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EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into as
of this 25th day of February, 2000 by and between VENTURE CATALYST INCORPORATED,
a Utah corporation (the "Company") and X. XXXXX OPEL ("Consultant").
1. SCOPE OF AGREEMENT. The Company hereby retains Consultant and Consultant
hereby agrees to render the services as indicated on Exhibit A hereto (the
"Services") upon the terms and conditions hereinafter set forth. Unless
otherwise instructed, Consultant shall be responsible to and report to L. Xxxxxx
Xxxxx, XX, Chief Executive Officer for the Company, during the term of this
Agreement.
2. TERM OF ENGAGEMENT. Consultant shall be engaged by the Company for a
period of one (1) year from the date hereof (the "Consultation Period"), unless
sooner terminated as provided herein.
3. INDEPENDENT CONTRACTOR. Consultant represents that Consultant is an
independent contractor and not the agent, employee or servant of the Company.
Consultant further agrees to hold the Company free and harmless from any and all
claims arising from any negligent act or omission related to services performed
by Consultant pursuant to this Agreement. Consultant shall not be entitled to
any benefits from the Company as a result of this Agreement and Consultant shall
have no authority to obligate or incur on behalf of the Company any expense,
liability or obligation, or enter into any contract on behalf of the Company
without the consent of the Company.
4. COVENANT NOT TO COMPETE. During the term of this Agreement (including
any modification or extension thereof) and for a period of one (1) year
thereafter (the "Non-compete Period"), Consultant shall not, without the prior
written consent of the Chief Executive Officer and Chairman of the Board of the
Company, (i) participate in any business enterprise or provide consulting
services to any company or business either directly or indirectly in competition
with the Company as the business of the Company currently is and may be
conducted during the Non-compete Period, or (ii) provide consulting services to
any of the Company's current or past Indian gaming clients located outside the
counties of San Diego, Orange and Los Angeles, State of California. In addition,
during the term of this Agreement (including any modification or extension
thereof) and for a period of three (3) years thereafter, Consultant shall not,
without the prior written consent of the Chief Executive Officer and Chairman of
the Board of the Company, provide consulting services to any Indian gaming
property located in the counties of San Diego, Orange and Los Angeles, State of
California.
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This covenant not to compete shall not preclude the ownership or
acquisition of securities in any enterprise or the exercise of rights
appurtenant thereto, provided that such securities are listed on a national
securities exchange or are regularly quoted in an established over-the-counter
market and, provided further, that the securities so owned or acquired comprise
less than 5% percent of the total outstanding voting securities of such
enterprise and do not give Consultant any meaningful voice in the management or
operation of such enterprise.
The Company and Consultant agree that this Agreement shall not be
interpreted or construed to alter or effect in any material manner the
contractual relationship among the Company, the Barona Group of Capitan Grande
Band of Mission Indians and the Barona Casino.
5. COMPENSATION. In consideration for his performance of the Services
hereunder, Consultant shall receive a monthly consulting fee as follows:
(a) One Thousand Three Hundred Eighty-Eight Dollars and Eighty Eight Cents
($1,388.88), for the month of February 2000;
(b) Fifteen Thousand Three Hundred Nineteen Dollars and Six Cents
($15,319.06), for the month of March 2000;
(c) Sixteen Thousand Six Hundred Eighty-Seven Dollars and Seventy-Three
Cents ($16,687.73), for the month of April 2000; and
(d) Commencing May 1, 2000, Company shall pay Consultant as follows: (i) a
minimum base fee of $2,500.00 per month, said fee to be credited at a
rate of $250.00 per hour, against Consultant's first ten hours of
services rendered (base hours), (ii) all reasonable pre-approved
expenses, and (iii) $250.00 per hour for services rendered in excess of
Consultant's base hours. All services rendered in excess of the base
hours must be pre-approved by the Company in writing.
In addition, the Company shall pay (i) Consultant's automobile payment
for the month of March 2000 (approx. $1,368.68), and (ii) Consultant's
automobile insurance premiums through April 30, 2000 (approx. $403.00 per
month).
6. OFFICE SPACE. During the term of this Agreement (including any
modification or extension thereof), the Company shall provide the Consultant
with office space commensurate with Consultant's responsibilities and
obligations under this Agreement.
7. ACCESS TO WORK PRODUCT. The Company shall have access at all reasonable
times to all work product generated by Consultant pursuant to this Agreement
("Work Products"), including all information acquired by Consultant with respect
to potential investment and acquisition candidates, and all work products
generated by Consultant which are in any way based upon or derived from such
information, and all such Work
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Products shall be the property of the Company. Consultant shall turn over to the
Company all Work Products upon completion of the same, and shall, upon the
Company's request, provide progress reports with respect to work in process.
8. COMPLIANCE WITH LAWS. Consultant represents and warrants that all work
performed by Consultant pursuant to this Agreement shall be performed in
compliance with all applicable laws, rules, and regulations applicable thereto.
9. NONDISCLOSURE AND OWNERSHIP OF PROPRIETARY INFORMATION.
(a) PROPRIETARY INFORMATION. Consultant hereby acknowledges that
Consultant may make use of, acquire, create, develop or add to certain
confidential and/or proprietary information regarding the Company and its
business (whether in existence prior to, as of or after the date hereof,
collectively, "Proprietary Information"), which Proprietary Information shall
include, without limitation, all of the following materials and information
(whether or not reduced to writing and whether or not patentable or protected by
copyright): techniques, inventions, processes, formulae, programs, technical
data, "know-how," procedures, manuals, confidential reports and communications,
business plans, marketing methods, plans or methods of the Company for licensing
products and services, product sales or cost information, new product ideas or
improvements, new packaging ideas or improvements, research and development
programs, identities or lists of suppliers, vendors, or other customers,
financial information and financial projections of the Company of any nature
whatsoever, or any other trade secrets or confidential or proprietary
information relating to the Company and/or its business, and all other
information protected by the Uniform Trade Secrets Act as in effect in the State
of California. Consultant (i) shall hold all such Proprietary Information in the
strictest confidence, (ii) shall cause its employees and agents to hold all such
Proprietary Information in the strictest confidence, and (iii) agrees not to
use, copy, or otherwise replicate any Proprietary Information. Furthermore,
Consultant acknowledges and agrees that any disclosure of Proprietary
Information by Consultant in violation of this Agreement would be detrimental to
the Company and likely to cause the Company irreparable harm. Consultant further
acknowledges that the right to maintain the Proprietary Information, the right
to preserve the goodwill of the Company and the right to the benefit of any
relationships that develop between Consultant and the clients, suppliers and
employees of the Company by virtue of this Agreement with the Company constitute
proprietary rights of the Company, which the Company is entitled to protect and
which shall be included in the definition of "Proprietary Information".
Notwithstanding the foregoing, Proprietary Information shall not include
information that:
(i) at the time of disclosure, is generally available to,
and known by, the public; or
(ii) becomes public through no action of Consultant or any
employee or agent of Consultant; or
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(iii) is received from a third party lawfully in possession of
the information and under no obligation to keep the
information confidential; or
(iv) is required to be disclosed by a court of competent
jurisdiction or other competent authority.
(b) OWNERSHIP. Consultant acknowledges and agrees that all right, title
and interest in and to any Proprietary Information shall be and shall remain the
exclusive property of the Company. Without limiting the foregoing, Consultant
shall assign to the Company any and all right, title and interest which
Consultant may have in all Proprietary Information made, developed or conceived
of in whole or in part by Consultant during its engagement hereof. Consultant
agrees to make all necessary disclosures and execute, acknowledge and deliver
all instruments and perform all acts reasonably requested by the Company to
effectuate the assignment provided for in the previous sentence.
(c) RETURN OF INFORMATION. Upon the termination of this Agreement for
any reason or upon request of the Company, all Proprietary Information,
intellectual property, discoveries and trade secrets, together with all copies
of the same, shall be returned to the Company.
10. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants that
all work and materials or portions thereof delivered to the Company by
Consultant in connection with the Services shall be original, shall be solely of
Consultant's authorship and design and shall not infringe upon the rights of any
other person or party.
11. INDEMNITY. Consultant hereby agrees to indemnify and hold harmless the
Company and its managers, directors, officers, employees and all other persons
which directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the Company (collectively,
"Company's Indemnified Parties") from, and to reimburse the Company and
Company's Indemnified Parties for, any and all losses, damages, liabilities,
claims, fees, costs and expenses of any kind related thereto (including, without
limitation, any and all reasonable legal fees) actually incurred or suffered by
Company's Indemnified Parties arising out of, based upon or resulting from any
breach of any representation, warranty, covenant or obligation of Consultant
contained in this Agreement.
12. TERMINATION OF ENGAGEMENT. This Agreement and Consultant's engagement by
the Company shall terminate on the earliest of the following events to occur:
(a) At the expiration of the period set forth in Section 2 hereof;
(b) Thirty (30) days after a party has received written notice from the
other party of the other party's election, in its sole discretion, to terminate
this Agreement;
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(c) Death of Consultant, liquidation or dissolution of the business of
Consultant or the Company, or the transfer of all or substantially all the
assets or business of Consultant or the Company; or
(d) Five (5) days after a party ("Breaching Party") has received written
notice from the other party ("Nonbreaching Party") of the Breaching Party's
material breach of this Agreement; provided, however, that if such material
breach is capable of being cured, this Agreement shall not terminate if the
Breaching Party cures such breach within ten (10) days of receiving such notice.
Upon termination hereunder, the obligations and covenants of the parties
under this Agreement shall be of no further force and effect, except that the
provisions of Sections 7, 8, 9, 10, 11 and 14 shall survive the termination of
this Agreement, and any consulting fees earned by Consultant and/or expenses
incurred prior to the date of termination of this Agreement and pursuant to the
terms of this Agreement, shall be paid and/or reimbursed by the Company.
13. NOTICES. All notices under this Agreement shall be in writing and shall
be deemed to have been duly given on the date of service if served personally,
or within five days after mailing by first class registered or certified mail,
postage prepaid, and properly addressed, or upon receipt if sent by telegraph or
telephonic facsimile transmission to the party to whom notice is to be given, as
follows:
To Consultant: X. Xxxxx Opel
00000 Xxxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
To the Company: Venture Catalyst Incorporated
00000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Financial Officer
with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
Either party to this Agreement may change its address for notice
purposes by complying with the procedures set forth in this Section 13.
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14. EQUITABLE RELIEF. Consultant recognizes that the Company is relying for
its protection upon the existence and validity of the provisions set forth in
this Agreement and that monetary damages would not be an adequate remedy for the
Company if Consultant violated any of these provisions. Therefore, Consultant
agrees that in addition to any other rights or remedies it may have, the Company
shall have the right to equitable relief by way of injunction, accounting for
earnings or otherwise, for the violation of any provision of this Agreement.
Consultant agrees that the restrictions set forth in this Agreement are
reasonable and that such restrictions will not prevent Consultant from earning a
livelihood upon expiration or termination of this Agreement for any reason.
15. EXPENSES. If any legal action is brought by any party for the
enforcement of this Agreement the prevailing party shall be entitled to recover
from the non-prevailing party its reasonable attorneys' fees and other costs and
expenses incurred in connection therewith in addition to any other relief to
which it might be entitled.
16. EFFECT OF AGREEMENT. This Agreement, along with the Settlement and
Release Agreement between the Company and Consultant dated as of the date
hereof, constitutes the entire agreement between the Company and Consultant with
respect to the subject hereof, and fully supersedes any prior agreements or
understandings with respect thereto, whether written or oral, including, without
limitation, all prior discussions between the Company and Consultant regarding
the provision of services by Consultant to the Company or arising out of any
contemplated transaction between Consultant and the Company. The parties hereto
acknowledge that no representations, inducements, promises or agreements, oral
or otherwise, have been made by any party, or anyone acting on behalf of any
party, which are not embodied herein, and that no other agreement, statement or
promise not contained in this Agreement shall be valid or binding on either
party. No provision of this Agreement shall be deemed waived, amended or
modified by any party, unless in writing and signed by the parties hereto.
17. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
18. JURISDICTION FOR LEGAL ACTIONS. In connection with any action brought
pursuant to or arising out of this Agreement, the parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of
the State of California, County of San Diego, and/or the United States District
Court for the Southern District of California for any actions, suits,
controversies or proceedings arising out of or relating to this Agreement and
the transactions contemplated hereby (and the parties agree not to commence any
action, suit or proceeding relating thereto except in such courts), and further
agree that service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth above shall be effective
service of process for any action, suit or proceeding brought against the
parties in any such court. The parties hereby irrevocably and unconditionally
waive any objection to the laying of
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venue of any action, suit, controversies or proceeding arising out of this
Agreement or the transactions contemplated hereby, in the courts of the State of
California, County of San Diego and/or the United States District Court for the
Southern District of California, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient or improper forum.
19. ATTORNEYS' FEES AND COSTS. If any action in law or in equity is
necessary to enforce or interpret the terms of this Agreement, the parties shall
each bear their respective attorneys' fees, costs and all other related expenses
unless otherwise specifically awarded by the court.
20. MISCELLANEOUS.
(a) Any provision of this Agreement which is rendered unenforceable by a
court of competent jurisdiction shall be ineffective only to the extent of such
prohibition or invalidity and shall not invalidate or otherwise render
ineffective any or all of the remaining provisions of this Agreement.
(b) Any assignment by Consultant of the services or work to be performed
under this Agreement, in whole or in part, or any other interests hereunder,
voluntarily, involuntarily or by operation of law, without the Company's written
consent, shall be void.
(c) No modification, amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in a written instrument
signed by the parties hereto.
(d) This Agreement may be executed in counterparts, which when taken
together will be deemed to constitute one document. Facsimile signatures shall
be treated as originals for this purpose.
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[SIGNATURE PAGE TO CONSULTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
"Company"
VENTURE CATALYST INCORPORATED
(a Utah corporation)
By: /S/ L. XXXXXX XXXXX, XX
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Name: L. XXXXXX XXXXX, XX
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Title: CEO
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"Consultant"
X. XXXXX OPEL
/S/ X. XXXXX OPEL
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EXHIBIT A
Consultant agrees to provide the following services to the Company:
(a) provide assistance and advice with the marketing, advertising media
buys and branding of the Barona Casino and Barona Valley Ranch;
(b) provide assistance and advice to the Barona Group of Capitan Grande
Band of Mission Indians (Barona Tribe) concerning marketing, advertising and
xxxxx xxxxxxx as may be requested;
(c) provide such additional assistance and advice and consulting
services as may be reasonably requested by the Company; and
(d) continue to serve as a member of the Board of Directors of KINeSYS
Pharmaceuticals, Inc. as the Company's representative.
Consultant shall be available for up to ten (10) hours per month to
provide the requested services to the Company. For these purposes, Consultant
shall be deemed to be "available" if he is accessible by telephone or electronic
mail.
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