EXECUTIVE SERVICES AGREEMENT
This Executive Services Agreement ("Agreement") is made and entered into as of
this 17TH day of July, 1998, by and among Xxxxxxx-Xxxxxx, Inc., a Delaware
corporation ("KWI"), Xxxxxxx-Xxxxxx Properties, Ltd., an Illinois corporation
(the "Business"), a wholly owned subsidiary of Xxxxxxx-Xxxxxx Properties, Ltd.
("KWP"), a Delaware corporation referred to collectively as ("KWS"), having
their principal place of business at 000 Xxxxxxxx Xxxxxxxxx, #000, Xxxxx Xxxxxx,
Xxxxxxxxxx, and KW-A, LLC, a California limited liability company ("KW-A"),
located at the same address, with reference to the following facts:
AGREEMENT
1. Engagement.
KWS hereby engages KW-A to furnish to KWS management executive services
during the term of this Agreement as defined in paragraph 2. Such
services shall include all services that the KW-A Members (the
"Members") are required to render pursuant to their Employment
Agreements as if they were rendered for the benefit of and directly to
KWS. KW-A agrees to furnish such services to KWS on the terms and
conditions of this Executive Services Agreement. KW-A shall direct and
supervise the Members in performing their duties pursuant to their
Employment Agreements.
2. Term.
This engagement of KW-A hereunder may be terminated by either party
with or without cause on the earlier of (i) the termination of
employment by KW-A of the last Member or (ii) December 31, 2000. The
breach by a Member of the terms of such Member's Employment Agreement
shall not be a breach of this Agreement so long as KW-A shall comply
with the material provisions of Section 3 below. If KWS terminates this
agreement for any legal reason, it must fulfill the financial
obligations of KW-A, under its Employment Agreements with the Members.
3. Performance by Members.
Members shall comply with the terms of their Employment Agreement with
KW-A.
4. Substitute Member.
If the employment of any Member is terminated per the terms of the
Employment Agreement, KW-A shall provide an individual to provide the
services rendered by the Member whose Employment Agreement has
terminated ("Substitute Member").
5. Compensation; Benefits; Expenses.
KW-A shall be entitled to compensation for services provided hereunder
as follows:
(a) So long as the Members render the services pursuant to this
Agreement, KWS shall pay, as full and complete compensation for
the services of the Members provided to KWS pursuant to this
Agreement, the following compensation;
All sums due to Member and Substitute Member pursuant to
his Employment Agreement, in a timely fashion.
(b) KWS shall fund the cost of all benefit plans including but not
limited to pension, profit sharing, deferred compensation, group
insurance or other health and welfare plans in an amount
consistent with the positions and duties occupied by the Members,
but only as to those that KWS in its absolute discretion makes
available generally to its officers, but KWI will not be required
to establish or maintain any qualified benefit plan which
provides to any of its Members any benefit which is in excess of
the benefits made available under such plans generally to
employees of KWI and its subsidiaries.
(c) KWS shall pay to KW-A an amount equal to the "employer's share of
payroll taxes" as that term is commonly defined, but KWS shall
not include the Members in its payroll reporting to federal,
state or local governments. KW-A covenants that it shall pay all
compensation paid to the Members as employees. KW-A and the
Members shall hold KWs harmless from any and all liabilities,
damages, costs, expenses including attorneys' and accountants'
fees, penalties, interest and all other charges incurred by KWI
as a result of the failure by KW-A to comply with the covenants
and agreements contained in this sub section, unless such failure
is due to KWS not funding their obligation hereunder.
(d) KWS shall pay the cost of all business expenses incurred by the
Members in connection with and pursuant to their duties on behalf
of KWS, limited to amounts consistent with the policies
established by KWS from time to time.
6. Business to be the Property of KWI; Assignment of Intellectual Property.
(a) KW-A agrees that any and all pre-existing businesses KWS and all
business development by it or by any of its employees or by any
other employees of KWS, including without limitation all
investment advisory or sales contracts, property management
contracts, fees, commissions, compensation records, client lists,
agreements, and any other incident of any business developed or
sought by the companies or earned or carried on by KW-A or its
employees for KWS are and shall be the exclusive property of KWS
for its sole use, and (where applicable) shall be payable
directly to KWS.
(b) KW-A hereby grants to KWS (without any separate remuneration or
compensation other than that received by it, from time to time)
its entire right, title and interest throughout the world in and
to, all research, information, client lists, and all other
investment advisory, property management, technical and research
data made, conceived, developed and/or acquired by it which
relate to investment and property management advice as it was or
is now rendered or as it may, from time to time, hereafter be
rendered or proposed to be rendered, but excluding any ideas or
thought processes which are not embodied in written or machine
readable form (all such non-excluded items being referred to as
"Intellectual Property").
7. Confidentiality.
KW-A shall not use for its own benefit, or disclose to, or use for the
benefit of any person outside KWS, any information not already lawfully
available to the public concerning any Intellectual Property, including
client lists, whether such information is embodied in writing or in any
other tangible form or is in the memory of KW-A's employees. All such
Intellectual Property and all originals and copies of all Intellectual
Property and such information concerning Intellectual Property, and any
other written material relating to the business of KWS, shall be the
sole property of KWS. Upon termination of this Agreement, KW-A shall
promptly surrender to KWS all originals and copies of any Intellectual
Property. KW-A agrees to take no action prejudicial to the interests of
KWS during the term of this Agreement.
8. Use of Name, Likeness and Biography.
KWS shall have the right to use and grant to others the right to use
the name, likeness and biography of each of the Members in connection
with advertising, publicizing and other exploitation of the Member's
services hereunder.
9. Services as Members and Directors.
Each of the Members who have been requested, shall for so long as such
Member's Employment Agreement shall be in effect, serve as a member of
KWI Board of Directors and shall hold such offices with KWI to which he
may from time to time be elected by KWI's Board of Directors.
10. Equitable Remedies.
The parties recognize that KWS's remedy at law for any breach of this
Agreement would be inadequate and that for breach of any such
provision, KWS, shall, in addition to such other remedies as may be
available to them or either of them at law or in equity or as provided
in this Agreement, be entitled to injunctive relief against KW-A and/or
the Member(s) and to enforce their respective rights by an action for
specific performance to the extent permitted by law.
11. Amendment to Employment Agreements.
None of the Employment Agreements may be amended, nor shall any charge,
modification, consent or discharge be effective except by written
instrument executed by the Employee, KW-A and KWS.
12. Amendments.
This Agreement may not be amended, nor shall any change, modification,
consent or discharge be effective except by written instrument executed
by KW-A and KWS.
13. Assignment; Transfer.
This Executive Services Agreement is not assignable by KW-A except with
the written consent of KWS.
14. Indemnification.
KWS agrees that, except as provided in Section 6 hereof, it shall
indemnify and hold harmless KW-A and the Members to the same extent
that KWS provides such indemnification to its officers and directors
under KWS, Certificate of Incorporation and By-laws and subject to such
limitations as are contained in the corporation law of the State of
California.
15. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California. KWS and the
Members hereby consent to the jurisdiction of any state or federal
court located within the State of California, waiver personal service
or process, and assent that service of process may be made by
registered mail to the parties; even if a Member is a resident of a
State other than California.
16. Covenants of KW-A.
KW-A covenants and agrees that during the term of this Agreement, after
the date hereof, KW-A shall not take any of the following actions
except with the written consent of KWS:
(a) terminate the employment of any of the Members.
(b) give any guaranty, enter into any obligation or become surety for
any person or company.
(c) allow any Member of KW-A to assign, encumber, mortgage or pledge
such Member's interest in KW-A.
(d) pledge or give as security any property or asset of KW-A.
17. No Membership; No Agency.
KWA shall not hold itself out as an agent of KWS and shall have no
power to bind KWS except as provided in their Employment Agreement.
18. Entire Agreement.
This Agreement, together with the Exhibits hereto, contains the entire
agreement between the parties with respect to the subject matter hereof
and there are no agreements representations or warranties by any of the
parties hereto which are not set forth herein. This Agreement may not
be amended or revised except by a writing signed by all parties hereto.
19. Notice.
Any notice or other communication hereunder shall be given as
indicated below:
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date first above written.
KWI: KWP:
Xxxxxxx-Xxxxxx, Inc. Xxxxxxx-Xxxxxx Properties, Ltd.
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxx By /s/ Xxxxxxx X. XxXxxxxx
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The Business:
Xxxxxxx-Xxxxxx Properties, Ltd.
An Illinois corporation
By /s/ Xxxxxxx X. XxXxxxxx
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Title: Chief Executive Officer
KW-A, LLC, A California limited liability company
Members:
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
