EXHIBIT 10.24
December 18, 1996
Goodyear Capital Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx, XX
President
Dear Xx. Xxxxxxxx:
This letter (the "Agreement") confirms the agreement between the
undersigned, FM Services Company (the "Company"), and Goodyear Capital
Corporation ("GCC"), with respect to the provision of certain consulting
services to the Company and its subsidiaries and corporate affiliates
(collectively, the "Freeport Entities").
1. From January 1, 1997 through December 31, 1999 (the "Consulting
Term"), GCC agrees to serve as a consultant to the Company. In its
capacity as a consultant, GCC will provide to the Company consulting
advice related to the financial aspects of the Freeport Entities'
businesses, operations and prospects. GCC will cause its president,
Xxxxxxx X. Xxxxxxxx, XX ("Xx. Xxxxxxxx") to devote such of his time,
skill, labor and attention to the performance of any consulting services
requested by the Company hereunder as may be necessary for GCC to render
the prompt and effective performance thereof, provided that it is
generally understood that Xx. Xxxxxxxx shall only be required to devote
such time to the performance of GCC's duties to the extent contemplated
by paragraph 2(vi) of this letter.
2. It is understood and agreed with respect to this undertaking to
provide the consulting services described herein, that:
(i) GCC will perform such consulting services as an
independent contractor to, and not as an agent or employee of, the
Company or any of the Freeport Entities, and that, as an independent
contractor, GCC shall have the sole and exclusive right to control and
direct the details incident to any consulting services required to be
provided hereby;
(ii) this Agreement shall not be deemed or construed to create
a partnership, a joint venture, a principal and agent relationship, or
any other relationship between GCC and any of the Freeport Entities that
would create liability for the Freeport Entities for GCC's actions;
(iii) nothing herein contained shall be construed as giving any
owner or employee of GCC any right to be elected or appointed an officer
or director of any one or more of the Freeport Entities or to retain any
such position during the Consulting Term or any extension thereof nor
shall anything herein be construed as prohibiting an owner or employee of
GCC from serving as an officer or director of any one or more of the
Freeport Entities pursuant to a separate agreement between such
individual and such one or more of the Freeport Entities;
(iv) except as otherwise authorized in writing by the Chairman
of the Board of the Company, neither GCC nor its owners or employees
shall (A) represent or hold themselves out to others as employees or
agents of any of the Freeport Entities, or (B) have any authority to
negotiate or execute any agreements, contracts or commitments on behalf
of, or otherwise binding upon, any of the Freeport Entities other than
such authority which derives from an owner or employee of GCC occupying
the position of an elected officer or director of any of the Freeport
Entities;
(v) the executive officers of any of the Freeport Entities
seeking GCC's consulting services will, insofar as it is reasonably
practicable, consider GCC's convenience in the timing of their requests,
and GCC's failure or inability, by reason of temporary illness of a GCC
owner or employee or other cause beyond GCC's control or because of the
absence of a GCC owner or employee for reasonable periods, to respond to
such requests during any such temporary period shall not be deemed to
constitute a default on GCC's part in the performance hereunder of such
services; and
(vi) subject to the provisions of the foregoing clause (v),
during the Consulting Term, GCC will make Xx. Xxxxxxxx available for the
performance of services hereunder with it being understood that such
services will typically require approximately 50% of the time Xx.
Xxxxxxxx spent working on business matters for the Freeport Entities
prior to January 1, 1997.
3. As an independent contractor of the Company, GCC acknowledges
and agrees that:
(i) no GCC owner or employee shall be entitled to any
insurance, pension, vacation or other benefits customarily afforded to
employees of the Company or of any of the Freeport Entities;
(ii) No GCC owner or employee shall be treated by the Company
or any of the Freeport Entities as an employee for purposes of any
federal or state law regarding income tax withholding or for purposes of
contributions required by any unemployment, insurance or compensatory
program; and
(iii) GCC will be solely responsible for the payment of any
taxes or assessments imposed on GCC on account of the payment of
Incentive Fees (as hereinafter defined) or the consulting fee to, or
performance of consulting services by, GCC pursuant to this Agreement.
4. During the term hereof, GCC agrees that GCC will not, without
the prior written consent of the Company which shall not be unreasonably
withheld or delayed, (i) render any services, whether or not for
compensation, to other individuals, firms, corporations or entities in
connection with any matters that involve interests adverse to one of the
Freeport Entities if the rendering of such services would have a direct
material adverse impact on such Freeport Entity, or (ii) engage in any
business or activity directly and materially detrimental to the business
or interests of any of the Freeport Entities.
5. GCC acknowledges and agrees to comply with the confidentiality
and other provisions set forth in Appendix A to this Agreement, the terms
of which are incorporated by reference into, and made a part of, this
Agreement. GCC shall cause Xx. Xxxxxxxx and any other employees of GCC
to execute and deliver to the Company an employee's confidentiality
agreement in the form attached hereto as Appendix B.
6. In the event of a breach or threatened breach by GCC or any of
its employees of Section 5 of this Agreement during or after the
Consulting Term hereof, the Company shall be entitled to injunctive
relief restraining GCC or such employee from violating such paragraph.
Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedy at law or in equity it may have in the event of
GCC's breach or threatened breach of this Agreement.
7. For the consulting services provided by hereunder, throughout
the Consulting Term, the Company agrees:
(i) to pay GCC an annual consulting fee of $1,400,000.00, such
fee to be payable monthly in advance in $116,666.67 installments with the
first such installment to be due and payable on January 1, 1997;
(ii) to pay GCC an incentive fee (each, an "Incentive Fee"), in
a mutually agreed amount, if GCC provides material assistance to any of
the Freeport Entities in originating, managing or advising on a
corporate restructuring, sale, purchase, securities issuance, merger or
other major transaction (specifically not to include the public issuance
of securities having no unusual characteristics) involving one of the
Freeport Entities (each, a "Major Transaction") which is successfully
consummated, which Incentive Fee shall be payable upon closing of the
Major Transaction;
(iii) to reimburse GCC for, or advance to GCC, all reasonable
out-of-pocket travel and other expenses incurred by GCC at the request of
any of the Freeport Entities in connection with GCC's performance of
services hereunder. Such expenses will be reimbursed or advanced
promptly after GCC's submission to the Company of expense statements in
such reasonable detail as the Company may require;
(iv) to make available to GCC secretarial assistance, an
analyst to perform financial analysis and other tasks assigned by GCC's
president, and a suitable office space, properly configured and
outfitted, at the Company's headquarters, for all of which GCC will pay
to the Company a monthly amount of $15,636.43, such amount to be paid no
later than the 15th day of each month;
(v) for so long as any of the Freeport Entities provides
similar security services to any of the executives of the Freeport
Entitites, to provide GCC's president free participation in the security
services which monitored Xx. Xxxxxxxx'x home security system and which
patrolled the vicinity of Xx. Xxxxxxxx'x home prior to the termination of
Xx. Xxxxxxxx'x employment with the Freeport Entities; and
(vi) to cause the Freeport-McMoRan Foundation or another
Freeport Entity to match any charitable gifts made by GCC's president on
the same terms and conditions as are available to employees of the
Freeport Entities without regard to whether GCC's president qualifies as
a participant in the Freeport-McMoRan Foundation's matching gift program
for the Freeport Entities.
If GCC is dissatisfied with the Company staff member(s) provided
pursuant to subparagraph (iv) above, the Company shall, at GCC's request,
promptly replace the staff member(s) in question with substitute
personnel acceptable to GCC in its reasonable discretion. If a
substitute staff member receives a different salary or benefit package
than the former staff member received, the fee due under subparagraph
(iv) above shall be adjusted to reflect the Company's increased or
decreased wage and benefit costs. GCC shall not, under any
circumstances, be responsible for reimbursing the Company for the value
of any stock options, SARs or long term performance units awarded by one
of the Freeport Entities to a staff member assigned to GCC. The staff
members provided pursuant to subparagraph (iv) above shall be the
Company's employees, and GCC shall not be responsible for such
individuals' wages, taxes or benefits. GCC may, however, elect to
replace the Company's staff members with GCC's own employees, and, in
such event, the fee due under subparagraph (iv) shall be adjusted to
reflect the Company's reduced wage and benefit costs.
If GCC deems a transaction to be a Major Transaction, GCC shall so
notify the Company at or around the commencement of the transaction. GCC
and the Company shall thereupon determine, by mutual agreement, if the
transaction constitutes a Major Transaction and, if the transaction is
determined to be a Major Transaction, the amount of the Incentive Fee due
GCC upon its closing. If a Major Transaction commences during the
Consulting Term but does not close until after the expiration or
termination of the Consulting Term (whether the Consulting Term expires
as originally scheduled or terminates earlier in accordance with
paragraph 8 below or for any other reason), GCC shall nevertheless be
entitled to an Incentive Fee upon the closing of such Major Transaction
if GCC provided material assistance to any of the Freeport Entities in
originating, managing or advising on such Major Transaction prior to the
expiration or termination of the Consulting Term.
8. (i) The term of this Agreement shall be the Consulting Term,
subject to any earlier termination of GCC's status as a consultant
pursuant to the terms of subparagraph (ii) of this paragraph. Following
the expiration of the Consulting Term or earlier termination of this
Agreement, each party shall have the right to enforce all rights, and
shall be bound by all obligations, of each party that are specified to be
continuing rights and obligations under the terms of this Agreement.
(ii) This Agreement may only be terminated, upon notice given
in the manner provided in paragraph 10 hereof, prior to the expiration of
the Consulting Term:
(A) by the mutual written consent of the Company and GCC;
(B) by the Company, upon the voluntary bankruptcy or
liquidation of GCC, GCC's involuntary bankruptcy if such bankruptcy
proceedings are not dismissed or stayed within sixty (60) days of the
filing thereof, or Xx. Xxxxxxxx'x death or long term physical or mental
disability or incapacity or other unavailability for a significant period
of time;
(C) by the Company in the event of GCC's (1) inability or
failure to perform substantially the consulting services contemplated
hereby, (2) material breach of any of the other material covenants of
this Agreement or (3) engaging in gross misconduct detrimental to any of
the Freeport Entities; provided, however, that no such inability or
failure to perform, breach or gross misconduct shall entitle the Company
to terminate this Agreement unless the Company first provides GCC with
written notice of the inability or failure to perform, breach or gross
misconduct specifying the nature of the problem and the steps reasonably
necessary to correct the same and GCC nevertheless fails to correct the
inability or failure to perform, breach or gross misconduct within thirty
(30) days following GCC's receipt of such notice (or, if the inability or
failure to perform, breach or gross misconduct is of a nature which
cannot be cured within thirty (30) days, GCC shall have failed to
commence and diligently prosecute the cure of the inability or failure to
perform, breach or gross misconduct);
(D) by the Company for any other reason;
(E) by GCC if (1) except as expressly contemplated by
that certain letter agreement (the "Letter Agreement") dated the date
hereof between the Freeport Entities and Xx. Xxxxxxxx, any one of
Freeport-McMoRan Copper & Gold Inc., Freeport-McMoRan Resource Partners,
Limited Partnership, Freeport-McMoRan Inc., McMoRan Oil & Gas Co., FM
Properties Inc. (the "Public Freeport Entities") or FM Services Company
terminates Xx. Xxxxxxxx from any of his officerships with their
respective corporations prior to the close of business on December 31,
1999, (2) Xx. Xxxxxxxx'x officerships with the Public Freeport Entities
and FM Services Company are no longer sufficient to maintain Xx.
Xxxxxxxx'x right to continue to receive the economic benefits of all of
the stock options, SARs, and performance units listed on Attachment "A"
to the Letter Agreement (other than the Forfeited 1996 Stock Options as
defined in the Letter Agreement) or (3) any of the Public Freeport
Entities fails to maintain coverage of Xx. Xxxxxxxx under its directors'
and officers' insurance policy as required by the Letter Agreement and by
Section 9 of this Agreement; or
(F) by GCC in the event of the Company's material breach
of any of the other material covenants of this Agreement; provided,
however, that no such breach shall entitle GCC to terminate this
Agreement unless GCC first provides the Company with written notice of
the breach specifying the nature of the problem and the steps reasonably
necessary to correct the same and the Company nevertheless fails to
correct the breach within thirty (30) days following the Company's
receipt of such notice (or, if the breach is of a nature which cannot be
cured within thirty (30) days, the Company shall have failed to commence
and diligently prosecute the cure of the breach).
The foregoing shall constitute the sole grounds for termination of this
Agreement.
If this Agreement is terminated by the Company or GCC prior to the
expiration of the Consulting Term for any reason other than those set
forth in subparagraphs 8(ii)(A), (B) or (C) above, then the Company shall
pay GCC, in a lump sum within thirty (30) days of such termination, the
aggregate amount of all remaining monthly installments of the consulting
fee provided for herein through the originally scheduled expiration of
the Consulting Term and shall pay GCC any Incentive Fees due with respect
to Major Transactions which were initiated prior to the termination of
this Agreement but which close after termination of this Agreement
promptly upon the closing of such Major Transactions.
9. It is understood and agreed that if any owner or employee of
GCC serves in the capacity of an officer or director of one or more
Freeport Entities, the Company shall cause such person to be covered by
the Freeport Entities' directors' and officers' insurance policy but such
person will not be entitled to any other compensation for service as an
officer or director. In such event, the Company shall also cause the
Freeport Entities in question to indemnify the GCC owner or employee for
serving as an elected officer or director to the same extent such
Freeport Entities indemnify their other directors and officers, and the
determination as to whether the GCC owner or employee has met the
standard required for indemnification shall be made in accordance with
the articles and bylaws of such Freeport Entities and with applicable
regulations and law.
10. Any notice or other communication required hereunder shall be
in writing, shall be deemed to have been given and received when
delivered in person or, if mailed, shall be deemed to have been given
when deposited in the United States mail, first class, registered or
certified, return receipt requested, with proper postage prepaid, and
shall be deemed to have been received on the third business day
hereafter, and shall be addressed as follows:
If to the Company, addressed to:
Xx. Xxxxxxx X. Xxxxxxxx
Chairman of the Board
FM Services Company
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to GCC:
Xx. Xxxxxxx X. Xxxxxxxx, XX
President
Goodyear Capital Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
or such other address to which either party shall have timely notified
the other in writing.
11. The Company agrees to indemnify GCC and its directors,
officers, employees, agents and controlling persons (GCC and each such
person being an "Indemnified Party") from and against any and all losses,
claims, damages and liabilities, joint or several, to which such
Indemnified Party may become subject under any applicable foreign,
federal or state law or otherwise, and related to or arising out of any
consulting services contemplated by this Agreement and the performance
by GCC of the services contemplated by this Agreement and will reimburse
any Indemnified Party for all expenses (including reasonable counsel fees
and expenses) as they are incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim or any
action or proceeding arising therefrom, whether or not such Indemnified
Party is a party and whether or not such claim, action, or proceeding is
initiated or brought by the Company. The Company will not be liable
under the foregoing indemnification provision to the extent that any
loss, claim, damage or liability is mutually determined by GCC and the
Company in good faith or, if GCC and the Company cannot so determine,
found in a final, unappealable judgment by a court to have resulted
solely from the Indemnified Party's willful misconduct or gross
negligence. The Company also agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company or to any other Freeport Entity related to or
arising out of the engagement of GCC pursuant to, or the performance by
GCC of the services contemplated by, this Agreement except to the extent
that any loss, claim, damage or liability is mutually determined by GCC
and the Company in good faith or, if GCC and the Company cannot so
determine, found in a final, unappealable judgment by a court to have
resulted solely from GCC's willful misconduct, gross negligence or
willful breach of this Agreement.
The Company agrees that, without GCC's prior written consent, it will
not, and it will cause the other Freeport Entities not to, settle,
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which
indemnification could be sought under this Section 11 (whether or not GCC
or any other Indemnified Party is an actual or potential party to such
claim, action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Party from
all liability arising out of such claim, action or proceeding. If the
Indemnified Party involved in the claim, action or proceeding is not
entitled to indemnification under this Section 11, the Company, and the
other Freeport Entities, may settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
without regard to whether an Indemnified Party is also an actual or
potential party to such claim, action or proceeding.
If an Indemnified Party is requested to appear as a witness in any action
brought by or against the Company in which an Indemnified Party is not
named as a defendant, the Company agrees to reimburse such Indemnified
Party for all expenses incurred by it in connection with its appearing
and preparing to appear as such a witness, including, without limitation,
the reasonable fees and disbursements of its legal counsel.
The provisions of this Section 11 shall remain in effect indefinitely,
notwithstanding the expiration or earlier termination of this Agreement
for any reason.
12. This Agreement shall not be assignable by either party without
the prior written consent of the other. This Agreement shall be governed
by and construed in accordance with the laws of the State of Louisiana.
This Agreement contains the entire understanding between the Company and
GCC with respect to the subject matter hereof. This is an entire
Agreement and there are no oral or other representations that form the
basis for compensation that are not a part hereof. This Agreement may
not be amended, modified or extended otherwise than by a written
agreement executed by the parties thereto.
13. Upon the receipt of confirming invoices from GCC's attorneys,
the Company shall promptly reimburse GCC for all attorneys' fees and
other related legal costs incurred by GCC in the negotiation of this
Agreement and the other ancillary agreements being entered into between
the Freeport Entities and Xx. Xxxxxxxx on the date hereof. The Company's
reimbursement obligation under this Section 13, shall not, however,
exceed the maximum amount of $16,000.
14. The provisions of this Agreement are independent and severable
from each other. If, for any reason, any provision of this Agreement is
found to be unenforceable, the remainder of this Agreement remains valid
and effective and is to be enforced as written, excluding such
unenforceable provision.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and GCC by signing and returning to the Company one
of the enclosed copies of this letter.
WITNESSES: Very truly yours,
/s/
_____________________________
/s/ Xxxxxxx X. Xxxxxxxx
___________________________________
/s/ Xxxxxxx X. Xxxxxxxx
______________________________ Chairman of the Board
FM Services Company
Goodyear Capital Corporation hereby confirms that the foregoing correctly
sets forth the Agreement between FM Services Company and Goodyear Capital
Corporation.
WITNESSES: Goodyear Capital Corporation
/s/
______________________________
By: /s/ Xxxxxxx X. Xxxxxxxx, XX
________________________________
/s/ Xxxxxxx X. Xxxxxxxx, XX
______________________________ President
Date: December 18, 1996
_______________________________
APPENDIX A
CONFIDENTIALITY TERMS
This Appendix A to the Consulting Agreement (the "Agreement") by and
between FM Services Company (the "Company") and Goodyear Capital
Corporation ("GCC") sets forth the parties' mutual understanding and
agreement with respect to the obligations of the GCC to maintain the
confidentiality of certain information related to the Company and its
Affiliates (as defined below). Any terms not otherwise defined in this
Appendix A shall have the meaning assigned in the Agreement.
1. Definitions.
(A) "Affiliate" shall mean, with respect to any person or
entity (i) any other person or entity directly or indirectly controlling,
controlled by or under common control with such person or entity, or (ii)
any employee of such person or entity or any independent contractor
contracted by such person or entity to perform work for the Company. For
the purposes of this definition, "control" (including the correlative
meanings, the terms "controlling," "controlled by" and "under common
control with") as used with respect to any person or entity, shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such person or entity,
whether through the ownership of voting securities, by contract or
otherwise. The Company's Affiliates shall also include Freeport-McMoRan
Inc., Freeport-McMoRan Resource Partners, Limited Partnership, Freeport-
McMoRan Copper & Gold Inc., McMoRan Oil & Gas Co., and FM Properties Inc.
(B) "Company Personnel" means, collectively (i) any Affiliate
or joint venture partner of the Company, (ii) any consultant or
independent contractor engaged by the Company, (iii) any entity in which
the Company or any Affiliate of the Company has an investment interest
and (iv) any employee, independent contractor or consultant engaged by
any of the entities described in subparts (i)-(iii) of this definition.
(C) "Confidential Information" means any and all information
(i)(A) which is proprietary to the Company or any Company Personnel, or
(B) which is or has been disclosed to GCC by the Company or any Company
Personnel with the understanding that it is confidential and is to remain
so, and (ii) which GCC obtains during the Consulting Term. Confidential
Information includes, without limitation: business plans; environmental
reports and plans; information contained in internal and external
memoranda and correspondence by or to the Company or any Company
Personnel, together with the memoranda and correspondence themselves;
information contained in bulletins and newsletters created by the Company
or any Company Personnel, together with the bulletins and newsletters
themselves; information learned and notes taken in connection with
meetings or teleconferences conducted during the Consulting Term with the
Company or its Affiliates or consultants; information in the files of the
Company and its Affiliates or consultants; information and other data
recorded in the databases, files, diskettes, directories, magnetic tape
and other storage media of the Company's computer systems or any computer
systems on which information or data of the Company is stored or
processed; any information relating to decisions or actions taken by the
Company or the reasons for such decisions or actions; financial
information; trade secrets of the Company; and information relating to
the Company's products, operations, technology, computer programs, source
codes, data bases, schematics, research and development, engineering,
design, construction, manufacturing, purchasing, finance, marketing,
product development, business acquisitions, personnel, promotion,
distribution and selling activities. Notwithstanding the foregoing, the
term "Confidential Information" shall exclude any information (a) which
is or becomes generally available to the public from sources such as
newspapers, trade publications, government publications or other similar
sources (other than as a result of GCC's or its employee's violation of
the confidentiality terms imposed under this Appendix A), (b) developed
independently by GCC without reliance on any of the Confidential
Information provided by the Company or Company Personnel, or (c) any
information the release of which would not reasonably be anticipated by
GCC 's president, Xx. Xxxxxxx X. Xxxxxxxx, to have a material adverse
impact on any of the Freeport Entities.
2. Confidentiality. GCC hereby acknowledges that during the
Consulting Term, GCC will be exposed to certain Confidential Information.
GCC agrees during the Consulting Term and thereafter, without limitations
as to time, to hold such Confidential Information in strictest
confidence, and not to use, except for the benefit of the Company or to
disclose, transfer or reveal, directly or indirectly to any person or
entity, any Confidential Information without the prior written
authorization of the Chairman of the Board of Directors of the Company.
All Confidential Information is and shall remain the sole and exclusive
property of the Company, subject to its sole discretion as to use. GCC
agrees not to use (and not to permit any of its Affiliates to use) any
Confidential Information for its own benefit or for the benefit of any
person or entity other than the Company.
3. Third Party Information. GCC acknowledges that the Company has
received, and in the future will receive confidential or proprietary
information from third parties, subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only
for certain limited purposes. GCC agrees to hold all such confidential
or proprietary information in the strictest of confidence and not to
disclose it to any person or entity (except as necessary in performing
GCC's obligations under the Agreement consistent with the Company's
agreement with such third party) or to use (or to permit its Affiliates
to use) it for the benefit of anyone other than the Company or such third
party (consistent with the Company's agreement with such third party)
without the express written authorization of the Chairman of the Board of
Directors of the Company.
4. No Additional Consideration. GCC agrees that no additional
compensation in addition to that provided in the Consulting Agreement
shall be due it from the Company in consideration of the obligations
required of GCC by this Appendix A.
5. Return of Materials. At the request of the Company or on the
termination of the GCC's association with or engagement by the Company,
GCC agrees immediately to destroy or deliver to the GCC's primary contact
at the Company all papers, notes, data, reference materials, sketches,
drawings, memoranda, documentation, software, tools, apparatus and any
other materials furnished to GCC by the Company or prepared or made, in
whole or in part, by GCC at any time during GCC's association with the
Company.
6. Notice. GCC authorizes the Company to notify others, including
any person to whom GCC has disclosed Confidential Information in
violation of this Agreement of the terms of this Agreement and its
obligations hereunder.
7. Employee Disclosure. GCC shall cause each of its employees to
execute and deliver to the Company an employee's confidentiality
agreement in the form attached to the Agreement as Appendix B. Any
breach of the employee's confidentiality agreement by a GCC employee
shall be deemed to be a breach by GCC itself of the confidentiality terms
imposed under this Appendix A.
8. Governing Laws and Consent to Jurisdiction. Louisiana law
shall govern this Appendix A. If any dispute should arise pursuant to
the terms of this Appendix A, GCC hereby consents, and agrees to cause
each of its employees to consent, to the jurisdiction of the courts of
the State of Louisiana or, if the dispute is subject to federal
jurisdiction, of the United States federal courts located in the State of
Louisiana.
9. Severability. The provisions of this Appendix A are
independent and severable from each other. If, for any reason, any
provision of this Appendix A is found to be unenforceable, the remainder
of Appendix A remains valid and effective and is to be enforced as
written, excluding such unenforceable provision.
APPENDIX B
EMPLOYEE CONFIDENTIALITY AGREEMENT
The undersigned hereby acknowledges receiving a copy of the
Confidentiality Terms (the "Confidentiality Agreement") attached as
Appendix A to that certain Consulting Agreement between FM Services
Company (the "Company") and Goodyear Capital Corporation ("GCC"), dated
December 18, 1996, and hereby agrees that the undersigned is an employee
of GCC. The undersigned hereby agrees to abide by all terms of the
Confidentiality Agreement which are applicable to GCC. The undersigned
further agrees that the Company shall have a direct right of action
against the undersigned to enforce the terms of the Confidentiality
Agreement against the undersigned. If a dispute arises between the
Company and the undersigned under the terms of the Confidentiality
Agreement, the undersigned consents to the jurisdiction of the courts of
the State of Louisiana or, if the dispute is subject to federal
jurisdiction, of the United States federal courts located in Louisiana.
WITNESSES:
_____________________________ ___________________________________
Name:______________________________
_____________________________ Date:______________________________
