EXHIBIT 99.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into as
of May 15, 2005 (the "EFFECTIVE DATE"), by and between Xxxxx International, Inc.
(hereafter "COMPANY") and Xxxxx Xxxxx (hereafter "EXECUTIVE"). The Company and
Executive may sometimes hereafter be referred to singularly as a "PARTY" or
collectively as the "PARTIES."
WITNESSETH:
WHEREAS, the Company desires to continue to secure the employment services
of Executive subject to the terms and conditions hereafter set forth; and
WHEREAS, the Executive is willing to enter into this Agreement upon the
terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of Executive's employment with the
Company, and the premises and mutual covenants contained herein, the Parties
hereto agree as follows:
1. EMPLOYMENT. During the Employment Period (as defined in Section 4
hereof), the Company shall employ Executive, and Executive shall serve as, staff
Vice President for Strategic Initiatives of the Company. Executive's principal
place of employment shall be at the main offices of the Company in Houston,
Texas metropolitan area.
2. COMPENSATION. The Company shall pay to Executive during the
Employment Period a base salary of $150,000.00 per year, as may be adjusted (the
"BASE SALARY"). The Base Salary shall be payable in accordance with the
Company's normal payroll schedule and procedures for its executives. The Base
Salary shall be subject to at least annual review. Nothing contained herein
shall preclude the payment of any other compensation to Executive.
3. DUTIES AND RESPONSIBILITIES OF EXECUTIVE. During the Employment
Period, Executive shall devote his services (at least 30 hours per work week) to
the business of the Company and perform the duties and responsibilities assigned
to him by the Chief Executive Officer of the Company, to the best of his ability
and with reasonable diligence. This Section 3 shall not be construed as
preventing Executive from (a) engaging in reasonable volunteer services for
charitable, educational or civic organizations, or (b) investing his assets in
such a manner that will not require a material amount of his time or services in
the operations of the businesses in which such investments are made; provided,
however, no such other activity shall conflict with Executive's loyalties and
duties to the Company. Executive shall at all times use his best efforts to, in
good faith, comply with United States laws applicable to Executive's actions on
behalf of the Company and its Affiliates (as defined in Section 6(d)). Executive
understands and agrees that he may be required to travel from time to time for
purposes of the Company's business.
4. TERM OF EMPLOYMENT. Executive's initial term of employment with the
Company under this Agreement shall be for the period from the Effective Date
through May 14, 2007 (the "INITIAL TERM OF EMPLOYMENT"). Thereafter, the
Employment Period hereunder may be extended on a month-to-month basis or for
such other period as mutually agreed by the Parties. The Initial Term of
Employment, and any extension of employment hereunder, shall each be referred to
herein as a "TERM OF EMPLOYMENT." The period from the Effective Date through the
date of Executive's termination of employment for whatever reason shall be
referred to herein as the "EMPLOYMENT PERIOD."
Executive may terminate his employment with the Company and all Affiliates
at any time by providing 30 days Notice of Termination to the CEO pursuant to
Section 7. Company may terminate the employment of Executive with the Company
and all Affiliates at any time by providing 30 days Notice of Termination to
Executive pursuant to Section 7; provided, however, no advance Notice of
Termination shall be required if Executive is being terminated for Cause (as
defined in Section 6(c)).
5. BENEFITS. Subject to the terms and conditions of this Agreement,
during the Employment Period, Executive shall be entitled to the following:
(a) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall pay or
reimburse Executive for all reasonable travel, entertainment and other business
expenses paid or incurred by Executive in the performance of his duties
hereunder. The Company shall also provide Executive with suitable office space,
including staff support, and paid parking.
(b) OTHER EMPLOYEE BENEFITS. Executive shall be entitled to
participate in any pension, retirement, 401(k), profit-sharing, and other
employee benefits plans or programs of the Company to the same extent as
available to any other officers of the Company under the terms and conditions of
such plans or programs. Executive shall also be entitled to participate in any
group insurance, hospitalization, medical, dental, health, life, accident,
disability and other employee benefits plans or programs of the Company to the
extent available to any other officers of the Company under the terms and
conditions of such plans or programs.
(c) PAID TIME OFF DAYS AND HOLIDAYS. Executive shall be entitled
to the number of paid time off ("PTO") days in each calendar year determined in
accordance with the Company's PTO policy for its executives as in effect from
time to time.
6. RIGHTS AND PAYMENTS UPON TERMINATION. The Executive's right to
compensation and benefits for periods after the date on which his employment
with the Company terminates (the "TERMINATION DATE"), shall be determined in
accordance with this Section 6, as follows:
(a) MINIMUM PAYMENTS. Executive shall be entitled to the following
minimum payments under this Section 6(a), in addition to any other benefits to
which he may be entitled to receive in accordance with the terms and conditions
of any employee benefit plan or program under which he is covered as of his
Termination Date:
(1) his unpaid salary through his Termination Date;
(2) his unpaid PTO days for that year which have accrued
through his Termination Date; and
(3) reimbursement of his reasonable business expenses that
were incurred but unpaid as of his Termination Date.
Such salary and accrued PTO days shall be paid to Executive within
five (5) business days following the Termination Date in a cash lump sum
less applicable withholdings. Business expenses shall be reimbursed in
accordance with the Company's normal procedures.
(b) OTHER SEVERANCE BENEFITS. Executive shall be entitled to any
other severance benefits only to the extent so provided under the terms and
conditions of any plans or programs maintained by the Company under which he is
covered as of his Termination Date; provided, however, Executive shall not be
entitled to any such other severance benefits if he is terminated for Cause.
(c) DEFINITIONS.
(1) "AFFILIATE" has the same meaning ascribed to such term
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
from time to time.
(2) "CAUSE" means any of the following: (A) the Executive's
conviction by a court of competent jurisdiction as to which no
further appeal can be taken of a crime involving moral turpitude or
a felony or entering the plea of nolo contendere to such crime by
the Executive; (B) the commission by the Executive of a material and
demonstrable act of fraud, or a material and demonstrable
misappropriation of funds or property, of or upon the Company or any
Affiliate; (C) the knowing engagement by the Executive, without the
written approval of the Board or Compensation Committee, in any
material activity which directly competes with the business of the
Company or any Affiliate, or which would directly result in a
material injury to the business or reputation of the Company or any
Affiliate; or (D) (i) the material breach by Executive of any
material provision of this Agreement, or (ii) the willful, material
and repeated nonperformance of Executive's duties to the Company or
any Affiliate (other than by reason of Executive's illness or
incapacity), but only under clauses (C), (D) (i) or (D) (ii) after
Notice from the Board or Compensation Committee of such material
breach or nonperformance (which Notice specifically identifies the
manner and sets forth specific facts, circumstances and examples of
which the Board or Compensation Committee believes that Executive
has breached this Agreement or not substantially performed his
duties) and his continued willful failure to cure such breach or
nonperformance within the time period set by the Board or
Compensation Committee but in no event less than 30 calendar days
after his receipt of such Notice; and, for purposes of clause (D),
no act or failure to act on Executive's part shall be deemed
"willful" unless it is done or omitted by Executive without his
reasonable belief that such action or omission was in the best
interest of the Company (assuming disclosure of the pertinent facts,
any action or omission by Executive after consultation with, and in
accordance with the advice of, legal counsel reasonably acceptable
to the Company shall be deemed to have been taken in good faith and
to not be willful for purposes of this Agreement).
(3) "DESIGNATED BENEFICIARY" means the Executive's surviving
spouse, if any. If there is no such surviving spouse at the time of
Executive's death, then the Designated Beneficiary hereunder shall
be Executive's estate.
(4) "DISPUTE" means any dispute, disagreement, claim, or
controversy arising in connection with or relating to the Agreement
or the validity, interpretation, performance, breach, or termination
of the Agreement.
(5) "SUBSIDIARY" means a corporation or other entity,
whether incorporated or unincorporated, of which at least a majority
of the voting securities is owned, directly or indirectly, by the
Company including, without limitation, M-I L.L.C.
7. NOTICE OF TERMINATION. Any termination of Executive's employment
with the Company and all Affiliates, either by the Company or by the Executive,
shall be communicated by Notice of Termination to the other Party hereto. The
term "NOTICE OF TERMINATION" means a written notice which sets forth in
reasonable detail the basis for termination of the Executive's employment.
8. NONDISCLOSURE AND NONCOMPETITION. As an inducement to the Company to
enter into this Agreement, Executive represents to and covenants with or in
favor of the Company his compliance with the restrictive covenants in Sections 9
through 19, as a condition to the Company's obligation to provide employment to
Executive under this Agreement.
9. TRADE SECRETS.
(a) ACCESS TO TRADE SECRETS. As of the Effective Date and on an
ongoing basis, the Company agrees to give Executive access to Trade Secrets
which the Executive did not have access to, or knowledge of, before the
Effective Date.
(b) ACCESS TO SPECIALIZED TRAINING. As of the Effective Date and
on an ongoing basis, the Company has provided, and agrees to provide on an
ongoing basis, Executive with Specialized Training which the Executive does not
have access to, or knowledge of, before the Effective Date.
(c) AGREEMENT NOT TO USE OR DISCLOSE TRADE SECRETS. In exchange
for the Company's promises to provide Executive with access to Trade Secrets and
Specialized Training and other benefits, Executive agrees that he will not
during the Employment Period, or at any time thereafter, disclose to anyone,
including, without limitation, any person, firm, corporation or other entity, or
publish or use for any purpose, any Trade Secrets and Specialized Training,
except as required in the ordinary course of the Company's business or as
authorized by the Board, Compensation Committee or CEO.
(d) AGREEMENT TO REFRAIN FROM DEFAMATORY STATEMENTS. Executive
shall refrain, both during the Employment Period and thereafter, from publishing
any oral or written statements about any directors, officers, employees, agents,
investors or representatives of the Company or any Affiliate that are
slanderous, libelous, or defamatory; or that disclose private or confidential
information about the business affairs, directors, officers, employees, agents,
investors or representatives of the Company or any Affiliate; or that constitute
an intrusion into the seclusion or private lives of any of such directors,
officers, employees, agents, investors or representatives; or that give rise to
unreasonable publicity about the private lives of such persons; or that place
any such person in a false light before the public; or that constitute a
misappropriation of the name or likeness of any such person. A violation or
threatened violation of these restrictive covenants may be enjoined by a court
of law notwithstanding the arbitration provisions of Section 30.
(e) DEFINITIONS. The following terms, when used in this Agreement,
are defined below:
(1) "SPECIALIZED TRAINING" includes the training the Company
provides to Executive that is unique to its business and enhances Executive's
ability to perform Executive's job duties effectively. Specialized Training
includes, without limitation, any training or other instruction related to sales
methods/techniques; operation methods; financial; engineering and scientific;
and computer and systems.
(2) "TRADE SECRETS" means any and all information and materials
(in any form or medium) that are proprietary to the Company or a
Subsidiary, or are treated as confidential by the Company or Subsidiary as
part of, or relating to, all or any portion of its or their business,
including information and materials about the products and services
offered, or the needs of customers served, by the Company or Subsidiary;
compilations of information, records and specifications, processes,
programs, and systems of the Company or Subsidiary; research of or for the
Company or Subsidiary; and methods of doing business of the Company or
Subsidiary. Trade Secrets include, without limitation, all of the
Company's or Subsidiary's technical and business information, whether
patentable or not, which is of a confidential, trade secret or proprietary
character, and which is either developed by the Executive alone, with
others or by others; lists of customers; identity of customers; identity
of prospective customers; contract terms; bidding information and
strategies; pricing methods or information; computer software; computer
software methods and documentation; hardware; the Company's or
Subsidiary's methods of operation; the procedures, forms and techniques
used in servicing accounts or properties; and other documents, information
or data that the Company or Subsidiary requires to be maintained in
confidence for the business success of Company or Subsidiary.
10. DUTY TO RETURN COMPANY DOCUMENTS AND PROPERTY. Upon termination of
the Employment Period, Executive shall immediately return and deliver to
the Company any and all papers, books, records, documents, memoranda and
manuals, e-mail, electronic or magnetic recordings or data, including all
copies thereof, belonging to the Company or Subsidiary or relating to its
business, in Executive's possession, whether prepared by Executive or
others. If at any time after the Employment Period, Executive determines
that he has any Trade Secrets in his possession or control, Executive
shall immediately return them to the Company, including all copies
thereof.
11. BEST EFFORTS AND DISCLOSURE. Executive agrees that, while he is
employed with the Company, he shall devote his full business time and
attention to the Company's business and shall use his best efforts to
promote its success. Further, Executive shall promptly disclose to the
Company all ideas, inventions, computer programs, and discoveries, whether
or not patentable or copyrightable, which he may conceive or make, alone
or with others, during the Employment Period, whether or not during
working hours, and which directly or indirectly:
(a) relate to a matter within the scope, field, duties or responsibility
of Executive's employment with the Company; or
(b) are based on any knowledge of the actual or anticipated business or
interests of the Company; or
(c) are aided by the use of time, materials, facilities or information
of the Company.
Executive assigns to the Company, without further compensation, any and
all rights, titles and interest in all such ideas, inventions, computer programs
and discoveries in all countries of the world. Executive recognizes that all
ideas, inventions, computer programs and discoveries of the type described
above, conceived or made by Executive alone or with others within 12 months
after the Termination Date (voluntary or otherwise), are likely to have been
conceived in significant part either while employed by the Company or as a
direct result of knowledge Executive had of proprietary information or Trade
Secrets. Accordingly, Executive agrees that such ideas, inventions or
discoveries shall be presumed to have been conceived during his Employment
Period, unless and until the contrary is clearly established by the Executive.
12. INVENTIONS AND OTHER WORKS. Any and all writings, computer software,
inventions, improvements, processes, procedures and/or techniques which
Executive may make, conceive, discover, or develop, either solely or jointly
with any other person or persons, at any time during the Employment Period,
whether at the request or upon the suggestion of the Company or otherwise, which
relate to or are useful in connection with any business now or hereafter carried
on or contemplated by the Company, including developments or expansions of its
present fields of operations, shall be the sole and exclusive property of the
Company. Executive agrees to take any and all actions necessary or appropriate
so that the Company can prepare and present applications for copyright or
Letters Patent therefor, and secure such copyright or Letters Patent wherever
possible, as well as reissue renewals, and extensions thereof, and obtain the
record title to such copyright or patents. Executive shall not be entitled to
any additional or special compensation or reimbursement regarding any such
writings, computer software, inventions, improvements, processes, procedures and
techniques. Executive acknowledges that the Company from time to time may have
agreements with other persons or entities which impose obligations or
restrictions on the Company regarding inventions made during the course of work
thereunder or regarding the confidential nature of such work. Executive agrees
to be bound by all such obligations and restrictions, and to take all action
necessary to discharge the obligations of the Company.
13. NON-SOLICITATION RESTRICTION. To protect Trade Secrets following the
Employment Period, it is necessary to enter into the following restrictive
covenants which are ancillary to the enforceable promises between the Company
and Executive in Sections 9 through 12 and other provisions of this Agreement.
Executive hereby covenants and agrees that he will not, directly or indirectly,
either individually or as a principal, partner, agent, consultant, contractor,
employee, or as a director or officer of any entity, or in any other manner or
capacity whatsoever, except on behalf of the Company, solicit business, or
attempt to solicit business, in products or services competitive with any
products or services offered or performed by the Company or any Subsidiary from
the Company's or Subsidiary's customers as of the Termination Date, or those
individuals or entities with whom the Company or Subsidiary conducted business
during the two-year period ending on the Termination Date. The prohibitions set
forth in this Section 13 shall remain in effect for a period of one (1) year
following the Termination Date.
14. NON-COMPETITION RESTRICTION. Executive hereby agrees that in order
to protect Trade Secrets, it is necessary to enter into the following
restrictive covenant, which is ancillary to the enforceable promises between the
Company and Executive in Sections 9 through 13 and other provisions of this
Agreement. Executive hereby covenants and agrees that during the Employment
Period, and for a period of one (1) year following the Termination Date,
Executive will not, without the prior written consent of the Board or the
Compensation Committee, become interested in any capacity in which Executive
would perform any duties, directly or indirectly (whether as proprietor,
stockholder, director, partner, employee, agent, independent contractor,
consultant, trustee, or in any other capacity), with respect to any entity which
competes with the business of the Company or any of its Affiliates including,
but not limited to, Halliburton Company, Xxxxxxxxxxx International Ltd., BJ
Services Company, Rockbit International, Xxxxx International, Xxxxx Xxxxxx, Inc.
and Tuboscope Vetco International, Inc. or any of their subsidiaries or other
affiliates, except M-I L.L.C., as determined by the Company (a "Competing
Enterprise"); provided, however, Executive shall not be deemed to be
participating or engaging in a Competing Enterprise solely by virtue of his
ownership of not more than one percent (1%) of any class of stock or other
securities which are publicly traded on a national securities exchange or in a
recognized over-the-counter market.
15. NO-RECRUITMENT RESTRICTION. Executive agrees that during the
Employment Period, and for a period of one (1) year following the Termination
Date, Executive will not, either directly or indirectly, or by acting in concert
with others, solicit or influence, or seek to solicit or influence, any employee
or independent contractor performing services for the Company or any Subsidiary
to terminate, reduce or otherwise adversely affect his or her employment or
other relationship with the Company or any Subsidiary.
16. TOLLING. If Executive violates any of the restrictions contained in
Sections 13, 14 or 15, then notwithstanding any provision hereof to the
contrary, the restrictive period will be suspended and will not run in favor of
Executive from the time of the commencement of any such violation until the time
when the Executive cures the violation to the reasonable satisfaction of the
Compensation Committee.
17. REFORMATION. If a court or arbitrator rules that any time period or
the geographic area specified in any restrictive covenant in Sections 9 through
16 is unenforceable, then the time period will be reduced by the number of
months, or the geographic area will be reduced by the elimination of such
unenforceable portion, or both, so that the restrictions may be enforced in the
geographic area and for the time to the full extent permitted by law.
18. CONFLICTS OF INTEREST. In keeping with his fiduciary duties to
Company, Executive hereby agrees that he shall not become involved in a conflict
of interest, or upon discovery thereof, allow such a conflict to continue at any
time during the Employment Period. In this respect, Executive agrees to fully
comply with the conflict of interest agreement entered into by Executive in his
capacity as of an officer or director of the Company or any Subsidiary. In the
instance of a violation of the conflict of interest agreement to which Executive
is a party, it may be necessary for Board to terminate Executive's employment
for Cause.
19. REMEDIES. Executive acknowledges that the restrictions contained in
Sections 9 through 18 of this Agreement, in view of the nature of the Company's
business, are reasonable and necessary to protect the Company's or Subsidiary's
legitimate business interests, and that any violation would result in
irreparable injury to the Company or Subsidiary. Notwithstanding the arbitration
provisions in Section 26, in the event of a breach or a threatened breach by
Executive of any provision of Sections 9 through 18, the Company shall be
entitled to a temporary restraining order and injunctive relief restraining
Executive from the commission of any breach, and to recover the Company's
attorneys' fees, costs and expenses related to the breach or threatened breach.
Nothing contained in this Agreement shall be construed as prohibiting the
Company from pursuing any other remedies available to it for any such breach or
threatened breach, including, without limitation, the recovery of money damages,
attorneys' fees, and costs. These covenants and agreements shall each be
construed as independent of any other provisions in this Agreement, and the
existence of any claim or cause of action by Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants and agreements.
Moreover, the restrictive covenants in Sections 9 through 18 shall supplement,
and be in addition to, any other restrictive covenants to which Executive is a
party, or otherwise subject to, under any other agreement or policy.
20. WITHHOLDINGS; RIGHT OF OFFSET. The Company may withhold and deduct
from any benefits and payments made or to be made pursuant to this Agreement (a)
all federal, state, local and other taxes as may be required pursuant to any law
or governmental regulation or ruling, (b) all other normal employee deductions
made with respect to Company's employees generally, and (c) any advances made to
Executive and owed to Company.
21. NONALIENATION. The right to receive payments under this Agreement
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge or encumbrance by Executive, his dependents or beneficiaries,
or to any other person who is or may become entitled to receive such payments
hereunder. The right to receive payments hereunder shall not be subject to or
liable for the debts, contracts, liabilities, engagements or torts of any person
who is or may become entitled to receive such payments, nor may the same be
subject to attachment or seizure by any creditor of such person under any
circumstances, and any such attempted attachment or seizure shall be void and of
no force and effect.
22. INCOMPETENT OR MINOR PAYEES. Should the Board or the Compensation
Committee determine, in its discretion, that Executive or any other person to
whom any payment is payable under this Agreement has been determined to be
legally incompetent or is a minor, any payment due hereunder, notwithstanding
any other provision of this Agreement to the contrary, may be made in any one or
more of the following ways: (a) directly to such minor or person; (b) to the
legal guardian or other duly appointed personal representative of the person or
estate of such minor or person; or (c) to such adult or adults as have, in the
good faith knowledge of the Board or the Compensation Committee, assumed custody
and support of such minor or person; and any payment so made shall constitute
full and complete discharge of any liability under this Agreement in respect to
the amount paid.
23. SEVERABILITY. It is the desire of the parties hereto that this
Agreement be enforced to the maximum extent permitted by law, and should any
provision contained herein be held unenforceable by a court of competent
jurisdiction or arbitrator (pursuant to Section 26), the parties hereby agree
and consent that such provision shall be reformed to create a valid and
enforceable provision to the maximum extent permitted by law; provided, however,
if such provision cannot be reformed, it shall be deemed ineffective and deleted
herefrom without affecting any other provision of this Agreement. This Agreement
should be construed by limiting and reducing it only to the minimum extent
necessary to be enforceable under then applicable law.
24. TITLE AND HEADINGS; CONSTRUCTION. Titles and headings to Sections
hereof are for the purpose of reference only and shall in no way limit, define
or otherwise affect the provisions hereof. The words "herein", "hereof",
"hereunder" and other compounds of the word "here" shall refer to the entire
Agreement and not to any particular provision.
25. GOVERNING LAW; JURISDICTION. All matters or issues relating to the
interpretation, construction, validity, and enforcement of this Agreement shall
be governed by the laws of the State of Texas, without giving effect to any
choice-of-law principle that would cause the application of the laws of any
jurisdiction other than Texas. Jurisdiction and venue of any action or
proceeding relating to this Agreement or any Dispute (to the extent arbitration
is not required under Section 30) shall be exclusively in Xxxxxx County, Texas.
26. MANDATORY ARBITRATION. Except as provided in subsection (h) of this
Section 26, any Dispute (as defined in Section 6(c)) must be resolved by binding
arbitration in accordance with the following:
(a) Party may begin arbitration by filing a demand for arbitration
in accordance with the Arbitration Rules and concurrently Notifying the other
Party of that demand. If the Parties are unable to agree upon a panel of three
arbitrators within ten days after the demand for arbitration was filed (and do
not agree to an extension of that ten-day period), either Party may request the
Houston, Texas office of the American Arbitration Association ("AAA") to appoint
the arbitrator or arbitrators necessary to complete the panel in accordance with
the Arbitration Rules. Each arbitrator so appointed shall be deemed accepted by
the Parties as part of the panel.
(b) The arbitration shall be conducted in the Houston metropolitan
area at a place and time agreed upon by the Parties with the panel, or if the
Parties cannot agree, as designated by the panel. The panel may, however, call
and conduct hearings and meetings at such other places as the Parties may agree
or as the panel may, on the motion of one Party, determine to be necessary to
obtain significant testimony or evidence.
(c) The panel may authorize any and all forms of discovery upon a
Party's showing of need that the requested discovery is likely to lead to
material evidence needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(d) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to the extent that
they do not conflict with this Section 26. The Parties and the panel may,
however, agree to vary to provisions of this Section 26 or the matters otherwise
governed by the Arbitration Rules.
(e) The arbitration hearing shall be held within 60 days after the
appointment of the panel. The panel's final decision or award shall be made
within 30 days after the hearing. That final decision or award shall be made by
unanimous or majority vote or consent of the arbitrators constituting the panel,
and shall be deemed issued at the place of arbitration. The panel's final
decision or award shall be based on this Agreement and applicable law.
(f) The panel's final decision or award may include injunctive
relief in response to any actual or impending breach of this Agreement or any
other actual or impending action or omission of a Party under or in connection
with this Agreement.
(g) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may be entered in any
court having jurisdiction. The Parties waive any right to apply or appeal to any
court for relief from the preceding sentence or from any decision of the panel
made before the final decision or award.
(h) Nothing in this Section 26 limits the right of either Party to
apply to a court having jurisdiction to (i) enforce the agreement to arbitrate
in accordance with this Section 26, (ii) seek provisional or temporary
injunctive relief, in response to an actual or impending breach of the Agreement
or otherwise so as to avoid an irreparable damage or maintain the status quo,
until a final arbitration decision or award is rendered or the Dispute is
otherwise resolved, or (iii) challenge or vacate any final arbitration decision
or award that does not comply with this Section 26. In addition, nothing in this
Section 26 prohibits the Parties from resolving any Dispute (in whole or in
part) by agreement.
The panel may proceed to an award notwithstanding the failure of any Party
to participate in such proceedings. The prevailing Party in the arbitration
proceeding may be entitled to an award of reasonable attorneys' fees incurred
in connection with the arbitration in such amount, if any, as determined by
the panel in its discretion. The costs of the arbitration shall be borne
equally by the Parties unless otherwise determined by the panel in its award.
The panel shall be empowered to impose sanctions and to take such other
actions as it deems necessary to the same extent a judge could impose
sanctions or take such other actions pursuant to the Federal Rules of Civil
Procedure and applicable law. Each party agrees to keep all Disputes and
arbitration proceedings strictly confidential except for disclosure of
information required by applicable law which cannot be waived.
This Section 26 shall not preclude the Parties at any time from mutually
agreeing to pursue non-binding mediation of the Dispute.
27. BINDING EFFECT: THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto, and to their
respective heirs, executors, beneficiaries, personal representatives, successors
and permitted assigns hereunder, but otherwise this Agreement shall not be for
the benefit of any third parties.
28. ENTIRE AGREEMENT; AMENDMENT AND TERMINATION. This Agreement contains
the entire agreement of the Parties hereto with respect to the matters covered
herein; moreover, this Agreement supersedes all prior and contemporaneous
agreements and understandings, oral or written, between the Parties concerning
the subject matter hereof. This Agreement may be amended, waived or terminated
only by a written instrument that is identified as an amendment, waiver or
termination hereto and that is executed on behalf of both Parties.
29. SURVIVAL OF CERTAIN PROVISIONS. Wherever appropriate to the
intention of the Parties, the respective rights and obligations of the Parties
hereunder shall survive any termination or expiration of this Agreement.
30. WAIVER OF BREACH. No waiver by either Party hereto of a breach of
any provision of this Agreement by any other Party, or of compliance with any
condition or provision of this Agreement to be performed by such other Party,
will operate or be construed as a waiver of any subsequent breach by such other
Party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either Party hereto to take any action by reason
of any breach will not deprive such Party of the right to take action at any
time while such breach continues.
31. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company and its Subsidiaries (and its and their
successors), as well as upon any person or entity acquiring, whether by merger,
consolidation, purchase of assets, dissolution or otherwise, all or
substantially all of the capital stock, business and/or assets of the Company
(or its successor) regardless of whether the Company is the surviving or
resulting corporation. The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation, dissolution or otherwise) to
all or substantially all of the capital stock, business or assets of the Company
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession had occurred; provided, however, no such assumption shall relieve the
Company of any of its duties or obligations hereunder unless otherwise agreed,
in writing, by Executive.
This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representative, executors, administrators,
successors, and heirs. In the event of the death of Executive while any amount
is payable hereunder, all such amounts shall be paid to the Designated
Beneficiary (as defined in Section 6(c)).
32. NOTICE. Each notice or other communication required or permitted
under this Agreement shall be in writing and transmitted, delivered, or sent by
personal delivery, prepaid courier or messenger service (whether overnight or
same-day), prepaid telecopy or facsimile, or prepaid certified United States
mail (with return receipt requested), addressed (in any case) to the other Party
at the address for that Party set forth below that Party's signature on this
Agreement, or at such other address as the recipient has designated by Notice to
the other Party.
Each notice or communication so transmitted, delivered, or sent (a) in
person, by courier or messenger service, or by certified United States mail
shall be deemed given, received, and effective on the date delivered to or
refused by the intended recipient (with the return receipt, or the equivalent
record of the courier or messenger, being deemed conclusive evidence of delivery
or refusal), or (b) by telecopy or facsimile shall be deemed given, received,
and effective on the date of actual receipt (with the confirmation of
transmission being deemed conclusive evidence of receipt, except where the
intended recipient has promptly Notified the other Party that the transmission
is illegible). Nevertheless, if the date of delivery or transmission is not a
business day, or if the delivery or transmission is after 5:00 p.m. (CST) on a
business day, the notice or other communication shall be deemed given, received,
and effective on the next business day.
33. EXECUTIVE ACKNOWLEDGMENT. Executive acknowledges that (a) he is
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, (b) he has read this Agreement and understands its
terms and conditions, (c) he has had ample opportunity to discuss this Agreement
with his own legal counsel prior to execution, and (d) no strict rules of
construction shall apply for or against the drafter or any other Party.
Executive represents that he is free to enter into this Agreement including,
without limitation, that he is not subject to any covenant not to compete that
would conflict with his duties under this Agreement.
34. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
[Signature page follows.]
IN WITNESS WHEREOF, Executive has hereunto set his hand and Company has
caused this Agreement to be executed in its name and on its behalf by its duly
authorized officer, to be effective as of the Effective Date.
EXECUTIVE:
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Date: February 22, 2005
COMPANY:
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President - Human Resources
Date: February 28, 2005
