Exhibit 10.1
CONSULTING AGREEMENT
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This consulting agreement is made and entered into effective February
14, 2002, by and between OTC DERIVATIVES & CO. SA, a Swiss joint stock
company, "Consultant") and AMERICAN LEISURE, INC. (the "Corporation").
RECITALS
The Corporation wishes to engage the Consultant to provide general business
consulting services, and the Consultant is willing to provide those services on
the terms and conditions set forth below.
AGREEMENT
The parties therefore agree as follows.
1. Term of Engagement. The Corporation engages the Consultant to perform the
services described below. The duties and obligations of the parties to this
consulting agreement shall commence immediately and shall continue thereafter
until January 31, 2007.
2. Duties. Consultant shall take such steps as may be required in order to
assist the Corporation in:
(a) completing a corporate restructuring whereby American Leisure Holdings,
Inc. (ALH) becoming the parent company of American Vacation Resorts, Inc.
("AVR") (subject to Mr. & Mrs. Xxxxxxx Xxxxxx receiving appropriate Court
approval/permission to transfer their stock in AVR to ALH) and American Leisure,
Inc., both of which are presently owned or controlled by either the Corporation
or its principals;
(b) obtaining listing of the combined enterprise on a national securities
exchange in the U.S. through the acquisition of or merger with a listed company
("Listed Company");
(c) arranging for listing of the combined enterprise on the Frankfurt Stock
Exchange;
(d) completing the purchase of additional real estate assets, including,
but not limited to Sunstone Golf Resort, in Polk County, Florida, a 799 unit
vacation resort near Disney World; and
(e) completing the acquisition of Hickory Travel Systems, Inc.,
Xxxxxxxxxxx, X,X,, from Xx. Xxxx Xxxxxx.
In addition, the Consultant shall advise the Corporation as to matters relating
to the capital structure of the Corporation. The Consultant shall, at the
request of the Corporation, diligently seek out additional appropriate potential
acquisition candidates for the Corporation, consistent with the growth plans
contained within the Corporation's business plan. Consultant shall be available
to consult with the board of directors, the officers, and the administrative
staff of the Corporation at reasonable times concerning the search for such
acquisition candidates, and shall provide strategic business advice with regard
to the negotiation and consummation of acquisition contracts for such
appropriate entities. The Corporation is under no obligation to purchase or
affiliate with any of the potential candidates identified by the Consultant.
3. No Guarantee. The Corporation understands that the Consultant is undertaking
the activities described above on a best efforts basis, and with no guarantee
that the desired results can be accomplished.
4. Receipt and Disbursement of Initial Funds. The initial $1.5 million the
Corporation is raising is to be deposited into the escrow account maintained by
the Consultant with its attorneys. Details for that account are as follows:
ACCOUNT NAME: OTC DERIVATIVES SA
X/X XXXXX XXXXXX & XXXXX XXX
XXXXXXXX ESCROW ACCOUNT
BANK: STERLING NATIONAL BANK
000 XXXXX XXXXXX
XXX XXXX, XX 00000
ABA ROUTING NO. 000000000
ACCOUNT NO. 08-138813-01
The Consultant, upon approval by the Corporation, will direct disbursement of
those funds as follows.
(a) An amount necessary to secure a controlling interest in the listed
company in an amount not to exceed $550,000.
(b) $100,000 for legal fees.
(c) $50,000 for the account of American Leisure, Inc. immediately following
receipt to cover accounting costs associated with completing the required audit.
(d) $50,000 for the account of American Leisure, Inc. immediately following
receipt to cover expenses in connection with the due diligence investigation of
Hickory Travel.
(e) $160,000 as a deposit for the acquisition of Hickory Travel.
(f) $500,000 for the account of AVR immediately following receipt to pay
the FTC the deferred payment due by AVR under the purchase agreement of March
23, 2001, reimburse costs pay by the Corporation in connection with the raising
of new capital for ALH, ALI and AVR, working capital for the start up of sales
and closing the loan facility from Textron.
(g) The balance is to be applied as the Consultant and the Corporation
jointly determine. The Consultant will be responsible for paying, from the
balance remaining in escrow or otherwise, additional out-of-pocket expenses
incurred in connection with the reverse merger, corporate restructuring and
listing on the Frankfurt Stock Exchange as outlined in paragraphs 1(a) and 1(c),
to the extent that funds are available. These expenses include but are not
limited to legal and accounting fees incurred in connection with the transaction
and are subject to the review and approval by the Corporation.
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5. Compensation. As compensation for its services Consultant shall be entitled
to receive from the Corporation a fee equal to
(a) an initial number of shares of the Corporation's common stock equal to
the greater of
(i) 4% of the outstanding common stock of the Listed Company; and
(ii) 500,000 shares of such common stock (not to exceed 5% of the
outstanding stock of the Listed Company); and
(b) if at any time during the term of this agreement the number of shares
theretofore issued to the Consultant as its fee shall be less than 4% of the
Corporation's outstanding common stock, such additional number of shares as
shall be required to bring the total number of shares issued to the Consultant
as its fee to 4% of the then outstanding common stock.
No additional common stock shall be issuable to the Consultant under this
Section after the term of this Agreement. The Corporation shall register the
issuance of the shares called for by this Section with the Securities and
Exchange Commission on Form S-8 or other available form, and shall issue the
shares to the individuals performing services for the Corporation under this
Agreement as specified by the Consultant.
6. Independent Contractor. Consultant shall be an independent contractor of the
Corporation and shall not be deemed an employee, and a shall notify Corporation
as to any withholding for tax purposes and indemnify Corporation from any IRS
tax liability imposed caused from improper withholding should it occur.
7. Other Employment. Consultant shall be available at reasonable times for the
services provided for in this consulting agreement, but shall devote only such
time to the affairs of the Corporation as the Consultant, in his reasonable
judgment, shall deem necessary. Consultant may represent, perform services for,
and be employed by such additional persons or companies as the Consultant, in
his sole discretion may desire.
8. Confidential Information. For the purposes of this agreement, "Confidential
Information" shall mean the information described below, which is disclosed by
the Corporation to Consultant in any manner, whether orally, visually, or in
tangible form, including, but not limited to, documents, devices, computer
readable media, trade secrets, formulae, patterns, inventions, processes,
customer lists, sales records, pricing lists, margins, and other compilations of
confidential information, and all copies of such confidential information.
Tangible materials that disclose or embody Confidential Information shall be
marked or identified by the Corporation as "confidential." Confidential
Information that is disclosed orally or visually shall be identified by the
Corporation as confidential at the time of disclosure.
(a) Nondisclosure Period. Except as expressly permitted by the terms of
this agreement, Consultant shall maintain in confidence and not disclose the
Confidential Information for a period of three years from the date of disclosure
(the "Non-Disclosure Period"), using a fiduciary degree of care to protect the
Confidential Information.
(b) Limited Disclosure. Consultant shall disclose the Confidential
Information only to those of its employees, third parties, and agents in the
normal course of business who have a need-to-know such information for the
reasonable purposes of this agreement, and who
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additionally are under a contractual obligation with Consultant to protect the
Confidential Information.
(c) Limits of Confidential Information. For the purposes of this agreement,
Confidential Information shall not include any information which Consultant can
prove:
(i) was in Consultant's possession, or known to Consultant without
confidentiality restriction, prior to disclosure by the Corporation,
(ii) was generally known in the trade or business in which the
Corporation is engaged at the time of disclosure to Consultant, or becomes
generally known in the trade or business after such disclosure, through no act
of Consultant,
(iii) has come into the possession of Consultant without
confidentiality restrictions from a third-party, and such third-party is under
no obligation to the Corporation to maintain the confidentiality of such
information, or
(iv) was developed by or for Consultant independently without
reference to the Confidential Information.
If a particular portion or aspect of the Confidential Information shall become
subject to any of the above-mentioned exceptions, the parties expressly agree
that all other portions or aspects of the Confidential Information shall remain
subject to all of the provisions of this agreement.
(d) No Reproduction. Consultant shall not reproduce or copy the
Confidential Information, by any means whatsoever, except as may be reasonably
required to accomplish Consultant's intended purpose with regard to the
Confidential Information. Upon termination of this agreement, Consultant's right
to use the Confidential Information shall immediately terminate. Upon such
termination, or upon written demand by the Corporation at any time, Consultant
shall promptly return to the Corporation, or destroy, at the Corporation's
option, all tangible materials that disclose or embody any Confidential
Information.
(e) Proprietary Rights Legend. Consultant shall not remove any proprietary
rights legend from the Confidential Information, and shall, upon the
Corporation's reasonable request, add any proprietary rights legend to materials
disclosing or embodying the Confidential Information.
(f) Court Ordered Disclosure. In the event that Consultant is ordered to
disclose the Corporation's Confidential Information pursuant to a judicial or
governmental request, requirement, or order, Consultant shall promptly notify
the Corporation in writing and shall take reasonable steps to assist the
Corporation in contesting such request, requirement, or order, or in otherwise
protecting the Corporation's rights prior to such disclosure.
9. U.S. Securities Laws. Consultant acknowledges that the Confidential
Information may include material nonpublic information concerning corporations
which are subject to the securities laws of the United States. The Corporation
is specifically relying upon Rule 100(b)(2)(ii) of Regulation FD, in providing
the Confidential Information to Consultant, and Consultant expressly agrees that
he will not use the Confidential Information in violation of United States
securities laws, and specifically agrees to keep the Confidential Information in
confidence.
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10. General.
(a) This agreement shall be construed under and in accordance with the laws
of New York.
(b) The Corporation shall, promptly after execution and delivery of this
Agreement, furnish evidence reasonably satisfactory to the Consultant that the
execution and delivery of this Agreement has been authorized by the
Corporation's Board of Directors.
(c) The parties shall execute such other and further instruments and
documents as are or may become necessary or convenient to effectuate and carry
out the obligations of the parties in accordance with this agreement.
(d) This agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal
representatives, successors, and assigns where permitted by this agreement.
(e) This agreement supersedes any prior understandings or oral agreements
between the parties respecting the subject matter contained in this agreement.
(f) All agreements, warranties, representations, and indemnifications
contained in this agreement, including without limitation the agreement set
forth in Sections 8 and Section 9 shall survive the termination of this
consulting agreement.
This consulting agreement shall be deemed a personal services contract with
regard to the Consultant, and Consultant may not assign any or all of his
interest in this agreement without the written consent of the Corporation.
EXECUTED this 14th day of February, 2002.
Consultant:
OTC Derivatives SA
By: /s/__________________________
American Leisure, Inc.
By: /s/__________________________
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