EXHIBIT 10.22
March 8, 1996
Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxx:
This will confirm the agreement between the undersigned, Freeport
McMoRan Copper & Gold Inc. (the "Company"), and you with respect to the
provision by you of certain consulting services to the Company and its
subsidiaries and corporate affiliates.
1. From the date hereof through March 1, 1999 (the "Consulting
Term"), you agree to serve as a consultant to the Company. In your
capacity as a consultant, you will provide to the Company, subject to the
instruction and direction of its executive officers, consulting advice
related to the businesses, operations and prospects of the Company. You
agree to devote such of your time, skill, labor and attention to the
performance of any consulting services requested by the Company hereunder
as may be necessary for you to render the prompt and effective
performance thereof, provided that it is generally understood that you
shall only be required to devote yourself to the performance of such
duties to the extent contemplated by paragraph 2(vi) of this letter.
2. It is understood and agreed with respect to your undertaking to
provide the consulting services described herein, that:
(i) you will perform such consulting services as an independent
contractor to, and not as an agent (except in any capacity as
an elected officer or director) or employee of, the Company or
any of its subsidiaries or affiliates, and that, as an
independent contractor, you 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 you and the
Company that would create liability for the Company for your
actions;
(iii) nothing herein contained shall be construed as giving you
any right to be elected or appointed an officer or director of
the Company or of any of its subsidiaries or corporate
affiliates or to retain any such position during the Consulting
Term or any extension thereof;
(iv) except as otherwise authorized in writing by the Chief
Executive Officer of the Company, you will not (A) represent or
hold yourself out to others that you are an employee or agent
of the Company or any of its subsidiaries or corporate
affiliates, or (B) have any authority to negotiate or execute
any agreements, contracts or commitments on behalf of, or
otherwise binding upon, the Company or such subsidiary or
corporate affiliate other than such authority which derives
from your occupying the position of an elected officer or
director of the Company or any of its subsidiaries or corporate
affiliates;
(v) the executive officers of the Company or the subsidiary or
corporate affiliate seeking your consulting services will,
insofar as it is reasonably practicable, consider your
convenience in the timing of their requests, and your failure
or inability, by reason of temporary illness or other cause
beyond your control or because of absence for reasonable
periods, to respond to such requests during any such temporary
period shall not be deemed to constitute a default on your part
in the performance hereunder of such services;
(vi) subject to the provisions of the foregoing clause (v),
during the Consulting Term you will make yourself available for
the performance of services hereunder on a half-time basis, it
being understood that the term "half-time" shall be deemed to
refer to, on the average, a 20-hour work week for 52 weeks a
year during the Consulting Term.
3. As an independent contractor of the Company, you acknowledge
and agree that, except as otherwise specifically provided herein,
(i) you will not be entitled to any insurance, pension, vacation or
other benefits customarily afforded to employees of the Company;
(ii) you will not be treated by the Company 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) you will be solely responsible for the payment of any taxes or
assessments imposed on you on account of the payment of the
consulting fee to, or performance of consulting services by, you
pursuant to this agreement.
4. During the term hereof, you agree that you will not, without
the prior written consent of the Company, (i) render any services,
whether or not for compensation, to other individuals, firms,
corporations or entities in connection with any matters that may involve
interests adverse to the Company or any of its subsidiaries or
affiliates, or (ii) engage in any business or activity detrimental to the
business or interests of the Company or any of its subsidiaries or
affiliates.
5. You acknowledge and agree that any inventions or discoveries,
whether or not patentable, which you may make (either alone or in
conjunction with others) as a result of performing services hereunder
shall be the sole and exclusive property of the Company. You agree to
communicate to the Company or its representatives all facts known to you
concerning such matters, and to execute any documents or instruments
necessary to transfer to the Company any inventions or discoveries to
which the Company may become entitled under this agreement, and should
the Company decide to patent any such invention or discovery, you will
assist in the preparation of patent applications and execute and assign
such patent applications, and execute such other documents, as may be
necessary.
6. You acknowledge and agree 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.
7. In the event of a breach or threatened breach by you of
Sections 5 or 6 of this agreement during or after the term hereof, the
Company shall be entitled to injunctive relief restraining you from
violating such paragraphs. 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 your breach or threatened breach of
this agreement.
8. For the consulting services provided by you hereunder during
the Consulting Term, the Company agrees:
(i) to pay to you an annual consulting fee of $630,000, such
fee to be payable monthly in arrears in $52,500 amounts, it
being understood by you that the amounts payable to you
pursuant to this Consulting Agreement shall be in full
satisfaction of any compensation to which you would otherwise
be entitled as a director of the Compay or any of its
subsidiaries or affiliates, with you hereby relinquishing any
claim to such amounts;
(ii) to reimburse you for, or advance to you, all reasonable
out-of-pocket travel and other expenses incurred by you at the
request of the Company in connection with your performance of
services hereunder. Such expenses will be reimbursed or
advanced promptly after your submission to the Company of
expense statements in such reasonable detail as the Company may
require;
(iii) to make available to you secretarial assistance and a
suitable office at the Company's headquarters, for which you
will pay to the Company a monthly amount of $2,500, such amount
to be paid no later than the 15th day of each month;
(iv) to make available to you, at no additional charge, an
annual physical, a parking space, access to the executive
dining room and fitness center, payment of City Energy Club
dues, and corporate membership privileges at Metairie Country
Club.
9. Nothing in this agreement shall affect in any way any of your
previously accrued and vested pension or other rights or benefits under
any of the plans or agreements of the Company.
10. (i) The term of this agreement shall be the Consulting Term,
subject to any earlier termination of your 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 continuing rights and
obligations under the terms of this agreement;
(ii) This agreement may be terminated, upon notice given in the
manner provided in paragraph 12 hereof, prior to the expiration
of the Consulting Term:
(A) by the mutual written consent of the Company and you;
(B) by the Company, upon your death, or your physical or
mental incapacity;
(C) by the Company in the event of your (1) wilful failure
to perform substantially the consulting services
contemplated hereby, (2) breach of any of the other
covenants of this agreement, or (3) engaging in gross
misconduct detrimental to the Company.
(D) by the Company for any other reason.
If this agreement is terminated by the Company prior to the expiration of
the Consulting Term for any reason other than those set forth in
subpararaphs 9(ii)(A), (B) or (C) above, then the Company shall pay in a
lump sum in cash within 30 days of such termination, the aggregate amount
of previously unpaid consulting fees that you would have earned had you
served as a consultant through the expiration of the Consulting Term.
11. It is hereby understood and agreed that the Company shall
indemnify you for serving at the request of the Company as an elected
officer or director of any of its subsidiaries or affiliates to the
fullest extent permitted by applicable law, and the determination as to
whether you have met the standard required for indemnification shall be
made in accordance with the articles and bylaws of the applicable entity
and with applicable law. It is further understood and agreed that while
serving in such capacity you will be covered by the Company's directors
and officers insurance policy.
12. 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
Executive Vice President
Freeport-McMoRan Copper & Gold Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to you:
Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
or such other address to which either party shall have notified the other
in writing.
13. This agreement is personal to you and the Company and its
subsidiaries and 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
you with respect to the subject matter hereof. This agreement may not be
amended, modified or extended otherwise than by a written agreement
executed by the parties thereto.
Please confirm that the foregoing correctly sets for the agreement
between the Company and you by signing and returning to the Company one
of the enclosed copies of this letter.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Executive Vice President
Freeport-McMoRan Copper & Gold Inc.
I hereby confirm that the foregoing correctly sets forth the agreement
between Freeport McMoRan Copper & Gold Inc. and myself.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Dated: March 8, 1996
