Consulting Agreement - Willamette Industries Inc., and Willam Swindells
THIS AGREEMENT is entered into as of the 1st day of October, 1997, by
and between Willamette Industries, Inc., an Oregon corporation ('Corporation'),
and William Swindells ('Swindells').
WHEREAS, Swindells served as an executive officer of Corporation for
many years, is now its Chairman of the Board and has knowledge and experience of
significant value to Corporation; and
WHEREAS, the Corporation has previously entered into a Consulting
Agreement with Swindells which will expire September 30, 1997; and
WHEREAS, Corporation wishes to continue to avail itself of Swindells'
experience and knowledge by retaining Swindells to provide consulting services
to Corporation with respect to the business of Corporation; and
WHEREAS, Swindells desires to perform such services;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
agreements herein contained, Swindells and Corporation agree as follows:
1. Consulting Services.
(a) Term of Service. Corporation hereby agrees that it will engage
Swindells, and Swindells agrees that he will serve, as a consultant to
Corporation for a period (the 'Term') commencing on October 1, 1997, and ending
on September 30, 1999, or earlier in the event of death or disability of
Swindells. Swindells will be deemed disabled only if, on the basis of medical
evidence acceptable to the Board of Directors of Corporation, Swindells has a
physical or mental condition resulting from unavoidable impairment of mind or
body which can be expected to result in death or to be of long-continued and
indefinite duration and which, in the discretion of the Board of Directors of
Corporation, prevents Swindells from engaging in any employment or occupation
for remuneration or profit. Following September 30, 1999, the Term will extend
for three consecutive one-year periods unless terminated by Corporation or
Swindells upon notice given not less than 30 days prior to the commencement of
any such one-year period; provided however that such extended Term shall not
extend beyond the death or disability of Swindells, or the retirement of
Swindells from the Board of Directors of Corporation.
(b) Nature of Consulting Services. To the extent reasonably
requested by Corporation, Swindells shall consult with and advise Corporation
with respect to acquisitions and strategic planning, capital expenditures,
product development and general corporate and organizational matters. The
Corporation shall not direct the manner or means by which Swindells performs
services under this Agreement. The consulting services shall be provided in
Portland, Oregon at times determined by Swindells except as the parties may
otherwise agree. Corporation shall provide Swindells with adequate information
- 1 -
resources to allow Swindells to perform effectively the services contemplated by
(c) Nature of Relationship. For all purposes, including that of
determining Swindells' eligibility for participation in Corporation's employee
benefit plans, Swindells' relationship to Corporation during the Term shall be
that of an independent contractor and not an employee.
2. Agreement Not to Compete. Swindells hereby agrees that, during the
Term, he will not, directly or indirectly, either as principal, agent,
stockholder, employee or in any other capacity, without the prior approval of
the Board of Directors of Corporation, engage in any activity or be employed by,
assist or have an equity interest in, any business or other entity that competes
in any material respect with Corporation; provided, however, that such
prohibited activity shall not include the ownership of one percent (1%) or less
of the voting securities of any publicly traded corporation regardless of the
business of such corporation. Swindells acknowledges and agrees that a material
breach by Swindells of the provisions of this Section will constitute such
damage as will be irreparable and the exact amount of which will be impossible
to ascertain and for that reason agrees that Corporation will be entitled to an
injunction to be issued by any court of competent jurisdiction restraining and
enjoining Swindells from violating the provisions of this Section. The right of
injunction shall be in addition to and not in lieu of any other remedy available
to Corporation for such breach or threatened breach, including the recovery of
damages from Swindells.
3. Confidential Information. Swindells shall continue to hold
confidential for the benefit of Corporation all secret or confidential
information, knowledge or data relating to Corporation that shall have been
obtained by Swindells during his employment by Corporation or during the Term
and that shall not have become public knowledge.
4. Fees for Services. In consideration of the consulting services to be
performed by Swindells hereunder and for the covenants of Swindells contained
herein, Corporation shall pay Swindells consulting fees at the rate of $10,000
per month during the Term. The obligation of Corporation to make the foregoing
payments to Swindells shall terminate upon the death or disability of Swindells
except with regard to accrued and unpaid amounts. While receiving fees for
services under this Agreement, Swindells shall not receive annual retainer
payments made to non-employee directors of the Corporation, but shall receive
fees for board and committee meetings attended and all other amounts payable to
non-employee directors of Corporation.
5. Other Matters. During the Term, Corporation shall provide Swindells
with the following:
(a) Expenses. Reimbursement for all reasonable travel and other
business expenses incurred by Swindells in the performance of his duties
(b) Office Space; Secretary. Office space, together with the
services of a secretary, appropriate to the status of Swindells hereunder; and
- 2 -
(c) Club Expenses. Dues, fees and expenses for the following
clubs: Arlington Club.
(d) Parking in the building in which Swindells' office is located.
6. Scope of Agreement. Nothing in this Agreement shall limit such
rights as Swindells may have under any other agreements with Corporation.
Amounts which are vested benefits or which Swindells is otherwise entitled to
receive under any plan or program of Corporation shall be payable in accordance
with such plan or program.
7. Indemnification. Corporation shall indemnify Swindells and his legal
representatives to the fullest extent permitted by the laws of the state of
Oregon, the Articles of Incorporation, or the Bylaws of Corporation as in effect
as of the date of this Agreement and from time to time thereafter against all
claims, loss, damages, costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives in connection with any action,
suit or proceeding to which he or his legal representatives may be made a party
by reason of the services performed by Swindells pursuant to this Agreement.
Corporation will, upon request by Swindells, promptly advance or pay any amounts
for costs, charges or expenses (including, but not limited to, reasonable legal
fees and expenses incurred by counsel retained by Swindells) in respect of his
right to indemnification hereunder, subject to a later determination as to
Swindells' ultimate right to receive such payment. Swindells' rights under this
Agreement shall be in addition to, and not in lieu of, any other rights
Swindells may have to indemnification by Corporation.
8. Successors. This Agreement is personal to Swindells and without the
prior written consent of Corporation shall not be assignable by Swindells. This
Agreement shall inure to the benefit of and be binding upon Corporation and its
successors. Corporation will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business of Corporation to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Corporation would be
required to perform it if no such succession had taken place.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Oregon, without reference
to principles of conflict of laws.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Swindells:
Mr. William Swindells
1100 S.W. Myrtle Drive
Portland, Oregon 97201
- 3 -
If to Corporation:
Willamette Industries, Inc.
3800 First Interstate Tower
1300 S.W. Fifth Avenue
Portland, Oregon 97201
Attention: Corporate Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee or three days following mailing, as
provided above, whichever shall first occur.
(c) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) Withholding. Corporation may withhold from any amounts payable
under this Agreement such amounts as shall be required to be withheld pursuant
to any applicable law or regulation.
(e) Entire Agreement; Amendment. This Agreement contains the
entire understanding of Corporation and Swindells with respect to the subject
matter hereof, and may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors and
IN WITNESS WHEREOF, Swindells has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, Corporation has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
/s/ William Swindells
WILLAMETTE INDUSTRIES, INC.
By /s/ Steven R. Rogel
Steven R. Rogel, President
- 4 -