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EXHIBIT 10.34
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 1998 between GREY WOLF,
INC., Inc. a Texas corporation (the "Company"), and Xxxxx Xxxxxxxx (the
"Executive").
The Company desires to employ the Executive and the Executive desires
to accept employment with the Company, on the terms and conditions of this
Agreement.
Accordingly, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 Employment by the Company; Duties. The Company hereby
agrees to employ the Executive for a term commencing
on January 1, 1998, and expiring at the end of the
day on January 1, 1999 (such date, or later date to
which this Agreement is extended in accordance with
the terms hereof, the "Termination Date"), unless
earlier terminated as provided in Article 4 or unless
extended as provided herein (the "Term"). The Term
shall automatically be extended on the Termination
Date and each anniversary thereof for successive
one-year periods unless either party notifies the
other on or before the date 90 days prior to the
Termination Date that he or it desires to terminate
the Agreement. During the Term, the Executive shall
initially serve in the capacity of Senior Vice
President/Chief Financial Officer of the Company and
shall also serve in those offices and directorships
of subsidiary corporations or entities of the Company
to which he may from time to time be appointed or
elected. During the Term, the Executive shall devote
all reasonable efforts and all of his business time
and services to the Company, subject to the direction
of the Board. The Executive shall not engage in any
other business activities except for passive
investments in corporations or partnerships not
engaged in the oil or gas drilling or well servicing
business.
1.2 Acceptance of Employment by the Executive. The
Executive hereby accepts such employment and shall
render the services and perform the duties described
above.
2. COMPENSATION AND OTHER BENEFITS.
2.1 Annual Salary. The Company shall pay to the Executive
an annual salary at a rate of not less than
$165,000.00 per year (the "Annual Salary"), subject
to increase at the sole discretion of the Board of
Directors of the Company (the "Board"). The Annual
Salary shall
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be payable in accordance with the payroll policies of
the Company as from time to time in effect, but in no
event less frequently than once each month, less such
deductions as shall be required to be withheld by
applicable law and regulations.
2.2 Bonuses. The Executive may receive, at the sole
discretion of the Board, an incentive bonus with
respect to the fiscal years ending during the term
hereof (the "Incentive Bonus"), provided that an
Incentive Bonus, payable in respect of a fiscal year,
shall not exceed one-half of the Annual Salary for
such fiscal year.
2.3 Grant of Option. The Company agrees to grant the
Executive, pursuant to the terms of its existing
stock option plan or new or amended stock option
plans, options to acquire 65,000 shares of the
Company's common stock, at an exercise price equal to
the fair market value of such stock on the date of
grant. Any such stock options shall vest in five
equal increments over a four-year period commencing
on the date of grant, and shall expire ten years
after the date of grant. One fifth of the options
shall vest on February 10, 1999 and on each
subsequent anniversary of the date of grant until the
fifth anniversary at which time the options shall be
fully vested.
2.4 Vacation Policy. The Executive shall be entitled to a
paid vacation of three weeks during each year of the
Term.
2.5 Participation in Employee Benefit Plans. The Company
agrees to permit the Executive during the Term, if
and to the extent eligible, to participate in any
group life, hospitalization or disability insurance
plan, health program, pension plan, similar benefit
plan or other so-called "fringe benefits" of the
Company (collectively, "Benefits") which may be
available to other senior executives of the Company
on terms no less favorable to the Executive than the
terms offered to such other executives. The Company
agrees to use its best efforts to obtain immediate
coverage for the Executive upon the commencement of
the Term under its existing or newly adopted medical
expense and hospitalization plan for employees
without premium surcharge and without exclusions for
disclosed preexisting conditions. The Executive shall
cooperate with the Company in applying for such
coverage, including submitting to a physical exam and
providing all relevant health and personal data.
2.6 General Business Expenses. The Company shall pay or
reimburse the Executive for all expenses reasonably
and necessarily incurred by the Executive during the
Term in the performance of the Executive's
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services under this Agreement. Such payment shall be
made upon presentation of such documentation as the
Company customarily requires of its senior executive
employees prior to making such payments or
reimbursements.
2.7 Company Car, Cellular Telephone. The Company shall
provide an automobile, of the Executive's choice, to
be used by the Executive during the Term hereof or
until his employment hereunder is terminated. The
purchase price of the automobile shall not exceed
$35,000 unless increased by the Board. If requested
by the Executive, the Company will replace the
automobile with a new automobile no less frequently
than every three years during the Term hereof. The
Company shall, at its expense, pay any and all
expenses associated with the operation of such
company car, including but not limited to, collision
and liability insurance, maintenance and repair
costs, replacement parts, tires, fuel and oil. The
Executive may use the automobile for personal
purposes and, to the extent of the value of such
personal usage, the value thereof shall be deemed to
be additional compensation.
The Company shall also furnish the Executive with a cellular telephone
of his choice and the Company shall pay all charges in connection with the use
thereof, other than charges for calls not related to Executive's duties
hereunder.
3. NON-COMPETITION.
3.1 Covenants Against Competition. The Executive
acknowledges that (i) the Company is currently
engaged in the business of owning, managing and
operating onshore drilling and workover rigs for its
own account or for others which are contracted or
hired for the purpose of drilling and/or workover of
oil or natural gas xxxxx and from time to time
acquiring working or carried interests in oil and gas
xxxxx in connection with, or incident to, such
drilling or workover activities (the "Company
Business"); (ii) his work for the Company will give
him access to trade secrets of and confidential
information concerning the Company; and (iii) the
agreements and covenants contained in this Agreement
are essential to protect the business and goodwill of
the Company. Accordingly, the Executive covenants and
agrees as follows:
3.1.1 Non-Compete. The Executive shall not during the
Restricted Period (as defined below) in the United
States or any other place where the Company and its
affiliates conduct operations related to the Company
Business, directly or indirectly (except in the
Executive's capacity as an officer of the Company),
(i) engage or participate in the Company Business;
(ii) enter the employ of, or render any other
services to, any person engaged in the Company
Business except as
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permitted hereunder; or (iii) become interested in
any such person in any capacity, including, without
limitation, as an individual, partner, shareholder,
lender, officer, director, principal, agent or
trustee except as permitted hereunder; provided,
however, that the Executive may own, directly or
indirectly, solely as an investment, securities of
any person traded on any national securities exchange
or listed on the National Association of Securities
Dealers Automated Quotation System if the Executive
is not a controlling person of, or a member of a
group which controls, such person and the Executive
does not, directly or indirectly, own 1% or more of
any class of equity securities, or securities
convertible into or exercisable or exchangeable for
1% or more of any class of equity securities, of such
person. As used herein, the "Restricted Period" shall
mean a period commencing on the date hereof and
terminating upon the first to occur of (a) the date
on which the Company terminates or is deemed to
terminate the Executive's employment without Cause,
(b) the date the Executive terminates or is deemed to
terminate his employment pursuant to Section 4.6
hereof, or (c) the date of termination of this
Agreement; provided, however, that if the Company
shall have terminated the Executive's employment for
Cause and such Cause in fact exists or if the
Executive shall have terminated his employment with
the Company in breach of the terms of this Agreement,
the Restricted Period shall end twelve months
following the termination of the Executive's
employment hereunder.
3.1.2 Confidential Information; Personal
Relationships. The Executive acknowledges that the
Company has a legitimate and continuing proprietary
interest in the protection of its confidential
information and that it has invested substantial sums
and will continue to invest substantial sums to
develop, maintain and protect confidential
information. The Executive agrees that, during and
after the Restricted Period, the Executive shall keep
secret and retain in strictest confidence, and shall
not use for the benefit of himself or others all
confidential matters directly relating to the Company
Business including, without limitation, financial
information, trade secrets, customer lists, details
of client or consultant contracts, pricing policies,
operational methods, marketing plans or strategies,
product development techniques or plans, business
acquisition plans, new personnel acquisition plans,
technical processes, designs and design projects,
inventions and research projects of the Company, its
affiliates, or any other entity which may hereafter
become an affiliate thereof, learned by the Executive
heretofore or hereafter unless otherwise in the
public domain other than as a result of disclosure by
the Executive or unless independently obtained from
third parties not under disclosure restrictions in
favor of the Company.
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3.1.3 Property of the Company. All memoranda, notes,
lists, records, engineering drawings, technical
specifications and related documents and other
documents or papers (and all copies thereof) relating
to the Company, including such items stored in
computer memories, microfiche or by any other means,
made or compiled by or on behalf of the Executive
after the date hereof, or made available to the
Executive after the date hereof relating to the
Company, its affiliates or any entity which may
hereafter become an affiliate thereof, shall be the
property of the Company, and shall be delivered to
the Company promptly upon the termination of the
Executive's employment with the Company or at any
other time upon request; provided, however, that
Executive's address books, diaries, chronological
correspondence files and rolodex files shall be
deemed to be property of the Executive.
3.1.4 Original Material. The Executive agrees that
any inventions, discoveries, improvements, ideas,
concepts or original works of authorship relating
directly to the Company Business, including without
limitation computer systems, programs and
manufacturing techniques, whether or not protectable
by patent or copyright, that have been originated,
developed or reduced to practice by the Executive
alone or jointly with others during the Executive's
employment with the Company shall be the property of
and belong exclusively to the Company. The Executive
shall promptly and fully disclose to the Company the
origination or development by the Executive of any
such material and shall provide the Company with any
information that it may reasonably request about such
material.
3.1.5 Employees of the Company and its Affiliates.
During the Restricted Period, the Executive shall
not, directly or indirectly, hire or solicit, or
cause others to hire or solicit, for employment by
any person other than the Company or any affiliate or
successor thereof, any employee of the Company and
its affiliates or successors or encourage any such
employee to leave his employment.
3.1.6 Customers of the Company. During the Restricted
Period, the Executive shall not, except by reason of
and in his capacity as an officer of the Company,
directly or indirectly, request or advise a customer
of the Company or its subsidiaries to curtail or
cancel such customer's business relationship with the
Company.
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3.2 Rights and Remedies Upon Breach. If the Executive
breaches, or threatens to commit a breach of, any of
the provisions contained in Section 3.1 of this
Agreement (the "Restrictive Covenants"), the Company
shall have the following rights and remedies, each of
which rights and remedies shall be independent of the
others and severally enforceable, and each of which
is in addition to, and not in lieu of, any other
rights and remedies available to the Company under
law or in equity:
3.2.1 Specific Performance. The right and remedy to
have the Restrictive Covenants specifically enforced
by any court of competent jurisdiction, it being
agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury
to the Company and that money damages would not
provide an adequate remedy to the Company.
3.2.2 Accounting. The right and remedy to require the
Executive to account for and pay over to the Company
all compensation, profits, monies, accruals,
increments or other benefits derived or received by
the Executive as the result of any action
constituting a breach of the Restrictive Covenants.
3.3 Severability of Covenants. The Executive acknowledges
and agrees that the Restrictive Covenants are
reasonable and valid in duration and geographical
scope and in all other respects. If any court
determines that any of the Restrictive Covenants, or
any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect
without regard to the invalid portions.
3.4 Blue-Pencilling. If any court determines that any of
the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration or geographical
scope of such provision, such court shall have the
power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
3.5 Enforceability in Jurisdictions. The Company and the
Executive intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of
any jurisdiction within the geographical scope of
such Restrictive Covenants. If the courts of any one
or more of such jurisdictions hold the Restrictive
Covenants unenforceable by reason of the breadth of
such scope or otherwise, it is the intention of the
Company that such determination not bar or in any way
affect the right
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of the Company to the relief provided above in the
courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as
to breaches of such Restrictive Covenants in such
other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdiction being,
for this purpose, severable into diverse and
independent covenants.
4. TERMINATION.
4.1 Termination Upon Death. If the Executive dies during
the Term, this Employment Agreement shall terminate,
provided, however, that in any such event, the
Company shall pay to the Executive, or to his estate,
any portion of the Annual Salary that shall have been
earned by the Executive prior to the termination but
not yet paid, any Benefits that have vested in the
Executive at the time of such termination as a result
of his participation in any of the Company's benefit
plans shall be paid to the Executive, or to his
estate or designated beneficiary, in accordance with
the provisions of such plan; and the Company shall
reimburse the Executive, or his estate, for any
expenses with respect to which the Executive is
entitled to reimbursement pursuant to Section 2.6 of
this Agreement, and the Executive's right to
indemnification, payment or reimbursement pursuant to
Section 6 of this Agreement shall not be affected by
such termination and shall continue in full force and
effect, both with respect to proceedings that are
threatened, pending or completed at the date of such
termination and with respect to proceedings that are
threatened, pending or completed after that date.
4.2 Termination With Cause. The Company has the right, at
any time during the Term, subject to all of the
provisions hereof, exercisable by serving notice,
effective on or after the date of service of such
notice as specified therein, to terminate the
Executive's employment under this Agreement and
discharge the Executive with Cause. If such right is
exercised, the Company's obligation to the Executive
shall be limited solely to the payment of unpaid
Annual Salary accrued, together with unpaid Incentive
Bonus, if any, and Benefits vested up to the
effective date specified in the Company's notice of
termination. As used in this Agreement, the term
"Cause" shall mean and include (i) chronic alcoholism
or controlled substance abuse as determined by a
doctor mutually acceptable to the Company and the
Executive, (ii) an act of proven fraud or dishonesty
on the part of the Executive with respect to the
Company or its subsidiaries; (iii) knowing and
material failure by the Executive to comply with
material applicable laws and regulations
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relating to the business of the Company or its
subsidiaries; (iv) the Executive's material and
continuing failure to perform (as opposed to
unsatisfactory performance) his duties hereunder or a
material breach by the Executive of this Agreement
except, in each case, where such failure or breach is
caused by the illness or other similar incapacity or
disability of the Executive; or (v) conviction of a
misdemeanor involving moral turpitude or a felony.
Prior to the effectiveness of termination for Cause
under subclause (i), (ii), (iii) or (iv) above, the
Executive shall be given 30 days' prior notice from
the Board specifically identifying the reasons which
are alleged to constitute cause for any termination
hereunder and an opportunity to be heard by the Board
in the event Executive disputes such allegations.
4.3 Termination Without Cause. The Company has the right,
at any time during the Term, subject to all of the
provisions hereof, exercisable by serving notice,
effective on or after the date of service of such
notice as specified therein, to terminate the
Executive's employment under this Agreement and
discharge the Executive without Cause. If the
Executive is terminated during the Term without Cause
(including any termination which is deemed to be a
constructive termination without Cause under Section
4.6 hereof), the Company's obligation to the
Executive shall be limited solely to the payment, at
the times and upon the terms provided for herein, of
the greater of (i) the Executive's Annual Salary and
Incentive Bonus for the number of full months
remaining in the Term of this Agreement (assuming no
automatic extension of the Term) had the Executive
not been so terminated and (ii) the Executive's
Annual Salary for a period of twelve months, in each
case based on the Annual Salary of the Executive in
effect on the date of termination (or, if the Company
has reduced the Executive's Annual Salary in breach
of this Agreement, the Executive's Annual Salary
before such reduction) and, in the case of clause
(i), the average Incentive Bonus received by the
Executive for the immediately preceding two fiscal
years, together with all unpaid Incentive Bonus and
Benefits awarded or accrued up to the date of
termination. If the Executive is terminated after he
has received one Incentive Bonus but before he has
received two, the Incentive Bonus in clause (i) shall
be based on the amount of that one Incentive Bonus;
if he has not yet received an Incentive Bonus, it
shall be based on the maximum Incentive Bonus (i.e.,
one half of the Annual Salary). In the event of a
termination by the Company without Cause within 180
days after a Change of Control (as hereinafter
defined), including a constructive termination
without Cause pursuant to Section 4.6, the amounts
due to
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the Executive pursuant to this Section 4.3 shall be
due and payable in one lump-sum payment within 60
days after such termination. In all other cases, any
amounts due to the Executive pursuant to this Section
4.3 shall be due and payable as and when they would
have become due and payable absent such termination.
4.4 Termination by the Executive. Any termination of this
Agreement by the Executive during the Term, except
such termination as is deemed to be a constructive
termination without Cause by the Company under
Section 4.6 of this Agreement, shall be deemed to be
a breach of the terms of this Agreement for the
purposes of Section 3.1.1 hereof and shall entitle
the Company to discontinue payment of all Annual
Salary, Incentive Bonuses and Benefits accruing from
and after the date of such termination.
4.5 Termination upon Disability. If during the Term the
Executive becomes physically or mentally disabled,
whether totally or partially, as evidenced by the
written statement of a competent physician licensed
to practice medicine in the United States who is
mutually acceptable to the Company and the Executive
or his closest relative if he is not then able to
make such a choice, so that the Executive is unable
substantially to perform his services hereunder for
(i) a period of four consecutive months, or (ii) for
shorter periods aggregating six months during any
twelve-month period, the Company may at any time
after the last day of the four consecutive months of
disability or the day on which the shorter periods of
disability equal an aggregate of six months, by
written notice to the Executive, terminate the
Executive's employment hereunder and discontinue
payments of the Annual Salary, Incentive Bonuses and
Benefits accruing from and after the date of such
termination. The Executive shall be entitled to the
full compensation payable to him hereunder for
periods of disability shorter than the periods
specified in clauses (i) and (ii) of the previous
sentence.
4.5 Constructive Termination Without Cause.
Notwithstanding any other provision of this
Agreement, the Executive's employment under this
Agreement may be terminated during the Term by the
Executive, which shall be deemed to be constructive
termination by the Company without Cause, if one of
the following events shall occur without the consent
of the Executive: (i) a failure to elect or reelect
or to appoint or reappoint the Executive to the
office of Senior Vice President/Chief Financial
Officer of the Company or other material change by
the Company of the Executive's functions, duties or
responsibilities which change would reduce the
ranking or level, dignity, responsibility, importance
or scope of the Executive's position with the Company
from the position and attributes thereof described in
Section 1 above; (ii) the assignment or reassignment
by the Company of the Executive to
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another place of employment more than 50 miles from
the Executive's principal place of residence in the
Houston, Texas, metropolitan area; (iii) the
liquidation, dissolution, consolidation or merger of
the Company, or transfer of all or substantially all
of its assets, other than a transaction in which a
successor corporation with a net worth at least equal
to that of the Company assumes this Agreement and all
obligations and undertakings of the Company
hereunder; (iv) a reduction in the Executive's fixed
salary; (v) a Change of Control as hereinafter
defined; (vi) the failure of the Company to continue
to provide the Executive with office space, related
facilities and secretarial assistance that are
commensurate with the Executive's responsibilities to
and position with the Company; (vii) the notification
by the Company of the Company's intention not to
observe or perform one or more of the obligations of
the Company under this Agreement; (viii) the failure
by the Company to indemnify, pay or reimburse the
Executive at the time and under the circumstances
required by Section 6 of this Agreement; (ix) the
occurrence of any other material breach of this
Agreement by the Company or any of its subsidiaries;
or (x) the delivery of notice by the Company in
accordance with Section 1.1 hereof that it desires to
terminate the Agreement, but only if such notice is
given before the Term has been automatically extended
three times. Any such termination shall be made by
written notice to the Company, specifying the event
relied upon for such termination and given within 60
days after such event. Any constructive termination
shall be effective 60 days after the date the Company
has been given such written notice setting forth the
grounds for such termination with specificity;
provided, however, that Executive shall not be
entitled to terminate this Agreement in respect of
any of the grounds set forth above if within 60 days
after such notice the action constituting such ground
for termination is no longer continuing. A
constructive termination by the Company without Cause
shall terminate the Restrictive Period hereunder.
4.7 For the purposes hereof, a "Change of Control of the
Company" shall be deemed to have occurred if after
the effective date (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934 (the
"Act")), directly or indirectly, of securities of the
Company representing 50% or more of the combined
voting power of the Company's then outstanding
securities without the prior approval of at least a
majority of the members of the Board in office
immediately prior to such person attaining such
percentage interest; (ii) there occurs a proxy
contest or a consent solicitation, or the Company is
a party to a merger, consolidation, sale of assets,
plan
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of liquidation or other reorganization not approved
by at least a majority of the members of the Board in
office, as a consequence of which members of the
Board in office immediately prior to such transaction
or event constitute less than a majority of the Board
thereafter; or (iii) during any period of two
consecutive years, other than as a result of an event
described in clause (ii) of this Section 4.7,
individuals who at the beginning of such period
constituted the Board (including for this purpose any
new director whose election or nomination for
election by the Company's stockholders was approved
by a vote of at least a majority of the directors
then still in office who were directors at the
beginning of such period) cease for any reason to
constitute at least a majority of the Board.
5. INSURANCE.
The Company may, from time to time, apply for and take out, in its own
name and at its own expense, naming itself or one or more of its
affiliates as the designated beneficiary (which it may change from time
to time), policies for life, health, accident, disability or other
insurance upon the Executive in any amount or amounts that it may deem
necessary or appropriate to protect its interest. The Executive agrees
to aid the Company in procuring such insurance by submitting to medical
examinations and by filling out, executing and delivering such
applications and other instruments in writing as may reasonably be
required by an insurance company or companies to which any application
or applications for insurance may be made by or for the Company.
6. INDEMNIFICATION.
6.1 The Company shall, to the extent not prohibited by law,
indemnify the Executive if he is made, or threatened to be
made, a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
Company to procure a judgment in its favor (hereinafter a
"Proceeding"), by reason of the fact that the Executive is or
was a director or officer of the Company, or is or was serving
in any capacity at the request of the Company for any other
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against judgments, fines,
penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and
disbursements) paid or incurred in connection with any such
Proceeding.
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6.2 The Company shall, from time to time, reimburse or advance to
the executive the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in
connection with any Proceeding in advance of the final
disposition of such Proceeding; provided, however, that, if
required by the Texas Business Corporation Act, such expenses
incurred by or on behalf of the Executive may be paid in
advance of the final disposition of a Proceeding only upon
receipt by the Company of an undertaking, by or on behalf of
the Executive, to repay any such amount so advanced if it
shall ultimately be determined by final judicial decision from
which there is no further right of appeal that the Executive
is not entitled to be indemnified for such expenses.
6.3 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article
6 shall not be deemed exclusive of any other rights which the
Executive may now or hereafter have under any law, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
6.4 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article
6 shall continue as to the Executive after he has ceased to be
a director or officer and shall inure to the benefit of the
heirs, executors and administrators of the Executive.
6.5 The Company shall purchase and maintain director and officer
liability insurance on such terms and providing such coverage
as the Board determines is appropriate, and the Executive
shall be covered by such insurance on the same basis as the
other directors and executive officers of the Company.
6.6 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article
6 shall be enforceable by the Executive in any court of
competent jurisdiction. The burden of proving that such
indemnification or reimbursement or advancement of expenses is
not appropriate shall be on the Company. Neither the failure
of the Company (including its board of directors, independent
legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
such indemnification or reimbursement or advancement of
expenses is proper in the circumstances nor an actual
determination by the Company (including its board of
directors, independent legal counsel, or its stockholders)
that the Executive is not entitled to such
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indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a
presumption that the Executive is not so entitled. The
Executive shall also be indemnified for any expenses incurred
in connection with successfully establishing his right to such
indemnification or reimbursement or advancement of expenses,
in whole or in part, in any such proceeding.
6.7 If the Executive serves (1) another corporation of which a
majority of the shares entitled to vote in the election of its
directors is held by the Company, or (2) any employee benefit
plan of the Company or any corporation referred to in clause
(1), in any capacity, then he shall be deemed to be doing so
at the request of the Company.
6.8 The right to indemnification or reimbursement or advancement
of expenses shall be interpreted on the basis of the
applicable law in effect at the time of the occurrence of the
event or events giving rise to the applicable Proceeding.
7. OTHER PROVISIONS.
7.1 Certain Definitions. As used in this Agreement, the following
terms have the following meanings unless the context otherwise
requires:
(i) "affiliate" with respect to the Company means any
other person controlled by or under common control
with the Company but shall not include any
stockholder or director of the Company, as such.
(ii) "person" means any individual, corporation,
partnership, firm, joint Company, association,
joint-stock company, trust, unincorporated
organization, governmental or regulatory body or
other entity.
(iii) "subsidiary" means any corporation 50% or more of the
voting securities of which are owned directly or
indirectly by the Company.
7.2 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered
personally, telegraphed, telexed, sent by facsimile
transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by
facsimile transmission or, if mailed, on the date of actual
receipt thereof, as follows:
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(i) IF TO THE COMPANY, TO:
Grey Wolf, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
WITH A COPY TO:
Garderer Xxxx Xxxxxx & Xxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
(ii) IF TO THE EXECUTIVE, TO:
Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000
Any party may change its address for notice hereunder by notice to the other
party hereto.
7.3 Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the
subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
7.4 Waivers and Amendments. This Agreement may be
amended, superseded, canceled, renewed or extended,
and the terms and conditions hereof may be waived,
only by a written instrument signed by the parties
or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder
shall operate as a waiver thereof. Nor shall any
waiver on the part of any party of any such right,
power or privilege hereunder, nor any single or
partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege hereunder.
7.5 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the
State of Texas (without giving effect to the choice
of law provisions thereof) where the employment of
the Executive shall be deemed, in part, to be
performed and enforcement of this Agreement or any
action taken or held with respect to this Agreement
shall be taken in the courts of appropriate
jurisdiction in Houston, Texas.
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7.6 Assignment. This Agreement, and any rights and
obligations hereunder, may not be assigned by the
Executive and may be assigned by the Company (subject
to Section 4.6 (iii) hereof) only to a successor by
merger or purchasers of substantially all of the
assets of the Company.
7.7 Counterparts. This Agreement may be executed in
separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all of
which together shall constitute one and the same
instrument.
7.8 Headings. The headings in this Agreement are for
reference purposes only and shall not in any way
affect the meaning or interpretation of this
Agreement.
7.9 No Presumption Against Interest. This Agreement has
been negotiated. drafted, edited and reviewed by the
respective parties, and therefore, no provision
arising directly or indirectly herefrom shall be
construed against any party as being drafted by said
party.
7.10 Validity Contest. The Company shall promptly pay any
and all legal fees and expenses incurred by the
Executive from time to time as a direct result of the
Company's contesting the due execution,
authorization, validity or enforceability of this
Agreement.
7.11 Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the Company and its
respective successors and assigns and the Executive
and his legal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GREY WOLF, INC.
By /s/ X. X. XXXXXXXX
--------------------------------------
Name: X. X. Xxxxxxxx
Title: President and CEO
EXECUTIVE
/s/ XXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President/Chief
Financial Officer
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