EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-competition Agreement (the "Agreement"),
effective as of August 1, 1998 (the "Effective Date"), is by and
between Xxxxxx Xxxxxxx International Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx (Employee").
RECITALS
WHEREAS, the Company desires to engage Employee as its Executive
Vice President in charge of the Company's Mergers and Acquisitions
Department and in other related capacities, and Employee desires to
accept such engagement.
Therefore, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each,
the Company and Employee hereby agree as follows:
AGREEMENTS
I. Employment and Duties.
(a) The Company hereby employs Employee as Executive Vice
President-Mergers and Acquisitions. As such, Employee shall have
responsibility for identifying, evaluating and, with the approval of
the Company's Board of Directors, negotiating the acquisition of those
businesses within the oil and gas industry which would complement the
existing business activities carried on by the Company and its various
subsidiaries. In addition, Employee shall be responsible for
maintaining communications with, and making presentations to,
investment bankers, fund managers, analysts and other individuals in
the financial community who might invest in, or recommend that others
invest in, the Company's common stock. Employee shall also oversee
the entry into the U.S. market of the products produced by the
Company's subsidiary, Brissonneau et Xxxx Marine SA. Employee shall
have such additional responsibilities, duties and authorities as may
be assigned to him by the Company from time to time. Employee will
report to the Chairman of the Board of Directors of the Company.
Employee hereby accepts this employment upon the terms and conditions
herein contained and agrees to devote his time, attention and best
efforts to promote and further the business of the Company.
(a) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(a) Employee shall not, during the term of his employment
hereunder, be engaged in any other business activity pursued for gain,
profit or other pecuniary advantage if such activity interferes with
Employee's duties and responsibilities hereunder. However, the
foregoing limitations shall not be construed
as prohibiting Employee from making personal investments in such form
or manner as will neither require his services in the operation or
affairs of the enterprises in which such investments are made nor
violate the terms of paragraph 3 hereof.
1. Compensation. For all services rendered by Employee, the
Company shall compensate Employee as follows:
(a) Base Salary. Beginning on the Effective Date, the base
salary payable to Employee shall be $175,000.00 per year, payable on a
regular basis in accordance with the Company's standard payroll
procedures. On at least an annual basis, the Compensation Committee
of the Board of Directors of the Company (the "Committee") will review
Employee's performance and may recommend an increase to such base
salary, or the payment of a bonus, if, in the Committee's discretion,
any such salary increase or bonus payment is warranted.
(a) Stock Options. The Company shall cause to be granted to
Employee nonqualified stock options to purchase 70,000 shares of the
common stock of the Company, at an exercise price equal to the closing
sale price per share of the Company's common stock on the date that
the Compensation Committee of the Company's Board of Directors
approves the grant of options described herein to Employee.
Employee's stock options shall be exercisable, on a cumulative basis,
as follows:
Exercise Date Total Shares Exercisable
1st Anniversary of Effective Date 20,000
2nd Anniversary of Effective Date 45,000
3rd Anniversary of Effective Date 70,000
All stock options granted to Employee shall expire upon the
earlier of the termination of Employee's employment with the
Company or 5:00 p.m. CST, September 11, 2008, unless sooner
exercised by Employee. The provisions of the Company's Amended
and Restated 1997 Equity Incentive Plan shall control all other
aspects of the stock options to be granted to Employee hereunder.
If, during the term of this Agreement or any extension
thereof, any one individual or entity, other than X. X. Xxxxxxxx
or any entity in which X. X. Xxxxxxxx has a fifty percent (50%)
or greater ownership interest, acquires ownership of more than
fifty percent (50%) of the Company's outstanding common stock,
whether by purchase, merger or any other form of business
combination (a "Change in Control"), then, in that event, the
stock options granted to Employee pursuant to the provisions of
this subparagraph 2(b) which are unexercised at
the date of such Change in Control shall automatically double and
shall become immediately exercisable by Employee. In all other
events, the preceding paragraph of this subparagraph 2(b) shall
control the timing of the exercise of Employee's stock options
granted herein.
The representation of the Company to Employee that the
Company will grant options to purchase shares of the Company's
common stock in the event of his continued employment with the
Company is not to be construed as a guaranty by the Company of
the continued employment of Employee, nor is it to be construed
that Employee has any rights in or to any unissued shares of the
Company's common stock. Upon the termination of Employee's
employment, for any reason, by the Company or voluntarily by
Employee, Employee shall have no rights in or to any shares of
the common stock of the Company remaining unissued to Employee
pursuant to options to be granted under this subparagraph 2(b).
(a) Executive Perquisites, Benefits and Other Compensation.
Employee shall be entitled to receive additional benefits and
compensation from the Company in such form and to such extent as
specified below.
(1) Reimbursement for all business travel and other
out-of-pocket expenses (including those costs to maintain
any professional certifications held or obtained by
Employee) reasonably incurred by Employee in the performance
of his services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in
reasonable detail by Employee upon submission of any request
for reimbursement and in a format and manner consistent with
the Company's expense reporting policy.
(2) Two (2) weeks of paid vacation per year following
the first anniversary of the Effective Date.
(3) The Company shall provide Employee with a leased
vehicle of Employee's reasonable choice having a maximum
monthly rental of $500.00, plus insurance and normal
maintenance.
(4) The Company shall provide Employee with other
executive perquisites as may be available to or deemed
appropriate for Employee by the Board of Directors or the
Committee and participation in all other Company-wide
employee benefits as may be adopted from time to time by the
Company, including, but not limited to, the Company's
current medical and dental insurance program and 401(k)
profit sharing plan.
1. Non-competition Agreement.
(a) Employee recognizes that the willingness of the Company to
enter into this Agreement is based in material part on Employee's
agreement to the provisions of this paragraph 3, and that Employee's
breach of the provisions of this paragraph could materially damage the
Company, and its Affiliates. For purposes of this Agreement, the term
"Affiliate" shall mean an entity which, directly or indirectly,
controls, is controlled by, or is under common control with the
Company (the Company and its Affiliates are hereinafter collectively
referred to as the "Affiliates" and individually as an "Affiliate").
Therefore, in consideration of the benefits to be received by Employee
as a result of his employment with the Company, Employee agrees that
Employee shall not, for a period of two (2) years immediately
following the termination of this Agreement, for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership,
corporation or business of whatever nature:
(1) contact any customer of any Affiliate or other
person for the purpose of inducing or attempting to induce
such customer or other person to cease doing business with
any Affiliate;
(2) induce or attempt to induce any agent or employee
of any Affiliate to terminate employment with an Affiliate
or to commence work with any competitor of any Affiliate;
(3) call on, solicit, attempt to obtain, accept, or in
any way secure business from any of the customers of any
Affiliate, nor, directly or indirectly, aid or assist any
other person, firm or corporation in the solicitation of
such customer; and
(4) engage, as an officer, director, shareholder,
owner, partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant
or advisor, or as a sales representative, in any business
selling any products or services in direct competition with
any Affiliate within the United States, Canada or France.
(a) Because of the difficulty of measuring economic losses to
the Affiliates as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be caused
to the Affiliates for which they would have no other adequate remedy,
Employee agrees that the foregoing covenant may be enforced by the
Affiliates, or any of them, in the event of breach by him, by
injunctions and restraining orders without the necessity of posting
any bond or other security therefor.
(a) The covenants in this paragraph 3 are severable and
separate, and the unenforceability of any specific covenant shall not
affect the provisions of any other covenant. Moreover, in the event
any court of competent jurisdiction shall
determine that any restrictions set forth in this paragraph 3 are
unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which the court deems
reasonable, and this Agreement shall thereby be reformed.
(a) Each of the covenants in this paragraph 3 shall be construed
as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of Employee against
the Company or any Affiliate, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company or any Affiliate of such covenants.
1. Term; Termination; Rights on Termination.
(a) The term of this Agreement shall begin on the Effective Date
and continue for a period of two (2) years unless earlier terminated
by either party. At any time after the commencement of employment,
the Company or Employee may, at the will of either, for any reason,
terminate this Agreement and Employee's employment, effective
immediately. At the end of the initial two (2) year term, this
Agreement shall automatically continue for an additional two (2) years
pursuant to the same terms and conditions.
(a) Upon termination of this Agreement by the Company for any
reason other than Cause, Employee shall be entitled to receive all
compensation earned and all benefits and reimbursements due through
the effective date of termination, plus one (1) year base salary as
the same may have been increased by the Committee from time to time.
(a) Upon the termination of this Agreement by the Company or any
successor thereto upon a Change in Control for any reason other than
Cause, Employee shall be entitled to receive all compensation earned
and all benefits and reimbursements due through the effective date of
termination, plus three (3) years base salary as the same may have
been increased by the Committee from time to time.
(a) Upon termination of this Agreement by the Company or any
successor thereto for Cause, or by the Employee for any reason,
Employee shall be entitled to receive all compensation earned and all
benefits and reimbursements due through the effective date of
termination.
(a) For purposes of this Agreement "Cause" is defined as (i) an
act or acts of personal dishonesty taken by Employee and intended to
result in substantial personal enrichment of Employee at the expense
of the Company, (ii) repeated violations of Employee of Employee's
obligations under paragraph 1 hereof and which are not remedied in a
reasonable period of time after receipt of written notice by Employee
from the Company, or (iii) the conviction of Employee of a felony.
(a) Upon termination of this Agreement by either party for any
reason, all other rights and obligations of the Company and Employee
under this Agreement shall cease as of the effective date of
termination, except that Employee's obligations under paragraphs 3, 5,
6, 7 and 8 herein shall survive such termination in accordance with
their terms.
1. Return of Company Property. All records, designs, patents,
business plans, financial statements, manuals, memoranda, lists and
other property delivered to or compiled by Employee by or on behalf of
the Company or any Affiliate or the representatives, vendors or
customers thereof which pertain to the business of the Company or any
Affiliate shall be and remain the property of the Company or an
Affiliate, as the case may be, and be subject at all times to the
discretion and control thereof. Likewise, all correspondence,
reports, records, charts, advertising materials and other similar data
pertaining to the business, activities or future plans of the Company
or of any Affiliate which are collected by Employee shall be delivered
promptly to the Company without request by it upon termination of
Employee's employment.
1. Inventions. Employee shall disclose promptly to the Company
any and all significant conceptions and ideas for inventions,
improvements and valuable discoveries, whether patentable or not,
which are conceived or made by Employee, solely or jointly with
another, during the period of employment or within one (1) year
thereafter, and which are directly related to the business or
activities of the Company or any Affiliate and which Employee
conceives as a result of his employment by the Company. Employee
hereby assigns and agrees to assign all his interests therein to the
Company or its nominee. Whenever requested to do so by the Company,
Employee shall execute any and all applications, assignments or other
instruments that the Company shall deem necessary to apply for and
obtain Letters Patent of the United States or any foreign country or
to otherwise protect the Company's interest therein.
1. Confidentiality.
(a) Employee acknowledges and agrees that all Confidential
Information (as defined below) of the Company and any Affiliate is
confidential and a valuable, special, and unique asset of the Company
that gives the Company an advantage over its actual and potential,
current, and future competitors. Employee further acknowledges and
agrees that Employee owes the Company and any Affiliate a fiduciary
duty to preserve and protect all Confidential Information from
unauthorized disclosure or unauthorized use and unauthorized
disclosure or unauthorized use of the Company's or any Affiliate's
Confidential Information would irreparably injure the Company and its
Affiliates.
(a) Both during the term of Employee's employment and after the
termination of Employee's employment for any reason (including
wrongful termination), Employee shall hold all Confidential
Information in strict confidence, and
shall not use any Confidential Information except for the benefit of
the Company, in accordance with the duties assigned to Employee.
Employee shall not, at any time (either during or after the term of
Employee's employment), disclose any Confidential Information to any
person or entity (except other employees of the Company who have a
need to know the information in connection with the performance of
their employment duties), or copy, reproduce, modify, decompile, or
reverse engineer any Confidential Information, or remove any
Confidential Information from the Company's premises, without the
prior written consent of the Board of Directors of the Company, or
permit any other person to do so. Employee shall take reasonable
precautions to protect the physical security of all documents and
other material containing Confidential Information (regardless of the
medium on which the Confidential Information is stored). This
Agreement applies to all Confidential Information, whether now known
or later to become known to Employee.
(a) Upon the termination of Employee's employment with the
Company for any reason, and upon request of the Company at any other
time, Employee shall promptly surrender and deliver to the Company all
documents and other written material of any nature containing or
pertaining to any Confidential Information and shall not retain any
such document or other material. Within five days of any such
request, Employee shall certify to the Company in writing that all
such materials have been returned.
(a) As used in this Agreement, the term "Confidential
Information" shall mean any information or material known to or used
by or for the Company or any Affiliate (whether or not owned or
developed by the Company or any Affiliate and whether or not developed
by Employee) that is not generally known to the public. Confidential
Information includes, but is not limited to, the following: all trade
secrets of the Company or any Affiliate; all information that the
Company or any Affiliate has marked as confidential or has otherwise
described to Employee (either in writing or orally) as confidential;
all nonpublic information concerning the Company's or any Affiliate's
products, services, prospective products or services, research,
product designs, prices, discounts, costs, marketing plans, marketing
techniques, market studies, test data, customers, customer lists and
records, suppliers, and contracts; all Company and Affiliate business
records and plans; all Company and Affiliate personnel files; all
financial information of or concerning the Company or any Affiliate;
all information relating to operating system software, application
software, software and system methodology, hardware platforms,
technical information, inventions, computer programs and listings,
source codes, object codes, copyrights, patents, trademarks,
servicemarks and other intellectual property; all technical
specifications; any proprietary information belonging to the Company
or to any Affiliate; all computer hardware or software manual; all
training or instruction manuals; all data and all computer system
passwords and user codes.
1. No Prior Agreements. Employee hereby represents and
warrants to the Company that the execution of this Agreement by
Employee and his employment by the Company and the performance of his
duties hereunder will not
violate or be a breach of any agreement with a former employer, client
or any other person or entity. Further, Employee agrees to indemnify
the Company for any claim, including, but not limited to, attorneys'
fees and expenses of investigation, by any such third party that such
third party may now have or may hereafter come to have against the
Company based upon or arising out of any noncompetition agreement,
invention or secrecy agreement between Employee and such third party
which was in existence as of the date of this Agreement.
1. Assignment; Binding Effect. Employee understands that he
has been selected for employment by the Company on the basis of his
personal qualifications, experience and skills. Employee agrees,
therefore, that he cannot assign all or any portion of his performance
under this Agreement. Subject to the preceding two (2) sentences and
the express provisions of paragraph 10 below, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, legal representatives,
successors and assigns.
1. Complete Agreement. Except as expressly provided herein,
this Agreement is not a promise of future employment. Employee has no
oral understandings or agreements with the Company or any of its
officers, directors or representatives covering the same subject
matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement
between the Company and Employee and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented by
evidence of any prior or contemporaneous oral or written agreements.
This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and
Employee, and no term of this Agreement may be waived except by
writing signed by the party waiving the benefit of such term.
1. Notices. All notices or other documents required to be
delivered under this Agreement shall be given in writing and shall be
personally delivered, delivered by United States certified mail,
return-receipt requested, or by facsimile to the parties at the
addresses listed below. Such notices shall be effective as of the
time of delivery if personally delivered, as of the date of receipt as
referenced by the official receipt of the United States Postal Service
if delivered by certified mail, or as of the date and time of receipt
as reflected by facsimile acknowledgment. The addresses of the
parties are as follows:
To the Company: Xxxxxx Xxxxxxx
International Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: X. X. Xxxxxxxx, Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Employee: Xxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxx #00X
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
The addresses set forth above may be changed by either party upon
fifteen (15) days' prior notice given to the other party in accordance
with the provisions of this paragraph.
1. Severability; Headings. If any portion of this Agreement is
held invalid or inoperative, the other portions of this Agreement
shall be deemed valid and operative and, so far as is reasonable and
possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The paragraph headings herein
are for reference purposes only and are not intended in any way to
describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
1. Governing Law. This Agreement shall in all respects be
construed according to the laws of the State of Mississippi.
XXXXXX XXXXXXX INTERNATIONAL INC.
By:/s/ X. X. XXXXXXXX
X. X. Xxxxxxxx
Chairman
EMPLOYEE:
/s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
