Exhibit 10.39
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, entered into the 4th day of December 2003, with
an effective date of April 1, 2003, (the "Agreement"), is by and between Horizon
Offshore Contractors, Inc., a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxx (the "Consultant"), (collectively, Company and Consultant are referred
to as the "Parties" and individually as "Party").
WITNESSETH:
WHEREAS, the Consultant desires to assist the Company with the Services, as
hereinafter defined, as the Company may elect from time to time, and the Company
desires to so engage Consultant, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, the parties hereto agree as follows:
1. Consulting Services to be Performed; Term; Compensation. (a) The Company
recognizes that Consultant has performed services at Company's request with
respect to liaison with senior management of Pemex Exploracion y Produccion
("Pemex") on collection of claims of the Company's affiliate against Pemex
("Pemex claims"), promotion of the Company and its affiliates in Mexico,
establishment of an office facility acceptable to Company in its sole discretion
for the Company's affiliate in Mexico City, conducting a search for and
presenting to the Company a candidate to represent the Company in Mexico, and
that Consultant shall continue to perform such services and such other services
as the Company may elect from time to time and the Consultant agrees to so serve
for such periods of time as the Company may designate commencing on the date
hereof and continuing on a day-to-day basis thereafter. The Consultant agrees to
perform services regarding such matters and at such times as will be referred to
him by the Company (the "Services").
(b) Except as the Company may otherwise permit, Consultant shall maintain
in strict confidence and shall not disclose, directly or indirectly, any
non-public or proprietary information relating to the Company or its customers
or their respective affiliates ("Confidential Information") that Consultant
receives or acquires in the course of rendering consulting services under this
Agreement. Consultant agrees that all Confidential Information is proprietary to
the Company or its customers or their respective affiliates. Consultant further
agrees that he shall use all Confidential Information (regardless of when and
how acquired) solely in connection with the rendering of consulting services
under the Agreement. Consultant further agrees that during the term of this
Agreement, neither Consultant nor anyone acting in concert with Consultant will
solicit or induce, either directly or indirectly, any employee of the Company or
its affiliates to leave such employment.
(c) In exchange for Consultant's services and covenants hereunder, the
Company shall pay Consultant a fee of U.S. $140,100.00 for services rendered
from April 1, 2003 to March 31, 2004, and $30,000 for services for the remainder
of the term of this Agreement. Consultant acknowledges he has received U.S.
$59,900.00 for services prior to signing this Agreement and
agrees that Company shall receive a credit against the fee in the amount of U.S.
$59,900.00. Company shall pay Consultant's fee in equal monthly installments on
or before the last business day of each month. Consultant may elect to defer any
of such payments for services rendered between April1, 2003 and March 31, 2004.
If Consultant elects deferral, the amount of the deferred payments shall be
added to the next payment. Company will reimburse Consultant his reasonable
travel and entertainment expenses in accordance with Company policy. Company
shall also provide reasonable accommodations for Consultant in Mexico.
(d) In the event of illness or injury to Consultant arising out of or in
connection with his performance of Services in Mexico, Company shall arrange for
any necessary medical evacuation of Consultant to the United States at Company
expense, and shall reimburse Consultant for out of pocket expenses related to
medical care for such illness or injury incurred by or on behalf of Consultant
and not reimbursed by any health insurance, health maintenance organization,
preferred provider organization or other such plan.
2. Status of Consultant. (a) The Company and Consultant understand and
agree that Consultant is an independent contractor for all purposes, including
withholding and other employment tax purposes and is not an employee of the
Company. Accordingly, Consultant acknowledges and agrees that (i) he will not be
treated as an employee for purposes of any U. S. or Mexican federal or state law
regarding income tax withholding or for purposes of contributions required under
any unemployment, insurance or compensatory program and (ii) he will be solely
responsible for the payment of any taxes or assessments imposed on account of
the payment of compensation to or the performance of consulting services by him
pursuant to this Agreement, including, without limitation, any unemployment
insurance taxes, federal, state or local income taxes, federal social security
payments, or state disability insurance taxes, all of which Consultant expressly
agrees to pay when such taxes or assessments may become due.
(b) Consultant will not and has no authority to represent to others that he
is an employee of the Company. Consultant has no authority to bind or obligate
the Company, to participate in the management of the Company, to use the name of
the Company or any of its affiliates in any manner whatsoever, or to represent
to others that he has any such authority unless expressly authorized by the
Company.
3. Termination of Consultancy Period. (a) The consultancy period shall
terminate on December 31, 2004, unless earlier terminated pursuant to the terms
of this Agreement.
(b) Company may terminate this Agreement at any time if, in Company's
opinion, it appears that Consultant's efforts in pursuing the Pemex claims have
not enhanced the collect ability of the Pemex claims.
(c) Company may terminate this Agreement at any time if Consultant fails to
diligently pursue the duties described in Section 1(a), and in accordance with
the timetable stated therein.
(d) Company may terminate this Agreement at any time if Pemex issues a
denial of a
substantial portion of the Pemex claims.
(e) Sections 1(b), 2(a), and 4 shall survive any termination of this
Agreement, all of which shall be binding upon Company and Consultant and their
personal or legal representatives, executors, administrators, heirs, devises,
legatees and permitted assigns.
4. Arbitration. If any dispute or difference of any kind whatsoever shall
arise between the Parties relating to or in connection with this Agreement,
which cannot be resolved by discussion and mutual agreement, shall be referred
for a final and binding decision to a single Arbitrator selected in accordance
with the then applicable Rules of the American Arbitration Association. The
arbitration shall take place in Houston, Texas or in such other location as
mutually agreed between the Parties and shall be conducted in the English
language. Referral of any dispute to arbitration shall not absolve Consultant
from its obligations to provide the Services.
5. Co-operation. Consultant shall co-operate with all other contractors and
subcontractors of Company and Company's customers and shall perform its Services
in order to facilitate the overall requirements of Company's and its customers'
respective programs.
6. LEFT BLANK INTENTIONALLY.
7. Compliance with Law. (a) Consultant acknowledges that the laws, rules,
regulations and decrees of the various jurisdictions in which he performs the
services and certain laws of the United States of America shall apply to his
services. In this connection the parties recognize that the United States
Foreign Corrupt Practices Act of 1977 as amended ("the Act") prohibits the
payment or giving of anything of value either directly or indirectly by an
American citizen or company or a foreign citizen or company located in the
United States to an official of a foreign government for the purpose of
influencing an act or decision in his official capacity, inducing him to use his
influence with the foreign government, or gaining any improper advantage, to
assist a company in obtaining or retaining business for or with, or directing
business to, any person.
(b) Consultant covenants that he is familiar with the Act and has had
the opportunity to obtain legal advice from an attorney of his own choosing
regarding the Act's purposes and represents that he is not an official, officer,
or representative of any government or political party or candidates for
political office and covenants and represents further that no part of the
compensation will be accepted or used by Consultant for any purpose, nor will he
take any action, which would constitute a violation of any law of the various
jurisdictions in which it performs its services or of the United States of
America, including the Act. Company covenants and represents that it does not
desire and will not request any service or action by Consultant which would or
might constitute any such violation.
(c) Consultant understands and agrees that this Agreement will be
terminated without further liability on the part of Company if Consultant should
breach its obligations under this Section 7 or the Act.
8. Miscellaneous. (a) Any notice permitted or required to be delivered
under this Agreement by one party shall be in writing and shall be delivered by
hand, overnight delivery service or U.S. registered or certified mail, postage
prepaid with return receipt requested, to the other party at the address set
forth opposite such party's name on the signature page hereof until notice of a
change in address is delivered as provided in this Section 8. Notices shall be
deemed to be given, in the case of (i) by hand delivery, upon receipt; (ii)
overnight delivery service, on the business day after timely delivery to a
recognized overnight delivery service; and (iii) certified or registered mail
upon mailing.
(b) This Agreement constitutes the entire understanding between the
Company and Consultant with respect to the matters provided for herein, and all
prior discussions, negotiations, commitments, writings, understandings, and
representations related hereto are hereby superseded. This Agreement shall not
be amended or modified except by the written agreement of the Parties.
(c) This Agreement shall be binding upon and inure to the benefit of
the Company, and any successors or assigns of this Company, whether by way of a
merger or consolidation, or liquidation of the Company, or by way of the Company
selling all or substantially all of the assets of the Company, or a division
thereof, to a successor entity; however, in the event of the assignment by the
Company of this Agreement, the Company shall nevertheless remain liable and
obligated to the Consultant in accordance with the terms hereof. In the event of
any such merger, consolidation, liquidation, or sale, Consultant shall have the
right to terminate this Agreement. In the event of such termination, Consultant
shall nonetheless be entitled to the payments required by Paragraph 1 (c), and
to reimbursement of any reasonable travel or entertainment expenses incurred
prior to such termination.
(d) The construction and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Texas excluding any principles of conflicts of laws that would direct that
the substantive laws of another jurisdiction apply.
(e) The failure by any Party to enforce any of its rights hereunder
shall not be deemed to be a waiver of such rights, unless such waiver is an
express written waiver. Waiver of any one breach shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof.
(f) The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(g) Consultant hereby acknowledges that he has read, understands and
expressly agrees to the terms of the Agreement, and has been advised and has had
an opportunity to consult with an attorney of his choice before executing this
Agreement.
(h) This Agreement may be executed in multiple counterparts, each of
which taken together shall constitute one and the same instrument. Facsimile
signatures shall serve in lieu of originals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Horizon Offshore Contractors, Inc
Address:
By:
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0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000 Name:
Xxxxxxx, Xxxxx 00000 Title:
Address: Xxxxxx X. Xxxxx
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