EXHIBIT 10.40.1
STATE OF TEXAS
XXXXXXXXXX COUNTY
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT, made and entered into effective June 1, 2003, by and
between BLACK WARRIOR WIRELINE CORP. a corporation organized and existing under
the laws of the State of Delaware (hereinafter for convenience referred to as
the "Employer'), and Xxxxx X. Xxxx (hereinafter for convenience referred to as
the" Employee"), as follows:
WITNESSETH:
-----------
WHEREAS, in consideration of employment by the Employer, Employee is
willing to make certain agreements with the Employer, which will restrict
Employee's right to engage in competition with the Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, faithfully to be kept by the parties hereto, it is agreed
as follows:
1. Term. The Employer will employ the Employee, and the Employee agrees to
remain in the full-time employ of the Employer, for an initial period of five
(5) years commencing June 1, 2003, subject to the right of termination stated
elsewhere herein.
2. Duties. Employee shall serve as Executive Vice President of BLACK
WARRIOR WIRELINE CORP., working in the Employer's Conroe, Texas office, and
Employee hereby accepts the employment, on the terms and conditions as
hereinafter set forth.
During the continuation of his employment, the Employee shall devote the
whole of his time during business hours, and at any other time when he is
reasonably needed under the circumstances, for the benefit of the Employer,
working either directly for the Employer or
indirectly for its benefit by devoting his time and attention to other
activities from which the Employer can derive a material benefit. The Employee
shall use his best efforts to promote the interest and welfare of the Employer
in every way. The Employee shall exercise and carry out all such duties and
powers and shall reasonably observe all such directions and restrictions as the
Board of Directors of the Employer, from time to time, may reasonably confer or
impose upon him.
3. Compensation. As compensation for his services, the Employee shall be
entitled to the following:
3.1 A base salary of $13,750.00 per month, payable in arrears on the 1st
and 15th day of each month in equal installments; and
3.2 On the first anniversary date of this agreement, i.e., at the end of
the first year of employment hereunder, and every anniversary date of this
agreement thereafter, including those anniversary dates for which this agreement
has been extended by mutual agreement of the parties (hereinafter referred to as
a "renegotiation date"), the Employer and the Employee shall, in good faith,
negotiate an increase in the Employee's base salary, taking into account the
rate of inflation since the last adjustment to said base salary, the overall
profitability and cash position of the Employer, the performance and
profitability of the areas for which the Employee is responsible, and other
factors generally affecting the Employee's base compensation. After such good
faith negotiations, the base salary of the Employee shall be adjusted as agreed;
effective as of the renegotiation date shall remain in force until the next
renegotiation date.
3.3. As additional compensation, in the event Employee is stationed
overseas for more than
forty-five days during any employment year under this contract (said employment
year running from June 1 to Mayl 31 of each year hereunder), the Employee shall
receive additional compensation of $200 per day For each day worked overseas
above forty-five (45) days during said employment year.
4. Non-Competition.
4.1. The Employee agrees that for and during the duration of his
employment, he will not directly or indirectly become employed by or associated
with, in any capacity, any other person, firm or corporation which is or may be
in competition with the Employer's oilfield service activities. It is the intent
of Employee and the Employer to preserve to the Employer exclusively the special
knowledge, trade secrets and experience gained or to be gained in the future by
the Employee during his association with Employer, recognizing that if such
experience, knowledge and trade secrets were made available to competitors of
the Employer, it would irreparably damage the business of the Employer.
4.2. It is agreed by the parties hereto that arty breach of this provision
shall entitle the Employer, in addition to any other legal remedies available to
it, to apply to a court of competent jurisdiction to enjoin any violation of
this provision and/or to recover damages for any breach of this provision, and
to recover all costs of such action, including a reasonable attorneys fee.
4.3. In the event a court of law in any jurisdiction should find the
territorial limits or the time period of this provision to be excessive or
unlawful, Employee and Employer agree to abide by any reduction of such
territorial limits or time period as the court may in its wisdom decree.
5. Waiver of Trial by Jury. The parties to this Agreement desire to avoid
the additional time and expense related to a jury trial of any disputes arising
hereunder. Therefore, it is mutually agreed by and between the parties hereto,
and for their successors and assigns, that they shall and hereby do waive trial
by jury of any claim, counterclaim, or third-party claim, including any and all
claims of injury or damages, brought by either party against the other arising
out of or in any way connected with this Agreement and the relationship which
arises herefrom. The parties acknowledge and agree that this waiver is
knowingly, freely and voluntarily given, is desired by both parties, and is in
the best interests of both parties.
7. Termination. Employees' employment shall be terminated upon the
happening of any of the following events:
7.1. At the end of the fifth year of employment hereunder unless this
Agreement is extended for additional terms by mutual agreement of the parties,
said additional terms to be governed by the provisions and conditions of this
Agreement;
7.2. Upon the death of the Employee;
7.3. In the event Employee is determined to be disabled, as defined below.
Employee is disabled for purposes of this Agreement upon the earlier of
(i) the Employee being unable for a one year period to perform substantially all
of the duties required of the Employee by the Employer, if such inability is due
to mental or physical illness or accident, and that such disability is
determined or reasonably expected to last at least eighteen months, or (ii) the
Employee being declared legally incompetent by a final court decree (the date of
such decree being deemed to be the date on which Employee becomes disabled).
7.4. With cause, the Employer may terminate this Agreement immediately
without notice. The term "cause" shall mean: (a) the failure of Employee
faithfully and substantially to carry out the material terms of this Agreement,
(b) the failure of Employee faithfully and substantially to perform the material
duties of the position in which he is serving in a reasonable manner subject to
section 7.5, (c) the Employee's habitual use of, or addiction to drugs or
alcohol.
7.5. If a problem exists with the performance of the duties of Employee,
Employer shall give Employee written notice of the problems and one year from
date of written notice to correct the problems to the satisfaction of Employer.
In the event Employee is unable to correct the problems to Employer's
satisfaction then Employer shall have the option to terminate Employee without
further notice.
8. Benefits. The benefit package of Employee, as presently existing, shall
include:
Medical, dental, life, disability and other insurance benefits
paid by Employer.
401K Plan
Three weeks' paid vacation and company holidays per year.
Reasonable travel and entertainment expense.
A company vehicle or vehicle allowance.
9. Amendments. This agreement shall not be modified or amended except by
an agreement in writing signed by both parties.
10. Prior Agreements. This agreement replaces and supersedes any and all
employment agreements, deferred compensation agreements, or employment
arrangements, whether written or oral, between the parties hereto, made at any
time prior to the date hereof.
11. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of any successor to the Employer and such successor shall be
deemed substituted for the Employer under the terms of this Agreement. As used
in this Agreement, the term successor' shall include any person, firm,
corporation or other business entity which at any time, whether by merger,
purchase or otherwise, acquires all of substantially all the assets of the
business of the Employer. In the event of a Change of Control, the Company shall
pay to the Employee the sum of one (1) times the total compensation paid to the
Employee during the twelve (12) months preceding the Change of Control. Change
of Control of the Company, which for purposes of this Agreement shall mean any
of the following: (i) any person or group of persons (within the meaning of the
Securities Exchange Act of 1934,) shall have acquired, after the Closing Date,
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,)
of 20% or more of the issued and outstanding shares of capital stock of Company
having the right to vote for the election of Directors of Company under ordinary
circumstances; (ii) more than 25% of the assets of the Company are sold in a
transaction or series of related transactions; (iii) the Company shall merge
with any other person or firm; (iv) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period constituted the
Board of Directors of Company (together with any new directors whose election by
the Board of Directors of Company or whose nomination for election by the
Stockholders of Company was approved by a vote of at least two-thirds of the
Directors then still in office who either were Directors at the beginning of
such period or whose election or nomination for election was previously so
approved cease) for any
reason other than death or disability to constitute a majority of the Directors
then in office; or (v) St. Xxxxx Capital Corp. ceases to be the general partner,
managing partner or otherwise ceases to be in control of St. Xxxxx Capital
Partners, LP or SJMB, LP; (v) X. X. Xxxxxxx shall cease to be President, or CEO,
or a Director, or an Employee of the Company.
12. Applicable Law arid Consent to Jurisdiction. This Agreement shall be
construed and enforced in accordance with the laws of the State of Texas.
13. Invalidity. If any term or provision of this Agreement shall be
invalid or unenforceable to any extent or application, then the remainder of
this Agreement shall be valid and enforceable to the fullest extent and the
broadest application permitted by law.
14. Captions. The captions of headings in this Agreement are made for
convenience and general reference only and shall not be construed to describe,
define or limit the scope or intent of the provisions of this Agreement.
IN WITNESS WHEREOF, the Employer by and through its duly authorized
officers and the Employee have caused this instrument to be executed effective
the 1st day of June, 2003.
Black Warrior Wireline Corp (Employer)
Attest: By:
-------------------------- ----------------------------------
Its President
Attest: By:
-------------------------- ----------------------------------
Employee
