EXHIBIT 10.63
CONSULTANT AGREEMENT
BETWEEN
X. XXXXXX HOMES, INC.
And
XXXXXX X. XXXXX
Dated: August 14, 1997
EXHIBIT "A-1"
TABLE OF CONTENTS
Page No.
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PARTIES...................................................................... 1
PREAMBLE..................................................................... 1
Section 1.0 Appointment and Engagement as Independent Contractor....... 1
Section 2.0 Term of Agreement.......................................... 1
Section 3.0 Description of Work........................................ 1
Section 4.0 Compensation and Medical/Dental Benefits................... 1
Section 5.0 Relationship of the Parties................................ 2
Section 6.0 Termination of this Agreement.............................. 2
Section 7.0 Assignment................................................. 2
Section 8.0 Non-Waiver................................................. 3
Section 9.0 Indemnification............................................ 2
Section 10.0 Confidentiality............................................ 3
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................................................ 4
SIGNATURES................................................................... 4
EXHIBIT "A" Description of Work.............................................. i
EXHIBIT "B" Fees............................................................. ii
CONSULTANT AGREEMENT
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THIS AGREEMENT made this 14th day of August and effective as of the
___ day of ___________ (hereinafter the "Effective Date"), by and between Xxxxxx
X. Xxxxx (hereinafter referred to as "Consultant") and X. Xxxxxx Homes Inc.
(hereinafter referred to as "Company").
WITNESSETH:
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
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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 his 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
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the Effective Date and shall continue for a period of six (6) continuous months
and, except as specified under Section 6.0 below, shall terminate on ________,
1998.
Section 3.0 Description of Work. Consultant shall perform the services
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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
President or such other representative designated by him/her.
Section 4.0 Compensation and Medical/Dental Benefits. Consultant shall be
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compensated as shown on Exhibit "B-1" attached hereto and made a part hereof by
this reference and shall provide medical and dental benefits which were provided
to Consultant immediately before his separation from employment with the
Company. The Company will continue the medical and dental insurance coverage
until the date of the termination of this Agreement or the date you secure
reasonably equivalent alternate coverage, whichever is earlier. The Company will
contribute the same premium share for this insurance coverage as it would for an
active salaried employee. You must contribute your portion of the premium to be
eligible for this provision. As of the date of the termination of this
Agreement, if reasonably equivalent alternative coverage is
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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.
The compensation 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
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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
obligations 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
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
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shall be in substantial breach of any of the terms of this Agreement or the
Release and Settlement Agreement and Consultant fails to cure such breach, after
reasonable notice thereof and opportunity to cure his breach, then Company may
upon written notice terminate 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.
This Agreement shall terminate immediately should Consultant obtain
employment at any time during the term of this Agreement, and only fees due to
Consultant for work performed under this Agreement until the date Consultant
obtains employment shall be paid to Consultant. In addition, this Agreement
shall terminate immediately in the event of the death of Consultant. The
Company shall pay to the legal representative of Consultant, in the event of the
death of Consultant, any fees due to Consultant for work performed under this
Agreement until the date of the death of Consultant.
Section 7.0 Assignment. Consultant shall not assign or otherwise transfer
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in any manner its interest in or obligations under this Agreement.
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Section 8.0 Non-Waiver. It is expressly understood and agreed that the
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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
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harmless Company and its respective officers, 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
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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
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 11.0 Personal Representatives, Successors and Assigns. This
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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
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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
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enforced in accordance with the laws of the State of Hawaii.
Section 14.0 Entire Agreement. This Agreement represents the entire
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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
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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.
3
Section 16.0 Arbitration. You and the Company expressly understand and
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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 Commercial 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.
X. Xxxxxx Homes, Inc.
By /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Date: 8/14/97
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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 which occurred or were
utilized during the Consultant's previous employment;
b. Assist the Board of Directors, the President, Chief Executive Officer, new
Chief Financial Officer and Controller with any transitional issues; and
c. Other projects as mutually agreed upon.
"Reasonably available" shall mean that Consultant shall make himself available
for consultation on a regular basis, and shall perform this Agreement in a
manner that is acceptable to the Company. The Consultant will be available to
meet at mutually agreed upon times and places as reasonably necessary, which
will include the Company's headquarters on Maui, with any required and
reasonable travel, telephone, or other expenses to be reimbursed by the Company.
The Company understands that Consultant will be actively seeking new employment
following his separation as an employee of the Company. The Company understands
that the Consultant's availability may be affected by periodic travel to places
outside of Hawaii, or permanent relocation outside of Hawaii.
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Exhibit B-1
Fees
For the duration of the Consultant Agreement, Consultant will receive $11,250.00
per month for services performed under this Agreement. If Consultant provides
more than forty (40) 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 on the last day of every month during the
term of this Agreement.
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