EXHIBIT 10(h)
Schedule of Substantially Identical
Documents Omitted
Attached as Exhibit 10(h) is a copy of the Employment Agreement
between the Company and Xxxxxx X. Xxxxxx Xx., that was effective as of
November 2, 2002 ("Agreement"). Each of the other Named Executive Officers
entered into employment agreements with the Company effective November 2, 2002,
which employment agreements have identical benefits in the event of a change in
control and are otherwise substantially identical to the attached Agreement,
differing materially only in the following respects:
Benefit Period/Non-
NEO Term Target Bonus Renewal Severance
-------------------- --------- ---------------- -------------------
Xxxxxx X. Xxxxxx Xx. 1 year Board discretion Identical
Xxxxxx Xxxx Identical 75% of salary Identical
Xxxxx X. Xxxxxx Identical 75% of salary Identical
Xxxxxx X. Xxxxxxxxx 2 years 50% of salary 1.5 years
X. Xxxx Xxxxxxxxxx 2 years 50% of salary 1.5 years
* See Summary Compensation Table in 2002 Proxy Statement
EXHIBIT 10(h)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of November 1, 2002 (the "EFFECTIVE DATE"), by and between XXXXXX DRILLING
COMPANY, a Delaware corporation (hereafter "COMPANY"), and Xxxxxx Xxxxxx, Xx.
(hereafter "EXECUTIVE"), an individual. The Company and Executive may sometimes
hereafter be referred to singularly as a "PARTY" or collectively as the
"PARTIES."
WITNESSETH:
WHEREAS, the Parties previously entered into an employment agreement
effective as of November 1, 2002 (the "Prior Employment Agreement");
WHEREAS, prior to November 1, 2002, the Parties entered into a
Severance Compensation and Consulting Agreement (as the same may have been
amended from time to time, the "Severance Compensation and Consulting
Agreement") that provides certain benefits in the event of a change in control;
WHEREAS, the Parties now desire to amend and restate the Prior
Employment Agreement in order to integrate the provisions of the Employment
Agreement and the Severance Compensation and Consulting Agreement into a single
agreement, and to eliminate the Company's obligation to engage Executive as a
consultant following a change in control;
WHEREAS, the Company desires to continue to secure the services of
Executive subject to the terms and conditions hereafter set forth; and
WHEREAS, 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 mutual promises and agreements contained herein, the Parties
hereto agree as follows:
1. EMPLOYMENT. During the Term of Agreement (as defined in Section 4),
the Company shall employ Executive, and Executive shall serve as President and
Chief Executive of the Company. Executive's principal place of employment shall
be at the corporate offices of the Company in Houston, Texas. Executive
understands and agrees that he may be required to travel from time to time for
purposes of the Company's business.
2. COMPENSATION. Compensation shall be paid or provided to Executive
during the Term of Agreement as follows:
(a) BASE SALARY. The Company shall pay to Executive a base
salary of $522,500.00 per year, payable in accordance with the Company's normal
payroll
1
schedule and procedures for its executives. Executive's base salary shall be
subject to at least annual review and may be increased (but not decreased
without Executive's express written consent) by the Board of Directors of the
Company (hereafter "Board"). Nothing contained herein shall preclude the payment
of any other compensation to Executive at any time.
(b) BONUS. The annual incentive bonus target shall be 100% of
Executive's annual base salary. The annual incentive target shall be subject to
review and may be increased (but not decreased without Executive's express
written consent) by the Board.
(c) STOCK AWARDS. Executive shall be eligible from time to
time to receive grants of stock options, stock appreciation rights, restricted
stock or grants thereof, or rights to acquire stock or other securities of the
Company, all as commensurate with his executive position, and to the extent
permitted by and in accordance with the terms of the Company's stock option plan
or plans, as in effect from time to time.
3. DUTIES AND RESPONSIBILITIES OF EXECUTIVE. During the Term of
Agreement, Executive shall devote his full business time and attention to the
Company's business and shall use his best efforts to promote its success and
shall perform the duties and responsibilities assigned to him by the Board 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)).
4. TERM OF AGREEMENT. Executive's initial term of employment with the
Company under this Agreement shall be for the period from the Effective Date
through October 31, 2005 (the "Initial Term of Agreement"). Thereafter, the term
of the Agreement hereunder shall be automatically extended repetitively for an
additional two (2) year period on November 1, 2005, and each two (2) year
anniversary thereof, unless notice is given by either the Company or Executive
to the other Party at least sixty (60) days prior to the end of the Initial Term
of Agreement, or any two-year extension thereof, as applicable, that the
Agreement will not be renewed for a successive two-year period. The term of the
Agreement shall also be extended upon a Change in Control as provided in Section
7. The Initial Term of Agreement and any extension of the term of Agreement
hereunder shall each be referred to herein as a "Term of Agreement." The Company
and Executive shall each have the right to give Notice of Termination (pursuant
to Section 10) at will, with or without cause, at any time subject, however, to
the terms and conditions of this Agreement regarding the rights and duties of
the Parties upon termination of employment. The period from the Effective Date
through the date of
2
Executive's termination of employment for whatever reason shall be referred to
herein as the "Employment Period."
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 EXPENSES. The Company shall pay or
reimburse Executive for all reasonable travel, entertainment and other 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. In addition, subject to prior approval of the Board,
the Company shall pay the membership fees and dues for Executive to be a member
of a luncheon club and/or country club as may be applicable to the position.
(b) OTHER EMPLOYEE BENEFITS. Executive shall be entitled to
participate and shall be included in any pension, retirement, 401(k), and
profit-sharing, non-qualified deferred compensation and other group retirement
plans or programs of the Company, to the same extent as available to other
officers of the Company under the terms of such plans or programs. Executive
shall also be entitled to participate in any hospitalization, medical, dental,
health, life, accident, disability and other group insurance plans or programs
of the Company, to the same extent as available to other officers of the Company
under the terms of such plans or programs.
(c) PAID VACATION. Executive shall be entitled to the number
of days of paid vacation each year that is accorded under the Company's vacation
policy for senior officers of the Company, but not less than twenty (20) days
annually of paid vacation.
6. RIGHTS AND PAYMENTS UPON TERMINATION PRIOR TO A CHANGE IN CONTROL.
Except in the event of a termination of employment after a Change in Control, as
hereafter defined, under the circumstances and within the time limits provided
in Section 7, Executive's right to compensation and benefits for periods after
the date on which his employment with the Company terminates for whatever reason
(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, in addition to any other payments or benefits he is
entitled to receive under the terms of any employee benefit plan or any other
provision of this Section 6:
(1) his unpaid salary for the full month in which his
Termination Date occurred; provided, however, if Executive is
terminated for Cause (as defined in Section 6(d)), he shall
only be entitled to receive his accrued but unpaid salary
through his Termination Date;
(2) if his Termination Date occurs after the end of
the Company's fiscal year and prior to the payment of his
annual incentive bonus for such year, the same annual
incentive bonus to which he would
3
have been entitled had his employment continued through the
normal bonus payment date;
(3) his unpaid vacation pay for that year which has
accrued through his Termination Date.
Any such salary and accrued vacation pay shall be paid to
Executive in a cash lump sum within five (5) business days following
the Termination Date and any such annual incentive bonus shall be paid
in a cash lump sum on the normal bonus payment date for other Company
executives whose employment has continued.
(b) OTHER SEVERANCE PAYMENTS. In the event that during the
Term of Employment (i) Executive's employment is terminated by the Company for
any reason, including due to his death, "Disability" or "Retirement" (as such
terms are defined in Section 6(d), other than a "No Severance Benefits Event"
(as defined in Section 6(d)) or (ii) Executive terminates his own employment
hereunder for "Good Reason" (as defined in Section 6(d)), then in either such
event under clause (i) or (ii), the following severance benefits shall be
provided:
(1) The Company shall pay to Executive as additional
compensation (the "ADDITIONAL PAYMENT"), an amount which is
equal to "Total Cash" (defined below) multiplied by two (2)
(the "SEVERANCE MULTIPLIER"). "Total Cash" means the greater
of (x) or (y), where (x) equals Executive's annual base salary
as in effect immediately prior to his Termination Date plus
Executive's current annual incentive target bonus, and (y)
equals the highest base salary plus bonus that was paid to
Executive by the Company during any of the three calendar
years immediately preceding the year containing the
Termination Date. The Company, in its discretion, shall make
the Additional Payment to Executive either (i) in a cash lump
sum not later than sixty (60) calendar days following the
Termination Date or (ii) in substantially equal monthly
installment payments over a period of twenty four (24) months
beginning within 30 days of the Termination Date.
(2) The Company shall maintain Executive's group
health plan and group dental plan coverage for a period of
twenty four (24) months following the Termination Date, at
substantially the same level of coverages as existed on the
Termination Date; provided, however, Executive and his covered
dependents, if any, shall not be required to pay any portion
of the premium cost to retain such coverages but in all other
respects shall be treated the same as other participants under
the terms of such plans. Thereafter, Executive shall be
entitled to elect continuation coverage under such plans
pursuant to the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended ("COBRA") and the Company's procedures for
COBRA administration. In the event that COBRA coverage is
elected, (i) the COBRA time period shall not be reduced by
4
the post-termination continuation coverage provided pursuant
to the foregoing provisions of this paragraph and (ii)
Executive (and his covered dependents, if any) must pay the
full COBRA premium rates as effective during the COBRA
coverage period. In the event of any change to the group
health plan or group dental plan following the Termination
Date, Executive and his spouse and dependents, as applicable,
shall be treated consistently with the then-current senior
officers of the Company (or its successor) with respect to the
terms and conditions of coverage and other substantive
provisions of the plan; provided, however, no participant
contributions shall be required from them unless COBRA
coverage is in effect. Executive and his spouse hereby agree
to acquire and maintain any and all coverage that either or
both of them are entitled to at any time during their lives
under the Medicare program or any similar program of the
United States Government or any agency thereof (hereinafter
referred to as "Medicare"). The coverage described in the
immediately preceding sentence includes, without limitation,
parts A and B of Medicare and any additional parts of
Medicare. Executive and his spouse further agree to pay any
required premiums for Medicare coverage from their personal
funds. Notwithstanding the foregoing provisions of this
Section 6(b)(2), the coverage of Executive (and his
dependents, if any) under such medical and/or dental plans
maintained by the Company shall terminate in the event that
Executive becomes employed by another for-profit employer
which maintains a group health plan or plans for its employees
providing group medical coverage or group dental coverage, as
applicable; provided, however, any COBRA coverage shall not be
terminated unless and until permitted under COBRA.
In the event that (i) Executive voluntarily resigns or otherwise
voluntarily terminates his own employment at any time without Good Reason (other
than as a result of death, Disability or Retirement), or (ii) his employment is
terminated due to a "No Severance Benefits Event" (as defined in Section 6(d)),
then the Company shall have no obligation to provide any severance benefits
under paragraphs (1) and (2) above of this Section 6(b), or under Section
6(a)(2). Executive shall still be entitled to the severance benefits provided
under Section 6(a)(1) and (3). The severance payments provided under this
Agreement shall supersede and replace any severance payments under any severance
pay plan that the Company or any Affiliate maintains for employees generally.
(c) Notwithstanding any provision of this Agreement to the
contrary, in order to receive the severance benefits payable under either
Section 6(b), Section 7 or Section 8, as applicable, Executive must first
execute an appropriate release agreement (on a form provided by the Company)
whereby Executive agrees to release and waive, in return for such severance
benefits, any claims that he may have against the Company including, without
limitation for unlawful discrimination (including, without limitation, under
Title VII of the Civil Rights Act); provided, however, unless specifically and
expressly consented to by Executive, such release agreement shall not release
any claim by Executive for any payment or benefit that is due under either this
Agreement or any employee benefit plan or program of the Company until fully
paid.
5
(d) DEFINITIONS. For purposes of this Agreement:
(1) "AFFILIATE" means any entity which owns or
controls, is owned or controlled by, or is under common
control with, the Company.
(2) "CAUSE" means any of the following:
(A) 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 Executive;
(B) the commission by Executive of a
material act of fraud upon the Company or
any Affiliate;
(C) the material misappropriation of funds
or property of the Company or any Affiliate
by Executive;
(D) the knowing engagement by Executive
without the written approval of the Board,
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
(E) (i) material breach by Executive during
the Employment Period of any of Sections 12
through 16, Sections 17 and 18, or Section
22 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
Cause shall not exist under this clause
(E)(i) or (E)(ii) until after written notice
from the Board has been given to Executive
of such material breach or nonperformance
(which notice specifically identifies the
manner and sets forth specific facts,
circumstances and examples in which the
Board believes that Executive has breached
the Agreement or not substantially performed
his duties) and Executive has failed to cure
such alleged breach or nonperformance within
the time period set by the Board, but in no
event less than thirty (30) business days
after his receipt of such notice; and, for
purposes of this clause (E), no act or
failure to act on Executive's part shall be
deemed "willful" unless it is done or
omitted by Executive not in good faith and
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
6
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 under
this Agreement).
(3) "CODE" means the Internal Revenue Code of 1986,
as amended, or its successor. References herein to any Section
of the Code shall include any successor provisions of the
Code.
(4) "DISABILITY" means a "permanent and total
disability" as defined in Section 22(e)(3) of the Code and
Treasury regulations thereunder. Evidence of such Disability
shall be certified by a physician acceptable to both the
Company and Executive. In the event that the Parties are not
able to agree on the choice of a physician, each shall select
one physician who, in turn, shall select a third physician to
render such certification. All costs relating to the
determination of whether Executive has incurred a Disability
shall be paid by the Company. Executive agrees to submit to
any examinations that are reasonably required by the attending
physician.
(5) "GOOD REASON" means the occurrence of any of the
following events without Executive's express written consent:
(A) a reduction in Executive's Base Salary,
as defined below, as in effect from time to
time, or annual target incentive bonus
opportunity; provided, however, that Base
Salary for purposes of this Agreement shall
mean Executive's annual base cash
compensation, and shall not include any
other items such as bonuses, premiums,
distributions, contributions to Company
employee benefit plans, the value of
employee benefits or executive benefits,
stock options or stock grants, or any other
component or item that may be included on
Executive's W-2 form from the Company.
(B) a relocation of Executive's principal
place of employment with the Company or its
successor by more than 30 miles;
(C) a substantial and adverse change in
Executive's duties, control, authority,
status or position, or the assignment to
Executive of duties or responsibilities
which are materially inconsistent with such
status or position, or a material reduction
in the duties and responsibilities
previously exercised by Executive, or a loss
of title, loss of office, or any removal of
Executive from, or any failure to
7
reappoint or reelect him to, such positions,
except in connection with the termination of
his employment due to a No Severance
Benefits Event (as defined in Section 6(d));
(D) the Company or its successor fails to
continue in effect any pension plan, life
insurance plan, health-and-accident plan,
retirement plan, disability plan, stock
option or other similar plan, deferred
compensation plan or executive incentive
compensation plan under which Executive was
receiving material benefits (unless the
Company substitutes and continues other
plans providing Executive with substantially
similar benefits), or the taking of any
action by the Company or its successor that,
in any such case or cases, would materially
and adversely affect Executive's
participation in or materially reduce his
benefits under any such plan, unless any
such adverse change to any such plan applies
on the same terms to all of the then-current
senior officers of the Company; or
(E) any failure of any successor to the
Company to have expressly assumed the
Company's obligations under this Agreement
as contemplated by Section 36 hereof, unless
such assumption occurs by operation of law,
or any other material breach by the Company
or its successor of any other material
provision of this Agreement.
Notwithstanding the definition of "Good Reason" for
purposes of this Agreement, Executive may not terminate his
employment hereunder for Good Reason unless he (i) first
notifies the Board in writing of the event (or events) which
Executive believes constitutes a Good Reason event and the
specific paragraph of this Agreement under which such event
has occurred, within 90 days from the date of such event, and
(ii) provides the Company with at least 30 days to cure the
Good Reason event so that it either (1) does not constitute a
Good Reason event hereunder or (2) Executive reasonably
agrees, in writing, that after any such modification or
accommodation made by the Company that such event shall not
constitute a Good Reason event hereunder.
(6) "NO SEVERANCE BENEFITS EVENT" means a termination
of Executive's employment for Cause (as defined above).
(7) "RETIREMENT" means the termination of Executive's
employment for normal retirement at or after attaining age 65
provided that, on the date of his retirement, Executive has
completed at least five years of active employment with the
Company.
8
7. RIGHTS AND PAYMENTS UPON CERTAIN TERMINATIONS FOLLOWING A CHANGE IN
CONTROL. The provisions of this Section 7 shall not apply unless (a) there shall
have been a Change in Control during the Term of Agreement and prior to the end
of the Employment Period, and (b) Executive's employment with the Company shall
have been terminated without Cause by the Company within three (3) years after
the date of such Change in Control, or Executive shall have terminated his
employment from the Company for Good Reason within two (2) years after the date
of such Change in Control. Upon the occurrence of a Change in Control, the Term
of Agreement shall automatically be extended so that, unless it is further
extended by affirmative action of the parties, it expires on the third
anniversary of the Change in Control.
(a) SEVERANCE BENEFITS DUE FOLLOWING A TERMINATION BY THE
COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR GOOD REASON. If the Company terminates
Executive's employment with the Company for a reason other than retirement,
death, Disability or Cause, prior to the third anniversary of a Change in
Control, or if Executive terminates his employment with the Company for Good
Reason prior to the second anniversary of a Change in Control, then Executive's
severance benefits shall be determined in accordance with the provisions of
Section 6, after taking into account the modifications in this Section 7, as
follows:
(1) the Severance Multiplier for purposes of
determining the amount of the Additional Payments under
Section 6 shall be three (3);
(2) such Additional Payment shall be paid to
Executive in a lump sum cash payment not later than the 10th
day following the Termination Date;
(3) on the same date that the Additional Payment is
made to Executive, the Company shall pay Executive an
additional amount equal to the annual incentive bonus target
as provided in Section 2(b) multiplied by a fraction, the
numerator of which equals the number of days from the
commencement of the year in which such termination occurs
through the Termination Date, and the denominator of which
equals 365;
(4) group health and group dental benefits under
Section 6 shall be provided for thirty six (36) months instead
of twenty four (24) months from the Termination Date, provided
Executive and, if applicable, his spouse comply with the
otherwise applicable requirements of Section 6(b)(2), and the
Company shall arrange to provide Executive for a period of 36
months from the Termination Date, or until his earlier death,
disability and accident insurance benefits and executive
benefits, constituting automobile allowance and the value of
monthly dues associated with certain club memberships,
substantially similar to those which Executive was receiving
immediately prior to the Notice of Termination, or if greater,
prior to the Change in Control;
9
(5) Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by
the affirmative vote of not less than two-thirds of the entire
membership of the Board, at a meeting of the Board called and
held for the purpose, finding that in the good faith opinion
of the Board Executive was guilty of conduct set forth in
Section 6(d)(2) and specifying the particulars thereof in
detail;
(6) In determining whether Executive has Good Reason
to terminate his employment with the Company, there shall also
be treated as events of Good Reason (subject to compliance
with the Executive's notification obligations under the last
paragraph of Section 6(d)(5)):
(A) the Company's failure to increase
(within 12 months after a Change in Control)
Executive's Base Salary by an amount which
is substantially similar, on a percentage
basis, to the average percentage increase in
Base Salary for all officers of the Company
effected for such officers for the last
complete fiscal year of the Company that
ended prior to the date of the Change in
Control;
(B) the events described in Section
6(d)(5)(D), without regard to whether such
changes apply to other then current senior
officers of the Company on the same basis;
(C) the taking of any action by the Company
which would adversely affect Executive's
participation in or materially reduce his
benefits under or deprive Executive of any
material fringe benefit enjoyed by him at
the time of a Change in Control, or the
failure by the Company to provide Executive
with the number of paid vacation days to
which he was entitled in accordance with the
vacation policies in effect at the time of a
Change in Control;
(D) any loss of significant authority, power
or control over that exercised by Executive
immediately prior to the Change in Control
(including a change in superior to whom
Executive reports);
(E) any failure by the Company to continue
in effect any plan or arrangement to receive
securities of the Company (including any
plan or arrangement to receive and exercise
stock options, stock appreciation rights,
restricted stock or grants thereof or to
acquire stock or other securities of the
Company) in which Executive is participating
at the time of a Change in Control (unless
10
substitute plans or arrangements are
implemented and continued providing
Executive with substantially similar
benefits with respect to the Company's
successor after a Change in Control)
(hereinafter referred to as "Securities
Plans") or the taking of any action by the
Company which would adversely affect
Executive's participation in or materially
reduce his benefits under any such
Securities Plan; and
(F) a substantial increase in Executive's
business travel obligations over such
obligations as they existed at the time of a
Change in Control.
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred as of any date
if, after the Effective Date:
(1) Any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(7) of the Securities
Exchange Act of 1934, as amended (the '34 Act"), except
Executive, his affiliates and associates, the Company, or any
corporation, partnership, trust or other entity controlled by
the Company (a "Subsidiary"), or any employee benefit plan of
the Company or of any Subsidiary (each individual, entity or
group shall hereinafter be referred to as a "Person") becomes
the beneficial owner (within the meaning of Rule 13d-3
promulgated under the '34 Act) of 15% or more of either (i)
the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of
directors (the "Company Voting Securities"), in either case
unless the Board in office immediately prior to such
acquisition determines in writing within five business days of
the receipt of actual notice of such acquisition that the
circumstances do not warrant the implementation of the
provisions of this Agreement; or
(2) Individuals who, as of the beginning of any
twenty-four month period, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director
subsequent to the beginning of such period whose election or
nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board,
but excluding for this purpose any such individual whose
initial assumption of office is in connection with an actual
or threatened election contest relating to the election of the
directors of the Company (as such terms are used in Rule 14a11
of Regulation 14A promulgated under the '34 Act); or
11
(3) There is a consummation by the Company of a
reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective beneficial owners of the Outstanding Company Common
Stock and Company Voting Securities immediately prior to such
Business Combination do not, immediately following such
Business Combination, beneficially own, directly or
indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination in substantially the same proportion as their
ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and Company Voting
Securities, as the case may be; or
(4) There is a (i) consummation of a complete
liquidation or dissolution of the Company or (ii) sale or
other disposition of all or substantially all of the assets of
the Company other than to a corporation with respect to which,
following such sale or disposition, more than 50% of,
respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly,
by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Company Voting
Securities, as the case may be, immediately prior to such sale
or disposition.
(5) Notwithstanding any other provision of this
Agreement, unless otherwise agreed to by the parties in an
amendment to this Agreement, if more than one event occurs
after the Effective Date that constitutes a Change in Control
for purposes of this Agreement, the Term of this Agreement
shall not be extended as provided in the first paragraph of
this Section 7 beyond the date which is three (3) years from
the date of the first such event that constitutes a Change in
Control.
(c) EXPENSES. The Company shall pay to Executive all legal
fees and expenses incurred by him as a result of the termination of his
employment other than for Cause or by reason of death incurred in contesting or
disputing any such termination or in seeking to obtain or enforce any right or
benefit provided by this Agreement, provided Executive establishes that his
termination was covered by the provisions of this Section 7.
8. MAKE-WHOLE PAYMENTS. If any payment or benefit to which Executive
(or any person on account of Executive) is entitled, whether under this
Agreement or otherwise, in connection with a Change in Control or in connection
with any termination of Executive's employment (a "Payment") constitutes a
"parachute payment" within the meaning of section 280G of the Internal Revenue
Code of 1986, as amended ( the "Code"), and as a result thereof Executive is
subject to a tax under section 4999 of the
12
Code, or any successor thereto, (an "Excise Tax"), the Company shall pay to
Executive, or to the applicable tax authorities to which tax or related
withholding payments are required to be made, an additional amount (the
"Make-Whole Amount") which is intended to make Executive whole for such Excise
Tax.
(a) The Make-Whole Amount shall be equal to (i) the aggregate
amount of the Excise Tax imposed on the Payments, plus (ii) the aggregate amount
of all interest, penalties, fines and additions to any tax which are imposed in
connection with the imposition of such Excise Tax, to the extent not
attributable to delay in payment by Executive or, or failure by Executive to
timely apply the Make-Whole Amount to the payment of tax, plus (iii) all income,
excise, employment and other applicable taxes imposed on Executive under the
laws of any Federal, state or local government or taxing authority by reason of
the payments required under clauses (i) and (ii) and this clause (iii).
(b) For purposes of determining the Make-Whole Amount,
Executive shall be deemed to be taxed at the highest marginal rate under all
applicable Federal, state local, and foreign income tax laws for the year in
which the Make-Whole Amount is paid. The Make-Whole Amount payable with respect
to an Excise Tax shall be paid by the Company within thirty (30) days after the
Payment with respect to which such Excise Tax relates.
(c) All calculations under this Section 8 shall be made
initially by the Company and the Company shall provide prompt written notice
thereof to Executive to enable Executive to timely file all applicable tax
returns. Upon request of Executive, the Company shall provide Executive with
sufficient tax and compensation data to enable Executive or Executive's tax
advisor to independently make the calculations described in subparagraph (a)
above and the Company shall reimburse Executive for reasonable fees and expenses
incurred for any such verification.
(d) If Executive gives written notice to the Company of any
objection to the results of the Company's calculations within 60 days of
Executive's receipt of written notice thereof, the dispute shall be referred for
determination to independent tax counsel selected by the Company and reasonably
acceptable to Executive ("Tax Counsel"). The Company shall pay all fees and
expenses of such Tax Counsel. Pending such determination by Tax Counsel, the
Company shall pay Executive the Make-Whole Amount as determined by it in good
faith. The Company shall pay Executive any additional amount determined by Tax
Counsel to be due under this Section 8 (together with interest thereon at a rate
equal to 120% of the Federal short-term rate determined under section 1274(d) of
the Code) promptly after such determination.
(e) The determination by Tax Counsel shall be conclusive and
binding upon all parties unless the Internal Revenue Service, a court of
competent jurisdiction, or such other duly empowered governmental body or agency
(a "Tax Authority") determines that Executive owes a greater or lesser amount of
Excise Tax with respect to any Payment than the amount determined by Tax
Counsel.
13
(f) If a Taxing Authority makes a claim against Executive
which, if successful, would require the Company to make an additional payment
under this Section 8, beyond the payments already made ( the "Additional
Make-Whole Amount"), Executive agrees to contest the claim with counsel
reasonably satisfactory to the Company, on request of the Company subject to the
following conditions:
(1) Executive shall notify the Company of any such
claim within 10 days of becoming aware thereof. In the event
that the Company desires the claim to be contested, it shall
promptly (but in no event more than 30 days after the notice
from Executive or such shorter time as the Taxing Authority
may specify for responding to such claim) request Executive to
contest the claim. Executive shall not make any payment of any
tax which is the subject of the claim before Executive has
given the notice or during the applicable period thereafter
unless Executive receives written instructions from the
Company to make such payment together with an advance of the
Additional Make-Whole Amount, such amount to be determined as
if it were an Excise Tax, in which case Executive will act
promptly in accordance with such instructions.
(2) If the Company so requests, Executive will
contest the claim by either paying the tax claimed and suing
for a refund in the appropriate court or contesting the claim
in the United States Tax Court or other appropriate court, as
directed by the Company; provided, however, that any request
by the Company for Executive to pay the tax shall be
accompanied by an advance from the Company to Executive of the
Additional Make-Whole Amount, such amount to be determined as
if it were an Excise Tax. If directed by the Company in
writing Executive will take all action necessary to compromise
or settle the claim, but in no event will Executive compromise
or settle the claim or cease to contest the claim without the
written consent of the Company; provided, however, that
Executive may take any such action if Executive waives in
writing Executive's right to a payment under this Section 8
for any amounts payable in connection with such claim.
Executive agrees to cooperate in good faith with the Company
in contesting the claim and to comply with any reasonable
request from the Company concerning the contest of the claim,
including the pursuit of administrative remedies, the
appropriate forum for any judicial proceedings, and the legal
basis for contesting the claim. Upon request of the Company,
Executive shall take appropriate appeals of any judgment or
decision that would require the Company to make a payment
under this Section 8. Provided that Executive is in compliance
with the provisions of this section, the Company shall be
liable for and indemnify Executive against any loss in
connection with, and all costs and expenses, including
attorneys' fees, which may be incurred as a result of,
contesting the claim, and shall provide to Executive within 30
days after each written request therefore by Executive cash
advances or reimbursement for all such costs and expenses
actually
14
incurred or reasonably expected to be incurred by Executive as a
result of contesting the claim.
(g) If the Company declines to require Executive to contest the
claim within the applicable time period, or should a Tax Authority finally
determine that an additional Excise Tax is owed, then the Company shall pay the
Additional Make-Whole Amount to Executive in a manner consistent with this
Section 8 with respect to any additional Excise Tax and any assessed interest,
fines, or penalties. If any Excise Tax as calculated by the Company or Tax
Counsel, as the case may be, is finally determined by a Tax Authority to exceed
the amount required to be paid under applicable law, then Executive shall repay
such excess to the Company within 30 days of such determination; provided that
such repayment shall be reduced by the amount of any taxes paid by Executive on
such excess which is not offset by the tax benefit attributable to the
repayment.
9. SEVERANCE BENEFITS FOLLOWING NONRENEWAL OF AGREEMENT. In the event
that (i) the Term of Agreement is not renewed by the Company for any reason
other than a "No Severance Benefits Event" (as defined in Section 6(d)), whether
before or after a Change in Control, and (ii) the employment of Executive is
subsequently terminated by the Company for any reason other than a No Severance
Benefits Event within two (2) year period following the expiration of the Term
of Agreement due to nonrenewal by the Company, then Executive shall still be
entitled to the severance benefits provided below (hereafter, the "Nonrenewal
Severance Benefits"), provided that he first enters into a release agreement
pursuant to Section 6(c). The Nonrenewal Severance Benefits shall be computed in
the same manner as severance benefits are computed under Section 6(b); provided,
however, the total benefits under that subsection shall be reduced by the number
of months that have elapsed between the last day of the Term of Agreement due to
nonrenewal and Executive's last day of the Employment Period. For example, if
Executive's employment is terminated (other than due to a No Severance Benefits
Event) nine months after the end of the Term of Employment due to the Company's
nonrenewal, he shall be entitled to an Additional Payment pursuant to Section
6(b) that is computed based on fifteen (15) months (twenty four (24) months -
nine (9) months = fifteen (15) months) instead of twenty four (24) months.
Likewise, the group health and dental benefits shall continue pursuant to
Section 6(b) for fifteen (15) months rather than twenty four (24) months.
10. NOTICE OF TERMINATION. Any termination by the Company or Executive
of his employment from the Company shall be communicated by Notice of
Termination to the other Party hereto. For purposes of this Agreement, the term
"Notice of Termination" means a written notice which indicates the specific
termination provision of this Agreement relied upon and sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated
11. MITIGATION. Subject to Section 6(b)(2), Executive shall not be
required to mitigate the amount of any payment provided for under this Agreement
by seeking other employment or in any other manner.
15
12. SECRET AND CONFIDENTIAL INFORMATION.
(a) ACCESS TO SECRET AND CONFIDENTIAL INFORMATION. On an
ongoing basis, the Company agrees to give Executive access to Secret and
Confidential Information (including, without limitation, Secret and Confidential
Information of the Company's Affiliates and subsidiaries) (collectively, "SECRET
AND CONFIDENTIAL INFORMATION"), which Executive did not have access to or
knowledge of before the execution of this Agreement. Secret and Confidential
Information includes, without limitation, all of the Company'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
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 or its
Affiliates or subsidiaries' methods of operation; the procedures, forms and
techniques used in servicing accounts; and other information or documents that
the Company requires to be maintained in confidence for the Company's continued
business success.
(b) ACCESS TO SPECIALIZED TRAINING. At the time this Agreement
is made, the Company agrees to provide Executive with initial and ongoing
Specialized Training, which Executive does not have access to or knowledge of
before the execution of this Agreement. "Specialized Training" includes the
training the Company provides to its Executives that is unique to its business
and enhances Executive's ability to perform Executive's job duties effectively.
The Specialized Training includes, without limitation, orientation training;
sales methods/techniques training; operation methods training; and computer and
systems training.
(c) AGREEMENT NOT TO USE OR DISCLOSE SECRET AND CONFIDENTIAL
INFORMATION/SPECIALIZED TRAINING. In exchange for the Company's promises to
provide Executive with Specialized Training and Secret and Confidential
information, Executive shall not during the period of Executive's employment
with the Company 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 Specialized Training and Secret and Confidential
Information, except in the ordinary course of the Company's business or as
directed and authorized by the Company.
(d) AGREEMENT TO REFRAIN FROM DEFAMATORY STATEMENTS. Executive
shall refrain, both during the employment relationship and after the employment
relationship terminates, from publishing any oral or written statements about
the Company or any of its Affiliates' directors, officers, employees, agents,
investors or representatives that are slanderous, libelous, or defamatory; or
that disclose private or confidential information about the Company or any of
its Affiliates' business affairs, directors, officers, employees, agents,
investors or representatives; or that constitute an intrusion into the seclusion
or private lives of the Company or any of its Affiliates' directors, officers,
employees, agents, investors or representatives; or that give rise to
unreasonable publicity about the private lives of such directors, officers,
employees, agents, investors or representatives; or that place such directors,
officers, employees,
16
agents, investors or representatives in a false light before the public; or that
constitute a misappropriation of the name or likeness of such directors,
officers, employees, agents, investors or representatives. A violation or
threatened violation of this prohibition may be enjoined.
13. DUTY TO RETURN COMPANY DOCUMENTS AND PROPERTY. Upon the termination
of Executive's employment with the Company, for any reason whatsoever, 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
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 Secret and Confidential Information in his possession
or control, Executive shall immediately return to the Company all such Secret
and Confidential Information in his possession or control, including all copies
and portions thereof.
14. FURTHER DISCLOSURE. 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 matters 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 interest 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, 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 one (1) year after
termination of employment (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.
Accordingly, Executive agrees that such ideas, inventions or discoveries shall
be presumed to have been conceived during his employment with the Company,
unless and until the contrary is clearly established by Executive.
15. INVENTIONS. 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
17
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 shall take all actions
necessary so that the Company can prepare and present applications for copyright
or Letters Patent therefor, and can secure such copyright or Letters Patent
wherever possible, as well as reissue renewals, and extensions thereof, and can
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.
16. NON-SOLICITATION RESTRICTION. To protect the Company's Secret and
Confidential Information, and in the event of Executive's termination of
employment for any reason whatsoever, whether by Executive or the Company, it is
necessary to enter into the following restrictive covenants, which are ancillary
to the enforceable promises between the Company and Executive in Sections 12
through 15 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
corporation or association, 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 sold
(or offered for sale) by the Company or any Affiliate, from the Company's or
Affiliate's customers or prospective customer, or those individuals or entities
with whom the Company or Affiliate did business during the Employment Period,
including, without limitation, the Company's or Affiliate's prospective or
potential customers. Subject to Section 19, the prohibition set forth in this
Section 16 shall remain in effect for a period of one (1) year from the
Termination Date for whatever reason.
17. NON-COMPETITION RESTRICTION. In consideration for the Company's
Agreement to pay to Executive such part of the Additional Payments as is equal
to one (1) times Total Cash upon a termination of Executive's employment from
the Company for any reason other than a No Severance Benefit Event or due to
Executive's death, Disability or Retirement, and for other good and valuable
consideration, and in recognition of the Company's legitimate business interests
in protecting itself against the losses it would experience if Executive were to
become employed by a competitor of the Company following his termination of
employment from the Company, Executive agrees to the following restrictive
covenant, which is ancillary to the enforceable promises between the Company and
Executive in Sections 12 through 16 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 for whatever reason, Executive will not
within the entire United States of America, without the prior written consent of
the Board become interested in any capacity in which Executive would perform any
similar duties to those performed while at the Company, directly or indirectly
(whether as
18
proprietor, stockholder, director, partner, employee, agent, independent
contractor, consultant, trustee, beneficiary, or in any other capacity), for any
customer of the Company or any Affiliate, or in any business entity that sells,
provides or develops products or services competitive with any products or
services sold, provided or developed by the Company or any Affiliate.
18. NO-RECRUITMENT RESTRICTION. Executive agrees that during the
Employment Period, and for a period of one (1) year from the Termination Date
for whatever reason, Executive will not, either directly or indirectly, or by
acting in concert with others, solicit or influence any employee of the Company
or any Affiliate to terminate or reduce his or her employment with the Company
or any Affiliate.
19. TOLLING. If Executive violates any of the restrictions contained in
Sections 12 through 18 of this Agreement, the restrictive period will be
suspended and will not run in favor of Executive from the time of the
commencement of any violation until the time when Executive cures the violation
to the Company's reasonable satisfaction.
20. REFORMATION. If a court or arbitrator concludes that any time
period or the geographic area specified in any restrictive covenant in Sections
12 through 18 of this Agreement 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 the overbroad 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.
21. NO PREVIOUS RESTRICTIVE AGREEMENTS. Executive represents that,
except as disclosed in writing to the Company, he is not bound by the terms of
any agreement with any previous employer or other party to (a) refrain from
using or disclosing any trade secret or confidential or proprietary information
in the course of Executive's employment by the Company or (b) refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Executive further represents that his performance of all the
terms of this Agreement and his work duties for the Company does not and will
not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by Executive in confidence or in trust prior to
Executive's employment with the Company, and Executive will not disclose to the
Company or induce the Company to use any confidential or proprietary information
or material belonging to any previous employer or others.
22. 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. Moreover, Executive agrees that he shall
immediately disclose to the Board any known facts which might involve a conflict
of interest of which the Board is not aware.
Executive and Company recognize and acknowledge that it is not possible
to provide an exhaustive list of actions or interests which may constitute a
"conflict of interest." Moreover, Company and Executive recognize there are many
borderline
19
situations. In some instances, full disclosure of facts by Executive to the
Board may be all that is necessary to enable Company to protect its interests.
In others, if no improper motivation appears to exist and Company's interests
have not demonstrably suffered, prompt elimination of the outside interest may
suffice. In egregious and material instances it may be necessary for Company to
terminate Executive's employment for Cause (as defined in Section 6(d));
provided, however, Executive cannot be terminated for Cause hereunder unless the
Company first provides Executive with notice and an opportunity to cure such
conflict of interest pursuant to the same procedures as set forth in clause (E)
of the definition of "Cause" in Section 6(d)(2).
Executive hereby agrees that any interest in, connection with, or
benefit from any outside activities, particularly commercial activities, which
interest could adversely affect the Company or any Affiliate, involves a
possible conflict of interest. Circumstances in which a conflict of interest on
the part of Executive would or might arise, and which should be reported to the
Board, include, but are not limited to, any of the following:
(a) Ownership of more than a de minimis interest in any lender,
supplier, contractor, customer or other entity with which
Company or any Affiliate does business;
(b) Intentional misuse of information, property or facilities to
which Executive has access in a manner which is demonstrably
and materially injurious to the interests of the Company or
any Affiliate, including its business, reputation or goodwill;
or
(c) Materially trading in products or services connected with
products or services designed or marketed by or for the
Company or any Affiliate.
23. REMEDIES. Executive acknowledges that the restrictions contained in
Sections 12 through 22 of this Agreement, in view of the nature of the Company's
business, are reasonable and necessary to protect the Company's legitimate
business interests, and that any violation of this Agreement would result in
irreparable injury to the Company. In the event of a breach or a threatened
breach by Executive of any provision of Section 12 through 22 of this Agreement,
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 disclosures 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.
24. 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
20
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.
25. 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.
26. INCOMPETENT OR MINOR PAYEES. Should the Board determine, in its
discretion, that any 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, 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.
27. INDEMNIFICATION. The Company shall, to the full extent permitted by
law, indemnify and hold harmless Executive from and against any and all
liability, costs and damages arising from his service as an employee, officer or
director of the Company or its Affiliates, specifically including liability,
costs and damages that arise in whole or in part from any negligence or alleged
negligence of executive, except, however, to the extent that any such liability,
cost or damage resulted from an act or omission by executive that constitutes
gross negligence or willful misconduct on his part. To the full extent permitted
by Delaware law, the Company shall retain counsel to defend Executive, or shall
advance legal fees and expenses to Executive for counsel selected by Executive,
in connection with any litigation or proceeding related to his service as an
employee, officer and director of the Company or any Affiliate within twenty
(20) days after receipt by the Company of a written request for such advance.
Such request shall include an itemized list of the costs and expenses and an
undertaking by Executive to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be indemnified against such
costs and expenses. This Section 27 shall be in addition to, and shall not limit
in any way, the rights of Executive to any other indemnification from the
Company, as a matter of law, contract or otherwise.
28. 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
21
to Section 31), 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.
29. 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 hereof.
30. CHOICE OF LAW. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN,
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
31. ARBITRATION. Subject to Section 23, any dispute or other
controversy (hereafter a "Dispute") arising under or in connection with this
Agreement, whether in contract, in tort, statutory or otherwise, shall be
finally and solely resolved by binding arbitration in Xxxxxx County, Texas,
administered by the American Arbitration Association (the "AAA") in accordance
with the Employment Dispute Resolution Rules of the AAA, this Section 29 and, to
the maximum extent applicable, the Federal Arbitration Act. Such arbitration
shall be conducted by a single arbitrator (the "Arbitrator"). If the parties
cannot agree on the choice of an Arbitrator within 30 days after the Dispute has
been filed with the AAA, then the Arbitrator shall be selected pursuant to the
Employment Dispute Resolution Rules of the AAA. The Arbitrator 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 Arbitrator in his
discretion. The costs of the arbitration shall be borne equally by the parties
unless otherwise determined by the Arbitrator in his discretion.
To the maximum extent practicable, an arbitration proceeding hereunder
shall be concluded within 180 days of the filing of the Dispute with the AAA.
The Arbitrator shall be empowered to impose sanctions and to take such other
actions as the Arbitrator 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.
The award of the Arbitrator shall be (a) the sole and exclusive remedy
of the parties, and (b) final and binding on the parties hereto except for any
appeals provided by the Federal Arbitration Act. Only the district courts of
Texas shall have jurisdiction to enter a judgment upon any award rendered by the
Arbitrator, and the parties hereby
22
consent to the personal jurisdiction of such courts and waive any objection that
such forum is inconvenient. This Section 31 shall not preclude (i) the parties
at any time from agreeing to pursue non-binding mediation of the Dispute prior
to arbitration hereunder or (ii) the Company from pursuing the remedies
available under Section 23 in any court of competent jurisdiction.
32. 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.
33. ENTIRE AGREEMENT; AMENDMENT AND TERMINATION. This Agreement
contains the entire agreement of the parties with respect to Executive's
employment and the other matters covered herein; moreover, this Agreement
supersedes all prior and contemporaneous agreements and understandings, oral or
written, between the Parties hereto concerning the subject matter hereof
including, without limitation, the Severance Compensation and Consulting
Agreement. This Agreement may be amended, waived or terminated only by a written
instrument that is identified as an amendment or termination hereto and that is
executed on behalf of both Parties.
34. 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.
35. 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.
36. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company and its Affiliates, and its and their
successors, and upon any person or entity acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
business and/or assets of the Company or its successor. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the 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 taken place; provided, however, no such
assumption shall relieve the Company of its obligations hereunder.
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 including, without limitation, pursuant to Sections 2, 5,
6, 7 and 8, all such amounts, unless otherwise
23
specifically provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's surviving spouse if any, or if not, then to Executive's
estate.
37. NOTICES. Notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received (a) when delivered in person, (b)
on the first business day after it is sent by air express overnight courier
service, or (c) on the third business day following deposit in the United States
mail, registered or certified mail, return receipt requested, postage prepaid
and addressed, to the following address, as applicable:
(1) If to Company, addressed to:
Xxxxxx Drilling Company
Attn: Secretary
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(2) If to Executive, addressed to the address set forth
below his name on the execution page hereof;
or to such other address as either party may have furnished to the other party
in writing in accordance with this Section 37.
38. 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 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.
39. 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.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both parties.
[SIGNATURE PAGE FOLLOWS.]
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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.
WITNESS: EXECUTIVE:
Signature: Signature:
------------------------- ----------------------------
Name: Name:
------------------------------ ---------------------------------
Date: Date:
------------------------------ ---------------------------------
Address for Notices:
Xxxxxx Xxxxxx, Xx.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
ATTEST: COMPANY:
By: By:
-------------------------------- -----------------------------------
Title: Its:
----------------------------- ----------------------------------
Name: Name:
------------------------------ ---------------------------------
Date: Date:
------------------------------ ---------------------------------
25
