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EXHIBIT 10.15
CONSULTING AGREEMENT
This Consulting Agreement dated as of July 26, 1996 between
Xxxxxxxxxxx Enterra, Inc. (the "Company") and Xxxxxx X. Xxxxxxx (the
"Consultant").
WHEREAS, the Company desires to engage Consultant to perform certain
services, as hereinafter specified; and
WHEREAS, Consultant is willing to enter into this Agreement with
respect to such services upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Duties. Consultant will serve as Acting President and Chief Executive
Officer of the Company and otherwise consult with the Board of
Directors for the term of this Agreement.
2. Term and Termination. This Agreement will commence on July 26, 1996
and will continue indefinitely until terminated by either party's
giving written notice to the other of its intention to terminate same.
3. Compensation. The Company will pay to Consultant $22,750 per month,
commencing July 26, 1996. The Consultant will continue to receive his
quarterly retainer and meeting fees owed by the Company in connection
with his serving as a director of the Company.
4. Relationship Between the Parties. Consultant is retained and engaged
by the Company only for the purposes and to the extent set forth in
this Agreement, and his relation to the Company and its affiliated or
subsidiary companies shall be that of an independent contractor, and
he shall be free to dispose of such portion of his entire time, energy
and skill during regular business hours as he is not obligated to
devote hereunder to the Company and its affiliated or subsidiary
companies, to other pursuits, persons, firms or corporations which are
not competitive to the businesses or products of the Company.
Consultant shall not be considered under the provisions of this
Agreement or otherwise as having an employee status and shall not be
entitled to participate in any plans, arrangements or distributions by
the Company or its affiliated or subsidiary companies pertaining to or
in connection with any pension, stock, bonus, insurance, profit
sharing or similar benefits for the Company's regular employees.
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5. Taxes. Consultant will be liable for all taxes imposed on him or his
business by any government. Accordingly, the Company will not
withhold from Consultant's fees any monies for payment of taxes,
including income taxes, social security taxes, etc. Consultant agrees
to hold harmless and indemnify the Company from and against the
payment of any taxes on account of Consultant's performance hereunder.
6. Trade Secrets and Confidential Information. Consultant recognizes and
acknowledges that he may have access to certain trade secrets and
other confidential information of the Company and corporations
affiliated with the Company and that such information constitutes
valuable, special and unique property of the Company and such other
corporations. Consultant will keep such information strictly
confidential and will not, during the term of this Agreement, or for a
period of five (5) years after the termination hereof, disclose any of
such trade secrets or confidential information to any person, firm,
corporation or other entity for any reason or purpose whatsoever
except to authorized representatives of the Company and its affiliated
corporations. In the event of a breach or threatened breach by
Consultant of the provisions of this provision, the Company shall be
entitled to an injunction restraining Consultant from disclosing, in
whole or in part, such trade secrets and confidential information.
Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from Consultant.
7. Other Contracts. Consultant warrants that his entering into this
Agreement does not conflict with any obligations he has under any
other agreement.
8. Conflict of Interest. Consultant agrees that he will not, without the
prior written consent of the Company, serve any interest or do any act
or thing which would, in the reasonable opinion of the Company,
conflict with the interests of the Company or any of its affiliates
during the term of this Agreement, and Consultant will not, without
the prior written consent of the Company, enter into competition with
the Company or any of its affiliated or subsidiary companies or
perform services for any competitor of the Company or any of its
affiliated or subsidiary companies during said period.
9. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given
when deposited in the U.S. mail in a registered, postage prepaid
envelope addressed, if to Consultant, 0000 X. Xxxx, Xxxxxxx, Xxxxx
00000, and if to the Company, Xxxxxxxxxxx Enterra, Inc., 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, Attn.: H. Xxxxxxx
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Xxxxxx, or to such other address as either party shall designate by
written notice to the other.
10. Assignment. Consultant may not assign his rights or obligations
hereunder without obtaining the prior written consent of the Company.
The rights and obligations of the Company hereunder shall inure to the
benefit of and shall be binding upon the successors and assigns of the
Company.
11. Miscellaneous.
(a) This Agreement shall be subject to and governed by the laws of
the State of Texas.
(b) Failure to insist upon strict compliance with any provision
hereof shall not be deemed a waiver of such provision or any
other provision hereof.
(c) This Agreement may not be modified except by an agreement in
writing executed by the parties hereto.
(d) The invalidity or unenforceability of any provision hereof
shall not affect the validity or enforceability of any other
provision.
12. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the engagement of Consultant by the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXXXXXX ENTERRA, INC.
By: /s/ H. XXXXXXX XXXXXX
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Name: H. Xxxxxxx Xxxxxx
Title: Senior Vice President and
Secretary
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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FIRST AMENDMENT TO CONSULTING AGREEMENT
This First Amendment to Consulting Agreement dated as of January 1,
1997 between Xxxxxxxxxxx Enterra, Inc. (the "Company") and Xxxxxx X. Xxxxxxx
(the "Consultant").
WHEREAS, the Company and Consultant have previously entered into that
certain Consulting Agreement dated as of July 26, 1996 (the "Consulting
Agreement"); and
WHEREAS, the parties which to amend the Consulting Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Section 3 of the Consulting Agreement is hereby deleted in its
entirety and replaced with the following language:
"COMPENSATION.
(a) The Company will pay to Consultant $30,000 per month,
commencing January 1, 1997. Consultant will continue to
receive his quarterly retainer and meeting fees owed by the
Company in connection with his serving as a director of the
Company during the term of this agreement.
(b) Upon Consultant's services as Acting President and Chief
Executive Officer no longer being required, the Company will
pay to Consultant an amount equal to one year's pay, such
amount to be paid at such times and in such installments as
directed by Consultant. In addition, the Company will provide
Consultant with an office and secretarial assistance for one
year thereafter; provided, however, that this shall be
furnished at no additional cost to the Company."
2. The remainder of the Consulting Agreement shall remain in full
force and effect as written.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Consulting Agreement as of the day and year first above written.
XXXXXXXXXXX ENTERRA, INC.
By: /s/ H. XXXXXXX XXXXXX
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Name: H. Xxxxxxx Xxxxxx
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Title: Sr. Vice President and
Secretary
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
