CONSULTANT AGREEMENT
BETWEEN
X. XXXXXX HOMES, INC.
AND
X. X. XXXXXXXX
DATED: JANUARY 16, 1997
TABLE OF CONTENTS
Page No.
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.0 Appointment and Encouragement as
Independent Contractor. . . . . . . . . . . . . . . . . . 1
Section 2.0 Term of Agreement. . . . . . . . . . . . . . . . . . . . . 1
Section 3.0 Description of Work. . . . . . . . . . . . . . . . . . . . 1
Section 4.0 Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 5.0 Relationship of the Parties. . . . . . . . . . . . . . . . 1
Section 6.0 Termination. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6.1 Death of Consultant. . . . . . . . . . . . . . . . . . . . 2
Section 7.0 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 8.0 Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 9.0 Indemnification. . . . . . . . . . . . . . . . . . . . . . 2
Section 10.0 Confidentiality . . . . . . . . . . . . . . . . . . . . . 2
Section 11.0 Personal Representatives,
Successors and Assigns. . . . . . . . . . . . . . . . . . 3
Section 12.0 Severability. . . . . . . . . . . . . . . . . . . . . . . 3
Section 13.0 Situs and Governing Law . . . . . . . . . . . . . . . . . 3
Section 14.0 Entire Agreement. . . . . . . . . . . . . . . . . . . . . 3
Section 15.0 Cooperation . . . . . . . . . . . . . . . . . . . . . . . 3
Section 16.0 Arbitration . . . . . . . . . . . . . . . . . . . . . . . 3
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
EXHIBIT "A" Services
EXHIBIT "B" Fees and Medical Reimbursement
CONSULTANT AGREEMENT
THIS AGREEMENT made this 16th day of January, 1997 and effective as
of the 1ST day of January, 1997 (hereinafter the "Effective Date"), by and
between Xxxxxxx X. Xxxxxxxx (hereinafter referred to as "Consultant") and X.
Xxxxxx Homes, Inc. (hereinafter referred to as "Company").
W I T N E S S E T H:
WHEREAS, Company desires to retain Consultant as an independent
contractor to provide certain services with respect to the matters outlined
herein;
WHEREAS, Consultant desires to provide said services with respect to
the matters outlined herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
Section 1.0 APPOINTMENT AND ENGAGEMENT AS INDEPENDENT CONTRACTOR.
Company agrees to engage Consultant as an independent contractor to provide
services in connection with the matters described in Section 3.0 herein.
Consultant agrees to properly perform its obligations as provided herein all in
accordance with the terms, provisions, covenants and conditions set forth
herein.
Section 2.0 TERM OF AGREEMENT. The term of this Agreement shall
commence on the Effective Date and shall continue, except as specified under
Section 4.0 below, through August 31, 1997.
Section 3.0 DESCRIPTION OF WORK. Consultant shall perform the
services described in Exhibit "A-1" attached hereto and made a part hereof by
this reference. Consultant's principal contact at Company shall be the
Company's Chief Financial Officer or such other representative designated by
him/her.
Section 4.0 FEE AND MEDICAL/DENTAL BENEFITS. Company shall pay
Consultant a total fee and provide such medical and dental benefits as shown on
Exhibit "B-1" attached hereto and made a part hereof by this reference. The
payment and provision of medical and dental benefits provided in this Agreement
shall constitute the entire compensation to be paid to Consultant by the Company
for those benefits and Consultant shall be solely responsible for all costs
incurred in its performance of services hereunder, except as otherwise provided
herein.
Section 5.0 RELATIONSHIP OF THE PARTIES. The parties to this
Agreement intend and hereby agree that the Consultant shall be an independent
contractor and he shall have control and discretion with respect to the
performance of his obligation hereunder and shall have the authority and control
over the manner and details of the work which is to be performed hereunder.
Consultant shall be solely responsible for the use, discipline and supervision
of Consultant's
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employees, if any, and for providing all tools, texts, equipment or supplies
generally used by Consultant in its business. Consultant shall be responsible
for complying with all applicable federal, state and local laws regarding the
operation of Consultant's business or employment of employees, including but not
limited to federal, state and local taxes and general excise. Nothing contained
herein shall be construed to create any employment, partnership, joint venture
or co-ownership relationship between the parties hereto. Company and Consultant
shall not be responsible for any liabilities or obligations incurred or created
by other party except as specifically agreed to in writing. Consultant shall
have no authority to execute any document in the name or on behalf of Company,
enter into any oral or written commitments involving Company or otherwise
obligate Company in any manner whatsoever.
Section 6.0 TERMINATION OF THIS AGREEMENT. In the event that
Consultant shall be in substantial breach of any of the terms of this Agreement
or the Release and Settlement Agreement, Company may upon written notice
terminate this Agreement. Upon such termination, Consultant nonetheless shall
be entitled to the balance of all fees due hereunder without reduction together
with the medical and dental benefits as provided for herein unless pursuant to
arbitration as hereinafter provided it is determined that the Consultant was in
substantial breach of the terms of this Agreement. Any disputes arising out of
this Section 6.0 concerning whether the Consultant has substantially breached
this Agreement, shall be resolved pursuant to the arbitration provision set
forth in Section 16.0 below; provided, however, that any arbitration under this
Section 6.0 only, the Company must establish the substantial breach under the
burden of proof of clear and convincing evidence.
Section 6.1 DEATH OF CONSULTANT. This Agreement shall automatically
terminate upon the death of Consultant. Company shall pay to the legal
representative of Consultant's estate the balance of all fees due hereunder
without reduction.
Section 7.0 ASSIGNMENT. Consultant shall not assign or otherwise
transfer in any manner its interest in or obligations under this Agreement.
Section 8.0 NON-WAIVER. It is expressly understood and agreed that
the failure of Company to insist in any one or more instances upon strict
performance of any of the terms and conditions of this Agreement, or to exercise
any rights herein conferred, shall not be deemed a waiver or relinquishment of
any Company's right to assert or rely upon such terms, conditions, or rights in
any other instance.
Section 9.0 INDEMNIFICATION. Consultant shall indemnify, defend and
hold harmless Company and its respective officers, agreements, employees,
successors and assigns from and against any and all claims, losses, costs,
causes of action, damages and expenses of any nature, including reasonable
attorneys' fees, arising out of any negligence, gross negligence or willful and
wanton conduct by Consultant or its employees or any technician or subconsultant
hired by it.
Section 10.0 CONFIDENTIALITY. At all times during the term of this
Agreement and thereafter, Consultant will hold in strictest confidence, and not
disclose to any person, firm or corporation, any confidential information,
manner of doing business, techniques, process, trade secret, or any other
confidential matter relating to the business of X. Xxxxxx Homes, or its
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divisions, subsidiaries and affiliates which Consultant may now know or may
learn while performing hereunder or which is developed hereunder for X. Xxxxxx
Homes and its divisions, affiliates and subsidiaries by Consultant
("Confidential Information").
At the time of the termination of this Agreement, Consultant will deliver to
Company, and will not keep in his possession nor deliver to any person, any and
all documents containing Confidential Information.
Section 11. PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their personal representatives, successors and assigns.
Section 12.0. SEVERABILITY. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
Section 13.0. SITUS AND GOVERNING LAW. This Agreement shall be
construed and enforced in accordance with the laws of the State of Hawaii.
Section 14.0. ENTIRE AGREEMENT. This Agreement represents the entire
Agreement between the parties with respect to the subject matter hereof, and
supersedes any prior negotiation, agreements and understandings with respect
thereto. No change or modification of this Agreement shall be enforceable
against any party unless the same be in writing and signed by the party against
whom enforcement is sought.
Section 15.0. COOPERATION. All Parties agree to cooperate fully and
execute any and all supplementary documents and to take all additional actions
which may be necessary or appropriate to give full force and effect to the basic
terms and intent of this Agreement.
Section 16.0. ARBITRATION. You and the Company expressly understand
and agree that any disputes arising out of the terms and conditions of this
Agreement shall be subject, absent settlement by the parties, to final and
binding arbitration in accordance with the Model Employment Arbitration
Procedures of the American Arbitration Association.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the
day and year first above written.
Approved as to form: X. Xxxxxx Homes, Inc.
/s/Xxxxx X. Xxxx By /s/J. W.A. Buyers
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Xxxxx X. Xxxx J. W.A. Buyers, Chairman
Attorney for X. Xxxxxx
Homes, Inc. Date: 01/15/97
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Approved as to form:
/s/Xxxxxxx X. Xxxxx /s/X. X. Xxxxxxxx
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Xxxxxxx X. Xxxxx X. X. Xxxxxxxx
Attorney for X. X. Xxxxxxxx Date: 01/16/97
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Consultant Agreement
Exhibit A-1
Description of Work
Consultant will be reasonably available to:
a. Respond to the inquiries regarding historical events, practices,
procedures, and policies for X. Xxxxxx Homes and its predecessor company
which occurred or were utilized during the Consultant's previous
employment;
b. Assist the Board of Directors and the new Chief Executive Officer and Chief
Financial Officer with any transitional issues; and
c. Other projects as mutually agreed upon in advance and in writing.
Such consultation will normally be rendered via telephone discussion, but the
Consultant will be available to meet at mutually agreed upon times and places as
reasonably necessary, with any required and reasonable travel, telephone, or
other expenses to be reimbursed by the Company.
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Exhibit B-1
Fees and Medical Expense Reimbursement
FEES
For the duration of the Consultant Agreement, Consultant will receive $20,833.33
per month until a total fee of $173,076.92 has been paid. If Consultant
provides more than ten (10) hours of consulting time in a month, Consultant will
be paid at an hourly rate to be mutually agreed upon by the Company and
Consultant. All Consultant fees will be payable in advance on the first of
every month except that the fee for January, 1997 shall be paid on the earlier
of January 15, 1997 or the execution of this Agreement.
MEDICAL AND DENTAL EXPENSE REIMBURSEMENT
For up to three (3) years following the Effective Date of the Consultant
Agreement, Consultant will be eligible for medical and dental plan coverage and
BeneFlex credit allowance under the same general terms, including plan
provisions and premium sharing, as the Company's active salaried employees.
Such premium sharing will be in addition to Consultant's monthly fees as
described above and will be deducted in advance from the monthly consulting
fees. Notwithstanding the above, at such time that Consultant obtains
reasonably equivalent alternative health coverage under another plan, coverage
under this Consulting Agreement will cease. Commencing January 1, 2000, if
reasonably equivalent alternative coverage is not available, you may elect to
continue medical and/or dental coverage under the Company's medical and dental
plans, at your own expense for a period of 18 months.
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