EXHIBIT 10.1
AGREEMENT
FOR CONTRACT SERVICES
This Agreement is made between Xxxxxxx Maritime Corporation (hereinafter
referred to as "Xxxxxxx"), and Xxxxxxx X. Xxxxxx (hereinafter referred to as the
"Contractor").
Whereas, Xxxxxxx, recognizing Contractor's special skills with respect to
Xxxxxxx'x legal affairs, desires to retain Contractor to provide services as an
independent contractor with the skills needed by Xxxxxxx.
Now, therefore, for and in consideration of the premises and covenants made
herein and their full performance, the parties hereto agree as follows:
1. SERVICES OF CONTRACTOR
Contractor agrees to provide to services specified Xxxxxxx in EXHIBIT A -
SCOPE OF WORK AUTHORIZATION attached hereto and incorporated by reference
to this Agreement.
2. TERM OF CONTRACT
The term of this Agreement shall from January 1, 2006 to December 31, 2008
unless sooner terminated (i) in accordance with Xxxxxxxxx 00, Xxxxxxxxxxx.
3. COMPENSATION
The compensation for the services to be performed by Contractor will be a
retainer of $16,667.00 per month. Xxxxxxx will automatically pay this
retainer on the last day of each month. Contractor will invoice Xxxxxxx
for any additional charges permitted hereunder, and such invoice will be
paid by Xxxxxxx within fifteen (15) days thereafter. Xxxxxxx will also pay
for term life insurance for Contractor in the amount of $550,000 during
the term of this contract. Contractor will be responsible for imputed
income tax on the premium payments.
4. EXPENSES
A. Contractor shall be responsible for all direct and indirect costs
and expenses incident to the performance of the services for
Xxxxxxx; including, but not limited to all costs of equipment
provided by Contractor, all fees, fines, licenses, bonds or taxes
required of or imposed against Contractor and all other of
Contractor's cost of doing business, Xxxxxxx will provide one
laptop computer, one cell phone and voice and data service for
the devises.
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B. The compensation agreed to by Contractor is adequate to cover all
anticipated Contractor expenses for performance, except for
travel away from the normal work site. These expenses will be
reimbursed by Xxxxxxx. Also, expenses incurred in the direct
performance of customer, vendor or client related activities
would be reimbursed. Contractor is required to use Xxxxxxx
Travel in making travel arrangements and abide by the Xxxxxxx
Travel and Entertainment policy attached in EXHIBIT B.
C. Except as provided herein, Xxxxxxx shall not be responsible for
any expenses incurred by Contractor in performing services for
Xxxxxxx.
5. REQUIREMENT OF CONTRACTOR
A. Contractor shall provide to Xxxxxxx a certificate (either exemption
or letter, as the case may be) as stated in Section 12.B(1) -
INDEMNIFICATION AND INSURANCE.
B. Contractor shall provide to Xxxxxxx its Federal Tax Identification
Number or Social Security Number, if applicable.
6. PERFORMANCE OF SERVICES
Contractor will determine the method, details and means of performing the
above described services. Xxxxxxx shall have no right to, and shall not,
control the manner or determine the method of accomplishing Contractor's
services; provided, however, that:
A. If performance of the services requires preparation of periodic
reports or filings for submission to local, state or federal
entities or for compliance with Xxxxxxx'x internal accounting, audit
or other requirements, then Contractor shall submit any such report
or filing to Xxxxxxx'x representative a reasonable time prior to the
filing date so that Xxxxxxx'x representative may determine the
adequacy of the report or filing with respect to the relevant
requirements.
B. Contractor will supply all tools and instrumentalities required to
perform the services under this Agreement. Contractor is not
required to purchase or rent any tools, equipment or services from
Xxxxxxx. In the event that Xxxxxxx and Contractor agree that
Contractor will perform a portion of the services Xxxxxxx'x
premises, Xxxxxxx will provide appropriate work space on a space
available basis and access to usual office machines. Further, if
performance of the services require that Contractor have access to
Xxxxxxx'x employees, records or equipment such access shall be
provided at reasonable times and subject to reasonable conditions.
7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the parties that Contractor is an
independent contractor and not an employee, agent, joint venturer or
partner of Xxxxxxx. Nothing in this Agreement
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shall be interpreted or construed as creating or establishing the
relationship of employer and employee between Xxxxxxx and Contractor. Both
parties acknowledge that the Contractor is not an employee for state or
federal tax purposes. Contractor shall retain the right to perform
services for others during the term of this Agreement, except as
reasonably restricted by the following paragraph.
It is agreed by Xxxxxxx that the obligations of Contractor hereunder shall
not preclude Contractor's undertaking any employment or other effort of a
business nature for any other person, company or firm so long as such
employment does not interfere with Contractor's performance hereunder or
create a conflict of interest or appearance of a conflict of interest. Any
employment or consulting arrangements with shipping or logistics companies
serving the same markets as Xxxxxxx must be disclosed to Xxxxxxx prior to
the engagement in order to determine if a conflict of interest exists.
8. ASSIGNMENT
It is understood and agreed by the parties that this agreement is for
personal services of the type that cannot be assigned. Any assignment of
Contractor's obligations under this agreement shall be null and void and
have no binding effect on Xxxxxxx whatsoever unless same is made with the
prior express written consent of Xxxxxxx, the granting or withholding of
which shall not be unreasonably withheld. Contractor shall remain liable
for complete performance of Contractor's obligations under this Agreement
by Contractor's assignee.
9. CONFIDENTIAL INFORMATION
Contractor covenants to hold in the strictest confidence and not divulge
to others, nor to use to the detriment of the Xxxxxxx, at any time during
the term hereof or thereafter, so long as it shall retain any degree of
confidentiality giving value to its protection from competitors, any
Confidential Information obtained during the course of retention as a
Contractor relating to the affairs of the Xxxxxxx, its subsidiaries,
affiliated companies or joint ventures without having first obtained the
written permission of the Xxxxxxx.
As used in this Agreement, the term "Confidential Information" shall
mean ideas, plans, processes, techniques, technology, trade secrets,
customer lists, and other information developed or acquired by or on
behalf of Xxxxxxx which relate to or affect any aspect of Xxxxxxx'x
business and affairs and which are not available to the general
public.
The covenants agreed to by Contractor in this paragraph shall be construed
as agreements independent of any other provision in this contract; the
other provisions are severable and shall remain in force irrespective of
the enforceability of these provisions, and the existence of any claim or
cause of action of the Contractor against the Xxxxxxx, whether predicated
on this contract or otherwise, shall not constitute a defense to the
enforcement by the Xxxxxxx of said covenants.
Provided, further that Contractor agrees that Xxxxxxx may promote
Contractor's services as part of Xxxxxxx'x services. All information, data
and other materials of whatsoever kind or nature given or disclosed by
Xxxxxxx, or Xxxxxxx'x Customer to Contractor or collected or prepared by
Contractor in connection with this agreement shall be kept confidential
and shall not be disclosed by Contractor to any person or entity without
the
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prior written authorization of Xxxxxxx. Contractor shall not, without
first obtaining the written approval of Xxxxxxx, communicate with the
press or media about any activity undertaken pursuant to this agreement.
10. TERMINATION
A. This Agreement shall terminate automatically upon the death of the
Contractor.
X. Xxxxxxx may terminate this agreement for the following:
(1) For cause. The term "for cause" specifically and only applies
of the Contractor committing acts of dishonesty or fraud in
connection with the services required of the Contractor
hereunder.
(2) Failure to comply with Xxxxxxx'x "DRUG AND ALCOHOL POLICY", a
copy of said policy is attached hereto as ATTACHMENT C and
incorporated by reference to this Agreement.
(3) Failure to comply with Xxxxxxx'x BUSINESS ETHICS POLICY, a
copy of said policy is attached hereto as ATTACHMENT D and
incorporated by reference to this Agreement.
(4) Failure to comply with Xxxxxxx'x HARASSMENT POLICY, a copy of
said policy is attached hereto as ATTACHMENT E and
incorporated by reference to this Agreement.
(5) Failure to comply with Xxxxxxx'x FIREARMS, EXPLOSIVES AND
WEAPONS POLICY, a copy of said policy is attached hereto as
ATTACHMENT F and incorporated by reference to this Agreement.
Xxxxxxx must give not less than thirty (30) days prior notice to
Contractor in order to terminate Contractor.
C. Contractor may terminate this Agreement at any time, for any reason
upon thirty (30) days prior written notice.
D. This Agreement may be terminated at any time by mutual agreement of
the parties on such terms as they may agree.
11. DEATH OR DISABILITY OF CONTRACTOR
Should Contractor become unable to perform services hereunder due to
death, illness or other disability, this Agreement and any payments
required by the terms of this Contract shall terminate as of the date of
death or after 120 consecutive days during which Contractor is unable to
render the services required Provided, however, that Contractor or his
estate shall be entitled to payment for any work performance rendered to
and
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including the date of termination due to death or disability. Further, any
work product, notes or other related materials in Contractor's possession
immediately shall be transferred to Xxxxxxx.
12. INDEMNIFICATION AND INSURANCE
A. Indemnification
Contractor will be entitled to indemnification from Xxxxxxx in the
manner of senior executives and officers of Xxxxxxx and as may be
allowed pursuant to Xxxxxxx'x articles of incorporation by laws and
the California and Delaware Corporation codes.
B. Insurance
(1) Contractor agrees to send the Xxxxxxx either a copy of his
exemption or a letter stating that the contractor will have no
employees and therefore does not require a Workers'
Compensation policy by either federal and/or state law.
(2) Xxxxxxx shall provide all insurance relating to performance of
the Work of Contractor, and agrees that Contractor shall be an
Additional Assured under such liability policies.
13. PATENT, TRADEMARK AND COPYRIGHT
All ideas, inventions, trademarks, and other developments or improvements
conceived by Contractor, alone or with Xxxxxxx employees or those of other
contractors of Xxxxxxx during the term of this Agreement, whether or not
while on Contractor's premises, that relate at the time of conception or
reduction to practice of the ideas, inventions, trademarks and other
developments or improvements to Xxxxxxx'x business, or actual or
demonstrably anticipated research or development of Xxxxxxx, or which
result from any work performed by Contractor for Xxxxxxx are the exclusive
property of Xxxxxxx. Contractor agrees to assist Xxxxxxx, at Xxxxxxx'x
expense, to obtain exclusive patents, trademarks or copyrights on any such
patentable or protectable ideas, inventions, improvements, trademarks, and
other developments, and agrees to execute all documents necessary to
obtain such protections in the name of Xxxxxxx. Should this provision be
held invalid or unenforceable by a court of competent jurisdiction,
Contractor hereby grants Xxxxxxx an exclusive right and license, without
charge, to use or distribute for gain the subject invention, improvement,
trademark, idea or development.
14. NOTICES
Any notices to be given hereunder by either party to the other shall be
effected either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to parties at the addresses appearing in the signature
portion of the Agreement, but such addresses can be changed by written
notice given in accordance with this paragraph. Notices delivered
personally shall be deemed communicated as of the actual date of receipt
while mailed notices shall be deemed communicated two business days
following date of mailing.
15. PARTIAL INVALIDITY
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If any portion of this Agreement is held by an arbitrator or a court of
competent jurisdiction to be invalid or unenforceable, the remaining
provisions will nonetheless continue in full force without being impaired
or invalidated in any way.
16. ATTORNEY'S FEES
If any arbitration hereunder or action at law or in equity, including an
action for declaratory relief is brought to enforce or interpret the
provisions of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, which may be set by the court in the same
action or in a separate action brought for that purpose, in addition to
any other relief to which that party may be entitled.
17. POLICIES AND PROCEDURES
It is the responsibility of Contractor to abide by Xxxxxxx'x Policies
while working for Xxxxxxx. Contractor shall notify Xxxxxxx in writing that
he/she has received a copy of the Xxxxxxx policies through execution of
XXXXXXX DECLARATION (ATTACHMENT I).
18. GOVERNING LAW AND ARBITRATION
This Agreement will be governed by and construed in accordance with the
laws of the State of California.
The sole remedy for the resolution of disputes between the parties under
this agreement will be the arbitration before one arbitrator, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The decision of the sole Arbitrator shall be
final, and for the purpose of enforcing any award this agreement may be
made a rule of any court of competent jurisdiction over this agreement.
19. FORCE MAJEURE
Both Xxxxxxx and Contractor will be excused from performance or delays
under this Agreement to the extent that such performance is prevented or
delayed due to causes beyond the control of either party, including acts
of God, strikes or other labor disputes, wars, government restrictions or
failure of equipment.
20. LIMITATION OF LIABILITY
Either party's liability (whether in contract, trust, negligence, strict
liability or by statute or otherwise) to each other or to any third party
concerning performance or non-performance or otherwise related to this
Agreement shall in the aggregate be limited to direct and actual damages.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, REMOTE OR
SPECULATIVE DAMAGES EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF
THE OCCURRENCE OF SUCH DAMAGES.
21. GENERAL PROVISIONS.
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(a) Headings. Captions used in this agreement are for convenience of
reference only and shall have no legal effect or meaning in the
construction or enforcement of the agreement.
(b) Drafting. Whenever used in this agreement, the singular shall include
the plural and the plural shall include the singular, and the neutral
gender shall include the male and female as well as a trust, firm,
company, or corporation, all as the context and meaning may require.
(c) Third Party Beneficiaries. Except as specifically provided for
elsewhere in this Agreement, this Agreement shall not be construed to
confer any benefit on any third party not a party to it nor shall the
Contractor provide any rights to such third party to enforce its
provisions.
(d) Waiver. No benefit or right accruing to either party under this
agreement shall be waived unless the waiver is reduced to writing and
signed by both Xxxxxxx and Contractor. The failure of either party to
exercise any of its rights under this Agreement, including but not limited
to either party's failure to comply with any time limit set out in this
Agreement, shall in no way constitute a waiver of those rights, nor shall
such failure excuse the other party from any of its obligations under this
agreement.
(e) Warranty of Authority. Xxxxxxx and Contractor each warrant and
represent that the person whose signature appears in below is its
representative and is duly authorized to execute this agreement as a
binding commitment of such party.
(f) Integration. This agreement supersedes any and all agreements, whether
oral or written, between the parties hereto with respect to the rendering
of Services by Contractor for Xxxxxxx, and contains all covenants and
agreements between the parties with respect to the rendering of such
services in any manner whatsoever. The parties acknowledge that no
representations, inducements, promises or agreements, oral or otherwise,
have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement or
promise, unless contained in this agreement, shall be valid or binding.
Any modification of this Agreement shall be effective only if reduced to
writing and signed by both parties.
(g) Counterparts. This agreement may be executed and delivered by each
party in separate counterparts (including execution and delivery by
facsimile transmission), each of which shall be deemed an original and all
of which, when taken together, shall constitute one and the same
agreement, notwithstanding that all the parties have not signed the same
counterpart.
CONTRACTOR:
Xxxxxxx X. Xxxxxx:
Address: (intentionally omitted)
San Francisco, California
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By: /s/ Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
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Signature Print
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Title:
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Date: October 12, 2005
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Social Security or Taxpayer Identification No.: (intentionally omitted)
XXXXXXX:
Xxxxxxx Maritime Corporation
Address: 000 Xxxxx Xxxxxx, Xxxxxxx, XX
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice Chairman and Executive Vice President
Date: October 12, 2005
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EXHIBIT A
SCOPE OF WORK AUTHORIZATION
1. Duties. Contractor is retained to perform services (the "Services")
consisting of providing advice and consultation to CMC regarding CMC's
legal affairs, including advising CMC inside counsel, assisting in
relationships and legal budgeting with outside counsel, advising senior
management on strategic and legal issues, and providing general
consultation services to CMC's officers. Contractor will provide the
Services from time to time as agreed upon; provided, however, it is
understood and agreed by CMC that Contractor's work schedule will be
flexible and will be subject to Contractor's scheduling requirements for
other activities.
