CONSULTING AGREEMENT
Exhibit
10.8
This
Agreement ("Agreement") is made and effective as of August 10, 2005 ("Effective
Date") by and between SONOMAWEST HOLDINGS, INC. a Delaware corporation
("Client") and XXXXXXX INVESTMENT COMPANY ("Consultant").
1. Services
and Deliverables.
Consultant will perform the services described in Consultant's proposal to
Client dated June 28, 2004 and such other services as Client and Consultant
shall agree upon ("Services"). Consultant will determine the method, details
and
means of performing the Services. This Agreement supercedes the agreement
dated
July 17, 2001, as amended, between Client and Consultant's principal, Xxxxx
X.
Xxxxxxx, and is intended by the parties to govern all services provided and
to
be provided by Consultant to Client on and after July 1, 2005.
2. Fees
and Payment.
In
consideration for the Services to be performed by Consultant, Client will
pay to
Consultant an hourly fee of $225.00 per hour for all hours rendered on behalf
of
Client. In addition, in the event either of the Company's Sonoma County
properties are sold during the term hereof, upon closing Consultant will
be paid
a fee of 1.5% of the gross sales price regardless of whether or not a broker
is
involved. Consultant shall receive a bonus of 1.5% of the gross value of
the
real estate or $150,000 whichever is greater upon any transaction that would
result in SonomaWest Holdings becoming a private company. Client will pay
Consultant for its services within fifteen (15) days of receiving a monthly
invoice.
3. Independent
Consultant Status.
It is
the express intention of the parties that Consultant is an independent
consultant and not an employee, agent, joint venturer or partner of Client.
Nothing in this Agreement will be interpreted or construed as creating or
establishing the relationship of employer and employee between Client and
Consultant, or any employee or agent of Consultant.
a. Consultant
will supply all tools and instrumentalities required to perform the services
under this Agreement. Consultant is not required to purchase or rent any
tools,
equipment or services from Client.
b. Consultant
is responsible for all costs and expenses incident to performing services
hereunder, including but not limited to costs of equipment provided by
Consultant, fees, fines, licenses, bonds, or taxes required of or imposed
against Consultant and its assistants, if any, as costs of doing business.
Client is not responsible for any expenses incurred by Consultant in performing
services for Client, except for those reasonable out-of-pocket travel expenses
and miscellaneous expenses incurred by Consultant in performing the services
under this Agreement.
c. Consultant
may, at its option and at its own expense, employ such assistants as Consultant
deems necessary to perform the Services. Consultant assumes full and sole
responsibility for the payment of all compensation and expenses of these
assistants and for any state and federal income tax, unemployment insurance,
Social Security, disability insurance and other applicable withholdings of
such
assistants. Consultant will provide workers' compensation insurance coverage
for
its employees and agents, and agrees to hold harmless and indemnify Client
for
any and all claims arising out of any injury, disability, or death of any
of
Consultant's employees or agents. Consultant will indemnify and hold Client
harmless against any and all liability imposed or claimed, including attorneys'
fees and other legal expenses, arising directly or indirectly from any act
or
failure to act of Consultant or Consultant's assistants, employees or agents,
including all claims relating to injury or death of any person or damage
to
property.
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d. Consultant
specifically agrees to abide by Client's standards and rules of conduct and
general operating procedures while on Client's premises or otherwise while
performing services pursuant to this Agreement.
e. Consultant
may not assign any duties or obligations under this Agreement without Client's
express written consent.
f. Consultant
acknowledges that, as he is an independent Consultant and not an employee,
he is
responsible for paying all required state and federal taxes. In particular,
Client will not: (i) withhold FICA (Social Security) from Consultant's payments;
(ii) make state or federal unemployment insurance contributions on Consultant's
behalf; (iii) withhold state or federal income tax from payment to Consultant;
(iv) make disability insurance contributions on behalf of Consultant; (v)
obtain
workers' compensation insurance on behalf of Consultant.
g. Consultant
further acknowledges that he is not eligible for participation in any benefit
plan or program available to Consultant's employees, and that the fee for
services has been established in recognition of Consultant being responsible
for
maintaining such benefit coverage as it deems appropriate.
a. This
Agreement begins on the Effective Date and continues until the earlier of
(i)
written notice of termination by either party; (ii) termination in accordance
with the provisions set forth below; or (iii) June 30, 2006.
b. This
Agreement will terminate automatically on any of the following events: (i)
bankruptcy or insolvency of either party; (ii) sale or discontinuance of
the
business of either party; (iii) death of either party.
c. If
Consultant defaults in the performance of the Agreement or materially breaches
any of the provisions, Client at its sole option may terminate the Agreement
at
any time on written notice to Consultant. For purposes of this section, material
breach includes, but is not limited to: (i) failure or refusal to perform
the
Services when and as contemplated; (ii) failure to provide timely invoices
with
appropriate descriptions and approved expenses as provided herein; (iii)
negligence, misconduct, an act of dishonesty, or taking an action or conducting
itself in a manner contrary or inimical to Client's best business interests
or
reputation.
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d. If
Client
fails to pay Consultant fees or payment as provided herein, Consultant at
its
option may terminate the Agreement.
a. Consultant
recognizes that during the term of this Agreement, and in preparation therefore,
he will be privy to many of Client's trade secrets or proprietary or other
confidential or privileged information. Consultant agrees to keep all such
information in strictest confidence and not to disclose it except for legitimate
purposes of Client and with Client's express written consent, either during
the
term of this Agreement or at any time thereafter.
b. On
termination of this Agreement, Consultant will promptly deliver to Client
all
equipment belonging to Client, all code and computer programs of whatever
nature, as well as all manuals, letters, reports, price lists, customer lists,
sales information, analyses, recommendations, and all copies thereof, and
all
other materials of a confidential nature regarding Client's business that
are in
its possession or control. Consultant agrees that the remedy at law for any
breach of the foregoing will be inadequate, and that Client is entitled to
seek
appropriate injunctive relief in addition to any remedy at law in case of
any
such breach.
c. Consultant
agrees that all work he performs pursuant to this Agreement, and all work
which
relates at the time of conception or reduction to Client's business, and
all
work which results from work he performs for Client, whenever performed during
the term of this Agreement, and whether or not utilizing Client's equipment,
supplies, facilities or trade secret information, is considered work made
for
hire for Client as such term is defined in section 101 of the Copyright Act
of
1976 and belongs to Client. Consultant further agrees that in the event that
this Agreement is determined not to be a work for hire agreement, Consultant
will assign to Client any and all rights retained by Consultant.
a. Any
notices given by either party may be effected by personal delivery in writing
or
by mail, registered or certified, postage prepaid, or by facsimile transmission
or by electronic submission, if receipt is confirmed in a commercially
acceptable manner. Mailed notices are to be addressed to the parties at the
addresses below:
If to Client: | SonomaWest Holdings, Inc. | |
0000 Xxxxxxx 000, Xxxxx | ||
Xxxxxxxxxx, XX 00000-0000 | ||
Attn: Xxxxxx X. Xxxxxxxxx, CEO | ||
If to Consultant: | Xxxxxxx Investment Company | |
c/o Xxxxx X. Xxxxxxx | ||
0000 Xx Xxxxx Xxx | ||
Xxxxxxxxxx, XX 00000 | ||
Notices
delivered personally are deemed communicated as of actual receipt; mailed
notices are deemed communicated as of two days after mailing.
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b. This
agreement supersedes any and all agreements, oral or written, between the
parties with respect to rendering services by Consultant for Client, and
contains all agreements between the parties. Any modification of this Agreement
is effective only if in writing signed by the party to be charged.
c. If
any
provisions in this Agreement are held by a court of competent jurisdiction
to be
invalid, void or unenforceable, the remaining provisions will continue in
full
force provided that the essential purposes of the Agreement can be achieved
without the invalid provision.
d. This
Agreement is governed by and construed in accordance with the laws of the
state
of California.
Consultant:
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XXXXXXX INVESTMENT COMPANY | ||
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By: | /s/ Xxxxx X. Xxxxxxx | |
Xxxxx X. Xxxxxxx, President |
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Client:
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SONOMAWEST HOLDINGS, INC. | ||
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By: | /s/ Xxxxxx X Xxxxxxxxx | |
Xxxxxx
X Xxxxxxxxx, CEO
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