MANAGEMENT AGREEMENT
AGREEMENT made this ___ day of January, 1999, by and between Jupiter Marine
International Holdings, Inc., a Florida corporation with an address at 0000
Xxxxxxxxx 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the "Company") and Triton
Holdings International Corp., a Delaware corporation with an address at 0000
Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000 (the "Consultant").
W I T N E S S E T H
WHEREAS, the Company is engaged in the business of manufacturing, marketing and
distributing custom yachts;
WHEREAS, the Consultant is a company which possesses general financial and
business expertise;
WHEREAS, the Company desires to retain the Consultant to provide financial and
management consulting services to the Company pursuant to the terms and
conditions of this agreement (the "Agreement");
WHEREAS, the Consultant has offered to provide to the Company, and the Company
has agreed to accept the Consultant's expertise and services to consult and
advise the Company with respect to various financial and management aspects of
the Company's business.
NOW, THEREFORE, in consideration of the mutual covenants of the parties which
are hereinafter set forth and for other good and valuable consideration, receipt
of which is hereby acknowledged,
IT IS AGREED:
1. Recitals.
The parties hereby adopt as part of this Agreement each of the recitals which
are contained above in the WHEREAS clauses, and agree that such recitals shall
be binding upon the parties hereto by way of contract and not merely by way of
recital or inducement; and such clauses are hereby confirmed and ratified as
being accurate by each party as to itself.
2. Retention as Consultant
The Company hereby retains the Consultant to be an adviser and consultant to the
Company and its officers and directors upon the terms and conditions hereinafter
set forth.
A. The Consultant shall not be required to devote any minimum number of weeks,
days, or hours to the affairs of the Company during the term of this Agreement,
and the Consultant shall only be required to devote such time, attention and
energies to the business of the Company as the Consultant, in its sole and
absolute discretion, deems necessary to fulfill its duties hereunder. The
parties acknowledge and agree that the services which are to be provided by the
Consultant pursuant to this Agreement shall not be required to be provided at
the Company's place of business.
B. The Consultant acknowledges that it does not have and, without the prior
written approval of the Company, shall not have the authority to commit or bind
the Company to any recommendation or course of action or to perform any act on
its behalf including, but not limited to, entering into any agreement or
contract on behalf of the Company.
C. The Company acknowledges that the Consultant is, and will be, engaged in
numerous other business activities and that it will continue such activities
during the term of this Agreement. The Consultant shall not be restricted from
engaging in other business activities during the Term (hereinafter defined in
Article "5" of this Agreement).
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D. During the Term and in order to facilitate the performance of the
Consultant's services hereunder, the Company shall give the Consultant
reasonable advance notice of all meetings of the Board of Directors of the
Company and a designee of the Consultant shall be authorized and permitted to
attend and participate in such meetings of the Board of Directors.
E. The Company shall, upon presentation of proper receipts or payment vouchers,
pay for or reimburse the Consultant for all reasonable and necessary travel,
entertainment and other out-of-pocket expenses which may be incurred by the
Consultant in the performance of its duties hereunder and during the Term .
3. Services.
The Company hereby engages the Consultant to perform general business consulting
services in connection with the Company's conduct of its business including, but
not limited to, development and maintenance of internal bookkeeping functions,
business planning and consulting and advice with respect to the structure and
expansion of the Company, public relations, financial, accounting and tax
reporting.
4. Term.
The term of this Agreement shall be for a period of five (5) years, commencing
on the 1st day of January, 1999 and ending on December 31, 2003 (the
"Termination Date").
5. Compensation.
In consideration for the services which are to be rendered by the Consultant
pursuant to this Agreement, the Consultant shall receive Five Thousand ($5,000)
Dollars per month payable on the first day of each month during the term of this
Agreement commencing January 1, 1999.
6. Representations and Warranties of the Company. The Company covenants,
represents and warrants to the Consultant the following:
A. The Company is a corporation duly and validly organized and existing under
the laws of the State of Florida and has the full right, power and authority to
enter into this Agreement, and to execute, deliver and receive all instruments
and documents executed and delivered or received. There are no actions, suits or
proceedings pending against the Company before or by any court, administrative
agency or other governmental agency or other governmental authority which brings
into question the validity of, or in any way, legally impairs, the execution,
delivery or performance by the Company of this Agreement.
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B. The execution and delivery of this Agreement by the Company and the
performance by the Company of its obligations hereunder, have been duly
authorized by all necessary actions of the Company and does not violate or
conflict with (i) any provision of the Articles of Incorporation, (ii) By-laws,
(iii) any law or any order, writ, injunction, decree, rule or regulation of any
court, administrative agency or any other governmental authority, or (iv) any
agreement to which the Company is a party or by which its assets is bound.
C. The Company is not subject to any restriction or agreement which, with or
without the giving of notice, the passage of time, or both, prohibits or would
be violated by, the execution, delivery and consummation of this Agreement and
the transactions which are referred to in this Agreement. All consents which are
necessary for such execution delivery or consummation by the Company have been
obtained.
7. Representations and Warranties of the Consultant. The Consultant covenants,
represents and warrants to the Company as follows:
A. The Consultant is a corporation duly and validly organized and existing under
the laws of the State of Delaware and has full right, power and authority to
enter into this Agreement, and to execute, deliver and receive all instruments
and documents executed and delivered or received, or to be executed and
delivered or received, in connection with the transactions which are
contemplated by this Agreement. There are no actions, suits or proceedings
pending against the Consultant before or by any court, administrative agency or
other governmental agency or other governmental authority which brings into
question the validity of, or in any way, legally impairs, the execution,
delivery or performance by the Consultant of this Agreement.
B. The execution and delivery of this Agreement by the Consultant and the
performance by the Consultant of its obligations hereunder, have been duly
authorized by all necessary actions of the Officers or Directors of the
Consultant and does not violate or conflict with (i) any provision of the
Consultant's Articles of Incorporation, (ii) By-laws, (iii) any law or any
order, writ, injunction, decree, rule or regulation of any court, administrative
agency or any other governmental authority, or (iv) any agreement to which the
Consultant is a party or by which the Consultant or its assets are bound.
C. The Consultant is not subject to any restriction or agreement which, with or
without the giving of notice, the passage of time, or both, prohibits or would
be violated by, the execution, delivery and consummation of this Agreement and
the transactions which are referred to in this Agreement. All consents which are
necessary for such execution, delivery or consummation by the Consultant have
been obtained.
8. Survival of Representations, Warranties and Covenants. All covenants,
agreements, representations and warranties made in or in connection with this
Agreement shall survive its termination, and shall continue in full force and
effect after its
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termination, it being understood and agreed that each of such covenants,
agreements, representations and warranties is of the essence of this Agreement
and the same shall be binding upon and shall inure to the benefit of the parties
hereto, their successors and assigns.
9. Indemnification. The Company hereby agrees to indemnify and hold harmless the
Consultant, its affiliates and all partners, directors, officers, shareholders,
employees and agents of the foregoing (each a "Consultant Indemnified Person"),
from and against any and all claims, suits, actions, judgments, damages,
liabilities, expenses and costs, including reasonable attorney fees and court
costs, that the Consultant Indemnified Person may incur as a result of or
otherwise related to the performance of services by the Consultant solely in its
capacity as a consultant; provided, however, that the Consultant agrees and
acknowledges that the indemnification provided herein shall not apply with
respect to any matter which is the result of bad faith or gross negligence or
willful misconduct of the Consultant and/or any other indemnified person or a
breach of any law or this Agreement by any such person. The Consultant hereby
agrees to indemnify and hold harmless the Company, and all their respective
affiliates, partners, directors, officers, shareholders, employees and agents of
the foregoing (each an "Indemnified Person"), from and against any and all
claims, suits, actions, judgments, damages, liabilities, expenses and costs,
including reasonable attorneys fees and court costs, that any Consultant
Indemnified Person may incur as a result of or otherwise related to any matter
which is the result of bad faith or the gross negligence or willful misconduct
of any Consultant Indemnified Person or a breach of any law or this Agreement by
such Person.
10. No Agency. The Consultant is not and shall not be deemed to be the legal
representative or agent of the Company for any purpose whatsoever. Neither party
shall have the right or authority to act or bind the other in any way or to sign
the name of the other or to represent that the other is in any way responsible
for his or its acts or omissions. The Consultant and the Company shall not be
deemed to be a partner or joint venturer of the other. The Consultant's
employees shall not be entitled to any benefits available to employees of the
Company.
11. Miscellaneous.
A. Headings. Headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
B. Enforceability. If any provision which is contained in this Agreement should,
for any reason, be held to be invalid or unenforceable in any respect under the
laws of any jurisdiction, such invalidity or unenforceability shall not affect
any other provision of this Agreement. Instead, this Agreement shall be
construed as if such invalid or unenforceable provisions had not been contained
herein.
C. Notices. Any notice or other communication required or permitted hereunder
must be in writing and sent by either (i) certified mail, return receipt
requested, postage prepaid, (ii)
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overnight delivery with confirmation of delivery, or (iii) facsimile
transmission with an original mailed by first class mail, postage prepaid,
addressed as follows:
If to Consultant: Triton Holdings International Corp.
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
Facsimile No.:
(000) 000-0000
with a copy to: Xxxxx & Fraade, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Company: Jupiter Marine International
Holdings, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
and copies to: Atlas, Pearlmen, Trop and Borkson
000 Xxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and if the other methods of sending notice set forth in this
Paragraph "C" of this Article "11" of this Agreement are not available, the
notice shall be hand delivered to the above addresses. Each notice or
communication shall be deemed to have been give as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing differs from the date of sending by facsimile,
then the date of mailing by first class mail shall be deemed to be the date upon
which notice was given.
D. Governing Law; Disputes. This Agreement shall in all respects be construed,
governed, applied and enforced under with the internal laws of the State of
Delaware without giving effect to the principles of conflicts of laws and be
deemed to be an agreement entered into in the State of Delaware and made
pursuant to the laws of the State of Delaware. Except as otherwise provided in
Article "9" of this Agreement, the parties agree that they shall be deemed to
have agreed to binding arbitration in Xxxx
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Xxxxx, Xxxxxxx, with respect to the entire subject matter of any and all
disputes relating to or arising under this Agreement including, but not limited
to, the specific matters or disputes as to which arbitration has been expressly
provided for by other provisions of this Agreement. Any such arbitration shall
be by a panel of three arbitrators and pursuant to the commercial rules then
existing of the American Arbitration Association in the State of Florida, County
of Palm Beach. In all arbitrations, judgment upon the arbitration award may be
entered in any court having jurisdiction. The parties agree, further, that the
prevailing party in any such arbitration as determined by the arbitrators shall
be entitled to such costs and attorney's fees, if any, in connection with such
arbitration as may be awarded by the arbitrators. In connection with the
arbitrators' determination for the purpose of which party, if any, is the
prevailing party, they shall take into account all of the factors and
circumstances including, without limitation, the relief sought, and by whom, and
the relief, if any, awarded, and to whom. In addition, and notwithstanding the
foregoing sentence, a party shall not be deemed to be the prevailing party in a
claim seeking monetary damages, unless the amount of the arbitration award
exceeds the amount offered in a legally binding writing by the other party by
fifteen percent (15%) or more. For example, if the party initiating arbitration
("A") seeks an award of $100,000 plus costs and expenses, the other party ("B")
has offered A $50,000 in a legally binding written offer prior to the
commencement of the arbitration proceeding, and the arbitration panel awards any
amount less than $57,500 to A, the panel should determine that B has
"prevailed". The parties specifically designate the Courts in the City of Boca
Raton, State of Florida as properly having jurisdiction for any proceeding to
confirm and enter judgment upon any such arbitration award. The parties hereby
consent to and submit to personal jurisdiction over each of them by the Courts
of the State of Florida in any action or proceeding, waive personal service of
any and all process and specifically consent that in any such action or
proceeding, any service of process may be effectuated upon any of them by
certified mail, return receipt requested, in accordance with Paragraph "C" of
this Article "11" of this Agreement.
E. Entire Agreement. The parties have not made any representations, warranties,
or covenants about the subject matter hereof which is not set forth herein, and
this Agreement, together with any instruments executed simultaneously herewith,
constitutes the entire Agreement between them about the subject matter hereof.
All understandings and agreements heretofore had between the parties about the
subject matter hereof are merged in this Agreement and any such instrument which
alone fully and completely expresses their Agreement.
F. Modification. This Agreement may not be changed, modified, extended,
terminated or discharged orally, but only by an agreement in writing which is
signed by all of the parties to this Agreement.
G. Further Assurances. The Parties agree to execute any and all such other and
further instruments and documents, and to xxxx
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any and all such further actions which are reasonably required to consummate,
evidence, confirm or effectuate this Agreement and the intents and purposes
hereof.
H. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
I. Waiver. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver of any other or subsequent breach.
J. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
Jupiter Marine International Holdings, Inc.
------------------------------
By: Xxxx Xxxxxxx
President
Triton Holdings International Corp.
----------------------------
By:Xxxxxx X. Xxxxxx
President
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