INDEPENDENT CONTRACTOR CONSULTING AGREEMENT
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This Agreement ("Agreement") is made effective as of October 1, 1996,
between XXXX REAL ESTATE GROUP, INC., a Delaware corporation (the "Company"),
and XXX XXXXX ("Consultant").
WHEREAS, the Company and Consultant desire to enter into an agreement
regarding consulting services to be provided to the Company by Consultant; and
WHEREAS, the Company and Consultant have agreed to execute and deliver this
Agreement to memorialize the terms and conditions of the above described
relationship.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. CONSULTING SERVICES. Consultant hereby agrees to provide consulting
services to the Company, including without limitation the following:
- reviewing and commenting on individual development projects,
including without limitation, financing and equity structures
applicable thereto;
- assisting in analysis of alternative approaches to a
recapitalization of the Company;
- providing motivational advice and counsel to the Company's staff;
and
- assisting in sourcing new development opportunities for the
Company and procuring staff to support such opportunities.
2. INDEPENDENT CONTRACTOR STATUS. This Agreement is not intended to be
an employment agreement and there does not exist any intent to create any
employment relationship between the Company and Consultant. At all times during
the term of this Agreement, Consultant shall be an independent contractor and
shall be solely responsible for all federal, state and local taxes, withholdings
and related obligations which may arise from any payments from the Company to
Consultant hereunder, including without limitation, federal and state income tax
obligations and contributions to social security, disability and workers'
compensation insurance benefits. Consultant agrees that he will indemnify,
defend and hold the Company harmless from and against any and all claims or
liability arising out of or in connection with any alleged failure to satisfy
any such obligations.
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3. COMPENSATION. During the term of this Agreement, the Company hereby
agrees to pay Consultant compensation at the annual rate of Fifty Thousand
Dollars ($50,000.00) per year payable in equal monthly installments of Four
Thousand One Hundred and Sixty-Six Dollars and Sixty-Seven Cents ($4,166.67).
4. TERMINATION. This Agreement may be terminated by either party,
without cause, upon thirty (30) days prior written notice. However, the Company
shall pay Consultant the amount of $50,000 on a lump sum basis and any and all
unvested stock options of Consultant shall immediately become vested in the
event that the Company terminates this Agreement without cause, where "cause" is
defined as the event where Consultant (i) is or has been engaging in willful or
grossly negligent conduct which has resulted in a failure to perform
Consultant's services hereunder or, (ii) has committed an act of dishonesty,
gross negligence or misconduct, which has a direct, substantial and adverse
effect on the Company, its business or reputation.
Notwithstanding the foregoing, Consultant shall not be terminated for
cause unless and until Consultant has received written notice of a proposed
termination for cause and Consultant has had an opportunity to be heard before
at least a majority of the number of members of the Board authorized to take
such action. Consultant shall be deemed to have had such opportunity if given
written or telephonic notice by any director at least 72 hours in advance of a
meeting.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
supersedes any and all prior agreements and understandings between the parties
hereto respecting the subject matter hereof.
6. CHANGES. The terms and provisions of this Agreement may not be
modified or amended except pursuant to the written consent of Consultant and of
the Company. The waiver by either party of any breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach.
7. ASSIGNABILITY. The obligations of Consultant may not be delegated and
Consultant may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void AB INITIO and without effect. This Agreement and all of
the Company's rights and obligations hereunder may be assigned or transferred by
the Company to, and shall be binding upon and inure to the benefit of, any
subsidiary of the Company or any successor to the Company.
8. NOTICES. All notices, requests, consents and other communications
hereunder to either party shall be deemed to be sufficient if contained in a
written instrument delivered in person, duly sent by first class registered or
certified airmail, postage prepaid, or telecopied or telexed addressed to such
party at his or its address as set forth below. All such notices, requests,
consents and communications shall be deemed to have been delivered (a) in the
case of personal delivery, on the date of such delivery, (b) in the case of
telex or facsimile transmission, on the
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date on which the sender receives machine confirmation of such transmission, and
(c) in the case of mailing, on the fifth (5th) business day following the date
of such mailing. Either party may change the address to which notices,
requests, consents and other communications hereunder shall be sent by sending
written notice of such change of address to the other party.
If to Company: Xxxx Real Estate Group, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to Consultant: Xxx Xxxxx
Xxxx Real Estate Services, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
9. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
11. HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability. Such prohibition or
unenforceability in any one jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Any provision of this
Agreement that is prohibited or unenforceable by reason of its temporal duration
or geographical scope shall be deemed to be changed to the longest duration and
widest geographical scope that is enforceable.
3.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written, in the case of the Company by an officer thereunto
duly authorized.
XXXX REAL ESTATE GROUP, INC.
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx, Chairman and
Chief Executive Officer
CONSULTANT:
Signature: /s/ XXX XXXXX
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XXX XXXXX
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