CONSULTING AGREEMENT
Exhibit
99.2
THIS CONSULTING
AGREEMENT (“Agreement”) is
made to be effective as of April 1, 2009 (“Effective Date”)
by and between CENTEX HOMES
(“Centex”), a Nevada general partnership with its principal place of
business at 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, and Xxxxxxx Consulting
Group, Ltd., a California corporation (“Consultant”), with
offices at 00 Xxxxxx Xxxxx Xxxxx, Xxxxx,
Xxxxxxxxxx 00000.
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1.
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TERM
OF THIS AGREEMENT
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The term of this Agreement will begin on April 1, 2009 and
terminate on April 1, 2010, subject to earlier termination as set forth in Section
7 hereof.
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2.
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SERVICES
AND WORK PRODUCT
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Centex hereby engages Consultant to provide consulting
services (“Services”) and
any related work product and deliverables (“Work Product”),
as specified in the Scope of Services (“Scope of
Services”) attached hereto as EXHIBIT A. Consultant
agrees that said Services and Work Product will be of good quality, performed in
a professional and workmanlike manner, and shall be free of
defects. Without limiting the provisions in Section
4 of this Agreement, Consultant and its officers and
employees shall abide by all Centex visitor safety and security policies in
performing the Services when visiting Centex’s facilities. Consultant
represents that Consultant has sufficient skills, knowledge and experience to
perform the Services without training or supervision by
Centex. Centex and Consultant anticipate that Services to be
performed by Xxxxx X. Xxxxxxx, as an officer or employee of Consultant, will
occupy less than 33⅓% of the average time that Xx. Xxxxxxx performed services
for Centex Homes or its affiliates in the thirty-six (36) months prior to the
commencement of the term of this Agreement.
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3.
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INVOICES
AND PAYMENT
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3.1.
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In
consideration of the performance of the Services, Centex will compensate
Consultant (a) at the
rate of $300.00 per hour, in an amount not to exceed $2,400.00 per day,
but (b) for the
first nine (9) weeks of this Agreement, at the rate of $4,000.00 per week
(pro-rated for any partial week). Centex and Consultant will,
where practicable, establish fixed fees for specific aspects of the
Services in lieu of the hourly/daily rate structure. Centex and
Consultant expressly agree that the number of hours of Services to be
performed by Xx. Xxxxxxx under this Agreement shall not equal or exceed
33⅓ of the average time that Xx. Xxxxxxx performed Services for Centex or
its affiliates in the thirty-six (36) months prior to the commencement of
the term of this Agreement.
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3.2.
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Where
the Services or Work Product are performed on a fixed rate, Consultant
will invoice Centex upon delivery of the Work Product (if applicable) or
upon achievement of the Service to be provided. Where the
Service or Work Product is performed on an hourly rate with caps, or a
weekly rate, Consultant will xxxx Centex monthly for the Services and any
reimbursable expenses incurred during the invoice
period. Invoices must show detail that is reasonably
satisfactory to Centex. To be reimbursable, expenses must have
been approved in advance by Xxxxx Xxxxxxx, Executive Vice President ─
Operations Support, and receipts must be attached to the
invoices. Invoices must be submitted to the address in the
first paragraph above to the attention of Xxxxx
Xxxxxxx.
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3.3.
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Centex
will pay invoices within 30 days after
receipt.
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4.
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INDEPENDENT
CONTRACTOR STATUS
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4.1.
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Notwithstanding
anything to the contrary in this Agreement, express or implied, the status
of Consultant’s Services shall be those of an independent contractor, and
Consultant will not be regarded as, nor shall Consultant or any of its
directors, officers or employees hold themselves out to be, an agent,
representative, officer or employee of Centex or any of its affiliates for
any purpose. Neither Consultant nor its directors, officers or
employees are authorized to make any contractual commitments on Centex’s
behalf. The relationship between Consultant and Centex is
limited to the Services to be performed under this Agreement, and for only
the time required to perform the Services within the required
timeframes. Consultant agrees never to assert, contend, or
otherwise take the position before any court, administrative agency, or
governmental entity that Consultant (or any of Consultant’s directors,
officers, employees or workers) is an employee or agent of Centex or that
the relationship between Consultant (or any of Consultant’s directors,
officers, employees or workers) and Centex is anything other than an
independent contractor. This is a non-exclusive arrangement,
and, subject to Section 4.3 below, either party is free to contract with
others for similar or related services. As an independent contractor,
Consultant shall obtain or provide, at Consultant’s expense, an
automobile, telephone, and access to a computer device capable of
receiving electronic mail, as and to the extent such may be required for
Consultant to perform the Services.
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4.2.
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Centex
is not entitled to and will not direct, supervise, or exercise control
over Consultant (or its directors, officers, employees or workers) in the
performance of the Services, and nothing in this Agreement shall at any
time be construed to create an employment, partnership, principal and
agent, or joint venture relationship between Centex and Consultant or its
representatives. Subject to the requirements of this Agreement,
including timeframes, Consultant shall choose which of its officers or
employees, if any, performs the Services (if applicable), when Services
are performed, and where Services are
performed.
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4.3.
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Consultant
may apportion time between the provision of the Services and other
endeavors in any manner, and shall not be obligated to adhere to any work
schedule or job location except to the extent necessary to perform the
Services, but Consultant shall cause an officer or employee to appear in
person when given reasonable advance notice. To protect
Centex’s legitimate business interests, Consultant agrees that, during the
term of this Agreement, neither Consultant nor its directors and officers,
including Xx. Xxxxxxx, may provide services for the benefit of Consultant
or any third party that may be in competition with Centex without its
prior written consent. Consultant and Centex agree that the
homebuilding competitors are (1) XX Xxxxxx, Inc., Pulte Homes Inc., Lennar
Corporation, NVR, Inc., KB Home, Hovnanian Enterprises, Inc., The Xxxxxx
Group, Inc., and Beazer Homes USA, Inc. (and their successors by merger or
consolidation, if applicable), and (2) the top four (by revenue)
regional/specialty homebuilders with operations in California not listed
in clause (1).
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4.4.
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Consultant
acknowledges and agrees that Consultant is solely responsible for
complying with obligations imposed upon Consultant as an independent
contractor by all applicable Federal, state, or local laws, rules, and
regulations relating to the performance of the Services and payment of the
fees, including but not limited to those relating to the reporting of, and
paying when due, all income and other taxes, including estimated taxes,
and the filing of all returns and reports required by applicable
law. Without limiting the foregoing, Contractor agrees to pay
all Federal, state and local taxes arising from the performance of
Services hereunder, including Consultant’s income taxes, employment,
social security, occupational and unemployment taxes and, as applicable,
the payroll and other taxes of any individuals that Contractor engages to
enable Contractor to perform the Services. Consultant
agrees to indemnify,
defend and hold harmless
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Centex,
and its parents, subsidiaries, and affiliates and all of their directors,
officers, employees, and agents, from and against, any and all losses,
damages, costs, penalties, liabilities and expenses, including but not
limited to court costs, attorneys' fees, taxes and interest, arising out
of or incident to any Federal, state or local taxes, income withholding
taxes, social security taxes, unemployment insurance taxes or any other
similar sums relating to, based upon or arising out of Contractor’s
association with Centex. Unless not required under
applicable law, as determined in Centex’s judgment, Centex will provide an
IRS Form 1099 to Consultant for amounts paid to Consultant for the
Services during each tax year. Centex shall not be responsible
for deducting and withholding any tax or other amount from the fees
payable hereunder nor shall Centex be liable for any Federal, state or
local taxes relating to, based upon or arising out of Consultant’s
association with Centex, including but not limited to income tax
withholding, social security tax, unemployment tax or any other similar
sums. Consultant will supply Centex with its Employer
Identification Number, which shall not be a social security number, on an
IRS Form W-9 or other approved
form.
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4.5.
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Consultant
acknowledges and agrees that Consultant (and its directors, officers,
employees and workers) is not eligible for, and hereby waives the right to
participate in, any benefit plans, programs, policies or arrangements
provided by Centex to its employees, including, without limitation (a)
fringe benefits such as paid vacation and sick leave; (b) qualified and
nonqualified retirement benefits; (c) welfare benefits such as health,
life and disability benefits; and (d) stock option and incentive
plans.
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4.6.
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Where
Consultant engages officers, employee, workers or subcontractors to
perform the Services, Consultant agrees to hire only those persons legally
eligible for employment in the United States to perform
them. Consultant agrees to comply with all I-9 requirements for
any person engaged to perform Services under this Agreement and to
indemnify and defend Centex (and its parents, subsidiaries, and affiliates
and all of their directors, officers, employees, and agents) from any
claims that allege Consultant failed to properly engage only legal
workers.
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4.7.
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Consultant
will provide Consultant’s own business cards indicating Consultant’s trade
name (and the name and title of its officers and employees, as applicable)
and appropriate telephone contact numbers. Such business cards
may not refer to Centex or contain a Centex telephone number or other
Centex contact information.
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5.
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INTELLECTUAL
PROPERTY RIGHTS
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All
Work Product shall be the exclusive property of Centex. Accordingly,
Consultant agrees to grant and hereby grants to Centex all right, title and
interest in and to the Work Product, including all rights to copyrights and
other intellectual property, together with any applications and registrations
that may issue thereon.
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6.
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CONFIDENTIAL
INFORMATION
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6.1.
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Consultant
and its directors, officers, employees and workers will maintain in strict
confidence all Confidential Information. “Confidential
Information” means all information and/or materials concerning Centex, its
parent, affiliates and/or subsidiaries, including, without limitation,
oral, electronic and written information that (a) Centex has by its
policies or otherwise indicated should be kept confidential, (b) should
reasonably be deemed confidential by Consultant, or (c) if disclosed could
be injurious to Centex, its parent, affiliates and/or
subsidiaries. All Confidential Information will remain the sole
and exclusive property of Centex.
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6.2.
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Consultant
and its directors, officers, employees and workers shall not use
Confidential Information for any personal or professional purpose except
as provided in this Agreement. Consultant and its directors,
officers, employees and workers will not disclose any Confidential
Information to any other person or entity without the prior written
consent of Centex or unless required by law. If Consultant
receives a subpoena or other validly issued administrative or judicial
process requesting Confidential Information, Consultant will promptly
notify Centex of such receipt and may comply with such subpoena or process
to the extent permitted by law. Centex acknowledges that
information that is generally known in the homebuilding industry is not
Confidential Information.
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6.3.
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Consultant
shall return or destroy any Confidential Information in Consultant’s
possession upon the earlier of Centex’s request or the termination of this
Agreement.
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7.
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TERMINATION
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Either
party may terminate this Agreement by giving two weeks’ advance written notice
to the other party. Centex will pay all fees owed to Consultant for
Services rendered and all reimbursable expenses incurred before the termination
date. Centex will not be obligated to pay any other fees or
compensation to Consultant. After termination, neither party shall
have any further obligation to the other party hereunder, except that Consultant
will continue to be subject to Sections
5, 6, 8, and
9 of this Agreement and Centex will continue to be
subject to Section
8.2 of this Agreement.
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8.
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INDEMNIFICATION
AND INSURANCE REQUIREMENTS
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8.1.
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Consultant
represents and warrants that prior to performing Services under this
Agreement, Consultant has obtained workers’ compensation insurance
coverings its employees and workers that protects Centex, its parents,
subsidiaries, and affiliates and all of their directors, officers,
employees, and agents from claims for injuries sustained by employees and
workers that Consultant engages to perform any part of the Services or
preparation of the Work Product, except to the extent that doing so
conflicts with the applicable law of the jurisdiction where the Services
will be performed or the Work Product will be prepared. In
addition, if in the judgment of Centex the applicable law of the
jurisdiction where the Services will be performed or the Work Product will
be prepared requires that Centex concurrently maintain workers’
compensation insurance on Consultant and those persons contracted by
Consultant to perform the Services and Work Product, then Consultant
agrees that Centex may procure such workers’ compensation insurance and
invoice Consultant for the costs of procurement of such
insurance. Consultant is advised and realizes that pursuant to
state law, the workers’ compensation insurance carrier for Centex may not
be liable to pay benefits because of Consultant’s independent contractor
status, or it may be only secondarily liable, and that Consultant’s own
workers’ compensation policy may be primarily liable for payment of
benefits. Except for Xxxxx X. Xxxxxxx, before beginning to
perform the Services, Consultant agrees to notify Centex in writing of the
identity of each and every person Consultant has engaged or will engage to
perform the Services. If any change is made to the identity of
the person(s) engaged to perform the Services, Consultant agrees to
provide advance written notice to
Centex.
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8.2.
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Centex
will indemnify, defend and hold harmless Consultant from and against any
and all losses, damages and claims for damages, costs, penalties,
liabilities and expenses, including but not limited to court costs,
attorneys' fees, and interest, arising from the Services provided by
Consultant as a result of the acts or omissions of (1) Centex or its
directors, officers, employees and agents (but not Consultant) or (2)
Consultant, except to the extent that (a) such claims arose as a result of
Consultant’s gross negligence of willful misconduct, or (b) with
respect
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to
any criminal action or proceeding, Consultant’s conduct was unlawful or
Consultant’s alleged action(s) giving rise to the alleged claims(s) were
outside the Scope of Services. The parties expressly agree that
the indemnification provided under this Section 8.2 includes claims of
Consultant’s negligence or alleged negligence. This provision will
survive the termination of this
Agreement.
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8.3.
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Notwithstanding
the provisions of Section 8.2 above, if a court of competent jurisdiction,
arbitrator or other trier of fact determines that Consultant or its
directors, officers, employees, or agents have been grossly negligent or
have undertaken willful misconduct in connection with the performance of
the Services, then Consultant shall pay or reimburse Centex or its
subsidiaries or affiliates or insurance carriers or their respective
directors, officers, employees and agents, as applicable, for the portion
of (a) all legal fees, expenses, court and other defense costs incurred by
Centex, both for itself and on behalf of Consultant, and (b) all fines,
judgments, damages, penalties and other expenses incurred by Centex, that
Consultant’s (or its directors, officers, employees, or agents) determined
culpability (as compared to Centex’s culpability) bears to
100%. Centex will have no obligation to pay any punitive
damages or other special damages assessed against Consultant as a result
of Consultant’s gross negligence or willful misconduct, which are
Consultant’s responsibility. This
provision will survive the termination of this
Agreement.
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8.4.
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Consultant
warrants and represents that it has secured commercial general liability
insurance coverage and automobile coverage on any vehicle driven in the
performance of the Services to guard against any and all potentially
foreseeable liability to third parties in the performance of the
Services. Consultant agrees to add Centex as an additional
insured on this policy. Consultant agrees to maintain any insurance
coverage required by this section at all times, and shall provide to
Centex upon its requests certificates evidencing such insurance
coverage. Consultant further agrees that it shall notify
Centex, in writing, not less than 30 days prior to any material change,
reduction in coverage, cancellation, non-renewal, or termination of
coverage.
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9.
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ARBITRATION
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9.1.
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Consultant
and Centex hereby agree to submit to final and binding arbitration any
controversy or claim that Consultant has or may have against Centex, or
Centex has or may have against Consultant, under this Agreement, including
any disputes relating to or in connection with this
Agreement. The arbitration shall be conducted by a single
arbitrator to be agreed upon by the parties. The arbitration
will be in accordance with the Commercial Arbitration Rules of the
American Arbitration Association but need not be administered by the
American Arbitration Association unless agreed to by the parties or unless
the parties are unable to agree on an arbitrator. The
arbitrator is not authorized to issue a decision or award that a court of
applicable jurisdiction could not legally award under applicable state or
federal laws.
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9.2.
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Centex
and Consultant agree that the arbitrator’s award may be enforced by
judgment in accordance with the Federal Arbitration
Act. Disputes over whether a decision exceeds the authority of
the arbitrator(s) will be decided by summary judgment proceedings in a
court of competent jurisdiction. The parties agree to bear
their own costs and attorneys’ fees in any action, unless a statute or the
common law provides otherwise.
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9.3.
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In the event the arbitration requirement set out in
this Section 9 is held to be unenforceable, then in lieu of arbitration
the parties agree as follows: Any
dispute between them resulting in litigation will be decided by a judge
without a jury, and each party mutually waives any right it may have to a
trial before a
jury.
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10.
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NOTICES
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All
notices and payments under this Agreement shall be given or made to the address
of the party set forth in the first paragraph above, or to another address
provided by the party in accordance with this paragraph. Any notice
must be in writing and given by hand delivery, fax, overnight delivery service
or certified mail. Notice given in person or by fax will be effective
when received or successfully transmitted. Notice given by overnight
delivery service will be effective on the first business day following its
deposit with the delivery service. Notice sent by certified mail will
be effective three days after mailing if properly addressed with postage
prepaid.
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11.
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MISCELLANEOUS
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11.1.
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The
terms of this Agreement are contractual in nature and not merely recitals,
and will be governed and construed in accordance with the laws of the
State of Texas excluding its conflict of laws principles that would
require the application of the law of any other state. Should
any part of this Agreement be determined by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, such part will not
affect the Agreement’s other terms or provisions, or the whole of this
Agreement, and any illegal, invalid, or unenforceable part will be deemed
not to be a part of this Agreement.
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11.2.
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This
Agreement and the Scope of Services constitute the entire understanding
between Consultant and Centex, and supersede all prior agreements,
arrangements, representations and communications (whether oral or written)
regarding the subject matter of this Agreement. This Agreement
may only be amended by a written instrument signed by the
parties.
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11.3.
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Consultant
may not assign its rights or obligations under this
Agreement.
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11.4.
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Subject to Section 11.3 above, this Agreement shall be for the benefit
of and shall be binding upon the parties hereto and their respective
heirs, legal representatives, successors and assigns. This
Agreement is not intended to, and does not, confer upon any person other
than the parties (and in the case of Centex, its subsidiaries and
affiliates) any rights or
remedies.
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[Signatures
on following page]
6
Executed
by the parties as of the dates set forth below their signatures to be effective
on the Effective Date.
| CONSULTANT: |
CENTEX
HOMES,
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| a Nevada general partnership | ||||||
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| Xxxxxxx Consulting Group, Ltd., |
By:
Centex Real Estate Estate Corporation, a Nevada
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| a California corporation | corporation, its managing partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxx |
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By:
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/s/ Xxxxxx
X. Xxxxx
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| Name: Xxxxx X. Xxxxxxx |
Xxxxxx
X. Xxxxx
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| Title: President |
Senior
Vice President – Human Resources
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| Date: | April 1, 2009 | Date: | April 1, 2009 | |||
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EXHIBIT A
Scope
of Services
Consultant
will provide the following Services and Work Product upon request:
Services and
Work Product
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1.
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General
consulting on land development, land acquisition, land assets, and joint
ventures upon request
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2.
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Prepare
and submit to SMT weekly written reports outlining the status of, and
providing strategy recommendations for, projects upon
request
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3.
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Meet
with or respond to EVP and DP inquiries upon
request
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4.
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Other
matters agreed from time to time
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Consultant
and Centex will establish a timetable and deliverables for each aspect of the
Services.
Xxxxx
Xxxxxxx, Executive Vice President ─
Operations Support, will provide Consultant with any necessary clarification of
the Services and/or Work Product.
Exhibit A
