Exhibit 10.33
CONSULTING AGREEMENT
AGREEMENT made this 30th day of November, 2004 between HOLLAND AMERICA
LINE INC., Holland America Line N.V., HAL Cruises Limited, Windstar Sail Cruises
Limited, Wind Star Limited, Wind Spirit Limited, Westmark Hotels, Inc., Westmark
Hotels of Canada, Ltd., Horizon Coach Lines Ltd., Westours Motor Coaches, Inc.,
Evergreen Trails, Inc., Trailways Tours, Inc., Worldwide Shore Services, Inc.,
and HAL Properties Limited, and any other entity that is part of the Holland
America Line group of entities (collectively, "HAL" or the "Companies") having
their principal places of business at 300 Elliott Avenue West, Seattle,
Washington 98119 and Alton Kirk Lanterman ("Lanterman"), residing at 714 West
Galer Street, Seattle, Washington 98119.
WHEREAS, Lanterman is employed by HAL with Lanterman's present position
being Chairman and Chief Executive Officer; and
WHEREAS, HAL and Lanterman desire to terminate Lanterman's employment
effective December 31, 2004; and
WHEREAS, following Lanterman's termination, HAL desires to retain
Lanterman as a consultant to HAL.
NOW THEREFORE, in consideration of the premises and the mutual agreements
of the parties set forth below, it is hereby agreed as follows:
1. Consulting Services.
(a) Lanterman agrees to perform, and Companies agree to purchase,
certain personal services subject to and in accordance with this
Agreement.
(b) The term of Agreement shall be for eleven (11) months commencing
on January 1, 2005 (the "Term"). The Term shall automatically renew
for an additional one (1) year period unless earlier terminated
pursuant to Paragraphs 3 or 4 below or unless written notice shall
have been given by either party of the desire not to extend the
Term. Such written notice must be given by HAL on or before June 1,
2005 or by Lanterman on or before September 1, 2005. In no case
shall this Agreement extend beyond November 30, 2006. At the end of
the Term, no further severance or other payments shall be provided
to Lanterman, except as set forth in the Retirement and Consulting
Agreement, between Lanterman, Carnival Corporation and HAL, dated
November 28, 2003 ("Retirement Agreement").
(c) Effective the close of business on November 30, 2004 and except
with respect to his position as a director of Carnival Corporation
and Carnival plc, Lanterman shall resign his position as an officer
and/or director of any entity, company, division or corporation that
is or ever was directly or indirectly controlled by, controlling,
under common control with or otherwise affiliated or
related to, HAL, including, without limitation, corporations,
unincorporated associations, trusts, joint ventures and partnerships
("Affiliates"). Lanterman shall thereafter, both through the date of
termination and during the Term, have the title of "Chairman," which
shall be a non-executive title.
(d) During the Term, Lanterman shall perform the duties set out on
the attached Exhibit A, as those duties are updated from time to
time, and provide such other services as the President and Chief
Executive Officer of HAL and/or the Chairman and CEO of Carnival
Corporation and Carnival plc may, from time to time, request (the
"Services"). Lanterman shall devote such time as may be required in
order to fully perform the Services to the satisfaction of the
Companies, except that all parties agree that Lanterman shall not be
required to spend more than 1,000 hours annually in the performance
of the Services. Lanterman shall be free to engage in any other
business activities on behalf of any other business entities (other
than other cruise lines or tour companies) so long as such does not
interfere with his performance of the Services.
(e) During the Term, HAL shall pay to Lanterman, in monthly
installments of $65,667, an annual compensation of $788,000.
Lanterman shall not be eligible to participate in any incentive
compensation plans offered by HAL or any Affiliate, including,
without limitation, the Carnival Corporation 1992 Stock Option Plan,
the Carnival Corporation 2002 Stock Plan, and the Key Management
Incentive Plan - HAL Antillen, N.V. and Subsidiaries, and he shall
likewise cease to be eligible to receive any other employee benefits
that he received as of the date of this Agreement except (i) medical
coverage, as set forth in Paragraph 2 below; and (ii) cruise
benefits, which shall be provided on the same terms and conditions
to which Lanterman was entitled during his employment. During the
Term, the compensation enumerated herein together with payments, if
any, made pursuant to the Retirement Agreement, is the only
compensation to which Lanterman is entitled from HAL or its
Affiliates, including Carnival Corporation and Carnival plc.
Lanterman shall not be entitled to receive any additional
compensation for his services as a member of the Board of Directors
of Carnival Corporation and Carnival plc.
(f) HAL further agrees to reimburse Lanterman for reasonable and
customary business expenses incurred in connection with his
provision of the Services. Air transportation and hotels shall be
booked directly by Company.
2. Medical Coverage Continuation. During the Term of Agreement,
Contractor shall also be eligible to participate in Holland America
Line Inc.'s medical and dental insurance programs (excluding life
insurance and disability) on the same terms as such may be offered
from time to time to that company's regular employees. Following the
completion of the Term Lanterman will be entitled to COBRA benefits
in accordance with applicable law; COBRA premiums are the
responsibility of Lanterman should he elect COBRA coverage.
3. Termination. The Term shall terminate immediately upon the
occurrence of any of the following:
(a) Lanterman's death;
(b) Good Cause, which is defined as commission of any of the
following acts:
(i) fraud, embezzlement or misappropriation;
(ii) commission of a felony;
(iii) Lanterman's material breach, willful or knowing failure
or refusal to perform any or all of the covenants,
agreement and obligations set forth in this Agreement,
other than as the result of death or disability;
(iv) gross negligence by Lanterman in the performance of any
or all of his material duties and responsibilities
hereunder.
On termination of the Term for whatever reason (and whether in breach of
contract or otherwise) Lanterman will immediately return all HAL property in his
possession.
4. Disability. If during the Term, Lanterman shall, as confirmed by
competent medical evidence, become physically or mentally
incapacitated to perform his duties for HAL hereunder for a period
totaling six (6) months or less in any continuous 12-month period,
Lanterman shall receive his full compensation as set forth in
Paragraph 1 and medical coverage in Paragraph 2 for that period of
disability. In the event such illness or other incapacity shall
endure for a period of more than six (6) months in any continuous
12-month period, Lanterman's compensation for that period shall be
reduced by an amount to be determined by HAL in its sole discretion.
However, where such illness or other incapacity shall endure for a
period of more than six (6) months HAL shall have the right, by
written notice, to terminate the Term. Lanterman agrees to submit
himself for appropriate medical examination to a physician of HAL's
designation and at HAL's expense as necessary for the purposes of
this Paragraph. The obligations of HAL under this paragraph may be
satisfied in whole or in part, by payments to Lanterman under
disability insurance provided thereby.
5. Entire Agreement. This Agreement sets forth the entire agreement
between the parties hereto and, except for the Retirement Agreement,
fully supersedes and replaces any and all prior agreements or
understandings, whether written or oral, between the parties
relating to the subject matter hereof.
6. Assignability. Lanterman has been retained based upon his special
qualifications. Lanterman may not assign or delegate any of his
rights or obligations under this Agreement except as expressly set
forth herein or by mutual agreement in writing.
7. Admissions. The entering into of this Agreement by any party shall
not be construed as an admission by that party of any liability or
wrongdoing whatsoever.
8. Confidentiality; No Disparaging Comments.
(a) Lanterman will keep in strictest confidence, both during and
after the Term and will not during the term of this Agreement or
thereafter disclose or divulge to any person, firm or corporation,
or use directly or indirectly, for his own benefit or the benefit of
others, any confidential information of HAL or the
Affiliates including, without limitation, any trade secrets
respecting the business or affairs of HAL or its Affiliates which he
may have acquired during the Term of this Agreement or his previous
employment with them. In the event of an actual or threatened breach
by Lanterman of the provisions of this paragraph, HAL and the
Affiliates shall be entitled to injunctive relief restraining
Lanterman from the breach or threatened breach as its sole remedy.
The parties hereby waive their rights for damages, whether
consequential or otherwise.
(b) Each party covenants and agrees not to publicize, disseminate or
otherwise make statements, or encourage or suggest to others to
publicize, disseminate or otherwise make statements, that are in any
way negative, disparaging or derogatory regarding the other party
and, in the case of Lanterman, regarding any Affiliate or any former
or present officer or director of HAL or any Affiliate.
9. Title to Work Product. Companies shall have sole and exclusive title
to, and all rights of ownership with respect to, the work product of
Lanterman resulting from the performance of the Services, Lanterman
acknowledging that he has no right, title or interest in or to such
work product (including, without limitation, any right to utilize or
disclose the work product for any purpose whatsoever). Such work
product shall be considered as "work made for hire" and all
copyrights, trade secrets and patent rights shall belong to the
Companies.
10. Status of Contractor. Lanterman acknowledges that during the Term he
will be an independent contractor and that he will not be an
employee, agent partner or joint venturer of Companies. As an
independent contractor, Lanterman: (a) except as otherwise set forth
herein, shall not be entitled to any benefits normally granted to
Companies' employees; and (b) shall not have any authority to enter
into any contracts or agreements on behalf of Companies or otherwise
obligate Companies for any purpose whatsoever. Companies will make
no deductions from any of the payments due to Lanterman hereunder
for state or federal tax purposes, including, but not limited to,
social security, income tax withholding, disability and other
payroll tax requirements. Lanterman agrees that he shall be
responsible for any and all taxes and other payments due on payments
received by him from Companies hereunder and for all filings with
respect thereto, and that he will indemnify and hold Companies
harmless from and against any cost, damage or expense, including
attorneys' fees, which Companies may incur as a result of
Lanterman's failure to pay taxes due or to make such filings in a
timely manner.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington. Any action
regarding this Agreement shall be brought in the courts serving
Seattle, Washington, to the exclusion of all others.
12. Specific Performance. In addition to any other remedies to which any
party may be entitled, each party shall have the right and remedy to
have the covenants made by any other party in this Agreement
specifically enforced by any court of competent jurisdiction, it
being agreed that any breach or threatened breach of any
of said covenants would cause irreparable injury to the other
parties and that money damages would not provide an adequate remedy
to the other parties.
13. Prevailing Party; Legal Fees. In the event that it shall be
necessary for any party to institute legal action to enforce this
Agreement or for any breach of this Agreement, the prevailing party
in such action shall be entitled to recover its costs and reasonable
attorneys' fees.
14. Review. Lanterman affirmatively represents and warrants that he has
consulted, or been afforded the opportunity to consult, with legal
counsel of his own choosing with respect to all matters relating to
this Agreement; that he has read this Agreement; that he is fully
aware of its contents and of its legal effect; and that he has
freely and voluntarily entered into it.
15. Indemnification: HAL agrees to indemnify Lanterman, and hold him
harmless from and against any and all claims, losses, lawsuits, damages and
expenses arising from Lanterman's provision of the Services, other than as a
consequence of Lanterman's negligence, recklessness or willful fault. Lanterman
agrees to indemnify HAL and its affiliates, together with the officers,
directors and employees of HAL and its affiliates, and hold them harmless from
and against any and all claims, losses, lawsuits, damages and expenses arising
from, incurred as a consequence of, or otherwise attributable to the negligence,
recklessness or willful fault of Lanterman in the provision of the Services. A
party's indemnification obligations shall only apply if: (i) the Indemnified
Party has given the Indemnifying Party prompt written notice of the claim or
cause of action and authorized the Indemnifying Party to assume the defense
thereof through legal counsel selected by the Indemnifying Party and consented
to by the Indemnified Party, which consent shall not be unreasonably withheld;
(ii) the Indemnified Party provides the Indemnifying Party with such assistance
and cooperation in responding to and defending against the claim or cause of
action as the Indemnifying Party reasonably requests; and (iii) the Indemnified
Party does not engage in any settlement negotiations or agree to any settlement
of the claim or cause of action without the prior written consent of the
Indemnifying Party.
IN WITNESS WHEREOF, the Companies and Lanterman have duly executed this
agreement as of the day and year first above written.
HOLLAND AMERICA LINE INC.
/s/ Alton Kirk Lanterman By: /s/ Stein Kruse
------------------------ ----------------------------
Alton Kirk Lanterman Stein Kruse
Its: President & Chief Operating Officer
ACKNOWLEDGED AND AGREED BY
CARNIVAL CORPORATION
By: /s/ Gerald R. Cahill
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Its: Executive Vice President and Chief Financial and Accounting Officer
HOLLAND AMERICA LINE N.V.
By: /s/ Larry D. Calkins
------------------------
Its: Authorized Signatory
HAL PROPERTIES LIMITED HAL CRUISES LIMITED
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
WINDSTAR SAIL CRUISES LIMITED WIND STAR LIMITED
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
WIND SPIRIT LIMITED WESTMARK HOTELS, INC.
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
WESTMARK HOTELS OF CANADA LTD. WESTOURS MOTOR COACHES INC.
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
EVERGREEN TRAILS, INC. TRAILWAYS TOURS INC.
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
WORLDWIDE SHORE SERVICES INC. HORIZON COACH LINES LTD.
By: /s/ Larry D. Calkins By: /s/ Larry D. Calkins
- ------------------------ ------------------------
Its: Authorized Signatory Its: Authorized Signatory
-------------------------- --------------------------
EXHIBIT A
DESCRIPTION OF SERVICES
PRIMARY FUNCTION
Provide such assistance as may be requested by HAL's President on strategic,
financial, budgetary and historical analyses. Assist HAL's President with
long-term strategic planning and provide feedback on proposed deployment and
itineraries. Assist HAL's President in maintaining and developing relations with
those key individuals in the travel industry that the Chairman has previously
worked with. Effectively represent the interests of Holland America Line with
key government, industry and educational organizations, with particular focus on
the states of Washington and Alaska. Assist HAL's President in all manners
possible through efforts in the aforementioned activities.
ESSENTIAL ACTIVITIES
1. Review financial information and reports as requested by HAL's President
for the purpose of identifying issues or concerns.
2. Evaluate deployment strategies and make suggestions on proposed
itineraries.
3. Assist HAL's President in establishing and maintaining relationships with
key industry entities.
4. Participate in an overall corporate strategy to promote and improve
relations with legislators and other government officials including
recommendations regarding political contributions.
5. Identify strategic initiatives and make recommendations to improve Holland
America Line's public perception and implement plans to realize positive
outcomes.
6. Represent Holland America Line with key audiences to insure outcomes that
support the Companies' overall business strategies and enhances HAL's role
as a leader in travel and community relations. Included but not limited to
this are groups such as; Chambers of Commerce, the University of
Washington, the Washington Trade Council, the Northwest Cruiseship
Association and the National Academy Foundation.
7. Work proactively with Holland America Line's lobbyists and HAL's Vice
President, External Affairs to promote Holland America Line's interests in
the states of Washington and Alaska and elsewhere as may be required from
time to time.
8. Render assistance on special projects as requested by HAL's President and
the Carnival Corporation's Chairman & CEO.
9. Provide such information and other cooperation (including, if required, as
a witness in litigation) as the Companies may, from time to time,
reasonably request in order to pursue a claim or defend itself on issues
arising out of matters on which he worked on behalf of the Companies,
provided, however, Lanterman may, as a condition of providing such
cooperation, require the Companies to pay his reasonable expenses.
10. Render additional assistance in such ways as is needed and requested by
HAL's President and the Carnival Corporation's Chairman & CEO.
PERFORMANCE
Subject to the limitations of Paragraph 1(d) above, Lanterman is expected to
spend the amount of time that is necessary to effectively carry out the above
responsibilities. The actual amount of time is expected to vary from month to
month.