1

 
     3. Rights; Duties; Responsibilities; Time Commitment.          3.1 During the Term, Consultant shall render consulting services to the Company in connectionwith the promotion of the Company’s business. In connection therewith Consultant and the Companyagree as follows:               (a) Consultant agrees to make such public appearances on behalf of the Business, from time totime, as shall reasonably be requested by a senior executive officer of the Company or Parent,provided, however, that with respect to appearances made in connection withthird-party non-affiliated licensing agreements of the Business entered into from and after thedate of this Agreement, the Company shall use its reasonable efforts to negotiate a reasonableappearance fee for Consultant from such third party;               (b) Consultant agrees to be available, by telephone, for consultation relating to theBusiness, at such reasonable times as shall be requested by the senior executive officers of theCompany or Parent; and               (c) Consultant agrees to attend such Company and Parent corporate functions and events asshall reasonably be requested by the senior executive officers of Board of Directors of the Companyor Parent;     provided, however, that, with respect to (a), (b) and (c) above, in no eventshall Consultant be given less than 30 days notice prior to the date of any requested publicappearance, telephonic consultation, or corporate function or event and such activity shall be, tothe extent reasonably practicable, scheduled in advance with Consultant. In addition, theactivities described in (a) and (c) above shall be limited to an aggregate of 20 days per annum.Notwithstanding the foregoing, to the extent that the Consultant has pre-existing commitments onthe dates that the activities set forth in (a) and (c) above have been scheduled; the Company shalleither rescind its request or such activities shall be rescheduled at the discretion of theConsultant within a reasonable period of time given the Consultants prior commitments.          3.2 During the Term, Consultant agrees to endeavor to promote the best interests of theCompany and its subsidiaries. In accordance therewith, during the Term, and for a period of five(5) years following any termination of this Agreement, Consultant agrees not to make or publish orcause or permit to be made or published on her behalf, any disparaging statement (orally or inwriting), of any kind or manner, about or relating to the Company or Parent, their respectivebusinesses, any of their affiliates or any of the employees, officers or directors of theforegoing.     4. Relationship.          4.1 This Agreement shall not be construed as an employment, agency or joint venture agreement.In her role as consultant to the Company, Consultant is acting as an independent contractorproviding consulting services to the Company and under no circumstances whatsoever, includingwithout limitation, for the purposes of the Federal Insurance Contributions Act, the SocialSecurity Act, the Federal Unemployment Tax Act and federal and state income tax withholding, willConsultant be deemed an employee of the Company.
2

 
          4.2 Consultant shall have no authority to sign any document or extend any credit on behalf ofthe Company or to bind the Company in any way. Neither the Company nor Consultant shall holdConsultant out to third parties as an agent, officer or employee of the Company.     5. Compensation. As compensation for all consulting services to be performed byConsultant for the Company during the Term, the Company shall in each of the first ten (10) yearsduring the Term, pay to Consultant a consulting fee of FIVE HUNDRED SIXTY THOUSAND DOLLARS($560,000) per annum in equal and consecutive monthly installments (the “Compensation”).Consultant understands that the Compensation paid during the initial ten (10) years during the Termconstitutes consideration for the entire Term. Consultant shall be responsible for all federal,state and local taxes on all payments made to Consultant by the Company under this Agreement. TheCompany will timely provide to Consultant Form 1099 (or any successor form) for the purposes of thepreparation of such taxes. EPE hereby guarantees the payment of the Compensation to the extentthat it would be due and payable hereunder. Consultant hereby acknowledges and agrees that anyprior agreements, understandings or arrangements pursuant to which Consultant received salary, feesor benefits from EPE and all obligations in respect thereof are hereby terminated.     6. Payment of Expenses. The Company shall pay, in advance, for all necessary travel,entertainment and other expenses, including first class food, travel and accommodations, as shallbe incurred by her in connection with her making any public appearances on behalf of, and asrequested by, the Company.     7. Confidential Information.          7.1 The Consultant acknowledges that her past involvement with the Company has and herengagement hereunder will fully familiarize the Consultant with the trade secrets and confidentialand proprietary information of the Company and any subsidiary, division or affiliate thereof (the“Confidential Information”). Examples of the Company’s Confidential Information include,without limitation, information regarding the Company’s costs, profits, markets, sales, products,key personnel, operational methods, technical processes, business strategies, and other informationwhich the Company and any subsidiary, division or affiliate of the Company engages in efforts toprotect from disclosure or discovery by its competitors, actual and prospective clients, and otherthird parties. The Consultant further acknowledges that the unintentional or intentionaldisclosure of the Company’s Confidential Information would have a material adverse effect on theoperations and development of the Company’s business. The Consultant therefore covenants andagrees as set forth below:          7.2 The Consultant will during the Term and for a period of ten (10) years following the Term,keep secret all Confidential Information, and will not intentionally disclose ConfidentialInformation to anyone outside of the Company, any subsidiary, division or affiliate of the Companyand their respective advisors, directors, officers, employees, agents, consultants, financingsources and other representatives acting in their capacity as such, unless otherwise expresslydirected by the Company, provided that: (i) the Consultant shall have no such obligation to theextent Confidential Information is or becomes publicly known, other than as a result of theConsultant’s breach of her obligations hereunder; and (ii) the Consultant may, after
3

 
giving prior notice to the Company to the extent practicable under the circumstances, disclosesuch matters to the extent required by applicable laws or governmental regulations or judicial orregulatory process; provided, however, that if the Consultant is required (by oralquestions, interrogatories, requests for information or documents, subpoena, civil investigativedemand or similar process) to disclose any Confidential Information pursuant to the foregoingclause (ii), she agrees to use reasonable efforts to provide the Company with prompt notice of eachsuch request so that the Company may seek an appropriate protective order or waive compliance bythe Consultant with the provisions of this agreement or both; provided, further,that if, absent the entry of a protective order or the receipt of a waiver under this Agreement,the Consultant is, in the opinion of her counsel, legally compelled to disclose such ConfidentialInformation under pain of liability for contempt or other censure or penalty (civil or criminal),the Consultant may disclose such information to the persons and to the extent required withoutliability under this agreement. In such event, the Consultant shall give the Company writtennotice of such disclosure, in reasonable detail, as soon as possible, but in any event not laterthan concurrently with making such disclosure, and the Consultant shall exercise her reasonablecommercial efforts to obtain reliable assurances that confidential treatment will be accorded anysuch Confidential Information so disclosed.     8. Termination.          8.1 Notwithstanding the provisions of **Section 2**hereof, this Agreement may be terminated priorto the expiration of the Term by the Company upon the happening of any of the following events:               (a) any willful and material breach of this Agreement by the Consultant, including, but notlimited to, the making of any disparaging statement of any kind about or related to the Company,Parent or their respective businesses as prohibited by **Section 3.2**; or               (b) the willful and continual failure of Consultant to perform her material duties hereunder;or               (c) the death of Consultant.          8.2 Termination by the Company or Parent pursuant to **Sections 8.1(a)**and **(b)**above must bemade by delivery of written notice to Consultant specifying the breach in reasonable detail and thetermination shall be effective upon delivery of such notice, provided that if the breach isreasonably susceptible to cure, Consultant shall have 10 days from the date of delivery of suchnotice to cure such breach to Parent’s and the Company’s reasonable satisfaction, and thetermination shall not be effective unless the breach is not so cured within such 10 day period.          8.3 In the event that this Agreement is terminated in accordance with **Sections 8.1**or **8.2**above, the Consultant shall be entitled to receive, in full satisfaction of all obligations due tothe Consultant from the Company hereunder, all accrued but unpaid amounts payable pursuant to**Section 5**hereof to the date of termination and upon payment of said sum
4

 
the Company and the Consultant shall have no further obligations to each other pursuant to termshereof.     9. Consultant Loyalty.          9.1 During the Term, Consultant will not:               (a) without the prior written approval of the Board, sell, endorse or support any product orservice that uses the name, image or likeness of Elvis Presley (provided that the restrictions setforth in this sentence shall in no way be interpreted to limit Consultant’s right to produce orotherwise participate in a theatrical presentation about her life and it is acknowledged that ElvisPresley may be portrayed in such presentation and the subsidiary rights to such presentation);               (b) influence or attempt to influence any employee of the Company, or its subsidiaries oraffiliates to terminate his or her employment with the Company or its subsidiaries or affiliates;               (c) influence or attempt to influence any person or persons, firm, association, syndicate,partnership, company, corporation or other entity that is a contracting party with the Company orits subsidiaries or affiliates during the Term of this Agreement, to terminate, breach or notperform any written or oral agreement with the Company or its subsidiaries or affiliates; and               (d) employ or solicit employment elsewhere of any employee with managerial or seniorresponsibilities or any consultant of the Company or its subsidiaries or affiliates.          9.2 Consultant hereby acknowledges that:               (a) the respective times and area provided in **Section 3.2**and this **Section 9**are reasonable inscope and necessary for the protection of the business and good will of the Company;               (b) since it is the understanding and desire of the parties hereto that the covenantscontained in **Section 3.2**and this **Section 9**be enforced to the fullest extent possible under thelaws and public policies applied in each jurisdiction in which enforcement may be sought, shouldany particular provision of such covenant be deemed invalid or unenforceable, such provision shallbe deemed amended to delete therefrom the invalid portion, and the remainder of this Agreementshall retain its full force and effect; and               (c) to the extent a provision is deemed unenforceable by virtue of its scope, but may be madeenforceable by limitation thereof, such provision shall be enforceable to the extent permissibleunder the laws and public policies now existent in the State of New York.          9.3 Consultant acknowledges that the services to be rendered by her hereunder areextraordinary and unique and are vital to the success of the Company’s business, and that thebreach of any of the covenants undertaken hereunder would cause substantial damage to the
5

 
Company, impossible to exact ascertainment. Therefore, in the event of the breach orthreatened breach by Consultant of any of the terms and conditions of this Agreement to beperformed by her, the Company shall be entitled, in addition to any other rights or remediesavailable to it, to institute and prosecute proceedings in any court of competent jurisdiction, toseek immediate injunctive relief with notice but without bond.     10. Severability. Should any provision of this Agreement be held, by a court ofcompetent jurisdiction, to be invalid or unenforceable, such invalidity or unenforceability shallnot render the entire Agreement invalid or unenforceable, and this Agreement and each individualprovision hereof shall be enforceable and valid to the fullest extent permitted by law.     11. Successors and Assigns.          11.1 This Agreement and all rights under this Agreement are personal to Consultant and shallnot be assignable by her. All of Consultant’s rights under the Agreement shall inure to thebenefit of her heirs or other legal representatives by will or the laws of descent anddistribution.          11.2 This Agreement shall inure to the benefit of and be binding upon the Company and itssuccessors and assigns. Any Person succeeding to the business of the Company by merger, purchase,consolidation or otherwise shall assume by contract or operation of law the obligations of theCompany under this Agreement.     12. Governing Law. This Agreement shall be construed in accordance with and governedby the laws of the State of New York, without regard to the conflicts of laws rules thereof. Theparties hereby irrevocably consent to the exclusive jurisdiction and venue of the courts situatedin the state and county of New York (federal and state).     13. Notices. Any notice, direction or instruction required or permitted to be givenhereunder shall be given in writing and may be given by telex, telegram, facsimile transmission, bymail if sent postage prepaid by registered mail, return receipt requested; or by hand delivery toany party at the address of the party set forth below. If notice, direction or instruction isgiven by telex, telegram or facsimile transmission or similar method or by hand delivery, it shallbe deemed to have been given or made on the day on which it was given, and if mailed, shall bedeemed to have been given or made on the third business day following the day after which it wasmailed. Any party may, from time to time, by like notice give notice of any change of address andin such event, the address of such party shall be deemed to be changed accordingly.     (a)   If to the Company:EPE Holding Corporation