CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered
into as of August 1, 2002, by and between Xxxxxxx X.
Xxxxxxxx ("Consultant") and Cadiz Inc., a Delaware
corporation ("Cadiz").
WHEREAS, Consultant desires to provide to Cadiz, and
Cadiz desires to obtain from Consultant, consulting services
relating to the business operations of Cadiz;
NOW, THEREFORE, the parties agree as follows:
1. TERM. Cadiz hereby engages Consultant to provide
consulting services to Cadiz, and Consultant accepts such
engagement, for a term of two (2) years (the "Term")
commencing as of the date of this Agreement (the
"Commencement Date").
2. DUTIES. During the Term, Consultant shall serve
as a Consultant to Cadiz. Consultant shall render advisory
and consulting services to Cadiz of the type customarily
performed by persons serving in similar limited consulting
capacities, consistent with the knowledge and experience
possessed by Consultant. The Consultant's services shall
include assisting Cadiz with the implementation of the Cadiz
water program and other Cadiz water related matters and, in
particular, providing advice and assistance to Cadiz
management, Cadiz counsel and outside counsel regarding
water strategy, the handling and settlement of litigation,
and MWD and third party contract negotiations, as well as
providing such other advice and assistance as the Board of
Directors or the Chief Executive Officer of Cadiz may
reasonably request. Consultant shall be granted such title
as the Board of Directors of Cadiz may designate, subject to
acceptance of such title by Consultant. Consultant shall
also, if invited, serve as a member of the Board of
Directors of Cadiz as provided in Section 6 below, subject
to acceptance of such position by Consultant. For purposes
of performing consulting services for Cadiz, Cadiz shall
make available to Consultant office space at the offices of
Cadiz in Santa Monica, California, or at such other location
or locations as Cadiz and Consultant may agree.
3. NECESSARY SERVICES.
a. PERFORMANCE OF DUTIES. Consultant shall
perform his duties in a diligent and reasonable manner
consistent with professional standards in the field.
b. HOURS OF SERVICE. The parties acknowledge and
agree that Consultant's fulfillment of his obligations to
Cadiz hereunder will require Consultant's services for
approximately one-half of Consultant's available working
hours per week.
c. NON-EXCLUSIVEDUTIES. Nothing in this
Agreement shall preclude Consultant from acting as a
consultant to or employee of any other business or entity,
except that:
(i) Consultant may not engage in any
activity which materially detracts from the performance of
Consultant's duties hereunder; and
(ii) Consultant may not render any services
to, or engage in any activity for, another entity in any
capacity whatsoever (whether as an owner, employee,
independent contractor or otherwise) which is in any way
competitive with the business, as then being conducted, of
Cadiz or any affiliate of Cadiz; provided, however, that
Cadiz acknowledges that Consultant is providing and may
continue to provide services on a priority basis to Kaiser
Ventures LLC ("Xxxxxx") as Chairman and CEO of Kaiser. Cadiz
acknowledges that it has been advised by Consultant of
Consultant's obligations and duties to Kaiser and further
acknowledges that at present and as currently contemplated
Consultant's duties to Kaiser do not interfere with
Consultant's obligations to Cadiz as contemplated by this
Agreement. Notwithstanding the foregoing, Cadiz and
Consultant agree in the event that in the judgment of either
Cadiz or Consultant the provision of Consultant's duties to
Kaiser interfere with Consultant's obligations to Cadiz
under this Agreement, then Cadiz and Consultant shall
negotiate in good faith adjustments to this Agreement as
necessary to preserve, to the extent possible, the intent
and purpose of this Agreement.
4. COMPENSATION. In consideration of the services to
be provided by Consultant pursuant to this Agreement, Cadiz
shall pay compensation to Consultant as follows:
a. BASE CASH COMPENSATION. Base cash
compensation of $150,000 annually, payable in equal monthly
installments. Cadiz may make payment of cash compensation
to Consultant in advance as a retainer to be applied against
50% of next succeeding monthly installments of base
compensation until fully utilized. In the event of a
termination of this Agreement pursuant to subparagraphs (i)
or (iii) of paragraph 9(a) below at a time when any portion
of a retainer remains outstanding and unutilized, Consultant
agrees to make repayment of any such unutilized amount to
Cadiz within 20 calendar days of termination. In addition,
should counsel to Cadiz determine that an outstanding
advance payment of cash compensation to a director or
executive officer of Cadiz would violate the provisions of
the Xxxxxxxx-Xxxxx Act of 2002, then Consultant agrees to
make repayment of any unutilized amount of such retainer to
Cadiz immediately prior to (and as a condition to) any
future appointment of Consultant as a director or executive
officer of Cadiz. The retainer payment shall be subject to
such further confirming documentation as may be mutually
agreed upon between Cadiz and Consultant. The parties agree
that the retainer payment may be subject to repayment and/or
termination upon the satisfaction by Cadiz of certain
financial milestones to be agreed upon by Cadiz and
Consultant from time to time. .
b. ADDITIONAL CASH COMPENSATION. In light of
Consultant's status as an independent contractor to Cadiz,
the parties acknowledge that no payroll or employment taxes
of any kind shall be withheld or paid by Cadiz with respect
to payments to Consultant during the Term, and that Cadiz
shall make no additional benefits available to Consultant.
Nevertheless, Cadiz shall pay to Consultant, with each
payment of base cash compensation, additional cash
compensation in an amount equal to 8% of the amount of such
payment of base cash compensation. Such additional payment
is intended to be paid in lieu of the aggregate amount of
payroll and/or employment taxes and benefits (including, but
not limited to, FICA, federal personal income tax
withholding, state income tax withholding, state
unemployment insurance tax, Medicare withholding, disability
insurance and 401(k) or similar retirement contributions)
that would be paid by Cadiz on behalf of an executive
employee of Cadiz receiving equivalent base cash
compensation as set forth in subsection (a) above.
c. EQUITY-BASED COMPENSATION. Consultant
acknowledges and agrees that Cadiz contemplates the
adoption, following the execution of this Agreement, of a
new compensation plan or program for senior management (the
"Compensation Plan"). Cadiz agrees that following adoption
of the Compensation Plan Consultant shall be invited to
participate in the Compensation Plan. Consultant's
participation in the Compensation Plan shall be negotiated
between Consultant and Cadiz in good faith at a level
consistent with that of a member of senior management with
comparable duties and responsibilities. Cadiz and Consultant
acknowledge and agree that the receipt by Consultant of
equity-based compensation under the Compensation Plan in
form and amount satisfactory to Consultant is an integral
part of the compensation to be received by Consultant for
services to be performed under this Agreement. Accordingly,
should Consultant not, within one hundred twenty (120) days
of the effective date of this Agreement, be offered equity
based compensation pursuant to the Compensation Plan which
Consultant deems satisfactory in Consultant's sole and
absolute discretion, then Consultant shall have the right to
terminate this Agreement pursuant to Section 9(a)(v) below.
d. BONUS COMPENSATION. Following the conclusion
of each fiscal year during the term of this Agreement, the
Board shall make a good faith evaluation of the performance
of Consultant during such year, on the basis of which
Consultant shall receive a bonus in an amount to be
determined at the discretion of the Board. Such evaluation
shall be conducted, and the bonus amount determined, in a
manner consistent with that which would be utilized by the
Board in establishing a discretionary bonus for a member of
senior management with comparable duties and
responsibilities.
e. PAYMENT OF TAXES. Consultant acknowledges and
agrees that Consultant is obligated to report as income all
compensation received by Consultant pursuant to this
Agreement and Consultant acknowledges the obligation to pay
all self-employment tax and other taxes thereon and that he
will not be eligible for any employee benefits. Consultant
further agrees to indemnify Cadiz and hold it harmless to
the extent of any obligation imposed on Cadiz: (i) to pay
withholding taxes or similar items; or (ii) resulting from
Consultant's being determined not to be an independent
contractor. As may be appropriate, Cadiz shall report the
payments made hereunder by (a) filing the appropriate 1099
forms and (b) making any other reports required by law.
5. REIMBURSEMENT OF EXPENSES. Cadiz will reimburse
Consultant during both the Term for any appropriately
documented, reasonable and necessary travel and other
business expenses incurred by Consultant in the course of
providing services pursuant to this Agreement, including for
airline travel between Consultant's home in Colorado and
Cadiz's offices as requested by Cadiz or as otherwise
necessary or appropriate for the performance of Consultant's
duties hereunder, and for meals, transportation and lodging
related thereto. Notwithstanding the foregoing, for as long
as Consultant continues to provide services for Kaiser,
Cadiz shall be responsible for only one-half of the cost of
airline transportation between Colorado and Southern
California and for one-half of the cost of a rental car for
ground transportation while Consultant is in Southern
California. Consultant confirms and agrees that he will only
seek reimbursement for the foregoing reasonable and
necessary expenses consistent with the foregoing terms and
consistent with Cadiz's expense reimbursement policies and
procedures.
6. MEMBERSHIP ON THE BOARD OF DIRECTORS. In
connection with Consultant's continuing service to Cadiz,
the Board of Directors of Cadiz anticipates that it shall
invite Consultant to serve as a member of the Board of
Directors of Cadiz to serve until Cadiz's next Annual Meeting
of Stockholders or until his successor is elected and
qualified. In addition, Cadiz may invite Consultant from
time to time to serve as a director of one or more
subsidiaries of Cadiz. Nothing in this Agreement shall be
construed to grant Consultant the right to continue to serve
as a director of Cadiz or any of its subsidiaries. Should
Consultant accept the position of director of Cadiz and/or
its subsidiaries, Consultant shall not while this Agreement
is in effect be entitled to separate compensation for his
services as a director of Cadiz or its subsidiaries.
Upon termination of this Agreement, Consultant agrees
to provide a letter of resignation from the Board of
Directors of Cadiz and/or any subsidiaries thereof
effective, in each case, upon such termination, unless
Cadiz, acting through its Board of Directors, requests in
writing that Consultant withdraw such resignation and
Consultant agrees in writing to withdraw such resignation
prior to the termination of this Agreement.
7. INDEPENDENT CONTRACTOR. Cadiz and Consultant agree
that the relationship among the parties shall be that of
independent contractor. Cadiz and Consultant acknowledge
that during the term of this Agreement, Consultant will not
be acting as an officer or employee of Cadiz (although
Consultant shall serve, if invited, as a director of Cadiz
as provided in Section 6 hereof). However, in his role as
Consultant, Consultant is not, and will not, be responsible
for any management decisions on behalf of Cadiz, and may not
commit Cadiz to any action. Consultant understands and
acknowledges that this Agreement shall not create or imply
any agency relationship among the parties, and Consultant
will not commit Cadiz in any manner except when a commitment
has been specifically authorized in writing by Cadiz or to
the extent Consultant is acting in his authorized capacity
as director.
8. CONFIDENTIALITY AND TRADE SECRETS. For purposes of
this Section 8, the term "Cadiz" shall collectively refer to
Cadiz and any affiliate thereof.
a. CONFIDENTIAL INFORMATION. Consultant shall
keep in strictest confidence all information relating to the
business, affairs, customers and suppliers of Cadiz
(collectively hereinafter referred to as "Trade Secrets")
which Consultant may acquire during the performance of
services and duties hereunder and which is not otherwise
generally known to the public. During the term of this
Agreement, and at all times thereafter, Consultant shall not
publish, communicate, divulge, disclose or use, whether or
not for its own benefit, any such information without the
prior written consent of Cadiz.
b. ONGOING OBLIGATION. The provisions in this
Section 8 shall be binding during the term of this Agreement
and at all times thereafter, regardless of the circumstances
or reasons for termination of this Agreement. In the event
the provisions in this Section 8 are more restrictive than
permitted by the laws of the jurisdiction in which
enforcement of this provision is sought, such provisions
shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which
it may be enforceable.
9. TERMINATION.
a. TERMINATION EVENTS. Notwithstanding the
provisions of Section l above, this Agreement shall
terminate:
i. At the election of Cadiz, upon the death
or permanent disability of Consultant, "permanent
disability" being defined as any continuous loss of one-half
('is) or more of the time spent by Cadiz in the usual weekly
performance of his duties as a result of physical or mental
illness for a continuous period in excess of ninety (90)
days.
ii. At the election of Cadiz, at such time,
if any, as Cadiz ceases to conduct business for any reason
whatsoever.
iii. At the election of the Cadiz, upon
the breach by, Consultant of any term or condition of this
Agreement or upon the dismissal of Consultant by Cadiz for
cause. For purposes of this Agreement, Cadiz shall have
"cause" to terminate Consultant's employment if he (1)
engages in one or more acts constituting a felony; (2)
engages in one or more acts involving fraud or serious moral
turpitude; (3) misappropriates Cadiz assets or engages in
gross misconduct materially injurious to Cadiz or its
affiliates or subsidiaries; or (4) willfully fails to comply
with the written instructions of the Board of Directors or
Chief Executive Officer of Cadiz.
iv. At the election of Consultant, upon a
breach by Cadiz of this Agreement.
v. At the election of Consultant, in the
event that Consultant shall not, within one hundred twenty
(120) days of the effective date of this Agreement, have
been offered equity based compensation pursuant to the
Compensation Plan which Consultant deems satisfactory in
Consultant's sole and absolute discretion, as further
described in Section 4(c) above.
b. PAYMENTS FOLLOWING TERMINATION. Following
termination of this Agreement for any reason other than
pursuant to Section 9(a)(iv) above, Cadiz shall have no
obligation to make payments to, or bestow benefits upon,
Consultant after the date of termination (otherwise than as
required by law), except for theretofore accrued and unpaid
compensation under Section 4; provided, however, that the
termination of this Agreement shall not affect the right of
Consultant to exercise any rights to purchase or otherwise
acquire securities of the Cadiz which may have vested in
full prior to the date of termination.
c. RETURN OF COMPANY'S PROPERTY. If this
Agreement is terminated for any reason, Cadiz may, at its
option, require Consultant to vacate his offices prior to
the effective date of a termination and to cease all
activities on Cadiz's behalf. Consultant agrees that on the
termination of this Agreement in any manner, he will
immediately deliver to Cadiz all notebooks, brochures,
documents, memoranda, reports, files, books, correspondence,
customer lists, or other written or graphical records, and
the like, relating to the business or work of Cadiz, which
are or have been in his possession or under his control and
which have not been returned to the Cadiz. Consultant hereby
expressly acknowledges that all such materials referenced
above are the property of Cadiz.
d. PUBLIC IDENTIFICATION. If this Agreement is
terminated for any reason, Consultant shall immediately and
forever thereafter cease to hold himself out to any person,
firm, partnership, corporation or other entity as an
independent contractor or representative of Cadiz or of any
entity owned by, or affiliated with, Cadiz.
10. CONFLICTING OBLIGATIONS. Consultant certifies that
Consultant has no outstanding agreement or obligation that
is in conflict with any of the provisions of this Agreement,
or that would preclude Consultant from fully complying with
the provisions hereof, and further certifies that Consultant
will not enter into any such conflicting agreement during
the term of this Agreement.
11. INJUNCTIVE RELIEF. Consultant acknowledges that a
breach by Consultant of the provisions of Sections 3(c) and
8 of this Agreement will cause Cadiz irreparable injury. It
is, therefore, expressly acknowledged that the provisions of
Sections 3(c) and 8 may be enforced by injunction and other
equitable remedies, without bond. Such relief shall not be
exclusive, but shall be in addition to any other rights or
remedies Cadiz may have for such breach.
12. LITIGATION AND ATTORNEYS FEES. In the event of any
litigation between the parties hereto in connection with
this Agreement or to enforce any provision or right
hereunder, the unsuccessful party to such litigation shall
pay to the successful party therein all costs and expenses,
including but not limited to reasonable attorneys' fees
incurred therein by such successful party, which costs,
expenses and attorneys' fees shall be included as a part of
any judgment rendered in such action in addition to any
other relief to which the successful party may be entitled.
13. ADDITIONAL ACKNOWLEDGMENTS.
a. Consultant understands that the terms of this
Agreement may be required to be disclosed in, or filed as an
exhibit to, Cadiz' annual proxy statement or other reports
filed publicly with the U.S. Securities and Exchange
Commission.
b. Consultant acknowledges and agrees that
Consultant has fully read and understands this Agreement,
has been advised to and has been given the opportunity to
consult with his attorney concerning this Agreement, has had
any questions regarding its effect or the meaning of its
terms answered to Consultant's satisfaction and, intending
to be legally bound hereby, has freely and voluntarily
executed this Agreement.
x. Xxxxx and Consultant acknowledge and agree
that Consultant is serving as a consultant to Cadiz at the
request of Cadiz and as such Consultant is to be deemed an
"Agent" of Cadiz for purposes of the indemnity provisions
set forth in Article VI of the Bylaws of Cadiz. Accordingly,
Consultant shall be entitled to indemnification from Cadiz
to the full extent to which an Agent is entitled to
indemnification pursuant to the provisions of Article VI of
the Bylaws of Cadiz.
x. Xxxxx and Consultant acknowledge and agree
that upon the receipt by Consultant of equity-based
compensation under the Compensation Plan in form and amount
satisfactory to Consultant pursuant to Section 4(c) above or
otherwise prior to the expiration of the term of this
Agreement, it may be beneficial to the parties to engage
Consultant as an employee of Cadiz, rather than as a
Consultant to Cadiz. Each party agrees to enter into good
faith discussions concerning such a change in status at the
request of the other and, if such a change is agreed upon,
to enter into a new agreement (or modification of this
Agreement) setting forth the terms and conditions of such
employment; provided, however that neither party shall have
an obligation to agree to a change in status if such a
change would result in a diminution in the benefits of such
party or an increase in the obligations of such party as
otherwise provided for in this Agreement.
14. GENERAL PROVISIONS.
a. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
successors and assigns. However, neither party may assign or
delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto.
b. This Agreement is the entire agreement
between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral and written
agreements and negotiations between the parties.
c. The headings of the several paragraphs in
this Agreement are inserted solely for the convenience of
the parties and are not a part of and are not intended to
govern, limit or aid in the construction of any term or
provision hereof.
d. This Agreement may not be modified except by
a written instrument signed by all parties hereto.
e. All clauses and covenants contained in this
Agreement are severable, and in the event any of them shall
be held to be invalid by any court, such clauses or
covenants shall be limited as permitted under applicable
law, or, if the same are not susceptible to such limitation,
this Agreement shall be interpreted as if such invalid
clauses or covenants were not contained herein.
f. This Agreement is made with reference to the
laws of the State of
California and shall be governed by and construed in
accordance therewith. Any litigation concerning or to
enforce the provisions of this Agreement shall be brought in
the courts of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
Cadiz:
Cadiz Inc.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxx
Chief Executive Office
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxxx
Chair, Compensation Committee
Consultant
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
EXTENSION
OF
CONSULTING AGREEMENT
This Extension of Consulting Agreement ("Extension") is
entered into as of the 1st day of January, 2004, by and
between Xxxxxxx X. Xxxxxxxx ("Consultant") and Cadiz Inc., a
Delaware corporation ("Cadiz").
Whereas, Consultant and Cadiz entered into a Consulting
Agreement dated August, 2002:
Whereas, Consultant and Cadiz have continued such agreement
by Extension dated June 1, 2003 and desire to continue said
consulting agreement again:
Now therefore, the parties agree as follows:
1. Term, Duties and Necessary Services. These provisions
shall remain unchanged from the original agreement provided,
however, in addtion, Consultant agrees to serve as an
officer or member of the Board of Managers of any Cadiz
subsidiaries as determined from time to time by Cadiz.
2. Compensation. On the effective date of this
agreement, Consultant shall be paid a monthly amount equal
to $20833 payable on the 20th day of each month, beginning
January 20, 2004, and will continue on a month to month
basis until terminated by either party. The parties
acknowledge that Consultant shall not be paid benefits or
participate in any Cadiz benefit plans.
3. Current Equity Grant. The Parties acknowledge that
Consultant was included in the most recent equity grant set
forth in Board resolutions attached.
4. Future Equity Participation. The Parties acknowledge
that Consultant is eligible to participate as a member of
the key management team in any further equity grants
considered by the compensation committee of the Board of
Cadiz.
5. Original Contract. All other provisions of the
original Consulting Agreement, where not inconsistent with
this Extension, shall remain in full force and effect.
In Witness Whereof, the parties hereto have executed this
Agreement as of the date first above written.
Cadiz Inc.
/s/ Xxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx, Chairman and CEO
Consultant
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
