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EXHIBIT ▇▇.▇▇
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of December 14, 1995, by and between
BW/IP INC., a Delaware corporation, with its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Corporation"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇
("Consultant").
WHEREAS, Consultant is currently serving as the Chairman of the Board
of Directors ("Chairman"), of the Corporation;
WHEREAS, the Consultant retired from the offices of President and Chief
Executive Officer on October 19, 1995, but is willing to continue as the
Chairman and to provide services to the Corporation as an employee until
December 31, 1995 and to the Corporation as a Consultant thereafter;
NOW, THEREFORE, in consideration of their mutual promises, the
Corporation and Consultant agree as follows:
1. Consulting Services. During the period beginning on January 1, 1996
and continuing until May 15, 1997 (the "Consulting Period"), Consultant shall
provide to the Corporation consulting services commensurate with his status and
experience with respect to such matters as shall be reasonably requested from
time to time by the Board, including, without limitation, such assistance as
the Board shall request. Consultant shall not, solely by virtue of the
consulting services provided hereunder, be considered to be an officer or
employee of the Corporation during the Consulting Period, and shall not have
the power or authority to contract in the name of or bind the Corporation,
except as may be expressly stated in a written delegation of such authority
from the Board or as provided in the Corporation's By-laws.
2. Consulting Fees. (a) Cash Compensation. During the Consulting
Period, the Corporation shall pay Consultant $200,000 annually, payable in
approximately equal monthly installments in arrears, as compensation for the
services to be rendered by Consultant hereunder. Such amount shall be in
addition to any annual retainer or per meeting fees otherwise payable to the
Corporation's non-employee directors, whether paid in cash or in property.
(b) Expenses. The Corporation shall also reimburse Consultant for such
reasonable travel, lodging and other appropriate expenses incurred
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by Consultant in the course or on account of rendering any services requested of
him hereunder by the Board upon submission of itemized reports consistent with
good business practices. During the Consulting Period, Consultant shall have
available to him in the performance of his duties hereunder the use of the
Corporation's membership in the California Club.
(c) Director Compensation. Except as otherwise provided above,
Consultant shall not be eligible to participate in any compensatory plan or
program for non-employee directors.
3. Employee Programs. (a) Benefits Generally. Effective as of
December 31, 1995, Consultant's employment with the Corporation shall
voluntarily terminate. Except as otherwise expressly provided below,
Consultant's continued participation in, or rights to receive compensation or
other benefits under, any of the Corporation's employee benefit plans, programs
or arrangements (including those plans, programs or arrangements available
solely for the benefit of senior officers) shall be governed by the terms and
conditions of the applicable plan, program or arrangement.
(b) Long-Term Incentive Plan Awards. Solely for purposes of determining
Consultant's rights with respect to any grants made under the Company's 1992
Long-Term Incentive Plan (the "LTIP"), Consultant's services hereunder shall be
deemed to be employment with the Corporation. Upon completion of the Consulting
Period, the exercisability of all of Consultant's then outstanding options under
the LTIP shall be fully and immediately exercisable regardless of the initial
exercise schedule applicable thereto and Consultant shall be deemed to have
retired for purposes of such LTIP.
(c) Company Car. As of December 31, 1995, the Corporation shall
transfer to Consultant title with respect to the automobile currently made
available by the Corporation for his use, without any payment to the Company
(other than to satisfy any tax withholding that may be required at law).
4. Confidential Information. Without the prior written consent of the
Board, and except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency, Consultant
shall not disclose to any third person any trade secrets, customer lists,
drawings, designs, product development, marketing plans, sales plans, management
organization, operating policies and manuals, business plans, financial records,
any information related to any of the foregoing or other financial, commercial,
business or technical
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information related to the Corporation or any of its subsidiaries unless such
information has been previously disclosed to the public by the Corporation or
has become public knowledge other than by Consultant's breach of this Agreement.
5. Noncompetitiion and Nonsolicitation. During the Consulting Period,
Consultant shall not be engaged as an employee, director, partner, principal,
investor, shareholder, consultant, advisor or independent contractor or in any
similar capacity, in any other business activity or conduct, whether or not such
business activity or conduct is pursued for gain, profit or other pecuniary
advantage, which competes with the business of the Corporation or any of its
subsidiaries; provided that nothing in this Paragraph 6(a) shall preclude
Consultant from holding a less than 1% interest in the stock of any publicly
traded corporation, trust or partnership. During the Consulting Period,
Consultant will not solicit or otherwise induce any employee of the Corporation
or any of its subsidiaries to leave the employ of the Corporation or any such
subsidiary or to become associated, whether as an employee, officer, partner,
director, consultant or otherwise, with any other business organization.
6. Indemnity. The Corporation shall indemnify Consultant for any claim
arising out of or in connection with Consultant's service as a Consultant or as
a member of the Board, as an officer of the Corporation, as an officer or
director of any of the Corporation's subsidiaries or as a consultant pursuant to
the terms of this Agreement in the same manner and to the same extent as the
Corporation or such subsidiary, as the case may be, indemnifies its then current
directors, officers or employees, as the case may be.
7. Death or Disability of Consultant. If Consultant dies prior to the
end of the Consulting Period or is unable to perform the services requested of
him hereunder due to physical or mental disabilities, as determined by a doctor
mutually acceptable to the Corporation and Consultant, the Corporation shall
have no further obligation to Consultant hereunder.
8. Remedies; Reformation. Consultant acknowledges that a material part
of the inducement for the Corporation to enter into this Agreement is
Consultant's covenant with respect to noncompetition, nonsolicitation and
nondisclosure of confidential information. Consultant agrees that if Consultant
shall breach that covenant, the Corporation shall be entitled to such legal and
equitable relief as a court or arbitrator shall reasonably determine. If any
provision of this Agreement is determined not to be enforceable in the manner
set forth herein, the Corporation and Consultant agree that it is the intention
of the parties that such provision
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should be enforceable to the maximum extent possible under applicable law and
that such provision should be reformed to make it enforceable in accordance with
the intent of the parties.
9. Miscellaneous. This Agreement may only be amended by a written
instrument signed by the Corporation and Consultant. This Agreement shall
constitute the entire agreement between the Corporation and Consultant with
respect to the subject matter hereof. The obligations of the Corporation to
Consultant and the covenants of Consultant in favor of the Corporation shall
survive the termination of Consultant's services hereunder. All cash payments to
be made under this Agreement shall be made net of any and all applicable income
and employment taxes required to be withheld from such payments. This Agreement
may be executed incounterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
10. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without reference to the principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day first written above.
BW/IP INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President and
Chief Executive Officer
Witness:
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Witness:
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