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EXHIBIT 10.46
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT is entered into as of December 26, 1996, by
and between INCO HOMES CORPORATION, a Delaware corporation ("Company"), and
OVERLAND COMPANY, INC., a California corporation ("Consultant").
A. Company is a publicly traded corporation engaged in the
acquisition, development, construction, marketing and sale of residential
projects.
B. Consultant is experienced and qualified in identifying,
evaluating, assessing and rendering advice relating to land acquisition and
development and to markets and marketing strategies for residential projects
(collectively the "Services").
C. Company desires to retain Consultant to perform the Services
and Consultant desires to perform the Services, in each case as set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Retention of Consultant. Company hereby retains Consultant,
on a non-exclusive basis, to perform the Services, and Consultant hereby
accepts such arrangement and agrees to perform the Services on the terms set
forth herein. Consultant hereby acknowledges that Company desires Consultant
to perform the Services so that Company can take advantage of acquisition and
development opportunities, markets and market strategies in Southern California
which are now available or may become available in the future. Without
limiting the generality of the foregoing, Consultant shall seek out,
investigate and pursue residential development projects and present them to the
Company for its consideration and approval. Although the Company may seek
advice from Consultant in Company matters not related to the Services, the
parties acknowledge and agrees that Consultant has only been retained hereunder
to perform the Services, and not to act in any other capacity.
2. Independent Contractor. It is understood and agreed that in
performing the Services hereunder, Consultant is an independent contractor, and
not the employee, joint venturer, partner, agent, representative or broker of
or for the Company for any purpose whatsoever.
3. Nonexclusive Services. During the term of this Agreement,
Consultant will perform the Services in a commercially reasonable manner, and
utilize such means as Consultant deems reasonably necessary. Consultant shall
not be required to perform the Services on a full-time basis, and Company
acknowledges that its retention of Consultant hereunder is on a non-exclusive
basis. Notwithstanding the foregoing and any other provision to the contrary
herein, Company acknowledges that Consultant is itself in the land acquisition
and development business, and nothing herein shall restrict Consultant from
seeking out, investigating and otherwise pursuing projects and opportunities
for its own account. Nothing contained in this Agreement or in law shall be
construed to limit or restrict in any way the freedom of Consultant or its
respective partners, shareholders, affiliates or principals, to carry on their
own respective business activities. In this regard, and provided it does not
materially interfere with its performance under this Agreement, Consultant may,
during the term of this Agreement, render or other services to or for any other
person or entity.
4. Compensation. In full payment for all Services to be
performed by Consultant under this Agreement Consultant shall be entitled to
receive from Company, and Company shall issue to Consultant a warrant in the
form of Exhibit "A" attached hereto and incorporated herein by this reference
(the "Warrant"), to purchase up to two million (2,000,000) shares of common
stock in the Company, par value $.01 per share (the "Warrant Shares"), for the
price and on such terms as are set forth in the Warrant. Concurrently with the
execution of this Agreement, the Company shall provide to Consultant each of
the following items:
(a) The authorized and issued Warrant, representing the
Warrant Shares;
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(b) The resolution of each of the Board of Directors and
Shareholders of the Company (to the extent required) approving this Agreement
and the issuance of the Warrant and Warrant Shares on the terms set forth
herein and therein and authorizing the due execution of this Agreement on
behalf of the Company.
5. Director's Section. During the term of this Agreement,
Consultant shall be entitled to sit as a Director on the Company's Board of
Directors.
6. Term and Termination of Agreement. The term of this Agreement
shall be for two (2) years. This Agreement may be terminated after the
expiration of 180 days from the date hereof (the "Vesting Date") (a) if a party
has materially breached this Agreement and continues to do so after written
notice and the passage of a reasonable opportunity to cure; (b) without cause
on 30 days' prior written notice to the other party. Prior to the Vesting
Date, this Agreement may only be terminated if a party has materially breached
this Agreement and has been given sixty (60) days' prior written notice.
Notwithstanding the foregoing, the Warrant shall fully vest in Consultant on
the date of its issuance, and Consultant shall be entitled to exercise all of
its rights with respect to the Warrant Shares notwithstanding any termination
of this Agreement, subject to any conditions or limitations set forth in the
Warrant itself.
7. Representations and Warranties.
(a) By the Company. The Company represents and warrants
to the Consultant as follows:
(i) Organization and Standing. The Consultant is
a corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Delaware and is in good standing under the laws of said
state.
(ii) Corporate Power; Authorization. The
Consultant has all requisite legal and corporate power and has taken all
necessary corporate action to execute and deliver this Agreement, and to carry
out and perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms.
(iii) Non-Contravention. The execution and
delivery of this Agreement does not, and the performance of this Agreement by
the Company (including the issuance and delivery of the Warrant Shares) will
not materially conflict with, or result in a material breach or violation of
the terms, conditions or provisions of, or constitute a material default under,
or result in the creation or imposition of any material lien pursuant to the
terms of, the Certificate of Incorporation or Bylaws of the Company or any
statute, law, rule or regulation or any state or federal order, judgment or
decree or any indenture, mortgage, lease or other material agreement or
instrument to which the Company or any of its properties is subject.
(iv) Issuance and Delivery of the Warrant Shares.
The Warrant Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable. The issuance
and delivery of the Warrant Shares are not and will not be subject to
preemptive or any other similar rights of the stockholders of the Company or
any liens or encumbrances.
(v) Consent. All necessary consents,
authorizations and approvals of, and all necessary registrations and filings
with, any governmental or regulatory agency or body required in connection with
the issuance and delivery of the Warrant and the Warrant Shares by the Company
to the Consultant have been obtained or made.
(b) By the Consultant. The Consultant represents and
warrants to the Consultant as follows:
(i) Organization and Standing. The Consultant is
a corporation duly organized and validly existing under, and by virtue of, the
laws of the State of California and is in good standing as a domestic
corporation under the laws of said state.
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(ii) Corporate Power; Authorization. The
Consultant has all requisite legal and corporate power and has taken all
necessary corporate action to execute and deliver this Agreement, and to carry
out and perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Consultant,
enforceable in accordance with its terms.
(iii) Non-Contravention. The execution and
delivery of this Agreement does not, and the performance of this Agreement by
the Consultant (including the issuance and delivery of the Warrant Shares) will
not materially conflict with, or result in a material breach or violation of
the terms, conditions or provisions of, or constitute a material default under,
or result in the creation or imposition of any material lien pursuant to the
terms of, the Certificate of Incorporation or Bylaws of the Consultant or any
statute, law, rule or regulation or any state or federal order, judgment or
decree or any indenture, mortgage, lease or other material agreement or
instrument to which the Consultant or any of its properties is subject.
8. Meetings; Records. Consultant shall meet with and report to
the Company as often as is reasonably necessary in connection with the
performance of the Services (but not less often than once per month), and shall
maintain complete and accurate records relating to the Services, which records
shall at all times be the property of Company.
9. Expenses. Consultant shall be responsible for all of
Consultant's expenses related to the performance of the Services, including but
not limited to all compensation attributable to any agents or employees engaged
by Consultant to assist in the performance of the Services hereunder. Company
acknowledges that it is Consultant's intention to compensate such agents and
employees with Warrant Shares, and Company agrees to cooperate with Consultant
in this regard.
10. Hold Harmless. Consultant acknowledges and agrees that it
shall be solely liable for all claims, liabilities, damages and debts of any
type whatsoever that may arise on account of Consultant's activities, or those
of Consultant's agents or employees, in the performance of the Services.
Company shall exonerate, indemnify, defend and hold harmless Consultant and any
agent of Consultant against any claim, expense, loss, damage or liability
resulting from Consultant's good faith performance of the Services or otherwise
from the acts or omissions of Consultant, except where Consultant's gross
negligence or willful misconduct is the cause of such damage.
11. Confidentiality. In connection with the performance of the
Services, the Company will furnish to Consultant certain information regarding
the Company and its business and activities, most of which may be of a
confidential nature. Consultant hereby acknowledges and agrees with respect to
its treatment of such confidential information of the Company, as follows: for
the purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any and all
information with respect to the business operations, finances and plans of the
Company which Consultant has received from the Company or which will be
received on or after the date of this Agreement from the Company in connection
with the performance of the Services hereunder.
Consultant hereby agrees to maintain the confidentiality of the
Confidential Information and not to disclose it to anyone without the consent
of the Company, except for (a) disclosures to Consultant's partners, officers,
employees and advisors that Consultant believes have a need to know such
information in connection with the performance of the Services hereunder (it
being understood that Consultant will advise such officers, partners, employees
and advisors of the confidential nature of such information and shall instruct
them to treat such information confidentially), and (b) disclosures which may
be required by law. Upon the expiration or earlier termination of this
Agreement, Consultant shall upon request return to the Company or destroy all
written Confidential Information of the Company in its possession or in the
possession of advisors and any other written material in its possession which
embodies any Confidential Information of the Company, and shall not retain any
copies, extracts or other reproductions in whole or in part of such written
material.
The Company acknowledges that Consultant operates a residential land
acquisition and development company whose business is similar to or competitive
with the business of the Company. Subject to the Consultant's observance of
the confidentiality obligation set forth above, nothing in this Agreement shall
prevent the Consultant
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and Consultant's company (on its own, independent of the Company) from
pursuing, investing or evaluating a possible investment in, or entering into a
transaction for the acquisition, development and/or sale of residential land
and/or similar products.
For purposes of this Agreement, the term "Confidential Information"
does not include information which (1) is generally known to the public or in
the trade, or becomes so known other than as a result of breach of Consultant's
obligations under this Agreement, or (ii) is disclosed to the Consultant on a
nonconfidential basis by a person other than Company employees, agents or
advisors, provided that such person is not known by the Consultant to be in
violation of a confidentiality agreement with the Company in making such
disclosure.
Similarly, Consultant expects that the Company will maintain the
confidentiality of all Consultant Confidential Information (as defined below),
and the Company agrees to maintain the confidentiality of the Consultant
Confidential Information. "CONSULTANT CONFIDENTIAL INFORMATION" means any
information with respect to the business operations, finances, investment
objectives and plans of the Consultant. The Company's use and disclosure of
the Consultant Confidential Information shall be governed by the same
restrictions as are applicable to the Confidential Information under the
provisions of this Agreement.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
13. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way.
14. Integration. This Agreement contains the entire Agreement
among the parties and supersedes all prior and contemporaneous oral and written
agreements, understandings, and representations among the parties. No
amendments to this Agreement shall be binding unless executed in writing by all
of the parties.
15. Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute a waiver of any other provisions, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
16. Notices. Any notice required by this Agreement shall be
effective only if sent by certified or registered mail, return receipt
requested, postage prepaid, or by federal express or other recognized courier,
or by telecopy, as follows:
If to the Company: INCO Homes Corporation
0000 Xxxx Xxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxxxxxxx 00000
ATTENTION: Xxx X. Xxxxxx
Telecopy No: (000) 000-0000
With a copy to:
If to Consultant: Overland Company, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
ATTENTION: Xxxx X. Xxxx
Telecopy No: (000) 000-0000
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With a copy to: Xxx, Castle & Xxxxxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxx, Esq.
Telecopy No: (000) 000-0000
A notice shall be deemed given when received. Either party may, at any time,
change its address designated above by giving to the other party written notice
of the new address to be used for the purposes of this Section.
17. Assignability. Neither this Agreement nor any duties or
obligations hereunder shall be assignable by any party hereto without the prior
written consent of the other party. If Company shall at any time be merged or
consolidated into or with any other corporation, or if substantially all of the
assets of Company are transferred to another corporation or other entity, this
Agreement shall be binding upon any such successor.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
COMPANY: INCO HOMES CORPORATION, a Delaware
corporation
By:
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Its:
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CONSULTANT: OVERLAND COMPANY, INC., a California
corporation
By:
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Its:
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