EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made this 22nd day of
April, 1997, by and between FIRST AMERICAN RAILWAYS, INC., a Nevada corporation
(the "Company"), and XXXXX X. XXXXXXX (the "Consultant").
R E C I T A L S:
WHEREAS, the Company is in the process of developing a tourist-oriented
passenger train between Southeast Florida and Orlando, Florida, known as the
Florida Fun-Train; and
WHEREAS, the Company owns The Durango & Silverton Narrow Gauge Railroad
Company ("D&SNG"), which operates an antique railroad located in the
four-corners region of Colorado; and
WHEREAS, the Company desires to engage the Consultant to provide
certain services with respect to the Company's business; and
WHEREAS, the Consultant desires to provide those services to the
Company, all as more specifically set forth below.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties contained, the parties hereby agree as
follows:
1. CONSULTING ENGAGEMENT. The Company hereby engages the Consultant as a
consultant and advisor with respect to the matters specifically set forth
herein, and the Consultant hereby accepts such engagement by the Company.
2. CONSULTING SERVICES. During the term of this Agreement, the
Consultant shall undertake for and on behalf of the Company to produce various
stand alone commercial spots, video presentations and additional commercials,
and, after written request from the Company, an update of the videotapes
referred to above to document the commencement of operations of the Florida
Fun-Train and other related operations of the Company and D&SNG.
The Consultant and the Company agree to work together to form
the content of these productions.
(x) The Consultant shall:
(i) Consult with the Company through its
designated representatives throughout the
entire production and give the Company the
right to review and approve the work at all
phases, including, without limitation, at
the completion of the following production
phases:
/bullet/ Theme and format development
/bullet/ Script writing
/bullet/ Storyboard (visual content planning)
/bullet/ Narration, music and sound track
(ii) Provide script, storyboard, library music,
videotape and narration.
(iii) Deliver the agreed upon finished products.
(y) The Company shall:
(i) Make its marketing and operations staffs
available, for consultations with the
Consultant, for the purposes of content
development and technical advice.
(ii) Provide necessary and reasonable access and
transportation when requested by the
Consultant.
If and when reasonably requested by the Company, the
Consultant shall provide the Company with a written report on its performance
under this Agreement, documenting its activities.
All work product and finished product will be the exclusive
property of the Company.
The services of the Consultant hereunder are not on a full
time basis and the Company shall have no direction, control of, or interest in,
the Consultant's services which are not covered by the terms of this Agreement.
The Company hereby waives any conflict of interest which now exists or may
hereafter arise with respect to the Consultant's current employment and future
employment.
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3. COMPENSATION. In consideration of the consulting services set forth
in paragraph 2, and subject to the terms and conditions set forth herein, the
Company agrees to issue shares of the Company's common stock, par value $.001
per share (the "Shares") in such amounts commensurate with the value of the
services rendered by the Consultant to the Company, based on the then current
fair market value of such Shares of Common Stock. The Company agrees to
immediately register the Shares on Form S-8 under the Securities Act of 1933, as
amended, and thereafter maintain the effectiveness thereof. The Company shall
provide Consultant with evidence that the offering of the Shares has been
registered on Form S-8, or on an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the resale thereof in
accordance with the Securities Act of 1933, as amended.
The Company shall deliver to the Consultant the certificate or
certificates evidencing the appropriate number of Shares to be issued to the
Consultant as provided above, all registered in the name of the Consultant.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company hereby represents and warrants that it has
full power and legal right and authority to execute, deliver and perform under
this Agreement, and that the officers executing this Agreement on behalf of the
Company have full power and authority to do so.
(b) The Company hereby represents and warrants that this
Agreement has been duly authorized by all necessary corporate action, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject only to applicable bankruptcy, insolvency, reorganization or
other similar law relating to or affecting the rights of creditors generally and
to principles of equity.
(c) Neither the execution or delivery of this Agreement, the
issuance or delivery of the Shares, the performance by the Company of its
obligations under this Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a breach of or a
default (with the passage of time or otherwise) under, require the consent or
approval of or filing with any person (other than consents and approvals which
have been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or assets of the
Company pursuant to the charter or bylaws of the Company, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or regulation to which
the Company is a party or to which any such person or any of their respective
properties or assets is subject.
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(d) The Company hereby covenants and agrees to indemnify and
hold harmless the Consultant from and against any and all expenses (including
attorney's fees and court costs), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with any action, suit
or proceeding if (i) the Consultant was made a party to such action, suit or
proceeding by reason of the fact that the Consultant rendered services or advice
pursuant to (and not in violation of this Agreement), (ii) the Consultant acted
in a manner reasonably believed by the Consultant to be in (or not opposed to)
the interests of the Company, and (iii) the Consultant had no reasonable cause
to believe its conduct was unlawful.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CONSULTANT.
(a) The Consultant hereby covenants and agrees to indemnify
and hold harmless the Company from and against any and all expenses (including
attorney's fees and court costs), judgments, fines, claims, causes of action,
liabilities and other amounts paid (whether in settlement or otherwise actually
and reasonably incurred) by the Consultant in connection with any action, suit
or proceeding if (i) the Company was made a party to such action, suit or
proceeding by reason of fact that the Company rendered services or advice in
violation of this Agreement, (ii) the Company acted in a manner reasonably
believed by the Company to be in (or not opposed to) the interests of the
Consultant, and (iii) the Company had no reasonable cause to believe its conduct
was unlawful.
(b) The Consultant hereby represents and warrants that it
shall not be engaged, directly or indirectly, in capital-raising transactions or
stock price promotional activities in connection with the services to be
rendered hereunder.
(c) The Consultant represents and warrants that his
credentials as set forth on the attachment hereto are true and correct.
6. INDEPENDENT CONTRACTOR STATUS. It is expressly understood and agreed
that this is a consulting services agreement only and does not constitute an
employer/employee relationship. Accordingly, the Consultant agrees that the
Consultant shall be solely responsible for the payment of its own taxes or sums
due to the federal, state or local governments, office overhead, worker's
compensation, fringe benefits, pension contributions and other expenses, except
as otherwise specifically provided herein to the contrary. It is further
understood and agreed that the Consultant is an independent contractor and that
the Company shall have no right to control the activities of the Consultant
other than to require the Consultant to provide its consulting services pursuant
to the terms and conditions of this Agreement. Moreover, the Consultant shall
have no authority to bind the Company.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Any notice, request, demand or other
communication required or permitted pursuant to this Agreement shall be in
writing and shall be deemed to have been properly given if delivered in person
or by courier or other recognized overnight carrier, by facsimile
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transmission or by certified or registered mail, postage prepaid and return
receipt requested, at the address indicated below or at any other address as may
be designated from time to time by written notice. Notices shall be deemed given
upon delivery:
IF TO COMPANY: FIRST AMERICAN RAILWAYS, INC.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Vice President of Marketing & Sales
Facsimile (000) 000-0000
IF TO CONSULTANT: XXXXX XXXXXXX
0000 00xx Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto relating to the subject matter hereof, and
supersedes all prior written or oral agreements, commitments or understandings
with respect to the matters provided for herein, and no modifications shall be
binding unless set forth in writing and duly executed by each party hereto.
(c) EXPENSES. Each of the parties hereto shall bear its own
expenses in connection with the preparation of this Agreement.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, executors,
administrators, and successors, including any corporation with which or into
which either party may be merged or which may succeed to its assets or business.
Notwithstanding the foregoing, the consulting services to be rendered by the
Consultant are not assignable without the express written consent of the
Company.
(e) HEADINGS. The heading or captions of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions hereof.
(f) IDENTIFICATION. Whenever required by the context of this
Agreement, the singular number shall include the plural, the masculine gender
shall include the feminine and the neuter genders, and the work "person" or
"party" shall include a corporation, firm, partnership, proprietorship or other
form of association.
(g) WAIVER. The waiver by any party to this Agreement of a
breach of any provision of this Agreement shall not be deemed a continuing
waiver or a waiver of any subsequent
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breach of that or any other provision of this Agreement.
(h) ATTORNEY'S FEES AND COSTS. In the event litigation shall
be necessary to enforce or interpret any of the provisions of this Agreement,
the prevailing party shall be entitled to recover its reasonable attorney's fees
and costs before trial, at trial and on any appellate level.
(i) COUNTERPARTS. For the convenience of the parties hereto,
this Agreement may be executed in one or more counterparts, which shall each be
considered an original. All of the counter-parts shall constitute one and the
same agreement.
(j) SEVERABILITY. If any provision of this Agreement shall be
declared invalid or unenforceable, the remainder of this Agreement will continue
in full force and effect so far as the intent of the parties hereto can be
carried out.
(k) CONSTRUCTION. Should any provision of this Agreement
require judicial interpretation, it is agreed 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 construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation hereof.
(l) RECITALS. The recitals set forth at the beginning of this
Agreement are incorporated by reference in, and made a part of, this Agreement.
(m) GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of the day and year first above written.
THE COMPANY:
FIRST AMERICAN RAILWAYS, INC.
BY:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
NAME: XXXXXX X. XXXXXXX
TITLE:VICE PRESIDENT, TREASURER AND
ACTING CHIEF FINANCIAL OFFICER
CONSULTANT:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
XXXXX X. XXXXXXX
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