EXHIBIT 2.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of July 24, 1997, by and between NEWPARK DRILLING FLUIDS, INC., a Texas
corporation ("Employer"), and XXXX X. XXXXXXX ("Employee"), with reference to
the following facts:
A. Employer is a wholly-owned subsidiary of
NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark").
B. Employee has been employed by ADVANCED CHEMICAL TECHNOLOGIES,
INC., a Texas corporation (the "Company") as its Chairman of the Board and
President.
C. On the date of this Agreement, the Company has been merged with
and into Employer, with Employer continuing as the surviving corporation.
Employer desires to assure itself of the continued services of Employee for a
term expiring no sooner than July 31, 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 employs Employee, and
Employee hereby accepts employment with Employer, for a period commencing on the
date hereof and, except as otherwise provided herein, expiring July 31, 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. This Agreement supersedes all
agreements and understandings between Employer and Employee and Employee and the
Company relating to compensation of Employee existing on the date hereof,
including but not limited to salary, commission, bonus and other arrangements,
and all such existing agreements and understandings are hereby terminated.
2. Duties of Employee.
2.1 Employee shall serve as Vice President 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.
2.2 Employee shall devote such productive time, ability and
attention to the business of Employer during the employment term as is
reasonably required for the performance of his duties hereunder. 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 $85,000, 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) 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 bonus plans, 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
disabled by reason of sickness, physical or mental disability, or any other
cause so that he is unable to
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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 consecutive months
or an aggregate of six 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:
7.1.1 By Employer as a result of disability of
Employee as provided in Paragraph 6.1 above, or the death of Employee;
7.1.2 upon the mutual agreement of the parties;
7.1.3 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;
7.1.4 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;
7.1.5 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; and
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 Agreement; and
Employer shall take all actions necessary to ensure that such corporation or
transferee is bound by the provisions of this Agreement.
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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,
facsimile, overnight express delivery or mail, registered or certified, return
receipt requested, postage prepaid. Mailed notices shall be addressed to the
parties at the 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.
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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.
NEWPARK DRILLING FLUIDS, INC. Address:
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
By: /s/ Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxxx X. Xxxxxx, Vice President
/s/ Xxxx X. Xxxxxxx Address:
____________________________________ 3822 Lakewood
Xxxx X. Xxxxxxx ("Employee") Xxxxxxxxxx, Xxxxx 00000
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