Exhibit 10.28
FM FM Services
Affiliate of Freeport-McMoRan &
Freeport-McMoRan Copper & Gold
FM Services Company
Telephone: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
P.O. Box 61119
New Orleans, LA 70161
December 22, 1997
Xx. Xxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxx Xxxx.
Villa 42
Austin, TX 78735
Dear Xxxx:
This will confirm the agreement between the
undersigned, FM Services Company (the "Company"), and you
with respect to the provision by you of certain consulting
services to the Company and its subsidiaries and corporate
affiliates (which includes client companies for which
services are provided).
1. From January 1, 1998 through December 31, 1998 (the
"Consulting Term"), you agree to serve as a
consultant to the Company. In your capacity as a
consultant, you will provide to the Company, subject
to the instruction and direction of its executive
officers, consulting advice related to the
businesses, operations and prospects of the Company
and its subsidiaries and corporate affiliates. You
agree to devote such of your time, skill, labor and
attention to the performance of any consulting
services requested by the Company hereunder as may
be necessary for you to render the prompt and
effective performance thereof, provided that it is
generally understood that you shall only be required
to devote yourself to the performance of such duties
to the extent contemplated by paragraph 2(vi) of
this letter.
2. It is understood and agreed with respect to your
undertaking to provide the consulting services
described herein, that:
(i) you will perform such consulting services as
an independent contractor to, and not as an
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agent (except in any capacity as an elected
officer or director) or employee of the
Company or any of its subsidiaries or
affiliates, and that, as an independent
contractor, you shall have the sole and
exclusive right to control and direct details
incident to any consulting services required to
be provided hereby;
(ii) this agreement shall not be deemed or
construed to create a partnership, a joint
venture, a principal and agent relationship, or
any other relationship between you and the
Company that would create liability for the
Company for your actions;
(iii) nothing herein contained shall be construed
as giving you any right to be elected or
appointed an officer or director of the Company
or any of its subsidiaries or corporate
affiliates or to retain any such position
during the Consulting Term or any extension
thereof;
(iv) except as otherwise authorized in writing by
the Chairman of the Board of the Company, you
will not (A) represent or hold yourself out to
others that you are an employee or agent of the
Company or any of its subsidiaries or corporate
affiliates, or (B) have any authority to
negotiate or execute any agreements, contracts
commitments on behalf of, or otherwise binding
upon, the Company or such subsidiary or
corporate affiliate other than such authority
which derives from your occupying the position
of an elected officer or director of the
Company or any of its subsidiaries or corporate
affiliates;
(v) the executive officers of the Company or the
subsidiary or corporate affiliate seeking your
consulting services will, insofar as it is
reasonably practicable, consider your
convenience in the timing of their requests,
and your failure or inability, by reason of
temporary illness or other cause beyond your
control or because of absence for reasonable
periods, to respond to such requests during any
such temporary period shall not be deemed to
constitute a default on your part in the
performance hereunder of such services;
(vi) subject to the provisions of the foregoing
clause (v), during the Consulting Term you will
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make yourself available for the performance of
services hereunder for fifteen (15) percent of
your time, it being understood that this shall
constitute, on the average, three (3) days per
month during the Consulting Term.
3. As an independent contractor of the Company, you
acknowledge and agree that, except as otherwise
specifically provided herein,
(i) you will not be entitled to any insurance,
pension, vacation or other benefits customarily
afforded to employees of the Company;
(ii) you will not be treated by the Company as an
employee for purposes of any federal or state
law regarding income tax withholding or for
purposes of contributions required by any
unemployment, insurance or compensatory
program; and
(iii) you will be solely responsible for the
payment of any taxes or assessments imposed on
you on account of the payment of the consulting
fee to, or performance of consulting services
by you pursuant to this agreement.
4. During the term hereof, you agree that you will not,
without the prior written consent of the Company,
(i) render any services, whether or not for
compensation, to other individuals, firms,
corporations or entities in connection with any
matters that may involve interests adverse to the
Company or any of its subsidiaries or affiliates, or
(ii) engage in any business or activity detrimental
to the business or interests of the Company or any
of its subsidiaries or affiliates.
5. You acknowledge and agree that any inventions or
discoveries, whether or not patentable, which you
may make (either alone or in conjunction with
others) as a result of performing services hereunder
shall be the sole and exclusive property of the
Company. You agree to communicate to the Company or
its representatives all facts known to you
concerning such matters, and to execute any
documents or instruments necessary to transfer to
the Company any inventions or discoveries to which
the Company may become entitled under this
agreement, and should the Company decide to patent
any such invention or discovery, you will assist in
the preparation of patent applications and execute
and assign such patent applications, and execute
such other documents, as may be necessary.
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6. You acknowledge and agree to comply with the
confidentiality and other provisions set for in
Appendix A to this Agreement, the terms of which are
incorporated by reference into, and made a part of,
this Agreement.
7. In the event of a breach or threatened breach by you
of Sections 5 or 6 of this agreement during or after
the term hereof, the Company shall be entitled to
injunctive relief restraining you from violating
such paragraphs. Nothing herein shall be construed
as prohibiting the Company from pursuing any other
remedy at law or in equity it may have in the event
of your breach or threatened breach of this
agreement.
8. For the consulting services provided by you
hereunder during the Consulting Term, the Company
agrees:
(i) to pay to you an annual consulting fee of
$230,000, such fee to be payable monthly in
arrears in $19,166.66 amounts, it being
understood by you that the amounts payable to
you pursuant to this Consulting Agreement shall
be in full satisfaction of any compensation to
which you would otherwise be entitled as a
director of the Company or any of its
subsidiaries or affiliates, with you hereby
relinquishing any claim to such amounts;
(ii) to reimburse you for, or advance to you, all
reasonable out-of-pocket travel and other
expenses incurred by you at the request of the
Company in connection with your performance of
services hereunder. Such expenses will be
reimbursed or advanced promptly after your
submission to the Company of expense statements
in such reasonable detail as the Company may
require;
(iii) to make available to you secretarial
assistance, the use of a portable phone and
laptop computer, and a suitable office at the
Company's headquarters, for which you will pay
to the Company a monthly amount of $2,500, such
amount to be paid no later than the last day of
each month;
(iv) to make available to you, at no additional
charge, an annual physical, a parking space,
access to the executive dining room and fitness
center, and membership privileges at the City
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Energy Club and English Turn Country Club for
business entertainment purposes. Any expenses
incurred at these clubs that are not business
related will be borne by you personally.
9. Nothing in this agreement shall affect in any way
any of your previously accrued and vested pension or
other rights or benefits under any of the plans or
agreements of the Company or any of its subsidiaries
or affiliates.
10. (i) The term of this agreement shall be the
Consulting Term, subject to any earlier termination
of your status as a consultant pursuant to the terms
of subparagraph (ii) of this paragraph. This
agreement shall be automatically continued for like
Consulting Terms of one year unless and until
canceled by either party upon thirty (30) days
written notice prior to the end of any Consulting
Term. Following the termination of this agreement,
each party shall have the right to enforce all
rights, and shall be bound by all obligations of
each party that are continuing rights and
obligations under the terms of this agreement.
(ii) This agreement may be terminated, upon notice
given in the manner provided in paragraph 12 hereof,
prior to the expiration of the Consulting Term:
(A) by the mutual written consent of the Company
and you;
(B) by the Company, upon your death, or your
physical or mental incapacity;
(C) by the Company in the event of your (1)
willful failure to perform substantially the
consulting services contemplated hereby, (2)
breach of any of the other covenants of this
agreement, or (3) engaging in gross misconduct
detrimental to the Company.
(D) by the Company for any other reason.
If this agreement is terminated by the Company prior to the
expiration of the Consulting Term for any reason other than
those set forth in subparagraphs 9(ii)(A), (B) or (C) above,
then the Company shall pay in a lump sum in cash within 30
days of such termination, the aggregate amount of previously
unpaid consulting fees that you would have earned had you
served as a consultant through the expiration of the
Consulting Term.
11. It is hereby understood and agreed that the Company
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shall indemnify you for serving at the request of
the Company as an elected officer or director of any
of its subsidiaries or affiliates to the fullest
extent permitted by applicable law, and the
determination as to whether you have met the
standard required for indemnification shall be made
in accordance with the articles and bylaws of the
applicable entity and with applicable law. It is
further understood and agreed that while serving in
such capacity you will be covered by the Company's
directors and officers insurance policy.
12. Any notice or other communication required
hereunder shall be in writing, shall be deemed to
have been given and received when delivered in
person, or, if mailed, shall be deemed to have been
given when deposited in the United States mail,
first class, registered or certified, return receipt
requested, with proper postage prepaid, and shall be
deemed to have been received on the third business
day hereafter, and shall be addressed as follows:
If to the Company, addressed to:
Xx. Xxxxxxx X. Xxxxxxxx
Chairman of the Board
FM Services Company
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to you:
Xx. Xxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxx Xxxx.
Villa 42
Austin, Texas 78735
or such other address to which either party shall
have notified the other in writing.
13. This agreement is personal to you and the Company
and its subsidiaries and shall not be assignable by
either party without the prior written consent of
the other. This agreement shall be governed by and
construed in accordance with the laws of the State
of Louisiana. This agreement contains the entire
understanding between the Company and you with
respect to the subject matter hereof. Further,
Consultant confirms that he has not relied upon any
representations or statements by the Company as a
basis for entering into this agreement that are not
contained herein. This agreement may not be amended,
modified or extended otherwise than by a written
agreement executed by the parties thereto.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you by signing and
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returning to the Company one of the enclosed copies of this
letter.
Very truly yours,
/S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
President
FM Services Company
I hereby confirm that the foregoing correctly sets forth the
agreement between FM Services Company and myself.
/S/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
December 25, 1997
Date
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