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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) DECEMBER 31, 1996
--------------------------------
C. BREWER HOMES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-22948 99-0145055
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
90 WAIKO ROAD, WAILUKU, HAWAII 96793
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (808) 242-6833
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NOT APPLICABLE
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(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS.
On January 28, 1997, Seth A. Bakes became the President and Chief
Executive Officer and a member of the Board of Directors of C. Brewer Homes,
Inc. (the "Company"). Mr. Bakes assumed the operating responsibilities for
the Company and he is located at the Company's principal executive offices in
Wailuku, Hawaii. Previously, from August 1995 to January 1997, Mr. Bakes was
the Managing Director of KSW Del Amo Associates, a real estate partnership.
Prior to that, he was a Partner in Winger Development Company, a Southern
California real estate firm, and he has also held real estate, development,
marketing and finance positions with the Prudential Insurance Company of
America, Summa Corporation and Transpacific Development Company. Mr. Bakes
received an MBA from Dartmouth College in Hanover, New Hampshire in 1980.
Mr. Bakes replaced B. G. Moynahan, who resigned as President and
Chief Executive Officer and a member of the Board of Directors of the Company
effective December 31, 1996. J. W.A. Buyers, the Chairman of the Board of
the Company, served as acting Chief Executive Officer from December 31, 1996
until January 27, 1997. Mr. Moynahan left the services of the Company to
form a real estate development and management consulting firm.
In connection with Mr. Moynahan's resignation, the Company entered
into a Release and Separation Agreement with Mr. Moynahan, dated January 15,
1997 (the "Release and Separation Agreement"). The Release and Separation
Agreement provides that Mr. Moynahan will be paid a Consulting Fee in
accordance with the provisions of a Consultant Agreement in lieu of any
severance benefits and sets forth the terms and conditions of certain
benefits to be retained by Mr. Moynahan. In addition, the Release and
Separation Agreement provides for a mutual release of claims by both parties
other than claims arising out of any breach of the Release and Separation
Agreement.
The Consultant Agreement sets forth the terms and conditions upon
which Mr. Moynahan will serve as a consultant to the Company in an
independent contractor capacity until August 31, 1997. For the duration of
the Consultant Agreement, Mr. Moynahan will receive $20,833.33 per month
until a total fee of $173,076.92 has been paid, and if Mr. Moynahan spends
more than ten hours providing consulting services in any one month, he will
be paid an hourly rate to be mutually agreed upon by the Company and Mr.
Moynahan. Mr. Moynahan's options to purchase Class A Common Stock of the
Company will continue to vest until the termination of the Consultant
Agreement.
In addition, on January 1, 1997, Edward T. Foley, Senior Vice
President and Chief Financial Officer of the Company, was promoted to the
position of Executive Vice President and Chief Financial Officer.
2.
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EXHIBITS
EXHIBIT NO. EXHIBIT
10.54 Release and Separation Agreement, dated January 15, 1997, between
the Company and B.G. Moynahan.
10.55 Consultant Agreement, dated January 16th, 1997, between the Company
and B.G. Moynahan.
3.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: January 31, 1997
C. BREWER HOMES, INC.
By: /s/ EDWARD T. FOLEY
----------------------------------------------------
Name: Edward T. Foley
----------------------------------------------------
Title: Executive Vice President and Chief Financial Officer
----------------------------------------------------
4.
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JANUARY 15, 1997
RE: B. G. MOYNAHAN
RELEASE AND SEPARATION AGREEMENT
Dear Pete:
This is to confirm our discussions regarding the terms of your separation from
employment with C. Brewer Homes ("Company"). The Board certainly recognizes and
appreciates the contributions you have made to C. Brewer and C. Brewer Homes and
we wish you well in your future endeavors. To avoid any disputes or
misunderstandings which may arise from your employment and expiration of your
contract with the Company, and to protect the interests of both parties, we have
mutually agreed to the following terms:
1. LAST DAY OF ACTIVE SERVICE. Your last day of active service as President
and Chief Executive Officer with the Company will be December 31, 1996.
However, to assist with the transitional issues with a new Chief Executive
Officer, the Company will enter into a consulting agreement with you which
is attached as Exhibit A. Additionally, you and I will develop a mutually
agreeable reference statement which the Chairman and Board members will
utilize in the event of future reference calls from potential employers.
The separation will be characterized to the public as set forth in the
Press Release which was issued on December 27, 1996.
2. VACATION. Your vacation amount of $57,692.28 for your accrued vacation
through December 31, 1996 will be paid within seven (7) days of the
execution of this agreement. This amount represents four weeks of current
vacation, four weeks of accumulated vacation, and four weeks of carry
forward of unused vacation from 1996.
3. CONSIDERATION.
a. Consulting Fee - in lieu of severance benefits under any Company plan
or policy, you will be paid a Consulting Fee in accord with the
provisions of the Consulting Agreement (Exhibit A attached).
b. Outplacement and Business Development Expenses - You will receive up
to an additional $15,000 for approved outplacement and new business
development related expenses. Such expenses would include
outplacement counseling, travel to an interview site (travel expenses
to be consistent with the C. Brewer Homes Travel Expense Reimbursement
Policy) and communications expenses (such as telephone and fax
expense) and new business development and professional advisory
services. You will submit your expense reimbursement request to the
Company's Chief Financial Officer with appropriate documentation.
This provision is applicable through January 15, 1998 and your
entitlement to any unused funds shall thereafter lapse.
c. Secretarial Assistance - In addition to the outplacement and new
business development expense reimbursement, in order to assist you
with your initial outplacement and new business development
communications efforts, the Company will provide reasonable
secretarial assistance (for outplacement and new business development
related correspondence) for a six month period expiring July 15, 1997.
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4. PERFORMANCE OF DUTIES. Your duties, responsibilities and authority as
President and Chief Executive Officer of C. Brewer Homes will cease at
December 31, 1996. You will use your reasonable best efforts to coordinate
any steps necessary to effect a smooth transition.
5. RETURN OF PROPERTY. On or before January 31, 1997, you will turn over to
the Company our keys and other Company materials, records, supplies or
equipment you may have in your possession subject to an extension as
granted by the Company's Chief Financial Officer.
6. CONTINUATION OF HEALTH CARE BENEFITS. As part of the Consulting Agreement,
the Company will continue your present health care (medical and dental)
insurance coverage until December 31, 1999 or the date you secure
reasonably equivalent alternate coverage, whichever is earlier. The
Company will contribute the same premium share for this insurance coverage
as it would for an active salaried employee. You must contribute your
portion of the premium to be eligible for this provision. Commencing
January 1, 2000, if reasonably equivalent alternative coverage is not
available, you may elect to continue medical and/or dental coverage under
the Company's medical and dental plans, at your own expense for a period of
18 months.
7. DEFINED CONTRIBUTION BENEFITS. You will cease to be an eligible active
participant in the Company's Defined Contribution Plan after December 31,
1996. You will be eligible for any contributions under that plan for your
eligible service under the terms of that Plan.
8. DEFERRED COMPENSATION PAYOUT. Consultant shall be paid $33,607.03 in
deferred compensation within seven (7) days of the execution of this
agreement.
9. EXECUTIVE LIFE INSURANCE. This Company will make no further payment for
the coverage under that Plan after December 31, 1996. Since you own the
Policy you may continue it or terminate it according to the specific policy
provisions.
10. OTHER BENEFITS/STOCK OPTIONS.
a. Your coverage under the other insurance plans (group life, AD&D,
travel accident, etc.) will expire as of December 31, 1996. Some have
conversion features which will be communicated to you by the C. Brewer
Human Resources Department.
b. Tax preparation services for the year 1996 will be provided up to a
maximum cost of $2,500.
c. Any normal reimbursable business expense, as customarily determined
under the Company's expense reimbursement policy, incurred before
December 31, 1996, will be paid within fourteen days following the
receipt of the expense form by the Company.
d. Subject to the explicit terms of the C. Brewer Homes, Inc. 1993 Stock
Option/Stock Issuance Plan ("Plan") and your expiring Employment
Agreement, you may exercise any vested shares in accordance with the
Plan. Notwithstanding the foregoing, you shall receive the option for
82,500 shares which should have been issued on December 14, 1995 for
which you shall be twenty (20%) vested as of December 14,
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1996 and everything else in connection with this stock option issuance
shall be in accordance with the Plan. In the event you exercise any
of the above options and you sell the shares associated with such
options, you agree to market those shares in a reasonable and orderly
manner.
11. RELEASE OF CLAIMS. In consideration of the above paragraphs, you hereby
release the Company and its directors, officers, employees, and agents from
any and all claims (including, but not limited to, claims for personal
injury, distress, breach of contract or for violation of Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990,
the Hawaii Civil Rights Commission Act, and the Hawaii Employment Practices
Law, H.R.S. Chapter 378) you now have, known or unknown, arising out of
your employment with or separation from employment with the Company. This
Release of Claims by the you does not apply to any claims which may arise
because of breach of this agreement.
In consideration for the covenants and understandings herein, the Company
releases you from any and all claims the Company may have, known or
unknown, against you arising out of your employment with or separation from
employment with the Company. This Release of Claims by the Company does
not apply to any claims which may arise because of breach of this
agreement.
12. CONFIDENTIALITY. You agree to refrain from disclosing to the general
public any confidential information about the Company which you acquired
while an employee of the Company.
13. DEFENSE OF CLAIMS. You and the Company expressly understand and
acknowledge that this Agreement may be pleaded as a defense to, and may be
used as the basis for an injunction against any action, suit,
administrative or other proceedings which may be instituted, prosecuted or
attempted as a result of an alleged breach of this Agreement by either
party, or arising out of your employment or separation from the Company.
14. ARBITRATION. You and the Company expressly understand and agree that any
disputes arising out of (1) the terms and conditions of this Agreement; (2)
your employment or separation of employment with the Company; or (3) any
claims which either party contends are not waived and released by the
operation of paragraph 11 above shall be subject, absent settlement by the
parties, to final and binding arbitration in accordance with the Model
Employment Arbitration Procedures of the American Arbitration Association.
The Arbitrator, who shall be domiciled in Hawaii, shall be required to
abide by the provisions of this Agreement and the policies and practices of
the Employer in force as of December 31, 1996, and the Arbitrator shall not
modify or alter those provisions and policies.
In arbitrations under this Agreement, each party shall bear the costs, fees
and expenses of presenting its own case, and half of the Arbitrator's fees
and administrative expenses, unless otherwise ordered by the Arbitrator.
15. NONADMISSIONS CLAUSE. It is understood and agreed by the parties hereto
that this Agreement sets forth the terms of your separation from the
Company and that nothing contained herein shall be construed in any other
manner.
16. ENTIRE AGREEMENT. This Agreement contains the entire understanding of you
and the Company, and fully supersedes any and all prior agreements,
negotiations or understandings pertaining to the subject matter of this
Agreement. Each of the parties hereto acknowledges that no party or agent
of
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any party has made any promise, representation or warranty whatsoever,
either express or implied, not contained in this Agreement concerning the
subject matter hereof to induce any other party to execute this Agreement,
and each of the parties hereto acknowledge that it has not executed this
Agreement, in reliance of any such promises, representations or warranties
not specifically contained in this Agreement.
17. REVIEW AND AGREEMENT. We will provide you ample time and opportunity to
consider the terms of this Agreement and to consult with an attorney if you
choose to do so. If you agree to all the provisions of this Agreement,
please return the executed original of this Agreement to me. You shall
have twenty-one (21) days from the date you receive this letter within
which to sign this Agreement. You shall have seven (7) days from the date
you sign the Agreement within to revoke your signature.
18. COOPERATION. All Parties agree to cooperate fully and execute any and all
supplementary documents and to take all additional actions which may be
necessary or appropriate to give full force and effect to the basic terms
and intent of this Agreement.
C. Brewer Homes, Inc.
By /s/J. W.A. Buyers, Chairman
---------------------------
J. W.A. Buyers, Chairman
Date: 01/15/97
--------------------------
Agreed and Accepted
/s/B. G. Moynahan
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B. G. Moynahan
Date: 01/16/97
----------------
4
<PAGE>
CONSULTANT AGREEMENT
BETWEEN
C. BREWER HOMES, INC.
AND
B. G. MOYNAHAN
DATED: JANUARY 16, 1997
<PAGE>
TABLE OF CONTENTS
Page No.
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.0 Appointment and Encouragement as
Independent Contractor. . . . . . . . . . . . . . . . . . 1
Section 2.0 Term of Agreement. . . . . . . . . . . . . . . . . . . . . 1
Section 3.0 Description of Work. . . . . . . . . . . . . . . . . . . . 1
Section 4.0 Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 5.0 Relationship of the Parties. . . . . . . . . . . . . . . . 1
Section 6.0 Termination. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6.1 Death of Consultant. . . . . . . . . . . . . . . . . . . . 2
Section 7.0 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 8.0 Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 9.0 Indemnification. . . . . . . . . . . . . . . . . . . . . . 2
Section 10.0 Confidentiality . . . . . . . . . . . . . . . . . . . . . 2
Section 11.0 Personal Representatives,
Successors and Assigns. . . . . . . . . . . . . . . . . . 3
Section 12.0 Severability. . . . . . . . . . . . . . . . . . . . . . . 3
Section 13.0 Situs and Governing Law . . . . . . . . . . . . . . . . . 3
Section 14.0 Entire Agreement. . . . . . . . . . . . . . . . . . . . . 3
Section 15.0 Cooperation . . . . . . . . . . . . . . . . . . . . . . . 3
Section 16.0 Arbitration . . . . . . . . . . . . . . . . . . . . . . . 3
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
EXHIBIT "A" Services
EXHIBIT "B" Fees and Medical Reimbursement
<PAGE>
CONSULTANT AGREEMENT
THIS AGREEMENT made this 16th day of January, 1997 and effective as
of the 1ST day of January, 1997 (hereinafter the "Effective Date"), by and
between Brendan G. Moynahan (hereinafter referred to as "Consultant") and C.
Brewer Homes, Inc. (hereinafter referred to as "Company").
W I T N E S S E T H:
WHEREAS, Company desires to retain Consultant as an independent
contractor to provide certain services with respect to the matters outlined
herein;
WHEREAS, Consultant desires to provide said services with respect to
the matters outlined herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
Section 1.0 APPOINTMENT AND ENGAGEMENT AS INDEPENDENT CONTRACTOR.
Company agrees to engage Consultant as an independent contractor to provide
services in connection with the matters described in Section 3.0 herein.
Consultant agrees to properly perform its obligations as provided herein all in
accordance with the terms, provisions, covenants and conditions set forth
herein.
Section 2.0 TERM OF AGREEMENT. The term of this Agreement shall
commence on the Effective Date and shall continue, except as specified under
Section 4.0 below, through August 31, 1997.
Section 3.0 DESCRIPTION OF WORK. Consultant shall perform the
services described in Exhibit "A-1" attached hereto and made a part hereof by
this reference. Consultant's principal contact at Company shall be the
Company's Chief Financial Officer or such other representative designated by
him/her.
Section 4.0 FEE AND MEDICAL/DENTAL BENEFITS. Company shall pay
Consultant a total fee and provide such medical and dental benefits as shown on
Exhibit "B-1" attached hereto and made a part hereof by this reference. The
payment and provision of medical and dental benefits provided in this Agreement
shall constitute the entire compensation to be paid to Consultant by the Company
for those benefits and Consultant shall be solely responsible for all costs
incurred in its performance of services hereunder, except as otherwise provided
herein.
Section 5.0 RELATIONSHIP OF THE PARTIES. The parties to this
Agreement intend and hereby agree that the Consultant shall be an independent
contractor and he shall have control and discretion with respect to the
performance of his obligation hereunder and shall have the authority and control
over the manner and details of the work which is to be performed hereunder.
Consultant shall be solely responsible for the use, discipline and supervision
of Consultant's
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employees, if any, and for providing all tools, texts, equipment or supplies
generally used by Consultant in its business. Consultant shall be responsible
for complying with all applicable federal, state and local laws regarding the
operation of Consultant's business or employment of employees, including but not
limited to federal, state and local taxes and general excise. Nothing contained
herein shall be construed to create any employment, partnership, joint venture
or co-ownership relationship between the parties hereto. Company and Consultant
shall not be responsible for any liabilities or obligations incurred or created
by other party except as specifically agreed to in writing. Consultant shall
have no authority to execute any document in the name or on behalf of Company,
enter into any oral or written commitments involving Company or otherwise
obligate Company in any manner whatsoever.
Section 6.0 TERMINATION OF THIS AGREEMENT. In the event that
Consultant shall be in substantial breach of any of the terms of this Agreement
or the Release and Settlement Agreement, Company may upon written notice
terminate this Agreement. Upon such termination, Consultant nonetheless shall
be entitled to the balance of all fees due hereunder without reduction together
with the medical and dental benefits as provided for herein unless pursuant to
arbitration as hereinafter provided it is determined that the Consultant was in
substantial breach of the terms of this Agreement. Any disputes arising out of
this Section 6.0 concerning whether the Consultant has substantially breached
this Agreement, shall be resolved pursuant to the arbitration provision set
forth in Section 16.0 below; provided, however, that any arbitration under this
Section 6.0 only, the Company must establish the substantial breach under the
burden of proof of clear and convincing evidence.
Section 6.1 DEATH OF CONSULTANT. This Agreement shall automatically
terminate upon the death of Consultant. Company shall pay to the legal
representative of Consultant's estate the balance of all fees due hereunder
without reduction.
Section 7.0 ASSIGNMENT. Consultant shall not assign or otherwise
transfer in any manner its interest in or obligations under this Agreement.
Section 8.0 NON-WAIVER. It is expressly understood and agreed that
the failure of Company to insist in any one or more instances upon strict
performance of any of the terms and conditions of this Agreement, or to exercise
any rights herein conferred, shall not be deemed a waiver or relinquishment of
any Company's right to assert or rely upon such terms, conditions, or rights in
any other instance.
Section 9.0 INDEMNIFICATION. Consultant shall indemnify, defend and
hold harmless Company and its respective officers, agreements, employees,
successors and assigns from and against any and all claims, losses, costs,
causes of action, damages and expenses of any nature, including reasonable
attorneys' fees, arising out of any negligence, gross negligence or willful and
wanton conduct by Consultant or its employees or any technician or subconsultant
hired by it.
Section 10.0 CONFIDENTIALITY. At all times during the term of this
Agreement and thereafter, Consultant will hold in strictest confidence, and not
disclose to any person, firm or corporation, any confidential information,
manner of doing business, techniques, process, trade secret, or any other
confidential matter relating to the business of C. Brewer Homes, or its
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divisions, subsidiaries and affiliates which Consultant may now know or may
learn while performing hereunder or which is developed hereunder for C. Brewer
Homes and its divisions, affiliates and subsidiaries by Consultant
("Confidential Information").
At the time of the termination of this Agreement, Consultant will deliver to
Company, and will not keep in his possession nor deliver to any person, any and
all documents containing Confidential Information.
Section 11. PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their personal representatives, successors and assigns.
Section 12.0. SEVERABILITY. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
Section 13.0. SITUS AND GOVERNING LAW. This Agreement shall be
construed and enforced in accordance with the laws of the State of Hawaii.
Section 14.0. ENTIRE AGREEMENT. This Agreement represents the entire
Agreement between the parties with respect to the subject matter hereof, and
supersedes any prior negotiation, agreements and understandings with respect
thereto. No change or modification of this Agreement shall be enforceable
against any party unless the same be in writing and signed by the party against
whom enforcement is sought.
Section 15.0. COOPERATION. All Parties agree to cooperate fully and
execute any and all supplementary documents and to take all additional actions
which may be necessary or appropriate to give full force and effect to the basic
terms and intent of this Agreement.
Section 16.0. ARBITRATION. You and the Company expressly understand
and agree that any disputes arising out of the terms and conditions of this
Agreement shall be subject, absent settlement by the parties, to final and
binding arbitration in accordance with the Model Employment Arbitration
Procedures of the American Arbitration Association.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the
day and year first above written.
Approved as to form: C. Brewer Homes, Inc.
/s/Barry W. Marr By /s/J. W.A. Buyers
- ------------------------ -------------------------------------
Barry W. Marr J. W.A. Buyers, Chairman
Attorney for C. Brewer
Homes, Inc. Date: 01/15/97
----------------------
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Approved as to form:
/s/Richard J. Kowen /s/B. G. Moynahan
- ------------------------ -------------------------------------
Richard J. Kowen B. G. Moynahan
Attorney for B. G. Moynahan Date: 01/16/97
------------------------
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Consultant Agreement
Exhibit A-1
Description of Work
Consultant will be reasonably available to:
a. Respond to the inquiries regarding historical events, practices,
procedures, and policies for C. Brewer Homes and its predecessor company
which occurred or were utilized during the Consultant's previous
employment;
b. Assist the Board of Directors and the new Chief Executive Officer and Chief
Financial Officer with any transitional issues; and
c. Other projects as mutually agreed upon in advance and in writing.
Such consultation will normally be rendered via telephone discussion, but the
Consultant will be available to meet at mutually agreed upon times and places as
reasonably necessary, with any required and reasonable travel, telephone, or
other expenses to be reimbursed by the Company.
5
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Exhibit B-1
Fees and Medical Expense Reimbursement
FEES
For the duration of the Consultant Agreement, Consultant will receive $20,833.33
per month until a total fee of $173,076.92 has been paid. If Consultant
provides more than ten (10) hours of consulting time in a month, Consultant will
be paid at an hourly rate to be mutually agreed upon by the Company and
Consultant. All Consultant fees will be payable in advance on the first of
every month except that the fee for January, 1997 shall be paid on the earlier
of January 15, 1997 or the execution of this Agreement.
MEDICAL AND DENTAL EXPENSE REIMBURSEMENT
For up to three (3) years following the Effective Date of the Consultant
Agreement, Consultant will be eligible for medical and dental plan coverage and
BeneFlex credit allowance under the same general terms, including plan
provisions and premium sharing, as the Company's active salaried employees.
Such premium sharing will be in addition to Consultant's monthly fees as
described above and will be deducted in advance from the monthly consulting
fees. Notwithstanding the above, at such time that Consultant obtains
reasonably equivalent alternative health coverage under another plan, coverage
under this Consulting Agreement will cease. Commencing January 1, 2000, if
reasonably equivalent alternative coverage is not available, you may elect to
continue medical and/or dental coverage under the Company's medical and dental
plans, at your own expense for a period of 18 months.
6
