EXHIBIT 10.32
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered
into to be effective April 1, 1998 (the "EFFECTIVE DATE"), by and between Xxxxxx
Production Services, Inc. (together with its successors, the "COMPANY") and P.
Xxxx Xxxxx (the "EXECUTIVE").
WHEREAS, the Executive is an individual residing in Boerne, Texas; and
WHEREAS, the Company is a Texas business corporation engaged in the
well-servicing business with its principal place of business in San Antonio,
Texas; and
WHEREAS, the Executive has considerable experience, expertise and training
in management related to the types of services offered by the Company; and
WHEREAS, the Company desires and intends to employ the Executive as Chief
Financial Officer of the Company pursuant to the terms and conditions set forth
in this Agreement; and
WHEREAS, both the Company and the Executive have read and understood the
terms and provisions set forth in this Agreement, and have been afforded a
reasonable opportunity to review this Agreement with their respective legal
counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, the Executive and the Company agree as follows:
1. RESPONSIBILITIES:
a. The Executive acknowledges and agrees that he shall be employed as
Chief Financial Officer of the Company. The Executive covenants and agrees that
he will faithfully devote his best efforts and such portion of his time,
attention and skill to the business of the Company as is necessary to perform
his obligations under this Agreement.
b. The Executive acknowledges and agrees that he has a fiduciary duty of
loyalty to the Company, and that he will not engage in any activity which will
or could in any way, harm the business, business interests or reputation of the
Company.
c. The Executive acknowledges and agrees that he will not directly or
indirectly engage in competition with the Company at any time during the
existence of the employment relationship between the Company and the Executive,
and the Executive will not on his own behalf, or as another's agent, employee,
partner, shareholder or otherwise, engage in any of the same or similar duties
and/or responsibilities required by the Executive's position with the Company,
other than as an employee of the Company pursuant to this Agreement.
Executive Employment Agreement
P. Xxxx Xxxxx - Page 1
d. The Executive acknowledges and agrees that all information concerning
the Company's products, techniques, equipment, pricing, business projections,
business plans and strategies, marketing plans, sales techniques, customer
contacts, customer needs and prospective customers is highly sensitive and
confidential, and has been obtained only through significant effort and expense
to the Company; and that, as a result, the Executive must agree to treat this
information as highly confidential trade secret information at all times during
the existence of the employment relationship between the Company and the
Executive, and after the termination of the employment relationship.
2. COMPENSATION: During his employment pursuant to this Agreement, the Company
agrees to provide the Executive the following compensation:
a. BASE SALARY: From the Effective Date until changed as provided in this
Section, the Company agrees to pay the Executive an annual salary of $120,000
during the first year of employment with the Company under this Agreement,
payable in at least equal monthly installments in accordance with the Company's
ordinary payroll policies and procedures for executive compensation. Such salary
shall increase to an annual rate of $140,000 on April 1, 1999. Such salary shall
be subject to withholding for the prescribed federal income tax, social security
and other items as required by law and for other items consistent with the
Company's policy with respect to health insurance and other benefit plans for
similarly situated employees. The above-described annual salary as in effect
from time to time hereunder is referred to herein as the "BASE SALARY."
b. BUSINESS EXPENSES: The Company shall reimburse all reasonable travel
and entertainment expenses incurred by the Executive in connection with the
performance of his duties pursuant to this Agreement. The Executive shall
provide the Company with a written monthly accounting of his expenses on a form
acceptable to the Company and satisfying any applicable federal income tax
reporting or record keeping requirements, within a reasonable time following the
end of each month.
c. DISCRETIONARY INCENTIVE BONUS: In the discretion of the Board of
Directors of the Company, and without implying any obligation on the Company
ever to award a bonus to the Executive, the Executive may from time to time be
awarded an annual cash bonus during the term of his employment under this
Agreement. If the Company has an executive bonus plan in effect (as any such
plan may be amended from time to time), the annual bonus to the Executive
referenced in the preceding sentence shall be in general accordance with such
plan and with the Executive's status and position with the Company; provided,
however, all such bonuses are entirely discretionary with the Board of
Directors. If and to the extent a bonus is ever considered for the Executive, it
is expected that any such bonus will be based not only on the Executive's
individual performance and his relative position, service tenure and
responsibilities with the Company, but also on the performance and profitability
of the entire business of the Company.
d. EMPLOYEE BENEFITS: The Executive acknowledges and agrees that certain
employee benefits will be provided to the Executive incident to his employment
as Chief Financial Officer of the Company. During the term of this Agreement,
the Executive shall be entitled to receive
Executive Employment Agreement
P. Xxxx Xxxxx - Page 2
such benefits as are made available to other personnel of the Company in
comparable positions, with comparable duties and responsibilities. Any benefits
substantially in excess of those granted other salaried employees of the Company
shall be the subject of prior approval of the Board of Directors. Additionally,
for purposes of determining eligibility, funding or vesting with respect to any
other benefits, the Executive's prior service with the Company and any
predecessor of the Company shall be deemed to be service with the Company.
3. DURATION: The duration of this Agreement shall be defined and determined as
follows:
a. INITIAL TERM: This Agreement shall continue in full force and effect
for two (2) years commencing on the Effective Date and expiring on March 31,
2000 (the "EXPIRATION DATE"), unless terminated prior to the Expiration Date in
accordance with Section 3(c).
b. RENEWAL: This Agreement is not subject to an automatic renewal on the
Expiration Date and is renewable only if both parties mutually agree in writing.
c. TERMINATION: This Agreement may be terminated by the Company as
follows:
(1) DEATH: In the event of the Executive's death, this Agreement
shall terminate immediately, without notice, on the date of the Executive's
death; provided, however, that the Company shall pay the Executive's estate the
Base Salary that the Executive would have earned for a period of ninety (90)
days following the date of death and a prorated amount of the discretionary
incentive bonus, if any, paid to the Executive for the prior contract year
pursuant to Section 2(c), in the time and manner in which the Executive would
have been paid such compensation. In addition, the Executive's designated
beneficiaries shall be entitled to receive any life insurance benefits provided
to the Executive in accordance with the applicable plan documents and/or
insurance policies governing such benefits.
(2) DISABILITY: In the event the Executive becomes physically or
mentally disabled, as that term is defined by 29 CFR ss.1630.2(g)(1), and is
unable to perform the essential functions of his position, with reasonable
accommodation, for a period of one hundred eighty (180) consecutive days, this
Agreement shall terminate immediately, without notice.
(3) GOOD CAUSE:
(a) This Agreement may be terminated by providing the
Executive with thirty (30) days written notice that the Company is terminating
the Agreement for Good Cause, as defined herein ("NOTICE OF TERMINATION FOR GOOD
CAUSE") at any time during his employment. In the event that Good Cause exists
for terminating this Agreement, the Company may elect to provide the Executive
with thirty (30) days pay in lieu of notice, in addition to any other amounts
due under this Agreement.
(b) For purposes of this Agreement, "GOOD CAUSE" shall be
defined as follows:
Executive Employment Agreement
P. Xxxx Xxxxx - Page 3
i) Any act or omission constituting fraud under the
law of the State of Texas; or
ii) Conviction of, or a plea of NOLO CONTENDERE to, a
felony or any misdemeanor involving moral
turpitude; or
iii) Embezzlement or theft of Company property or
funds; or
iv) The material breach of any provision of this
Agreement; or continued gross neglect of his
duties under this Agreement; or unauthorized
competition with the Company during his employment
pursuant to this Agreement; or unauthorized use of
Confidential Information (as defined in Section
9); which is materially detrimental to the
Company; or
v) Engagement in gross misconduct in the course and
scope of his employment with the Company,
including, without limitation, dishonesty,
unlawful harassment, abuse of alcohol or
controlled substances, or fighting.
(c) In the event the Company believes Good Cause exists for
terminating this Agreement pursuant to this Section, the Company shall be
required to give the Executive written notice of the acts or omissions
constituting Good Cause ("CAUSE NOTICE"), and no Notice of Termination for Good
Cause shall be communicated by the Company unless and until the Executive fails
to cure such acts or omissions within fifteen (15) days after receipt of the
Cause Notice.
(d) In the event the Company communicates Notice of
Termination for Good Cause pursuant to this Section, the Executive shall have
the right to a hearing before the Compensation Committee of the Board of
Directors within fifteen (15) days after the date such Notice is received, to
contest the alleged Good Cause for the Notice of Termination. In the event that
the Compensation Committee of the Board of Directors affirms the Good Cause for
termination, the Executive shall have the right to give an Arbitration Notice
under Section 10(a) prior to the effective date of termination of this
Agreement; provided, however, that in the event that the Executive communicates
an Arbitration Notice, the Company shall have the right to discontinue any
payments required under this Agreement (subject to the payment of such amounts
into an interest bearing account in accordance with Section 10(b)) and suspend
the Executive from performing any duties under this Agreement pending the
outcome of the arbitration proceeding.
(4) WITHOUT GOOD CAUSE:
(a) This Agreement shall terminate by the Company providing
thirty (30) days written notice to the Executive that the Company is terminating
the Agreement Without Good Cause, as defined herein ("NOTICE OF TERMINATION
WITHOUT GOOD CAUSE"), at any time
Executive Employment Agreement
P. Xxxx Xxxxx - Page 4
during his employment; provided, however, that the Company shall be required to
pay severance pay in accordance with the severance provisions in Section 5.
(b) Any termination of this Agreement which is not for Good
Cause, as defined above, or which does not result from the death or disability
of the Executive, shall be deemed to be a termination "WITHOUT GOOD CAUSE."
Furthermore, in the event that the Company communicates a Notice of Termination
for Good Cause, and the arbitrators pursuant to Section 10 determine that no
Good Cause exists or existed for the Notice of Termination that was originally
communicated, then such Notice of Termination shall be deemed to have been a
communication of a Notice of Termination Without Good Cause, as appropriate, for
all purposes under this Agreement.
(5) RESIGNATION: The Executive shall be entitled to terminate this
Agreement by providing the Company with a written notice of resignation at least
thirty (30) days prior to his intended resignation date, subject to the
following provisions:
(a) RESIGNATION FOR GOOD REASON: The Executive shall have the
right to resign for any Good Reason, as defined herein, and such resignation
shall be deemed to be a termination by the Company Without Good Cause except as
set forth in Section 5(c) with respect to a resignation by the Executive with
Good Reason during the two-year period following a Change of Control. For
purposes of this Section, the term "GOOD REASON" shall be defined as:
i) The Company's failure in any material respect to
perform any provision of this Agreement; or
ii) Any material changes in the duties and
responsibilities of the Executive under this
Agreement without the written consent of the
Executive; or
iii) The hiring or promotion by the Company of another
executive employee to a position of equal or
greater responsibility for the management of the
Company without the written consent of the
Executive; or
iv) The Company's directing the Executive to work at a
location other than San Antonio, Texas.
(b) RESIGNATION WITHOUT GOOD REASON: Any resignation by the
Executive for any reason other than Good Reason, as defined above, shall be
deemed to be a resignation "WITHOUT GOOD REASON." In the event of a resignation
Without Good Reason, the Change in Control provisions in Section 4 and the
severance provisions in Section 5 shall be inapplicable.
4. CHANGE OF CONTROL: The parties acknowledge that the Executive has agreed to
assume the position of Chief Financial Officer to enter into this Agreement
based upon his confidence in
Executive Employment Agreement
P. Xxxx Xxxxx - Page 5
the current shareholders of the Company and the support of the Board of
Directors for the development of a new strategy for the Company. Accordingly, if
the Company should undergo a Change of Control, as defined in this Section, the
parties agree as follows:
a. DEFINITIONS: For purposes of this Agreement, a "CHANGE OF CONTROL"
shall be deemed to exist in the event that any of the following occurs:
(1) a change in the ownership of the capital stock of the Company
where a corporation, person or group acting in concert (a "PERSON") as described
in Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), holds or acquires, directly or indirectly, beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of a
number of shares of capital stock of the Company which constitutes 40% or more
(or, 30% or more in the event the Company is subject to the reporting
requirements of Sections 12 or 15(d) under the Exchange Act) of the combined
voting power of the Company's then outstanding capital stock then entitled to
vote generally in the election of directors; or
(2) the persons who were members of the Board of Directors
immediately prior to a tender offer, exchange offer, contested election or any
combination of the foregoing, cease to constitute a majority of the Board of
Directors of the Company; or
(3) a dissolution of the Company, or the adoption by the Company of
a plan of liquidation, or the adoption by the Company of a merger, consolidation
or reorganization involving the Company in which the Company is not the
surviving entity, or a sale of all or substantially all of the assets of the
Company (for purposes of this Agreement, a sale of all or substantially all of
the assets of the Company shall be deemed to occur if any Person acquires, or
during the 12-month period ending on the date of the most recent acquisition by
such Person, has acquired gross assets of the Company that have an aggregate
fair market value equal to 50% or more of the fair market value of all of the
gross assets of the Company immediately prior to such acquisition or
acquisitions); or
(4) a tender offer or exchange offer is made by any Person which, if
successfully completed, would result in such Person beneficially owning (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) either 50% or more
of the Company's outstanding shares of Common Stock or shares of capital stock
having 50% or more of the combined voting power of the Company's then
outstanding capital stock (other than an offer made by the Company), and
sufficient shares are acquired under the offer to cause such Person to own 30%
or more of the voting power; or
(5) a change in control is reported or is required to be reported by
the Company in response to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act or Item 1 of Form 8-K promulgated under the
Exchange Act, which change in control has not been approved by a majority of the
Board of Directors then in office who were directors at the beginning of the
two-year period ending on the date the reported change in control occurred; or
Executive Employment Agreement
P. Xxxx Xxxxx - Page 6
(6) during any period of two consecutive years, individuals who, at
the beginning of such period constituted the entire Board of Directors of the
Company, cease for any reason (other than death) to constitute a majority of the
directors, unless the election, or the nomination for election, by the Company's
shareholders, of each new director was approved by a vote of at least a majority
of the directors then still in office who were directors at the beginning of the
period.
For purposes of Section 4(a)(1) above, if a Person were the beneficial owner of
30% or more or 40% or more, as applicable, of the combined voting power of the
Company's then outstanding securities as of the Effective Date and such Person
thereafter accumulates more than 5% of additional voting power, a Change of
Control of the Company shall be deemed to have occurred, notwithstanding
anything in this Agreement to the contrary. A Change of Control shall include
any other transactions or series of related transactions occurring which have
substantially the same effect as the transactions specified in any of the
preceding clauses of Section 4(a)(1) through (6). However, a Change of Control
shall not be deemed to occur if a Person becomes the beneficial owner of the
applicable percentage or more (as referenced above) of the combined voting power
of the Company's then outstanding securities solely by reason of the Company's
redemption or repurchase of securities; but further acquisitions by such Person
that cause such Person to be the beneficial owner of the applicable percentage
or more (as referenced above) of the combined voting power of the Company's then
outstanding securities shall be deemed a Change of Control.
b. VESTING OF STOCK OPTIONS: In the event of a Change of Control, as
defined in this Section, all stock options then held by the Executive for the
purchase of equity securities of the Company shall immediately become vested,
effective on the date of the Change of Control.
5. SEVERANCE: Upon termination, the Executive shall be entitled to the
following:
a. Other than as provided in Section 5(b), if the Company terminates this
Agreement Without Good Cause as that term is defined in Section 3(c)(4)(b) of
this Agreement, the Company agrees to pay to the Executive a lump sum cash
payment equal to the sum of: (i) twelve (12) months' salary of the Executive's
then current, annualized Base Salary, less statutory payroll deductions; (ii)
all benefits which accrued prior to the termination of the Agreement; and (iii)
a prorated amount of any incentive compensation paid to the Executive during the
most recent fiscal year which ended prior to the termination of the Agreement,
as described in Sections 5(a)(1) and (2) below. In addition, the Company shall
provide that level of health, dental, vision, disability, and life insurance
benefits comparable to the benefits enjoyed by the Executive immediately prior
to the termination of this Agreement, if any, for a period of twelve (12) months
after termination.
(1) If the termination date occurs AFTER the incentive compensation
is paid to the Executive for the prior fiscal year, the Executive shall receive
a prorated amount of incentive compensation for the period from the end of the
prior fiscal year to the date of termination, based upon the incentive
compensation paid out to the Executive for the prior fiscal year. By way of
example only, if this Agreement is terminated pursuant to this Section on August
1, 1999, and the Executive has already received his incentive compensation for
the fiscal year April 1, 1998
Executive Employment Agreement
P. Xxxx Xxxxx - Page 7
through March 31, 1999, the Executive shall receive 4/12 (or 1/3) of the
incentive compensation he received for the fiscal year April 1, 1998 through
March 31, 1999 upon termination.
(2) If the termination date occurs BEFORE the incentive compensation
is paid to the Executive for the prior fiscal year, the Executive shall receive
his entire incentive compensation for the prior fiscal year, plus a prorated
amount of incentive compensation for the period from the end of the prior fiscal
year to the date of termination, based upon the incentive compensation paid out
to the Executive for the prior fiscal year. By way of example only, if this
Agreement is terminated pursuant to this Section on August 1, 1999, and the
Executive has NOT received his incentive compensation for the fiscal year April
1, 1998 through March 31, 1999, the Executive shall receive his entire incentive
compensation for the fiscal year April 1, 1998 through March 31, 1999, plus an
additional 4/12 (or 1/3) of such incentive compensation upon termination.
b. If this Agreement is terminated within twelve (12) months after the
date of a Change of Control as that term is defined in Section 4(a) by the
Company communicating a Notice of Termination Without Good Cause, the Company
agrees to pay the Executive a lump sum cash payment equal to the sum of: (i)
eighteen (18) months' salary of the Executive's then current, annualized Base
Salary, less statutory payroll deductions; (ii) all benefits which accrued prior
to the termination of the Agreement; and (iii) a prorated amount of any
incentive compensation paid to the Executive during the most recent fiscal year
which ended prior to the termination of the Agreement, as determined in
accordance with the provisions of Sections 5(a)(1) and 5(a)(2) above. In
addition, the Company shall provide that level of health, dental, vision,
disability, and life insurance benefits comparable to the benefits enjoyed by
the Executive immediately prior to the termination of this Agreement, if any,
for a period of eighteen (18) months after termination.
c. If the Executive terminates this Agreement for Good Reason as that term
is defined in Section 3(c)(5)(a) of this Agreement within twenty-four (24)
months after a Change of Control, the Company agrees to pay to the Executive a
lump sum cash payment equal to the sum of: (i) twelve (12) months' salary of the
Executive's then current, annualized Base Salary, less statutory payroll
deductions; (ii) all benefits which accrued prior to the termination of the
Agreement; and (iii) a prorated amount of any incentive compensation paid to the
Executive during the most recent fiscal year which ended prior to the
termination of the Agreement, as determined in accordance with the provisions of
Sections 5(a)(1) and 5(a)(2) above. In addition, the Company shall provide that
level of health, dental, vision, disability, and life insurance benefits
comparable to the benefits enjoyed by the Executive immediately prior to the
termination of this Agreement, if any, for a period of twelve (12) months after
termination.
d. If the Company terminates this Agreement for Good Cause as that term is
defined in Section 3(c)(3)(b) of this Agreement, the Executive shall not be
entitled to receive any additional salary, benefits or incentive compensation
beyond those earned or accrued as of the effective date of the termination.
Executive Employment Agreement
P. Xxxx Xxxxx - Page 8
e. Any termination of the Executive's employment shall not release either
the Company or the Executive from its or his respective obligations to the date
of termination nor from the provisions of Sections 8 and 9 hereof.
f. In the event this Agreement is terminated by the Company (i) Without
Good Cause; (ii) upon the death or disability of the Executive as those terms
are defined in Sections 3(c)(1) and (2) of this Agreement; or (iii) by the
Executive for Good Reason, all stock options then held by the Executive for the
purchase of equity securities of the Company shall immediately become vested
upon the effective date of the termination.
g. The severance payments described above shall not be payable under this
Section in any of the following circumstances:
(1) In the event that this Agreement is terminated as a result of
the death or disability of the Executive, as provided in Sections 3(c)(1) and
(2);
(2) In the event that this Agreement is terminated pursuant to a
Notice of Termination for Good Cause communicated by the Company, as provided in
Section 3(c)(3)(a), and (i) such termination is affirmed by the arbitrators
after an arbitration proceeding under Section 10 or (ii) such termination is
uncontested by the Executive; or
(3) In the event that the Executive communicates notice of
resignation Without Good Reason as defined in Section 3(c)(5)(b).
h. The Company and the Executive acknowledge and agree that the severance
payments required under this Section are intended to be exclusive and to
supersede any severance pay plans or policies adopted by the Company and that
the Executive shall not be entitled to any additional severance compensation
under any other severance plan or policy adopted by the Company.
6. STOCK OPTIONS: In the sole discretion of the Board of Directors of the
Company, and without implying any obligation on the Company, the Company may
grant the Executive options to purchase from the Company shares of the Company's
common stock (the "OPTION STOCK") during the terms of his employment under this
Agreement. The Executive shall be considered for the grant of options under any
option grant program the Company may have in effect from time to time,
consistent with the terms of any such program and with the Executive's status
and position with the Company; provided, however, the grant of any option to
purchase stock shall be entirely discretionary with the Board of Directors. If
and to the extent the Company ever considers granting the Executive an option to
purchase Option Stock, such grant will be based not only on the Executive's
individual performance and his relative position, service tenure and
responsibilities with the Company, but also on the performance and profitability
of the entire Company.
a. STATUS OF THE EXECUTIVE: The Executive shall not be considered a
shareholder of the Company with respect to any shares of Option Stock, except to
the extent that the shares of
Executive Employment Agreement
P. Xxxx Xxxxx - Page 9
Option Stock have been purchased by and issued to the Executive.
b. EXERCISE OF OPTIONS: The Executive shall have the right to exercise any
option to purchase part of the Option Stock granted to him by the Company after
such option has vested in accordance with the vesting provisions set forth in
the option agreement, if any, reflecting the grant of options by the Company.
7. SUCCESSORS AND ASSIGNS: The parties acknowledge and agree that this Agreement
may not be assigned by either party without the written consent of the other
party. In the event of a Change of Control as defined in Section 4(a), the
Company's obligations under this Agreement shall be assumed by the Person that
survives such transaction, or by the Person purchasing assets constituting such
Change of Control. In the event of the Executive's death, this Agreement shall
be enforceable by the Executive's estate, executors or legal representatives,
but only to the extent that such persons may collect any compensation (including
through the exercise of stock options) due to the Executive under this
Agreement.
8. INDEMNIFICATION: During and after the employment of the Executive pursuant to
this Agreement, the Company shall indemnify the Executive against all judgments,
penalties, fines, assessments, losses, amounts paid in settlement and reasonable
expenses (including, but not limited to, attorneys' fees) for which the
Executive may become liable as a result of his performance of his duties and
responsibilities pursuant to this Agreement, to the fullest extent permissible
under the laws of the State of Texas. This provision shall be in addition to any
other provisions of the Company's Articles of Incorporation, Bylaws or
Indemnification Agreements providing for indemnification to the Executive.
9. NON-COMPETITION AND NON-DISCLOSURE: The Company and the Executive agree as
follows:
a. During and after his employment by the Company, the Executive agrees
that he shall not directly or indirectly disclose any Confidential Information,
as defined in this Section, unless such disclosure is: (i) to an employee of the
Company or its subsidiaries; or (ii) to a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance of his
duties as an executive of the Company; or (iii) authorized in writing by the
Board of Directors; or (iv) required by any court or administrative agency.
b. In the event that this Agreement is terminated for any reason, the
Executive agrees that he shall promptly return all records, files, documents,
materials and copies relating to the business of the Company or its subsidiaries
which came into the possession of the Executive during his employment pursuant
to this Agreement.
c. For purposes of this Agreement, the term "CONFIDENTIAL INFORMATION"
shall be defined as any information relating to the business of the Company or
its subsidiaries which is not generally available to the public and which the
Company takes affirmative steps to maintain as
Executive Employment Agreement
P. Xxxx Xxxxx - Page 10
confidential. The term shall not include any information that the Executive was
aware of prior to the date of initial employment by the Company, information
that is a matter of any public record, information contained in any document
filed or submitted to any governmental entity, any information that is common
knowledge in any industry in which the Company does business, any information
that has previously been made available to persons who are not employees of the
Company or any information that is known to the Company's competitors.
d. In the event that the Executive's employment with the Company is
terminated for any reason except by the Company for Good Cause without a Change
of Control, the Executive covenants and agrees not to compete with the Company
by engaging in the business of providing: (i) workover rig services, including
completion of new xxxxx, maintenance and recompletion of existing xxxxx
(including horizontal recompletions) and plugging and abandonment of xxxxx at
the end of their useful lives; (ii) liquid services, including vacuum truck
services, frac tank rental and salt water injection; and/or (iii) production
services, including well test analysis, pipe testing, slickline wireline
services and fishing and rental tool services, for the period of time by which
the Executive's severance payment, if any, is measured. The geographic scope of
this non-compete provision shall be the state of Texas, the state of Louisiana,
and the parts of California which lie south of a line drawn from San Xxxx Obispo
(California), through Bakersfield (California), through Ridgecrest (California)
and ending with Las Vegas (Nevada).
In the event that the Executive's employment with the Company is
terminated by the Company for Good Cause without a Change of Control, the
Executive covenants and agrees not to compete with the Company by engaging in
the business of providing: (i) workover rig services, including completion of
new xxxxx, maintenance and recompletion of existing xxxxx (including horizontal
recompletions) and plugging and abandonment of xxxxx at the end of their useful
lives; (ii) liquid services, including vacuum truck services, frac tank rental
and salt water injection; and/or (iii) production services, including well test
analysis, pipe testing, slickline wireline services and fishing and rental tool
services, for a period of one (1) year from the date of termination. The
geographic scope of this non-compete provision shall be the state of Texas, the
state of Louisiana, and the parts of California which lie south of a line drawn
from San Xxxx Obispo (California), through Bakersfield (California), through
Ridgecrest (California) and ending with Las Vegas (Nevada).
In the event that the Executive's employment with the Company is
terminated for any reason after a Change of Control, the Executive shall not be
subject to any obligation not to compete with the Company after his termination
of employment with the Company.
e. In the event that the Executive violates any of the non-competition or
non-disclosure provisions set forth in this Agreement, the Executive
acknowledges and agrees that the Company will suffer immediate and irreparable
harm which cannot accurately be calculated in monetary damages. Consequently,
the Executive agrees that the Company shall be entitled to immediate injunctive
relief, either by temporary or permanent injunction, to prevent any such
violations. The Executive agrees that this relief shall be in addition to any
other legal or equitable relief to which the Company would be legally entitled
under Texas law.
Executive Employment Agreement
P. Xxxx Xxxxx - Page 11
10. ARBITRATION: The Company and the Executive agree as follows:
a. Any claim or controversy arising out of or relating to this Agreement,
or any breach of this Agreement, shall be settled by final and binding
arbitration in the city of San Antonio, Texas in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect on the date
the claim or controversy arises. The Executive and the Company agree that either
party must request arbitration of any claim or controversy within sixty (60)
days of the date the claim or controversy first arises, by giving written notice
of the party's request for arbitration ("ARBITRATION NOTICE"). Failure to
effectively communicate the Arbitration Notice within the time limitation set
forth in this Section shall constitute a waiver of the claim or controversy.
b. In the event that any dispute arising under this Agreement concerns any
payment required to be made under any provision of this Agreement, either party
agrees to deposit the amount of the disputed payment in an interest bearing
account with a financial institution acceptable to the other party within five
(5) days after either party effectively communicates its Arbitration Notice. In
the event that any dispute arising under this Agreement concerns the amount of
any payment required to be made under any provision of this Agreement, either
party agrees to pay the undisputed portion of the payment to the other party AND
deposit the disputed portion of the payment in an interest bearing account with
a financial institution acceptable to the other party within five (5) days after
either party effectively communicates its Arbitration Notice.
c. All claims or controversies subject to arbitration under this Agreement
shall be submitted to an arbitration hearing within thirty (30) days after the
Arbitration Notice is communicated. All claims or controversies shall be
resolved by a panel of three (3) arbitrators selected in accordance with the
applicable Commercial Arbitration Rules. Either party may request that the
arbitration proceeding be stenographically recorded by a Certified Shorthand
Reporter. The arbitrators shall issue a written decision with respect to all
claims or controversies submitted under this Section within thirty (30) days
after the completion of the arbitration hearing. The parties are entitled to be
represented by legal counsel at any arbitration hearing and each party shall be
responsible for its own attorneys' fees. The Company shall be responsible for
paying for all expenses in the event of any arbitration under this Section.
d. The parties agree that this Section may be specifically enforced by
either party, and submission to arbitration compelled, by any court of competent
jurisdiction. The parties further acknowledge and agree that the decision of the
arbitrators may be specifically enforced by either party in any court of
competent jurisdiction.
11. RULES OF CONSTRUCTION: The following provisions shall govern the
interpretation and enforcement of this Agreement:
a. SEVERABILITY: The parties acknowledge and agree that each provision of
this Agreement shall be enforceable independently of every other provision.
Furthermore, the parties acknowledge and agree that, in the event any provision
of this Agreement is determined to be
Executive Employment Agreement
P. Xxxx Xxxxx - Page 12
unenforceable for any reason, the remaining covenants and/or provisions will
remain effective, binding and enforceable.
b. WAIVER: The parties acknowledge and agree that the failure of either
party to enforce any provision of this Agreement shall not constitute a waiver
of that particular provision, or of any other provisions, of this Agreement.
c. CHOICE OF LAW/VENUE: The parties acknowledge and agree that except as
specifically provided otherwise in this Agreement, the law of Texas will govern
the validity, interpretation and effect of this Agreement and any other dispute
relating to, or arising out of, the employment relationship between the Company
and the Executive. Proper venue for any litigation or arbitration concerning
this Agreement shall be in San Antonio, Texas.
d. MODIFICATION: The parties acknowledge and agree that this Agreement
constitutes the complete and entire agreement between the parties; that the
parties have executed this Agreement based upon the express terms and provisions
set forth herein; that the parties have not relied on any representations, oral
or written, which are not set forth in this Agreement; that no previous
agreement, either oral or written, shall have any effect on the terms or
provisions of this Agreement; and that all previous agreements, either oral or
written, are expressly superseded and revoked by this Agreement. In addition,
the parties acknowledge and agree that the provisions of this Agreement may not
be modified by any subsequent agreement unless the modifying agreement (i) is in
writing, (ii) contains an express provision referencing this Agreement, (iii) is
signed by the Executive, and (iv) is approved by the Board of Directors.
e. EXECUTION: The parties agree that this Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all
purposes.
f. HEADINGS: The parties agree that the subject headings set forth at the
beginning of each Section in this Agreement are provided for ease of reference
only, and shall not be utilized for any purpose in connection with the
construction, interpretation or enforcement of this Agreement.
g. SURVIVAL: Upon termination of this Agreement, all of the rights and
obligations of the parties pursuant to this Agreement shall terminate, except
that those provisions of this Agreement which expressly provide for
enforceability after termination shall continue in full force effect in
accordance with the terms hereof.
12. LEGAL CONSULTATION: The parties acknowledge and agree that both parties have
been accorded a reasonable opportunity to review this Agreement with legal
counsel prior to executing the Agreement.
13. NOTICES: The parties acknowledge and agree that any and all notices required
to be delivered under the terms of this Agreement shall be forwarded by personal
delivery or certified U.S. mail. Notices shall be deemed to be communicated and
effective on the day of receipt.
Such notices shall be addressed to each party as follows:
Executive Employment Agreement
P. Xxxx Xxxxx - Page 13
P. Xxxx Xxxxx
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxxx Production Services, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
With a copy to:
X. Xxxxxxx Xxxx, Esq.
Jenkens & Xxxxxxxxx,
A Professional Corporation
2200 One American Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Any party hereto may change its or his address for the purpose of receiving
notices and other communications as herein provided by a written notice given in
the manner aforesaid to the other party or parties hereto.
EXECUTED to be effective as of the Effective Date set forth above.
/s/ P. XXXX XXXXX
P. Xxxx Xxxxx
XXXXXX PRODUCTION SERVICES, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
Executive Employment Agreement
P. Xxxx Xxxxx - Page 14
