AGREEMENT FOR CONSULTING SERVICES
AGREEMENT
FOR CONSULTING SERVICES
This
Agreement for Consulting Services (this “Agreement”) is
entered into as of January 11, 2008 between FM Services Company (“FMS”), and Xx. X.
Xxxxxx Xxxxxxx (“Consultant”).
WITNESSETH:
WHEREAS
Consultant desires to render consulting services to FMS and its affiliates
(collectively, the “Affiliates”) and FMS
desires to retain Consultant to render such services, all on the terms and
conditions hereinafter provided.
NOW,
THEREFORE, FMS and Consultant agree as follows:
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1.
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Services. During
the term of this Agreement, Consultant will be responsible for consulting
on all medical and health affairs affecting FMS, its Affiliates and their
respective officers, directors, and employees, focusing on sites in the
United States (the “Services”), as
requested by Executive Officers of FMS or its
Affiliates.
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Consultant shall provide a monthly report to FMS setting forth in reasonable
detail time spent by Consultant in performance of the Services and the nature of
the Services involved.
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2.
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Third Party
Services. Consultant may provide and be paid to provide
services similar to the Services to third parties; provided, however,
Consultant shall not engage in any business or activity detrimental to the
business and interests of FMS or any of its Affiliates during the term of
this Agreement.
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3.
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Independent
Contractor. Consultant shall perform the Services as an
independent contractor and Consultant shall not be deemed to be an
employee or agent of FMS or any of its Affiliates. This Agreement shall
not be deemed to create a partnership or joint venture between Consultant
and FMS.
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4.
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No Agency
Authority. Except as and to the extent that FMS may
otherwise prescribe in writing, Consultant shall not have any authority to
negotiate or conclude any contracts or to do anything which would
otherwise result in the creation of a binding obligation on FMS or its
Affiliates and Consultant shall not make any statement or representation
to any third party concerning Consultant’s authority which is contrary to
this provision.
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5.
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Compensation. For
the satisfactory performance of all Services and undertakings
hereunder:
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i.
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FMS
shall pay Consultant $400,000 per year, paid at a monthly rate of
$33,333.33 on the first business day of each calendar
month.
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ii.
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FMS
shall reimburse Consultant for all reasonable and customary out-of-pocket
expenses incurred by Consultant in connection with the performance of the
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6.
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Invoices and
Payment. Consultant shall issue an invoice for reimbursable
expenses to FMS by the fifteenth (15th)
of each month for any amount which FMS is required to reimburse to
Consultant pursuant to Article 5(ii)
above.
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Reimbursable
expenses shall be itemized and substantiated with such supporting documentation
as FMS may reasonably require.
Provided
that FMS has received Consultant’s invoice and supporting documentation by the
fifteenth (15th) of the
month, FMS shall make payment of the amount invoiced, or so
much of the amount invoiced as is not in dispute, on the first business day of
the following month.
Any amount invoiced that is in dispute shall be withheld pending resolution of such dispute by mutual agreement of FMS and Consultant.
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7.
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Tax
Matters. Consultant shall be solely responsible for all
United States or other taxes that may be applicable as a result of amounts
payable to Consultant pursuant to this
Agreement.
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8.
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Term and
Termination. This Agreement shall commence January 11,
2008 (the “Effective
Date”) and, unless earlier terminated, shall continue through
December 31, 2008 (the “Primary Term”),
and shall be automatically renewed thereafter, on the same terms and
conditions, for successive one (1) year terms (each a “Renewal
Term”). Either of FMS or Consultant may, however,
terminate this Agreement during the Primary Term or any Renewal Term
without cause or penalty at any time by delivery of a written notice of
termination thirty (30) or more days prior to the desired termination
date. All references to the “term” of this Agreement shall
include both the Primary Term and any Renewal
Terms.
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This
Agreement shall automatically terminate if Consultant is no longer
available for any reason to provide the Services contemplated by this
Agreement.
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The
termination of this Agreement shall not affect any previously accrued
obligations of FMS set forth in Article 5 above (although the fees payable
under Article 5(i) shall be prorated through the termination date) or of
Consultant set forth in Articles 7 and 9 (which shall continue in full
force and effect for the maximum period allowed by
law).
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9.
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Confidentiality. Consultant
shall hold in a fiduciary capacity for the benefit of FMS and its
Affiliates all non-public information, knowledge or data relating to FMS,
its Affiliates or any of their employees or agents which shall have been
obtained by Consultant during or before the term of this Agreement
(collectively, the “Confidential
Information”). Confidential Information includes, without
limitation: business plans, environmental reports, supply lists, price
lists, non-public financial reports, personnel data, budget
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projections
and all medical or health related reports, data, lists, plans, studies or
other information. The term “Confidential Information” shall exclude any
information which is publicly available from newspapers, television,
radio, computer data bases, journals, and other sources of widely
circulated information (unless such information has become publicly
available due to Consultant’s breach of his obligations under this
Agreement). Consultant shall not, without the prior written consent of
FMS, at any time, whether during or after the term of this Agreement,
communicate or divulge any such Confidential Information to anyone other
than FMS and its Affiliates and/or persons designated by FMS. All records,
files, drawings, documents, notes, programs, equipment and the like
relating to the business or activities of FMS or its Affiliates which
Consultant shall prepare or use or come into contact with shall be and
remain the sole property of FMS or its Affiliates, as the case may be. If
Consultant is required to divulge any Confidential Information by a court
order or other governmental directive, Consultant shall first inform FMS
of the court order or governmental directive in sufficient time to permit
FMS to contest such court order or governmental directive or to seek
protective orders concerning the handling of such Confidential
Information. Consultant agrees that FMS and its Affiliates will suffer
irreparable harm which cannot be adequately compensated by monetary
damages if Consultant breaches the confidentiality provisions in this
Article and Consultant therefore agrees that FMS and its Affiliates shall
be entitled to injunctive relief in the event of a threatened breach of
the confidentiality provisions of this Article by Consultant without the
necessity of posting a bond or other security (unless otherwise required
by non-waivable applicable
law).
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10.
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Duty to
Indemnify. FMS shall indemnify, defend and hold harmless
Consultant from and against any and all costs, losses, liabilities,
damages, lawsuits, deficiencies, claims and expenses, including without
limitation, interest, penalties, costs of litigation, and other losses,
reasonable attorneys’ fees and all amounts paid in investigation, defense
or settlement of any of the foregoing (collectively, the “Damages”),
incurred in connection with, arising out of, resulting from or incident to
any provision of Services under this Agreement; provided, however, that
FMS shall have no duty under this section with respect to (i) Damages
resulting from Consultant’s gross negligence or intentional or willful
misconduct or (ii) medical malpractice claims of the type which are
excluded from coverage under FMS’ liability insurance
policies. If FMS acknowledges its duty of indemnification under
this section with respect to any third party suit, demand or claim against
Consultant, FMS shall be entitled to select counsel to handle the defense
of such matter and shall be entitled to settle such matter without
Consultant’s consent if the settlement settles all outstanding claims
against Consultant relating to the subject matter of the suit, demand or
claim and can not reasonably be expected to expose Consultant to
additional suits, demands or
claims.
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11.
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Code of Business
Ethics. Consultant represents and warrants that he has
reviewed the Ethics and Business Conduct Policy (a copy of which is
attached to this Agreement) and agrees that he will comply in all respects
with such policy, as such may be updated from time to time, in all matters
relating to this Agreement and his provision of Services to FMS and its
Affiliates. FMS may revise the Ethics and Business Conduct
Policy at any
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time. If
FMS revises the Ethics and Business Conduct Policy, FMS shall provide the
revised policy to Consultant.
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12.
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Notices. Any
notice required to be given under this Agreement shall be in writing and
shall be deemed to have been effectively given (i) when personally
delivered, or (ii) five working days after being sent by registered or
certified air mail, postage prepaid and return receipt requested, in each
case addressed as follows:
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If
to FMS:
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Xxxxxxx
X. Xxxxxxxx
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Chairman
of the Board, FM Services
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c/o
Freeport-McMoRan Copper & Gold
Inc.
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0
Xxxxx Xxxxxxx Xxxxxx
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Xxxxxxx,
Xxxxxxx 00000
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If
to Consultant:
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Xx.
X. Xxxxxx Xxxxxxx
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0000
Xxxxxxx Xxxxxx
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Xxxxxxx,
Xxxxx 00000
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Or
to an alternate address which is specified by notice given as
aforesaid.
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13.
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Disputes. The
parties agree that any disputes arising out of this Agreement which cannot
be amicably resolved shall be brought before the Federal District Court
for the Eastern District of Louisiana or, if federal jurisdiction is not
available, in the District Courts of Orleans or Xxxxxxxxx Xxxxxx,
Louisiana, U.S.A. Each party hereby consents to the exclusive jurisdiction
of said courts over all disputes arising out of this Agreement and agrees
that service of process in any manner authorized by said court shall be
sufficient for all purposes.
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14.
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Entire
Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the provision of Services by
Consultant and, as the Effective Date, supersedes all prior written and
oral agreements, understandings, representations or commitments by the
parties with respect to such Services. This Agreement may not
be amended, modified or altered except by a written agreement executed by
the parties hereto.
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15.
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Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Louisiana,
U.S.A.
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(signature
page follows)
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
date first above written.
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FM
SERVICES COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title
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Chairman
of the Board
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CONSULTANT:
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By:
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/s/
Xx. X. Xxxxxx Xxxxxxx
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Name:
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Xx.
X. Xxxxxx Xxxxxxx
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