Exhibit 10.22
FREEPORT McMoRan
Freeport-McMoRan Inc. Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxx Chairman of the Board
P.O. Box 61119 Chief Executive Officer
Xxx Xxxxxxx, Xx. 00000 (000) 000-0000
May 1, 1989
Xx. Xxxxx X. Xxxxxxxxx
Xxxx Associates, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxxxxxx:
This letter, upon your acceptance by signing and returning
the enclosed copy hereof, will evidence the agreement between
Kent Associates, Inc. ("Kent") and Freeport-McMoRan Inc.
("Freeport") with respect to certain consulting services of Xxxxx
X. Xxxxxxxxx ("Xxxxxxxxx") to be provided by Kent to Freeport, as
hereinafter provided. This agreement is in addition to, and not
in lieu of, that certain Consulting Agreement dated December 22,
1988, between Xxxxxxxxx Associates, Inc. and Freeport.
Services to be Performed
Xxxxxxxxx, as from time to time requested by Freeport, will
provide consulting and related advisory services to Freeport and
its affiliates on international matters.
Compensation
As compensation for the services of Xxxxxxxxx hereunder,
Freeport or its affiliates will pay to Kent:
(a) $100,000 per month for each separately identifiable
matter upon which consultation is provided; provided however,
that such consulting fees will not exceed in the aggregate $2
million in any one calendar year, subject to the credit
provisions of subparagraph (d) below; and
(b) For consultation services on matters which do result in
a capital investment by Freeport or its affiliates, an amount
equal to 5% of such investment if the amount of such investment
is $10 million or less and 2% of such investment if the amount of
such investment is $100 million or more. To determine the
compensation payable with respect to investments ranging from
more than $10 million to less than $100 million, the above stated
percentages will be extrapolated. "Capital investment" shall be
deemed to be the investment or capital expenditure amount
reflected in the final feasibility study approved by Freeport.
The amounts due under this subparagraph will be payable over the
lesser of five years or the projected economic life of the
investment in equal semi-annual installments commencing within 90
days of Freeport's decision to proceed with the investment.
(c) For consultation services on matters where the value of
Xxxxxxxxx'x efforts does not reasonably relate to either the per
diem amount in (a) above or the capital investment made as
provided in (b) above, Kent shall receive a percentage of the
value to be contributed by Xxxxxxxxx. "Value" is to be
determined by agreement between Freeport and Xxxxxxxxx prior to
Kent and Xxxxxxxxx rendering their services. The percentage of
value to be received by Kent as compensation shall be based on
the dollar amount of agreed value to be contributed and shall be
determined and paid in the same manner as set forth in (b) above.
(d) Any fee paid pursuant to subparagraph (a) above will be
credited against the compensation payable pursuant to
subparagraphs (b) or (c).
Freeport also agrees to reimburse Kent for all reasonable
out-of-pocket expenses incurred by Xxxxxxxxx while performing
services for Freeport or its affiliates. Before committing to
any such expenditures however Kent must receive the prior
approval of Freeport or its affiliates.
General
In connection with your services hereunder, Kent agrees that
anyone acting on its behalf will fully and faithfully comply with
the provisions of the Foreign Corrupt Practices Act of 1977
prohibiting payments to foreign officials and persons for the
purposes of obtaining or retaining business or business
opportunities on behalf of United States companies (to which Act
Freeport and its affiliates are subject), as well as all other
laws applicable to the activities of Kent and Xxxxxxxxx under the
Agreement.
Freeport hereby agrees, for itself and on behalf of each of
its officers, directors, employees and agents, to maintain the
confidentiality of all information, reports, studies, oral
advice, or other documents or information provided hereunder to
Freeport by Kent. Kent hereby agrees for itself, and on behalf
of its officers, directors, employees and agents, that it will
maintain the confidentiality of all nonpublic information
regarding Freeport supplied hereunder to Kent. Neither party
hereto shall make or cause to permit to be made an announcement
or disclosure of the existence of, or the subject matter, of this
agreement, without the express prior written consent of the other
party. Notwithstanding anything to the contrary set forth
herein, the confidentiality obligations referred to in this
paragraph shall not apply to (i) information publicly known
through no wrongful act of either party hereto or (ii)
information required to be disclosed by applicable law,
regulation or judicial or regulatory process, provided that, to
the extent practicable, advance written notice of any required
announcement or disclosure is given to the other party.
Although day-to-day operations with respect to this
Agreement will be carried on with certain executive officers of
Freeport, all determinations of when to utilize Xxxxxxxxx on any
particular matter will be made by the Office of the Chairman of
Freeport.
Neither Xxxxxxxxx nor Kent nor any of its stockholders,
officers, employees or agents shall have any liability to
Freeport or any of its affiliates with respect to, or arising out
of, any of the services provided by Kent or Xxxxxxxxx hereunder,
other than as a result of Kent's or Xxxxxxxxx'x willful
misconduct or gross negligence, as determined by the final
judgment of a court of competent jurisdiction. Freeport shall
indemnify and hold harmless Xxxxxxxxx and Xxxx and all of its
stockholders, officers, directors, controlling persons,
affiliates, employees and agents (each an "indemnified party")
against any losses, claims, liabilities or expenses (including
attorneys' fees and expenses reasonably incurred in connection
therewith and amounts paid in settlement of any claim) which any
indemnified party may incur, or become subject to, arising out
of, or based upon, this agreement. Kent and Xxxxxxxxx shall
furnish Freeport with prompt written notice of any claim, suit or
proceeding that might entitle an indemnified party to
indemnification hereunder; provided, however, that failure to
provide such notice shall not affect the rights of any
indemnified party hereunder.
Freeport and Kent shall have the right to terminate this
Agreement at any time, but only as to consultation assignments
which have not been theretofore initiated. In the event of such
termination, neither party shall have any further obligations to
the other hereunder other than for compensation earned but not
paid.
The validity, operation and performance of this Agreement
shall be covered by the laws of the state of New York and its
terms shall be construed and interpreted in accordance with such
Very truly yours,
By:/S/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Accepted as of the date
first above written:
KENT ASSOCIATES, INC.
By: /S/ Xxxxx X. Xxxxxxxxx
