EXHIBIT 10.2
ANNEX I
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this 1st
day of July, 2003, by and between Occidental Petroleum Corporation, a Delaware
corporation ("OPC"), and J. Roger Hirl ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been employed as an employee of OPC since July,
1983; and
WHEREAS, the parties now desire to end the employment relationship and
provide for the availability of Mr. Hirl solely on a consulting basis;
NOW, THEREFORE, in consideration of the mutual covenants and. agreements
herein set forth, the parties agree as follows:
1. Services. Effective as of the date hereof, Consultant shall be
available to render services to OPC as a consultant for up to thirty (30) days
during each twelve (12) month period from July 1, 2003 through June 30, 2005
(the "Consultant Term"). Consultant's consultation services shall be limited to
those services which OPC requests from time to time. Consultant shall make
himself available for such consultation services in OPC's offices and elsewhere
as determined by OPC. OPC shall reimburse Consultant for all of his reasonable
and actual business expenses incurred in connection with providing services
specified hereunder.
2. Compensation. During the Consultant Term OPC shall compensate
Consultant at the monthly rate of sixteen thousand six hundred sixty-seven
dollars ($16,667) (the "Monthly Retainer"), payable semimonthly, less
appropriate deductions for taxes, etc.
3. Restriction on Other Services. During the Consultant Term, Consultant
shall not engage in full or part-time employment or work; accept employment
with, or act as a Consultant for, or perform services for any person, firm or
corporation without the prior written consent of OPC.
4. Non-Disclosure of Information. Without the prior written consent of
OPC (which consent shall not be unreasonably withheld to the extent any
disclosure by Employee is required by applicable law or regulation or applicable
order of any court or governmental agency), Consultant shall not divulge to any
person, business, firm, corporation or government entity, nor use to the
detriment of OPC, or any of its subsidiaries, nor use in any business, venture,
or any organization of any kind, or in any process of manufacture, production or
mining, at any time, except as necessary in performing services for OPC:
(a) Any OPC trade secrets in any form, including without limitation,
all graphic material, forms, documents, data and information; and
(b) Any OPC confidential information in any form, including without
limitation, concerning inventions, discoveries, improvements. methods,
technology, business plans, environmental plans, audits, reviews or other
investigatory processes, procedures and practices, enterprises, exploration,
mining or drilling information, manufacturing information, plant design,
location or operation, financial results, reports or similar information, or any
other OPC confidential information affecting or concerning the business or
operation of OPC or any of its directors, officers or employees developed,
acquired, used by or disclosed to Consultant in the performance of his services
at any time in any capacity for OPC.
5. Return of Documents. Consultant agrees to return to OPC no later than
ten (10) calendar days after the effective date hereof, all OPC property and all
originals and copies of OPC's property in his possession or under his control,
including without limitation, keys, security passes, directories, policies,
procedures. manuals. reports, organization charts, files, and computer discs
containing any information concerning his job or any other information
concerning OPC which he acquired during his employment with OPC. Consultant
agrees that he will forever keep in strictest confidence (and will not deliver
to anyone else) any and all notes, notebooks, memoranda, documents computer
discs, manuals, files, and phone lists and, in general, any and all information
and material in his possession or control affecting or concerning OPC's business
or operations without the prior written consent of OPC (which consent shall not
be unreasonably withheld to the extent any disclosure by Employee is required by
applicable law or regulation or applicable order of any court or governmental
agency).
6. Non-Disclosure of Terms, etc. Consultant shall not, unless directed by
lawful court order, disclose the terms and conditions of this Agreement to
anyone other than his immediate family and any person deemed to be necessary to
effectuate the terms and conditions of this Agreement, such as his attorney or
accountant.
7. Termination. OPC may terminate this Agreement for cause (as defined in
the Employment Agreement, between OPC and Consultant, dated December 13, 2001),
and Consultant may terminate this Agreement at any time upon thirty (30) days'
notice to OPC.
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8. Release and Discharge. Except for obligations created by this
Agreement, and obligations to indemnify and defend Consultant for his acts or
omissions as an employee, officer or director of either OPC or its subsidiaries
pursuant to either OPC's by-laws, its Directors and Officers Liability Insurance
or any other of its insurance applicable thereto, Consultant absolutely and
forever releases and discharges Occidental Petroleum Corporation and its past
and present subsidiaries, affiliated corporations and each of their
shareholders, officers, directors, employees, insurance carriers, predecessors
and successors, assigns, agents, attorneys, representatives, heirs,
administrators (collectively "OPC Releasees") from any and all claims, demands,
damages, losses, liabilities, debts, liens, judgments, obligations, accounts,
actions, and causes of action, whether past, present, or future, known or
unknown, at law, in arbitration or in equity, arising out of or in connection
with any act or omission occurring at any time heretofore, including without
limitation any act or omission related to or arising out of Consultant's
employment, or the termination of benefits or other terms of employment by OPC
or any California or other state, municipal, or Federal constitution, statute,
regulation, ordinance, order, or common law, including without limitation, Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et
seq.; the Civil Rights Act of 1991; the Civil Rights Act of 1866, as amended, 42
U.S.C. Section 1981 et seq.; the Equal Pay Act, as amended, 29 U.S.C. Section
206(d) et seq.; Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. Section 1001 et seq.; The Americans With Disabilities Act, 42 U.S.C.
Section 12101 et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2601 et seq.; United States Executive Orders 11246 and 11375; the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et
seq.; California Government Code Section 12900 et seq.; the UNRUH Civil Rights
Act, as amended, California Civil Code Section 51 et seq.; the Regulations of
the Office of Federal Contract Compliance Programs, as amended, 41 C.F.R.
Section 60 et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C.
Section 701 et seq.; or any claims based on misrepresentation, fraud, contract,
an accounting, wrongful or constructive discharge, breach of privacy,
retaliation, breach of covenant of good faith and fair dealing, violation of
public policy, defamation, negligent or intentional infliction of emotional
distress, discrimination on any basis prohibited by statute, common law,
ordinance or public policy, loss of consortium, negligence, interference with
business opportunity or with contracts, breach of fiduciary duty, or unfair
insurance practices arising out of or related to any act or omission occurring
before this Agreement is executed by Consultant, except that Consultant does not
waive any claim for vested pension benefits or other welfare benefits to which
Consultant is entitled per the terms of the plans, e.g. medical benefits.
Consultant represents that he is unaware of any workers' compensation claims
brought on his behalf or of any facts on which such a claim could be brought.
9. Waiver. Consultant understands and acknowledges that there are laws
which may invalidate releases of claims which are unknown to the releasing
party. Consultant hereby waives any protection to which he may otherwise be
entitled against OPC Releasees by virtue of any such law. In particular, and not
by way of limitation, Consultant represents and acknowledges that he is familiar
with Section 1542 of the California Civil Code, which provides as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist
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in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor.
Consultant waives and relinquishes any rights and/or benefits which he has or
may have against OPC Releasees under Section 1542 of the California Civil Code,
or any similar applicable statute of any jurisdiction to the fullest extent
permitted by law.
10. No Other Severance Benefits. Notwithstanding anything in this
Agreement to the contrary, Consultant hereby acknowledges and agrees that this
Agreement is in lieu of, and because he has entered into this Agreement he is
automatically ineligible for and disqualified from participating in, any and all
plans, programs or arrangements of severance, separation, termination or pay
continuation announced or maintained heretofore or hereafter by OPC or any of
its subsidiary or affiliated companies.
11. Nature of Relationship. Consultant's relationship with OPC shall be as
an independent consultant, and not as an employee.
12. No Other Employment Agreements. As of the date of this Agreement any
other existing employment or consulting agreement, or any plan, program or
arrangement of severance, separation, termination, or pay continuation, oral,
written or implied, between Consultant and OPC shall be deemed to be terminated
and of no further force or effect. Further, the parties agree and acknowledge
that this Agreement constitutes and contains the entire agreement and
understanding of the parties concerning the subject matters hereof, and
supersedes and replaces all prior negotiations, proposed agreements, or
agreements, written or oral or implied. The parties each acknowledge, one to the
other, that no other party, nor any agent or attorney of any other party, has
made any promise, representation, or warranty whatsoever (express, implied or
statutory) not contained herein concerning the subject matters hereof to induce
them to execute this Agreement and that they have not executed this Agreement in
reliance upon any such promise, representation, or warranty not contained
herein. The parties further agree that any oral representations or modifications
concerning this instrument shall be of no force or effect, and that this
Agreement can only be modified by a writing, signed by all of the parties
hereto.
13. Arbitration. In the event of any dispute rising out of this Agreement,
Consultant's prior employment or the Consultant Term or any other matter between
the parties, Consultant and OPC agree that any such dispute shall be decided
exclusively by neutral binding arbitration conducted in Los Angeles, California
in accordance with the then current rules of the American Arbitration
Association in effect in Los Angeles, California applicable to employment
disputes. In the event the parties are unable to agree upon an arbitrator, they
shall select from a list of seven (7) arbitrators designated by the American
Arbitration Association. This Agreement to resolve any disputes by binding
arbitration shall extend to claims by Consultant against any OPC Releasees and
shall apply as well, to the full extent permitted by law to claims arising out
of local, state and federal common law, statutes and ordinances. However,
Consultant and OPC shall retain whatever rights to injunctive relief may be
available under applicable laws concerning any claims and any dispute or claim
in connection with the receipt of benefits under any benefit plans shall be
governed by the claims procedures under the applicable plan.
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14. Release Acknowledgment. Consultant expressly acknowledges and agrees
that the releases given above include a waiver and release of all claims which
Consultant has or may have under the Age Discrimination in Employment Act Of
1967, as amended, 29 U.S.C. Section 621 et seq. The releases given above are
given only in exchange for consideration (something of value) in addition to
anything of value to which Consultant is otherwise already entitled. All
releases set forth above do not waive rights or claims which may arise after the
date of execution of this Agreement. Consultant acknowledges that (i) this
entire Agreement is written in a manner calculated to be and is understood by
Consultant, (ii) he has been advised in writing to consult with an attorney
before executing this Agreement, and (iii) he has up to forty-five (45) days
from the date he is presented with this Agreement to consider whether or not to
sign the Agreement, and (iv) to the extent he executes this Agreement before the
expiration of the forty-five (45)-day period, he does so knowingly and
voluntarily. If Consultant signs this Agreement he shall have the right to
cancel and revoke this Agreement during a period of seven (7) calendar days
following his execution of the Agreement and this Agreement shall not become
effective, and no money shall be paid hereunder until the expiration of such
seven (7)-day period. In order to revoke this Agreement, Consultant shall
deliver to OPC, prior to the expiration of said seven (7)-day period, a written
notice of cancellation. This Agreement shall become effective on the eighth
(8th) day after Consultant's execution, provided there has been no revocation
pursuant to this paragraph.
15. Severability. Should any part of this Agreement, with the exception of
Paragraphs 1 and 2, the releases and related provisions embodied in Paragraphs
8, 9 and 14, be declared or determined by any Court or other tribunal of
appropriate jurisdiction to be invalid or unenforceable, any such invalid or
unenforceable part, term or provision shall be stricken and severed from this
Agreement and all other terms of the Agreement shall remain in full force and
effect to the fullest extent permitted by law. The releases and related
provisions embodied in Paragraphs 8, 9, and 14 and Paragraphs 1 and 2 are
material to this Agreement and should any of these paragraphs be deemed invalid
or unenforceable, this Agreement shall be null and void and any consideration
received under this Agreement shall be returned to OPC.
16. Assignment. This Agreement shall be binding upon Consultant, his
heirs, executors and assigns and upon OPC, its successors and assigns.
17. Governing Law. This Agreement is made and entered into in the State of
California and shall be governed by, and construed in accordance with, the laws
of the State of California, without regard to principles of conflict of laws.
18. No Change of Control of Employer (as defined below) shall be deemed to
amend the terms and conditions of this Agreement. For purposes of this Agreement
a "Change of Control of Employer" shall be deemed to have occurred if, after the
date of this Agreement, any person, corporation or other entity becomes the
beneficial owner, directly or indirectly, of 25% or more of the combined voting
power of Employer's then outstanding voting securities.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the
day and year first hereinabove written.
OCCIDENTAL PETROLEUM CORPORATION
By /s/ RAY R. IRANI
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Dr. Ray R. Irani
Consultant
By /s/ J. ROGER HIRL
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J. Roger Hirl
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