CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and
entered into as of the 14th day of November, 1995, by and between
XxxxXxxx Hospitality Corporation (the "Company") and Xxxx Xxxxxx
("Consultant").
WHEREAS, Consultant has provided consulting services to the
Company which commenced in July 1995;
WHEREAS, the Company desires to formally retain Consultant
as a consultant and Consultant desires to render consulting
services to the Company under the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, the
mutual promises hereinafter set forth and other good and valuable
consideration had and received, the parties hereto hereby agree
as follows:
1. Consulting.
(a) Upon and subject to the terms, conditions and
other provisions of this Agreement, the Company hereby retains
Consultant during the term as defined in Section 2 hereof, and
Consultant hereby accepts and agrees to provide consultation and
advisory services relating to public relations, general policy,
business development and acquisitions, sales and marketing and
such other matters as may be reasonably requested from time to
time with respect to the Company's business. Consultant shall
devote such time as Consultant determines is necessary to perform
the duties set forth or contemplated herein. No provision of
this Agreement shall be construed to preclude Consultant from
engaging in any activity whatsoever, part-time or full-time,
including without limitation, acting as a director, officer,
partner, employee, trustee, investor, consultant, advisor or
official of any corporation, partnership, institution or business
entity, or from receiving compensation or profit therefor.
(b) In performance of its duties and obligations
hereunder, Consultant shall report to the President of the
Company. Without Consultant's consent, Consultant shall not be
required to perform any duties hereunder outside the City of Los
Angeles.
2. Term. The term of this Agreement shall commence on the
date hereof (the "Commencement Date") and shall end on the one
anniversary of such date (the "Termination Date"), unless this
Agreement is renewed or extended by written agreement on terms
mutually acceptable to the parties.
DCC1346B 26243-1
3. Compensation. As a condition of, and in consideration
for Consultant's entering into this Agreement, the Company agrees
that concurrently with the execution of this Agreement (the
"Execution"), the Company shall issue to Consultant 300,000
shares (the "Shares") of its Common Stock at a cost basis of
$.05/share (subject only to legal restrictions on
transferability) and 500,000 stock options having a one year
expiration from the date of issuance having exercise prices of
$.375 for 200,000 options, $.625 for 200,000 options, and $.75
for 100,000 options. The Company agrees that (subject to
applicable law) it will have such shares included within and
covered by a Registration Statement on Form S-8 (or any other
applicable form) which the Company will file with the Securities
and Exchange Commission as soon as possible following the
Execution. The Company shall pay all of the expenses relating to
the foregoing.
4. Expenses. The Company shall reimburse Consultant for
those reasonable out-of-pocket expenses for communications and
local travel directly incurred in connection with its consulting
services hereunder. Any travel beyond ground transportation or
other extraordinary expenses must be authorized by the Company in
advance.
5. Indemnification. The Company shall indemnify the
Consultant to the fullest extent permitted by law (including by
advancing or paying the expenses, including reasonable legal
fees, of the Consultant upon the request of the Consultant,
subject to the Consultant providing an undertaking to repay such
advanced expenses if it is ultimately determined by a court of
component jurisdiction that Consultant is not entitled by law to
be indemnified by the Company) for all expenses (including
reasonable legal fees and expenses), judgments, fines, amounts
paid in settlement, costs and liabilities which Consultant may
incur by reason of entering into this Agreement, serving as a
consultant of the Company and in the discharge of its duties in
connection therewith; provided, however, that such indemnity
shall not apply to any such expenses, judgments, fines, amounts
paid in settlement, costs, and liabilities to the extent they
result primarily from (i) a breach by Consultant of a provision
of this Agreement or applicable law or (ii) Consultant's
negligence or willful misconduct. Consultant's rights under this
Section 5 shall be in addition to any other rights and insurance
coverage which may be available to it.
6. Confidential Information.
(a) Consultant agrees that he will not at any time during
the term hereof and thereafter divulge or communicate to any
person or entity other than the Company, or use to the detriment
of the Company or any parent, subsidiary or affiliate Company or
for the benefit of any other person or entity, or misuse in any
other way, any confidential information or trade secrets of the
DCC1346B 26243-1 2
Company. For this purpose, the terms "confidential information"
and "trade secrets" shall be deemed to include all information
concerning the Company's or any parent, subsidiary or affiliate
Company's properties, assets, operations or business except that
which (i) has been made available to the public by the Company,
(ii) is in the public domain, or (iii) is readily ascertainable
from public or published information and trade secrets of the
Company that he has acquired, or may acquire, were received, or
will be received, in confidence and as a fiduciary of the
Company. Notwithstanding the foregoing, Consultant may disclose
information relating to the Company's business that would
otherwise be required to be kept confidential (i) to third
parties if such disclosure is required or appropriate in the
conduct of his duties and responsibilities as defined in Section
1 of this Consulting Agreement, provided such persons acknowledge
the confidentiality of such information and agree to hold it in
confidence according to the terms hereof; (ii) if required to be
disclosed pursuant to a lawsuit or other proceeding involving the
parties hereto or any other third party; or (iii) if authorized
by the Company in writing. Consultant shall exercise utmost
diligence to protect and guard the Company's information.
(b) Upon termination of this Consulting Agreement,
Consultant shall deliver to the Company all property and
documents of the Company relating to the Company's or any parent,
subsidiary or affiliate Company's business that Consultant is
required to keep confidential under paragraph 6(a) then in
Consultant's custody or control, and shall not retain any such
property, documents or data without the written consent of the
Company.
7. Equitable Relief. The Company and Consultant agree
that a monetary remedy for breach of this Agreement by the
Company shall be inadequate, and will be impracticable and
extremely difficult to prove, and further agree that such a
breach will cause Consultant irreparable harm, and that, in
addition to any other rights or remedies available to Consultant,
Consultant is entitled to temporary and permanent injunctive
relief upon meeting the standard required under applicable law.
The Company shall have no rights of set-off, offset or
counterclaim against any of the Shares. The provisions of this
Agreement shall each be deemed severable, and the validity or
unenforceability of any one or more of the provisions herein
shall not effect the validity or enforceability of the other
provisions.
8. Independent Contractor Status. Consultant understands
and agrees that he is entering into this Consulting Agreement as
an independent contractor, and that the Company considers
Consultant to be an independent contractor and not an employee of
the Company. Consultant agrees that the Company shall have no
responsibility for or liability with respect to any income or
other taxes or withholding in connection with payments to
DCC1346B 26243-1 3
Consultant hereunder, and Consultant hereby indemnifies and holds
harmless the Company of any taxes, penalties, costs, assessments,
expenses, damages or losses that the Company incurs with respect
to any such taxes or withholding. The Company will not be
obligated to maintain any insurance for Consultant, including,
but not limited to, medical, dental, automobile, life or
disability insurance, and Consultant will be solely responsible
for maintaining any such insurance for Consultant. Consultant
acknowledges that he will not be entitled to participate in any
employee benefit plans that are intended to provide benefits to
"employees" of the Company unless such plans state specifically
that they are intended to provide benefits to persons who are
designated as "Consultants."
9. Assignment. This Agreement and the rights, duties and
obligations hereunder may not be assigned, transferred or
delegated in any way by either party without the prior written
consent of the other party hereto. This Agreement and the
provisions hereof shall be binding upon and shall inure to the
benefit of each of the parties and their respective permitted
successors and assigns.
10. Governing Law. This Agreement shall be owned by and
construed in accordance with the laws of the State of California.
11. Counterparts, etc. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but both
of which together shall constitute one and the same instrument.
Telecopied signatures hereto shall have the same validity as
manually executed original signatures. The headings of the
Sections of this Agreement are inserted for convenience only and
shall not constitute a part hereof.
12. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the engagement of
Consultant by the Company and supersedes all prior and
contemporaneous agreements, representations and understandings of
the parties. No modification, amendment, supplement or waiver of
any of the provisions of this Agreement shall be effective unless
in writing specifically referring hereto and executed by both
parties.
13. Severability. To the extent that the terms set forth
in this Agreement or any word, phrase, clause or sentence is
found to be illegal or unenforceable for any reason, the balance
of this Agreement shall not be affected thereby, such balance
being construed as severable and independent, and the remaining
portion of this Agreement shall remain in full force and effect
as if this Agreement has been executed with the invalid provision
eliminated.
14. Notices. All notices, requests and other
communications under this Agreement shall be in writing and shall
DCC1346B 26243-1 4
be deemed to have been delivered and received five business days
after having been deposited in the United States mail and
enclosed in a registered or certified post-paid envelope; one
business day after having been sent by overnight courier; when
personally delivered or when scanned graphically or otherwise by
telegraphic or facsimile communications equipment of the sending
party or its agent on a business day or otherwise on the next
succeeding business day.
15. Cooperation. Each party hereto shall cooperate with
the other party and shall take such further action and shall
execute and deliver such further documents as may be necessary or
desirable in order to carry out the provisions and purposes of
this Agreement.
16. Waiver. The failure to enforce at any time of the
provisions of this Agreement, or to require at any time
performance by the other party of any of the provisions hereof,
shall in no way be construed to be a waiver of such provisions or
to affect either the validity of this Agreement or any part
hereof or the right or either party thereafter to enforce each
and every provision in accordance with the terms of this
Agreement. A waiver of any term or condition of this Agreement
by any party shall only be effective if in writing and shall not
be construed as a waiver of any subsequent breach or failure of
the same term or condition, or a waiver of any other term or
condition of this Agreement.
17. Prevailing Party. If any action at law or in equity is
brought to enforce or interpret the provisions of this Agreement,
the prevailing party in such action shall be entitled to recover
as an element of such party's costs of suit, and not as damages,
its reasonable attorney's fees.
18. Interpretation. Each party hereby stipulates with the
other, that it has been represented by or had the opportunity to
be represented by, independent counsel of its own choosing, that
it has had the full opportunity to consult with as respective
attorneys, that its authorized officers have carefully read this
Agreement in its entirety and have had it fully explained to them
by such party's respective counsel, that each is fully aware of
the contents thereof and its legal effect, and its authorized
officer has executed this Agreement free from coercion, duress or
undue influence. Each party and its counsel cooperated in the
drafting and preparation of this Agreement and the documents
referred to herein. Accordingly, any rule of law, including but
not limited to, California Civil Code Section 1654 or any legal
decision that would require interpretation of any ambiguities in
this Agreement against the party that drafted it, is of no
application and is hereby expressly waived. The provisions of
this Agreement SW be interpreted in a reasonable manner to effect
the intentions of the parties and this Agreement.
DCC1346B 26243-1 5
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the date first set forth above.
XXXX XXXXXX
By:/s/Xxxx Xxxxxx
Xxxx Xxxxxx
XXXXXXXX HOSPITALITY CORPORATION
By: /s/Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
President
DCC1346B 26243-1 6
