Exhibit 10.2
CONSULTANCY AGREEMENT
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THIS CONSULTANCY AGREEMENT ("Agreement") is made as of the 1st day of
October, 2008 by and between XxXxxxxxx Incorporated, a corporation existing
under the laws of Delaware and having an office at 000 X. Xxxxxxxx Xxxxxxx,
Xxxxxxx, XX 00000-0000 (the "Company"), and Xxxxx X. Xxxxxxxxx of 000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxx, XX 000000 (the "Consultant").
WHEREAS the Company wishes to engage the services of the Consultant as
specified herein, and the Consultant desires to undertake the rendition of such
services:
NOW, THEREFORE, the parties agree as follows:
1. Description of Services - As requested by the Company, the Consultant
shall serve as a special consultant furnishing advice, consultation and
related services pertaining to assisting the Board of Directors and
Leadership Team in successful business continuity after his departure,
including but not limited to:
- facilitating relationship continuity and continued interface with key
customers and investors;
- working with Company leadership to promote business continuity during
organization transformation;
- assisting McDermott Leadership Team in the successful integration of
existing merger and acquisition opportunities undertaken during his
tenure;
- leveraging knowledge and relationships to assist in near term
transformation of new organization; and
- any other activities as specifically directed by the Company.
2. Status - During the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of the Company. The
Company shall not be entitled to exercise supervision over the details
or methods of performance by Consultant hereunder or to require
adherence to specific procedures in performing services hereunder.
Except as provided herein, Consultant shall not be subject to rules or
regulations applicable to Company's employees or any established work
schedule or routine or other supervision of or direction by Company, as
to hours worked or otherwise, provided, however, that all services
rendered hereunder shall be so rendered to the satisfaction of Company.
Consultant shall not have authority to obligate the Company to any
Agreement or to exercise any supervision or direction over the
Company's employees. Since the Consultant is not an employee of the
Company, he is not entitled to participate in any of the Company's
employee benefit plans, insurance coverages or programs, or other
employee programs; provided, however, notwithstanding any other
provision in this Agreement, if the Consultant was previously employed
by the Company, the retirement and other benefits that he may be
entitled to as a result of said previous employment with the Company
shall continue uninterrupted in accordance with the terms and
conditions of each respective benefit plan or other program and such
benefits shall not be affected by nor have any relationship to this
Agreement.
3. Compensation - The Consultant's individual contact shall be the General
Counsel, or its designee, who shall be responsible for transmitting
requests for such advice and consultation from the Company where
necessary to enable the Consultant to carry out his responsibilities
hereunder. Promptly following the execution of this Agreement,
Consultant will receive a one-time payment of $2,000,000. Through March
31, 2009 (the "Initial Period"), Company agrees to pay $31,250.00 per
month, which amount will be payable on the last day of each calendar
month of the Initial Period. During each calendar month of the Initial
Period for which the Consultant has provided services to the Company
under this Agreement, the Company also agrees to pay the Consultant
$2,900.00 for each day or partial day in excess of 10 days in which the
Consultant provides services to the Company hereunder. The Company and
Consultant may mutually agree to extend the Initial Period as
necessary.
For services rendered beyond the Initial Period, Company agrees to pay
Consultant a per diem of $2,900.00 for each day or partial day in which
the Consultant provides services to the Company under this Agreement.
The Company also agrees to reimburse Consultant actual reasonable costs
and expenses of travel, meals and lodging necessarily incurred by the
Consultant in rendering services hereunder, but not any other fees,
costs, or expenses. The Consultant shall submit a statement for each
month in which services are rendered showing costs, expenses and per
diems payable with respect to services rendered during such month. The
Company agrees to remit to the Consultant the appropriate amount upon
receipt of such invoices. The Consultant will be responsible for income
or other taxes assessed on his receipt of the monthly fee, per diems or
expense reimbursement from the Company.
4. Security and Non-Disclosure of Information - The Consultant shall be
responsible for, and bear the expense of, compliance with governmental
laws and regulations applicable to the procurement, utilization or
production of information in connection with the furnishing of services
hereunder. The Consultant shall keep secret and confidential such
information pertaining to the Company, its activities, products,
organization or internal affairs as the Consultant may acquire during
the term of the Agreement. The Consultant shall not, during such term,
aid any individual or organization in competition with the Company
regarding matters or subjects similar or related to those referred to
in Section 1 hereof. Consultant agrees that during the term of this
Consultant Agreement he will refrain from performing any act or
engaging in any course of conduct which has or may reasonably have the
effect of demeaning the name or business reputation of the Company or
affects adversely or may reasonably affect adversely the Company's best
interests, economic or otherwise. Consultant also acknowledges that
applicable securities laws prohibit the trading of Company securities
while in possession of any material non-public information, including
information concerning the financial condition, results of operations,
business or prospects of the Company.
5. Property and Information - All property and information, including but
not limited to reports, findings, recommendations, plans, data, and
memoranda of every description, and all copies thereof, furnished to
the Consultant or developed in the course of or relating to the
services rendered hereunder shall be the property of the Company and
the Consultant shall not retain copies of any such matter or material.
The Consultant agrees that all inventions, discovery or improvements
(whether patentable or not) made or conceived by the Consultant are and
will remain the sole property of the Company. The consultant further
agrees to assist the Company in obtaining patents in the Company's name
covering any such inventions, discoveries or improvements
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6. Law - The Consultant will comply with all applicable laws and
regulations in the course of his activities on the Company's behalf.
This contract shall be constructed and governed under the laws of the
State of Texas.
7. Code of Business Conduct - The Consultant expressly acknowledges that
he has received and reviewed the XxXxxxxxx International Code of
Business Conduct (2006 Printing). The Consultant will conform his
activities undertaken for or on behalf of the Company consistent with
the principles of the highest ethical behavior as described therein.
8. Reports - The Consultant agrees that upon request, he will file
periodic reports on Consultant's activities on the Company's behalf.
9. Indemnity - Company agrees to protect, hold harmless, defend, and
indemnify Consultant from and against any and all claims, suits, and
demands, of any kind whatsoever, by whomsoever asserted, as a result
of, or arising from, the activities of Consultant under this Agreement;
provided however that the Company shall have no liability or
responsibility under this provision for any such claim, suit, or demand
resulting from the gross negligence or intentional misconduct of
Consultant.
10. Conflict of Interest - The Consultant agrees that it is not presently
engaged and will not engage during the term of this Agreement in any
activity which might reasonably create a conflict of interest between
the Consultant and the Company or which might reasonably and adversely
affect the Consultant's judgment with respect to the business of the
Company. Consultant further agrees that it will accept no payment from
any competitor or supplier of materials or services, customer,
borrower, or lender of the Company.
11. Term - This Agreement shall be effective through September 30, 2009.
Either party may terminate this Agreement upon thirty (30) days advance
written notice to the other party. This Agreement will be terminated
without further liability or obligation on the part of the Company
should the Consultant breach any of the terms or covenants of this
Agreement.
12. General
a. Failure on the part of either party (the "first party") to
insist on strict compliance by the other with any provisions
of this Agreement shall not constitute a waiver of the other
party's obligations in respect thereof, or of the first
party's right hereunder to require strict compliance therein
in the future.
b. This Agreement sets forth the entire understanding of the
parties as to the matters included herein, and can be amended
or extended only by written Agreement signed by both parties.
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c. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and permitted assigns, and Consultant
shall not convey or assign his rights or obligations hereunder
without the prior written consent of the Company.
d. The obligations set forth in this Agreement are severable and
divisible, and any clause or portion not enforceable thereof
shall not cause the remainder of such clause or of the other
obligations contained herein from being enforceable.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
XxXXXXXXX INCORPORATED CONSULTANT
/s/ Xxxxxxx Xxxxxxx, Xx. /s/ Xxxxx X. Xxxxxxxxx
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Xxxxxxx Xxxxxxx, Xx. Xxxxx X. Xxxxxxxxx
Senior Vice President, Human Resources
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