EXHIBIT 4.9
THIS AGREEMENT is made on 15 November 2004 between
PARTIES
XXXXX XXXXXXX (the "CONSULTANT")
AND
XXXXX XXXXXX INDUSTRIES NV (the "COMPANY") of Xxxxx 0, Xxxxxx, Xxxxxxxxxxxxxx
0000, Xxxxxxxxx
In consideration of the mutual covenants set forth in this Agreement, the
parties agree as follows:
1. RETENTION AS CONSULTANT
1.1. The Company hereby agrees to retain the Consultant on terms and conditions
set forth in this Agreement, and the Consultant agrees to act, as a
consultant to the Company.
1.2. During the Term of this Agreement (defined below), the Consultant shall
render to the Company such services of an advisory or consultative nature
as the management of the Company may reasonably request, so that the
Company may continue to have the full benefit of his experience and
knowledge regarding the Company's business, including, but not limited to,
the following:
(a) any investigation by any regulatory authority (including any
investigation by the Australian Securities & Investments Commission
("ASIC")) into the financial affairs of the Company or the
transactions undertaken by the Company or by JHIL;
(b) any public announcements made by JHINV or JHIL in connection with
those transactions;
(c) any court actions in relation to such transactions or announcements;
(d) any questions executives or directors of JHINV may have in relation
to the current or former financial statements of any current or
former member of the Xxxxx Xxxxxx group and their preparation or
legal work attended to by the Consultant while he was general
counsel or otherwise an employee of any current or former group
company; and
(e) such other assistance as JHINV may reasonably require.
1.3. The Consultant shall make recommendations and give advice to the Company's
board, management, and shall be available to consult with directors,
management personnel and employees of the Company, during normal business
hours Monday through Friday by telephone, e-mails or (subject to clause
2.2) in person at the Company's office in Mission Viejo, California.
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2. TERM OF CONSULTANCY
2.1. The Term will commence with effect from 21 October 2004 and shall have a
duration of 2 years, unless otherwise agreed by the parties.
2.2. The consultancy is in the nature of a part-time consultancy, but the
nature of the services is such that the workload will vary over the Term.
The Consultant shall use all reasonable endeavours to meet reasonable
requests of the Company to attend or provide assistance. The Company
recognizes that the Consultant may have other work commitments which could
prevent him from providing consultancy services at a particular time;
however the Consultant shall use all reasonable endeavours to be available
where he is given reasonable notice by the Company of his services being
required. Persistent failure to provide such consultancy services shall
comprise a material breach of this agreement .
2.3. The Consultant shall not, in the course of the consultancy, be required to
undertake acts or to forego acts which could reasonably be expected to
prejudice his own legal position but, notwithstanding the foregoing, shall
at all times act honestly and ethically in his dealings with the Company.
3. COMPENSATION
3.1. For his services to the Company during the Term of this Agreement the
Consultant shall receive from the Company a consulting fee of seven
thousand and twenty US dollars (US$7,020) per month, payable monthly.
3.2. The Consultant shall be entitled to a motor vehicle allowance of US$750
per month during the Term of Consultancy.
3.3. Except as set forth in this clause 3, clause 4 below or as separately
agreed in writing between the Company and the Consultant, no other
compensation or benefits will be given to the Consultant for his services.
4. EXPENSES AND ALLOWANCES
4.1. The Company shall reimburse the Consultant for reasonable out-of-pocket
expenses incurred by the Consultant in connection with Company's business,
provided, with respect to expenses in excess of US$1,000, that the
incurring of any such expenses is approved in advance by Xxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxx Xxxxxxx, any permanently appointed chief financial
officer or any other executive officer of the Company delegated by a
permanently appointed chief financial officer to approve such expenses and
the Consultant provides the Company with such substantiating receipts or
other documentation as the Company may reasonably require.
4.2. The Consultant shall be reimbursed for his reasonable expenses of
attending conferences during October 2004 arranged while he was an
employee of JHBPI.
5. TERMINATION
5.1. Either party may terminate this Agreement prior to its expiration for
material breach of this Agreement if the party who has committed the
material breach of this Agreement fails to
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cure the breach within fourteen (14) days after receiving written notice
specifying the nature of the breach. In the event of a termination by the
Company for this reason, no further consulting fees will bepayable in
respect of that part of the term remaining after the date of termination.
5.2. The consultancy may be terminated by JHINV on 30 days' notice (but in such
a case, JHINV shall pay within 14 days of the date of termination all
accrued and unpaid consultancy fees owing at the date of termination and
all future consultancy fees that in the absence of any termination would
have fallen due for payment during the balance of the term unless the
termination is effected by the Company in accordance with clause 5.1.
5.3. The consultancy may be terminated by the Consultant on 30 days' notice in
the event of the insolvency of the Company or in the event of the Company
taking any steps to place the Company into liquidation, or the Company
being the subject of a court order for its liquidation or winding up.
5.4. The Agreement, and the Company's obligation to pay consulting fees (other
than those fees which had accrued at the date of the Consultant's death),
shall automatically terminate upon the Consultant's death.
5.5. The termination of this Agreement pursuant to this clause 5 shall not
release either party from any accrued obligation to pay any sum to the
other party (whether then or thereafter payable) or operate to discharge
any liability incurred prior to the termination date. In addition, the
Company obligations intended to survive the termination of this Agreement,
including its indemnification obligations under clause 6.11, shall survive
the termination of this Agreement.
6. MISCELLANEOUS
6.1. GOVERNING LAW AND JURISDICTION
All questions with respect to the construction of this Agreement and the
rights and liabilities of the parties shall be governed by the laws of the
State of California. Each of the parties submits to the jurisdiction of
any state or federal court sitting in Orange County, California, in any
action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard
and determined in any such court. Each party also agrees not to bring any
action or proceeding arising out of or relating to this Agreement in any
other court.
6.2. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
6.3. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions agreed upon by the
parties, and supersedes any prior agreements or understandings with
respect to the consulting relationship between the Consultant and the
Company to begin on the effective date set forth above. For the avoidance
of doubt, this Agreement does not supersede or alter any indemnity
agreements
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already in existence between the Consultant and members of the Xxxxx
Xxxxxx group. The indemnification provided for in this Agreement is in
addition to, and not in replacement of, the indemnification obligations
contained in the Joint and Several Indemnity Agreement.
6.4. AMENDMENT OR MODIFICATION OF AGREEMENT
This Agreement may be modified, altered or amended only by the written
agreement of both the parties.
6.5. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be a valid original agreement.
6.6. SEVERABILITY
If any provision of this Agreement or its application to any person or
circumstances is held to be unenforceable or invalid by any court of
competent jurisdiction, its other applications and the remaining
provisions of this Agreement will be interpreted so as best reasonably to
effect the intent of the parties.
6.7. NOTICES
Any notice or other communication to a party pursuant to this Agreement
will be deemed to have been duly given if given personally to the party or
on the date of delivery in writing, addressed to the party, at the
following address:
If to the Company: The Company Secretary
Xxxxx Xxxxxx Industries NV
4th Floor, Atrium
Xxxx 00-00, Xxxxxxxxxxxxxx 0000, 0000
Xxxxxxxxx, Xxx Xxxxxxxxxxx
With a Copy to: Senior Vice President Human Resources
Xxxxx Xxxxxx, Inc.
00000 Xx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
XXX
Fax: (000) 000-0000
If to the Consultant: Xxxxx Xxxxxxx
Either party may change its or his address for purposes of this paragraph
by giving the other party written notice of the new address in the manner
set forth above.
6.8. FURTHER ACTIONS
Each party agrees to execute and deliver any further documents and to do
any additional acts reasonably required to carry out the terms of this
Agreement.
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6.9. WAIVERS
Any provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by a written instrument executed by the
party or by a duly authorized officer of the party. No waiver of any of
the provisions of this Agreement will be deemed, or will constitute, a
waiver of any other provision, whether or not similar, nor will any waiver
constitute a continuing waiver.
6.10. INDEPENDENT CONTRACTOR
(a) The Consultant is retained by the Company only for the purposes and
to the extent set forth in this Agreement, and his relationship to
the Company shall, during the term of this Agreement, be that of an
independent contractor.
(b) The Consultant shall have no authority or right, express or implied,
to assume or create any obligation or responsibility on behalf of
the Company or to bind the Company in any manner without the express
authorization of the Company. The Consultant will not represent the
contrary, either expressly or implicitly, to anyone.
(c) The Consultant shall not be considered as having employee status or
as being entitled to participate in any plans, arrangements or
distributions by the Company pertaining to any pension, stock,
bonus, profit sharing or similar benefits for the Company's
employees except as set forth otherwise in this Agreement.
(d) Subject to paragraph (e), the Company shall not withhold any of the
Consultant's compensation payments for income tax purposes and shall
not have any obligations with regard to Social Security payments for
the Consultant, insurance or workers' compensation coverage for the
Consultant, vacation, disability pay or any similar items. Nothing
contained in this Agreement shall be deemed or construed to
constitute a relationship of employer and employee.
(e) If despite provisions to the contrary under this Agreement the
Company is required by law to withhold or to have withheld any
amount from the service fees payable under this Agreement, the
Company shall be entitled to withhold such amounts or to be promptly
reimbursed by the Consultant for such amounts.
6.11. INDEMNIFICATION
(a) If the Consultant becomes a party or witness or other participant
in, or is threatened to be made a party or witness or other
participant in, any current, threatened, pending, completed or
future action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of any action or inaction
on the part of the Consultant in connection with his work as a
consultant to the Company or any subsidiary or parent of the
Company, or by reason of the fact that the Consultant provides or
has provided consultancy services under this agreement or, following
the effective date of this Agreement, has served in any other
capacity at the request of the Company to the Company or another
corporation, partnership, joint venture, trust or other enterprise,
the Company shall indemnify, defend and hold harmless the Consultant
against all expenses (including attorneys' fees and experts' fees
and
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costs), and all liabilities, losses, judgments, fines, penalties,
and taxes incurred by the Consultant and amounts paid in settlement
(if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably
incurred by the Consultant in connection with such action, suit or
proceeding, provided in each case above that the Consultant acted in
good faith and in a manner the Consultant reasonably believed to be
in or not opposed to the best interests of the Company.
(b) The Company shall advance all expenses incurred by the Consultant in
connection with the investigation, defense, settlement or appeal of
any civil or criminal action, suit or proceeding referred to in this
clause 6.11 (including amounts actually paid in settlement of any
such action, suit or proceeding). The Consultant hereby undertakes
to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Consultant is not entitled to be
indemnified by the Company as authorized hereby.
EXECUTION
Executed as an agreement at Mission Viejo, California as of the date first
written above.
SIGNED by XXXXX XXXXXXX in the presence of: )
) /s/ Xxxxx Xxxxxxx
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/s/ Xxxx Xxxxxxx ) Signature
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Witness
Xxxx Xxxxxxx
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Print Name
EXECUTED by XXXXX XXXXXX )
INDUSTRIES NV in the presence of: )
)
/s/ Xxxxx Xxxxx
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Signature Signature
Xxxxx Xxxxx
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Print Name Print Name
Interim CEO
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Title
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