CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into this ____ day
of July, 1998, by and between JANUS AMERICAN GROUP, INC., a Delaware corporation
("Janus"), and THE CORNERSTONE COMPANY, DEVELOPERS AND OPERATORS OF INNS, HOTELS
AND RESORTS, an Ohio corporation ("Cornerstone").
RECITALS
X. Xxxxx has this day entered into a series of Purchase and Sale Agreements
(the "Affiliated Sale Agreements") with various affiliates of Cornerstone (the
"Affiliates") which, among other things, provide for the acquisition by Janus of
the assets of such Affiliates comprising four (4) separate and discreet hotel
properties (the "Hotels").
B. Cornerstone is and has been responsible for the direction of the
management and affairs of the Affiliates and of the Hotels.
X. Xxxxx desires to retain the continuing services of Cornerstone following
its acquisition of the assets comprising the Hotels, and to also retain the
benefit of Cornerstone's community, labor and governmental relations to aid in
the transition of ownership of the Hotels from the Affiliates to Janus.
X. Xxxxx and Cornerstone desire to enter into a consulting arrangement on
the terms and conditions as hereinafter set forth, and as is required by the
Affiliated Sale Agreements.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained in this Agreement, the parties hereto agree as follows:
1. Term of Consultation. The term of this Agreement shall commence on the
date hereof, and shall terminate forty-eight (48) months from and after the date
hereof (the "Term of Consultation").
2. Obligations of Cornerstone. Cornerstone's obligations hereunder shall be
to serve Janus in a consulting capacity on an as-needed basis as determined and
requested by the Board of Directors of Janus, or their designee during the Term
of Consultation, with regard to employee, labor and community relations and
governmental affairs related to the transition of ownership of the Hotels to
Janus, and the successful continuation of the business of the Hotels.
Cornerstone shall not be required to render any consulting services hereunder
outside the presently existing service areas of the Hotels. Cornerstone shall
not take any action against the best interests of Janus during the Term of
Consultation. At no time during the Term of Consultation shall Cornerstone hold
himself out as being employed by or otherwise affiliated
with Janus or any of its subsidiaries or affiliates, except in his capacity as a
consultant pursuant hereto.
Consulting Fee.
(a) For Cornerstone's advisory and consulting services hereunder,
Janus shall pay him a consulting fee on the last day of each month during
the Term of Consultation in the amount of Twenty Thousand Eight Hundred
Thirty-three and 34/100 Dollars ($20,833.34) (the "Consulting Fee").
(b) It is understood that the inability of Cornerstone to render the
services contemplated herein to Janus by reason of temporary or permanent
illness, disability or incapacity of its employees, directors or officers
will not be considered a failure to perform Cornerstone's services
hereunder or constitute a breach or default of Cornerstone's agreement as
set out herein.
4. Independent Contractor. Cornerstone and its officers, directors and
employees shall be independent contractors for purposes of this Agreement and in
connection therewith Cornerstone: (a) shall determine and establish the work
hours and determine the work location of it and its employees; (b) shall not be
required to follow specific instructions in rendering consulting services, but
shall utilize its employees' own knowledge, skill and technical know-how; (c)
shall pay any business and travel expenses incurred by its officers, directors
and employees; and (d) shall be free to enter into employment or consulting
agreements with third parties, but only to the extent such agreements do not
cause Cornerstone to violate or breach any other term of this Agreement or other
executory agreements between Cornerstone and Janus and/or any of its
subsidiaries or affiliates.
5. Non-Waiver. The failure of either party to insist in any one or more
instances upon performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder, or the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall continue in full
force and effect.
6. Successors and Assigns. The rights, benefits, duties and obligations
under this Agreement shall inure to and be binding upon Janus and its successors
and upon Cornerstone and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement constitutes a personal
service contract which may not be transferred or assigned by Cornerstone or
Janus; provided, however, the rights and obligations of Janus hereunder shall
succeed to a successor or surviving corporation resulting from a merger,
consolidation, sale of assets or stock, or other corporate reorganization, on
condition that such survivor shall assume all of the Janus' obligations
hereunder; and it is agreed that such successor or surviving corporation shall
continue to be obligated to perform the provisions of this Agreement.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral and written, between
the parties with respect thereto.
8. Notices. All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if delivered by hand or mailed first class, postage prepaid, by registered or
certified mail, return receipt requested (mailed notices shall be deemed to have
been given on the date sent) as follows:
a. If to Cornerstone, as follows:
The Cornerstone Company
0000 Xxxxxxx Xx.
Xxxxx, Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Xx.
b. If to Janus, as follows:
0000 Xxxxxxxxx Xxxx., XX, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
or in any case to such other address or addresses as hereafter shall be
furnished as provided in this Paragraph 8 by any of the parties hereto to the
other parties hereto.
9. Modification. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing specifically
referring hereto and signed by both parties.
10. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
JANUS AMERICAN GROUP, INC.
By:
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XXXXX X. XXXXXX, PRESIDENT
THE CORNERSTONE COMPANY, DEVELOPERS AND
OPERATORS OF INNS, HOTELS AND RESORTS
By:
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XXXXXXX XXXXXXXX, XX., PRESIDENT
