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EXHIBIT 10.1
CONSULTING/NON-COMPETE AGREEMENT
The Agreement made effective this 1st day of February, 1995 by and between
NOMECO Oil & Gas Co., a Michigan corporation with offices located at One
Jackson Square, Jackson, Michigan 49204 ("NOMECO") and Richard J. Burgess, an
individual residing at 5380 Squire Manor Drive, Jackson, Michigan 49201
("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant was employed by NOMECO for 27 years, most recently as its
President and Chief Executive Officer;
WHEREAS, Consultant is possessed of extensive knowledge and experience in the
business of NOMECO and the industry of which NOMECO is a part;
WHEREAS, Consultant is in good health and in possession of the
financial resources, business skills and knowledge to start up another
enterprise to compete with NOMECO;
WHEREAS, NOMECO desires reasonable assurances of Consultant's
continuing loyalty, non-competition with NOMECO and nondisclosure of and
reasonable protection of NOMECO's confidential business information which has
been and will be acquired and which has been and is being developed by NOMECO
at substantial expense; and
WHEREAS, NOMECO and CMS Energy desires to procure Consultant's
services as a consultant and Consultant is willing to furnish such services on
the terms herein contained.
NOW, THEREFORE, in consideration of the premises hereof and of
mutual covenants to be bound by the terms hereof, the parties agree as follows:
1. Term. This Agreement shall become effective as of the date
hereof, and shall remain in effect through April 30, 1996;
provided that this Agreement shall remain in effect from month
to month thereafter subject to termination at any time after
the initial term at the election of either party on 30 days'
written notice to the other; and provided further that the
provisions contained in Section 9 hereof shall survive
termination of this Agreement.
2. Duties of Consultant. Consultant shall advise NOMECO or an
affiliated CMS Company on issues pertaining to its business
and render such other services, including, but not limited to,
testimony, advocacy and public representation as the client
shall from time to time require.
3. Non-Compete. During the term of this Agreement, Consultant
will not, directly or indirectly, personally or as an
employee, associate, partner, manager, agent,
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owner, investor in excess of 5% of the outstanding capital
stock of any corporation or partnership, operator or
otherwise, or by means of any corporate or other device,
engage in the business of NOMECO in any market in which
NOMECO currently competes. Notwithstanding the foregoing,
Consultant shall be allowed to invest in the oil industry,
provided that such investment does not result in a control
position for Consultant.
4. Compensation. In consideration for the covenants of
Consultant contained in Sections 2 and 3 herein, Consultant
shall be compensated a minimum amount of $7500 per month for
each calendar month during the term hereof, whether or not
Consultant actually performs any services hereunder during any
such month, and at a rate of $1500 per day for services in
excess of five (5) days per calendar month performed by
Consultant hereunder. If during the term hereof NOMECO
increases the $1500 amount paid to NOMECO's nonmanagerial
directors as a meeting attendance fee, the $1500 rate to be
paid Consultant hereunder shall be increased by the same
amount at the same time and the $7500 monthly minimum to be
paid Consultant shall be increased at the same time by an
amount computed by multiplying the day rate increase by five
(5).
5. Expenses. NOMECO shall reimburse Consultant for all
reasonable and necessary expenses incurred by him in the
performance of his duties hereunder.
6. Billing and Payment. Consultant shall periodically submit to
NOMECO a statement of compensation due him and expenses
incurred by him since the date of the prior statement on a
form prescribed by NOMECO, together with such evidence of
expenditures as NOMECO reasonably requires. Within twenty
(20) days of receipt of each such statement, NOMECO shall pay
Consultant for compensation due and reimburse Consultant all
expenses properly incurred and reported.
In the event of Consultant's demise prior to payment of all
sums owing hereunder, all remaining payments shall be made to
his beneficiary.
7. Office and Secretary. During the term hereof NOMECO shall
make available to Consultant an appropriate office and
secretarial services. Consultant may at his discretion work
from other locations and use other secretarial services in the
performance of this Agreement.
8. Contract Status. It is understood between the parties that
Consultant is an independent contractor and that the manner of
performance of his duties, which will be generally described
to him by NOMECO is within his discretion.
Although it is understood and agreed that Consultant shall not
be required to devote more than twenty (20%) percent of his
normal working time (up to fifty
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(50%) at Consultant's election) to rendering such service or
to follow any formal schedule of duties or assignment and that
NOMECO shall not supervise the details and particulars of the
manner in which he performs such services, Consultant agrees
to give first priority to the business and affairs of the
Company and its affiliates and not to accept other engagements
which will interfere, or be inconsistent, with his services
hereunder.
9. Indemnification. NOMECO hereby agrees to indemnify and hold
Consultant harmless from any acts or omissions of Consultant
in performing the services hereunder; provided, however, that
NOMECO shall not indemnify Consultant for any gross negligence
or willful misconduct of Consultant. Consultant agrees that
NOMECO shall not be liable to Consultant for any personal
injury or other damages to Consultant except to the extent
cause by NOMECO's gross negligence or willful misconduct.
10. Confidentiality. All information, whether oral, written or
otherwise, which NOMECO or an affiliate provides to the
Consultant or which is generated or derived by the Consultant
in or as a result of the services hereunder and which NOMECO
designates, in writing or orally, as confidential to NOMECO,
shall be held in strict confidence by the Consultant and shall
not be disclosed by the Consultant to any third party without
NOMECO's express written consent.
11. Severability. If any paragraph, sentence, clause or other
provision of this Agreement or the application of such
provision, is held invalid or unenforceable, such provision
shall be deemed to be modified in a manner, consistent with
the intent of such original provision, so as to make it valid
and enforceable, and this Agreement, and the application of
such provision to persons or circumstances other than those
with respect to which it would be invalid or unenforceable,
shall not be affected thereby.
IN WITNESS WHEREOF, the parties have signed this Agreement on the 22nd day of
December, 1994.
CMS ENERGY NOMECO OIL & GAS CO.
BY: /S/ VICTOR J. FRYLING BY: /S/ GORDON L. WRIGHT
VICTOR J. FRYLING
ITS: PRESIDENT ITS: EXEC VICE PRESIDENT
RICHARD J. BURGESS
/S/ RICHARD J. BURGESS
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