EXHIBIT 2.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
June 4, 1997, by and between CHEMICAL TECHNOLOGIES, INC., a Texas corporation
("Employer"), and XXXXX XXXXXXX ("Employee"), with reference to the following
facts:
A. Employee has been employed by Employer as its President.
B. On the date of this Agreement, Employer has become a wholly-owned
subsidiary of NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark").
Employer desires to assure itself of the continued services of Employee for a
term expiring no sooner than June 30, 2000, and the parties are entering into
this Agreement for that purpose and in order to set forth the terms of the
employment of Employee.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth herein, the parties agree as follows:
1. Term of Employment.
Employer hereby continues the employment of Employee, and
Employee hereby accepts continued employment with Employer, for a period
commencing on the date hereof and, except as otherwise provided herein, expiring
June 30, 2000, provided, however, that, each time neither party terminates this
Agreement by written notice given at least sixty (60) days prior to the
expiration of the employment term as last renewed or extended, it shall be
automatically renewed for an additional twelve month period. As used herein, the
phrase "employment term" refers to the entire period that Employee shall be
employed hereunder, whether for the initial period provided above, or whether
this Agreement is terminated earlier or extended automatically as provided
herein or by mutual agreement between Employer and Employee.
2. Duties of Employee.
2.1 Employee shall serve as a senior executive officer of
Employer and shall do and perform all services, acts and things necessary or
advisable in that capacity in connection with the conduct of the business of
Employer, subject to the instructions of and policies and limitations set by its
Board of Directors. It is contemplated that Employee's role will be
substantially the same as his role with Employer immediately prior to date
hereof.
2.2 Employee shall devote his entire productive time, ability
and attention to the business of Employer during the employment term, except
that Employee may devote time and effort to personal activities to the extent
that such activities do not materially interfere with the performance of his
duties hereunder. If Employer advises Employee that, in its good faith
judgment, such activities are materially interfering with the performance of
Employee's duties hereunder, Employee will promptly take steps to appropriately
limit such activities. Subject to the foregoing, Employee shall not directly or
indirectly render any services of a business, commercial or professional nature
to any other person or organization, whether for
compensation or otherwise, without the prior written consent of the Board of
Directors of Employer.
2.3 Employee agrees to serve without additional compensation, if
elected or appointed thereto, in one or more offices as an officer, director or
member of any committee of the Board of Directors of Employer or of any direct
or indirect subsidiary of Employer.
3. Compensation of Employee.
3.1 As compensation for his services hereunder, Employee shall
receive a salary at the annual rate of $108,000, payable in equal installments
on Employer's regular payroll dates for executive employees. Employer's Board
of Directors will review Employee's salary annually, and, with the approval of
Newpark's Board of Directors or Compensation Committee, may (but shall be under
no obligation to) further increase such salary.
3.2 For each full or partial fiscal year of Employer during the
employment term, Employer shall pay to Employee, in addition to his salary, a
bonus in such amount, if any, as may be determined by the Board of Directors or
Compensation Committee of Newpark, in its sole discretion.
4. Benefits.
Employee shall be entitled to participate in and receive benefits
under all profit-sharing plans, pension plans, group medical plans and other
plans for payment of additional compensation or benefits to employees of
Employer which Employer at any time maintains for executive employees. To the
extent permitted by law, and provided that such participation does not result in
duplicate payments to Employee, Employee shall also participate in such benefits
plans as Newpark makes available to its executive employees and the executive
employees of its subsidiaries.
5. Business Expenses.
Employee is authorized to incur reasonable expenses for promoting
and conducting the business of Employer, including expenditures for
entertainment and travel. Employer shall reimburse Employee monthly for all such
business expenses upon presentation of reasonable documentation establishing the
amount, date, place and essential character of the expenditures.
6. Disability.
6.1 If Employee becomes disabled by reason of sickness, physical
or mental disability or any other cause which materially impairs his ability to
perform his duties under this Agreement with reasonable accommodation for a
period of six consecutive months or for nine months in any twelve-month period,
Employer shall have the option to terminate this Agreement effective immediately
by giving written notice of termination to Employee within a reasonable time
following the end of such period of disability. If Employee becomes temporarily
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disabled by reason of sickness, physical or mental disability, or any other
cause so that he is unable to perform efficiently his duties hereunder with
reasonable accommodation, he shall be entitled to compensation as provided for
herein until the total period of such temporary disability shall equal an
aggregate of three months during any period of twelve consecutive months. As to
any subsequent periods of disability during said twelve month period, Employee
shall not be entitled to compensation.
6.2 In the event of the termination of this Agreement pursuant
to the provisions of Paragraph 6.1 above, Employee shall be entitled to salary
and discretionary bonus earned by him prior to the date of termination as
provided for in this Agreement computed pro rata up to and including that date;
but he shall not be entitled to compensation after the date of termination.
7. Termination of Employment.
7.1 This Agreement and the employment of Employee hereunder may
be terminated at any time prior to the expiration of the term of this Agreement
as follows:
(a) By Employer as a result of disability of Employee as
provided in Paragraph 6.1 above, or the death of Employee;
(b) Upon the mutual agreement of the parties;
(c) by Employer in the event of: (i) conviction of Employee of a
major felony (whether or not committed in the course of his employment) from
which no appeal has been made, or, if an appeal has been made, upon a final
determination adverse to Employee; or (ii) gross misconduct by Employee causing
material harm to Employer, but only if (x) Employee shall not have discontinued
such gross misconduct within ten days after receiving written notice from
Employer that it will consider the continuation of such gross misconduct cause
for termination of this Agreement, or (y) the gross misconduct is of such a
nature that Employer would be materially prejudiced thereby whether or not
Employee discontinues such gross misconduct;
(d) by Employee if Employer shall fail to cure a material or
default by it under any of the terms of this Agreement within thirty days after
written notice of such breach or default is given by Employee;
(e) by Employer if Employee shall fail to cure a material breach
or default by him under this Agreement within thirty days after written notice
of such breach or default is given by Employer.
7.2 This Agreement shall not be terminated by any merger or
consolidation where Employer is not the consolidated or surviving corporation or
by any transfer of all or substantially all of the assets of Employer. In the
event of any such merger or consolidation or transfer of assets, the surviving
or resulting corporation or the transferee of the assets of Employer shall be
bound by and shall have the benefit of the provisions of this
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Agreement; and Employer shall take all actions necessary to ensure that such
corporation or transferee is bound by the provisions of this Agreement.
7.3 Upon termination of this Agreement for any reason
whatsoever, Employee shall return to Employer all automobiles, equipment, books,
records, customer lists, catalogs, invoices, correspondence and other property
which was acquired from or otherwise belongs to Employer, including any property
or documentation developed by Employee in the course of his employment.
8. Proprietary Information and Non-Competition.
8.1 Employee recognizes and acknowledges that the performance of
his services hereunder will necessarily result in disclosure to him of certain
trade secrets and confidential information, including source of supply
information, sales information, customer lists, customer information and
pricing, all of which are special and unique assets and trade secrets of
Employer's business. For the purpose of this Agreement, such information shall
be referred to and is acknowledged as "proprietary information of the Employer."
In view of the foregoing, in addition to and not in limitation of the provisions
of the Noncompetition Agreement executed concurrently herewith by Newpark and
Employee, Employee agrees that:
8.1.1 During and after the employment term, Employee
will not disclose or use any proprietary information of Employer, except for the
purpose of carrying out his duties hereunder, unless such use or disclosure is
specifically consented to in writing by Employer.
8.1.2 For the period of one year after the employment
term, Employee will not in any way, directly or indirectly, for himself or on
behalf of any other person or entity, associate in business as an employer,
employee or otherwise, with any employee, officer or agent of Employer until
such person has terminated employment with Employer for a period of one year.
8.1.3 During the employment term and thereafter,
Employee will not, directly or indirectly, for himself or on behalf of any other
person or entity, induce or attempt to induce any of Employer's personnel to
terminate their relationship with Employer, nor will Employee induce or attempt
to induce any of Employer's personnel to do anything contrary to the best
interests of Employer.
8.2 Employee agrees that in the event of any breach by Employee
of any covenant in this Paragraph 8, Employer shall be entitled, in addition to
other remedies, to immediate injunctive relief if necessary to avoid irreparable
harm and injury.
9. General Provisions.
9.1 Any notices to be given hereunder by either party to the
other shall be in writing and may be effected either by personal delivery or by
mail, registered or certified, return receipt requested, postage prepaid.
Mailed notices shall be addressed to the parties at the
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addresses appearing opposite their respective signatures below and shall be
deemed effective 24 hours after being deposited in the U.S. mails, postage
prepaid and property addressed. Each party may change its address by written
notice in accordance with this Paragraph.
9.2 This Agreement supersedes and any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee and contains all of the covenants and agreements between
the parties with respect to such employment. Each party acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing signed by the party to be charged.
9.3 Any paragraph, sentence, phrase, or other provision of this
Agreement which is in conflict with any applicable statute, rule, or other law
shall be deemed, if possible, to be modified or altered to conform thereto or,
if not possible, to be omitted from this Agreement. The invalidity of any
portion hereof shall not affect the force or effect of the remaining portions
hereof.
9.4 This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and the Judicial District Court
of Xxxxxx County, Texas, Houston Division, shall be the only proper forum for
disputes hereunder.
9.5 The rights and obligations of Employer under this Agreement
shall enure to the benefit of and shall be binding on the successors and assigns
of Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
CHEMICAL TECHNOLOGIES, INC. ("Employer") Address:
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
By: /s/ Xxxxx Xxxxxxx, President
_____________________________
Name and Title
/s/ Xxxxx Xxxxxxx Address:
________________________________ 0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxx ("Employee") Xxxxx Xxxx, Xxxxx 00000
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