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EXHIBIT 10.19
MANAGEMENT CONSULTING AGREEMENT
THIS AGREEMENT, effective as of February 1, 1996 ("Effective Date"),
is entered into by and between Len Stuart & Associates, Ltd., a Cayman Islands
corporation ("Consultant") and Stuart Entertainment, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the parties desire for their mutual benefit to enter into
this Management Consulting Agreement as of the Effective Date;
WHEREAS, the Company desires to engage the Consultant on the terms and
conditions set forth herein; and
WHEREAS, the Consultant desires to be so engaged;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements herein contained, the parties agree as
follows:
1. ENGAGEMENT OF CONSULTANT. The Company hereby agrees to engage
the Consultant and, in such capacity, agrees to perform such
services and to devote such time as is required to participate
in the development of long-term policies and strategies of the
Company and to further assure the Company of the benefit of
its experience, contacts and relationships in the business in
which the Company is engaged, and in that connection, to be
available to the Company for general consulting as to the
business and operations of the Company, it customers and
suppliers, and to interface with the same at the request of
the Company; provided, that the Company recognizes that the
Consultant has other business interests which will require its
attention during normal working hours. The Consultant shall
not be responsible for the day-to-day operations of the
Company. Subject to the limitations set forth in Article 7 of
this Agreement, the Consultant shall be entitled (i) to pursue
other business interests in any capacity whatsoever; and (ii)
to serve any noncompeting Company or in any educational,
welfare, charitable, community and religious organizations.
It is agreed that all services to be provided by Consultant
hereunder shall be provided by Consultant from its offices in
the Bahama Islands or such other location as Consultant may
deem appropriate. Nothing in this Agreement shall give the
Company the right to require Consultant's services to be
performed at any specific location. In the event the Company
desires Consultant to provide services at any specific
location, then the parties shall negotiate an amount of
additional compensation for Consultant in consideration of
performing such services at such location.
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2. TERM OF AGREEMENT. The Consultant shall be engaged for an
initial term (the "Initial Term") commencing on the Effective
Date and ending at the close of business on December 12, 1999
(the "Expiration Date"), unless terminated earlier pursuant to
paragraph 4 of this Agreement (the "Term of the Agreement").
Beginning on the Expiration Date, and on each anniversary
thereafter of the Expiration Date, this Agreement shall
automatically be renewed for a term of one (1) year (each, a
"Renewal Term") commencing on the first day immediately
following the Expiration Date, unless such renewal is
rescinded by either the Company or the Consultant by written
notice given at least ninety (90) days prior to the Expiration
Date or the expiration of the Renewal Term, as the case may
be.
3. COMPENSATION AND OTHER RELATED MATTERS.
3.1 Base Fees. As compensation for services rendered
hereunder, the Consultant shall receive an Annual
Base Fee (the "Annual Base Fee") of $200,000 to be
paid in accordance with the Consultant's customary
practices. The Annual Base Fee shall be subject to
review by the Board of Directors of the Company, no
less frequently than annually, and may be increased,
but not decreased, at the direction of the Board of
Directors.
3.2 Expenses. During the term of this Agreement, the
Consultant shall be entitled to receive prompt
reimbursement from the Company of all reasonable
expenses including, without limitation, travel and
entertainment incurred by Consultant's employees in
performing services hereunder. In addition to the
foregoing, the Consultant shall be entitled to prompt
reimbursement from the Company of 80% of the
reasonable expenses incurred by it in maintaining its
offices, including, without notation, reasonable
rent, phone, heating, air conditioning, electric and
stationery expenses and salary for an administrative
assistant of the Consultant's choice on a basis
consistent with his past and present practices.
3.3 Other Benefits. Nothing paid to the Consultant or
any of its employees under any arrangement or
prerequisite presently in effect or made available in
the future shall be deemed to be in lieu of the
Annual Base Fee or any other compensation paid to the
Consultant pursuant to this Agreement. The Board of
Directors, from time to time, shall also consider
granting stock options to the Consultant.
4. TERMINATION.
4.1 Termination for Cause. The Company shall be entitled
to terminate the Agreement at any time for "Cause."
Termination by the Company of the Agreement for
"Cause" shall mean termination based upon (i) the
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Consultant's willful and continued failure
substantially to perform its duties hereunder; (ii) a
conviction of, or a plea of guilty or nolo contendere
by an employee of the Consultant assigned to work on
the Company's matters to an act of fraud,
misappropriation or embezzlement or to a felony,
(iii) the material breach by the Consultant of this
Agreement; or (iv) the commission of any act by an
employee of the Consultant assigned to work on the
Company's matters that would cause any license of the
Company or its subsidiaries or affiliates to be
revoked, suspended or not be renewed after proper
application or that would, in the reasonable opinion
of the Board of Directors of the Company after the
Consultant is given a reasonable opportunity to
discuss the basis therefore with the Board,
jeopardize the ability of the Company, its
subsidiaries and affiliates to maintain its gaming
licenses; provided, that this clause (iv) shall not
apply to any act of the Company or its affiliates or
subsidiaries or any other employee thereof except to
the extent that such act was committed at the
direction of the Consultant.
4.2 Voluntary Termination by Company. In the absence of
"Cause," the Company may terminate its obligations
under this Agreement in accordance with this Section
4.2. In the event the Consultant is unable, for any
reason, to assign an employee with adequate
knowledge, training, experience, qualifications and
skills to provide the services to the Company as
contemplated by this Agreement ("Qualified
Employee"), the Company may terminate this Agreement
effective thirty (30) days following written notice
of such termination wherein the reasons described in
this Section 4.2 are specifically provided. Except
where Consultant's inability to provide a Qualified
Employee is due to Leonard A. Stuart's disability (in
which event Section 5.1 shall apply), upon
termination, the Company shall be relieved of all
obligations relating to payment to Consultant
hereunder, effective upon the date the failure to
provide a Qualified Employee commenced. For purposes
of this Agreement, the parties stipulate that Leonard
A. Stuart, and any individual with knowledge,
training, experience, qualifications and skills which
are equal to or greater than those of Leonard A.
Stuart, is a Qualified Employee. Any other employee
of the Consultant who, in the judgment of the
Company, possesses the requisite knowledge, training,
experience, qualifications and skills contemplated
hereunder, shall constitute a Qualified Employee.
Company agrees that its judgment as to the Qualified
Employee status of any employee of Consultant shall
not be unreasonably exercised. If the Company
terminates this Agreement for any reason other than
for "Cause" or for Consultant's inability to assign a
Qualified Employee to perform the services
contemplated hereunder, such termination shall be
effective ninety (90) days following Consultant's
receipt of written notice of such termination.
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4.3 Voluntary Termination by Consultant. The Consultant
may terminate his obligations under this Agreement at
any time upon ninety (90) days' written notice to the
Company. The Consultant shall be entitled to
terminate this Agreement at any time for "Good
Reason." For purposes of this Agreement, "Good
Reason" shall exist if (i) the nature and conditions
of the Consultant's engagement are materially
adversely changed and that change is not corrected by
the Company within 30 days after written notice from
the Consultant describing the change alleged to
constitute Good Reason; (ii) the material breach by
the Company of any other provision of this Agreement,
if the Company fails to remedy that breach within 30
days after written notice from the Consultant
describing the acts alleged to constitute that
breach; (iii) any material breach which is not cured
within 30 days after notice of such breach by the
Company or MLGA Fund II, LP and/or its affiliates
(the "MLGA Affiliates") of the Company's obligations
under that certain Security Holders Agreement (the
"Security Holders Agreement"); or (iv) upon the
occurrence of an acceleration event as set forth in
that certain Subordinated Promissory Note made by the
Company.
5. COMPENSATION UPON TERMINATION OR DURING DISABILITY. In the
event of termination of this Agreement or during the period of
disability, the Consultant shall be eligible to receive the
following:
5.1 Disability. Without limiting to any extent the
Consultant's right to designate a Qualified Employee
to perform the consulting services hereunder, if at
any time that Leonard A. Stuart is serving as a
Qualified Employee hereunder he becomes incapacitated
due to physical or mental illness (the "Disability
Period"), the Company shall continue to pay
Consultant one-third (1/3) of its Annual Base Fee at
the rate set forth in paragraph 3.1 of this Agreement
through the later of (a) the date which is three (3)
months prior to the Expiration Date or (b) the date
which is nine (9) months after the date of the
commencement of such disability, notwithstanding
anything herein to the contrary. During the period
of such disability, the Consultant shall attempt to
assign a Qualified Employee to perform the consulting
services contemplated hereunder, but its inability to
do so shall not relieve the Company of its
obligations to pay the Annual Base Fee hereunder.
5.2 Cause. If this Agreement is terminated by the
Company for "Cause" as defined in paragraph 4.1 of
this Agreement, the Company's obligation to pay the
Consultant his Annual Base Fee at the rate set forth
in paragraph 3.1 of this Agreement shall continue
through the effective date of termination of this
Agreement. Thereafter, the Company shall have no
further obligation to the Consultant under this
Agreement.
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5.3 Voluntary Termination by Company. If the Company
voluntarily terminates this Agreement for any reason
other than "Cause," Leonard A. Stuart's disability
(if he is then serving as a Qualified Employee) or
the Consultant's inability to provide a Qualified
Employee to provide the services hereunder, the
Company shall continue to pay the Consultant the
Annual Base Fee at the rate set forth in paragraph
3.1 of this Agreement through the later of (a) the
Expiration Date and (b) the date which is one year
from the date of such termination. In the event the
Company voluntary terminates this Agreement for
Consultant's inability to provide a Qualified
Employee to provide the services hereunder, other
than by reason of Leonard A. Stuart's disability as
provided in Section 5.1, the Company shall continue
to pay the Consultant the Annual Base Fee at the rate
set forth in paragraph 3.1 of this Agreement through
the effective date of such termination. Thereafter,
the Company shall have no further obligation to the
Consultant under this Agreement.
5.5 Voluntary Termination by Consultant. If the
Consultant voluntarily terminates this Agreement, the
Company shall continue to pay the Consultant his
Annual Base Fee at the rate set froth in paragraph
3.1 of this Agreement through the effective date of
the Consultant's termination. Thereafter, the
Company shall have no further obligation to the
Consultant under this Agreement.
5.6 Good Reason. If the Consultant terminates this
Agreement for Good Reason pursuant to paragraph 4.6
of this Agreement, the Company shall continue to pay
the Consultant the Annual Base Fee at the rate set
forth in paragraph 3.1 of this Agreement through the
later of (a) the Expiration Date or (b) one year from
the date of such termination.
5.7 Expiration by Its Terms. If, after the expiration of
the Initial Term, either the Consultant or the
Company objects to any Renewal Term as provided in
Paragraph 2 upon the expiration of the Renewal Term
and subject to Paragraph 7 hereof, neither party
shall have any further obligations hereunder.
5.8 No Mitigation. The Consultant shall not be under any
duty to mitigate any damages caused by, or resulting
from, the Company's breach or termination of this
Agreement.
5.9 Other Benefits. In addition to the foregoing, the
Consultant shall be entitled to whatever benefits
Consultant may be entitled to pursuant to Paragraph
3.3 above as determined in accordance with the plans,
policies and practices of the Company then in effect
for so long as the Consultant
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shall be entitled to payment of his Annual Base Fee
in accordance with this Paragraph 5.
6. CHANGE IN CONTROL. If any "Change-of-Control Transaction"
shall occur during the Term of the Agreement and this
Agreement is terminated by the Company or the Consultant for
any reason (including, during any Renewal Term, without
limitation, his resignation without Good Reason) within six
(6) months from the date of the Change-of-Control Transaction,
then the Company shall pay the Consultant in a lump sum within
thirty (30) days after the date of such termination an amount
equal to the total Annual Base Fee that would have been paid
to Consultant (had the Agreement not been terminated) through
the later of (a) the Expiration Date and (b) the date which is
one year from the date of such termination.
As used in this Agreement:
"Change in Control Transaction" shall mean the occurrence of
one or more of the following events:
(i) a person or entity becomes an Acquiring Person,
(ii) the Company sells all, or substantially all, of its
assets to a single purchaser or group of affiliated
purchasers; or
(iii) the Company or an entity through which the Company
conducts substantially all of its business engages in
a merger or consolidation with another entity and
immediately after that merger or consolidation, the
persons who were shareholders of the Company
immediately prior to that merger or consolidation
hold, directly or indirectly, less than 58% of the
Voting Stock of the surviving entity.
"Acquiring Person" shall mean any "person," as such term is
used in Sections 3(a)(9) and 13(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), who becomes a "beneficial
owner," as such term is used in Rule 13-3 promulgated under
the Exchange Act, of 42% or more of the Voting Stock of the
Company, excluding the Consultant and the MLGA Group (as
defined in the Security Holders Agreement).
"Voting Stock" shall mean, with respect to a corporation, the
capital stock of any class or classes of that corporation
having general voting power under ordinary circumstances, in
the absence of contingencies, to elect the directors of such
corporation and, with respect to any other entity, the
securities of that entity having such general voting power to
elect the members of the managing body of that entity.
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7. NON-COMPETITION PROPRIETARY INFORMATION AND INTELLECTUAL
PROPERTY.
7.1 Non-Competition. The Consultant acknowledges and
recognizes the highly competitive nature of the
businesses of the Company and its affiliates.
Accordingly, through the later of (i) the Expiration
Date and (ii) the first anniversary of the
Consultant's termination or resignation of employment
(such date being hereafter referred to as the "Date
of Termination"):
(a) The Consultant, its employees, affiliates and
representatives shall not, directly or
indirectly, engage (as owner, stockholder,
partner or otherwise, except as a holder of
fewer than 5% of the outstanding shares or
other equity interests of a company whose
shares or other equity interests are publicly
traded) in any bingo-related activities,
including electronic bingo systems and
related equipment, bingo-related television
or other media programs, any lottery,
including, but not limited to, video lottery
terminal machines, a lottery of the
"break-open" type, or any related business,
or in any business which directly or
indirectly competes with the business of the
Company or any of its affiliates or
subsidiaries at the time of the termination
of this Agreement, except that, for purposes
of this clause, there shall not be deemed to
be a breach of the Consultant in the
performance of his duties hereunder.
(b) The Consultant, its employees, affiliates and
representatives shall not, directly or
indirectly, induce any employee of the
Company or any of its affiliates or
subsidiaries to engage in any activity in
which the Consultant is prohibited from
engaging by paragraph (a) above or to
terminate his employment with the Company or
any of its affiliates or subsidiaries, and
will not directly or indirectly employ or
offer employment to any person who was
employed by the Company or any of its
affiliates or subsidiaries unless such person
shall have been terminated without cause or
ceased to be employed by any such entity for
a period of at least 12 months.
(c) The Consultant, its employees, affiliates and
representatives will not make any statement
or take any action intended to impair the
goodwill or the business reputation of the
Company or any of its affiliates or
subsidiaries, or to be otherwise detrimental
to the interests of the Company or any of its
affiliates or subsidiaries, including any
action or statement intended, directly or
indirectly,
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to benefit a competitor of the Company or any
of its affiliates or subsidiaries.
(d) It is expressly understood and agreed that
although the Consultant and the Company
consider the restrictions contained in this
paragraph 7.1 to be reasonable, if a final
judicial determination is made by a court of
competent jurisdiction that the time or
territory or any other restriction contained
in this Agreement is an unenforceable
restriction against the Consultant, the
provisions of this Agreement shall not be
rendered void but shall be deemed amended to
apply as to such maximum time and territory
and to such maximum extent as such court may
judicially determine or indicate to be
enforceable. Alternatively, if any court of
competent jurisdiction finds that any
restriction contained in this Agreement is
unenforceable, and such restriction cannot be
amended so as to make it enforceable, such
finding shall not affect the enforceability
of any of the other restrictions contained
herein.
7.2 Proprietary Information. Through the later of (i)
the Expiration Date and (ii) the first anniversary of
the Date of Termination, the Consultant shall not use
for its benefit, or disclose, communicate or divulge
to, or use for the direct or indirect benefit of any
person, firm, association or company other than the
Company, any Proprietary Information. "Proprietary
Information" means information relating to the
properties, prospectus, products, services or
operations of the Company or any of the Company's
subsidiaries or any direct or indirect subsidiary or
affiliate thereof that is not generally known, is
proprietary to the Company or such subsidiary or
affiliate and is made known to the Consultant or
learned or acquired by the Consultant while in the
employ of the Company, including, without limitation,
information concerning trade secrets and the
preparation of raw materials for manufacture of
and/or finishing processes utilized in the production
of the products or projects of the Company, or any of
the Company's subsidiaries and/or any improvements
therein or accounting, engineering, marketing,
selling, leasing, finances and other business methods
and techniques. However, Proprietary Information
shall not include (i) at the time of disclosure to
the Consultant such information that was in the
public domain or later entered the public domain
other than as a result of a breach of an obligation
herein; or (ii) subsequent to disclosure to the
Consultant. Consultant received such information
from a third party under no obligation to maintain
such information in confidence, and the third party
came into possession of such information other than
as a result of a breach of an obligation herein. All
materials or articles of information of any kind
furnished to the Consultant by the Company or
developed by the Consultant in the course of
performing its
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duties hereunder are and shall remain the sole
property of the Company and if the Company requests
the return of such information at any time during,
upon or after the termination of the Consultant's
employment hereunder, the Consultant shall
immediately deliver the same to the Company.
7.3 Ownership of Proprietary Information. The Consultant
agrees that all Proprietary Information shall be the
sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of
all licenses and other rights in connection with such
Proprietary Information. At all times, until after
the later of (i) the Expiration Date and (ii) the
first anniversary of the Date of Termination, the
Consultant will keep the strictest confidence and
trust all Proprietary Information, or anything
relating to such information, without the prior
written consent of the Company, except as may be
necessary in the ordinary course of performing his
duties under this Agreement.
7.4 Documents and Other Property. All materials or
articles of information of any kind furnished to the
Consultant in the course of performing its duties
hereunder are and shall remain the sole property of
the Company; and if the Company requests the return
of such information at any time during, upon or after
the termination of this Agreement, the Consultant
shall immediately deliver the same to the Company.
The Consultant will not, without the prior written
consent of the Company, retain any documents, data or
property, or any reproduction thereof of any
description, belonging to the Company, or pertaining
to any Proprietary Information.
7.5 Third-Party Information. The Company, from time to
time, receives from third parties confidential or
proprietary information subject to a duty on the
Company's part to maintain the confidentiality of
such information and to use it only for certain
limited purposes ("Third-Party Information"). At all
times, until after the later of (i) the Expiration
Date and (ii) the first anniversary of the Date of
Termination and thereafter, the Consultant will hold
Third-Party Information in the strictest confidence
and will not disclose or use Third-Party Information
except as permitted by the agreement between the
Company and such third party.
7.6 Intellectual Property. Any and all inventions made,
developed or created by the Consultant (whether at
the request or suggestion of the Company or
otherwise, whether alone or in conjunction with
others, and whether during regular hours of work or
otherwise) (a) during the Term of this Agreement, or
(b) within a period of one year after the date of
termination of this Agreement as provided hereunder,
which may be directly or
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indirectly useful in, or relate to, the business or
tests being carried out by the Company, shall be
promptly and fully disclosed by the Consultant to the
independent members of the Board of Directors and, if
such intellectual property was made, developed or
created other than pursuant to this Agreement, the
Consultant shall grant the Company a perpetual,
royalty-free license to such intellectual property,
and if such intellectual property was made, developed
or created by Consultant pursuant to this Agreement,
such intellectual property shall be the Company's
exclusive property as against the Consultant, and the
Consultant shall promptly deliver to an appropriate
representative of the Company as designated by the
Board of Directors all papers, drawings, models, data
and other material relating to any invention made,
developed or created by him as aforesaid. The
Consultant shall, at the request of the Company and
without any payment therefore, execute any documents
necessary or advisable in the opinion of the
Company's counsel or direct issuance of patents or
copyrights to the Company with respect to such
inventions as are to be the Company's exclusive
property as against the Consultant or to vest in the
Company title to such inventions as against the
Consultant. The expense of securing any such patent
or copyright shall be borne by the Company.
7.7 Customer Lists. The Consultant will not during or
for a period of one year after the Term of this
Agreement (a) disclose such list or any part thereof
to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever,
(b) assist in obtaining any customers for any other
similar business, or (c) encourage any customer to
terminate its relationship with the Company.
7.8 Equitable Relief. The Consultant acknowledges that,
in view of the nature of the business which the
Company is engaged, the restrictions contained in
this paragraph 7 (the "Restrictions") are reasonable
and necessary in order to protect the legitimate
interests of the Company, and that any violation
thereof would result in irreparable injuries to the
Company, and the Consultant therefore further
acknowledges that, in the event the Consultant
violates, or threatens to violate, any of the
Restrictions, the Company shall be entitled to obtain
from any court of competent jurisdiction, without the
posting of any bond or other security, preliminary
and permanent injunctive relief as well as damages
and an equitable accounting of all earnings, profits
and other benefits arising from such violation, which
rights shall be cumulative and in addition to any
other rights or remedies in law or equity to which
the Company may be entitled.
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8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations by the Consultant. The Consultant
hereby represents and warrants to the Company that
(a) the Consultant's execution and delivery of this
Agreement and the performance of its duties and
obligations hereunder will not conflict with, or
cause a default under, or give any party a right to
damages under or to terminate, any other agreement to
which the Consultant is a party or by which it is
bound, (b) there are no agreements or understandings
that would make unlawful the Consultant's execution
or delivery of this Agreement or the performance of
the services contemplated hereunder, and (c) the
attached Disclosure form is true and correct and that
no officer, director or employee of the Consultant
has been convicted, indicted, arrested or named as an
indicted co-conspirator in any crime or other act
that would materially jeopardize the Company's
ability to maintain its gaming licenses in good
standing.
8.2 Representation of the Company. The Company
represents and warrants to the Consultant as follows:
(a) The Company is a corporation duly authorized
and established pursuant to the corporate
laws of the State of Delaware and has all
requisite power and authority to enter into
this Agreement and perform the obligations
hereunder. The consummation of the
transactions contemplated by this Agreement
will not violate, nor be in conflict with any
agreement or instrument to which the Company
is a party or by which it is bound to.
(b) The execution, delivery and performance of
this Agreement and the transactions
contemplated hereby have been duly and
validly authorized by all requisite corporate
action on the part of the Company and are
valid, legal and binding obligations of the
Company, enforceable in accordance with their
terms except as may be limited by the laws of
general application relating to bankruptcy,
insolvency, moratorium or other similar laws
relating to or affecting the enforcement of
creditor's rights, and rules of law governing
specific performance, injunctive relief or
other equitable remedies.
9. MISCELLANEOUS.
9.1 Successors; Binding Agreement. This Agreement and
all rights of the Consultant hereunder shall inure to
the benefit of the parties hereto and their
respective heirs, personal representatives,
successors and assigns;
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provided, however, that the duties of the Consultant
hereunder are personal to the Consultant and amy not
be delegated or assigned by it.
9.2 Notice. All notices of termination and other
communications provided for this Agreement shall be
in writing and shall be deemed to have been duly
given when delivered by hand or mailed by United
States registered mail, return receipt requested,
addressed as follows:
If to the Consultant:
Len Stuart & Associates, Ltd.
The White House
Paradise Island Drive
Paradise Island, Bahamas
If to the Company:
Stuart Entertainment, Inc.
3211 Nebraska Avenue
Council Bluffs, Iowa 51501
Attention: Chief Executive Officer
or to such other address as any party may have
furnished to the other parties in writing in
accordance herewith.
9.3 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 shall
constitute one and the same instrument.
9.4 Entire Agreement. This Agreement sets forth the
entire agreement and understanding of the parties in
respect of the subject matter contained herein, and
supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or
warranties, whether oral or written, by an officer,
employee or representative of either party in respect
of said subject matter.
9.5 Headings Descriptive. The headings of the several
paragraphs of this Agreement are inserted for
convenience only and shall not in any way affect the
meaning or construction of any of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
CONSULTANT:
LEN STUART & ASSOCIATES,
- ------------------------------------------- LTD., a Cayman Islands
corporation
/s/ Leonard A. Stuart
- ------------------------------------------- ------------------------------
By: Leonard A. Stuart
Title: President
COMPANY:
STUART ENTERTAINMENT, INC.,
- ------------------------------------------- a Delaware corporation
/s/ Albert F. Barber
- ------------------------------------------- ------------------------------
By: Albert F. Barber
Title: Chief Executive Officer
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