EMPLOYMENT AGREEMENT
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT WITH XXXXXXX XXXXXX
This
Employment Agreement (this “Agreement”)
is
made and entered into as of March 1, 2006 (the “Effective
Date”),
by
and between BOOTS & XXXXX SERVICES (the “Company”)
and
XXXXXXX XXXXXX (“Employee”).
The
Company hereby employs Employee and Employee accepts such employment on the
following terms and conditions:
1.
Term.
Employee shall be employed by the Company for a period of one (1) year from
the
Effective Date hereof (the “Employment
Term”).
The
Employment Term and this Agreement shall be automatically renewed for successive
additional one (1) year terms unless notice of termination is given in writing
by either party to the other party at least three (3) months prior to the
expiration of the initial term or any such renewal term.
2.
Duties.
Employee shall initially hold the title of Interim Chief Financial Officer,
and
shall perform such services regarding the operations of the Company as are
appropriate for such position, and as the CEO of the Company may from time
to
time request, and Employee shall be employed by and will work for the Company
at
the Company’s executive offices in Houston, Texas. The Employee shall not be
required during the Employment Term to relocate to Houston, Texas from any
other
business location maintained by the Company although the Employee expressly
agrees that regular travel and maintaining a full time presence in the Houston
executive offices will be necessary as part of his duties. Employee will have
the option to relocate his household to Houston during the term of this
Agreement. The Company’s Relocation Policy shall apply to Employee for any such
relocation. As Interim CFO, Employee shall report directly to the CEO of the
Company. The duties of Employee shall include, but not be limited to, those
duties normally expected of a CFO of a public company and any additional duties
as directed by the CEO.
3.
Conduct
of Employee.
During
the Employment Term, Employee shall devote his full business time, effort,
skill
and attention to the affairs of the Company and its subsidiaries, will use
his
best efforts to promote the interests of the Company, and will discharge his
responsibilities in a diligent and faithful manner, consistent with sound
business practices.
Nothing
in this Agreement shall be deemed to preclude the Employee from participating
in
other business, charitable or community opportunities if and to the extent
that
(i) such business opportunities are not directly competitive with or similar
to
the business of the Company, (ii) the Employee’s activities with respect to such
opportunities do not have a material adverse effect on the performance of the
Employee’s duties hereunder, and (iii) the Employee’s activities with respect to
such opportunity have been fully disclosed in writing to the Company’s
President.
4.
Compensation.
In
consideration of the work and other services that Employee performs for the
Company hereunder, the Company shall pay Employee the following:
(a) Base
Salary.
During
the Employment Term, the Company shall pay Employee a gross annual base salary
of not less than $ 165,000 (the “Base
Salary”),
payable semi-monthly in accordance with the Company’s normal payroll policies,
subject to withholding for federal income tax, social security, state and local
taxes, if any, and any other sums that the Company may be legally required
to
withhold. The Base Salary shall be reviewed on an annual basis by the CEO and
the amount of such Base Salary shall be subject to increase on the basis of
the
performance of the Employee and the performance of the Company.
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(b) Bonus.
Employee shall participate in the Company’s Executive Bonus Pool and any other
additional executive compensation plans adopted from time to time by the Board
of Directors or a compensation committee appointed by the Board of Directors,
and the Board of Directors or the compensation committee, as the case may be,
shall have the authority to adjust such participation upward or downward from
time to time in its sole discretion. For the year 2006, the Oil States
International bonus structure shall be applied by the Company for
Employee.
(c) Auto
Allowance.
In
addition to the Base Salary, the Company shall pay $10,000 per year for
Employee’s use of his personal automobile on behalf of the Company. Such auto
allowance shall be payable in accordance with the Company’s normal payroll
policies, subject to withholding for federal income tax, social security, state
and local taxes, if any, and any other sums that the Company may be legally
required to withhold.
(d) Incentive
Stock Plan.
From
time to time, at the direction of the Board of Directors of the Parent Company,
or its compensation committee, Employee shall be eligible to receive options
to
purchase shares of the Parent Company’s Common Stock. At the signing of this
agreement, the Parent Company shall issue 150,000 options purchase the Parent
Company’s common stock at market value (determined on the date contract is
executed). On execution of the contract, 50,000 options of this plan shall
be
vested immediately with the remaining 100,000 options vested 50% annually over
a
two year term.
(e) Retirement
Plan.
Employee shall be eligible to participate in any retirement or similar plans
as
may be adopted from time to time by the Company.
(f)
Medical,
Life and Disability Insurance.
Employee will be permitted to participate in the Company’s life, health and
dental insurance programs. Employee acknowledges that the Company may seek
to
secure a policy of Key Man life insurance on the life of Employee, with death
benefits payable to the Company. Employee agrees to cooperate with the Company
in securing the same.
(g) Other
Benefits.
During
the Employment Term, Employee shall be entitled to participate in all employee
benefit plans or to receive any incentive bonuses, stock options or other
benefits as may from time to time be made available to the executives or general
employees of the Company.
5.
Vacation
and Sick Leave.
Employee shall be entitled to 4 weeks of paid vacation during each year of
his
employment hereunder. Such vacation shall be taken at such time, or times,
as
shall not be disruptive to the business of the Company. Scheduling shall be
accomplished with the CEO. In addition, Employee shall be entitled to be paid
sick leave of 10 days each year.
6.
Expenses.
The
Company shall reimburse Employee for all reasonable expenses and disbursements
incurred by Employee, and approved by the President or his designee, in the
performance of his duties hereunder, including expenses for entertainment and
travel, as are consistent with the policies and procedures of the Company and
Internal Revenue Service regulations. Travel and other expenses from Employee’s
home to the Company’s office are not included. The Company shall furnish
Employee with a cellular telephone at the expense of the Company.
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7.
Confidential
Information.
Employee acknowledges that in the course of employment by the Company, Employee
will receive certain trade secrets and confidential information belonging to
the
Company which the Company desires to protect as confidential. For the purposes
of this Agreement, the term “confidential information” shall mean information of
any nature and in any form which at the time is not generally known to those
persons engaged in business similar to that conducted by the Company. Employee
agrees that such information is confidential and that he will not reveal such
information to anyone other than officers, directors, Employees or authorized
agents of the Company. Upon termination of employment, for any reason, Employee
shall surrender all papers, documents and other property of the Company.
8.
Information,
Ideas, Concepts, Improvements, Discoveries, Inventions, etc.
Employee
agrees that during the Employment Term he will promptly disclose, in writing,
all information, ideas, concepts, improvements, discoveries and inventions,
whether patentable or not, and whether or not reduced to practice, which are
conceived, developed, made or acquired by the Company, either individually,
or
jointly with others, and which relate to the business, products or services
of
the Company, or any of its subsidiaries or affiliates, irrespective of whether
such information, idea, concept, improvement, discovery or invention was
conceived, developed, discovered or acquired by Employee on the job, or
elsewhere (collectively, the “Inventions”).
The
Company and Employee have agreed as follows regarding the
Inventions:
(a) All
inventions are, and shall be, the property of the Company. In this context,
all
drawings, memoranda, notes, records, files, correspondence, manuals, models,
specifications, computer programs, maps and all other writings, or materials
of
any time embodying any such Inventions are and shall be the sole and exclusive
property of the Company.
(b) Employee
hereby specifically sells, assigns and transfers to the Company all of his
worldwide right, title and interest in and to all such Inventions, and any
United States or foreign applications for patents, inventor’s certificates or
other industrial rights that may be filed thereon, including divisions,
continuations, continuations-in-part, reissues and/or extensions thereof, and
applications for registration of any names and marks included therewith. Both
during the Employment Term and thereafter, Employee shall assist the Company
and
its nominees at all times in the protection of such Inventions, both in the
United States and all foreign countries, including but not limited to, the
execution of all lawful oaths and all assignment documents, not inconsistent
with this Agreement, requested by the Company, or its nominee in connection
with
the preparation, prosecution, issuance or enforcement of any applications for
United States or foreign letters patent, including divisions, continuations,
continuations-in-part, reissue, and/or extensions thereof, and any application
for the registration of names and marks included therewith.
(c) Moreover,
if during the Employment Term, Employee creates any original work of authorship
which is the subject matter of copyright relating to the Company’s business,
products, or services, whether such work is created solely by Employee or
jointly with others, the Company shall be deemed the author of such work if
the
work is prepared by Employee in the scope of his employment; or, if the work
is
not prepared by Employee within the scope of his employment, but is specifically
ordered by the Company as a contribution to a collective work, as a part of
a
motion picture or other audiovisual work, as a translation, as a supplementary
work, as a compilation or as an instructional text, then the work shall be
considered to be a work made for hire and the Company shall be the author of
the
work. In the event such work is neither prepared by the Employee within the
scope of his employment or is not a work specially ordered and deemed to be
a
work made for hire, then Employee hereby agrees to assign, and by these
presents, does assign, to the Company an undivided one-half interest in and
to
all of Employee’s worldwide right, title and interest in and to the work and all
rights or copyright therein, including but not limited to, the execution of
all
formal assignment documents requested by the Company or its nominee, not
inconsistent with this Agreement, and the execution of all lawful oaths and
applications for registration of copyright in the United States and foreign
countries.
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9.
Agreement
Not to Solicit.
During
the Employment Term and for a period of one (1) year after the termination
of
employment hereunder (the “Termination
Date”),
regardless of how terminated, Employee will not, solely, jointly, or as a
partner, member, contractor, Employee or agent of any partnership or as an
officer, director, Employee, agent, contractor, stockholder or investor in
any
other entity or in any other capacity, directly or indirectly:
(a) induce,
or attempt to induce, any person or party who, on the Termination Date, is
employed by or affiliated with the Company or at any time during the term of
this covenant is, or may be, or becomes an employee of or affiliated with the
Company, to terminate his, her or its employment or affiliation with the
Company;
(b) induce,
or attempt to induce, any person, business or entity which is or becomes a
customer or supplier of the Company, or which otherwise is a contracting party
with the Company, as of the Termination Date, or at any time during the term
hereof, to terminate any written or oral agreement or understanding with the
Company, or to interfere in any manner with any relationship between the Company
and such customer or supplier; or
(c) employ
or
otherwise engage in any capacity any person who at the Termination Date or
at
any time during the period two (2) years prior thereto was employed, or
otherwise engaged, in any capacity by the Company and who, by reason thereof
is
or is reasonably likely to be in possession of any confidential
information.
Employee
acknowledges and agrees that the provisions of this paragraph 10 constitute
a
material, mutually bargained for portion of the consideration to be delivered
under this Agreement and failure to comply with this paragraph 10 shall be
deemed a breach of this Agreement.
10. Termination
by the Company.
Notwithstanding the provisions of paragraph 2, the Company may terminate the
employment of Employee under this Agreement at any time if any of the following
occur:
(a) the
death
of Employee;
(b) the
Employee becomes, in the good faith opinion of the Board of Directors of the
Company, physically or mentally disabled, for a period of more than six (6)
consecutive months, to the extent he is unable to perform his duties hereunder;
(c) for
any
reason, or for no reason, at the end of the initial one (1) year term of this
Agreement or any renewal thereof; or
(d) for
“Cause”, which for purposes of this Agreement shall mean Employee (i) has
engaged in gross negligence or willful misconduct in the performance of the
duties required of him hereunder, (ii) has willfully refused without proper
legal reason to perform the duties and responsibilities required of him
hereunder (provided, however, that no act or failure to act pursuant to
subsections (i) and (ii) above shall be deemed “willful” if due primarily to an
error in judgment or negligence or if made in good faith with reasonable belief
that such act is in the best interest of the Company), (iii) has materially
breached any material provision of this Agreement (and such breach remains
uncorrected 30 days following Employee’s receipt of written notice of the breach
from the Company), or (iv) the Employee commits, is arrested or officially
charged with any felony, or any crime involving moral turpitude, which, in
the
good faith opinion of the Company, would impair Employee’s ability to perform
his duties hereunder or would impair the business reputation of the Company
or
Employee misappropriates any funds or property of the Company.
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11. Termination
by Employee.
Notwithstanding the provisions of paragraph 2, Employee may terminate his
employment under this Agreement if any of the following occur:
(a in
connection with or based upon (i) a material breach by the Company of any
material provision of this Agreement, (ii) a substantial and material reduction
in the nature or scope of Employee’s duties or responsibilities, or (iii) the
assignment to Employee of duties and responsibilities that are materially
inconsistent with his position; provided,
however,
that
prior to Employee’s termination of employment under this paragraph 12(a),
Employee must give written notice to the Company of any such breach, reduction
or assignment and such breach, reduction or assignment must remain uncorrected
for 30 days following such written notice;
(b) upon
a
Change in Control, or within twelve (12) months thereafter, where a “Change in
Control” is defined to mean (i) any merger, consolidation or reorganization in
which the Company is not the surviving entity (or survives only as a subsidiary
of an entity), (ii) any sale, lease, exchange, or other transfer of (or
agreement to sell, lease, exchange, or otherwise transfer) all or substantially
all of the assets of the Company to any other person or entity (in one
transaction or a series of related transactions), (iii) dissolution or
liquidation of the Company, (iv) when any person or entity, including a “group”
as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934,
as
amended, acquires or gains ownership or control (including, without limitation,
power to vote) of more than [30%] of the outstanding shares of the Company’s
voting stock (based upon voting power), (v) as a result of or in connection
with
a contested election of directors, the persons who were directors of the Company
before such election shall cease to constitute a majority of the Board of
Directors, or (vi) any event that is reported by the Parent Company under Item
1
of a Form 8-K filed with the Securities and Exchange Commission; provided,
however, that the term “Change in Control” shall not include any reorganization,
merger, consolidation, sale, lease, exchange, or similar transaction involving
solely the Company and one or more previously wholly-owned subsidiaries of
the
Company unless such matter is described in clause (vi) above; or
(c) at
any
time, for any other reason whatsoever, in the sole discretion of
Employee.
12. Termination
and Compensation.
(a) Termination
by the Company and Compensation.
In the
event that the Company elects to terminate Employee’s employment prior to the
expiration of the one (1) year initial term, or renewal term, of this Agreement
for any reason other than termination for Cause as expressly provided for in
Paragraph 10.(d), or if the Company chooses not to renew this Agreement at
the
expiration of any term hereunder, then, and in that event, the Company shall
pay
to Employee, on the Termination Date, the following compensation: (i) a lump
sum
payment equal to 6 months salary, (ii) any bonus to which Employee would have
been eligible to receive for the year in which termination occurs, (iii) a
lump
sum payment equal to six months automobile allowance, and (iv) shall continue
the payment of premiums for hospitalization and major medical insurance for
the
lesser period of either six months or the date on which Employee secures full
time employment that affords equivalent medical coverage. In the event of a
termination for Cause pursuant to paragraph 10.(d), this Agreement shall be
wholly terminated and Employee shall not be entitled to any further compensation
or any other benefits provided for herein, and shall not be entitled to
severance pay. However, any of the provisions of this Agreement relating to
activities and conduct after the termination of the employment relationship
between the Company and Employee shall remain in full force and effect, and
be
enforceable.
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(b) Termination
by Employee and Compensation.
In the
event that Employee elects to terminate his employment pursuant to paragraph
11.(a) or 11.(b), then, and in that event, the Company shall pay to Employee,
on
the Termination Date, the following compensation: (i) a lump sum payment equal
to 12 months salary, (ii) any bonus to which Employee would have been eligible
to receive for the year in which termination occurs, (iii) a lump sum payment
equal to 12 months automobile allowance, and (iv) shall continue the payment
of
premiums for hospitalization and major medical insurance for the lesser period
of either 6 months or the date on which Employee secures full time employment
that affords equivalent medical coverage. In the event that Employee elects
to
terminate his employment pursuant to paragraph 11.(c), this Agreement shall
be
wholly terminated and Employee shall not be entitled to any further compensation
or any other benefits provided for herein, and shall not be entitled to
severance pay. However, any of the provisions of this Agreement relating to
activities and conduct after the termination of the employment relationship
between the Company and Employee shall remain in full force and effect, and
be
enforceable.
13. No
Duty to Mitigate Losses.
Employee shall have no duty to find new employment following the termination
of
his employment under circumstances which require the Company to pay any amount
to Employee pursuant to paragraph 13. Any salary or remuneration received by
Employee from a third party for the providing of personal services (whether
by
employment or by functioning as an independent contractor) following the
termination of his employment with the Company shall not reduce the Company’s
obligation to make a payment to Employee (or the amount of such payment)
pursuant to the terms of paragraph 13.
14. Notices.
All
notices or other communications pursuant to this Agreement may be given by
personal delivery, or by certified mail, addressed to the home office of the
Company or to the last known address of Employee. Notices given by personal
delivery shall be deemed given at the time of delivery, and notices sent by
certified mail shall be deemed given when deposited with the U.S. Postal
Service.
15. Entirety
of Agreement; Amendment.
This
Agreement contains the entire understanding of the parties and all of the
covenants and agreements between the parties with respect to Employee’s
employment. No amendment to this Agreement shall be effective unless it is
in
writing and signed by both the parties hereto.
16. Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and be governed
by, the laws of the State of Texas.
17. Waiver.
The
failure of either party to enforce any rights hereunder shall not be deemed
to
be a waiver of such rights, unless such waiver is an express written waiver
which has been signed by the waiving party. Waiver of one breach shall not
be
deemed a waiver of any other breach of the same or any other provision
hereof.
18. Assignment.
This
Agreement shall not be assignable by Employee. Subject to Section 12(b) hereof,
in the event of a future disposition of the properties and business of the
Company by merger, consolidation, sale of assets, or otherwise, then the Company
may assign this Agreement and all of its rights and obligations to the acquiring
or surviving entity; provided, that any such entity shall assume all of the
obligations of the Company hereunder.
19. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original for all purposes hereof.
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20. Arbitration.
Any
dispute, controversy or claim arising out of or relating to this Agreement
and
Employee’s job duties shall be submitted to and finally settled by binding
arbitration to be held in Houston, Texas, in accordance with the rules of the
American Arbitration Association in effect on the Effective Date, and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. All agreements contemplated herein to be entered into
to
which the parties hereto are parties shall contain provisions which provide
that
all claims, actions or disputes pursuant to, or related to, such agreements
shall be submitted to binding arbitration. In any proceeding to enforce the
provisions hereof, the prevailing party shall be entitled to recover reasonable
expenses incurred by him, including reasonable attorneys’ fees.
[Signature
Page Follows]
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This
Agreement is entered into as of the Effective Date.
“COMPANY”
BOOTS
& XXXXX SERVICES
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By:
|
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|
“EMPLOYEE”
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Xxxxxxx
Xxxxxx
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