CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of October, 1995,
by and between Willamette Industries, Inc., an Oregon corporation
("Corporation"), and Xxxxxxx Xxxxxxxxx ("Xxxxxxxxx").
WHEREAS, Swindells has served as an executive officer of
Corporation for many years and is now its Chairman of the Board and Chief
Executive Officer and has knowledge and experience of significant value to
Corporation; and
WHEREAS, in order to provide for an orderly management succession
it is presently contemplated that Swindells will retire as Chairman and Chief
Executive Officer of Corporation, effective October 1, 1995; and
WHEREAS, Corporation wishes to avail itself of Swindells'
experience and knowledge following Swindells' retirement as an employee of
Corporation by retaining Swindells to provide consulting services to
Corporation with respect to the business of Corporation; and
WHEREAS, Swindells desires to perform such services;
NOW, THEREFORE, in consideration of the foregoing, and of the
mutual agreements herein contained, Swindells and Corporation agree as
follows:
1. Consulting Services.
(a) Term of Service. Corporation hereby agrees that it will
engage Swindells, and Swindells agrees that he will serve, as a consultant to
Corporation for a period (the "Term") commencing on October 1, 1995, and
ending on September 30, 1997, or earlier in the event of death or disability
of Swindells. Swindells will be deemed disabled only if, on the basis of
medical evidence acceptable to the Board of Directors of Corporation,
Swindells has a physical or mental condition resulting from unavoidable
impairment of mind or body which can be expected to result in death or to be
of long-continued and indefinite duration and which, in the discretion of the
Board of Directors of Corporation, prevents Swindells from engaging in any
employment or occupation for remuneration or profit. Following September 30,
1997, the Term will extend on a month-to-month basis until terminated by
Corporation or Swindells upon 30 days' notice or until the death or disability
of Swindells, but in any event, not beyond the retirement of Swindells from
the Board of Directors of Corporation.
(b) Nature of Consulting Services. To the extent reasonably
requested by Corporation, Swindells shall consult with and advise Corporation
with respect to acquisitions and strategic planning, capital expenditures,
product development and general corporate and organizational matters. The
Corporation shall not direct the manner or means by which Swindells performs
services under this Agreement. The consulting services shall be provided in
Portland, Oregon at times determined by Swindells except as the parties may
otherwise agree. Corporation shall provide Swindells with adequate
information and resources to allow Swindells to perform effectively the
services contemplated by this Agreement.
(c) Nature of Relationship. For all purposes, including that
of determining Swindells' eligibility for participation in Corporation's
employee benefit plans, Swindells' relationship to Corporation during the Term
shall be that of an independent contractor and not an employee.
2. Agreement Not to Compete. Swindells hereby agrees that,
during the Term, he will not, directly or indirectly, either as principal,
agent, stockholder, employee or in any other capacity, without the prior
approval of the Board of Directors of Corporation, engage in any activity or
be employed by, assist or have an equity interest in, any business or other
entity that competes in any material respect with Corporation; provided,
however, that such prohibited activity shall not include the ownership of
one percent (1%) or less of the voting securities of any publicly traded
corporation regardless of the business of such corporation. Swindells
acknowledges and agrees that a material breach by Swindells of the provisions
of this Section will constitute such damage as will be irreparable and the
exact amount of which will be impossible to ascertain and for that reason
agrees that Corporation will be entitled to an injunction to be issued by any
court of competent jurisdiction restraining and enjoining Swindells from
violating the provisions of this Section. The right of injunction shall be in
addition to and not in lieu of any other remedy available to Corporation for
such breach or threatened breach, including the recovery of damages from
Swindells.
3. Confidential Information. Swindells shall continue to hold
confidential for the benefit of Corporation all secret or confidential
information, knowledge or data relating to Corporation that shall have been
obtained by Swindells during his employment by Corporation or during the Term
and that shall not have become public knowledge.
4. Fees for Services. In consideration of the consulting
services to be performed by Swindells hereunder and for the covenants of
Swindells contained herein, Corporation shall pay Swindells consulting fees at
the rate of $10,000 per month during the Term. The obligation of Corporation
to make the foregoing payments to Swindells shall terminate upon the death or
disability of Swindells except with regard to accrued and unpaid amounts.
While receiving fees for services under this Agreement, Swindells shall not
receive annual retainer payments made to non-employee directors of the
Corporation, but shall receive fees for board and committee meetings attended
and all other amounts payable to non-employee directors of Corporation.
5. Other Matters. During the Term, Corporation shall provide
Swindells with the following:
(a) Expenses. Reimbursement for all reasonable travel and
other business expenses incurred by Swindells in the performance of his duties
hereunder;
(b) Office Space; Secretary. Office space, together with the
services of a secretary, appropriate to the status of Swindells hereunder; and
(c) Club Expenses. Dues, fees and expenses for the following
clubs: Arlington Club.
(d) Parking in the building in which Swindells' office is
located.
6. Scope of Agreement. Nothing in this Agreement shall limit
such rights as Swindells may have under any other agreements with Corporation.
Amounts which are vested benefits or which Swindells is otherwise entitled to
receive under any plan or program of Corporation shall be payable in
accordance with such plan or program.
7. Indemnification. Corporation shall indemnify Swindells and
his legal representatives to the fullest extent permitted by the laws of the
state of Oregon, the Articles of Incorporation, or the Bylaws of Corporation
as in effect as of the date of this Agreement and from time to time thereafter
against all claims, loss, damages, costs, charges and expenses whatsoever
incurred or sustained by him or his legal representatives in connection with
any action, suit or proceeding to which he or his legal representatives may be
made a party by reason of the services performed by Swindells pursuant to this
Agreement. Corporation will, upon request by Swindells, promptly advance or
pay any amounts for costs, charges or expenses (including, but not limited to,
reasonable legal fees and expenses incurred by counsel retained by Swindells)
in respect of his right to indemnification hereunder, subject to a later
determination as to Swindells' ultimate right to receive such payment.
Swindells' rights under this Agreement shall be in addition to, and not in
lieu of, any other rights Swindells may have to indemnification by
Corporation.
8. Successors. This Agreement is personal to Swindells and
without the prior written consent of Corporation shall not be assignable by
Swindells. This Agreement shall inure to the benefit of and be binding upon
Corporation and its successors.
Corporation will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business of Corporation to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Corporation would be
required to perform it if no such succession had taken place.
9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Oregon, without
reference to principles of conflict of laws.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other party or
by certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Swindells:
Xx. Xxxxxxx Xxxxxxxxx
0000 X.X. Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxx 00000
If to Corporation:
Willamette Industries, Inc.
3800 First Interstate Tower
0000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Corporate Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee or three days following mailing, as
provided above, whichever shall first occur.
(c) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) Withholding. Corporation may withhold from any amounts
payable under this Agreement such amounts as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) Entire Agreement; Amendment. This Agreement contains the
entire understanding of Corporation and Swindells with respect to the subject
matter hereof, and may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
IN WITNESS WHEREOF, Swindells has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, Corporation has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
WILLAMETTE INDUSTRIES, INC.
By /s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, President
