EXHIBIT 10.25
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") dated of this 30th day of
September, 1998, by and among XXXXXX REALTY SERVICES, INC., a Florida
corporation (the "Company"), and XXXXXXX X. XXXXXX, XX., an individual residing
in Florida ("Consultant").
RECITALS
WHEREAS, the Company and each of its respective affiliates and
subsidiaries (collectively, the "RQI Group Companies") are engaged primarily in
the business of providing property management, brokerage, rental and sales
services (the "Business");
WHEREAS, the Consultant provides consulting services in connection with
the Business; and
WHEREAS, the Company desires to engage Consultant to provide consulting
services in connection with the Business pursuant to the terms and conditions
hereof.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each, the
parties hereto hereby agree as follows:
Section 1. CONSULTING SERVICES.
(a) The Company hereby engages Consultant and Consultant hereby accepts
the engagement upon the terms and conditions hereinafter set forth. Consultant
shall (i) consult, advise and assist the Company with respect to managing all
aspects of the relationship with the developers of the Tops'l project including,
without limitation, with respect to construction management, property management
and management of the operation and administration thereof, (ii) use his best
efforts to promote the business and activities of and be an "ambassador of
goodwill" with respect to the RQI Group Companies and the Cathedral Group and
(iii) act as a "secret shopper" with respect to the Cathedral Group properties
(collectively, the "Engagement"). Consultant shall have such responsibilities,
duties and authority in connection with the Engagement as an Executive Officer
or the Chairman of the Board of Directors of either RQI (the "RQI Board") or the
Company (the "Company Board") may require or assign.
(b) Consultant hereby agrees to devote such time, attention, energy and
efforts to the business of the Company as shall be reasonably required in order
to meet the objectives of the Engagement. Consultant shall be a real estate
broker for the Company subject to the terms and conditions of a standard brokers
agreement in effect from time to time.
(c) Consultant shall adhere to, execute and fulfill all policies
established by the Company in connection with the Engagement. Consultant shall
not commit any act, or make any statement, which would be deleterious to the
reputation and goodwill of the Company or any of the corporations affiliated
with the Company. Consultant agrees that he will use his best efforts to
represent the Company within the scope of the engagement and that he will act in
good faith in the best interests of the Company.
Section 2. COMPENSATION.
For all services rendered by Consultant, the Company shall compensate
Consultant as follows:
(a) Consulting Fees. The consulting fee payable to Consultant shall be
$125,000 per year, payable on a regular basis in accordance with the Company's
standard payroll procedures but not less frequently than monthly.
(b) Other Compensation and Benefits. Consultant shall be entitled to
receive additional benefits and other compensation from the Company in such form
and to such extent as specified below:
(i) Preferential brokerage commissions payable in accordance with
the terms and conditions of the standard Cathedral Group brokerage
agreement in amounts equal to thirty percent (30%) for property
listings and fifty percent (50%) for property sales.
(ii) Payment of all premiums for coverage for Consultant and family
under health, hospitalization, disability, dental, life and other
insurance plans that the Company may have in effect from time to time.
(iii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Consultant in the performance of
Consultant's services pursuant to this Agreement and consistent with
the Company's policy for the reimbursement of such consulting expenses
in effect from time to time, other than expenses relating to any car,
car phones, gas or car insurance incurred by Consultant. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Consultant upon submission of any request for reimbursement,
and in a format and manner consistent with the Company's expense
reporting policy.
(iv) The Company shall pay for or reimburse Consultant for a Full
Membership in the Tops'l Beach and Racquet Club excluding any expenses
or members costs relating to personal training, tennis lessons and
other separate ("a la carte") expenses.
Section 3. INTENTIONALLY DELETED.
Section 4. TERM; CESSATION; RIGHTS ON CESSATION.
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The term of this Agreement shall commence on the date hereof and
continue for three (3) years, (the "Term"). This Agreement and Consultant's
Engagement may be terminated in any one of the following ways:
(a) Death. The death of Consultant shall immediately terminate this
Agreement with no compensation due to Consultant's estate hereunder or
otherwise, except as set forth in subsection (f) of this SECTION 4.
(b) Disability. Subject to and conditioned upon the Company's
compliance with applicable law, if, as a result of incapacity due to physical or
mental illness or injury, Consultant shall have been absent from Consultant's
full-time duties hereunder for one hundred twenty (120) consecutive days, then
thirty (30) days after receiving written notice (which notice may occur before
or after the end of such one hundred twenty (120) day period, but which shall
not be effective earlier than the last day of such one hundred twenty (120) day
period), the Company may terminate Consultant's Engagement hereunder provided
Consultant is unable to resume Consultant's full-time duties at the conclusion
of such thirty (30) day notice period. Also, Consultant may terminate
Consultant's Engagement hereunder if his or her health should become impaired to
an extent that makes the continued performance of Consultant's duties hereunder
hazardous to Consultant's physical or mental health or life, provided that
Consultant shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that, at the Company's
request made within thirty (30) days of the date of such written statement,
Consultant shall submit to an examination by a doctor selected by the Company
and such doctor shall have concurred in the conclusion of Consultant's doctor.
In the event this Agreement is terminated as a result of Consultant's
disability, Consultant shall have no right to any compensation hereunder or
otherwise, except as set forth in subsection (f) of this SECTION 4.
(c) Good Cause. The Company may terminate the Agreement ten (10) days
after delivery of written notice to Consultant for good cause, which shall be:
(1) Consultant's breach of this Agreement, or failure to comply with any lawful
directive of the RQI Group Companies, the RQI Board, the Company Board or an
Executive Officer of RQI or the Company; (2) Consultant's failure to adequately
perform any of Consultant's material duties and responsibilities hereunder; (3)
Consultant's willful dishonesty, fraud, misconduct or any conduct constituting
or exhibiting moral turpitude or which adversely affects the operations or
reputation of the Company or any of the other RQI Group Companies; (4)
Consultant's conviction in a court of competent jurisdiction of a felony or any
misdemeanor other than a minor traffic violation; (5) chronic alcohol abuse or
illegal drug use by Consultant; (6) the usurpation of any corporate opportunity
of the Company or any of the other RQI Group Companies; or (7) the breach by
Consultant of any of the representations, warranties or covenants in the Stock
Purchase Agreement. In the event of a termination for good cause, as enumerated
above, Consultant shall have no right to any compensation hereunder or
otherwise, except as set forth in subsection (f) of this SECTION 4.
(d) By Either Party. At any time after the commencement of the
Engagement, either Consultant or the Company may terminate this Agreement
effective thirty (30) days after written
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notice is provided to the other party. Upon termination by either party,
Consultant shall receive no compensation hereunder or otherwise, except as set
forth in subsection (f) of this SECTION 4.
(e) Upon termination of this Agreement for any reason provided herein,
(i) Consultant shall be entitled to receive all fees earned and all expenses due
through the Cessation Date, and (ii) except as otherwise provided by SECTION 18
hereof all other rights, duties and obligations of the Company and the
Consultant under this Agreement shall cease and terminate as of the Cessation
Date.
Section 5. RETURN OF COMPANY PROPERTY.
All Proprietary Information including, without limitation, records,
designs, patents, business plans, financial statements, manuals, correspondence,
reports, charts, advertising materials, memoranda, lists and other property
delivered to or compiled by Consultant by or on behalf of the Company, any of
the other RQI Group Companies, or any of their representatives, suppliers,
vendors or customers which pertain to the business, activities or future plans
of the Company or any of the other RQI Group Companies shall be and remain the
property of such company, as the case may be, and be subject at all times to
their discretion and control and shall be, upon cessation of Consultant's
Engagement with the Company collected by Consultant and delivered promptly to
the General Counsel of the Company without request by the Company.
Section 6. LIMIT OF ENGAGEMENT.
This Agreement does not and shall not be construed to create any
employment relationship, partnership or agency whatsoever beyond the purposes
set forth in SECTION 1 above. Consultant acknowledges and agrees that he is an
independent contractor vis-a-vis the Company and that Consultant shall not be
deemed to be a partner, employee, agent, or legal representative of the Company
for any purpose other than the purposes of this Agreement set forth in said
SECTION 1, nor shall Consultant have any authority or power to act for, or to
undertake any obligation or responsibility on behalf of, the Company, or
corporations affiliated with the Company, other than as expressly herein
provided. Consultant represents and warrants that he conducts a business
enterprise independent of the Company. Further, Consultant acknowledges and
agrees that the amounts paid under SECTION 2 hereof are in full satisfaction of
all amounts due by the Company for services rendered by Consultant hereunder and
Consultant disclaims any right, title, or interest in employee benefits or
insurance offered by the Company or other compensation without regard to the
reclassification or other characterization of Consultant's relationship with the
Company at a future point in time by any Federal, State, or local government or
agency. In this regard, Consultant shall be solely responsible for obtaining his
own benefits, including Medicare, unemployment, workers' compensation or other
insurance and the payment of self-employment taxes excluding the insurance
coverage referenced in SECTION 2(b)(ii) hereof.
Section 7. UNAUTHORIZED ACTS.
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(a) Consultant represents and agrees with the Company that he will make
no disbursement or other payment of any kind or character out of the
compensation paid to him hereunder or with any other fund, or take or authorize
the taking of any other action which contravenes any statute or rule,
regulation, or order of any jurisdiction. Consultant further agrees to indemnify
and save harmless the RQI Group Companies, each of their respective subsidiaries
and affiliates and their directors, officers, and employees from any and all
liabilities, obligations, claims, penalties, fines or losses resulting from any
unauthorized or unlawful acts of Consultant (or from any violations by
Consultant of any laws or regulations, whether willful or not) and for any acts
by Consultant against Company policy, except to the extent such acts were
undertaken at the direction of the Company. Consultant further represents and
warrants that under no circumstances shall Consultant solicit or accept either
directly or indirectly any form of remuneration from any third party including
but not limited to any business owner or broker for or related to the
performance of Consultant's services hereunder. The provisions of this SECTION 7
shall survive the termination or expiration of this Agreement.
(b) Consultant agrees to disclose honestly and fully to the Company or
its authorized representatives all information and documentation in his
possession concerning all transactions or events relating to or affecting the
Company or any other RQI Group Company as and to the extent such information or
documentation (i) was acquired or developed by Consultant during his engagement
under this Agreement and (ii) is requested by the Company or the authorized
representative thereof.
Section 8. NO PRIOR AGREEMENTS.
Consultant hereby represents and warrants to the Company that the
execution of this Agreement by Consultant and his or her Engagement by the
Company and the performance of Consultant's duties hereunder will not violate or
be a breach of any oral or written agreement with, or other duty owed to, a
former employer, client or any other Person. Further, Consultant agrees to
indemnify the Company from and against any and all claims, judgments, fines,
actions, suits, demands, charges, costs and expenses including but not limited
to attorneys' fees and expenses (collectively, "Claims"), (i) relating to,
arising from, or in connection with any actions by Consultant outside the scope
of Consultants duties hereunder or as directed by the Company Board, the RQI
Board or any Executive Officer or (ii) any breach by Consultant of any oral or
written agreement between Consultant and any third party or any other duty owed
by Consultant to any third party.
Section 9. ASSIGNMENT; BINDING EFFECT.
Consultant understands that he or she has been selected for the
Engagement by the Company on the basis of Consultant's personal qualifications,
experience and skills. Consultant, therefore, shall not assign all or any
portion of Consultant's performance under this Agreement. Subject to the
preceding two (2) sentences, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns.
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Section 10. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings ascribed thereto in this SECTION 10:
(a) "Agreement" shall have the meaning assigned to such term in the
Recitals hereto.
(b) "Cathedral Group" shall mean Xxxxxx Realty Services, Inc., a
Florida corporation, Tops'l Sales Group, Inc, a Florida corporation, Xxxxxx
Resorts, Inc., a Florida corporation, Xxxxxx & Xxxxxxx Realty, Inc., a Florida
corporation, S.I.I.K., Inc., a Florida corporation, Tops'l Group, Inc., a
Florida corporation and Tops'l Club of NW Florida, Inc. , a Florida corporation
and any other subsidiaries and affiliates thereof during the term hereof.
(c) "Cessation Date" means the date of cessation of Consultant's
Engagement with the Company.
(d) "Claims" shall have the meaning assigned to such term in the
SECTION 8 hereof.
(e) "Company" shall have the meaning assigned to such term in the
Recitals hereto.
(f) "Company Board" shall mean the Board of Directors of the Company.
(g) "Consultant" shall have the meaning assigned to such term in the
Recitals hereto.
(h) "Executive Officer" means any of the Chief Executive Officer, the
Chief Operating Officer, the President, the Senior Vice President, the Chief
Financial Officer, the Secretary, the Treasurer, and the General Counsel of the
Company and of RQI.
(i) "Person" means any individual, firm, company, limited liability
company, partnership (including, without limitation, any general, limited,
limited liability or limited liability limited partnership), corporation
(including not-for-profit), joint venture, unincorporated organization or
association, trust, union, governmental entity, department or agency, or any
other entity, business or organization of whatever nature.
(j) "RQI" shall mean ResortQuest International, Inc., and its
successors and assigns.
(k) "RQI Board" shall have the meaning assigned to such term in SECTION
1(A) hereof.
(l) "RQI Group Companies" shall have the meaning assigned to such term
in the Recitals hereto.
(m) "Term" shall have the meaning assigned to such term in SECTION 4
hereof.
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Section 11. COMPLETE AGREEMENT; AMENDMENT.
(a) This Agreement supersedes any other agreements or understandings,
written or oral, among the Company and Consultant, and Consultant has no oral
representations, understandings or agreements with the Company or any of its
officers, directors or representatives covering the same subject matter as this
Agreement. This written Agreement is the final, complete and exclusive statement
and expression of the agreement between the Company and Consultant and of all
the terms of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements.
(b) This written Agreement may not be later modified except by a
written instrument signed by a duly authorized officer of the Company and
Consultant, and no term of this Agreement may be waived except by a written
instrument signed by the party waiving the benefit of such term.
Section 12. NOTICE.
Any and all notices given in connection with this Agreement shall be
deemed adequately given only if in writing and personally delivered, sent by
first class registered or certified mail, postage prepaid, return receipt
requested, sent by overnight national courier service, sent by facsimile,
provided a hard copy is mailed on that day to the party for whom such notices
are intended or sent by other means at least as fast and reliable as first class
mail. A written notice shall be deemed to have been given to the recipient party
on the earlier of (i) the date it shall be delivered to the address required by
this Agreement, (ii) the date delivery shall have been refused at the address
required by this Agreement, (iii) with respect to notices sent by mail, the date
as of which the postal service shall have indicated that the notice has been
delivered to the address required by this Agreement, (iv) with respect to a
facsimile, the date on which the facsimile is sent. Any and all notices referred
to in this Agreement, or which any party desires to give the other, shall be
addressed as follows:
To the Company: ResortQuest International, Inc.
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Lines, Senior Vice President, General
Counsel and Secretary
with a copy to: Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxx, X.X. Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx., Esq. or
Xxxxxx X. Xxxxxxx, Esq.
To Consultant: Xxxxxxx X. Xxxxxx Xx.
000 Xxxxxxx 00 Xxxx
Xxxxxx, Xxxxxxx 00000
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with a copy to: Xxxxx Xxxxxxxx, Esq.
Smith, Grimsley, Bauman, Pinkerton, Xxxxxxxxx, Xxxxx
& Xxxxx
00 X.X. Xxxxxx Xxxxxx Xxxx
Xxxx Xxxxxx Xxxxx, Xxxxxxx 00000
Section 13. SEVERABILITY; HEADINGS.
If any portion of this Agreement is held invalid or inoperative, the
other portions of this Agreement shall be deemed valid and operative and, so far
as is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
Section 14. GOVERNING LAW.
This Agreement shall in all respects be construed according to the laws
of the State of Delaware.
Section 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS
The Company and Consultant hereby irrevocably submit to the
jurisdiction of the federal courts located in Florida in connection with any
suit, action or other proceeding arising out of or relating to this Agreement,
and hereby agree not to assert, by way of motion, as a defense, or otherwise in
any such suit, action or proceeding that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced by such courts.
Section 16. WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMMERCIAL MATTERS,
INCLUDING CONSULTING AGREEMENTS, ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY
AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES (IF ANY) BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS CONSULTING AGREEMENT OR MATTERS RELATED
HERETO.
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Section 17. CONSTRUCTION AND INTERPRETATION
Should any provision of this Agreement require judicial
interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party that itself,
or through its agent, prepared the same, and it is expressly agreed and
acknowledged that the Consultant, the Company and their respective
representatives, legal and otherwise, have participated in the preparation
hereof.
Section 18. SURVIVAL
Notwithstanding anything in this Agreement to the contrary, SECTIONS 3,
5, 6, 7, 8, 12, 14, 15, 16, 17, 18 and 19 of this Agreement shall survive any
termination of this Agreement or of the Consultant's Engagement hereunder until
the expiration of the respective statute(s) of limitations applicable thereto.
Section 19. THIRD PARTY BENEFICIARIES.
Except as expressly provided herein with respect to affiliates of the
Company, this Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person or entity not a party to this Agreement.
Section 20. COUNTERPARTS.
This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX REALTY SERVICES, INC.
By: /s/ Xxxx X. Lines
------------------------------
Name: Xxxx X. Lines
Title: Senior Vice President and Secretary
"CONSULTANT"
/s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxxx, Xx., individually
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