printer-friendly

Sample Business Contracts

Independent Contractor Agreement - Diversified Opportunities Group Ltd. and Ian M. Stewart

Sponsored Links

                        INDEPENDENT CONTRACTOR AGREEMENT

        This Independent Contractor Agreement ("Agreement") is entered into and
made effective as of January 1, 2001 ("Agreement Date"), by and between
DIVERSIFIED OPPORTUNITIES GROUP LTD., an Ohio limited liability company, having
an address at 1231 Main Avenue, Cleveland, Ohio 44113 ("Diversified"), and IAN
M. STEWART, having an address at 9258 Hunt Club Lane, Mechanicsville, Virginia
23111 ("Contractor").

                                    RECITALS

        A.      Contractor has special skills, training, experience, knowledge
                and ability to locate, evaluate, negotiate and complete the
                acquisition of various truck stop facilities within the State
                of Louisiana ("Consulting Services") and Diversified desires
                Contractor to provide such Consulting Services; and

        B.      Contractor seeks to be retained by Diversified and Diversified
                seeks to retain Contractor under the terms and conditions set
                forth below.

        NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:

        1.      Incorporation. The foregoing recitals are incorporated herein as
                if fully rewritten herein.

        2.      Independent Contractor. At all times during the Term (as
                hereinafter defined) of this Agreement, Contractor shall
                perform the duties and responsibilities identified in this
                Agreement as an independent contractor and not as an employee
                of Diversified. Diversified shall not withhold any federal or
                state taxes, social security, unemployment compensation or
                other payments from the Commission (as hereinafter defined)
                paid to Contractor. Contractor shall pay all federal and state
                income taxes, social security contributions and all other
                taxes and charges levied or assessed with respect to the
                Commission received by Contractor pursuant to this Agreement.
                Contractor agrees to abide by all applicable federal, state and
                local laws, ordinances, rules and regulations in performing the
                duties and responsibilities required of him hereunder. In
                addition, Contractor agrees and does herewith indemnify, defend
                and hold Diversified harmless from any claims, losses,
                liabilities or expenses it or its affiliates or subsidiaries
                may suffer, including reasonable attorney's fees, arising as a
                result of Contractor's failure to pay all withholding
                obligations and tax liabilities associated with the
                Commission(s). At all times under this Agreement the Contractor
                is acting and performing as an independent contractor and shall
                not be considered an employee or agent of Diversified.

<PAGE>


        3.      Term and Termination. This Agreement shall be deemed to have
                commenced on the Agreement Date and shall continue thereafter
                until 5:00 p.m. E.S.T. on the day of the final closing of the
                Second Traunche (as hereinafter defined), unless terminated
                prior to such date as hereinafter provided (the Term"). The
                Term may be mutually extended by a written agreement executed
                by both parties hereto.

                a.      Prior to expiration of this Agreement as set forth
                        above, either party shall have the right to terminate
                        this Agreement, with or without justifiable cause, upon
                        sixty (60) days' prior written notice to the other
                        party. Notwithstanding the foregoing, this Agreement
                        shall terminate immediately upon the occurrence of any
                        of the following events: (i) Contractor's death; or (ii)
                        Contractor being convicted of a felony or act of moral
                        turpitude, or (iii) Contractor's taking any action, in
                        Diversified's reasonable judgment, that is likely to
                        adversely affect the reputation, operation or business
                        of Diversified or its affiliates or subsidiaries.

                b.      Diversified and Contractor acknowledge and agree that
                        no provision contained in this Agreement offers,
                        guarantees or otherwise obligates Diversified to
                        continue to retain Contractor following the termination
                        of this Agreement. Following the termination of this
                        Agreement for any reason, Diversified shall promptly pay
                        Contractor (or Contractor's estate) the Commission for
                        services rendered to the effective date of the
                        termination as outlined below. Contractor acknowledges
                        and agrees that no other compensation, of any nature or
                        type, shall be payable hereunder following the
                        termination of this Agreement.

        4.      Duties and Responsibilities of Contractor. During the Term,
                Contractor agrees to be available to the agents and employees of
                Diversified, on an as needed basis, to provide the Consulting
                Services as Diversified may reasonably request, upon reasonable
                advance notice, in connection with Diversified's gaming and
                other business and financing operations in the State of
                Louisiana. Contractor further agrees during the Term to be
                available, upon reasonable notice and at reasonable times, at
                Diversified's operations in the States of Ohio, Virginia and
                Louisiana. Contractor agrees to conduct himself, at all times
                while rendering services hereunder, in a professional manner and
                shall use his best efforts to make decisions and recommendations
                hereunder for the purpose of benefiting the financial success
                of Diversified. Contractor agrees not to accept any engagement
                during the Term that would violate, or would be likely to
                result in a violation of, Section 6(b) hereof. Nothing
                contained in this Agreement is intended to, nor shall it be
                construed to, grant Contractor any exclusive rights to provide
                the services and duties described herein.

        5.      Compensation. Prior to the expiration or termination of this
                Agreement, pursuant to Section 3 hereof, Diversified will make
                the following payments to Contractor as and for full and
                complete consideration and payment for any and all services
                rendered

<PAGE>
        under this Agreement, whether rendered prior to, on, or after the
        Agreement Date ("Commission"):

        a.      One Hundred Eighty-Seven Thousand Five Hundred and 00/100
                Dollars ($187,500.00) to be paid as follows: One Hundred
                Thousand Dollars ($100,000.00) to be paid on July 16, 2001 with
                the remaining balance to be paid in four (4) equal monthly
                payments commencing on the first day of August, 2001 and
                continuing on the first day of each of the next three (3)
                calendar months thereafter;

        b.      at the final closing the Second Traunche, provided such final
                closing occurs within the Term or within one (1) year
                following the end of the Term (the "Acquisition Period"), One
                Hundred Eighty-Seven Thousand Five Hundred Dollars and 00/100
                Dollars ($187,500.00). The Second Traunche shall mean the
                completion of the purchase, by Diversified or any of its
                affiliates or subsidiaries, of all of the following truck stops:
                (i) Plantation, L.L.P.; (ii) Raceland Truck Plaza and Casino,
                LLC (iii) Lucky Magnolia Truck Stop and Casino, LLC; (iv) Bayou
                Vista Truck Plaza & Casino LLC; and (v) Jace, Inc. In the event
                less than all of the five (5) truck stops identified in this
                Section 5(b) are purchased during the Term within the
                Acquisition Period, Contractor shall be paid Thirty-Seven
                Thousand Five Hundred and 00/100 Dollars ($37,500.00) for each
                such truck stop so purchased with payment of the foregoing sum
                to be paid upon the closing of the acquisition of each truck
                stop.

        c.      In addition to the foregoing, should Diversified or any of its
                affiliates or subsidiaries purchase, during the Acquisition
                Period, either of the two truck stop facilities owned by Shawn
                Scott or his wholly owned subsidiaries located in St. Martin
                Parish, Louisiana, one of which is referred to as the "Amoco"
                truck stop and the other as the "Texaco" truck stop, Contractor
                shall be paid Thirty-Seven Thousand Five Hundred and 00/100
                Dollars ($37,500.00) for each such truck stop so purchased with
                payment of the foregoing sum to be paid upon the closing of the
                acquisition of each truck stop; provided, however, regardless of
                the total number of truck stop facilities purchased by
                Diversified or its affiliates or subsidiaries during the
                Acquisition Period in no event shall Contractor be entitled to
                payment for more than five (5) total truck stops whether
                purchased from the Second Traunche, Shawn Scott or any other
                source.

        d.      Notwithstanding anything contained in this Agreement to
                contrary, in no event shall the Contractor's combined Commission
                arising under Section 5(b) and (c) exceed the sum of One
                Hundred Eighty-Seven Thousand Five Hundred Dollars (187,500.00).

<PAGE>
                                                                [Execution Copy]

         e.      If any truck stop is purchased by Diversified or any of its
                 affiliates or subsidiaries after the Acquisition Period,
                 including any truck stop which is a part of the Second
                 Traunche, Stewart shall have no right to any Commission upon
                 the closing of such truck stop(s) and does herewith release
                 and waive any right, title or interest in or to such
                 Commission(s).

     6.       Diversified's Proprietary Interest in Trade Secrets AND
              Non-Compete.

         a.      Contractor acknowledges that he has had and expects to continue
                 to have access to and become familiar with the records,
                 documents, files, policies, business plans, strategies,
                 customers, financial information, employees, officers, agents,
                 unique data and the like regarding Diversified and its
                 affiliates and subsidiaries and their businesses and operations
                 (collectively referred to herein as "Trade Secrets").
                 Contractor acknowledges that the Trade Secrets are special,
                 valuable and unique assets of Diversified and its affiliates
                 and subsidiaries and that Diversified and/or its affiliates and
                 subsidiaries would suffer great loss and damage if, during or
                 after the Term, Contractor were to disclose, reveal, divulge or
                 make available, either directly or indirectly, to any person,
                 firm, partnership, corporation, association or other entity,
                 the Trade Secrets. Accordingly, Contractor agrees that the
                 Trade Secrets, in their entirety or any portion thereof, shall
                 not be disclosed, revealed, divulged, or made available to any
                 person, firm, partnership, corporation, association or other
                 entity, either directly or indirectly, during or after the
                 Term, unless Contractor is authorized to do so in writing by
                 Diversified. Contractor agrees that, upon termination of this
                 Agreement for any reason, Contractor shall immediately return
                 to Diversified all Trade Secrets previously held by, retained
                 or under the control of Contractor (including, but not limited
                 to, any analyses, compilations, studies or documents prepared
                 during the review of Trade Secrets by Contractor or his
                 agents), and Contractor agrees not to make and/or retain any
                 copies of any Trade Secrets.

         b.      In consideration of the fees, payments, promises and benefits
                 accruing hereunder, Contractor agrees during the Term and for a
                 period of two (2) years following the expiration of the Term or
                 an earlier termination of this Agreement (hereinafter the
                 "Non-Compete Period") not to, directly or indirectly, own (in
                 any form in whole or in part), operate, manage, control, be
                 employed by, participate in, provide advice, financial aid or
                 other assistance to any aspect of a business, or conduct, carry
                 on or engage in any activity, any of which directly or
                 indirectly compete with any aspect of the operations of JALOU
                 L.L.C., a Louisiana limited liability company, JALOU II INC., a
                 Louisiana corporation or any of their affiliates or
                 subsidiaries whether created before or during the Term or the
                 Acquisition Period (collectively "JALOU"). In addition to the
                 foregoing, Contractor agrees, during the Non-Compete Period,
                 not to induce any of JALOU's employees to leave their
                 employment, nor to employ either directly or

                                       4

<PAGE>

                indirectly any of JALOU's employees. Further, Contractor agrees
                he shall not solicit any customers, suppliers, sponsors, or
                advertisers of, or other third-parties doing business with,
                JALOU for the purpose of inducing, directly or indirectly, the
                termination of such entity's or individual's relationship with
                JALOU.

        c.      Contractor acknowlegdes that the restrictions and covenants
                contained in Sections 6(a) and (b) are reasonably necessary to
                protect the investments and business of Diversified and are a
                material inducement to Diversified to enter into this Agreement.
                Contractor further acknowledges that monetary damages alone
                would be inadequate compensation for the breach of the
                covenants and agreements contained in this Section and,
                therefore, any court may award Diversified injunctive and/or
                other equitable relief for any breaches of the foregoing, such
                remedies shall be in addition to any and all other remedies
                Diversified may otherwise have.

        d.      The parties agree that in the event a court of competent
                jurisdiction shall determine that any aspect of the covenants
                and agreements contained herein shall be unenforceable for any
                reason, such court may modify the covenant or agreement to
                render such covenant or agreement enforceable.

        e.      Contractor has carefully considered the nature and extent of the
                restrictions upon him and the rights and remedies conferred upon
                Diversified and its affiliates and subsidiaries under this
                Section 6. Contractor further acknowledges and agrees that the
                remedies, rights and restrictions contained in Section 6:(i) are
                reasonable in time and territory; (ii) are designed to eliminate
                competition which otherwise would be unfair to Diversified, its
                affiliates and subsidiaries; (iii) do not stifle the inherent
                skill and experience of the Contractor; (iv) would not operate
                as a bar to Contractor's sole means of support; (v) are fully
                required to protect the legitimate interests of Diversified and
                its affiliates and subsidiaries; and (vi) do not confer a
                benefit upon Diversified or its affiliates or subsidiaries
                disproportionate to the detriment to the Contractor.

     7.   Notice. Notices and all other communications provided for in this
          Agreement shall be in writing and shall be deemed to have been duly
          given when delivered in person or by a recognized overnight delivery
          service or upon receipt of a confirmed facsimile transmission or when
          mailed by United States registered mail, return receipt requested,
          postage prepaid, addressed to the last known address of the

<PAGE>

          respective parties, provided that all notices to Diversified shall be
          directed to the attention of the ChIef Executive Officer, or to such
          other address as either party may have furnished to the other in
          writing in accordance herewith, expect that notices of change of
          address shall be effective only upon receipt. At least initially,
          notices to Contractor shall be addressed or transmitted a follows:
          Ian M. Stewart, 9258 Hunt Club Land, Mechanicsville, Virginia 23111.

     8.   Payments. Any payments to Contractor hereunder shall be made in U.S.
          same-day funds wire-transferred to Contractor's account as follows:

                        To the Account of Ian M. Stewart
                                                  Bank
                        --------------------------
                        Routing No.:
                        Account No.:

     Contractor shall notify Diversified in writing of any change in such wire
     transfer instructions.

     9.   Governing Law. The validity, interpretation, construction and
          performance of this Agreement shall be governed by the laws of the
          State of Ohio without giving effect to the conflicts of law principles
          thereof. The parties agree that they shall be estopped from raising
          any defenses or claims regarding venue, including any conflicts of law
          provisions to which any parties would be otherwise entitled.

     10.  Validity. The invalidity or unenforceability of any one or more
          provisions of this Agreement shall not affect the validity or
          enforceability of any other provision of this Agreement, which shall
          remain in full force and effect.

     11.  Counterparts. This Agreement may be executed in one or more
          counterparts, each of which shall be deemed to be an original but all
          of which together will constitute one and the same instrument.

     12.  Jurisdiction. In the event of any dispute or controversy arising under
          or in connection with this Agreement, Contractor and Diversified
          hereby irrevocably consent to the jurisdiction of the United States
          District COurt for the Northern District of Ohio.

     13.  Waiver of Jury Trial. DIVERSIFIED AND CONTRACTOR EACH HEREBY
          --------------------
          KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THAT
          THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
          HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
          AGREEMENT, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL
          OR WRITTEN), OR ACTIONS OF DIVERSIFIED OR CONTRACTOR. THIS PROVISION
          IS A MATERIAL

<PAGE>

                                                                (Execution Copy)
INDUCEMENT FOR DIVERSIFIED AND CONTRACTOR ENTERING INTO THIS AGREEMENT.

14.  Entire Agreement.  This Agreement constitutes the entire agreement between
Contractor and Diversified with respect to the subject matter hereof and no
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by any party that are not
set forth expressly in this Agreement. No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge
is agreed to in writing signed by Contractor and such officer as may be
specifically designated by Diversified. No waiver by any party at any time of
any breach by another party of, or compliance with, any condition or provision
of this Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. The parties further acknowledge and agree that this Agreement
and the terms contained herein supersede all previous contracts and agreements
between the parties with respect to the subject matter hereof, except as
expressly set forth herein.

15.  Indemnification.  Contractor shall indemnify and hold harmless Diversified
and its officers, members, managers, employees, agents, contractors,
sublicensees, affiliates, subsidiaries, successors and assigns from and against
any and all damages, liabilities, costs, expenses, claims and/or judgments,
including, without limitation, reasonable attorneys' fees and disbursements
(collectively the "Claims") which any of them may suffer from or incur and which
arise or result primarily from (i) any gross negligence or willful misconduct of
Contractor arising from or connected with Contractor's carrying out of his
duties under this Agreement, or (ii) the breach by Contractor of any of his
obligations, agreements or duties under this Agreement. Diversified shall
indemnify and hold harmless Contractor from and against all Claims which he may
suffer from or incur and which arise or result primarily from (x) the operation
by Diversified or its affiliates or subsidiaries of their businesses, (y) the
breach or alleged breach by Diversified or its affiliates or subsidiaries of, or
their failure or alleged failure to perform under, any agreement to which any
one of them is a party, including, without limitation, any agreement relating to
the acquisition of any truck stop or other business or assets, or (Z) the breach
by Diversified of any of its obligations, agreements or duties under this
Agreement; provided, however, none of the foregoing result from or arise out of
the actions or inactions of Contractor.

16.  Compliance with Law.  Both parties hereto agree that if the manner of
payment to the Contractor, or payment by Diversified to the Contractor or any
other provision of this Agreement, becomes violative of any law, including, but
not limited to, federal or state taxation laws, rules or regulations, the
parties shall negotiate a revision in the terms of the Agreement such that the
purpose for the Agreement and the benefits contemplated to be obtained by each
shall be preserved to the greatest extent practicable. The parties further agree
that in the event that compliance with the law substantially precludes the
purposes for

                                       7

<PAGE>

                                                                (Execution Copy)
which this Agreement has been made, then this Agreement may be terminated upon
written notice given by either party.

17.  Duties as an officer of JALOU. Both parties acknowledge and agree that the
Consulting Services rendered by Contractor hereunder are in addition to, are
distinct from and shall not conflict with the duties of the Contractor in his
position as an officer and manager of JALOU.

18.  Miscellaneous.

        Negation of Agency.  Nothing herein contained shall be deemed to create
        an agency, joint venture or partnership relation between the parties
        hereto and it is acknowledged that the parties hereto have only a
        relationship of employer/independent contractor.

        Construction.  The language of this Agreement and of each and every
        article, paragraph, section, term and/or provision of this Agreement,
        shall in all cases, for any and all purposes and in any and all
        circumstances, be construed as a whole according to its meaning and
        not strictly for or against Diversified or Contractor, without regard
        whatsoever to the identity or status of any person or persons who
        drafted all or any portion of this Agreement.

        Headings.  The section headings used in this Agreement are intended
        solely for convenience of reference and shall be given no effect in the
        construction or interpretation of this Agreement.

        Authority to Make Agreement.  This Agreement is not valid or binding
        until and unless executed by the Manager or duly authorized party of
        both Diversified and Contractor.

        Counterpart signatures.  This Agreement may be executed in more than one
        counterpart each of which when taken together shall constitute one and
        the same original.

        Assignment.  This Agreement and the rights, duties and obligations
        hereunder may not be assigned by either party. Notwithstanding the
        foregoing. Diversified may assign all of its interests, rights and
        obligations hereunder to any of its parent entities, affiliates and/or
        subsidiaries or any other entity which is the surviving entity following
        a merger with Diversified.

           [The remainder of this page is left intentionally blank.]

                                       8

<PAGE>



IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Agreement Date, intending to be bound by its terms and conditions.

                                    DIVERSIFIED:

                                    DIVERSIFIED OPPORTUNITIES GROUP
                                    LTD., an Ohio limited liability company

                                    By:   JACOBS ENTERTAINMENT, LTD.,
                                          an Ohio limited liability company, its
                                          manager

                                           /s/ JEFFREY P. JACOBS
                                    By:_________________________________________
                                    Jeffrey P. Jacobs, Manager

                                    CONTRACTOR:


                                           /s/ IAN M. STEWART
                                    By:_________________________________________
                                    Ian M. Stewart