EMPLOYMENT AND NON-COMPETITION AGREEMENT
Between
SUPERIOR ENERGY SERVICES, INC.
and
XXXXX XXXXXXXX
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement (this "Agreement") is
entered into and effective as of July 15, 1999 (the "Effective Date")
between Superior Energy Services, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors (the "Board") of the Company desires
to provide for the employment of Executive by the Company, and Executive
desires to continue to serve the Company on a full-time basis upon the
terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premises and of the respective
representations and warranties hereinafter set forth and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive,
and Executive hereby agrees to continue to serve the Company, on the terms
and conditions set forth herein.
2. TERM.
(a) Commencing on the Effective Date hereof, Executive
shall be employed by the Company as provided in Section 1 and such
employment shall continue until the second anniversary of the Effective
Date unless sooner terminated as hereinafter provided.
b( If Employee continues to serve as an employee of the
Company after the second anniversary of the Effective Date, his continued
employment shall be subject to the terms of this Agreement but shall be
terminable at will by either the Company or Executive.
(c) Following Executive ceasing for whatever reason to be
an employee of the Company, each party shall have the right to enforce all
its rights, and shall be bound by all obligations, that are continuing
rights and obligations under the terms of this Agreement.
3. POSITION AND DUTIES. The Executive shall perform such
duties, consistent with the Executive's status as an officer of the Company
elected by the Board, as may be prescribed from time to time by the
Company's President and Chief Executive Officer or other officers to whom
authority has been delegated by the President and Chief Executive Officer.
The Executive also agrees to serve without additional compensation, if
elected or appointed thereto, as an officer of any of the Company's
subsidiaries.
4. COMPENSATION AND RELATED MATTERS.
(a) SALARY. The Company shall pay to Executive a minimum
annual base salary of $135,000, payable in equal semi-monthly installments
in accordance with the Company's regular payroll practices for its
principal executives. The Executive's base salary will be reviewed
annually.
(b) INCENTIVE BONUS. During the term hereof, the Executive
shall be eligible to earn an annual bonus pursuant to the Company's
Management Incentive Plan based on the Executive's achievement of
performance objectives for each year.
(c) STOCK OPTIONS. On the Effective Date, the Company
shall grant to the Executive, pursuant to the Company's 1998 Stock
Incentive Plan, options to purchase a total of 265,000 shares of the
Company's common stock, at an exercise price equal to the closing sales
price of the Common Stock on the Nasdaq National Market on the Effective
Date pursuant to the form of option agreement attached as Exhibit "A"
hereto.
(d) COMPANY AUTOMOBILE. The Company shall either provide a
car allowance to the Executive or make available to Executive a Company
automobile for the Executive's use in the discharge of his duties. The
automobile so obtained by the Executive shall be maintained at the expense
of the Company in accordance with the policies and practices of the Company
in effect from time to time.
(e) EXPENSES. During the term of Executive's employment
hereunder, Executive shall be entitled to receive prompt reimbursement for
all reasonable and necessary expenses incurred by Executive in performing
services hereunder, including all expenses of travel and living expenses
while away from home on business or at the request of and in the service of
the Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
(f) OTHER BENEFITS. Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement made available by the Company to its executives and key
management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements.
Nothing paid to Executive under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the salary
and bonuses payable to Executive pursuant to this Section 4.
(g) VACATIONS. Executive shall be excused from rendering
his services during reasonable vacation periods for not more than 15 days
per year and during other reasonable temporary absences. Executive shall
also be entitled to all paid holidays and personal days given by the
Company to its executives.
5. TERMINATION. Executive's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall
terminate upon his death.
(b) DISABILITY. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been absent from
his duties hereunder on a full-time basis for a period of 60 consecutive
days, or 120 non-consecutive days within any 365 day period, the Company
may terminate Executive's employment.
(c) CAUSE. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this Agreement, the
Company shall have "Cause" to terminate Executive's employment hereunder
upon: (i) substantial and continued willful failure by the Executive to
perform his duties hereunder which results, or could reasonably be expected
to result, in material harm to the business or reputation of the Company,
which failure is not cured (if curable) by Executive within 15 days after
written notice of such failure is delivered to the Executive by the
Company; and (ii) the commission by Executive of any criminal act involving
moral turpitude or a felony which results in an arrest or indictment, or
the commission by Executive, based on reasonable proof, of any act of fraud
or embezzlement involving the Company or its customers or suppliers. For
purposes of this Section 5(c), no act, or failure to act, on Executive's
part shall be considered "willful" unless done, or omitted to be done, by
him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company.
(d) NOTICE OF TERMINATION. Any termination of Executive's
employment by the Company or by Executive (other than termination pursuant
to Section 5(a)) shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 9. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under
the provision so indicated.
(e) DATE OF TERMINATION. "Date of Termination" shall mean
(i) if Executive's employment is terminated by his death, the date of his
death, (ii) if Executive's employment is terminated pursuant to Section
5(b), 30 days after Notice of Termination is given (provided that Executive
shall not have returned to the performance of his duties on a full-time
basis during such 30 day period) and (iii) if Executive's employment is
terminated pursuant to Section 5(c), the date specified in the Notice of
Termination.
Notwithstanding anything to the contrary in this Section 5, during the
period commencing on the Effective Date and ending on the second
anniversary of the Effective Date, the Company shall not be entitled to
terminate Executive's employment "without cause" or for any reason that is
not expressly specified in this Section 5.
6. COMPENSATION UPON TERMINATION.
(a) If Executive's employment is terminated pursuant to
Section 5, the Company shall pay Executive his then current base salary
through the Date of Termination and the Company shall have no further
obligations to Executive under this Agreement.
(b) If Executive's employment is terminated pursuant to
Section 5(a) or 5(b), the Company shall provide following such termination
to the extent required by the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"), COBRA continuation coverage with respect to the
relevant group medical and dental insurance benefits to which Executive was
entitled immediately prior to the Notice of Termination.
7. NONDISCLOSURE AND NONCOMPETITION
(a) CERTAIN DEFINITIONS. For purposes of this Agreement,
the following terms shall have the following meanings:
(i)"Confidential Information" means any information,
knowledge or data of any nature and in any form (including information
that is electronically transmitted or stored on any form of magnetic
or electronic storage media) relating to the past, current or
prospective business or operations of the Company and its
subsidiaries, that at the time or times concerned is not generally
known to persons engaged in businesses similar to those conducted or
contemplated by the Company and its subsidiaries (other than
information known by such persons through a violation of an obligation
of confidentiality to the Company), whether produced by the Company
and its subsidiaries or any of their consultants, agents or
independent contractors or by Executive, and whether or not marked
confidential, including without limitation information relating to the
Company's or its subsidiaries' products and services, business plans,
business acquisitions, processes, product or service research and
development methods or techniques, training methods and other
operational methods or techniques, quality assurance procedures or
standards, operating procedures, files, plans, specifications,
proposals, drawings, charts, graphs, support data, trade secrets,
supplier lists, supplier information, purchasing methods or practices,
distribution and selling activities, consultants' reports, marketing
and engineering or other technical studies, maintenance records,
employment or personnel data, marketing data, strategies or
techniques, financial reports, budgets, projections, cost analyses,
price lists and analyses, employee lists, customer lists, customer
source lists, proprietary computer software, and internal notes and
memoranda relating to any of the foregoing.
(ii)"Company's Business" includes providing services in
connection with the plugging and abandonment of oil and gas xxxxx,
providing wireline services, chartering and operating lift boats and
other marine service vessels, renting specialized tools and equipment
used in oil and gas drilling and production, providing workover
services on oil and gas xxxxx, providing oil spill containment
services, and renting equipment and/or tools used in fishing
operations.
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Executive
shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information which shall have been obtained by Executive during
Executive's employment (whether prior to or after the effective date
hereof) and shall use such Confidential Information solely within the scope
of his employment with and for the exclusive benefit of the Company. At
the end of the employment term, Executive agrees (i) not to communicate,
divulge or make available to any person or entity (other than the Company)
any such Confidential Information, except upon the prior written
authorization of the Company or as may be required by law or legal process,
and (ii) to deliver promptly to the Company any Confidential Information in
his possession, including any duplicates thereof and any notes or other
records Executive has prepared with respect thereto. In the event that the
provisions of any applicable law or the order of any court would require
Executive to disclose or otherwise make available any Confidential
Information then Executive shall give the Company prompt prior written
notice of such required disclosure and an opportunity to contest the
requirement of such disclosure or apply for a protective order with respect
to such Confidential Information by appropriate proceedings.
(c) LIMITED COVENANT NOT TO COMPETE. During the term of
Executive's employment under this Agreement and for a period of two years
thereafter, Executive agrees that:
(i) Executive shall not, directly or indirectly, for
himself or others, own, manage, operate, control, be employed by,
engage or participate in, allow his skill, knowledge, experience or
reputation to be used by, or otherwise be connected in any manner with
the ownership, management, operation or control of, any company or
other business enterprise engaged in any aspect of the Company's
Business, within any parish (or any adjacent offshore areas) of the
State of Louisiana, (as set forth in Appendix A), or within the States
of Florida, Alabama, Mississippi or Texas (including any adjacent
offshore areas), and any other state or other jurisdiction (or any
adjacent offshore areas) (whether within or outside the United
States), in which the Company or any of its subsidiaries carries on a
like line of business on the Date of Termination; provided, however,
that nothing contained herein shall prohibit Executive from making
passive investments in any publicly held company that do not exceed in
the aggregate 1% of the equity interest of such company;
(ii) Executive shall not call upon any customer of the
Company or its subsidiaries or any potential customer of the Company,
for the purpose of soliciting, diverting or enticing away the business
of such person or entity, or otherwise disrupting any previously
established relationship existing between such person or entity and
the Company or its subsidiaries;
(iii) Executive shall not solicit, induce, influence or
attempt to influence any supplier, lessor, licensor, or any other
person who has a business relationship with the Company or its
subsidiaries, or who on the Date of Termination is engaged in
discussions or negotiations to enter into a business relationship with
the Company or its subsidiaries, to discontinue or reduce the extent
of such relationship with the Company or its subsidiaries; and
(iv) Executive shall not make contact with any of the
employees of the Company or its subsidiaries with whom he had contact
during the course of his employment with the Company for the purpose
of soliciting such employee for hire, whether as an employee or
independent contractor, or otherwise disrupting such employee's
relationship with the Company or its subsidiaries.
Executive further agrees that during the term of this Agreement and for a
period of two years thereafter, Executive shall not hire any employee of
the Company as an employee or independent contractor, whether or not such
engagement is solicited by Executive.
Notwithstanding the foregoing, the parties agree that this Section 7(c)
shall not be binding upon the Executive in the event that Executive is
discharged by the Company for other than theft, disability or Cause.
(d) PROTECTION OF INFORMATION.
(i) The Company shall disclose to Executive, or place
Executive in a position to have access to or develop, trade secrets or
confidential information of the Company; and/or shall entrust
Executive with business opportunities of the Company; and/or shall
place Executive in a position to develop business good will on behalf
of the Company.
(ii) Executive agrees not to disclose or utilize, for
Executive's personal benefit or for the direct or indirect benefit of
any other person or entity, or for any other reason, whether for
consideration or otherwise, during the term of his employment
hereunder or at any time thereafter, any information, ideas, concepts,
improvements, discoveries or inventions, whether patentable or not,
which are conceived, made, developed, or acquired by Executive,
individually or in conjunction with others, during Executive's
employment by the Company (whether during business hours or otherwise
and whether on the Company's premises or otherwise) which relate to
the business, products, or services of the Company (including, without
limitation, all such business ideas, prospects, proposals or other
opportunities which are developed by Executive during his employment
hereunder, or originated by any third party and brought to the
attention of Executive during his employment hereunder, together with
information relating thereto (including, without limitation, data,
memoranda, opinions or other written, electronic or charted means, or
any other trade secrets or other confidential or proprietary
information of or concerning the Company)) (collectively, "Business
Information"). Moreover, all documents, drawings, notes, files, data,
records, correspondence, manuals, models, specifications, computer
programs, E-mail, voice mail, electronic databases, maps, and all
other writings or materials of any type embodying any such Business
Information are and shall be the sole and exclusive property of the
Company. Upon termination of Executive's employment by the Company,
for any reason, Executive promptly shall deliver all Business
Information, and all copies thereof, to the Company. As a result of
knowledge of confidential Business Information of third parties, such
as customers, suppliers, partners, joint ventures, and the like, of
the Company, Executive also agrees to preserve and protect the
confidentiality of such third party Business Information to the same
extent, and on the same basis, as the Company's Business Information.
(iii) Executive agrees that, during his employment, any
inventions (whether or not patentable), concepts, ideas, expressions,
discoveries, or improvements, including, without limitation, products,
processes, methods, publications, works of authorship, software
programs, designs, trade secrets, technical specifications,
algorithms, technical data, know-how, internal reports and memoranda,
marketing plans and any other patent or proprietary rights conceived,
devised, developed, or reduced to practice, in whole or in part, by
the Executive during the term of his employment by the Company (the
"Developments") are the sole and exclusive property of the Company on
a worldwide basis as works made for hire or otherwise, and further
that any revenue or other consideration obtained from the sale,
license or other transfer or conveyance of any such Development, or a
product or service incorporating such Development, is solely for the
benefit of and becomes the property of the Company. To the extent a
Development may not be considered work made by the Executive for hire
for the Company, the Executive agrees to assign, and automatically
assigns at the time of creation of the Development, without any
requirement of further consideration, any and all right, title and
interest he may have in such Development. Executive shall preserve
each such Development as confidential and proprietary information of
the Company. Executive shall promptly disclose each such Development
and shall, upon demand, at the Company's expense, execute and deliver
to the Company such documents, instruments, deeds, acts and things as
the Company may request to evidence or maintain the Company's
ownership of the Development, in any and all countries of the world,
or to effect enforcement thereof, and to assign all rights, if any, of
the Executive in and to each of such Developments. In addition,
Executive agrees not to publish or seek to publish any information
whatsoever concerning any Development without the prior written
consent of the Company, which may be withheld in its sole and absolute
discretion.
(iv) Any inventions relating to the business of the
Company conceived or reduced to practice after the Executive leaves
the employ of the Company shall be conclusively deemed to have been
conceived and/or reduced to practice during the period of the
employment if conceived and/or reduced to practice within six months
from termination of employment, and shall be subject to the terms of
this Section 7.
(e) INJUNCTIVE RELIEF. Executive acknowledges that a
breach by Executive of paragraph (b), (c) or (d) of this Section 7 would
cause immediate and irreparable harm to the Company for which an adequate
monetary remedy does not exist; hence, Executive agrees that, in the event
of a breach or threatened breach by Executive of the provisions of
paragraph (b), (c) or (d) of this Section 7 during or after the employment
term, the Company shall be entitled to injunctive relief restraining
Executive from violation of any such paragraph without the necessity of
proof of actual damage or the posting of any bond, except as required by
non-waivable, applicable law. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedy at law or in equity
to which the Company may be entitled under applicable law in the event of a
breach or threatened breach of this Agreement by Executive including, but
not limited to, recovery of costs and expenses such as reasonable
attorney's fees incurred by reason of any such breach, actual damages
sustained by the Company as a result of any such breach, and cancellation
of any unpaid salary, bonus, commissions or reimbursements otherwise
outstanding at the Date of Termination.
(f) GOVERNING LAW OF THIS SECTION 7; CONSENT TO
JURISDICTION. Any dispute regarding the reasonableness of the covenants
and agreements set forth in this Section 7, or the territorial scope or
duration thereof, or the remedies available to the Company upon any breach
of such covenants and agreements, shall be governed by and interpreted in
accordance with the laws of the state in which the prohibited competing
activity or disclosure occurs, and, with respect to each such dispute, the
Company and Executive each hereby irrevocably consent to the exclusive
jurisdiction of the state and federal courts sitting in the relevant state
for resolution of such dispute, and agree to be irrevocably bound by any
judgment rendered thereby in connection with such dispute, and further
agree that service of process may be made upon him in any legal proceeding
relating to this Section 7 by any means allowed under the laws of such
state. Each party irrevocably waives any objection he, she or it may have
as to the venue of any such suit, action or proceeding brought in such a
court or that such a court is an inconvenient forum.
(g) EXECUTIVE'S UNDERSTANDING OF THIS SECTION. Executive
hereby represents to the Company that he has read and understands, and
agrees to be bound by, the terms of this Section. Executive acknowledges
that the geographic scope and duration of the covenants contained in
paragraph (c) are the result of arm's-length bargaining and are fair and
reasonable in light of (i) the importance of the functions performed by
Executive and the length of time it would take the Company to find and
train a suitable replacement, (ii) the nature and wide geographic scope of
the operations of the Company, (iii) Executive's level of control over and
contact with the Company's business and operations in all jurisdictions
where same are conducted and (iv) the fact that the Company's Business is
conducted throughout the geographic area where competition is restricted by
this Agreement. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permitted
under applicable law, whether now or hereafter in effect and therefore, to
the extent permitted by applicable law, the parties hereto waive any
provision of applicable law that would render any provision of this Section
7 invalid or unenforceable.
8. SUCCESSORS; BINDING AGREEMENT
(a) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to Executive, 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 taken place. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle Executive to
compensation from the Company in the same amount and on the same terms as
he would be entitled to hereunder if he terminated his employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 8 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) This Agreement and all rights of Executive hereunder
shall inure to the benefit of and be enforceable by Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee,
legatee, or other designee or, if there be no such designee, to Executive's
estate.
9. NOTICE. For the purpose of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
(unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepared, addressed as
follows:
If to Executive:
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
If to the Company:
Superior Energy Services, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
10. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Executive and such officer of
the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise
express or implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this Agreement.
11. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
13. RIGHTS AND REMEDIES. In the event that Executive institutes
proceedings to enforce this Agreement; he shall be entitled to recover all
reasonable attorneys' fees and costs incurred, in addition to any damages
or other relief awarded.
14. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto;
and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.
15. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with and governed by the internal laws of the State
of Louisiana without regard to principles of conflict of laws, except as
expressly provided in Section 7(f) above with respect to the resolution of
disputes arising under, or the Company's enforcement of, Section 7 of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date and year first above written.
SUPERIOR ENERGY SERVICES, INC.
By: ___________________________
Xxxxxxx X. Xxxx
Chairman of the Board
___________________________
Executive
APPENDIX A
Acadia Madison
Xxxxx Xxxxxxxxx
Ascension Natchitoches
Assumption Orleans
Avoyelles Ouachita
Xxxxxxxxxx Plaquemines
Bienville Pointe Coupee
Bossier Rapides
Caddo Red River
Calcasieu Richland
Xxxxxxxx Xxxxxx
Cameron St. Xxxxxxx
Catahoula St. Xxxxxxx
Xxxxxxxxx St. Helena
Concordia St. Xxxxx
XxXxxx St. Xxxx the Baptist
East Baton Rouge St. Xxxxxx
East Xxxxxxx St. Xxxxxx
East Xxxxxxxxx St. Xxxx
Xxxxxxxxxx St. Tammany
Franklin Tangipahoa
Grant Tensas
Iberia Terrebonne
Iberville Union
Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Washington
Xxxxxxxxx Xxxxxxx
Lafourche West Baton Rouge
LaSalle West Xxxxxxx
Xxxxxxx West Xxxxxxxxx
Xxxxxxxxxx Xxxx
