CONSULTING AGREEMENT
Exhibit
10.13
This
Agreement is made and entered into as of the 13th
day of
October 2006 by and between Xxxxxx Xxxxxx, an individual residing at 00 Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the“Consultant”),
and
Myriad Entertainment and Resorts, Inc., a Delaware corporation, with its
place
of business located at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
(the "Company").
WHEREAS,
the
Company has issued to the Consultant a convertible debenture in the principal
face amount of $1,050,000 with interest thereon at eight percent (8%) per
annum
and convertible into shares of the Company’s common stock at $0.10 per
share;
WHEREAS,
the
Company has issued to the Consultant a warrant to purchase up to five million
(5,000,000) shares of the Company’s common stock at exercise prices ranging from
$0.30 to $3.00 per share at various dates from October 2006 to October 2009,
as
more fully provided in that Warrant;
WHEREAS,
the
Company is in the process of developing and constructing a world class resort
in
Tunica, Mississippi (the “Resort”);
WHEREAS,
the
Consultant has experience and knowledge in matters pertaining to the development
and construction of the Resort; and
WHEREAS,
the
Company seeks the services of the Consultant and the Consultant agrees to
provide it services to the Company, on the terms and conditions contained
in
this Agreement.
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Purpose:
The
Company hereby engages the Consultant for the term specified in Paragraph
2
hereof to render certain management services and advice to the Company relating
to the Company’s development and construction of the Resort.
2. Term:
Except
as otherwise specified in Paragraph 4 hereof, this Agreement shall be effective
from October 14, 2006 to October 14, 2010.
3. Duties
of the Consultant:
During
the term of this Agreement, the Consultant shall provide advice and opinions
to
the Company on subjects relating to the Resort. Specifically, Consultant
intends
to provide services in connection with the development, construction, and
funding of the Resort.
Consultant
will determine in its sole discretion the time, place and manner of the services
it renders as well as the overall amount of time Consultant expends in providing
services under this Agreement. Such advice and opinions will most often be
given
orally. However, the Company may occasionally and reasonably request that
advice
or opinions be provided in writing. The Consultant’s management team will be
made available to assist the Company in its strategic planning.
4. Compensation:
In
consideration for the services rendered by the Consultant to the Company
pursuant to this Agreement (and in addition to the expenses provided for
in
Paragraph 5 hereof), the Company shall compensate the Consultant as
follows:
(a) The
Company shall pay the Consultant a fee of $150,000/year for the entire term
of
this Agreement, unless extended. The fee shall be payable monthly and shall
accrue from the date of this Agreement until such time as the Company is
in
receipt of sufficient funding as determined by the Board of Directors of
the
Company.
(b)
In
addition to the compensation set forth in section 4(a), the Consultant shall
be
entitled to receive a development fee equal to one and a half percent (1.5%)
of
the total amount received pursuant to one or more loans obtained specifically
for the construction and development of the Resort (the “Development Fee”). The
payment of the Development Fee shall be paid monthly to the Consultant and
subject to at all times the Company’s budget for the construction and
development of the Resort, as provided more fully on the attached Exhibit
A. All
fees paid pursuant to Section 4(a) hereof shall be applied to any amounts
owing
to the Consultant pursuant to the Development Fee.
(c)
In
the
event that this Agreement shall not be renewed or if terminated for any reason,
notwithstanding any such non-renewal or termination, the Consultant shall
be
entitled to the full fees set forth in Section 4(a) and 4(b) through the
date of
termination of this Agreement and a full fee and repayment of all expenses
as
provided under Paragraph 5 hereof.
5. Expenses
of the Consultant:
In
addition to the fees payable hereunder, the Company shall reimburse the
Consultant for all reasonable fees and disbursements of the Consultant including
travel and out-of-pocket expenses incurred in connection with the services
performed pursuant to this Agreement, including without limitation, hotels,
food
and associated expenses and long-distance telephone calls, except that (a)
all
fees and disbursements exceeding $1,000 must be pre-approved in writing by
the
Company, and (b) the aggregate of such fees and disbursements not requiring
pre-approval by the Company shall not exceed $1,000.00 per month.
6. Liability
of the Consultant:
The
Company acknowledges that all opinions and advice (written or oral) given
by the
Consultant to the Company in connec-tion with the Consultant's engagement
are
intended solely for the benefit and use of the Company, and the Company agrees
that no person or entity other than the Company shall be entitled to make
use of
or rely upon the advice of the Consultant to be given hereunder, and no such
opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any
purpose, in
each case,
without
the Consultant's prior written consent.
7. The
Consultant's Services to Others:
The
Company acknowledges that the Consultant or its affiliates are in the business
of providing management services and advice to others, including businesses
that
may be involved in the resort or destination experience fields. Nothing herein
contained shall be construed to limit or restrict the Consultant in conducting
such business with respect to others, or in rendering such advice to
others.
8. Company
Information:
(a) The
Company recognizes and confirms that, in advising the Company and in fulfilling
its engagement hereunder, the Consultant will use and rely on data, material
and
other information furnished to the Consultant by the Company. The Company
acknowledges and agrees that in performing its services under this engagement,
the Consultant may rely upon the data, material and other information supplied
by the Company without independently verifying the accuracy, completeness
or
veracity of same.
(b) Except
as
contemplated by the terms hereof or as required by applicable law in the
opinion
of counsel to the Company, the Consultant shall keep confidential all non-public
information provided to it by the Company, and shall not disclose such
information to any third party without the Company's prior written consent,
other than such of its employees and Consultants as the Consultant determines
to
have a need to know. In the event that the Consultant discloses such information
to its employees or Consultants, it will cause such employees or Consultants
to
be bound by the provisions of this Section 8(b).
9. Indemnification:
(a) The
Company shall indemnify and hold harmless the Consultant against any and
all
liabilities, claims, lawsuits, including any and all awards and/or judgments
to
which it may become subject under the Securities Act of 1933 (the "1933 Act"),
the Securities Exchange Act of 1934, (the "Act") or any other federal or
state
statute, at common law or otherwise, insofar as said liabilities, claims
and
lawsuits (including costs, expenses, awards and/or judgments) arise out of
or
are in connection with the services rendered by the Consultant or any
transactions effected in connection with this Agreement, except for any
liabilities, claims and lawsuits (including awards and/or judgments), arising
out of acts or omissions of the Consultant. In addition, the Company shall
also
indemnify and hold harmless the Consultant against any and all costs and
expenses, including reasonable counsel fees, incurred or relating to the
foregoing.
The
Consultant shall give the Company prompt notice of any such liability, claim
or
lawsuit which the Consultant contends is the subject matter of the Company's
indemnification and the Company thereupon shall be granted the right to take
any
and all necessary and proper action, at its sole cost and expense, with respect
to such liability, claim and lawsuit, including the right to settle, compromise
and dispose of such liability, claim or lawsuit, excepting therefrom any
and all
proceedings or hearings before any regulatory bodies and/or
authorities.
The
Consultant shall indemnify and hold harmless the Company against any and
all
liabilities, claims and lawsuits, including any and all awards and/or judgments
to which it may become subject under the 1933 Act, the Act or any other federal
or state statute, at common law or otherwise, insofar as said liabilities,
claims and lawsuits (including costs, expenses, awards and/or judgments)
arise
out of or are based upon any untrue statement or alleged untrue statement
of a
material fact or the omission to disclose a material fact required to be
stated
or necessary to make the statement not misleading, which statement or omission
was made in reliance upon information furnished in writing to the Company
by or
on behalf of the Consultant for inclusion in any registration statement,
prospectus or other document or any amendment or supplement thereto in
connection with any transaction to which this Agreement applies. In addition,
the Consultant shall also indemnify and hold harmless the Company against
any
and all costs and expenses, including reasonable counsel fees, incurred or
relating to the foregoing.
The
Company
shall give the Consultant prompt notice of any such liability, claim or lawsuit
which the Company contends is the subject matter of the Consultant's
indemnifica-tion and the Consultant thereupon shall be granted the right
to a
take any and all necessary and proper action, at its sole cost and expense,
with
respect to such liability, claim and lawsuit, including the right to settle,
compromise or dispose of such liability, claim or lawsuit, excepting therefrom
any and all proceedings or hearings before any regulatory bodies and/or
authorities.
(b) In
order
to provide for just and equitable contribution in any case in which (i) any
person entitled to indemnification under this Paragraph 9 makes claim for
indemnification pursuant hereto but it is judicially determined (by the entry
of
a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the
fact
that this Paragraph 9 provides for indemnification in such case, or (ii)
contribution may be required on the part of any such person in circumstances
for
which indemnification is provided under this Paragraph 9, then, and in each
such
case, the Company and the Consultant shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after any
contribution from others); provided, however that Consultant’s maximum
contribution shall be the amount earned by the Consultant pursuant to Section
4
hereof, and provided, that, in any such case, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act of
1933, as amended) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation.
Within
15
days after receipt by any party to this Agreement (or its representative)
of
notice of the commencement of any action, suit or proceeding, such party
will,
if a claim for contribution in respect thereof is to be made against another
party (the "Contributing Party"), notify the Contributing Party of the
commencement thereof, but the omission to so notify the Contributing Party
will
not relieve it from any liability which it may have to any other party other
than for contribution hereunder. In case any such action, suit or proceeding
is
brought against any party, and such party notifies a Contributing Party or
his
or its representative of the commencement thereof within the aforesaid 15
days,
the Contributing Party will be entitled to participate therein with the
notifying party and any other Contributing Party similarly notified. Any
such
Contributing Party shall not be liable to any party seeking contribution
on
account of any settlement of any claim, action or proceeding effected by
such
party seeking contribution without the written consent of the Contributing
Party. The indemnification provisions contained in this Paragraph 9 are in
addition to any other rights or remedies which either party hereto may have
with
respect to the other or hereunder.
10. The
Consultant as an Independent Contractor:
The
Consultant shall perform its services hereunder as an independent contractor
and
not as an employee of the Company or affiliates thereof. It is expressly
understood and agreed to by the parties hereto that the Consultant shall
have no
authority to act for, represent or bind the Company or any affiliate thereof
in
any manner, except as may be agreed to expressly by the Company in writing
from
time to time.
11. Miscellaneous:
(a) This
Agreement between the Company and the Consultant constitutes the entire
agreement and understanding of the parties hereto, and supersedes any and
all
previous agreements and understandings, whether oral or written, between
the
parties with respect to the matters set forth herein.
(b) Any
notice or communication permitted or required hereunder shall be in writing
and
shall be deemed sufficiently given if hand-delivered or sent (i) postage
prepaid
by registered mail, return receipt requested, or (ii) by facsimile, to the
respective parties as set forth below, or to such other address as either
party
may notify the other in writing:
If
to the
Company, to: Myriad
Entertainment and Resorts, Inc.
0000
Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxx, CEO
If
to Xxxxxxxx & Associates, LLC to: Xxxxxx
Xxxxxx
00
Xxxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
With
a
copy to: Xxxxxxx
Xxxxxx LLP
000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxx, Esq.
(c) This
Agreement shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors, legal representatives and
assigns.
(d) This
Agreement may be executed in any number of counterparts, each of which together
shall constitute one and the same original document.
(e) No
provision of this Agreement may be amended, modified or waived, except in
a
writing signed by all of the parties hereto.
(f) This
Agreement shall be construed in accordance with and governed by the laws
of the
State of New York, without giving effect to conflict of law principles. The
parties hereby agree that any dispute which may arise between them arising
out
of or in connection with this Agreement shall be adjudicated before a court
located in New York City, and they hereby submit to the exclusive jurisdiction
of the courts of the State of New York located in New York, New York and
of the
federal courts in the Southern District of New York with respect to any action
or legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court
is an
inconvenient forum, relating to or arising out of this Agreement, and consent
to
the service of process in any such action or legal proceeding by means of
registered or certified mail, return receipt requested, in care of the address
set forth in Paragraph 11(b) hereof.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed, as of the
day and
year first above written.
CONSULTANT
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Myriad
Entertainment & Resorts, Inc.
By:
Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: Chief
Executive Officer
EXHIBIT
A
Construction
and Development Budget