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EXHIBIT 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), is made and entered into as of
March 31, 2000 (the "Effective Date"), by and between Concorde Cruises, Inc., a
South Dakota corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the
"Consultant"). The Company and Consultant are also referred to collectively as
the "Parties" and individually as a "Party".
W I T N E S S E T H:
WHEREAS, the Company desires to hire the Consultant to perform certain
management duties for Bayfront Ventures, a Florida general partnership and/or
Princesa Partners, a Florida general partnership, and the Consultant desires to
accept such opportunity offered by the Company.
NOW, THEREFORE, in consideration for the mutual obligations contained
herein, the Company and the Consultant, each intending to be legally bound
hereby, mutually covenant and agree as follows:
1. ENGAGEMENT.
(a) Contracting. The Company hereby contracts with the Consultant and
the Consultant hereby accepts such contract, in the capacity to act in
accordance with the terms and conditions hereinafter set forth.
(b) Term. The term of engagement under this Agreement shall commence
on the Effective Date, and shall terminate on the first to occur: (i)
the liquidation and winding up of the Company, (ii) two years from the
Effective Date, or (iii) the effective date of written notice of
termination as set forth in Section 9.1 hereof (the "Term").
(c) Location of Services. Upon the Effective Date, and through the
Term, the Consultant's services will be performed at such places that
are appropriate and mutually agreed upon by the Consultant and the
Company.
2. INDEPENDENT CONTRACTOR. The Consultant shall not be an employee of the
Company and shall not be entitled to participate in any employee benefit plans
or other benefits or conditions of employment available to employees of the
Company. Nothing contained in this Agreement shall be deemed or construed as
creating a joint venture, partnership, agency, employment or fiduciary
relationship between the parties. The Consultant shall have no authority to act
as an agent of the Company, except on authority specifically so delegated, and
he shall not represent to the contrary to any person. The Consultant shall only
consult on, render advice with respect to and perform such tasks as the
Consultant determines in good faith are necessary to achieve the results
specified by the Company.
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3. SERVICES. During the Term the Consultant shall be available upon
reasonable notice from time to time to provide management consulting services to
the Company. As requested, Consultant agrees to render advice with respect to
senior management matters related to the Company's business, administration and
policies. In addition, Consultant's services may include, without limitation,
the preparation and quarterly revision of a comprehensive marketing plan
including statistical and performance measurements, periodic identification and
follow-up on tasks assigned to each department head, and preparation and
submittal of department head performance appraisals for approval.
4. EXTENT OF SERVICES. During the Term, the Consultant shall devote
substantially his entire time during reasonable business hours and use his best
efforts to provide consulting services in accordance with the terms of this
Agreement, and keep the Company advised of the progress of the work. The
Consultant shall permit any authorized representative of the Company to inspect
from time to time such results of said consulting services as are susceptible to
inspection.
5. COMMUNICATION. The Consultant will report to the President of the
Company, or such person as the President of the Company may from time to time
designate, on all matters relating to this Agreement and the Consultant's
performance of his duties hereunder.
6. AGREEMENTS. The Consultant shall not be authorized or empowered to enter
into any agreements with any party on behalf of the Company. The Company has the
absolute right to refuse any offers, work or material brought to it by
Consultant without incurring any liability to such third party or to the
Consultant.
7. COMPENSATION.
(a) Annual Compensation. As compensation for the above stated
services, the Company shall pay Consultant a fee of $125,000 per year
(the "Annual Fee") payable in advance on the first business day of each
month in substantially equal installments.
(b) Bonus Payment. For each Contract Year (as defined below) during
the Term, Consultant shall be eligible to receive a bonus (the "Bonus")
based upon the combined earnings before interest, depreciation, taxes
and amortization ("EBITDA") of Bayfront Ventures, a Florida general
partnership, and Princesa Partners, a Florida general partnership
(collectively, the "Partnerships") calculated as follows:
(i) Consultant shall be entitled to a Bonus equal to 3% of the
EBITDA of the Partnerships for a Contract Year; provided, however,
that no Bonus will be payable if the EBITDA of the Partnerships for a
Contract Year is less than $3,375,000; and
(ii) Consultant shall be entitled to an additional Bonus equal to
2% of the EBITDA of the Partnerships for a Contract Year that is in
excess of $4,100,000.
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A Contract Year means the twelve month period beginning April 1 and
ending March 31. The Bonus shall be due and payable on or before June 30
for the preceding Contract Year. Any Bonus payable to Consultant for a
portion of a Contract Year shall be prorated in accordance with the
following formula: the Bonus otherwise payable multiplied by the
fraction, the numerator of which is equal to the number of days during
the recently completed Contract Year this Agreement was in effect and
the denominator of which is equal to 365. In calculating the EBITDA of
the Partnerships for a partial Contract Year, the Bonus calculation
shall be based on the Company's calculation of pro forma EBITDA for the
full Contract Year.
(c) Expenses. The Company shall promptly pay or reimburse the
Consultant for all reasonable expenses incurred by him in connection
with the performance of his duties and responsibilities hereunder;
provided such expenses are incurred in compliance with the Company's
travel and expense reimbursement policies, as amended from time to time.
Expenses in excess of $500 must be preapproved by the Company. All
requests for reimbursed expenses shall be accompanied by such documents
or other evidence as are reasonably required to support the deduction of
such expenses in accordance with the rules established from time to time
by the Company.
(d) Taxes. The Consultant shall provide the Company with his Social
Security Number or Employer Identification Number, as applicable, so
that the Company is able to file the appropriate reporting forms with
the Internal Revenue Service. The Company shall annually provide the
Consultant with copies of forms so filed. It is understood that all
compensation paid to the Consultant hereunder in respect of services
rendered during the Term shall constitute revenues to the Consultant. To
the extent consistent with applicable law (and unless otherwise required
by applicable law as determined by the Company in its absolute
discretion or a taxing authority), the Company will not withhold any
amounts therefrom as federal income tax withholding from wages or as
employee contributions under the Federal Insurance Contributions Act or
any other state or federal laws. The Consultant shall be solely
responsible for the withholding and/or payment of any federal, state or
local income or payroll taxes.
THE CONSULTANT IS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS. THE
CONSULTANT IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES EARNED
PURSUANT TO THE CONTRACT RELATIONSHIP AND THE CONSULTANT SHALL INDEMNIFY AND
HOLD THE COMPANY HARMLESS FROM ANY AND ALL TAXES, INTEREST AND PENALTIES OWED BY
HIM AS A RESULT OF THE CONSULTANT'S FAILURE TO TIMELY PAY ANY SUCH TAXES.
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8. INDEMNIFICATION.
(a) Indemnification by Consultant. Consultant shall defend,
indemnify, and hold the Company harmless from and against all claims
asserted by a third party (or parties) and related damages, losses and
expenses, including reasonable attorneys' fees, arising out of or
resulting from the services performed or neglected to be performed by
Consultant; provided that any such claim, damage, loss, or expense is
caused by the gross negligence or willful misconduct of Consultant and
is not caused by the gross negligence or willful misconduct of the
Company.
(b) Indemnification by Company. Company shall defend, indemnify, and
hold Consultant harmless from and against all claims asserted by a third
party (or parties) and related damages, losses and expenses, including
reasonable attorneys' fees, arising out of or resulting from the
services performed or neglected to be performed by the Company; provided
that any such claim, damage, loss, or expense is caused by the gross
negligence or willful misconduct of the Company and is not caused by the
gross negligence or willful misconduct of Consultant.
9.1. TERMINATION.
(a) Cause. The Company may terminate this Agreement at any time for
Cause. For purposes of this Agreement, "Cause" means (i) Consultant
engaging in an act of theft, embezzlement, misappropriation of funds or
property, or fraud against, or with respect to the business of, the
Company or its affiliates; (ii) Consultant commits a breach of any
material term or condition of this Agreement; (iii) Consultant is
convicted of, or pleads guilty or nolo contendere to, a felony or a
crime involving moral turpitude; (iv) as a result of Consultant's gross
negligence or willful misconduct, Consultant commits any act that
causes, or knowingly fails to take reasonable and appropriate action to
prevent, any material injury to the financial condition or business
reputation of the Company or its affiliates; (v) the material failure or
inability of Consultant to provide the services set forth in Section 3
or to follow the lawful direction of the Company in performing the
services set forth in Section 3, which failure is not remedied within
fifteen (15) days after receipt of notice thereof; (vi) death; and (vii)
Consultant's commission of any act, other than an act performed at the
direction of the Company, that would cause any license or permit of the
Company or its affiliates to be revoked, suspended or not renewed after
proper application.
(b) Without Cause. Either Party may terminate this Agreement for any
reason upon thirty (30) days prior written notice to the other Party.
(c) Date of Termination. For purposes of this Agreement, the term
"Date of Termination" shall mean the date that the Company gives written
notice to Consultant that it intends to terminate this Agreement
pursuant to the terms
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hereof or the date, if any, specified by the Corporation in such written
notice as the effective date of termination.
9.2. OBLIGATIONS UPON TERMINATION.
(a) Upon the termination by the Company for Cause or upon
Consultant's voluntary termination of this Agreement, the Corporation's
obligations to Consultant shall terminate, other than the obligation to
pay to Consultant any earned but unpaid portion of the Annual Fee and
unpaid expenses through the day preceding the Date of Termination. No
Bonus will be payable to Consultant.
(b) If the Company terminates Consultant other than pursuant to
Section 9.1(a) hereof, the Corporation shall pay the unpaid portion of
the Annual Fee through the remainder of the Term. In addition,
Consultant shall be entitled to the Bonus, if any, only for the Contract
Year in which he was terminated, which Bonus shall be calculated through
the Date of Termination in the manner set forth in, and in accordance
with, Section 7(b) of this Agreement. Any amount payable under this
Section 9.2(b) shall be payable in a lump sum within ninety (90) days of
the Date of Termination.
10. PROPRIETARY INFORMATION. Through the second anniversary of the date
this Agreement terminates or expires, the Consultant shall keep in strictest
confidence and trust all Proprietary Information and shall not use for his
personal benefit, or disclose, communicate or divulge to, or use for the direct
or indirect benefit of any person, firm, association or company other than the
Company, any Proprietary Information. Consultant agrees that all Proprietary
Information shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all licenses and other rights
in connection with such Proprietary Information. "Proprietary Information" means
information relating to the properties, prospects, products, services, customers
or operations of the Company or any direct or indirect affiliate thereof that is
not generally known, is proprietary to the Company or such affiliate and is made
known to the Consultant or learned or acquired by the Consultant during its
relationship with the Company, including, without limitation, information
concerning trade secrets of the Company, or any of the Company's affiliates and
any improvements relating to the products of the Company in accounting,
marketing, selling, leasing, financing and other business methods and
techniques. However, Proprietary Information shall not include: (i) at the time
of disclosure to the Consultant such information that was in the public domain
or later entered the public domain other than as a result of a breach of an
obligation herein. All materials or articles of information of any kind
furnished to the Consultant by the Company or developed by the Consultant in the
course of its engagement hereunder are and shall remain the sole property of the
Company; and if the Company requests the return of such information at any time
during, upon or after the termination of the Consultant's engagement hereunder,
the Consultant shall immediately deliver the same to the Company.
11. EQUITABLE RELIEF. The Consultant acknowledges that, in view of the nature
of the business in which the Company is engaged, the restrictions contained in
Section 10 (the "Restrictions") are reasonable and necessary in order to protect
the legitimate interests of the
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Company, and that any violation thereof would result in irreparable injuries to
the Company, and the Consultant therefore further acknowledges that, if the
Consultant violates, or threatens to violate, any of the Restrictions, the
Company shall be entitled to obtain from any court of competent jurisdiction,
without the posting of any bond or other security, preliminary and permanent
injunctive relief as well as damages and an equitable accounting of all
earnings, profits and other benefits arising from such violation, which rights
shall be cumulative and in addition to any other rights or remedies in law or
equity to which the Company may be entitled.
12. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first-class
certified mail, return receipt requested, postage prepaid, addressed as follows:
(a) if to the Company, to: (b) if to the Consultant, to:
Concorde Cruises, Inc. Xxxxxxx X. Xxxxxx
c/o Concorde Gaming Corporation 0000 XX 000 Xxxxxxx
0000 Xxxx Xxxxxx Xxxxx, XX 00000
Xxxxx Xxxx, XX 00000 Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice so given shall be deemed given and received (i) if by mail, on the fourth
calendar day after posting; (ii) if by cable, telegram, telecopier or personal
delivery on the date of actual transmission or (as the case may be) personal or
other delivery; and (iii) if by overnight courier, on the next business day
following the day such notice is delivered to the courier service.
13. EXCLUSION OF PROPERTY OF OTHERS. Consultant will not bring to the
Company or use in the performance of its consulting duties any documents or
materials of a former employer or client that are not generally available to the
public or that have not been legally transferred to the Company or Consultant.
14. NO ASSIGNMENT. This Agreement and all rights hereunder are personal to
Consultant and may not be assigned by Consultant. Company may assign this
Agreement to and all rights hereunder shall inure to the benefit of any person,
firm or corporation succeeding to all or substantially all of the business or
assets of the Company whether by purchase, merger or consolidation.
15. AMENDMENTS, WAIVERS. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by Consultant and by a
duly authorized representative of the Company. No failure to exercise and no
delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or
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further exercise thereof, or the exercise of any other right, remedy, or power
provided herein or by law or in equity.
16. RULES OF CONSTRUCTION. The Parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the Party drafting such agreement or document.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Florida.
18. ARBITRATION OF ALL DISPUTES. The Company and Consultant mutually agree
that any controversy or claim arising out of or relating to this Agreement or
the breach thereof (including the arbitrability of any controversy or claim),
shall be settled by arbitration in Denver, Colorado, if Consultant requests such
arbitration, or in Miami, Florida, if Company requests such arbitration. Except
for claims relating to the Restrictions, which may be resolved at the Company's
option through judicial proceedings or arbitration, arbitration shall be the
exclusive forum to resolve all disputes between the Consultant and the Company.
The arbitration shall be conducted in accordance with the rules of the American
Arbitration Association. The arbitration shall be presided over by one
arbitrator who shall be selected in accordance with the commercial arbitration
rules of the American Arbitration Association. The cost of any arbitration
proceeding hereunder shall be borne equally by the Company and the Consultant,
subject to the arbitrator awarding such costs otherwise. The award of the
arbitrator shall be binding upon the parties. Except where expressly authorized
by statute, a party shall only be entitled to be awarded damages for actual
losses suffered by the injured party plus reasonable costs (including reasonable
attorney's fees). Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
19. SEVERABILITY. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement.
20. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereof, and supersedes all other oral or written agreements or
understandings between them regarding the subject matter hereof.
21. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties hereto in two or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
Signatures on this Agreement may be communicated by facsimile transmission and
shall be binding upon the parties transmitting the same by facsimile
transmission.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
COMPANY
Concorde Cruises, Inc.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: President
CONSULTANT
Xxxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXX
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