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Exhibit 10.13
ADVISORY SERVICES AGREEMENT
This Advisory Services Agreement ("Agreement") is made and entered into by and
between Xxxxxx Dodge Corporation, a New York corporation ("Company") and Xxxxxxx
X. Xxxxxxx ("Advisor").
WHEREAS, Advisor is currently employed by the Company and has informed Company
of his intent to retire from the Company, and as Chairman of its Board of
Directors, as of May 3, 2000; and
WHEREAS, Company desires, to the extent practicable, to retain and secure for
its benefit the experience, abilities, knowledge, and services of Advisor after
his retirement; and
WHEREAS, Advisor has extensive personal and specialized knowledge and skill in
the management of multinational mining and related corporations, and the Company
wishes to engage Advisor to perform services within his area of expertise.
NOW, THEREFORE, in consideration of the premises, the mutual promises set forth
below, and such other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, Company and Advisor
agree as follows:
1. Advisory Services. The Advisor, as an independent contractor,
shall render the advisory services described in this Section 1
for the period beginning on May 4, 2000 and ending on May 3,
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
requested by the Company's Board of Directors or the Chief
Executive Officer, but shall not be required to devote more
than 30 hours each month to such requested services. Advisor
shall perform any services requested under this Agreement
without Company's direct supervision, and Advisor shall have
complete discretion about when, where, and how the services
are to be performed. If at anytime during the Advisory Period,
the Advisor engages in full-time employment, outside of those
services provided to Company, the Advisor shall be deemed to
be in breach of this Section 1 (unless such full-time
employment consists of the Advisor providing services to one
or more (i) charitable or nonprofit organizations or (ii)
family-owned corporations, trusts, or partnerships), in which
case the term of the Advisory Period shall terminate and the
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Company shall have no further obligations under this Agreement
other than with respect to earned and unpaid fees and
benefits. Company and Advisor acknowledge and agree, subject
to Section 7 of this Agreement, that during the Advisory
Period the Advisor may provide other than full-time services
to third parties (including serving as a member of the Board
of Directors of any such party).
2. Compensation. During the Advisory Period, the Advisor shall be
entitled to receive a fee in the amount of $20,833.33 per
month for each month during such period. Such fee shall be
payable for each such month whether or not Advisor is called
upon for advising during any particular month or months. In
addition, Advisor shall be entitled to the benefits described
in Section 3 hereof. In the event the Advisor dies or becomes
Disabled (as defined in the next sentence) during the Advisory
Term, no advisory fees shall be payable for any month after
the month the Advisor dies or becomes Disabled. Advisor shall
be deemed to be Disabled for purposes of this Agreement Letter
if the Corporation determines in good faith that he is no
longer able to perform his advisory duties under this
Agreement Letter because of a mental or physical illness which
is determined to be total and permanent by a physician
selected by the Corporation and acceptable to the Advisor or
his legal representative (such agreement as to acceptability
not to be withheld unreasonably).
3. Fringe Benefits. The Advisor shall be entitled during the
Advisory Period and at Company's expense to an annual
executive physical examination similar to such examinations
available to other executives of the Company. During the
Advisory Period, the Company shall continue to pay on behalf
of the Advisor monthly dues and other charges in connection
with existing or current corporate memberships in clubs (as of
the date this Agreement is signed), so as to facilitate the
Advisor's ability to perform the services contemplated by this
Agreement and appropriately represent the Company in the
business community. During the advisory period, Advisor shall
be eligible to receive personal financial counseling, tax
preparation, and estate planning benefits on terms comparable
to those enjoyed by him prior to retirement, provided however,
that the maximum financial counseling fees that the
Corporation will be obligated to pay in any calendar year will
be $15,000. The terms of this Agreement shall not be extended
except by a separate written agreement of the parties.
4. Expenses. The Company, upon receipt of adequate supporting
documentation, shall reimburse the Advisor
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for reasonable expenses incurred by him in providing the
requested services to the Company, subject to the Company's
usual expense reimbursement policies, which may be amended
from time to time. The Company shall provide for limited
availability of any Company airplanes for the use of Advisor
in performing those advisory services requested of him. Such
availability will acknowledge the priority and pre-emptive
scheduling of such aircraft for ongoing business purposes, and
will be at the direction of the Chief Executive Officer.
5. 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 that he 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 advisory services.
Other than provided in this Agreement, the Company is not
obligated to provide to Advisor any other employee benefit or
compensation, whether retirement, welfare or otherwise, during
the Advisory Period, and is not liable for any employment tax
or withholding tax obligations in relation to the fees and
benefits paid hereunder. Advisor shall be solely responsible
for all income and other tax obligations in connection with
the services performed and payments received under this
Agreement. As an independent contractor, Advisor shall not be
eligible to participate in any employee benefit 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. The Company will provide Advisor with office space
when working from the corporate headquarters, direct office
support, and supplies as required to perform the services
contemplated by this Agreement.
6. Termination for Cause. The Company may terminate this
Agreement and all of the Company's obligations hereunder
(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 contendere 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 Advisor's
breach of any of the covenants provided for in Sections 7, 8
or 9 below.
7. Noncompetition Agreement. During the Advisory Period and for a
period of two years after the termination
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thereof, the Advisor covenants that he 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 is competitive with any business in which
the Company or any of its affiliates may have been engaged
during the period of his employment or the Advisory Period.
The foregoing restriction shall not apply to the purchase by
the Advisor of not to exceed 5% of the outstanding shares of
the capital stock of any corporation whose securities are
listed on any national securities exchange.
8. Loyalty Commitments. During and after the Advisory Period or
any time thereafter: (i) the Advisor covenants that he shall
not disclose any confidential information about the affairs of
the Company or any of its affiliates; and (ii) the Advisor
covenants that he 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 representation of the Company or such
affiliate.
9. Ownership of Work Product. The Advisor acknowledges that
during the term of his employment and 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 acknowledges and
agrees 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, research and development,
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.
10. 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 Sections 7, 8, or
9, the Company shall have the right and remedy to have such
provisions specifically enforced by any court of competent
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jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to
the Company and that money damages will not provide Company an
adequate remedy.
11. Notices. Where there is provision therein for the delivery of
written notice to either of the parties, such notice shall be
deemed to have been delivered for the purposes of this
Agreement when delivered in person or placed in a sealed,
postpaid envelope addressed to such party and mailed by
certified mail, return receipt requested to:
Xxxxxxx X. Xxxxxxx Attn: Corporate Secretary
c/o Xxxxx Xxxxxxx Xxxxxx Dodge Corporation
Xxxxxx Dodge Corporation 0000 X. Xxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxxxx Xxxxxxx, XX 00000-0000
Xxxxxxx, XX 00000-0000
12. Arbitration. Any controversy arising from or related to the
Agreement, other than those addressed in Section 10, shall be
determined by arbitration in the City of Phoenix, Arizona, in
accordance with the rules of the American Arbitration
Association, and judgment upon any such determination or award
may be entered in any court of competent jurisdiction. In the
event of any arbitration between the Advisor and the Company
related to the Agreement, if the Advisor shall be the
successful party the Company will indemnify and reimburse the
Advisor from and against any reasonable legal fees, costs, and
expenses incurred in such arbitration.
13. 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.
14. Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of (i) the Company, and its
successors and assigns; and (ii) the Advisor, his personal
representatives, heirs and legatees. The performance of the
services contemplated by this Agreement is personal to
Advisor, and his obligation to perform these services is not
assignable.
15. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and revokes any
and all prior oral or written understandings between the
parties relating to the services to be provided hereunder. The
Agreement may not be changed orally, but only by a written
document signed by the party against whom enforcement of any
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waiver, change, modification, extension or discharge is
sought.
16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the substantive laws
of the State of Arizona applicable to agreements made and to
be performed entirely in Arizona.
17. Change of Control. In the event of a "Change of Control" (as
that term is defined by the Company's Change of Control
Agreements in effect as of the effective date of this
Agreement) Advisor shall have the right to terminate this
Agreement, effective as of the first day of the calendar month
following a Change of Control. In the event of such voluntary
termination by Advisor, the rights, duties, and obligations of
the parties under this Agreement shall terminate as of such
date; provided that the Company shall pay Advisor for all
services rendered and costs incurred through the date of
termination.
18. Amendment. This Agreement can not be amended or modified in
any respect unless such amendment or modification is evidenced
by a written instrument executed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 25th
day of April, 2000, to be effective as of May 4, 2000.
XXXXXX DODGE CORPORATION
By: /s/ J. Xxxxxx Xxxxxxx
Chief Executive Officer
Xxxxxxx X. Xxxxxxx
