CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is effective as of July 1,
1996 between Xxxx Food Company, Inc., a Hawaii corporation ("COMPANY"), and
Xxxxxx X. XxXxxxx ("CONSULTANT").
RECITALS
A. COMPANY is desirous of retaining CONSULTANT to perform certain
services ("Services") as deemed necessary or desirable by Xxxxx X. Xxxxxxx,
Chairman of the Board and Chief Executive Officer of COMPANY.
B. CONSULTANT has the skills, training and expertise necessary to
perform the Services required by COMPANY.
C. COMPANY's needs for the Services are uncertain and subject to
substantial change at any time, and from time to time.
D. COMPANY requires the utmost flexibility in contracting for and
scheduling performance of the Services.
E. CONSULTANT acknowledges that the contractual relationship created
by this Agreement is inherently insecure in terms of the likelihood of the
continuation of the relationship for any length of time.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties agree as follows.
AGREEMENT
1. SERVICES
A. CONSULTANT shall commence providing the Services on July 1, 1996
and shall continue to do so to and including December 31, 1996 (the "Term"),
unless sooner terminated as provided herein.
B. CONSULTANT will render the Services to COMPANY, and COMPANY will
pay CONSULTANT for the Services, the sum of $10,416.67 per calendar month,
regardless of the time during a calendar month devoted by CONSULTANT to the
performance of Services. Amounts due to CONSULTANT hereunder shall be payable
on the ___ business day of each calendar month during the Term hereof.
C. COMPANY shall reimburse CONSULTANT for reasonable business
expenditures made and substantiated in accordance with the policies and
procedures established from time to time by COMPANY.
D. During the Term (as hereinafter defined), CONSULTANT agrees to use
his best efforts in rendering Services to COMPANY. CONSULTANT shall perform
his duties as requested by COMPANY in a professional manner and in a manner
which shall be in the best interest of COMPANY. CONSULTANT shall exercise
such care as an ordinary prudent person in a like position would exercise
under similar circumstances. CONSULTANT may work for others concurrently so
long as there is no impairment of the performance of the Services.
2. STATUS OF PARTIES
It is understood and agreed by the parties that no joint venture,
partnership, employment, agency or other relationship between COMPANY and
CONSULTANT, or CONSULTANT's employees or agents, is created by this
Agreement. No agent, employee, or servant of CONSULTANT shall be deemed to be
the employee, agent or servant of COMPANY. The parties agree that CONSULTANT
cannot contract on behalf of COMPANY. CONSULTANT shall perform Services as an
independent contractor, and not as an agent or employee of COMPANY,
and nothing enumerated herein shall be construed to be inconsistent with this
statement. CONSULTANT shall not be compensated through COMPANY's payroll
system. Neither CONSULTANT nor CONSULTANT's dependents, family members,
heirs, successors and assigns will be entitled to any benefits that COMPANY
provides to employees, including but not limited to medical and dental plans,
life insurance, vacation pay, pension or profit sharing plans, bonuses
or other forms of deferred compensation as a result of this Agreement.
CONSULTANT shall be solely responsible, as an independent contractor, for the
payment of all CONSULTANT's employment, payroll and other taxes.
3. WARRANTIES AND INDEMNIFICATIONS
A. CONSULTANT agrees to indemnify COMPANY from and against any loss,
claims, cost or expense, including reasonable attorneys' fees, incurred by
COMPANY arising out of or in connection with any breach of CONSULTANT's
representations, warranties, covenants or agreements hereunder, including but
not limited to taxes, penalties and interest, assessed against COMPANY as a
result of a determination by any government agency that CONSULTANT's
relationship with COMPANY was other than that of an independent contractor.
B. CONSULTANT warrants that he has the authority to enter into this
Agreement and that neither this Agreement nor CONSULTANT'S performance
hereunder breaches any other contracts, commitments, agreements, or
understandings into which CONSULTANT has entered.
2
4. CONFIDENTIAL INFORMATION
All information of or concerning COMPANY in any form which is or was
previously made available to CONSULTANT, whether as a result of prior
employment with COMPANY or in connection with the performance of Services
hereunder, shall be treated as confidential information ("Confidential
Information"). Confidential Information includes, but is not limited to,
formulae, specifications, ideas, inventions,
personnel/financial/technical/marketing data, forecasts procedures,
"know-how", customer lists or similar information . CONSULTANT agrees that
all Confidential Information related in any way to COMPANY's products,
business or the Services performed for COMPANY by CONSULTANT belongs solely to
COMPANY and shall not be used by CONSULTANT for any purpose other than to
perform the Services hereunder. CONSULTANT shall not disclose any
Confidential Information to others, except to his employees and related third
parties whose duties so require. CONSULTANT shall be responsible for any
unauthorized use or disclosure of any Confidential Information by CONSULTANT
or by any of his employees or related third parties and for any loss,
including reasonable attorney's fees, suffered by COMPANY proximately caused
thereby. CONSULTANT's obligations of confidentiality and nondisclosure shall
not apply to any portion of the Confidential Information which:
(i) is or shall have become public knowledge, by publication or
otherwise, through no fault of CONSULTANT; or
(ii) subject to Section 6 hereof, is required to be disclosed by
law.
5. OWNERSHIP AND USE OF CONSULTANTS' WORK FOR COMPANY
CONSULTANT acknowledges that all work papers, documentation and other
material delivered to COMPANY pursuant to this Agreement will belong solely
to COMPANY and may not be used by CONSULTANT for any other purpose
whatsoever; provided that COMPANY will not use CONSULTANT'S name or attribute
any statement, analysis or information to CONSULTANT without CONSULTANT'S
prior approval, which approval shall not be unreasonably withheld; and
provided further, that CONSULTANT may use such materials to perform Services
hereunder, to monitor or evaluate such Services or to develop internally
CONSULTANT'S professional capability. Upon completion of the Services, or
termination pursuant to Section 7 hereof, CONSULTANT shall, in accordance
with his usual practice, destroy all materials furnished by COMPANY, all of
CONSULTANT'S workpapers, analyses, drafts and other materials prepared in
connection with the Services or produced for COMPANY by CONSULTANT, unless
COMPANY has requested that CONSULTANT deliver specific materials to COMPANY
or to retain them for possible future reference. Notwithstanding any other
provision of this Agreement, CONSULTANT will be entitled to retain for his
internal purposes one copy of each written report furnished to COMPANY by
CONSULTANT; provided that the obligations of CONSULTANT pursuant to Section 4
hereof shall survive with respect to each such copy maintained by CONSULTANT
for as long as CONSULTANT
3
maintains such copy. Should CONSULTANT no longer desire to maintain such
copy, CONSULTANT shall return each such copy to COMPANY.
6. NOTIFICATION TO COMPANY OF MANDATORY DISCLOSURE
If CONSULTANT or any of his representatives are requested or required by
oral questions (that a court orders to be answered), interrogatories, requests
for information or documents, subpoena, civil investigative demand or similar
process, to disclose any part of the Confidential Information, CONSULTANT
will (i) promptly notify COMPANY of each such request or requirement and the
documents requested thereby, so that COMPANY may seek an appropriate
protective order or other remedy and/or waive compliance by CONSULTANT with
the provisions of this Agreement, and (ii) consult with COMPANY on the
advisability of taking legally available steps to resist or narrow such
request or requirement. If in the absence of such a protective order or
receipt of such a waiver, CONSULTANT is nonetheless in the written opinion of
his outside counsel (a copy of which shall be furnished in advance to
COMPANY) compelled to disclose, by mandatorily applicable law, any part of
the Confidential Information, CONSULTANT may disclose such Confidential
Information without liability under this Agreement, except that in that
event, if the circumstances so permit, CONSULTANT shall give COMPANY written
notice of the Confidential Information to be so disclosed as far in advance
of its disclosure as is lawful and practicable, and CONSULTANT shall use his
best efforts to obtain an order or other reliable assurances that
confidential treatment will be accorded to the portion of the Confidential
Information so required to be disclosed. COMPANY shall reimburse CONSULTANT
for reasonable legal and other expenses reasonably incurred by CONSULTANT in
complying with the provisions of this Section 6.
7. TERMINATION
Either party may terminate the relationship created by this Agreement at
any time, with or without cause, by delivery of written notice to the other.
In the event of the termination of this Agreement prior to the completion of
the Term, CONSULTANT shall be entitled to the compensation earned by him prior
to the date of termination pro rata up to and including that date. On
termination in accordance with the provisions of Paragraph 1.C. hereof,
COMPANY shall also pay CONSULTANT an amount equal to the expenses incurred by
him though the date of termination CONSULTANT shall be entitled to no further
compensation hereunder as of the date of termination.
8. NOTICE
Whenever Notice is required to be given pursuant to this Agreement, it
shall be delivered by personal or commercial express delivery service sent by
first class mail, postage prepaid and shall be deemed to be given when
personally received by CONSULTANT at such address about which one party shall
notify the other party.
4
9. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the parties and
supersedes all prior and concurrent proposals, understandings, communications
and agreements between the parties relating to the subject matter of this
Agreement. Any modifications or changes will not be effective unless in
writing and signed by both parties. CONSULTANT and COMPANY agree that the
provisions of this Agreement are severable and that the invalidity of any
portion of this Agreement shall not affect the validity of the remainder of
the Agreement.
10. GOVERNING LAW
This Agreement shall be construed pursuant to the laws of the State of
California.
11. SURVIVAL OF TERMS
The provisions of Section 3 (Warranties and Indemnifications), Section 4
(Confidential Information), and Section 5 (Ownership and Use of CONSULTANT's
Work for COMPANY) shall survive the termination of this Agreement.
IT WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first written above.
XXXX FOOD COMPANY, INC.
____________________________ By:_____________________
XXXXXX X. XXXXXXX
5