, telephone or other related expenses
shall be reimbursed as well as other related expenses.
7. Entire Agreement. This Agreement supercedes all prior agreements
between the parties concerning its subject matter, including any prior subject
matter or dealings between the parties, and constitutes the entire agreement
between the parties with respect to matter contained herein.
8. Taxes. Any and all sales, service, income and other taxes applicable
to any payments made by the Company to Consultant under this Agreement shall be
the sole responsibility and liability of Consultant. Consultant shall indemnify
and hold harmless the Company for any liability or damages imposed upon the
Company for taxes payable by or with respect to Consultant.
9. Confidential Information. Except as permitted pursuant to this
Section 9, during Consultant's engagement with the Company and for a period of
two years thereafter, Consultant will hold in strict confidence and not disclose
to any person or entity without the express written authorization of the
Company, any confidential or secret information, financial, marketing data,
including, without limitation financial statements of the Company, technique,
process, formula, developmental or experimental work, work in progress, business
methods, trade secrets including, without limitation any customer lists,
marketing techniques or plans, or any other secret or confidential
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information relating to the Company (collectively referred to herein as
"Confidential Information"), including, without any limitation any information
relating to inquiries made by the Company or negotiations with respect to any
acquisition of or by the Company; provided, however, that Confidential
Information shall not include any of the foregoing which (i) is available to the
public generally, or (ii) has been developed by Consultant without use of any
Confidential Information, or in connection with Consultant's engagement with the
Company and not in violation of any other terms of this Agreement, or (iii) is
or has been learned by Consultant through an independent third party who is not,
and has not been, affiliated with or employed by the Company or bound by an
agreement of confidentiality or fiduciary duty to the Company. Consultant agrees
that it will not make any use, outside the scope of Consultant's engagement of
any Confidential information, and will not make any use of any Confidential
Information at any time for two years after termination of such engagement.
Notwithstanding the foregoing, this Agreement shall not prevent Consultant from
disclosing any Confidential Information to the extent that disclosure is
required by law or any order of a court or government authority with
jurisdiction over Consultant.
10. Independent Contractor. Consultant's relationship to the Company
hereunder shall be that of an independent contractor, Consultant shall not be
the agent of the Company and shall have no authority to act on behalf of the
Company in any manner except in the manner and to the extent that the Company
may expressly agree in writing.
11. Indemnification
(a) Liability. Neither Consultant nor its employees shall be
liable or accountable to the Company, in damages or otherwise, for any
error of judgment, any mistake of fact of law, or any other act or
thing which it or its employees may do or refrain from doing in
connection with its duties and obligations hereunder, except in the
case of its or its employees' gross negligence or intentional
misconduct.
(b) Indemnification. The Company shall indemnify and hold
harmless Consultant with respect to any demands, judgments,
settlements, damages, payments or claims of any nature whatsoever
arising from or out of the Consultant's performance of its duties
hereunder, at law or in equity, in connection with the Consultant's or
the Company's activities, actions, operations, or decisions, including,
but not limited to, any errors, omissions, incidents or
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accidents occurring in connection with such activities, actions,
operations or decisions, or otherwise in the course or conduct of its
business, which indemnity shall continue notwithstanding the
termination at this Agreement.
12. Waiver. No failure on the part of either party hereto to exercise
and no delay by either party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy by either party hereto preclude any other
or further exercise thereof or the exercise by such party of any other right,
power or remedy. No express waiver or assent by either party hereto of any
breach of or default in any term or condition of this Agreement by the other
party shall constitute a waiver of or an assent to any succeeding breach of or
default in the same or any other term or condition hereof.
13. Severability. All rights and restrictions contained in this
Agreement may be exercised and shall be applicable and binding only to the
extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary so that they will not render this Agreement
illegal, invalid or unenforceable. If any term of this Agreement, or part not
essential to the commercial purpose of this Agreement shall be held illegal,
invalid or unenforceable by a court of competent jurisdiction, it is the
intention of the parties that the remaining terms hereof, or part thereof shall
constitute their agreement with respect to the subject manner hereof and all
such remaining terms, or parts thereof, shall remain in full force and effect.
To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid provision which will
implement the commercial purpose of the illegal, invalid or unenforceable
provision.
14. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class,
registered mail, to the applicable party and addressed as follows:
COMPANY: Lahaina Acquisitions, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
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Consulting Agreement between
Lahaina Acquisitions, Inc. and
Xxxxxx X. Xxxxxxxx
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CONSULTANT: Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Any party may change the address or facsimile number to which notices, requests,
demands or other communications to such party shall be delivered or mailed by
giving notice thereof to the other parties hereto in the manner provided herein.
15. Governing Law. Regardless of the place of execution, place of
performance or otherwise; this Agreement and all amendments, modifications or
supplements thereto, and the rights of the parties hereunder, shall be governed
by and constituted and enforced in accordance with the laws of the State of
Georgia.
16. Agreement Non-assignable. The parties acknowledge that this
Agreement has been entered into as a result of, among other things, the special
skills of Consultant, and agree that this Agreement may not be assigned or
transferred by Consultant, in whole or in part, without the pnor written consent
of the Company. Further, the parties agree that this Agreement may not be
assigned or transferred by the Company, or Consultant, without the prior written
consent of the other party.
17. Headings. The headings as to the contents of particular sections
are inserted only for convenience and shall not be construed as a part of this
Agreement or as a limitation on or enlargement of the scope of any of the terms
or provisions of this Agreement.
18. Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject manor hereof and
contains the sole and entire agreement between the parties with respect to the
matters covered hereby This Agreement shall not be modified or amended except by
an instrument in writing signed by or on behalf of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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Consulting Agreement between
Lahaina Acquisitions, Inc. and
Xxxxxx X. Xxxxxxxx
June 1, 1999
IN WITNESS WHEREOF the Company and Consultant have caused this
Agreement to be executed as of the date first written above.
THE COMPANY: CONSULTANT:
LAHAINA ACQUISITIONS, INC. /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: President
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Consulting Agreement between
Lahaina Acquisitions, Inc. and
Xxxxxx X. Xxxxxxxx
June 1, 1999
ADDENDUM A-___
This form shall become a part of the agreement between Lahaina
Acquisitions, Inc., a Georgia corporation (hereinafter referred to as the
"Company"), its principals and affiliates and Xxxxxx X. Xxxxxxxx (hereinafter
referred to as "Consultant"). The purpose of this Addendum is to list the
activities for which services shall be provided by the Consultant to the
Company, and for which the Consultant shall be entitled to receive supplemental
compensation, in addition to the monthly consulting fee, as listed in Section 5
of the Consulting Agreement dated June 1, 1999 between the Company and the
Consultant.
Date of this Addendum A- ____:_______________
Description of Activity: ___________________________________
Name of Company/Entity/Asset (if applicable):
________________________________________________________________________________
Date of Initial Activity: ______________________
Term of Activity: ___________ (______) Years from the date of initial activity.
IN WITNESS WHEREOF the Company and Consultant have caused this
Agreement to be executed as of the date first written above.
THE COMPANY: CONSULTANT:
LAHAINA ACQUISITIONS, INC. By:
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Name: Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: President
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