Exhibit 10.38
ENGAGEMENT AGREEMENT
This ENGAGEMENT AGREEMENT, made as of the 3rd day of March, 1995,
between RJR Nabisco Holdings Corp. ("RJR") (the "Company"), and Xxxxxx X.
Xxxxxxxxx ("Counsel"), a partner with the law firm of Xxxxx Xxxx & Xxxxxxxx
("DPW").
RECITALS
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WHEREAS, Counsel has experience and insight into the business and
various projects of the Company; and
WHEREAS, the Company desires Counsel to perform the duties of General
Counsel to the Company in connection with the business of the Company, and
Counsel is willing to provide such services.
NOW, THEREFORE, in consideration of the promises contained in
this Engagement Agreement, the Company, and Counsel agree as follows:
1. Legal Services
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Counsel agrees to act as General Counsel to the Company in
connection with legal matters concerning the worldwide business of the
Company and its affiliates and various projects relating thereto. Any and
all services Counsel provides to the Company shall only be in his capacity
as General Counsel to the Company. Counsel will he notified of such
requests as they are assigned by the Chairman of RJR. Except as provided
hereinafter, Counsel shall he available to render services upon request
for each Contract Period (as defined hereinafter) during the Tern of this
Engagement Agreement. Counsel shall, during the Term of this Engagement
Agreement, keep his location, address and telephone number consistently
updated with the Company so that he may be reached at any time.
Counsel may remain a partner with DPW during the Term of this
Engagement Agreement, but shall provide no services to the Company in his
capacity as a partner with DPW. Therefore, it
is recognized that Counsel shall have other commitments, but he shall,
nevertheless, give first priority to the services requested by the Company.
Notwithstanding the foregoing, the Company and Counsel
acknowledge that DPW may be retained from time to time as outside counsel
for legal matters involving the Company. However, in all such engagements
during the pendency of this Engagement Agreement, Counsel shall be serving
in the capacity of General Counsel to the Company and not in the capacity
of outside counsel as a partner with DPW.
2. Fees
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a) The fee hereunder shall be an annual retainer of $850,000, to be
adjusted as appropriate pursuant to paragrah 2(d) below.
b) Except as provided in paragraph 2(c), as consideration for
personal services Counsel will render under Paragraph 1 and for
Counsel's availability to provide such services each Contract Period,
the Company agrees to pay to Counsel a fee at the quarterly rate of
$212,500 ($850,000 per year) which shall be paid in advance at the
beginning of each calendar quarter during each Contract Period.
c) Payment for the partial calendar quarter March 3, 1995 to March
31, 1995 shall be $106,250 and shall be payable upon execution of
this Engagement Agreement.
d) The fees and required availability of Counsel shall be reviewed
on or before September 1, 1995 by the Company and Counsel to determine,
based on the experience of the parties, whether this Engagement
Agreement should be amended to increase or decrease the fees and the
availability of Counsel.
3. Term
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(a) The Term of this Engagement Agreement shall be two consecutive 12
month periods ("Contract Periods") commencing March 3, 1995.
(b) Any party may cancel this Engagement Agreement by giving 30 days
written notice.
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4. Billing and Reimbursement of Expenses
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(a) The Company will reimburse Counsel for authorized travel, living
and other business expenses incurred by Counsel for services which
Counsel performs at the Company's request. Counsel will make quarterly
xxxxxxxx to the Company for any travel, living and other business
expenses reimbursable to Counsel hereunder. Travel by air shall be
at the first class rate.
(b) The Company will, as necessary from time to time, provide Counsel
when on site at a Company facility with the use of the Company
office space and secretarial support services.
(c) In connection with Counsel's performance of services, the Company
shall provide Counsel with the same liability, indemnification and
Business Travel Accident insurance programs it affords its officers.
For purposes of Business Travel Accident insurance, the retainer
stated in paragraph 2(a) shall be considered "base salary."
(d) The Company shall ensure that at all times during the term of
this Engagement Agreement Counsel is a "named insured" under its (i)
Directors and Officers Liability Insurance and (ii) Employee
Professional Liability Coverage.
5. Independent Contractor
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Counsel is an independent contractor in all respects. Except as
otherwise specifically provided herein, Counsel shall not be entitled to
any employee benefits afforded by the Company to its employees or employees
of its affiliates by reason of the services performed under this Engagement
Agreement. The Company shall not deduct from the fees paid under this
Engagement Agreement any taxes, payments for unemployment compensation,
social security or other similar required payments. Such taxes and required
payments shall be the sole responsibility of Counsel. The Company
specifically waives any and all legal claims it may have now, or have in
the future, against DPW for the actions of Counsel arising out of the
services performed under this Engagement Agreement, and shall indemnify DPW
for all costs, including liabilities arising out of, or any legal fees or
expenses incurred, in connection with any litigation brought against DPW
based upon the actions of Counsel arising out of the services performed
under this Engagement Agreement.
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6. Non-Disclosure
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Any information disclosed to Counsel by the Company or any of its
affiliates shall be regarded as confidential, and shall be subject to
attorney-client privilege. Such information will be used solely in
connection with work performed by Counsel for the Company, and Counsel
shall not disclose such information to any third party unrelated to the
Company at any time during the term of this Engagement Agreement or
thereafter without the prior written approval of the Company.
7. Miscellaneous
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(a) This is an agreement for the personal services of Counsel.
Counsel's rights and obligations hereunder may not be assigned
by Counsel without prior written consent of the Company.
(b) This Engagement Agreement constitutes the entire agreement of the
parties, and any amendments hereto shall be in writing, signed by all
parties hereto.
(e) This Engagement Agreement shall be governed by the laws of the
State of New York.
(d) No benefit or promise hereunder shall be secured by any specific
assets of the Company. Counsel shall have only the right of an
unsecured general creditor in seeking satisfaction of such benefits
or promises. No benefit or promise hereunder may be assigned or
anticipated in any way.
IN WITNESS WHEREOF, the parties have executed this Engagement Agreement
as of the date first written above.
RJR Nabisco Holdings Corp.
By /s/
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Chairman and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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