EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of the 27th day of November, 2001 (the "Effective Date"), by and
between EXCALIBUR HOLDINGS, INC., a Texas corporation (hereafter referred to as
the "Company"), and XXXXXX XXXXX (hereafter referred to as "Executive"). The
Company and Executive may sometimes hereafter be referred to singularly as a
"Party" or collectively as the "Parties."
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
of approximately even date with the Effective Date (the "Merger Agreement"), the
Company, through a merger with one of its wholly-owned subsidiaries (such
transaction being referred to as the "Merger"), has acquired Excalibur Steel,
Inc., an Oklahoma corporation ("Steel"), of which Executive was the President
and a principal shareholder;
WHEREAS, as a result of the Merger, Steel is now a wholly-owned
subsidiary of the Company, and Executive is now a stockholder of the Company;
WHEREAS, Executive is considered by the Company to be a vital component
to the successful operations of the Company;
WHEREAS, in light of the foregoing, the Company desires to employ
Executive and Executive desires to accept employment with the Company (and with
certain subsidiaries of the Company), as more particularly set forth in this
Agreement:
W I T N E S S E T H:
1. EMPLOYMENT AND DUTIES OF EXECUTIVE
On the terms and subjects to the conditions hereinafter set forth, and
beginning as of the Effective Date, the Company employs Executive as its Chief
Operating Officer, and the Executive will serve as the Company's employee in
that position. Additionally, Executive shall serve as Chief Operating Officer of
the Company's subsidiaries: (i) Excalibur Steel, Inc., an Oklahoma corporation
and (ii) Excalibur Services, Inc., an Oklahoma corporation. Executive shall
perform such duties, and have such power, authority, functions, and
responsibilities for the Company and corporations affiliated with the Company as
are commensurate and consistent with his employment as the Company's Chief
Operating Officer. Executive shall also have such additional powers, authority,
functions, duties, and responsibilities as may be assigned to him by the
President and Chief Executive Officer, and/or by the Board of Directors of the
Company (the "Board"). Executive shall report to the President and Chief
Executive Officer. Additionally, if Executive is serving as a member of the
Board, then at any such time, any and all references in this Agreement to the
Board or to decisions to be made by or at the discretion or judgment of the
Board shall be interpreted to mean that Executive shall NOT take part in any
such decision or the deliberations related thereto in his capacity as a member
of the Board.
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2. PLACE OF EMPLOYMENT
The required duties of Executive under this Agreement shall be
performed by Executive at the Company's offices in Sand Springs, Oklahoma area,
and in such other place or places to which Company may, from time to time,
request Executive to travel in connection with the duties of Executive under
this Agreement; provided, however, that Executive shall not, whether by a change
in the scope or location of performance of Executive's duties, be required to
change his place of residence from the Sand Springs, Oklahoma area.
3. TIME TO BE DEVOTED TO CONTRACTUAL
DUTIES OF EXECUTIVE
Executive shall give his best efforts and endeavors, on a full time
basis, to the discharge of his duties under this Agreement and shall not, at any
time during the Term (hereafter defined), engage in any business activity other
than the business activities permitted or required hereunder, or enter into the
services of or be employed in any capacity or for any purpose by any individual,
firm, association, organization, partnership (general or limited), corporation,
limited liability company, or other party or legal entity other than the Company
(or any affiliate of the Company), on a fee or salary or other compensatory
basis, it being the intention of the Company and Executive that the capacity in
which Executive is hired by the Company under this Agreement represents a
full-time duty and responsibility. The foregoing shall not be interpreted to
prohibit Executive from engaging in recreational, charitable, religious, or
community service activities outside the scope of Executive's employment under
this Agreement, or from making passive investments in businesses or enterprises,
so long as (i) such activities or investments, individually or in the aggregate,
do not interfere or require services on the part of Executive that interfere
with Executive's performance of his duties and obligations under this Agreement;
(ii) such activities or investments do not involve or relate to any activities
or business in competition with the business of the Company or any affiliates of
the Company, and (iii) Executive has complied with Paragraph 10 of this
Agreement with respect to each such activity and investment.
4. TERM OF EMPLOYMENT
The term of the Company's employment of Executive shall be for a period
of three (3) years from the date hereof (such period being referred to as the
"Initial Term"). After the expiration of the Initial Term, the employment of
Executive shall continue for successive three (3) month periods. The Initial
Term PLUS any period or periods of time during which the employment of Executive
continues with the Company after the expiration of the Initial Term is sometimes
referred to as the "Term."
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5. COMPENSATION OF EXECUTIVE
A. As compensation for the services and duties performed and to be
performed by Executive as provided in this Agreement, the Company agrees to pay
Executive a salary in the amount of TWO HUNDRED THOUSAND AND NO/100THS DOLLARS
($200,000.00) per annum, less applicable withholding, F.I.C.A., and other lawful
deductions, such salary to be payable semi-monthly, in equal installments, in
arrears, and otherwise in accordance with the Company's payroll policies in
effect from time to time. The Board will review the Executive's compensation
annually to consider possible upward adjustments (it being agreed that the base
salary shall not be reduced during the Initial Term). Such adjustments will
always be at least equal to (a) those of similarly compensated executives, (b)
the annual cost of living index as published in the Southwest Edition of the
Wall Street Journal, or (c) ten percent (10%) per annum, whichever is greatest.
Additionally, if the Company's common stock or other securities are ever
registered on or offered for sale to the public on a nationally recognized
securities exchange, then Executive's base salary shall be increased to an
amount comparable to executives with publicly traded companies who hold a
position similar to that of Executive and with similar responsibilities to those
of Executive.
B. Executive shall also be entitled to a bonus, from time to time,
depending upon Executive's performance and achievement of specific goals, which
bonuses shall be payable in cash, options, and common stock of the Company. A
bonus of up to fifty percent (50%) of Executive's base salary may be determined
by the President and Chief Executive Officer, and any bonus in excess of fifty
percent (50%) of Executive's base salary shall be determined only by authority
of the Board.
C. Executive shall be authorized to incur, and shall be entitled to
receive prompt reimbursement for, all reasonable expenses incurred by Executive
in performing his duties and carrying out the responsibilities hereunder,
including business meals, entertainment, and travel expenses, provided that
Executive complies with all of the applicable policies, practices and procedures
of the Company related to the submission of expense reports, receipts, or
similar documentation of those expenses. The Company shall either pay directly,
or reimburse Executive for such expenses in accordance with Company policies.
Executive shall be entitled to a corporate credit card issued by the Company,
which shall be used for the sole purpose of incurring the expenses referenced in
this Paragraph C.
D. In addition to the amounts set forth above, for the term of
Executive's employment, the Company agrees to provide to Executive, at the
Company's sole expense, health insurance coverage for Executive (with any such
coverage for Executive's dependents, if desired by Executive, to be provided at
the Company's sole expense) under the health insurance plan maintained by the
Company from time to time. The Company shall also provide, at the Company's sole
expense, life insurance coverage on Executive's life in a face amount at least
equal to five (5) times Executive's base salary, and shall also provide
Executive with both long term and short term disability insurance for Executive
in amounts and under terms acceptable to the Company, at the Company's sole cost
and expense. Also, Executive shall have the option to participate in any salary
deferral, 401(k), SEP, or savings plan or other similar plan which the Company
or its successors or assigns makes available to its employees. Executive shall
be required to comply with the conditions attendant to coverage by such plans
and shall comply with and be entitled to benefits only in accordance with the
terms and conditions of such plans as they may be amended from time to time.
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E. Executive shall also be entitled to purchase up to 500,000 shares of
the Company's common stock at a price of $0.90 per share, as evidenced by that
certain Stock Option Agreement, of even date herewith, between the Company and
Executive (the "Option Agreement").
F. Executive shall also receive an automobile allowance of $1,200.00
per month, payable by the Company on or before the first (1st) day of each
month, which may be used by Executive towards the purchase or lease of an
automobile, which automobile may be used by Executive for both business purposes
and for Executive's personal use. Executive shall maintain insurance on such
vehicle at Executive's cost and expense in amounts and coverage acceptable to
Company.
G. The Company shall also pay for Executive's membership at a health
club of Executive's choice, such amounts not to exceed $5,000.00 for initial
club membership fee, and not to exceed $500.00 per month for membership dues
(provided that if Executive is, as of the Effective Date, already a member of a
health club, then the Company shall only be obligated to pay Executive's monthly
dues at such club, and shall not be obligated to pay for a new membership for
Executive at a new or different club).
H. During the Term, Executive shall be entitled to four (4) weeks of
annual vacation time determined in accordance with the vacation policies of the
Company from time to time in effect.
I. No additional compensation (above the compensation referred to in
this Section 5) shall be due or payable by Company to Executive under this
Agreement, but nothing in this Agreement shall prohibit the Company from paying
Executive any additional amount as a bonus or otherwise, as the Company may
determine from time to time.
6. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF EXECUTIVE
A. Executive covenants, agrees, and promises that during the Term: (a)
except as permitted under this Agreement, Executive will not engage, directly or
indirectly, in any business other than the business of the Company, except at
the direction of or with the prior written approval of the Company; (b)
Executive will truthfully and accurately make, maintain, and preserve all
records and reports that the Company may from time to time request or require;
(c) Executive will fully account for all money, records, goods, wares,
merchandise, and other property belonging to the Company and/or to the Company's
clients of which Executive has custody, and will pay over and/or deliver same
promptly whenever and however Executive may be directed to do so; (d) Executive
will (i) obey all rules, regulations, and special instructions applicable to him
and (ii) be loyal and faithful to the Company at all times; and (e) Executive
agrees that upon termination of his employment hereunder for any reason he will
immediately surrender and turn over to the Company all books, records, forms,
mailing lists, client lists, potential client lists, specifications, formulae,
data, processes, papers, and writings related to the Company's business and all
other property belonging to the Company together with, except as hereinafter set
forth, all copies of the foregoing, it being understood and agreed that the same
are the Company's sole property.
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B. Executive hereby represents and warrants to Company that (a)
Executive is experienced in the subject matter of this Agreement and fully
competent to exercise and discharge his duties and obligations under this
Agreement; (b) Executive has all requisite licenses and permits, if any,
required to perform his duties and obligations under this Agreement; and (c) the
execution of this Agreement by Executive does not violate the terms or
conditions of any prior employment agreements to which Executive has been a
party, and at the time of execution of this Agreement, Executive is not a party
to any other employment or consulting agreement.
7. TERMINATION
A. The employment of Executive may be terminated upon the occurrence of
any one of the following events:
(a) BUSINESS REASON.
(i) The Company MAY NOT terminate Executive at any
time prior to the expiration of the Initial Term other than for Cause
(as defined in Paragraph 7.A(b)). From and after the expiration of the
Initial Term, the Company may, at its election, and for any reason
(i.e., any lawful reason other than Cause) and effective immediately
(or such longer period as determined by the Company in its sole
discretion), may terminate this Agreement and Executive's employment
with the Company hereunder upon written notice to Executive.
(ii) Executive, effective no less than sixty (60)
days after written notice thereof to the Company, may resign his
employment with the Company, with or without cause (e.g., Executive may
resign his employment with the Company and terminate this Agreement if
the Contemplated Transaction is not consummated within one hundred
eighty (180) days from the Effective Date).
(b) WITH CAUSE. The Company may, upon written notice effective
immediately, terminate the employment of Executive at any time during the Term
for "Cause." For purposes of this Agreement, "Cause" shall mean the following:
(i) if Executive should become Disabled (hereafter defined) for a period of one
hundred twenty (120) days during any twelve (12) month period, whether or not
such days are consecutive (as used herein, "Disabled" shall mean the inability
of Executive, on account of a mental, physical, or other condition, to perform
his normal job functions as determined by at least two of three medical
physicians or by agreement of the Company and Executive or his designee (if the
determination is to be made by medical physicians, the Executive or his designee
shall appoint one such physician, the Company shall appoint one, and the two so
appointed shall appoint the third medical physician); (ii) if Executive should
commit intentional misconduct in connection with the performance of any of
Executive's duties, including, without limitation, (1) misappropriation of funds
or property of the Company, or of any affiliate of the Company, (2) securing or
attempting to secure personally any profit in connection with any transaction
entered into on behalf of the Company or of any affiliate of the Company, or (3)
making any misrepresentation to the Company or any affiliate of the Company; or
(iii) if Executive deliberately and intentionally continues to fail to
substantially perform his duties and responsibilities hereunder (except by
reason of Executive's incapacity due to physical or mental illness or injury)
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for a period of thirty (30) days after the Board has delivered to Executive a
written demand for substantial performance hereunder which specifically
identifies the basis for the Board's determination that the Executive has not
substantially performed his duties and responsibilities hereunder, such period
being referred to as the "Grace Period"; provided, however, for the purposes of
this Section 7.A(b)(iii), the Company shall not have Cause to terminate
Executive unless (1) at a meeting of the Board called and held following the
Grace Period in the city in which the Company's principal executive offices are
located of which Executive was given not less than ten (10) business days' prior
written notice and at which Executive was afforded the opportunity to be
represented by counsel, appear and be heard, a majority of the Board shall adopt
a written resolution which (A) sets forth the determination of a majority of the
Board that Executive has failed to substantially perform his duties and
responsibilities hereunder (except by reason of his incapacity due to physical
or mental illness or injury) and such failure has continued past the Grace
Period, and (B) specifically identifies the bases for that determination, and
(2) the Company, at the written direction of a majority of the Board (excluding
Executive if Executive is a member of the Board), shall deliver to Executive a
notice of termination for Cause to which a copy of the aforesaid Board
resolution, certified as being true and correct by the secretary or any
assistant secretary of the Company, is attached. For the purposes of this
Section 7.A(b)(iii), no act or failure to act on the part of Executive shall be
considered "deliberate and intentional" unless it is taken or omitted to be
taken by Executive in bad faith or without a reasonable belief that Executive's
act or omission was in the best interest of the Company. If Executive shall be a
member of the Board, then Executive shall not participate in any determination
of the Board described in this Section 7.A(b) and the majority of the Board
shall be determined from those members of the Board participating in such
determination.
(c) DEATH OF EXECUTIVE. This Agreement will terminate
automatically on the death of the Executive.
(d) RESIGNATION FOR "GOOD REASON" OR "CHANGE-OF-CONTROL."
"Good Reason" is defined in this Agreement to mean the Company's failure to
comply with a material portion of this Agreement, which failure has not been by
the Company within thirty (30) days after receipt by the Company of written
notice of such failure by Executive. "Change of Control," as used in this
Agreement, shall mean: (a) a change in the Board such that the persons who were
directors at the beginning of any two (2) year period (and any new director
whose election was approved by at least two-thirds of the directors who either
were directors at the beginning of the period or whose election was so approved)
cease to constitute a majority of the Board, (b) other than the Contemplated
Transaction (hereafter defined), a re-organization, merger, or consolidation of
the Company with or into another entity where those persons who were in control
of the Company immediately prior to the consummation of such transaction are no
longer in control of the Company (or any other entity that is the survivor of
such transaction) immediately subsequent to the consummation of such
transaction, or (c) other than the Contemplated Transaction, the transfer, sale,
exchange or conveyance (whether in one transaction or in a series of related
transactions) of more than fifty percent (50%) of the voting stock of the
Company. With respect to a resignation for Good Reason, Executive shall have the
right, at his sole discretion, to resign by delivering written notice of such
resignation to the Company within sixty (60) days of an event constituting Good
Reason, as defined above. With respect to a Change of Control, Executive shall
have the right at his sole discretion, for a period of six (6) months following
the Change of Control "event," to determine his compatibility or ability to
maintain (in his sole discretion) a good working relationship with the new
Board, shareholders, and/or organization (as applicable). The Executive may
exercise the right of resignation for any reason during a six (6) month period
following the Change of Control. For the purposes of the foregoing provisions of
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this Paragraph 7.A.(d), a person or group of persons "controls" an Entity if
such person or persons own, in the aggregate, directly, or indirectly, or has
the right to vote, more than fifty percent (50%) of the beneficial interests in
such entity or if, through other agreements (e.g., shareholders agreements) has
the right to direct the policies and/or business of such entity (and "control"
shall include control held indirectly through one or more tiers of subsidiary or
intervening entities [such as, by way of example only, corporations,
partnerships, trusts, or limited liability companies]). For the purposes of this
Agreement, the "Contemplated Transaction" shall mean the transaction or
transactions by which the Company causes the common stock of the Company (which
shall include the equity interests of any other corporation, partnership,
limited liability company, trust, or other entity that is successor to the
Company by merger, consolidation, or otherwise) to become "Publicly Traded". The
term "Publicly Traded" shall mean that the entity in question has become subject
to the reporting requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
(e) This Agreement shall be deemed terminated if Executive
forecloses upon certain security interests that may be granted to him by the
Company upon the occurrence of certain circumstances, all as more particularly
set forth in that certain Tri-Party Agreement, dated effective as of the
Effective Date, by and among, INTER ALIA, the Company and Executive (the
"Tri-Party Agreement"), strictly in accordance with the terms and provisions of
the Tri-Party Agreement. However, if Executive does in fact foreclose upon such
security interests in accordance with, and as more particularly set forth in,
the Tri-Party Agreement, then all of the EHI Parties, A. Xxxx Xxxxx ("Swift"),
and The Xxxxxx and Xxxx Xxxxxx Irrevocable Trust (the "Trust") shall be relieved
of and released from any further obligations any of such parties may have under
this Agreement, the Merger Agreement, the Tri-Party Agreement, the Post Closing
Agreement, the Purchase Notes, the Shareholders' Agreement, the Option
Agreement, any other employment agreements with any parties executed in
connection with the Merger, or any other instruments or agreements executed by
any of the EHI Parties, Swift, or the Trust in connection with, or pursuant to,
the Merger. Xxxxx may retain any of the Consideration paid and/or delivered to
him as of the effective date of such foreclosure/termination, however, but none
of the EHI Parties, Swift or the Trust shall have any further obligation to
Xxxxx for any unpaid Consideration that has not payable as of such date. By way
of example, the Company shall have no further obligation to pay any additional
amounts owing under any of the Purchase Notes that have not yet become due and
payable pursuant to the terms thereof as of the date of such foreclosure.
However, it is also agreed that Xxxxx shall not be required to return or repay
any of the Consideration that has already been paid to or received by Xxxxx
(e.g., to the extent Xxxxx may have already received payments under the Purchase
Notes, Xxxxx shall not be obligated to return any such amounts, nor shall Xxxxx
be obligated to return any of the EHI Common Stock received as part of the
Consideration upon the consummation of the Merger), and Executive shall also
retain the right to purchase any EHI Common Stock as to which his option has
vested as of the date of such foreclosure as set forth in the Option Agreement.
Additionally, if Executive does in fact foreclose upon such security interests
in accordance with, and as more particularly set forth in, the Tri-Party
Agreement, then the Company shall transfer to Executive the name "Excalibur
Steel," but both the Company and Executive may continue to operate businesses
under names that include "Excalibur" (e.g., the Company will not be required to
change its name as a result of such transfer).
B. In the event of the termination of the employment of Executive or
Executive's resignation, Executive shall be entitled to compensation under
Paragraph 5.A earned by him prior to the date of termination as provided herein.
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C. If DURING THE INITIAL TERM: (i) the Company terminates Executive's
employment for any reason OTHER THAN under Paragraphs 7.A(b)(ii) or (iii) (e.g.,
a termination under Section 7.A(a) (i)or 7.A(b)(i)); or (ii) Executive's
employment with the Company is terminated due to Executive's death under
Paragraph 7.A(c), then Executive (or his estate, spouse and/or dependents, as
applicable) shall be entitled to and shall receive, as his or its, or their sole
and exclusive remedy (Executive hereby waiving all other rights or remedies in
the event of such a termination), a severance payment equal to: (a) the benefits
to or for the benefit of Executive and Executive's family under Paragraph 5.D
and the automobile allowance under Paragraph 5.F. all for the balance of the
Initial Term; PLUS (b) the GREATER OF (I) Executive's base salary under
Paragraph 5.A for the balance of the Initial Term, or (II) Executive's then
applicable base salary under Paragraph 5.A for one (1) year, all of which shall
be paid monthly following the termination of employment for the balance of the
Initial Term or for such one (1) year period (as applicable).
D. If AFTER THE EXPIRATION OF THE INITIAL TERM: (i) the Company
terminates Executive's employment for any reason OTHER THAN under Paragraphs
7.A(b)(ii) or (iii) (e.g., a termination under Section 7.A(a)(i) or 7.A(b)(i));
or (ii) Executive's employment with the Company is terminated due to Executive's
death under Paragraph 7.A(c), then Executive (or his estate, spouse and/or
dependents, as applicable) shall be entitled to and shall receive, as his or
its, or their sole and exclusive remedy, a severance payment equal to
Executive's then applicable base salary under Paragraph 5.A for one (1) year,
all of which shall be paid monthly following the termination of employment for
such one (1) year period (as applicable).
E. If: (i) Executive resigns from his employment with the Company under
(or if this Agreement is terminated under, as applicable) Paragraphs 7.A(a)(ii),
or 7.A(e) at any time; or (ii) the Company terminates the employment of
Executive pursuant to Paragraphs 7.A(b)(ii) or (iii) at any time, then the
Company shall have the obligation to pay to Executive all amounts earned under
Paragraph 5.A prior to the termination of employment, but the Company shall have
no obligation to pay Executive any amount otherwise coming due and payable under
this Agreement after the date of such termination and Executive shall be
entitled to no other or further compensation as of the date of termination of
his employment or thereafter.
F. Additionally, if Executive resigns from his employment with the
Company under Paragraph 7.A(d) at any time, Executive shall be entitled to and
shall receive, as his sole and exclusive remedy (Executive hereby waiving all
other rights or remedies in the event of such a resignation), a severance
payment equal to (a) the benefits to or for the benefit of Executive and
Executive's family under Paragraph 5.D and the automobile allowance under
Paragraph 5.F. all for the balance of the Initial Term (if such resignation
occurs during the Initial Term); PLUS (b) the GREATER OF (I) Executive's base
salary under Paragraph 5.A for the balance of the Initial Term (if such
resignation occurs during the Initial Term), or (II) Executive's then applicable
base salary under Paragraph 5.A for two (2) years, which shall be paid monthly
following such resignation for the balance of the Initial Term, or during such
two (2) year period (as applicable).
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8. CONFIDENTIAL INFORMATION; IDEAS
A. Executive acknowledges that in the course of his employment under
this Agreement, he will receive certain trade secrets, know-how, mailing lists,
clients lists, potential client lists, employee records, and other sensitive,
proprietary, or confidential information and knowledge concerning the business
of the Company, and/or affiliates of the Company (hereafter collectively
referred to as "Confidential Information") which the Company desires to protect.
Executive understands that such Information is sensitive, proprietary, or
confidential, and he agrees that he will not, at any time (and whether during or
after Executive's employment with the Company), reveal such Confidential
Information to anyone outside the Company. The term "Confidential Information,"
as used in this Agreement, shall not include information that (a) is already
known to Executive from sources other than the Company; (b) is or becomes
generally available to the public other than as a result of a disclosure by
Executive; (c) is disclosed to Executive by a person or entity who is not bound
by any agreement regarding the confidential nature of such information; or (d)
is required to be disclosed by law or by regulatory or judicial process. The
provisions of this Paragraph 8 shall survive any termination or expiration of
this Agreement, and the termination of Executive's employment with the Company
(for whatever cause or reason).
B. Executive agrees that all ideas, improvements, inventions,
discoveries, systems, techniques, formulas, devices, methods, processes,
programs, designs, models, prototypes, copyrightable works, mask works,
trademarks, service marks, trade dress, software programs, hardware
improvements, business slogans, and other things of value conceived, reduced to
practice or made or learned by Executive, either alone or with others, while
employed by the Company and for twelve (12) months thereafter that relate to the
Company's business (hereinafter collectively referred to as the "Ideas") belong
to and shall remain the sole and exclusive property of the Company forever.
Further, Executive agrees to promptly and fully disclose to the Company's
President such Ideas in writing. In addition, Executive agrees, without
additional compensation, to cooperate and do any and all lawful things requested
by Company necessary or useful to ensure that the ownership by the Company of
such Ideas is protected. This cooperation includes, but is not limited to,
executing all documents required by the Company, and otherwise assisting Company
to vest title of such Ideas in Company and to obtain, maintain and enforce for
Company's benefit, any patents, copyrights, mask work registration, trade and
service xxxx registrations, or other legal protection for any Ideas in any and
all countries, during or after employment with Company. Executive hereby assigns
to the Company all of the Company's right, title and interest in and to all such
Ideas and all patents, trademarks, copyrights, other registrations, and
applications which may be obtained as a result of the Ideas, throughout the
United States and all foreign countries. Executive agrees that no Ideas shall be
regarded as having been conceived, reduced to practice, made, or learned by
Executive prior to Executive's employment.
9. ARBITRATION
A. Any legal or equitable dispute or controversy arising under, out of,
or in connection with or in relation to this Agreement; or arising out of, or
related to the employment of Executive, the terms and conditions of employment,
or the termination of Executive by the Company (other than worker's compensation
claims), shall be resolved exclusively by binding arbitration. This agreement
applies to the following allegations, disputes, and claims for relief, but is
not limited to those listed: wrongful discharge under statutory law and common
law; employment discrimination based on federal, state, or local statute,
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ordinance, or governmental regulations; retaliatory discharge; compensation
disputes; tortious conduct; contractual violations; ERISA violations; FLSA (wage
and hour) violations; and other statutory and common law claims and disputes.
This provision shall apply to any such disputes or controversies involving
Executive and the Company and/or its shareholders, directors, officers,
managers, supervisors and other employees.
B. The arbitration proceedings shall be conducted in the city in which
Executive's employment is based (unless Executive and the Company agree to
another location) in accordance with the Employment Dispute Resolution Rules
("EDR Rules") of the American Arbitration Association ("AAA") in effect at the
time a demand for arbitration is made. Executive is entitled to representation
by an attorney throughout the proceedings at Executive's own expense; however,
the Company agrees not to use an attorney in the arbitration hearing if
Executive agrees to the same.
C. One arbitrator shall be used and shall be chosen by mutual agreement
of the parties. If, within thirty (30) days after either party notifies the
other party of an arbitrable dispute, no arbitrator has been chosen, an
arbitrator shall be chosen by AAA pursuant to its EDR Rules. The arbitrator must
be an attorney licensed to practice law in the jurisdiction in which the
arbitration is to be conducted. The arbitrator shall be required to determine
the rights of the parties in accordance with federal law and the state law of
the forum with the most substantial relationship to the conduct at issue. The
arbitrator shall have the authority to consider and grant a motion to dismiss
and motion for summary judgment applying the standards governing such motions
under the Federal Rules of Civil Procedure. The arbitrator shall coordinate, and
limit as appropriate, all pre-trial arbitral discovery, which shall include
document production, information requests, and depositions. The arbitrator shall
issue a written decision and award, which shall explain the basis of the
decision. The decision and award shall be exclusive, final, and binding on both
Executive and the Company, and all heirs, executors, administrators, successors,
and assigns. The costs and expenses of the arbitration shall be borne by the
Company, except that if Executive initiates the arbitration, Executive will pay
up to $150 towards the administrative fees charged by AAA, except that this
requirement will be waived upon a showing of financial hardship under the same
standards used in federal district court.
D. Both Executive and the Company understand that, by agreeing to
arbitration, they are agreeing to substitute one legitimate dispute resolution
forum (arbitration) for another (litigation), and thereby are waiving the right
to have disputes resolved in court. However, Company and Executive have the
right to pursue injunctive relief for breach of paragraph 4 of this Agreement
through the judicial process without waiving the right to arbitration. This
substitution involves no surrender, by Executive or the Company, of any
statutory or common law benefit, protection, or defense.
E. Any suit, action or proceeding to enforce any award or decision in
any arbitration conducted pursuant to this Paragraph 9 shall be brought in the
courts in Tulsa County, Oklahoma, and each Party submits to the jurisdiction of
such courts for the purposes of any such suit, action or proceeding. Each Party
irrevocably waives any objections which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in the courts located in Tulsa County, Oklahoma, and
hereby waives any claim that such suit, action or proceeding brought in any such
courts has been brought in an inconvenient forum.
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10. RESTRICTIVE COVENANTS
A. As an inducement for Company's agreement to employ Executive, to
provide Executive with trade secrets and other Confidential Information, and to
enter into this Agreement, Executive hereby agrees that during the Term, and for
a period of twenty-four (24) full calendar months after (i) the expiration of
the Term (as the same may be extended) or (ii) the termination of this Agreement
or of Executive's employment with the Company for whatever reason or cause
(whichever may occur later), or for the maximum period of time permitted by law,
whichever is less, Executive shall not, whether for profit or not, whether on
his own behalf or on behalf of any person or firm in any capacity whatsoever,
engage in the "Prohibited Activity" (as hereinafter defined) within the
"Relevant Geographical Area" (as hereinafter defined). Serving as a partner,
member, trustee, receiver, custodian, manager, stockholder, officer, director,
owner, joint venturer, associate, employee, consultant, adviser or in any other
capacity whatsoever with respect to any person or firm engaged in the Prohibited
Activity within the Relevant Geographical Area shall be conclusively deemed
engagement in the Prohibited Activity within the Relevant Geographical Area
regardless of whether such service is for profit or not or whether such person
or firm engages in the Prohibited Activity for profit or not. For purposes
hereof, the phrase "Prohibited Activity" shall mean, directly or indirectly: (i)
soliciting the Company's customers; or (ii) working independently or for any
person or firm involved in any business engaged in by the Company and/or by any
of its subsidiaries or affiliates during the Term, including, without
limitation, steel fabrication and the design and manufacture of aerospace
products. For purposes hereof, the phrase "Relevant Geographical Area" shall
mean the area within political boundaries of the State of Oklahoma, provided,
however, if the aforesaid geographic area exceeds the maximum geographic area
permitted by law or for any other reason does not state a geographic area within
which the provisions of this Paragraph 10 are enforceable, then the provisions
of this Paragraph 10 shall apply within the maximum geographic area permitted by
law in which such provisions are enforceable.
B. As an inducement for Company's agreement to employ Executive, to
provide Executive with trade secrets and other Confidential Information, and to
enter into this Agreement, Executive hereby agrees that during the Term, and for
a period of thirty-six (36) full calendar months after: (i) the expiration of
the Term (as the same may be extended) or (ii) the termination of Executive's
employment with the Company for whatever reason or cause (whichever may occur
later), or for the maximum period of time permitted by law, whichever is less,
Executive shall not induce or attempt to influence or persuade any employee of
Company or any of its affiliates to terminate his or her employment with the
Company (or with the applicable affiliate).
C. In addition to all other remedies at law and in equity which the
Company might have for Executive's breach of the covenants set forth in this
Paragraph 10, the Parties agree that in the event of any breach or attempted or
threatened breach of any such covenant, the Company shall also have the right to
obtain a temporary restraining order, temporary injunction and permanent
injunction against Executive prohibiting such breach or attempted or threatened
breach, merely by proving the existence of such breach, or attempted or
threatened breach (by a preponderance of the evidence) and without the necessity
of proving either inadequacy of legal remedy or irreparable harm.
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D. Executive's covenants set forth in this Paragraph 10 are independent
and severable from every other provision of this Agreement; and the breach of
any other provision of this Agreement by the Company or any other agreement
between Executive and the Company shall not affect the validity of the
provisions of this Paragraph 10 or constitute a defense of Executive in any suit
or action brought by the Company to enforce the provisions of this Paragraph 10
or to seek any relief from Executive's breach thereof.
E. Each of the Parties agree and stipulate that: (i) the agreements and
covenants not to compete contained in this Paragraph 10 are fair and reasonable
in light of all of the facts and circumstances of the relationship between
Executive and the Company; (ii) the consideration provided by the Company is not
illusory; and (iii) the consideration given by the Company under this Agreement
gives rise to the Company's interest in restraining and prohibiting Executive
from engaging in the Prohibited Activity within the Relevant Geographical Area
as provided under this Paragraph 10 and the covenants not to engage in the
Prohibited Activity within the Relevant Geographical Area pursuant to this
Paragraph 10 are designed to enforce such consideration. The Parties are aware,
however, that in certain circumstances, courts have refused to enforce certain
agreements not to compete. Therefore, in furtherance of and not in derogation of
the provisions of the preceding sentence, the Parties agree that if a court
should decline to enforce the any of the provisions of this Paragraph 10, such
affected provisions shall be deemed to be modified to restrict competition with
the Company to the maximum extent, in both time and geography, which the court
shall find enforceable. The provisions of this Paragraph 10 shall survive any
termination or expiration of this Agreement, and the termination of Executive's
employment with the Company (for whatever cause or reason).
11. NOTICE
Any and all notices permitted or required to be given under the terms
of this Agreement shall be in writing and may be served by certified mail, with
return receipt requested and proper postage prepaid, addressed to the Party to
be notified at the appropriate address specified below, or by delivering the
same in person to such Party, or by prepaid telegram addressed to the Party to
be notified at said address, or by Federal Express or another nationally
recognized courier service addressed to the Party to be notified at said
address. Notice given by certified mail as aforesaid shall be deemed given and
received three (3) days after mailing, whether or not actually received. Any
notice given in any other above authorized manner shall be deemed received upon
actual receipt; but shall also be deemed received upon attempted delivery if
such delivery is not accepted. The addresses of the parties are as follows:
If to the Company: Excalibur Holdings, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
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With a copy (which Xxxxxx and Xxxxx, L.L.P.
shall not constitute notice) 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
to: Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
If to Executive: Xxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
With a copy (which Xxxxx & Page, L.L.P.
shall not constitute notice) 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
to: Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Page
The address of any Party may be changed by notice given in the manner
provided in this Paragraph.
12. GENERAL PROVISIONS
A. This Agreement may not be assigned by Executive. This Agreement may
be assigned in whole or in part by the Company. Executive expressly agrees to
honor and accept such assignment or other transfer and, upon the consummation
thereof, to attorn to the Company's assignee and to perform his duties and
obligations hereunder for the benefit of the Company's assignee as if the
Company's assignee were the Company named herein. Executive further agrees that,
upon the consummation of such assignment or other transfer, all references
herein to the Company shall become and shall be deemed to be references to the
Company's assignee and the Company shall be relieved of all obligations
hereunder.
B. This Agreement shall be governed by, construed, and enforced in
accordance with the internal, local laws of the State of Oklahoma (without
regard to conflicts of law rules).
C. This Agreement contains the entire agreement between the Parties
relative to the subject matter hereof and supersedes and replaces all prior
communications and agreements (oral or written) between Executive and the
Company. No variation, modification, or change of this Agreement shall be
binding upon either Party hereto unless set forth in a document duly executed by
both Parties.
D. This Agreement is intended to express the Parties' mutual intent,
and irrespective of the Party preparing this document, no rule of construction
shall be applied against such Party, as both Parties have actively participated
in the preparation and negotiation of this Agreement.
E. No consent or waiver, express or implied, by a Party to or of any
breach or default by the other Party in the performance by the other Party of
its obligations under this Agreement shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other Party of the same or any other obligation of such Party under this
Agreement (e.g., any waiver or consent from the Company with respect to any term
or provisions of this Agreement or any other aspect of Executive's conduct or
13
employment shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of frequency given,
to be a further or continuing waiver or consent and the failure or delay of the
Company at any time or times to require performance of, or to exercise any of
its powers, rights, or remedies with respect to any term or provision of this
Agreement or any other aspect of Executive's conduct or employment in no manner
[except as otherwise expressly provided herein] shall affect the Company's right
at a later time to enforce any such term or provision). Failure on either
Party's part to complain of any act or failure to act of the other Party or to
declare the other Party in default, irrespective of how long such failure or
default continues, shall not constitute a waiver by such Party of such Party's
rights under this Agreement.
F. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
G. This Agreement shall inure to the benefit of and be binding upon the
undersigned Parties and their respective permitted successors and permitted
assigns. Whenever, in this instrument, a reference to any Party is made, such
reference shall be deemed to include a reference to such Party's permitted
successors and permitted assigns; however, neither this Paragraph 12.G nor any
other portion of this Agreement shall be interpreted to constitute a consent to
any assignment or other transfer of this Agreement or any part hereof other than
pursuant to and in accordance with this Agreement's other provisions.
H. The prevailing Party in any dispute between the Parties to this
Agreement, arising out of the interpretation, application, or enforcement of any
provision of this Agreement, shall be entitled to recover all of its reasonable
attorneys' fees and costs, whether suit be filed or not, including, without
limitation, costs and attorneys' fees related to or arising out of any
arbitration or trial or appellate proceedings or petition for review before any
other court.
I. All initially capitalized, undefined terms used in this Agreement
shall have the meanings ascribed to such terms in the Merger Agreement.
EXECUTED, IN MULTIPLE COUNTERPARTS, each of which shall have
the force and effect of an original, on the Effective Date.
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EXCALIBUR HOLDINGS, INC., a Texas corporation
By: /S/ Xxxxxxx X.X. Xxxxxx /S/ XXXXXX XXXXX
--------------------------------------- ------------------------------
Xxxxxxx X.X. Xxxxxx XXXXXX XXXXX
President and Chief Executive Officer
"Company" "Executive"
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