Exhibit 10.30
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 18th day
of October, 1999, by and between Xxxxxx X. Xxxxxx ("Consultant"), having a
current address at 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and whose Social
Security Number is ###-##-####, and Ball Corporation ("Ball"), having a current
address at 00 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
WITNESSETH
WHEREAS, Consultant is employed by Ball as President and Chief
Operating Officer; and
WHEREAS, Consultant has expertness in the global packaging industry and
business in general and has been intimately involved in all of Ball's businesses
and their objectives and strategies; and
WHEREAS, Consultant has provided Ball with notice of his intent to
terminate his employment by voluntarily retiring on December 31, 1999; and
WHEREAS, Consultant and Ball have entered into this Agreement for the
purpose of facilitating an independent contractor consulting arrangement and
guaranteeing that Consultant will not participate in certain businesses related
to Ball.
NOW, THEREFORE, IN CONSIDERATION of the covenants hereinafter contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged by Consultant, the parties agree as follows:
1. Consulting Period. Effective upon Consultant's termination of employment,
("Effective Date") he shall become an independent contractor consultant to
Ball. During the period beginning the Effective Date and ending on
December 31, 2002, ("Consulting Period"), Consultant will provide
consulting services as outlined on Attachment A for Ball, its subsidiaries,
affiliates, joint venture companies, operations and divisions. References
to "Ball" shall hereafter include Ball Corporation, its subsidiaries,
affiliates, joint venture companies, operations, divisions and assigns.
During the Consulting Period, Consultant agrees to provide as an
independent contractor and not as an employee of Ball, consulting services
for up to one hundred twenty (120) hours per calendar quarter between the
Effective Date and December 31, 2000, eighty (80) hours per calendar
quarter during 2001 and sixty (60) hours per calendar quarter during 2002
("Anticipated Consulting Hours"). Consultant's consulting services will be
provided upon notice by Xxxxxx X. Xxxxxx, Chairman of the Board and Chief
Executive Officer or R. Xxxxx Xxxxxx, Vice Chairman, President and Chief
Financial Officer, or their successor(s). Consultant will be paid
Thirty-seven Thousand Five Hundred Dollars ($37,500) per calendar quarter
between the Effective Date and December 31, 2000, Twenty-five Thousand
Dollars ($25,000) per calendar quarter during 2001 and Eighteen Thousand
Seven Hundred Fifty Dollars ($18,750) per calendar quarter during 2002
payable in arrears beginning on the tenth day of the month following the
end of the first calendar quarter of the consultancy, and on the tenth day
of the month following the end of each calendar quarter thereafter until
the last payment is made on January 10, 2003, ("Fixed Consulting Amount").
If the Consulting Period begins on a day earlier than the first day of
January, 2000, the Fixed Consulting Amount during the calendar quarter
shall be prorated according to the number of days remaining in the calendar
quarter.
In the event Consultant is requested to and agrees to perform services in
excess of the Anticipated Consulting Hours per calendar quarter, Consultant
shall be entitled to Two Thousand Five Hundred Dollars ($2,500.00) per day
or for services of less than a day Three Hundred Twelve Dollars and Fifty
Cents ($312.50) per hour for such services requested and performed each
calendar quarter in excess of the Anticipated Consulting Hours. Services
requested and performed in less than one (1) hour increments shall be
prorated. All of the above variable consulting amounts shall be referred to
as ("Variable Consulting Amount(s)"). Ball shall have the option of either
paying the Variable Consulting Amounts, or reducing the Anticipated
Consulting Hours the Consultant is obligated to perform in any of the
subsequent calendar quarters during the Consulting Period by the same
amount. The reduced required hours shall become the Anticipated Consulting
Hours for such quarter.
For such services requested by Ball in excess of the Anticipated Consulting
Hours per calendar quarter, Consultant shall maintain accurate books and
records of services or work performed. Ball may examine or audit any such
records in determining the accuracy of Consultant's xxxxxxxx for consulting
fees.
Travel time by Consultant at the request of Ball to perform services for
Ball shall be computed as time worked on behalf of Ball up to four (4)
hours for trips within the United States, Canada and Mexico ("North
America") and eight (8) hours for trips outside North America.
2. Billing. Consultant shall not be required to invoice Ball for the Fixed
Consulting Amount. Consultant shall be required to invoice Ball, for its
approval, for Variable Consulting Amounts and the expenses incurred by
Consultant in the performance of his consulting services generally,
including as appropriate pursuant to Ball's Travel Policy, transportation,
lodging, meals and incidental expenses. Consultant must obtain Ball's
approval before incurring any expenses. Expenses incurred must be supported
by copies of airline tickets, hotel bills and restaurant receipts. Single
items of expense, including taxi fares, of $25 or more, must be supported
by appropriate receipts. Invoices including Variable Consulting Amounts
must include the services performed, including the date and hours worked to
exceed the Anticipated Consulting Hours and reach the amounts due for the
Variable Consulting Amounts. Ball may withhold exercise of its options with
respect to Variable Consulting Amounts, including, but not limited to,
payment of Variable Consulting Amounts, and reimbursement for any expenses
not supported in accordance with the requirements of this Agreement. Should
Ball require any of the consulting services be performed at Ball's offices,
Ball will provide office space and secretarial service at no cost to
Consultant.
3. Duties. Consultant shall have a duty of loyalty to Ball. Consultant agrees
to perform his consulting services promptly with care, skill and diligence.
Consultant understands that Ball will be relying upon the accuracy,
competence and completeness of Consultant's services. Without waiving his
rights to enforce the specific provisions of this Agreement, Consultant
shall not disparage or criticize, orally or in writing, Ball, or its
subsidiaries or affiliates, or their officers, directors or employees to
any third party, except and to the extent that his testimony is compelled
by judicial or administrative process. Without waiving its right to enforce
the specific provisions of this Agreement, Ball and its officers and
directors shall not disparage or criticize, orally or in writing,
Consultant to any third party, except and to the extent that their
testimony is compelled by judicial and administrative process.
4. Independent Contractor. During the Consulting Period, Consultant shall
operate as an independent contractor and shall not act or be an agent or
employee of Ball. All of Consultant's activities will be at his own risk
and Consultant shall not be entitled to workers' compensation or similar
benefits or other employee benefit protection provided by Ball. As an
independent contractor Consultant will be solely responsible for
determining the means and methods for providing consulting services
described herein. Consultant will determine the time, the place and the
manner in which to accomplish his services within an overall schedule date
established by Ball. Ball will receive only the results of the consulting
services.
5. Indemnity. Consultant shall indemnify and hold harmless Ball from any and
all claims, actions, causes of action, suits, judgments, including costs
and attorney's fees, associated with Consultant's failure to comply with
applicable requirements regarding workers' compensation coverage liability
for himself, his employees, his agents or subcontractors or the employees
of his agents or subcontractors. Consultant is not entitled to unemployment
insurance benefits, unless unemployment compensation coverage is provided
by Consultant or by an entity other than Ball. Consultant is solely
responsible for reporting his income and for paying Federal and State
Income Tax and any other applicable tax on any monies paid by Ball to
Consultant pursuant to this Agreement.
6. Participation in Other Businesses. Until December 31, 2002, Consultant
shall not, directly or indirectly, and in any role whatsoever, offer, sell,
advise, or provide any consulting or other services of any type to any
person or entity which Ball deems to be its supplier, competitor or
customer in the packaging businesses. In addition, Consultant shall not,
directly or indirectly, as an employee or otherwise, compete with Ball, in
the manufacture, sale or development of packaging products and services
until December 31, 2002. Packaging businesses and packaging products and
services include, without limitation: rigid food, beer, beverage and still
drink containers, including the ends therefor, such as metal, plastic and
glass containers. In addition to any other remedies Ball may have under
this Agreement, Consultant agrees that: (a) Ball shall have no obligation
to make payments for consulting services if Consultant breaches or violates
or threatens to breach or violate this Section 6 of the Agreement; and
(b) Consultant shall repay to Ball any monies paid under this Agreement
from the time of any breach or violation of this Section 6 of this
Agreement.
7. Nondisclosure of Data. Consultant agrees that, unless he first secures
Ball's written consent, he will keep confidential and will not divulge,
communicate, disclose, copy, destroy or use at any time, any secret or
confidential information or technology (including matters of a technical
nature, such as know-how, formulae, secret processes or machines,
inventions, discoveries, improvements, secret data, and research projects,
and matters of a business nature, such as information about costs, profits,
markets, sales, lists of customers, business objectives and strategies,
including but not limited to strategic and operating plans, possible or
consummated acquisitions, divestitures, strategic alliances and joint
ventures, and any other information of a similar nature to the extent not
available to the public) of Ball or third parties to whom Ball has
obligations of confidence of which he became informed during, or as a
result of, his employment or consulting with Ball. Consultant further
agrees to abide by the terms of the Employee Proprietary Information
Agreements executed by him periodically as part of his employment and
recertified in 1998.
8. Return of Materials. Consultant agrees to return to Ball upon request, but
in any event no later than termination of Consultant's consulting services,
any: secret or confidential information referred to in 7 above; manuals;
documents; drawings; equipment; vendor, customer or other third party
materials, computerized or hard copy files; computer hardware and software;
identification cards; credit cards; keys and other Ball property.
9. Ownership of Work. Ball shall own any concept, product or process,
patentable or otherwise, furnished to Ball by Consultant, or otherwise
conceived or developed by Consultant arising out of the performance of this
Agreement. Consultant agrees to do all things necessary, at Ball's request
and at its sole cost and expense, to obtain patents or copyrights on any
processes, products or writings conceived, developed or produced by
Consultant in the performance of this Agreement. All materials prepared or
developed by Consultant hereunder, including without limitation: documents;
calculations; sketches; notes; reports; data; models; and samples, shall
become the property of Ball when prepared, whether delivered to Ball or not
and shall be delivered to Ball upon request and, in any event, upon
termination of Consultant's consulting services.
10. No Employment Solicitation. Until December 31, 2002, Consultant shall not,
directly or indirectly, solicit, persuade or advise (or authorize or assist
others in the taking of such actions) any employee of Ball to leave the
employ of Ball.
11. Injunctive and Other Relief. Consultant acknowledges that the businesses in
which Ball is engaged are intensively competitive and Consultant has had
access to and knowledge of highly confidential information of Ball which if
disclosed or used to the detriment of Ball would cause damage to Ball that
could not be adequately compensated in damages. Consultant acknowledges and
agrees that Ball could suffer irreparable injury in the event of a breach
or violation of the provisions set forth in Sections 6, 7, 8, 9 or 10 of
this Agreement and Consultant agrees that, in the event of an actual or
threatened breach or violation of any of these Sections of the Agreement,
Ball may be awarded injunctive relief in a court of appropriate
jurisdiction to prohibit and remedy any such violation, breach or
threatened violation or breach, without the necessity of posting any bond
or security. Any such right to injunctive relief may be in addition to any
other right or remedy available to Ball.
Consultant further acknowledges and agrees that Ball will also be entitled
to monetary relief for such breach or violation of this Agreement
including, but not be limited to, any profit or other economic benefit
received by Consultant in connection with such breach or violation and any
damages incurred by Ball as a result of such breach or violation prior to
or after the entry of injunctive relief.
Consultant agrees if Ball seeks injunctive or other relief in the event of
an actual or threatened breach or violation of Sections 6, 7, 8, 9 or 10 of
this Agreement, jurisdiction and venue for such an action is proper in the
District Court in and for the County of Jefferson in the State of Colorado,
regardless of Consultant's residence at the time of filing of the action.
12. Assignment. This Agreement and the obligations under it may not be assigned
or delegated by Consultant without Ball's written permission. This
Agreement and the obligations under it may be assigned by Ball. In the
event Consultant shall become unable to perform the services agreed to be
rendered under this Agreement because of Consultant's illness, incapacity
or death, Ball's obligations to make payments provided under Section 1
above shall terminate as of that time.
13. Applicable Law. This Agreement shall be construed in accordance with the
laws of the State of Colorado, without reference to principles of conflicts
of laws.
14. Severability and Entire Agreement. The provisions of this Agreement shall
be severable, and the invalidity of any provision shall not affect the
validity of the other provisions, provided, however, in the event
Consultant questions the validity or attempts to set aside Section 6 of
this Agreement, or restrict Section 6 of this Agreement in a way which is
unacceptable to Ball, the obligation of Ball to pay the Fixed Consulting
Amount shall, at the option of Ball, cease and Ball shall have no further
obligation to pay the Fixed Consulting Amounts. Additionally, if any one of
the provisions of this Agreement is held to be excessively broad as to
duration, scope, activity or subject, such provisions shall be construed by
a court by limiting and reducing them so as to be enforceable to the
maximum extent allowable by applicable law. This Agreement states the
entire agreement between the parties with respect to the subject matter
hereof.
15. Modifications In Writing. This Agreement may only be modified in writing
and supersedes any and all prior oral or written communications. Any waiver
by Ball of nonperformance or noncompliance on the part of Consultant of any
term or condition of this Agreement shall not constitute a continuing
waiver of such term or condition or any other term or condition of this
Agreement.
16. Titles. The titles to sections of this Agreement are provided for
convenience only and do not affect the interpretation of this Agreement.
17. Termination. Sections 5, 6, 7, 8, 9, 10, 11, 13 and 14 of this Agreement
shall survive the termination of this Agreement for any reason.
XXXXXX X. XXXXXX BALL CORPORATION
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
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Attachment A
Assist with the following projects and ongoing activities:
o Advice and counsel with regard to packaging businesses, foreign and
domestic
o Strategic relationships - mergers, acquisitions, divestitures, joint
ventures, and technology agreements
o Strategic and operational planning and analysis
o Advice, counsel and projects as requested by an authorized representative
of Ball
o Licensee relationships
