CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is effective as of
December 16, 1999 between Xxxx Food Company, Inc., a Hawaii corporation
("COMPANY"), and Xxxxxxxx X. Xxxx ("CONSULTANT").
RECITALS
A. COMPANY is desirous of retaining CONSULTANT to perform certain services
for the benefit of the vegetable businesses conducted by subsidiaries of the
COMPANY ("Services") as deemed necessary or desirable by Xxxxx X. XxXxxxxxx,
President and Chief Operating 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. CONSULTANT acknowledges that the contractual relationship created by
this Agreement is inherently insecure in terms of the likelihood of the
continuation of the relationship beyond the term set forth herein.
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 provide the Services for a period of 28 weeks and
shall commence providing the Services on December 20, 1999 and shall continue to
do so to and including June 30, 2000 (the "Term"), unless sooner terminated as
provided herein.
B. CONSULTANT will render the Services to COMPANY, and COMPANY will pay
CONSULTANT at the rate of $9,375.00 per week for the Services, as follows:
(a) The sum of $100,000 on December 22, 1999, which sum shall be
non-refundable in whole or in part unless CONSULTANT should elect to
terminate this agreement prior to February 28, 2000 ;
(b) The sum of $81,250 on March 31, 2000; and
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(c) The sum of $81,250 on June 30, 2000.
C. COMPANY shall reimburse CONSULTANT for reasonable business expenditures
made by CONSULTANT in the course of the performance of the Services and
substantiated in accordance with the policies and procedures established from
time to time by COMPANY.
D. During the Term, 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
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other contracts, commitments, agreements, or understandings into which
CONSULTANT has entered.
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4. CONFIDENTIAL INFORMATION
All information of or concerning COMPANY or any of its affiliates in any
form which is or was previously made available to CONSULTANT, whether as a
result of prior employment with COMPANY or any of its affiliates 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 or its affiliates' products,
business or the Services performed hereunder 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 attorneys' 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 or any affiliate 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
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shall survive with respect to each such copy maintained by CONSULTANT for as
long as CONSULTANT 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. NO HIRING OF COMPANY EMPLOYEES
Until June 30, 2000, CONSULTANT will not, directly or indirectly, solicit
for employment, hire or otherwise seek to obtain the benefit of the personal
services of any individual who is on December 17, 1999 an employee of the
COMPANY or any of the Company's Affiliates and will not, directly or indirectly,
solicit or encourage any such individual
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to leave the employ of the COMPANY or of any of its affiliates. CONSULTANT
expressly understands and agrees that the foregoing provision prevents
CONSULTANT until June 30, 2000 from employing, hiring, engaging or contracting
for the services of, and from assisting or causing any employer of CONSULTANT
including Apio, Inc. to employ, hire, engage or contract for the services of any
such individual, regardless of whether any such individual first contacts
CONSULTANT on his or her own initiative without any direct or indirect
solicitation or encouragement by CONSULTANT.
9. 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.
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.
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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.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first written above.
XXXX FOOD COMPANY, INC.
/s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx X. XxXxxxxxx
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XXXXXXXX X. XXXX
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