CONSULTING AGREEMENT
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THIS AGREEMENT, entered into this 1st day of August, 1996, by and between
WESTERN ATLAS INC. (hereinafter "Company"), a Delaware corporation, with its
principal office at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
and XXXXXX X. XXXXX (hereinafter "Consultant"), currently residing at 00000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000.
RECITALS
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WHEREAS, Consultant is presently employed by Company as a Vice Chairman and
Chief Financial Officer; and
WHEREAS, Consultant will retire from Company's employment on September
30,1996; and
WHEREAS, Company believes that Consultant can contribute materially to
Company's future success in accomplishing certain projects relating to corporate
strategic development and financial issues; and
WHEREAS, Company desires to engage Consultant as an independent contractor
for Company and Consultant desires to be so retained by Company.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. SERVICES.
(a) Company hereby retains Consultant to render advice and assistance to
Company in connection with corporate strategic development and financial issues.
In this capacity, Consultant is responsible to, and shall act only upon
instructions of, Company through its designated Point of Contact identified
below.
(b) Unless otherwise directed in writing by the Chief Executive Officer
of Company, the designated Point of Contact shall be Xxxxx X. Xxxxx, Chief
Executive of the Company.
(c) Consultant shall make himself available for the rendering of
consulting services at times and places mutually agreed upon. Consultant agrees
to use all reasonable efforts to make himself available to Company when so
requested and to devote the necessary time required for fulfillment of a
specific assignment; provided, however, that Consultant shall not be required to
provide more than fifty (50) days of service during a period of one calendar
year.
(d) Consultant shall serve Company at all times as an independent
contractor, not as an agent or employee of Company. Consultant shall be subject
to Company's direction only as to specific areas of Company's interest with
respect to which Company desires the benefit of Consultant's advice and counsel.
(e) Without the prior consent of Company, Consultant shall not incur any
obligations on behalf of Company.
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(f) Neither party hereto shall be liable to the other or in breach hereof
for any failure to perform its obligations hereunder if such failure is due to
causes reasonably beyond the defaulting party's control.
2. DUTIES. Consultant shall devote all reasonable effort to perform
those assignments in the areas identified by Company's Point of Contact. In all
instances, the Point of Contact for Company shall specifically advise Consultant
of those areas to be worked on by Consultant.
3. DURATION. This Agreement shall be for an initial term of one (1)
year beginning on October 1, 1996, and may be renewable as mutually agreed upon
by both parties. If Company desires to renew this Agreement, it shall so notify
Consultant within sixty (60) days of the end of the prior term.
4. COMPENSATION AND PAYMENT.
(a)
(i) For services to be rendered, Consultant shall receive a Minimum
Annual Fee of $150,000.00, payable in monthly installments of $12,500.00 per
month at the end of each month or such other times as mutually agreed upon.
This Minimum Annual Fee shall entitle Company to order and receive during
the initial term of this Agreement, and during any renewal period to which a
Minimum Annual Fee is applicable, fifty (50) calendar days of service by
Consultant. Consultant shall be entitled to the Minimum Annual Fee whether
or not the Company orders fifty (50) calendar days of service. In the event
this Agreement is terminated for other than Consultant's death or breach
hereof, before fifty (50) calendar days of service have been ordered or
performed during any period to which an Annual Minimum Fee is applicable,
Consultant shall nevertheless be entitled to the Minimum Annual Fee and may
xxxx Company for any amount of the Minimum Annual Fee not previously paid.
However, upon the death of Consultant, Company shall only be liable to pay
compensation at the rate of $3,000.00 per day for those days actually worked
by Consultant, plus reimbursement for expenses incurred as specified in
subparagraphs 4(b) and (c) below; provided, however, that Consultant's
estate shall not be obligated to refund to Company any Minimum Annual Fee
monthly installments previously paid to Consultant. For purposes of this
Agreement, Consultant is permitted to count as days of service one day for
each assignment requiring travel in the continental United States, and up
to two days for each assignment requiring travel to a foreign destination,
in addition to any other days of actual service performed by Consultant
under such an assignment.
(ii) For all services ordered by Company and performed by Consultant
hereunder which exceed fifty (50) calendar days as set forth in paragraph
4(a)(i) above for any period of one (1) year commencing on October 1 in
which the Minimum Annual Fee is applicable, Consultant shall receive as
compensation the sum of $3,000.00 per calendar day for
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each day or part thereof in which Consultant provides services and advice
to Company as ordered by Company Point of Contact.
(iii) To the extent this Agreement remains effective during any
period in which a Minimum Annual Fee is not applicable, Consultant shall
receive as compensation the sum of $3,000.00 per calendar day for each day
or part thereof in which Consultant provides services and advice to Company
as ordered by Company Point of Contact.
(b) Company shall also reimburse Consultant for actual expenses incurred
in performing consulting services hereunder in accordance with Company's
standard policies and procedures relating to Company Officers. During the term
of this Agreement and any renewal thereof, Company shall continue to provide
Consultant office space and secretarial services at the Company's offices.
During that period Company shall also continue to maintain the direct phone line
to Consultant's residence, maintain Consultant's residential security system and
provide a facsimile machine at Consultant's residence. Expenses shall be
documented and substantiated with receipts, and Consultant shall submit invoices
for such expenses to Company Point of Contact for approval.
(c) Reimbursement of expenses shall be payable to Consultant within
fifteen (15) days following receipt by Company Point of Contact of an invoice
setting out expenses incurred. With respect to each monthly installment of the
Minimum Annual Fee set forth in paragraph 4(a)(i) above, Consultant shall be
paid within seven (7) days of the end of each month. For services performed by
Consultant which exceed fifty (50) days during any period of one (1) year
commencing on October 1 to which a Minimum Annual Fee is applicable, or for
services rendered during a period when no Minimum Annual Fee is applicable,
Consultant shall be paid within fifteen (15) days following receipt by the
Company Point of Contact of an invoice setting out the number of days worked by
calendar date in the previous month. Unless otherwise requested by Consultant,
all payments shall be by check sent to the address of Consultant first set forth
at the beginning of this Agreement.
5. PRECEDENCE OF COMPANY ASSIGNMENTS. Consultant agrees that he will
use his reasonable best efforts to give precedence to any assignment given
Consultant under this Agreement.
6. CONFIDENTIALITY--COVENANT NOT TO COMPETE.
(a) Because the work for which Consultant has been employed by Company
and the work for which he is being engaged, pursuant to this Agreement, has and
will include knowledge and information including, without limitation, customer,
supplier, sales and pricing information, research and development, business
plans, and organizational and personnel information of a private, confidential
or secret nature, belonging to or entrusted to Company, its affiliates and
subsidiaries, Consultant specifically covenants and agrees to hold such
knowledge and information in confidence, and shall not during or subsequent to
either his employment with Company or his retention as a Consultant to Company,
except as required in the conduct of Company's business or as otherwise first
authorized in
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writing by Company, publish, disclose or make use of, or authorize anyone else
to publish, disclose or make use of, any such information or knowledge which in
any way relates to the business of Company. All documents and written
information including, but not limited to, notes, sketches, manuals, blueprints,
notebooks, and records embodying Company business or industrial property, and
such documents and written information obtained by Consultant while employed by
Company, shall be the exclusive property of Company and, to the extent not
delivered to Company upon termination of employment with Company, shall be
delivered by Consultant to Company upon termination of this Agreement.
(b) Consultant agrees that during the term of this Agreement, Consultant
shall not engage in any occupation requiring Consultant's services for a
business which is competitive with the business conducted by Company or any of
its affiliates or subsidiaries, except with the prior written consent of
Company.
(c) During the period of this Agreement and for eighteen (18) months
following termination thereof, Consultant further agrees not to solicit,
interfere with, or endeavor to entice away, any employees or customers of
Company, its affiliates or subsidiaries, or to interfere with the business
relationship between Company, its affiliates, subsidiaries, and any customer,
supplier or other person, firm or corporation without the prior written consent
of Company.
(d) Consultant agrees that, in the event of any violation of the
restrictions referred to in this paragraph 6, Company shall be entitled to
preliminary and permanent injunctive relief, which right shall be cumulative and
in addition to any other rights or remedies to which Company may pursue in law
or equity, including the right to terminate Consultant's right to any further
compensation under this Agreement. Consultant further agrees that, in the event
of any such violation by Consultant, Consultant shall forfeit the right to
receive any unpaid Minimum Annual Fee under this Agreement. Company agrees that
Company shall not have the right to set off against any obligations of Company
to Consultant under any retirement benefit provided by Company any claims of
Company under this Agreement.
7. THIRD PARTY RELATIONSHIPS. Consultant agrees that Company shall not
be obligated to third parties with whom Consultant shall contract without
Company's prior written consent.
8. COMPLIANCE WITH LAWS. Consultant agrees in performance of this
Agreement to fully comply with all applicable foreign and U.S. federal, state
and local laws and regulations.
9. RELEASE.
(a) As a material inducement to Company to enter into this Agreement,
except as provided in subparagraph 9(d) below, Consultant hereby irrevocably and
unconditionally releases, acquits and forever discharges Company and all persons
acting by, through, under or in concert with Company (collectively "Releasees"),
or any of them, from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
actions, suits, rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or
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unsuspected, including, but not limited to, any claims for wages, employment
benefits, employment or reinstatement of employment, or damages arising out of
alleged violations of any contracts, express or implied, any covenant of good
faith and fair dealing, express or implied, any tort, any legal restrictions on
Company's right to terminate employees, or any federal, state, or other
governmental statute, regulation or ordinance, including, without limitation,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, the Worker Adjustment and
Retraining Notification Act, and the California Fair Employment and Housing Act,
which Consultant claims to have, own or hold, or which Consultant at any time
heretofore had, owned or held, or claimed to have, own or hold, against each or
any of the Releasees.
(b) Consultant expressly waives any and all rights under Section 1542 of
the Civil Code of the State of California, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
Consultant expressly and completely waives and releases any right or benefit
which he has or may have under the Section 1542 of the Civil Code of the State
of California pertaining to the matters released herein. In connection with
such waiver and relinquishment, Consultant acknowledges that he is aware that he
may hereafter discover claims presently unknown or unsuspected, or facts in
addition to, or different from, those which he now knows or believes to be true.
(c) Consultant hereby represents and acknowledges that he was allowed at
least twenty-one (21) days between his receipt of this Agreement and his
execution thereof, and that he was able to consider the terms thereof to his
full satisfaction and obtain legal advice, with particular attention to
references to the Age Discrimination in Employment Act and the Older Workers
Benefit Protection Act. Consultant understands that, among other claims, he is
giving up all claims of age discrimination against Company which he might have
under the Age Discrimination in Employment Act or the Older Workers Benefit
Protection Act.
(d) This Agreement is not for the benefit of any third party which is not
a party to this Agreement and shall not be deemed to give any right or remedy to
any third party. "Releasees" described above are considered parties to this
Agreement and are not third parties. This Release does not extend to Company's
obligations under this Agreement, any Stock Option Contracts between Consultant
and Company, any rights of Consultant under Company's 1995 Incentive
Compensation Plan or Individual Performance Award with respect to the period
ending on September 30, 1996, any rights of Consultant arising as an employee of
Company or its predecessor through September 30, 1996, to salary or wages
accrued through September 30, 1996, any other employee benefits, e.g., health
insurance benefits accrued through September 30, 1996, and any rights of
Consultant to indemnification under the Delaware General Corporation Law, the
Restated Articles of Incorporation of the Company and indemnification provided
for employees under California law with respect to any acts or omissions of
Consultant as an employee, officer or director of the Company on and prior to
September 30, 1996.
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(e) Consultant represents and agrees that he fully understands his right
to discuss all aspects of this Agreement with his private attorney; that, to the
extent, if any, he desires, he has availed himself of this right; that he has
carefully read and fully understands all of the provisions of this Agreement;
and that he is voluntarily entering into this Agreement without duress or
coercion form any source.
(f) Company covenants and agrees to indemnify Consultant to the maximum
extent authorized by the Delaware General Corporation Law ("DGCL") and the
Restated Articles of Incorporation of Company with respect to Consultant's
performance of services hereunder, and for acts or omissions occurring as an
officer prior to retirement, and to advance to or on behalf of Consultant
expenses as referred to in Section 145(e) of the DGCL in defending any action,
suit or proceeding described therein or any threat thereof, without the need to
give any undertaking as described therein; provided that Consultant acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
10. NOTICES. All formal notices and communications hereunder may be sent
by certified mail, return receipt requested, with a copy by ordinary mail, and
shall be deemed to have been given on the day when deposited in the post office
addressed to the other party, provided that either party may from time to time
change the address to which notices to it are to be sent by giving written
notice of such change to the other party.
Any notice to Company shall be made to:
Xxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
Western Atlas Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Any notice to Consultant shall be made to:
Xxxxxx X. Xxxxx
00000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Any communication delivered in another manner shall be deemed given only
when actually received by the intended recipient.
11. GOVERNING LAW. This Agreement shall be governed by and interpreted
under the laws of the State of Delaware without regard to its principles as to
conflict of laws.
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12. ARBITRATION.
(a). Any controversy or claim arising out of or under this Agreement which
is not resolved by agreement of the parties shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), with such arbitration to be conducted in Los Angeles,
California. The party initiating the arbitration shall contemporaneously advise
the other party of that party's notice to the AAA.
(b). The arbitration proceeding shall be conducted in private, with the
attendance limited to the Arbitrator, any representative, attorney or agent of
Company and Consultant, and any witnesses.
(c). Judgment upon the award rendered by the Arbitrator may be rendered in
any court having jurisdiction thereof.
13. WAIVER. The failure of any party to exercise any right under this
Agreement shall not be deemed to be a waiver of such right as it may apply to a
subsequent occurrence.
14. ASSIGNMENT. This Agreement, and any modification thereto, are not
assignable and any assignment of this Agreement, or any modification thereto,
without Company's prior written consent, shall be void.
15. ENTIRE AGREEMENT. The parties hereto agree that this Agreement shall
constitute the entire agreement between the parties regarding the subject matter
of this Agreement; and any prior or subsequent misunderstanding or
representations of any kind between Consultant and Company shall not be binding
on either party, except to the extent specifically set forth herein or
subsequently agreed upon, in writing, by both parties and made a part hereof.
This Agreement supersedes and controls any course of dealing and usage of trade.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
caused it to become effective as of the date set forth at the beginning hereof.
CONSULTANT WESTERN ATLAS INC.
By: By:
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Xxxxxx X. Xxxxx Xxxxxxxx X. Xxxxx
Vice President and Secretary
Date: Date:
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