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EXHIBIT 10.6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made as of May 2,
1995, by and between Xxxxxxx Oil & Gas, L.P., a Delaware limited partnership
(the "Company") and Xxxxxx X. Xxxxxx ( "Consultant").
W I T N E S S E T H:
WHEREAS, the Company previously had entered into a consulting
agreement with Consultant pursuant to the Agreement of Limited Partnership for
the Partnership (the "Partnership Agreement") which consulting agreement
expired for all purposes under the terms thereof and under the Partnership
Agreement on May 1, 1995; and
WHEREAS, the Company desires to enter into a separate agreement to
retain the services of Consultant on a current basis, and Consultant desires to
perform such services for the Company, subject to and upon the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties, intending to be legally bound, agree as follows:
1. Defined Terms. All capitalized terms used but not defined
herein shall have the meanings assigned to them in the Agreement of Limited
Partnership of the Company.
2. Employment and Duties. The Company agrees to retain the
services of Consultant to perform such consulting and advisory services
regarding the operations of the Company as the Company shall request from time
to time during the term of this Agreement. Consultant shall make himself
available to act as a Representative on the Management Committee and to consult
with the Management Committee, the Chief Executive Officer and other officers
of the Company at reasonable times, concerning matters pertaining to the
acquisition, exploration, development and operation of Company properties, the
overall business plan, operating and capital budgets and other fiscal policy
issues of the Company, employee issues, and, in general, any issue concerning
the business affairs of the Company.
3. Amount of Service. It is anticipated that Consultant will
spend approximately 50% of his normal working time in performing his duties and
functions under this Agreement during the term of this Agreement. It is
understood that Consultant's time commitment to the Company may vary over time
consistent with the needs of the Company and Consultant agrees to devote such
time and attention to the performance and fulfillment of such duties, functions
and responsibilities as is necessary to fulfill such duties. Notwithstanding
the foregoing, it is specifically understood and agreed that Consultant may act
as a consultant or perform services for other parties other than the Company
and therefore will only be required to devote a portion of his time to his
services under this Agreement, which will not exceed 50% of his normal working
time without his consent. Consultant shall be deemed an independent contractor
for all purposes.
4. Compensation. The Company shall pay Consultant for his
services under this Agreement a consulting fee of $6,000 per month during the
term of this Agreement. The President of the Company and Consultant shall
review the consulting fee on an annual basis to
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determine any increases that the parties shall agree upon. All federal
withholding and other employment and income related taxes shall be the
responsibility of Consultant.
5. Business Expenses. Consultant shall be reimbursed by the
Company for any out of pocket expenses reasonably paid or incurred by him in
connection with the performance of his duties hereunder upon presentation of
expense statements or vouchers or such other supporting information reasonably
evidencing such expenses.
6. Term. The term of this Agreement shall commence on the date
hereof and terminate on May 1, 1997.
7. Termination. This Agreement shall terminate upon the first to
occur of (i) the expiration of the term hereof, (ii) the death, disability or
other incapacity of Consultant, or (iii) the written consent of both parties to
this Agreement. For purposes of this Agreement, the "disability or incapacity"
of Consultant shall occur if, as a result of Consultant's incapacity due to
physical or mental illness, Consultant shall have been absent from his services
hereunder on a continuous basis for the entire period of six consecutive
months, and within thirty (30) days after written notice of termination is
given (which may occur before or after the end of such six-month period) shall
not have returned to performing his services hereunder.
8. Limited Liability. With regard to the services to be performed
by Consultant pursuant to the terms of this Agreement, Consultant shall not be
liable to the Company, or to anyone who may claim any right due to his
relationship with the Company, for any acts or omissions in the performance of
said services on the part of Consultant or on the part of the agents or
employees of Consultant, except when said acts or omissions of Consultant are
due to his willful misconduct or gross negligence. The Company shall hold
Consultant free and harmless from any obligations, costs, claims, judgments,
attorneys' fees and attachments arising from or growing out of the services
rendered to the Company pursuant to the terms of this Agreement or in any way
connected with the rendering of said services, except when the same shall arise
due to the willful misconduct or gross negligence of Consultant, and Consultant
is adjudged to be guilty of willful misconduct or gross negligence by a court
of competent jurisdiction.
9. Confidentiality. Consultant will maintain the confidentiality
of, and will not disclose without the Company's express consent, any and all
proprietary or confidential information of the Company. The provisions of this
paragraph will be deemed to encompass any and all confidential or proprietary
information of the Company that was obtained by Consultant since the
commencement of Consultant's employment with the Company. This paragraph will
continue after, and will not be deemed to be extinguished or terminated by, the
termination of this Agreement or of Consultant's employment by the Company. For
purposes of this paragraph "proprietary or confidential information" of the
Company does not include (a) information that is or becomes generally available
to the public other than as a result of disclosure by the Consultant in breach
of this Agreement, (b) information that was or is available to Consultant on a
non-confidential basis, (c) information that is or was conceived, created or
independently developed by Consultant, or (d) information that is disclosed by
Consultant to others on behalf of the Company or to further the business
opportunities or best interests of the Company.
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10. Miscellaneous. (a) Notices. Any notice or communication
required or permitted hereunder shall be given in writing and shall be (i) sent
by first class registered or certified United States mail, postage prepaid,
(ii) sent by overnight or express mail or expedited delivery service, (iii)
delivered by hand or (iv) transmitted by wire, telex or telefax, addressed as
follows:
If to Consultant: Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxxx 0000, X.X. 00
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to the Company: Xxxxxxx Oil & Gas, L.P.
0000 Xxxxxx Xxxx
Xxxxx 0000, X.X. 00
Xxxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party in accordance herewith.
Any such notice or communication shall be deemed to have been given as of the
date of first attempted delivery at the address and in the manner provided
above.
(b) Successors and Assigns. This Agreement is personal in nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder;
provided, however, that in the event of a merger, consolidation or transfer or
sale of all or substantially all of the assets of the Company, this Agreement
shall be binding upon the successor to the Company's business and assets.
(c) Interpretation. When the context in which words are used in
this Agreement indicates that such is the intent, words in the singular number
shall include the plural and vice versa.
(d) Severability. Every provision in this Agreement is intended to
be severable. In the event that any provision of this Agreement shall be held
to be invalid, the same shall not affect in any respect whatsoever the validity
of the remaining provisions of this Agreement.
(e) Remedies. If any action at law or equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which he may be entitled.
(f) Captions. Any section or paragraph titles or captions
contained in this Agreement are for convenience only and shall not be deemed a
part of the context of this Agreement.
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(g) Entire Agreement. This Agreement together with the
Partnership Agreement contains the entire understanding and agreement between
the parties and supersedes any prior written or oral agreements between them
respecting the subject matter contained herein. There are no representations,
agreements, arrangements or understandings, oral or written, between and among
the parties hereto relating to the subject matter of this Agreement which are
not fully expressed herein or therein.
(h) No Waiver. The failure of any party to insist upon strict
performance of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure continues, shall not
be a waiver of such party's right to demand strict compliance in the future.
No consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or waiver to
or of any other breach or default in the performance of the same or any
obligation hereunder.
(i) Amendment. This Agreement may be changed, modified or amended
only by an instrument in writing duly executed by all of the parties hereto.
Any such amendment shall be effective as of such date as may be determined by
the parties hereto.
(j) Choice of Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY TEXAS LAW.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
the same to be executed by their duly authorized corporate officers, all as of
the day and year first above written.
"Consultant"
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
"Company" XXXXXXX OIL & GAS, L.P.
By: Xxxxxxx Exploration Company,
its Managing General Partner
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, President
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