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EXHIBIT 10.4
CONSULTING AGREEMENT AND RELEASE
THIS CONSULTING AGREEMENT AND RELEASE (the "Agreement") is entered into
on the 16 day of August, 1999, by and between Xxxxxxx X. Xxxx (the
"Consultant"), and the Xxxxx Corporation, its subsidiaries, affiliates and
related entities (the "Company").
RECITALS
A. The Consultant has been employed by the Company in the position of
Senior Vice President of the Company. Consultant now seeks to transition to
retirement status.
B. The Company seeks to assist this transition while maintaining the
ability to utilize the Consultant's expertise.
C. The parties seek to provide for an orderly transition and establish
the duties and relationship between them.
IT IS THEREFORE AGREED:
1. CONSIDERATION. The parties acknowledge the adequacy of consideration
as expressed by the recitations and mutual covenants in this Agreement.
2. PAYMENTS TO AND/OR ON BEHALF OF CONSULTANT. In consideration for
the covenants and promises contained in this Agreement, the Company agrees to
provide the Consultant the following consideration:
(a) SALARY. Beginning on October 1, 1999, the Company will pay
to the Consultant a Monthly Consulting Fee of Fifteen Thousand Seven Hundred
Dollars ($15,700.00) on the first business day of each month during the term of
this Agreement.
(b) EXPENSES. The Company will reimburse the Consultant for
all necessary and normal expenses incurred by the Consultant in the course of
his provision of services, provided such expenses are pre-approved by the
Company or part of a standardized expense list to be provided to the Consultant.
(c) RETIREMENT PLAN ADJUSTMENTS. Solely for purposes of
determining the amount of Consultant's benefit payments under the Xxxxx
Corporation Retirement Restoration Plan (the "Non-qualified Plan"), the Company
will treat Consultant as if his hypothetical pension under the Xxxxx Retirement
Plan (the "Qualified Plan") without regard to the limitations of sections
401(a)(17) or 415 of the Internal Revenue Code were calculated by increasing his
age and his years of Credited Service (as defined in the Qualified Plan) by five
years. Nothing in this Agreement shall affect the calculation of Consultant's
actual pension benefit from the Qualified Plan. Consultant shall be treated as a
retired employee as of October 1, 1999 for purposes of
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entitlement to receive benefits from the Qualified Plan, the Non-qualified Plan,
and other benefit plans of the Company.
(d) MEDICAL COVERAGE. Consultant will have the right to
continue coverage under the Company's medical benefit plan under the terms
applicable for eligible retired employees of the Company.
(e) INDEMNITY. Consultant will continue to be indemnified by
Xxxxx in the same manner under Holly's by-laws as a Consultant as if he were
still an employee. Nothing in this Agreement terminates, expands or alters
Holly's obligations to indemnify the Consultant with respect to any litigation
or other consequences related to his prior actions as an employee, to the extent
such conduct is covered by Holly's corporate indemnification policy and/or
by-laws.
3. COVENANTS OF CONSULTANT. In consideration for the covenants and
promises of the Company contained in this Agreement, the Consultant agrees to
perform consulting services. In regard to these services, the Consultant makes
the following promises and covenants:
(a) TALENT. The Consultant will perform consulting services
related to his areas of expertise and regarding the areas of service he has
provided to the Company over the past 30 years.
(b) TIME. The Consultant further agrees he will make himself
available to the Company for the provision of consulting services as reasonably
requested by the Company (1) to timely respond to and use sufficient research
and analysis to fully address specific Company questions, research and business
needs on specific issues, concerns and/or matters as to which the Consultant has
knowledge or expertise and (2) to assist the Company's directors, officers,
executives or attorneys in the furtherance of these consulting duties.
(c) CONFIDENCES. The Consultant acknowledges that he has had
access and may continue to have access to certain Confidential Information and
that Confidential Information has come into the Consultant's possession as an
employee of the Company and may come into the Consultant's possession as a
result of the services provided pursuant to this Agreement. The Consultant
agrees to treat all such information as confidential, take all necessary
precautions to protect the confidentiality of such information, and not disclose
the information to any person without the written consent of the Company.
"Confidential Information" is defined in Section 6 of this Agreement. The
Consultant acknowledges that this Confidential Information is confidential, and
that it is a special, unique, and valuable asset of the Company.
4. DURATION OF AGREEMENT. The term of this Agreement begins on October
1, 1999 and continues until September 30, 2001, except as further detailed in
Section 9(g). In the case of the Consultant's death or disability, payments
under this Agreement will continue to the consultant, or his estate, heirs or
assigns for the duration of the Agreement. Disability, for the purpose of this
Agreement, means the inability to perform the essential functions of the
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Consultant's duties under this Agreement, with or without accommodation, because
of a physical or mental impairment.
5. PROPERTY RIGHTS. All documents or other tangible property relating
in any way to the business of the Company which are or have been conceived or
generated by the Consultant or which have come into the Consultant's possession
during his employment or the term of this Agreement shall be and remain the
property of the Company. The Consultant will return all such documents and
tangible property to the Company on the expiration of this Agreement or at such
earlier time as the Company may request. The Consultant further agrees that all
non-confidential property or equipment provided by the Company to the Consultant
during the term of his prior employment or this Agreement will remain the
property of the Company and the Consultant agrees to return such property upon
the expiration of this Agreement.
6. CONFIDENTIAL INFORMATION. The term "Confidential Information" as
used in this Agreement includes all business files, ideas, materials,
information, data, methods, business programs, development strategies, technical
improvements, software, inventions, patents, copyrights, customer lists,
marketing strategies, or plans developed, used or employed by the Company that
are disclosed to or developed by the Company as a consequence of or through the
disclosures made by the Company and not generally known to or by competing
businesses about the Company or its customers. "Confidential Information" also
includes all information regarding the Company's financial affairs, marketing,
business strategies, pricing, products, properties, processes, services,
customer lists, employees' names, addresses, employment histories, compensation,
placements, or any other customer or employee information contained in the
Company's records; "Confidential Information" also includes all items protected
by the attorney-client privilege or other legal privileges; provided, however,
that Confidential Information shall not include any data or information which
has been disclosed to or has become generally known by the public.
7. NONCOMPETITION AGREEMENT. The Consultant agrees that during the term
of this Agreement, the Consultant, on his own behalf or on behalf of any other
person or entity, will not directly or indirectly compete against the Company.
This noncompetition agreement includes any action of the Consultant whether
acting for himself, or as a partner, officer, principal, director, stockholder,
holder of any equity security, consultant, employer, agent, or in any other
individual or representative capacity. This noncompetition agreement includes
direct competition or competing indirectly by giving or performing professional
services in any field related to the business of the Company, including
petroleum drilling, refining, distribution, marketing, or other petroleum
related industries. This noncompetition agreement includes engaging in, or
giving any business advice, consulting or professional services to any person,
firm, partnership, association, corporation or other entity that directly or
indirectly competes with the Company in the provision of petroleum and petroleum
related products and services developed or in development during the
Consultant's employment with, or the period of providing consulting services to,
the Company. Conduct contrary to the terms of this noncompetition agreement,
remaining uncured after 30 days notice, will constitute a voluntary waiver of
all remaining consideration under Sections 2 (a) and (b) of this Agreement.
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8. MUTUAL RELEASES AND WAIVERS OF CLAIMS.
(a) CONSULTANT'S RELEASE OF XXXXX: The Consultant, for himself
and on behalf of his attorneys, heirs, assigns, successors, executors and
administrators, irrevocably and unconditionally releases, acquits, waives, and
forever discharges the Company and its current and former parent, subsidiaries,
affiliated and related corporations, firms, associations, partnerships and
entities, their successors, assigns, current and former owners, shareholders,
partners, directors, officers, employees, agents, attorneys, representatives and
insurers (hereinafter collectively referred to as "releasees"), from or
regarding any and all claims, complaints, liabilities, obligations, damages, and
causes of action. This release applies to all claims, including, but not limited
to claims of negligence, gross negligence, tort, contract, or statute, including
claims under the Age Discrimination in Employment Act, 29 U.S.C. Section 621,
et seq., the Texas Commission on Human Rights Act, the Texas Payday Act, and any
other municipal, local, state or federal statutory law, regulatory law or common
law for any actions or omissions, whether known or unknown, and whether
connected with the employment of the Consultant by the Company or not, which
exist or may have existed prior to, or contemporaneously with, the execution of
this Agreement. The release does not cover future conduct or waive any rights
arising under this Agreement.
(b) HOLLY'S RELEASE OF CONSULTANT: In further consideration of
the promises made in this Agreement, Xxxxx releases, acquits, and forever
discharges Consultant from any and all causes of actions, claims, damages,
including attorney's fees Xxxxx may have against Consultant which could have
arisen out of Consultant's employment or separation from employment, whether
known or unknown, presently asserted or otherwise. The release does not cover
future conduct or waive any rights arising under this Agreement.
(c) WARRANTIES REGARDING RELEASE: Both parties warrant and
represent that neither currently is actually aware of any claim that the other
may have against it.
9. MISCELLANEOUS.
(a) SEVERABILITY. In the event that any provision of this
Agreement shall be held invalid or illegal for any reason, any illegality or
invalidity shall not affect the remaining parts of this Agreement, but this
Agreement shall be construed and enforced as if the illegal or invalid provision
had never been inserted. Furthermore, in lieu of each illegal, invalid, or
unenforceable provision, there shall be added automatically as part of this
Agreement another provision or term as similar to the illegal, invalid, or
unenforceable provision as may be possible and still be legal, valid, and
enforceable.
(b) CHOICE OF LAWS AND VENUE. This Agreement shall be governed
and construed in accordance with the laws of the State of Texas. In the event
that any judicial proceedings are instituted concerning the interpretation or
enforcement of this Agreement,
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exclusive venue over such proceedings shall be vested in the courts sitting in
Dallas County, Texas.
(c) MERGER - NO OTHER AGREEMENTS. This Agreement constitutes
the entire Agreement between the parties with respect to the transactions
contemplated in this Agreement and there are no understandings or agreements
relating to this Agreement that are not fully expressed in this Agreement. Save
and except retirement and medical benefit plans and the continuation of the
Consultant to provide employee services until October 1, 1999, under his prior
employment arrangement, this Agreement supersedes all prior agreements, written
or oral, with respect to the subject matter of this Agreement, provided however,
that nothing contained in this agreement (save and except the actual transition
to retirement/consulting status) shall be held to limit or otherwise prevent or
interfere with the Consultant's retirement or health benefits which he may or
may not have otherwise been eligible for under the Company's retirement or
benefit plans. No representations, oral or written, are being relied upon by
either party in executing this Agreement, other than the express representations
in this Agreement.
(d) WRITTEN MODIFICATION ONLY. This Agreement may be amended,
superseded, canceled, renewed, or modified, and the terms hereof may be waived,
only by a written instrument signed by the parties, or in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
the right, power or privilege under this Agreement shall constitute a waiver
thereof.
(e) PERSONAL SERVICES NOT ASSIGNABLE. This is an Agreement for
personal services and obligations, and neither this Agreement nor any other
rights, interests, or obligations under this Agreement shall be assigned by any
of the parties hereto without the prior written consent of the other parties.
This Agreement shall be binding upon and inure to the benefit of the parties and
the respective successors and permitted assigns and legal representatives.
(f) MULTIPLE ORIGINALS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
(g) SURVIVAL. Paragraphs 2(c), 2(d), and 2(e) shall survive
and be unaffected by the expiration or termination of this Agreement. Paragraphs
5, 6, and 8 of this Agreement shall survive the expiration or termination of
this Agreement and shall remain in full force and effect until the year 2025.
(h) PARAGRAPH HEADINGS. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
(i) VERB TENSE USAGE. Except where the context otherwise
clearly limits the tense of the verbs used in this Agreement, whenever the use
of the future tense of a verb or sentence is used, it includes both the present
tense and the past tense.
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(j) INSURANCE COVERAGE. Nothing in this Agreement alters,
expands, retracts or affects any coverage which the Consultant may or may not be
afforded or of which Consultant may or may not be a beneficiary under the
Company's general liability or errors and omissions insurance policies, as is
provided by the terms of any such policies, as the case may or may not be.
(k) RIGHTS OF THE CONSULTANT. It is generally agreed and
understood by the Company and the Consultant that this Agreement contains a
general release. The Consultant has knowingly and voluntarily waived any
existing rights he may have pursuant to the Age Discrimination in Employment Act
of 1967 and the Older Workers Benefit Protection Act. Further, the Consultant
acknowledges the receipt of good and valuable consideration set forth in this
Agreement in exchange for this waiver of actual or potential claims. It is
expressly understood by the Consultant that this waiver does not impact any
claims under the Age Discrimination in Employment Act or the Older Workers
Benefit Protection Act which may arise for acts or omissions of the Company
occurring after the execution of this release and waiver. The Company has
advised the Consultant he has the right to seek the advise of legal counsel
prior to signing this Agreement, and the Consultant represents that he has had
the opportunity to seek such advise prior to signing this Agreement. The parties
acknowledge, warrant and represent that (1) they have relied solely on their own
judgment and that of their own attorneys and representatives regarding the
consideration for, and the terms of this Agreement (2) they have been given a
reasonable period to consider this Agreement, (3) they have read and understood
the Agreement, (4) they understand that it includes a general release of all
claims, known or unknown, and (5) no statements made by the other have in any
way coerced or unduly influenced the execution of this Agreement.
Furthermore, the Consultant acknowledges that in accordance with the
Age Discrimination in Employment Act and the Older Workers Benefit Protection
Act, he has been given at least 21 days to review this Agreement. The Company
further advises the Consultant that in accordance with the Age Discrimination in
Employment Act and the Older Workers Benefit Protection Act, he has seven days
after the signing of this Agreement to revoke the Agreement.
8/16/99 /s/ XXXXXXX X. XXXX
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DATE Consultant
8/16/99 /s/ XXXXXXX X. XXXXXXX
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DATE Xxxxx Corporation
By: XXXXXXX X. XXXXXXX
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Its: President
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