EXHIBIT 99.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as
effective the 11th day of November, 1999, by and between UNITED RACEWAYS, INC, a
Delaware corporation ("Company") and Xxxxx Xxxxxxxx ("Consultant").
A. The Company wishes to engage the services of Consultant as an
independent contractor to the Company;
B. The Consultant represents that it has no prior or existing legally
binding obligations that are in conflict with its entering into this Agreement;
and
C. The Consultant is willing to be so retained on the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains Consultant as an independent
contractor to the Company, and Consultant hereby accepts such engagement on the
terms and conditions hereinafter set forth.
2. Term. This Agreement shall be in effect for an initial term of one
year, commencing upon execution by both parties, and shall be renewable
automatically, without any action of the parties, on an annual basis thereafter,
unless either party gives the other written notice of an intention not to renew
this Agreement at least thirty (30) days prior to the end of the initial term or
any renewal term thereof.
3. Duties of Consultant. The Company retains Consultant to provide
general strategic and product distribution advice and consultation to management
on all matters pertaining to the business of the Company.
In its capacity as advisor and consultant to management of the
Company, Consultant shall be required to devote at least 10 hours per month to
the business of the Company, but with the understanding and expectation that
Consultant will provide approximately 2.5 hours of consultation per week.
Consultant shall also be available, at the mutual convenience of the parties, to
evaluate specific matters or problems submitted to Consultant by management of
the Company.
Consultant shall render the services required in this Agreement as
an independent contractor. Deadlines in respect of the service and functions of
Consultant shall be mutually agreed upon. Consultant shall have no authority or
power of decision over any of the Company's activities or employees.
Consultant shall use his best efforts to advance the business and
welfare of the Company, and shall not intentionally take any action adverse to
the best interests of the Company.
1
4. Compensation. As full and complete compensation for any and all
services (except out-of-pocket expenses approved by the Company) that Consultant
shall render to the Company, the Company shall make a one-time grant of 912,000
restricted shares of the Company's Common Stock to be registered for resale
under Form S-8 or other available form as soon as reasonably practical.
5. Disclosure of Information. Consultant recognizes and acknowledges as
a result of his engagement by the Company, he will have access to discover
information which is of a proprietary manner to the Company, including methods,
inventions, improvements, trade secrets, or discoveries, whether patentable or
not, and similar information relating to the Company's products and services. In
addition, information will or has been disclosed to Consultant, or has been
discovered by Consultant, concerning marketing plans, processes, products,
apparatus, techniques, know-how, trade secret, strategies, customer lists, and
technical requirements of customers of the Company. Consultant agrees that he
will not, without the prior written approval of the Company, disclose any such
proprietary information of the Company to anyone not in the employ of the
Company, or use any such information other than for the purposes of this
Agreement. Consultant agrees that he will not allow any other person engaged by
him to have access to any of the proprietary information unless he first obtains
such person's agreement not to disclose or use such information, and such
agreement is binding upon the Company, Consultant, and such third person. These
obligations shall not apply, however, to information which is or becomes
generally available to the public through no fault of Consultant.
6. Termination. This Agreement shall terminate on the earliest of:
(i) On May 11, 2000;
(ii) At Consultant's option, upon a ninety (90)day written
notice; or
(iii) Upon mutual written agreement of the parties
hereto.
7. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and personally delivered, or if sent
by certified mail, postage prepaid to its residence in the case of Consultant,
its principal office in the case of the Company and shall be effective upon
deposit into the United States Postal Service, or in the case of personal
delivery when actually delivered. Such notice shall be directed to the
individuals and addresses below:
Xxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
2
United Raceways, Inc.
X.X Xxx 00000
Xxxxxxxxx, XX 00000
With a copy to be provided to:
Xxx Xxxxxx
X.X. Xxx 000
Xxx Xxxxx, XX 00000
8. Waiver. The waiver by the Company of a breach of any provision of
this Agreement by Consultant shall not operate or be construed as a waiver of
any subsequent breach by Consultant.
9. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their respective heirs, representatives,
successors, and assigns, but shall not be assignable by Consultant without the
prior written consent of the Company.
10. Severability. If any provision of this Agreement is held to be
contrary to law, that provision shall be deemed severable from the balance of
this Agreement, and the balance of this Agreement shall remain in force between
the parties to the fullest extent permitted by law.
11. Non-Competition. During the period of this Agreement, and for a six
(6) month period following termination thereof, Consultant shall not provide
similar strategic, financial or operational advice to any organization offering
services and products similar to those developed and marketed by the Company.
12. Entire Agreement. This Agreement shall be deemed to express,
embody, and supersede all previous understandings, agreements and commitments,
whether written or oral, between the parties hereto with respect to the subject
matter hereof and to fully and finally set forth the entire agreement between
the parties hereto. No modifications shall be binding unless stated in writing
and signed by both parties hereto with the approval of the President of the
Company.
13. Governing Law; Venue; Arbitration. This Agreement shall be governed
by the laws of the State of California. Any dispute involving or affecting this
Agreement or the services to be performed shall be determined and resolved by
binding arbitration in the County of Los Angeles, State of California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
3
14. Prior Agreements. This Agreement supersedes and renders null and
void all prior written or oral agreements by and between the Company or its
affiliates and Consultant, except as provided herein or in any amendments or
addendums hereto.
15. Survival of Covenants. Upon termination of this Agreement, for any
reason, the covenants contained in Sections 5, 11, 12, 13 and 15 shall survive
such termination.
16. Counterparts. This Agreement may be signed in two counterparts, but
both of which placed together, shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the date set forth above.
COMPANY:
UNITED RACEWAYS, INC.
By: _______________________________
CONSULTANT:
Xxxxx Xxxxxxxx
By: ________________________________
Xxxxx Xxxxxxxx
