Professional Services Agreement - Lockheed Martin Corp. and James A. Blackwell Jr.
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement is made and entered into effective as of
February 1, 2000 by and between Lockheed Martin Corporation, a Maryland
corporation, located at 6801 Rockledge Drive, Bethesda, Maryland 20817
(hereinafter "LMC") and James A. Blackwell, Jr. located at ______ (hereinafter
"CONTRACTOR").
WITNESSETH:
That in consideration of the promises and mutual obligations hereinafter set
forth, the parties hereto agree as follows:
1. SERVICES BY CONTRACTOR
A. CONTRACTOR shall provide historical background information, factual
and management assistance, guidance and counsel to the Aeronautical
Systems Business Area Executive Vice President on matters involving
operation of the Business Area (the "Services") on an as needed, on
call basis.
B. CONTRACTOR'S primary contact with LMC shall be _____ ______ referred
to hereafter as the Agreement Monitor.
2. TERM
The term of this Agreement shall commence on February 1, 2000 and end on
January 31, 2002. Upon mutual agreement of the parties, this Agreement may
be extended beyond January 31, 2002.
3. COMPENSATION FOR SERVICES
A. CONTRACTOR shall be compensated for the Services to be performed
hereunder by payment of $288,000 on or about February 1, 2000. This
amount represents the collective consideration for the Covenant Not to
Compete set forth in the Release, Noncompete and Confidentiality
Agreement signed by CONTRACTOR in December 10, 1999, as well as
payment for Services rendered, if any, by CONTRACTOR under this
Agreement. CONTRACTOR shall provide up to 48 days of consulting work
per year for two years (from 2-1-00 through 1-31-02). Days worked in
excess of 48 per year will be compensated at $3,000 per day. For
purposes of calculating the 48 days per year under the agreement, each
year will begin on February 1st of 2000 and 2001, respectively.
B. LMC shall provide the CONTRACTOR notice, either written or oral, at
least five (5) days in advance of any meeting LMC wishes the
CONTRACTOR to attend or other Services LMC wishes CONTRACTOR to
provide. CONTRACTOR shall advise LMC promptly whether he is able to
attend such meeting or render such Services within the times requested
by LMC.
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C. With prior approval of the Agreement Monitor, LMC shall reimburse
CONTRACTOR for reasonable and actual travel expenses (at locations
other than CONTRACTOR'S office), including expenditures for hotels,
meals, first class air or rail fare, taxis, car rental, mileage for
use of personal automobile, parking and toll fees, telephone and
incidentals.
D. The total fee and expenses to be paid under this Agreement shall not
exceed $400,000.00.
4. PAYMENT AND INVOICE
A. CONTRACTOR'S invoice shall identify the Services performed during the
period covered by such invoice and be forwarded to: LMC Corporation,
6801 Rockledge Drive, Bethesda, Maryland 20817, Attn.: ______.
Invoices should be issued on at least a quarterly basis
notwithstanding the fact that the services have already been paid for
by virtue of the front end payment made on or about February 1, 2000.
Each invoice should sufficiently describe the Services rendered during
the period covered by the invoice, the days of performance, and the
total number of days worked to date under this Agreement. With each
invoice, CONTRACTOR must submit an "Activity Report", Form No. ___
(Blank Copy attached hereto), for the period covered by the invoice.
B. In the event sums are due for any days worked in excess of 48 days per
year, LMC agrees to make payment within 30 days of receipt and
approval of a proper invoice reflecting these Services. For invoices
claiming reimbursement for expenses, CONTRACTOR is required to attach
original receipts (for expenses exceeding $25.00) for such
expenditures in a form satisfactory to LMC. If original receipts are
not furnished, CONTRACTOR payment shall be subject to Federal, state,
or local taxes.
5. INDEPENDENT CONTRACTOR RELATIONSHIP
CONTRACTOR is an independent contractor in all its operations and
activities hereunder. CONTRACTOR and LMC agree that CONTRACTOR will render
Services according to CONTRACTOR'S own methods and is subject to LMC's
control only with regard to the CONTRACTOR'S final product or result. LMC
shall not exercise direct control or supervision over the means that
CONTRACTOR uses to accomplish CONTRACTOR'S work. The employees used by
CONTRACTOR to perform Work under this Agreement shall be CONTRACTOR'S
employees exclusively without any relation whatsoever to
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LMC. The parties understand and agree that CONTRACTOR is not an employee of
LMC.
6. CONFLICT OF INTEREST
A. CONTRACTOR shall not engage in any activity which presents a conflict
of interest in the line of his relationship with LMC.
B. CONTRACTOR hereby acknowledges receipt of a copy of the LMC
Corporation Code of Ethics and Business Conduct and, by executing this
Agreement, CONTRACTOR agrees that CONTRACTOR and all employees
providing Services under this Agreement will strictly comply with the
provisions of the code in the performance of the Services hereunder.
7. NON-DISLCOSURE OF PROPRIETARY OR CONFIDENTIAL INFORMATION
A. CONTRACTOR agrees not to disclose to others, either during or
subsequent to the term of this Agreement, any LMC information,
knowledge, or data which CONTRACTOR may receive, or have access to, or
which may otherwise be disclosed to CONTRACTOR, proprietary or
confidential information as further defined herein. "Proprietary or
Confidential Information" as used herein means any information of LMC
or of others which has come into the LMC's or CONTRACTOR'S possession,
custody or knowledge in the course of performing Services under this
Agreement that has independent economic value as a result of its not
being generally known to the public and is the subject of reasonable
means to preserve the confidentiality of the information. Proprietary
or Confidential Information includes (without limitation) information,
whether written or otherwise, regarding LMC's earnings, expenses,
marketing information, cost estimates, forecasts, bid and proposal
data, financial data, trade secrets, products, procedures, inventions,
systems or designs, manufacturing or research processes, material
sources, equipment sources, customers and prospective customers,
business plans, strategies, buying practices and procedures,
prospective and executed contracts and other business arrangements or
business prospects, except to the extent such information becomes
readily available to the general public lawfully and without breach of
a confidential, contractual, or fiduciary duty. CONTRACTOR
acknowledges and agrees that he has a continuing obligation to not use
or disclose Proprietary or Confidential Information.
B. CONTRACTOR agrees that Proprietary or Confidential Information shall
be used solely for the purpose of performing the Services required
under this Agreement, and further agrees that except as may strictly
be required by CONTRACTOR'S obligations under this Agreement,
CONTRACTOR shall not reproduce, nor allow any third party to use or
reproduce, any Proprietary or Confidential Information or any
documents or other material containing Proprietary or Confidential
Information.
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C. All materials to which CONTRACTOR had access, or which were furnished
or otherwise made available to CONTRACTOR in connection with the
Services performed hereunder, shall be and remain the property of LMC.
Upon expiration or termination of this Agreement, or upon request of
LMC, CONTRACTOR shall return to LMC all such materials, documents and
information, including any Proprietary or Confidential information and
all reproductions thereof, then in CONTRACTOR'S possession or control,
and CONTRACTOR in connection with this Agreement in accordance with
specific instructions issued by LMC to CONTRACTOR and shall comply
with any instructions within five (5) days of receipt thereof.
CONTRACTOR'S obligations of confidentiality under this Agreement shall
survive termination or expiration of this Agreement.
8. LIABILITY
A. LMC shall not be liable to CONTRACTOR for any loss, injury, damage,
expense or any liability whatsoever arising out of, or in connection
with, the performance of the Services required by this Agreement.
B. Each party shall be responsible to the other for any costs or expenses
including attorneys' fees, all expenses of litigation and/or
settlement, and court costs, arising from the default of such party,
its officers, employees, agents, suppliers, or subcontractors at any
tier, in the performance of any of its obligations under this
Agreement.
9. GOVERNING LAW
This Agreement shall be governed by, subject to, and construed
according to the laws of the State of Maryland excluding its choice of
law rules. CONTRACTOR shall comply with all applicable Federal, state
and local laws, orders and regulations, as well as with all LMC
policies, operating instructions, rules and regulations applicable to
the performance of this Agreement.
10. TERMINATION
A. LMC may not unilaterally terminate this Agreement unless 1) Section
10.C of this Agreement applies, or 2) CONTRACTOR is in default as
described in Section 16 of this Agreement.
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B. CONTRACTOR may not terminate this Agreement without LMC's advance
written consent. LMC will not unreasonably withhold its written
consent if CONTRACTOR'S reason for termination is due to CONTRACTOR'S
desire to accept employment that is not otherwise in violation of
CONTRACTOR'S Covenant Not to Compete obligations (as set forth in the
Retention Agreement dated November 1, 1997 and the Release, Noncompete
and Confidentiality Agreement, dated December 10, 1999) and which
makes him unavailable or unable to provide the Services called for in
this Agreement.
C. This Agreement shall terminate immediately and all payments due shall
be forfeited if, in rendering Services hereunder, improper payments
are made, unlawful conduct is engaged in, or any part of the fee or
expenses payable under this Agreement is used for an illegal purpose.
D. In the event this Agreement is terminated under any provision herein,
CONTRACTOR shall not be required to repay any of the consideration
already paid under the Agreement to date. The termination of this
Agreement shall have no effect whatsoever on the CONTRACTOR'S
continuing obligations under the Covenants Not to Compete referenced
above, which shall survive this Agreement and shall not expire until
January 31, 2002.
11. SEVERABILITY
If any provision of this Agreement shall be held illegal or
unenforceable, the remainder of the Agreement or the application of
any other provisions to the parties shall not be affected thereby.
12. ACCESS TO CLASSIFIED INFORMATION
Performance of this Agreement requires access to classified
information involving National Security up to and including SCI and
Top Secret. If access is required, CONTRACTOR shall furnish the LMC
Security Department with all data required to obtain or verify a
personal security clearance with access to such Classified
Information. Under no circumstances shall CONTRACTOR perform
service(s) involving access to classified information until
CONTRACTOR'S security clearance has been obtained or verified by LMC.
13. ACCEPTANCE OF CONTRACT/TERMS AND CONDITIONS
A. With the exception of 1) the Retention Agreement between CONTRACTOR
and LMC dated November 1, 1997, 2) the letter from ____ to CONTRACTOR
dated December 10, 1999 setting forth enhanced termination benefits,
and 3) the Release, Noncompete and Confidentiality
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Agreement signed by CONTRACTOR on December 10, 1999, this Agreement
integrates, merges, and supersedes any prior offers, negotiations, and
agreements concerning the subject matter hereof and constitutes the
entire agreement between the Parties.
B. CONTRACTOR'S acknowledgment, acceptance of payment, or commencement of
performance, shall constitute CONTRACTOR'S unqualified acceptance of
this Agreement.
C. Additional or differing terms or conditions proposed by CONTRACTOR or
included in CONTRACTOR'S acknowledgment hereof are hereby objected to
by LMC and have no effect unless accepted in writing by LMC.
14. ASSIGNMENT
Any assignment of CONTRACTOR'S contract rights or delegation of duties
shall be void, unless prior written consent is given by LMC. However,
CONTRACTOR may assign rights to be paid amounts due, or to become due,
to a financing institution if LMC is promptly furnished a signed copy
of such assignment reasonably in advance of the due date for payment
of any such amounts. Amounts assigned to an assignee shall be subject
to setoffs or recoupment for any present or future claims of LMC
against CONTRACTOR. LMC shall have the right to make settlements
and/or adjustments in price with CONTRACTOR without notice to the
assignee.
15. CONTRACT DIRECTION
A. Only the LMC Procurement Representative has authority to make changes
in or amendments to this Agreement. Such changes or amendments must be
in writing.
B. Except as otherwise provided herein, all notices to be furnished by
the CONTRACTOR shall be sent to the LMC Procurement Representative.
16. DEFAULT
A. LMC, by written notice, may terminate this Agreement for default, in
whole or in part, if CONTRACTOR fails to comply with any of the terms
of this Agreement, fails to make progress as to endanger performance
of this Agreement, or fails to provide adequate assurance of future
performance. CONTRACTOR shall have ten (10) days (or such longer
period as LMC may authorize in writing) to cure any such failure after
receipt of notice from LMC.
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B. LMC shall not be liable for any Services not accepted; however, LMC
may require CONTRACTOR to deliver to LMC any supplies and materials,
manufacturing materials, and manufacturing drawings that CONTRACTOR
has specifically produced or acquired for the terminated portion of
this Agreement. LMC and CONTRACTOR shall agree on the amount of
payment for these other deliverables.
C. CONTRACTOR shall continue all Services not terminated.
17. DISPUTES
All disputes under this Agreement which are not disposed of by mutual
agreement may be decided by recourse to an action at law or in equity.
Until final resolution of any dispute hereunder, CONTRACTOR shall
diligently proceed with the performance of this Agreement as directed
by LMC.
18. GRATUITIES/KICKBACKS
No gratuities (in the form of entertainment, gifts or otherwise) or
kickbacks shall be offered or given by CONTRACTOR, to any employee of
LMC with a view toward securing favorable treatment as a supplier.
19. INSURANCE/ENTRY ON LMC'S PROPERTY
In the event that CONTRACTOR, its employees, agents, or subcontractors
enter LMC'S or its customer's premises for any reason in connection
with this Agreement, CONTRACTOR, its subcontractors and lower-tier
subcontractors, shall procure and maintain worker's compensation,
comprehensive general liability, bodily injury and property damage
insurance in reasonable amounts, and such other insurance as LMC may
require and shall comply with all site requirements. CONTRACTOR shall
indemnify and hold harmless LMC, its officers, employees, and agents
from any losses, costs, claims, causes of action, damages,
liabilities, and expenses, including attorneys' fees, all expenses of
litigation and/or settlement, and court costs, by reason of property
damage or personal injury to any person caused in whole or part by the
actions or omissions of CONTRACTOR, its officers, employees, agents,
suppliers, or subcontractors at any tier. CONTRACTOR shall provide
LMC thirty days advance written notice prior to the effective date of
any cancellation or change in the term or coverage of any of
CONTRACTOR'S required insurance. If requested, CONTRACTOR shall send
a "Certificate of Insurance" showing CONTRACTOR'S compliance with
these requirements. CONTRACTOR shall name LMC as an additional
insured for the duration of this Agreement. Insurance maintained
pursuant to this
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clause shall be considered primary as respects the interest of LMC and
is not contributory with any insurance which LMC may carry.
20. INTELLECTUAL PROPERTY
A. CONTRACTOR agrees that LMC shall be the owner of all inventions,
technology, designs, works of authorship, mask works, technical
information, computer software, business information and other
information conceived, developed or otherwise generated in the
performance of this Agreement by or on behalf of CONTRACTOR.
CONTRACTOR hereby assigns and agrees to assign all right title and
interest in the foregoing to LMC, including without limitation all
copyrights, patent rights and other intellectual property rights
therein and further agrees to execute, at LMC'S request and expense,
all documentation necessary to perfect title therein in LMC.
CONTRACTOR agrees that it will maintain and disclose to LMC written
records of, and otherwise provide LMC with full access to, the subject
matter covered by this and that all such subject matter will be deemed
information of LMC and subject to the protection provisions of the
clause entitled "Information of LMC." CONTRACTOR agrees to assist LMC,
at LMC'S request and expense, in every reasonable way, in obtaining,
maintaining, and enforcing patent and other intellectual property
protection on the subject matter covered by this Clause.
B. CONTRACTOR warrants that the Services performed and delivered under
this Agreement will not infringe or otherwise violate the intellectual
property rights of any third party in the United States or any foreign
country. CONTRACTOR agrees to defend, indemnity and hold harmless LMC
and its customers from and against any claims, damages, losses costs
and expenses, including reasonable attorney's fees, arising out of any
action by a third party that is based upon a claim that the Services
performed or delivered under this Agreement infringes or otherwise
violates the intellectual property rights of any person or entity.
21. RELEASE OF INFORMATION
Except as required by law, no public release of any information, or
confirmation or denial of same, with respect to this Agreement or the
subject matter hereof, will be made by CONTRACTOR without the prior
written approval of LMC.
22. TIMELY PERFORMANCE
A. CONTRACTOR'S timely performance is a critical element of this
Agreement.
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B. If CONTRACTOR becomes aware of difficulty in performing the Services,
CONTRACTOR shall timely notify LMC, in writing, giving pertinent
details. This notification shall not change any delivery schedule.
23. WAIVER, APPROVAL, AND REMEDIES
A. Failure by LMC to enforce any of the provision(s) of this Agreement
shall not be construed as a waiver of the requirement(s) of such
provision(s), or as a waiver of the right of LMC thereafter to enforce
each and every such provision(s).
B. LMC'S approval of documents shall not relieve CONTRACTOR from
complying with any requirements of this Agreement.
C. The rights and remedies of LMC in this Agreement are cumulative and in
addition to any other rights and remedies provided by law or in
equity.
24. AMENDMENTS AND NOTICE
A. Sole authority to make changes in or amendments to this Agreement on
behalf of LMC rests with a LMC Central Procurement Administrator, and
no direction from such Administrator shall be valid unless in writing.
B. All notices by LMC or CONTRACTOR shall be given in writing by mail or
fax to the following locations:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.