Exhibit 10(c)
CONSULTING AGREEMENT
AGREEMENT (the "Agreement"), made as of the 24th day of April,
1999, by and between Union Pacific Railroad Company, a Delaware corporation
("UPRR"), and Jerry R. Davis ("Consultant").
WHEREAS, the Consultant was previously employed by UPRR and possesses an
intimate knowledge of the business and operations of UPRR; and
WHEREAS, UPRR desires to retain the Consultant in the capacity
of an independent consultant and the Consultant desires to commit himself to
providing the consulting services provided for herein;
Now, therefore, in consideration of the respective covenants and agreements
of the parties herein contained, the parties hereto agree as follows:
1. Engagement. UPRR hereby engages the Consultant to provide
the Consulting Services (as defined in Paragraph 2) to UPRR and its affiliates,
and the Consultant hereby accepts such engagement, on the terms and conditions
set forth herein, for the period commencing on the date hereof and expiring on
March 31, 2000 (the "Term"), unless sooner terminated as provided in paragraph
5.
2. Services. The Consultant agrees, during the Term, to
provide advisory and consulting services to UPRR relating to railroad safety
issues, government regulation of railroad operations and other matters relating
to the operation of UPRR as may be requested, including meeting with relevant
regulatory authorities, and other services relating to safety (A Consulting
Services"). The Consulting Services shall be performed at the request of the
Chief Executive Officer of UPRR and in such places as UPRR requests. The
Consultant shall devote such time to the Consulting Services as the parties
hereto mutually agree. This is not intended to be an exclusive relationship, and
the Consultant may contract with others so long as he does not violate the
confidentiality provisions of this Agreement.
3. Independent Contractor. UPRR and the Consultant agree that
he is an independent contractor, and that the Consultant will have complete
control over how he performs services under this Agreement. The Consultant shall
not be considered an employee or agent of UPRR or its affiliates for any purpose
and shall not be entitled or eligible to participate in any benefits or
privileges given or extended by UPRR or its affiliates to their employees. The
Consultant shall have no power or right to enter into contracts or commitments
on behalf of UPRR or its affiliates.
4. Fees and Expenses.
(a) Fees. In consideration of the Consulting Services as
contemplated by this Agreement, UPRR shall pay to the Consultant in cash the sum
of $100,000, payable on or before April 30, 1999.
(b) Reimbursement of Expenses.During the Term, UPRR shall
reimburse the Consultant for all reasonable and necessary business expenses
incurred by him in connection with performing the Consulting Services in
accordance with and on the terms of UPRR's customary expense reimbursement
policies.
5. Confidential Information. The Consultant shall not, without
the written consent of the Board of Directors of UPRR or a person authorized
thereby or pursuant to lawful process, while engaged by UPRR or at any time
thereafter, directly or indirectly, publish or disclose to any person, firm,
corporation or other entity, whether or not a competitor of UPRR or any
affiliate thereof, except as necessary in connection with the performance by the
Consultant of the Consulting Services, any Confidential Information. For
purposes of this Agreement, "Confidential Information" means all information
about UPRR and its affiliates obtained or developed by the Consultant while an
employee of or consultant to UPRR, whether before or during the Term, including,
but not limited to, information regarding directors, officers and other key
personnel of UPRR and its affiliates, financial information or plans and other
matters, and which UPRR has requested be held in confidence or which it could
reasonably be expected to desire to be held in confidence, or the disclosure of
which would likely be disparaging or disadvantageous to UPRR or any of such
employees and directors, but shall not include information already in the public
domain.
The Consultant acknowledges that the provisions of this Section 5
are reasonable and necessary for the protection of UPRR and that UPRR will be
irrevocably damaged if such covenants are not specifically enforced.
Accordingly, the Consultant agrees that, in addition to any other relief to
which UPRR may be entitled in the form of actual of punitive damages, UPRR shall
be entitled to seek and obtain injunctive relief from a court of competent
jurisdiction (without the posting of bond therefor) for the purposes of
restraining the Consultant from any actual or threatened breach of such
covenants.
6. Notices. Notices and all other communications provided for
in this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to Consultant, to:
Jerry R. Davis
2131 East Alameda
Denver, Colorado 80209
If to UPRR, to:
Union Pacific Railroad Company
1416 Dodge Street
Omaha, Nebraska 68179
Attn: Barbara W. Schaefer
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7. Amendment and Waiver. No provisions of this Agreement may be
amended, waived or discharged unless such amendment, waiver or discharge is
agreed to in writing and signed by the Consultant and UPRR. No waiver by any
party hereto at any time of any breach by another party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar of dissimilar provisions or conditions
at the same or at any prior or subsequent time.
8. Integration. This Agreement contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter.
9. Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Nebraska.
10. Assignment; Binding Agreement. This Agreement may not be
transferred or assigned by either party, but shall be binding on the successors
and permitted assigns of each party. This Agreement and all rights of the
Consultant hereunder shall inure to the benefit of and be enforceable by the
Consultant's personal or legal representatives, executors, administrators,
successors, heirs, distributees, divisees and legatees.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
UNION PACIFIC RAILROAD COMPANY
By
Name:
Title:
By
Name: Jerry R. Davis