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EXHIBIT 10.35
March 31, 1998
Xx. X. X. Xxxxxxxxx
Sentry Marine Services, Inc.
00 Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Re: Consulting Agreement
Dear Xxxx:
It is the understanding of Leisure Time Casinos & Resorts, Inc.
("Company") that effective March 31, 1998, you are resigning as an officer,
director and employee of the Company and as an officer and director, as
applicable, of all of the Company's subsidiaries. Effective April 1, 1998, the
Company would like to retain you as a management consultant to the Company on
the following terms and conditions:
1. You will provide a maximum of 10 hours of consulting per week for
the Company and its subsidiaries. The consulting you will be asked to perform
will be consulting on such matters as are designated by Xxxx X. Xxxxxxx or his
designee and your sole reporting obligation with respect thereto will be to Xx.
Xxxxxxx or his designee.
2. In performing your consulting duties, you will make recommendations
to the Company but will have no authority to act on behalf of the Company or to
make policy decisions for the Company or its subsidiaries. You will be, and will
be deemed to be, an independent contractor in performing your consulting duties
hereunder. You will be free to pursue, conduct and carry on for your own account
(or for the account of others) such activities, employments, ventures,
businesses and other pursuits as you may determine in your sole, absolute and
unfettered discretion.
3. For each month during which you are a consultant to the Company, you
will be paid an amount of $5,000 per month, which amount will be paid within
fifteen (15) days after the end of the month for which services are performed.
In addition, you will be reimbursed for all out-of-pocket expenses incurred in
performing your consulting duties hereunder.
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March 31, 1998
Page 2
4. For each month during which you are a consultant to the Company, you
will also be paid an amount equal to the payments you are required to make to
maintain the current health insurance you have with the Company.
5. You may terminate this consulting agreement upon thirty (30) days
written notice; in the absence of any such notice, this consulting agreement
will automatically terminate on December 31, 2008, or upon your earlier death or
disability.
6. You recognize and acknowledge that the Company's and its
subsidiaries' and affiliates' customers and potential customers, as they may
exist from time to time, and any proprietary or confidential information,
including, but not limited to, financial information and information pertaining
to the Company's, its subsidiaries' and affiliates' gaming licenses,
manufacturing, marketing and sales operations and potential acquisitions, used
by the Company in its Business (as hereinafter defined) are valuable and unique
assets of the Company. You agree that you will not during or after the term of
this agreement, disclose the names of the Company's, its subsidiaries' or
affiliates' customers or potential customers or any part thereof or disclose any
other propriety or confidential information of the Company to any person, form,
corporation, association, or other entity for any reason or purpose whatsoever
without the prior written consent or authorization of the Board of Directors of
the Company. Upon termination of this agreement, you agree that you will neither
take nor retain any papers, customer lists, manuals, files, or other documents
or copies thereof belonging to the Company, its subsidiaries or affiliates.
You agree to disclose to the Company all ideas and business plans
developed by you during the term of this agreement which relate to the Business
of the Company, its subsidiaries or affiliates or any business conducted by the
Company, its subsidiaries or affiliates. All patents, patent applications,
patent licenses, formulas, inventions, processes, copyrights, know-how,
proprietary information, rights, trademarks, or trade names, or future
improvements thereto developed or conceived by you during the term of this
agreement shall be promptly disclosed to, and all rights with respect thereto
shall be assigned by you to the Company in consideration of the remuneration
paid or payable to you hereunder.
In the event any provision of this paragraph 6 should ever be deemed to
exceed the time, geographic, or other limitations permitted by applicable law,
then such provision shall be reformed to the maximum time, geographic or other
limitations permitted by applicable law. The provisions of this Paragraph 6
shall be applicable for the period indicated and shall survive the termination
of this agreement.
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March 31, 1998
Page 3
7. During the term of this agreement and for a period of two (2) years
after the termination of this agreement, you agree that you will refrain from
carrying on (as hereinafter defined) any business of providing services similar
to the Business of the Company and its subsidiaries and affiliates or carrying
on any business relating to any product or service which is in competition, in
whole or in part, with the Business of the Company or its subsidiaries or
affiliates in the United States. For purposes of this agreement, "Business"
means the business of manufacturing and distributing gaming equipment, owning or
operating gaming vessels or owning or operating route operations of video gaming
devices or otherwise engaging in the gaming industry. For purposes of this
agreement, "carrying on" a Business means being engaged, directly or indirectly,
through a spouse, member of your immediate family or otherwise, in a Business as
an employer, manager, stockholder or any other representative or individual
capacity. Nothing herein shall preclude you from owning less than 5% of any
corporation actively traded on a national securities exchange or on the
over-the-counter market, which is engaged in such business.
8. All notices hereunder shall be in writing and addressed to you or to
the Company at the addresses herein set forth, or at such other addresses as to
which notice pursuant to this paragraph may be given, and shall be given by
personal delivery, by certified mail (return receipt requested), express mail or
by national overnight courier. Notices will be deemed given upon the earlier of
actual receipt or three (3) business days after being mailed or delivered to
such courier service. Notices shall be addressed to you at:
X. X. Xxxxxxxxx
Sentry Marine Services, Inc.
00 Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
and to the Company at:
Leisure Time Casinos & Resorts, Inc.
0000 Xxxxxx Xxxx
Xxxx, XX 00000
Attention: President
Any notices to be given hereunder will be effective if executed by and sent by
the attorneys for you or the Company giving such notice and, in connection
therewith, you and the Company and your and its respective counsel agree that,
in giving such notice, such counsel may communicate directly in writing with you
or the Company to the extent necessary to give such notice.
9. No provision of this agreement may be waived except by agreement in
writing signed by the waiving party. A waiver of any term or provision of this
agreement shall not be
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construed as a waiver of any other term or provision.
10. This agreement shall be governed by and interpreted under the laws
of the State of Ohio (without giving effect to any provisions regarding
conflicts of laws), which shall be applied by any court or arbitration panel
before which any action concerning the rights or obligations of the parties is
brought hereunder.
11. All actions brought to enforce any rights or obligations arising
hereunder shall be brought in arbitration under the applicable rules of the
American Arbitration Association as then in effect; provided, however, that in
the case where any breach or default would result in irreparable injury to the
non-breaching or defaulting party, such party shall be allowed to bring suit in
equity for the specific performance of any term contained in this agreement or
for an injunction against the breach of any such term or in aid of the exercise
of any power granted in this agreement or to enforce any other equitable right
of such party or to take any one or more of such actions.
In any action brought in arbitration, the procedural and substantive
rules of discovery provided for under Ohio law applicable to a civil case
brought in a court which, but for this arbitration clause, would have
appropriate jurisdiction over the case, shall govern the discovery allowed in
any such proceeding.
In the event a party brings any action hereunder, the prevailing party
in such dispute shall be entitled to recover from the losing party all fees,
costs and expenses of enforcing any right of such prevailing party under or with
respect to this agreement, including without limitation such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
This jurisdiction and venue of any such proceeding in equity shall be
in the Courts of the State of Ohio, in Lorain County, Ohio, the county in which
the Company has its principal place of business. Any proceeding in arbitration
shall be conducted in Lorain County, Ohio. No party shall object to such venue
on the basis of inconvenience to such party.
12. This agreement is not assignable without the written consent of the
non-assigning party.
13. This agreement may be executed in multiple counterparts, each of
which shall be deemed an original. It shall not be necessary that each party
execute each counterpart, or that any one counterpart be executed by more than
one party, so long as each party executes at least one counterpart.
14. If any provision of this agreement is declared by any court of
competent
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jurisdiction to be invalid for any reason, such invalidity shall not
affect the remaining provisions of this agreement.
If this consulting agreement meets with your approval, please so
indicate by signing a copy of this letter where provided and this agreement
shall be binding upon you and the Company.
Sincerely yours,
Xxxx X. Xxxxxxx, President
X. X. Xxxxxxxxx hereby confirms his resignation as an officer, director
and employee of Leisure Time Casinos & Resorts, Inc. and as an officer and
director of all of the subsidiaries of Leisure Time Casinos & Resorts, Inc.,
effective March 31, 1998. Further, X. X. Xxxxxxxxx agrees with the terms of this
agreement as expressed above.
Dated: April 9, 1998
/s/
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X. X. Xxxxxxxxx
