EXHIBIT 10.18
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") dated October 31, 2001, is made and
entered into by and between FMC CORPORATION, a Delaware corporation (the
"Company") and Xxxxxx X. Xxxx (the "Advisor").
The Advisor has been employed by the Company and retires from employment with
the Company on October 31, 2001. The Advisor has been Chief Executive Officer of
the Company for ten years, and the Company wishes to continue to have access to
his familiarity with the Company's strategy, business and customers. The parties
therefore agree as follows:
1. Advisory Services. The Advisor shall render the services described in this
Section for the period beginning on November 1, 2001 and ending on October
31, 2003, (the "Advisory Period"). During the Advisory Period, the Advisor
will provide such advisory services concerning the business, affairs and
management of the Company as may be reasonably requested by the Board of
Directors or the Chief Executive Officer of the Company, but shall not be
required to devote more than 30 hours each month to such requested
services. Services shall be performed at a time and place mutually
convenient to both parties and consistent with Advisor's other activities.
If at anytime during the Advisory Period, the Advisor engages in full-time
commercial employment, outside of his Advisory activities, the Advisory
Period shall terminate and the Company shall have no further obligations
under this Agreement other than with respect to earned and unpaid accrued
fees and benefits. Company and Advisor acknowledge and agree, subject to
Section 8 of this Agreement, that during the Advisory Period, the Advisor
may provide less than full-time services to third parties (including
serving as a member of the Board of Directors of any third party). During
the Advisory Period, the Advisor shall be entitled to receive an annual fee
of $400,000 payable monthly, and shall be entitled to the benefits
described herein. In the event of the Advisor's illness or disability or
death so as to be unable to render services under this Agreement, the
Company shall continue to make payments hereunder to the Advisor or the
Advisor's heirs or personal representative, as the case may be.
2. Office, Tax Preparation and Financial Planning. Until the Advisor reaches
age 70, the Company will provide (a) reasonable office space, related
parking and administrative support, so long as requested by the Advisor,
and (b) continuing tax preparation and financial planning assistance.
3. Annual Medical Examination. The Advisor shall be entitled during the
Advisory Period at the Company's expense to an annual executive physical
examination similar to such examinations available to other executives of
the Company.
4. Club Dues. During the Advisory Period, the Company shall continue to pay on
behalf of the Advisor monthly dues and other charges in connection with
membership at Xxxxxx Xxxxx Xxxxx and Castle Pines Country Clubs, so as to
permit the Advisor to conduct advisory business for the Company and
represent the Company in the business community. The Advisor agrees to host
events for the Company at either facility.
5. Expenses. The Company shall, upon receipt of adequate supporting
documentation, reimburse the Advisor for reasonable expenses incurred by
the Advisor in rendering services under this Agreement, subject to the
Company's expense reimbursement policies. The Company shall provide for
availability of the Company airplane for the business use of the Advisor so
long as the Company continues to own the airplane. Such availability will
acknowledge the possible priority of such aircraft for other business
purposes of the Company.
6. Independent Contractor Relationship. In providing the requested services
under this Agreement, Advisor acknowledges and agrees that he will be
serving as an independent contractor. The Company and the Advisor agree the
Advisor shall have no obligation to work any particular schedule and the
Company has no right to control or direct the details, manner or means in
which the Advisor provides his services. Other than as provided in this
Agreement, the Company is not obligated to provide any employee benefits
whether retirement, welfare or otherwise, for the Advisory Period and is
not liable for any employment tax or withholding tax obligations in
relation to the fees and benefits paid hereunder. As an independent
contractor, Advisor shall not be eligible to participate in any employee
benefits plans (as such term is defined in the Employee Retirement Income
Security Act of 1974, as amended), sponsored by Company or any of its
affiliates.
7. Termination for Cause. The Company may terminate this Agreement and all of
the Company's obligations under this Agreement (other than fees and
benefits accrued through the date of termination) by action of the
Company's Board of Directors, or a committee thereof, because of the
Consultant's conviction (treating a nolo contender plea as a conviction) of
a felony (whether or not any right to appeal has been or may be exercised)
or willful refusal without proper cause to perform his obligations under
this Agreement or because of the Consultant's breach of any of the
covenants provided for in Sections 8, 9 or 10.
8. Noncompetition Agreement. During the Advisory Period, the Advisor shall
not, without the written consent of the Company, directly or indirectly be
employed or retained by, or render any services for, or be financially
interested in, any firm or corporation engaged in any business which
competes with any business in which the Company or any of its affiliates
may engage during the Advisory Period. The foregoing restriction shall not
apply to the purchase by the Advisor of up to 5% of the outstanding shares
of capital stock of any corporation whose securities are listed on any
national securities exchange.
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9. Loyalty Commitments. During the Advisory Period or any time thereafter:
(i) the Advisor shall not disclose any confidential proprietary or trade
secret business information about the affairs of the Company or any of its
affiliates; and (ii) the Advisor shall not, without the prior written
consent of the Company, induce or attempt to induce any employee or agency
representative of the Company or any affiliate to leave the employment or
representative of the Company or any affiliate.
10. Ownership of Work Product. The Advisor acknowledges that in the course of
providing services under this Agreement during the Advisory Period, he may
conceive of, discover, invent or create inventions improvements, new
contributions, literary property, material, ideas and discoveries, whether
patentable or copyrightable or not (all of the foregoing being collectively
referred to herein as "Work Product"), and that various business
opportunities shall be presented to him by reason of his relationship to
the Company. The Advisor acknowledged that all of the foregoing shall be
owned by and belong exclusively to the Company and that he shall have no
personal interest therein, provided that they are either related in any
manner to the business (commercial or experimental) of the Company, or
are, in the case of Work Product, conceived or made on the Company's time
or with the use of the Company's facilities or materials, or, in the case
of business opportunities, are presented to him for the possible interest
or participation of the Company.
11. Specific Remedy. In addition to such other rights and remedies as the
Company may have at equity or in law with respect to any breach of this
Agreement, if the Advisor commits a material breach of any of the
provisions of Section 8, 9, or 10, the Company shall have the right and
remedy to have such provisions specifically enforced by any court having
equity jurisdiction, it begin acknowledged and agreed that any such breach
or threatened breach will cause irreparable injury to the Company and that
money damages will not provide an adequate remedy to the Company.
12. Notices. Any notices shall be deemed to have been delivered for the
purposes of this Agreement when delivered in person or placed in sealed,
postpaid envelope addressed to such party and mailed by registered mail,
return receipt requested to:
Xxxxxx X. Xxxx FMC Corporation
0 Xxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xx 00000 Xxxxxxxxxxxx, XX 00000
13. Arbitration. Any controversy arising from or related to the Agreement,
other than those addressed in Section 11, shall be determined by
arbitration in the City of Philadelphia, PA, in accordance with rules of
the American Arbitration Association, and judgment upon any such
determination or award may be entered in any court having jurisdiction. In
the event of any arbitration between the Advisor and the Company related to
the Agreement, if the Advisor shall be
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the successful party, the Company will indemnify and reimburse the Advisor
against any reasonable legal fees and expenses incurred in such arbitration.
14. Separability of Provisions. The terms of this Agreement shall be considered
to be separate from each other, and in the event any shall be found to be
invalid, it shall not affect the validity of the remaining terms.
15. Binding Effect. This Agreement shall be binding upon and inure to the
benefits of (i) the Company and its successors, and (ii) the Consultant,
his personal representatives, heirs and legatees.
16. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes and revokes all prior oral or written
understandings between the parties relating to the Advisor's services. The
Agreement may not be changed orally, but only by a written document signed
by the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of
Pennsylvania applicable to agreements made to be performed entirely in
Pennsylvania.
FMC CORPORATION
Xxxxxxx X. Xxxxxx
By: --------------------------
/s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx
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