EXHIBIT 10.6
CONSULTING AND SERVICES AGREEMENT
THIS AGREEMENT made this 1st day of May 2003,
BETWEEN:
ARCH CREEK ADVISORS LLC, a limited liability company formed under the
laws of the State of Texas (hereinafter referred to as "Consultant")
- and -
VERITAS DGC INC., a Delaware Corporation (hereinafter referred to as
the "Company")
WHEREAS, Company wishes to retain the Consultant to provide certain services as
hereinafter specified; and
WHEREAS, the Consultant has agreed to provide these services;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, THE PARTIES MUTUALLY COVENANT AND AGREE AS FOLLOWS:
1. ENGAGEMENT
1.1 Company agrees to engage the Consultant to provide certain services as
specified herein and the Consultant agrees to provide such services pursuant to
the terms of this Agreement. Consultant has also agreed to provide the services
exclusively through its principal, Xxxxxxx Xxxxxxx.
2. CONSULTANT'S SERVICES
2.1 The Consultant shall provide to Company the following services (the
"Consulting Services") and will report jointly to and take directions or
instructions as required from the officers of Company or their replacements from
time to time. The Consultant shall from time to time and, subject to Section 5,
at its own cost (except as to reasonable travel expenses), provide to Company
general consultation and advice in regard to finance and business strategy. The
specific nature and scope of such consultation and advice shall be as agreed to
by the parties from time to time acting reasonably and shall include, without
limitation, consultation and advice with respect to:
(a) Analysis and evaluation of potential strategic transactions.
As directed by either the Chairman & Chief Executive Officer
("CEO"), the President or the CFO of Company, perform
research, analysis and evaluation of potential strategic
transactions and present the results of such work. As
directed, work in conjunction with other external advisors of
Company.
(b) Presentation of strategic transactions. Routinely research and
analyze other companies and businesses involved in the
geophysical services industry and related industries and
present potential business opportunities to the Chairman & CEO
or his designees. In the course of making contact with
representatives of third party companies and businesses, as
well as research analysts, Consultant will make it known that
it is acting as an independent consultant to Company.
(c) Research and information services. On a schedule to be
determined by the Chairman & CEO of Company, Consultant will
brief the Chairman & CEO and such other persons as the
Chairman & CEO shall choose, regarding all information
gathered on the geophysical services industry and related
industries.
(d) Training of Company personnel. As directed and if requested by
the Chairman & CEO, Consultant will train a designated Company
employee in business valuation techniques as they relate to
mergers and acquisitions. Provide the designated individual
with both theoretical educational content as well as the
application of such to practical potential strategic
acquisitions/mergers. As directed, work with this individual
on any merger and acquisition projects assigned.
(e) Potential Optional Services. If requested to do so by the
Chairman & CEO, Consultant will participate in the negotiation
of specific transactions or carry out such other special
projects involving the use of Consultant's financial expertise
as the Chairman & CEO may assign.
3. INDEPENDENT CONTRACTOR
3.1 The Consultant shall at all times be an independent contractor and no
oral agreement or anything in this Agreement shall be construed as creating a
partnership, joint venture or employer/employee relationship. Notwithstanding
the instructions or directions given to the Consultant herein, the Consultant
shall have the right to determine the manner and methods to best implement or
carry out such instructions.
3.2 Except where expressly authorized by Company, neither the Consultant
nor any of its employees shall have the authority to make any statements,
representations or commitments of any kind, or take any action, which shall be
binding upon Company or its subsidiaries or affiliates.
4. CONSULTANT'S REPRESENTATIONS
4.1 The Consultant shall perform the Consulting Services in accordance with
generally available and accepted methods, standards and practices and the
Consultant shall obey all applicable laws, regulations, rules and standards
imposed by the appropriate government authorities with respect to provision of
the Consulting Services.
5. TERM
5.1 The term of this agreement shall be for one (1) year, commencing as of
May 1, 2003 and continuing until April 30, 2004, unless sooner terminated
pursuant to the terms hereof.
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Thereafter, the parties may elect, but shall have no obligation, to renew this
Agreement for an additional term. Any such renewal shall be in writing signed by
both parties.
6. TERMINATION
6.1 The Company shall have the right to terminate this Agreement at any
time for cause in the event that the Consultant commits a material breach of
this Agreement, commits any wrongful or negligent acts or omissions, or fails to
perform the Services substantially in accordance with the requirements of the
Company, as reasonably determined by the Company.
6.2 Upon termination of this Agreement, the Company will have no obligation
to pay any amount to the Consultant other than amounts earned or accrued as of
the Date of Termination. In the event of death or disability of the Consultant's
principal, Xxxxxxx Xxxxxxx, during the term of this Agreement, this Agreement
shall immediately terminate and the accrued compensation will be paid to the
Consultant through the date of such death or disability.
7. COMPENSATION AND EXPENSE REIMBURSEMENT
7.1 As compensation for the Services contemplated herein, Company agrees to
pay Consultant ten thousand dollars ($10,000) per month payable in arrears.
Company will pay Consultant such amount once each month on or before the fifth
day following the end of each month.
7.2 Company shall reimburse the Consultant for reasonable travel expenses
only according to Company's expense reimbursement policy, provided that (i) all
travel is approved in advance and (ii) appropriate backup documentation
verifying the expenses is submitted to Company with the invoice for payment. The
Company will reimburse no other expenses to Consultant. Not more often than once
each month, Consultant will invoice Company for travel expenses and will provide
appropriate documentation with each invoice. Company will pay such invoices
within fifteen (15) days. Payment of any invoice shall not prejudice the right
of Company to protest or question the correctness thereof. In the event of a
dispute as related to any of Consultant's invoices, the parties will attempt to
negotiate the dispute and if no resolution is achieved, then the parties will
proceed under the dispute resolution procedures provided for in this Agreement.
7.3 Consultant expressly acknowledges that as an independent contractor it
is not entitled to receive from Company any form of remuneration or benefits
whatsoever other than as expressly stated above. Company is not obligated nor
shall it make any deductions or withholdings from remuneration paid to the
Consultant under this Agreement. Consultant further acknowledges that it alone
is responsible for remitting all payments under the applicable tax laws or as
otherwise required by law.
7.4 Consultant shall not be eligible for any vacation or vacation benefits
from Company or to otherwise participate in any of Company's employee benefits
programs including but not limited to disability, health or pension programs;
provision of such benefits for the personnel and employees of the Consultant
shall be the sole responsibility of the Consultant.
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8. INDEMNIFICATION AND RESPONSIBILITY
8.1 Consultant shall protect, indemnify, defend and save harmless Company,
its officers and directors, its affiliated companies, their agents and employees
of any of them from and against all claims, costs (including reasonable
attorneys' fees), liabilities, demands, causes of action and judgments in favor
of or asserted by Consultant, its subcontractors, agents or representatives, or
employees of any of them on account of personal injury or death or on account of
damage to property of Consultant, its subcontractors, agents or representatives,
or employees of any of them including any such claims, costs, liabilities,
demands, causes of action and judgments occasioned by or attributable to the
negligent acts or omissions of the Consultant or its subcontractors, agents or
representatives, or employees of any of them.
8.2 Company shall protect, indemnify, defend and save harmless Consultant,
its affiliated companies, or Consultant's agents and employees of any of them,
from and against all claims, costs (including reasonable attorneys' fees),
liabilities, demands, causes of action and judgments, in favor of or asserted by
Company, its subcontractors (other than Consultant and its subcontractors),
agents or representatives, or employees of any of them, on account of personal
injury or death or on account of damage to property of Company, its
subcontractors, agents or representatives, or employees of any of them including
any such claims, costs, liabilities, demands, causes of action and judgments
occasioned by or attributable to the negligent acts or omissions of Company or
its subcontractors, agents or representatives, or employees of any of them.
8.3 Company agrees to indemnify Consultant from and against any and all
third party claims asserted against Consultant arising out of the Consulting
Services provided hereunder, including reasonable attorney's fees: provided,
however, in no event shall Company be required to indemnify Consultant for any
claim arising from (i) infringement or alleged infringement by Consultant of a
third party's proprietary rights or intellectual property in connection with any
product or service supplied to Company; or (ii) gross negligence or willful
misconduct on the part of Consultant.
9. CONFIDENTIAL INFORMATION
9.1 The Consultant, during the term hereof and for a two (2) year period
from and after the termination of this Agreement, covenants that neither it nor
any of its employees will divulge, communicate, use to the detriment of Company,
or for the benefit of any other business, firm, person, partnership or
corporation or otherwise misuse any confidential information, inventions,
techniques, documentation, drawings, financial data, devices, results of
research or other data with respect to Company or its business. The Consultant
acknowledges that any such information, data or secrets it or its employees may
have acquired as a result of their association with Company is of value and
Company has the sole and exclusive proprietary interest therein; provided,
however, that the foregoing shall not apply to any information, knowledge or
data which is or becomes generally available to the public other than directly
or indirectly as a result of disclosure by the Consultant or its employee.
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10. PROPRIETARY INFORMATION AND DOCUMENTS
10.1 Consultant agrees that all documentation and information, including but
not limited to programs, specifications, technical information and data, and all
software and other tangible or intangible products, methods, techniques,
materials or works prepared for Company or developed as a result of the
Consulting Services performed hereunder (collectively the "Works") shall, to the
extent permitted by law, be considered a work made for hire. Consultant hereby
assigns to Company any rights it may have in such Works. Consultant further
agrees that upon Company's request it shall execute and deliver to Company such
documents as Company may reasonably request to vest title to such Works in
Company.
10.2 Notwithstanding anything to the contrary contained herein, Consultant
shall retain its rights to all of its own property owned or developed by
Consultant prior to the term of this Agreement. To the extent that any such
property is incorporated into work produced and/or delivered hereunder,
Consultant grants Company a non-exclusive, perpetual license to use, copy and
modify and such property as integrated into any such work for Company's own
purposes. Additionally, Consultant retains the right, without limitation, to use
its knowledge, experience, know-how, documentation and information including
processes, ideas, concepts, and techniques, whether previously developed or
developed in the course of performing this Agreement. Such right to use
developed documentation and information specifically excludes the right to use
any Confidential Information of Company or any Works.
10.3 Upon termination or expiration of this Agreement, the Consultant shall
immediately deliver to and leave with Company all documents, records, manuals,
files, films, photographs, letters, notes, notepads, reports, and other similar
documentation or information containing any information concerning the business
operations or affairs of Company as well as any other materials relating to
Company's business and all copies thereof, whether prepared by the Consultant or
others, and which are in the Consultant's possession or under its control.
11. ASSIGNMENT
11.1 No party shall be at liberty to assign this Agreement or the rights and
obligations hereunder without the prior written consent of the other parties.
12. FURTHER ASSURANCES
12.1 Each of the parties agrees to execute and deliver all such other and
additional instruments and documents and to do all such other acts and things as
may be necessary to give full effect to this Agreement.
13. NOTICES
13.1 A notice or request required or permitted hereunder shall be
sufficiently given if personally delivered or sent by facsimile transmission to:
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(a) Company at:
00000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Chairman & CEO
(b) Consultant at:
Arch Creek Advisors LLC
000 Xxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxx
14. ENTIRE AGREEMENT
14.1 This Agreement and the additional agreements referred to herein
constitute the entire agreement of the parties with respect to the subject
matter hereof and shall not be changed, modified or discharged except by an
instrument in writing of equal formality herewith.
15. DISPUTE RESOLUTION
15.1 Any dispute or controversy between the Parties arising from or relating
to this Agreement or the construction, validity, interpretation, meaning,
enforcement, performance, non-performance, operation or breach of this Agreement
shall be submitted to mediation.
15.2 If such mediation is unsuccessful, either of the parties may refer such
dispute or disagreement to mandatory, final and binding arbitration by giving
written notice thereof to the other and within twenty (20) days after the
receipt of such written notice by the other. The arbitration shall be conducted
by one (1) arbiter according to the rules currently in effect for the American
Arbitration Association.
16. INTERPRETATIONS
16.1 The following rules shall be applied in interpreting this Agreement:
(a) Unless otherwise stated, a reference herein to a numbered or
lettered Section refers to the Section bearing that number or
letter in this Agreement.
(b) The proper law of this Agreement is the law of the State of
Texas and the parties hereby consent to the jurisdiction of
the State of Texas.
(c) If any provision of this Agreement is wholly or partially
invalid, this Agreement shall be interpreted as if the invalid
provision had not been a part hereof.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first written above.
ARCH CREEK ADVISORS LLC
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx
Managing Director
VERITAS DGC INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman & Chief Executive Officer
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