Exhibit 10.4
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made effective as of June
1, 2006 by and between CYMRI, L.L.C., a Nevada limited liability company (the
"Employer"); XXXXX X. XXXXXX, an individual resident of Houston, Texas (the
"Executive"); and TRADESTAR SERVICES, INC., a Nevada corporation (the "Parent"),
joins in this Agreement solely for the purposes of Section 9.15. The Employer
and the Executive are each a "party" and together are "parties" to this
Agreement.
RECITALS
This Agreement is made in connection with the merger of THE CYMRI
CORPORATION, a Texas corporation ("Cymri"), with and into a wholly-owned
subsidiary (the "Buyer") of TRADESTAR SERVICES, INC., a Nevada corporation
("Parent"), with the Employer being the surviving entity of the merger, all
pursuant to that certain Agreement and Plan of Merger, dated of even date
herewith, by and among the Parent, the Buyer, Cymri, the Executive and the other
Cymri shareholders (the "Merger Agreement"). The Employer desires the
Executive's employment with the Employer, and the Executive wishes to accept
such employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the employment by the Employer, and of the compensation
and other remuneration to be paid by the Employer to the Executive for such
employment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Executive, the parties agree
as follows, and the Executive hereby accepts such employment subject to the
terms and conditions hereof:
1. Definitions.
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For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Affiliate" shall mean, (i) any Person which is under common control with,
or is controlled by, the Executive; and (ii) any of the following: (A) the
Executive's spouse, (B) the Executive's or the Executive's spouse's issue
(including by adoption), (C) an Affiliate of the Executive's spouse, or the
Executive's or the Executive's spouse's issue, (D) the Executive's estate and
any trust entirely for the benefit of any or more of the Executive, the
Executive's estate, the Executive's spouse and the Executive's or the
Executive's spouse's issue (including by adoption), and (E) any lineal ancestor
or descendant of the Executive. As used in this definition "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean the possession, directly or indirectly, of the power to direct or
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cause the direction of the management or policies of a Person, whether through
the ownership of securities or partnership or other ownership interests, by
contract or otherwise.
"Agreement" refers to this Employment Agreement, including all Exhibits
attached hereto, as amended from time to time.
"Basic Compensation" means Salary and Benefits.
"Benefits" is defined in Section 3.1(b).
"Board of Directors" refers to the Board of Directors of the Employer.
"Buyer" is defined in the recitals.
"Competing Business" is defined in Section 8.2(a)
"Confidential Information" means any and all:
(a) trade secrets (as defined herein) concerning the business and
affairs of the Employer Group, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned
research and development, current and planned manufacturing or distribution
methods and processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer
software and database technologies, systems, structures, and architectures
(and related formulae, compositions, processes, improvements, devices,
know-how, inventions, discoveries, concepts, ideas, designs, methods and
information), and any other information, however documented, that is a
trade secret;
(b) information concerning the business and affairs of the
Employer Group (which includes historical financial statements,
financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials), however
documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer Group containing or based, in
whole or in part, on any information included in the foregoing.
"Cymri" is defined in the recitals.
"Disability" is defined in Section 6.2.
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"Effective Date" is the date stated in the first paragraph of the
Agreement.
"Employee Invention" shall mean any idea, invention, technique,
modification, process, or improvement (whether patentable or not), any
industrial design (whether registerable or not), any mask work, however fixed or
encoded, that is suitable to be fixed, embedded or programmed in a semiconductor
product (whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business then
being conducted or proposed to be conducted by the Employer, and any such item
created by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"Employment Period" is the term of the Executive's employment under this
Agreement.
"Employer" is defined in the opening paragraph.
"Employer Group" means the Employer, the Parent and any entity that
directly or indirectly controls, is controlled by, or is under common control
with, the Employer or the Parent. As used in this definition "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of securities or partnership or other ownership
interests, by contract or otherwise.
"Executive" is defined in the opening paragraph.
"Fiscal Year" shall mean the Employer's fiscal year, which shall end on
December 31 of each year, or as changed from time to time.
"For Cause" is defined in Section 6.3.
"Merger Agreement" is defined in the recitals.
"Parent" is defined in the recitals.
"Person" is any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"PEI" is defined in Section 2.3.
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"Post-Employment Period" is defined in Section 8.2.
"Proprietary Items" is defined in Section 7.2(a)(iv).
"Salary" is defined in Section 3.1(a).
"trade secrets" shall mean the whole or any part of any scientific or
technical information, design, process, procedure, formula, or improvement that
has value and that the owner has taken measures to prevent from becoming
available to Persons other than those selected by the owner to have access for
limited purposes.
2. Employment Terms and Duties.
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2.1 Employment.
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The Employer hereby employs the Executive, and the Executive hereby
accepts employment by the Employer, upon the terms and conditions set forth
in this Agreement.
2.2 Term.
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Subject to the provisions of Section 6, the term of the Executive's
employment under this Agreement will commence upon the Effective Date and
end on June 30, 2009, unless sooner terminated pursuant to the terms of
this Agreement. This Agreement shall be automatically renewed on June 30,
2009 for additional one (1) month terms, unless either party provides
written notice of election not to renew, at least ninety (90) days before
the applicable termination date.
2.3 Duties.
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The Executive will have such duties as are assigned or delegated to
the Executive by the Board of Directors, and will initially serve as the
Employer's Chief Executive Officer and the Chief Executive Officer of
Petroleum Engineers, Inc., a Louisiana corporation ("PEI"). The Executive
may be removed from the office of Chief Executive Officer of PEI at any
time for any reason without termination of this Agreement. The Executive
will cooperate fully with the Board of Directors in the advancement of the
best interests of the Employer and the other members of the Employer Group.
Nothing in this Section 2.3, however, will prevent the Executive from
engaging in additional activities in connection with personal investments
and community affairs that are not inconsistent with the Executive's duties
under this Agreement. During the Employment Period, the Executive shall
serve, without any additional compensation, as a director of the Parent
and, upon the request of the Board of Directors of the Parent, as a
director of (i) Petroleum Engineers, Inc., a Louisiana corporation; (ii)
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Triumph Energy, Inc., a Louisiana corporation; (iii) Petroleum Engineers
(Venezuela), Inc., a Louisiana corporation; (iv) Petroleum Engineers
Brazil, Inc., a Louisiana corporation; (v) the Employer or (vi) any of
their affiliates.
3. Compensation.
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3.1 Basic Compensation.
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(a) Salary. The Executive will be paid an annual salary of
$180,000, subject to adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the
Employer's customary payroll practices, but no less frequently than
monthly. Effective on the first year anniversary of the Effective
Date, the Salary shall be reduced to an annual salary of $90,000.
Effective on the second year anniversary of the Effective Date, the
Salary shall be reduced to an annual salary of $24,000. Effective on
June 30, 2009, the Salary shall be reduced to an annual salary of $0.
(b) Benefits. The Executive will, during the Employment Period,
be permitted to participate in such pension, profit sharing, life
insurance, hospitalization, major medical, and other employee benefit
plans of the Employer that may be in effect from time to time, to the
extent the Executive is eligible under the terms of those plans
(collectively, the "Benefits").
(c) Hospitalization and Major Medical Insurance. The Employer
will provide hospitalization and major medical insurance, that may be
in effect from time to time for the employees of the Employer, to (i)
the Executive until June 30, 2009; and (ii) the Executive's spouse,
Xxxxx Xxxxxx, until July 31, 2015. The obligations of the Employer
under this Section 3.1(c) shall survive the termination of this
Executive's employment with the Employer except as otherwise provided
in Section 6.
3.2 Incentive Compensation.
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The Executive may be eligible to receive, as additional compensation
for the services to be rendered by the Executive pursuant to this
Agreement, bonuses as determined by the Board of Directors. In addition,
the Executive shall be entitled to participate in the stock option or stock
appreciation rights plans of the Employer in effect from time to time, and
shall receive grants thereunder upon the terms and conditions established
by the Board of Directors.
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4. Facilities and Expenses; Automobile.
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(a) Facilities and Expenses. The Employer will furnish the Executive
office space, equipment, supplies, and such other facilities and personnel
as the Employer deems necessary or appropriate for the performance of the
Executive's duties under this Agreement. The Employer will pay on behalf of
the Executive (or reimburse the Executive for) reasonable expenses incurred
by the Executive at the request of, or on behalf of, the Employer in the
performance of the Executive's duties pursuant to this Agreement, and in
accordance with the Employer's employment policies, including reasonable
and documented expenses incurred by the Executive in attending business
meetings, in appropriate business entertainment activities, and for
promotional expenses. The Executive must file expense reports, including
all supporting documentation, with respect to such expenses in accordance
with the Employer's policies then in effect.
(b) Automobile. Until June 30, 2009, the Employer shall pay or shall
reimburse the Executive for the amount of the monthly lease payment for an
automobile approved by the Employer for the Executive's business use;
provided however, that the Employer shall report as income to the Executive
any amounts required by law or the policies of the Employer for the
Executive's personal use of such automobile.
5. Vacations and Holidays.
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The Executive will be entitled to paid vacation each year in accordance
with the vacation policies of the Employer in effect for its employees from time
to time; provided, however, that Executive shall be entitled to not less than
four (4) weeks paid vacation. The Executive will also be entitled to the paid
holidays and other paid leave set forth in the Employer's policies.
6. Termination.
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6.1 Events of Termination.
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The Employment Period, the Executive's Basic Compensation, and any and
all other rights of the Executive under this Agreement or otherwise as an
employee of the Employer will terminate (except as otherwise provided in
this Section 6):
(a) upon the death of the Executive;
(b) upon the Disability of the Executive (as defined in Section
6.2) immediately upon notice from either party to the other;
(c) For Cause (as defined in Section 6.3), immediately upon
notice from the Employer to the Executive, or at such later time as
such notice may specify;
(d) upon the voluntary retirement from or voluntary termination
of employment by the Executive; or
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(e) upon termination by the Employer for any reason other than
those set forth in Section 6.1(a) through 6.1(d) above, subject to the
provisions of Section 6.4 below.
6.2 Definition of Disability.
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For purposes hereof, the term "Disability" shall have the same meaning
as the term "total and permanent disability" is defined in Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended.
6.3 Definition of For Cause.
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For purposes of Section 6.1, the phrase "For Cause" means: (a) the
appropriation (or attempted appropriation) of a material business
opportunity of any member of the Employer Group, including attempting to
secure or securing any personal profit in connection with any transaction
entered into on behalf of any member of the Employer Group; (b) the
misappropriation (or attempted misappropriation) of any of the funds or
property of any member of the Employer Group; (c) the conviction of, the
indictment for (or its procedural equivalent), or the entering of a guilty
plea or plea of no contest with respect to, a felony, or the equivalent
thereof; or (d) the conviction of or the entering of a guilty plea or plea
of no contest by the Executive by a court of competent jurisdiction of a
crime involving moral turpitude.
6.4 Termination Pay.
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Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Executive (or, in the event of his death, his
designated beneficiary as defined below) only such compensation as is
provided in this Section 6.4, and in lieu of all other amounts and in
settlement and complete release of all claims the Executive may have
against the Employer. For purposes of this Section 6.4, the Executive's
designated beneficiary will be such individual beneficiary or trust,
located at such address, as the Executive may designate by notice to the
Employer from time to time or, if the Executive fails to give notice to the
Employer of such a beneficiary, the Executive's estate. Notwithstanding the
preceding sentence, the Employer will have no duty, in any circumstances,
to attempt to open an estate on behalf of the Executive, to determine
whether any beneficiary designated by the Executive is alive or to
ascertain the address of any such beneficiary, to determine the existence
of any trust, to determine whether any Person purporting to act as the
Executive's personal representative (or the trustee of a trust established
by the Executive) is duly authorized to act in that capacity, or to locate
or attempt to locate any beneficiary, personal representative, or trustee.
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(a) Termination by the Employer without Cause. If the Employer
terminates this Agreement without Cause, then (i) the Employer will
pay the Executive his Salary (as adjusted in accordance with Section
3.1(a)) through June 30, 2009, (ii) the Employer will pay to Employee
any bonus amounts earned by the Executive through the date of such
termination, which amount, if undetermined, shall be equal to the pro
rata amount of the prior year's bonus, and (iii) any options or other
equity-based compensation issued to the Executive that are not fully
vested shall vest in full and, subject to any restrictions contained
in a grant agreement, become exercisable for the remainder of their
unexpired term.
(b) Termination upon Disability; Termination upon Death;
Voluntary Termination by the Executive. If this Agreement is
terminated (i) by either party as a result of the Executive's
Disability, as determined under Section 6.2; (ii) because of the
Executive's death; or (iii) by the Executive, at any time for any
reason during the Employment Period, then the Employer will pay the
Executive his Salary (as adjusted in accordance with Section 3.1(a))
through June 30, 2009, plus any bonus amounts granted but not yet
paid.
(c) Termination of the Executive For Cause. If this Agreement is
terminated by the Employer For Cause, at any time during the
Employment Period, then the Employer will (i) pay the Executive his
Salary through the date such termination is effective; and (ii)
options or other equity based compensation that are not vested in full
shall terminate immediately.
(d) Benefits. Except as otherwise set forth in Section 3.1(c),
the Executive's accrual of, or participation in plans providing for,
the Benefits will cease at the effective date of the termination of
this Agreement, and the Executive will be entitled to accrued Benefits
pursuant to such plans only as provided in such plans; provided,
however, that the Employer shall have no further obligation to provide
any benefits under Section 3.1(c) following termination of the
Executive's employment if the Executive's employment is terminated For
Cause. The Executive will not receive, as part of his termination pay
pursuant to this Section 6, any payment or other compensation for any
vacation, holiday, sick leave, or other leave unused on the date the
notice of termination is given under this Agreement.
7. Non-Disclosure Covenant; Employee Inventions.
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7.1 Acknowledgments by the Executive.
---------------------------------
The Executive acknowledges that (a) prior to and during the Employment
Period and as a part of his employment, the Executive has been and will be
afforded access to Confidential Information; (b) public disclosure of such
Confidential Information could have an adverse effect on the Employer Group
and their businesses; (c) because the Executive possesses substantial
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technical expertise and skill with respect to the Employer's business, the
Employer desires to obtain exclusive ownership of each Employee Invention,
and the Employer will be at a substantial competitive disadvantage if it
fails to acquire exclusive ownership of each Employee Invention; (d) the
Parent has required that the Executive make the covenants in this Section 7
as a condition to the transactions contemplated in the Merger Agreement;
and (e) the provisions of this Section 7 are reasonable and necessary to
prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee Inventions.
7.2 Agreements of the Executive.
----------------------------
In consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the
Executive covenants as follows:
(a) Confidentiality.
(i) During and following the Employment Period, the
Executive will hold in confidence the Confidential Information
and will not disclose it to any Person except with the specific
prior written consent of the Employer or except as otherwise
expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of any member of the Employer Group
will be entitled to all of the protections and benefits under any
applicable law. If any information that any member of the
Employer Group deems to be a trade secret is found by a court of
competent jurisdiction not to be a trade secret for purposes of
this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this
Agreement. The Executive hereby waives any requirement that any
member of the Employer Group submit proof of the economic value
of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the
Executive demonstrates was or became generally available to the
public other than as a result of a disclosure by the Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for purposes of
the performance of the Executive's duties at home or while
traveling, or except as otherwise specifically authorized by the
Employer) any document, record, notebook, plan, model, component,
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device, or computer software or code, whether embodied in a disk
or in any other form (collectively, the "Proprietary Items"). The
Executive recognizes that, as between the Employer and the
Executive, all of the Proprietary Items, whether or not developed
by the Executive, are the exclusive property of the Employer.
Upon termination of this Agreement by either party, or upon the
request of the Employer during the Employment Period, the
Executive will return to the Employer all of the Proprietary
Items in the Executive's possession or subject to the Executive's
control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of
the Executive's writing, works of authorship, and other Employee
Inventions are works made for hire and the property of the Employer,
including any copyrights, patents, or other intellectual property
rights pertaining thereto. If it is determined that any such works are
not works made for hire, the Executive hereby assigns to the Employer
all of the Executive's right, title, and interest, including all
rights of copyright, patent, and other intellectual property rights,
to or in such Employee Inventions. The Executive covenants that he
will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee
Invention for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in
order to apply for and obtain patents or other registrations with
respect to any Employee Invention in the United States and any
foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee Invention.
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7.3 Disputes or Controversies.
--------------------------
The Executive recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel, or other third party, the preservation of the
secrecy of Confidential Information may be jeopardized. All pleadings,
documents, testimony, and records relating to any such adjudication will be
maintained in secrecy and will be available for inspection by the Employer,
the Executive, and their respective attorneys and experts, who will agree,
in advance and in writing, to receive and maintain all such information in
secrecy, except as may be limited by them in writing.
8. Non-Competition and Non-Interference.
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8.1 Acknowledgements by the Executive.
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The Executive acknowledges that: (a) the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character; (b) the Employer's business is national in
scope and its products and services are marketed throughout the United
States; (c) the Employer competes with other businesses that are or could
be located in any part of the United States; (d) the Parent has required
that the Executive make the covenants set forth in this Section 8 as a
condition to the transactions contemplated in the Merger Agreement; (e) the
provisions of this Section 8 are reasonable and necessary to protect the
Employer's business; and (f) in connection with the fulfillment of his
duties hereunder and as an employee of the Employer, the Employer will
provide Executive with Confidential Information necessitating the execution
of the covenants contained in this Section 8.
8.2 Covenants of the Executive.
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In consideration of the acknowledgments by the Executive, and in
consideration of the compensation and benefits to be paid or provided to
the Executive by the Employer, the Executive covenants that he will not,
directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, and, at a
minimum, during the period from the Effective Date until June 30,
2010, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any manner
connected with, lend the Executive's name or any similar name to, lend
Executive's credit to or render services or advice to, any business
providing employment staffing or consulting services to the oil and
gas related industry (a "Competing Business"); provided, however, that
the Executive may purchase or otherwise acquire up to (but not more
than) five percent (5%) of any class of securities of any enterprise
(but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934; and provided, further, that the
Executive may individually work as an engineer or individually provide
engineering consulting services in the oil and gas industry;
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(b) whether for the Executive's own account or for the account of
any other Person, at any time during the Employment Period and the
Post-Employment Period, solicit business for a Competing Business from
any Person known by the Executive to be a customer or a potential
customer of any member of the Employer Group, whether or not the
Executive had personal contact with such Person during and by reason
of the Executive's employment with the Employer; provided, however,
that the Executive may individually work as an engineer, or provide
engineering consulting services, in the oil and gas industry;
(c) whether for the Executive's own account or the account of any
other Person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is an
employee (or was an employee within two (2) years of the date in
question) of any member of the Employer Group at any time during the
Employment Period or in any manner induce or attempt to induce any
employee of any member of the Employer Group to terminate his
employment with such member of the Employer Group; or (ii) at any time
during the Employment Period and the Post-Employment Period, interfere
with any member of the Employer Group's relationship with any Person,
including any Person who at any time during the Employment Period was
an employee, contractor, supplier, or customer of such member of the
Employer Group; or
(d) at any time during or after the Employment Period, disparage
any member of the Employer Group or any of its shareholders, partners,
members, managers, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the two (2) year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such
covenant.
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The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten (10) days after accepting
any other employment, of the identity of the Executive's employer. The
Employer may notify such employer that the Executive is bound by this
Agreement and, at the Employer's election, furnish such employer with a
copy of this Agreement or relevant portions thereof.
9. General Provisions.
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9.1 Injunctive Relief and Additional Remedy.
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The Executive acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 7 and 8) would be irreparable and that
an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in
addition to any other rights it may have, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement, and the Employer will not be
obligated to post bond or other security in seeking such relief.
9.2 Covenants of Sections 7 and 8 are Essential and Independent Covenants.
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The covenants by the Executive in Sections 7 and 8 are essential
elements of this Agreement, and without the Executive's agreement to comply
with such covenants, the Employer would not have entered into this
Agreement or employed or continued the employment of the Executive and the
Parent would not have entered into the Merger Agreement. The Employer and
the Executive have independently consulted with their respective counsel
and have been advised in all respects concerning the reasonableness and
propriety of such covenants, with specific regard to the nature of the
business conducted by the Employer.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Executive in
Sections 7 and 8.
9.3 Representations and Warranties by the Executive.
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The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will
not, with or without the giving of notice or the passage of time, or both:
(a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Executive; or (b)
conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Executive is
a party or by which the Executive is or may be bound.
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9.4 Obligations Contingent on Performance.
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The obligations of the Employer hereunder, including its obligation to
pay the compensation provided for herein, are contingent upon the
Executive's performance of the Executive's obligations hereunder.
9.5 Waiver.
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The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement
will operate as a waiver of such right, power, or privilege, and no single
or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this
Agreement can be discharged by one party, in whole or in part, by a waiver
or renunciation of the claim or right unless in writing signed by the other
party; (b) no waiver that may be given by a party will be applicable except
in the specific instance for which it is given; and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.6 Binding Effect; Delegation of Duties Prohibited.
------------------------------------------------
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs,
and legal representatives, including any entity with which the Employer may
merge or consolidate or to which all or substantially all of its assets may
be transferred. The duties and covenants of the Executive under this
Agreement, being personal, may not be delegated.
9.7 Notices.
--------
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent
by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested and signed for by
the party required to receive notice, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
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If to Employer:
Tradestar Services, Inc.
0000 Xxxxxxxxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxx, Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx and Xxxxx, LLP
One Houston Center
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq. or Xxx Xxxx, Esq.
Facsimile: (000) 000-0000 or (000) 000-0000
If to the Executive:
Xxxxx X. Xxxxxx
000 Xxxxx Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Westheimer, P.C.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq. and Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
9.8 Entire Agreement; Amendments.
-----------------------------
This Agreement, the Merger Agreement, and the documents executed in
connection with the Merger Agreement, contain the entire agreement between
the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended orally, but only by an agreement in writing signed by the parties
hereto.
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9.9 Governing Law.
--------------
This Agreement will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
9.10 Arbitration.
------------
In the event that there shall be any dispute arising out of or in any
way relating to this Agreement, the contemplated transactions, any document
referred to or incorporated herein by reference or centrally related to the
subject matter hereof, or the subject matter of any of the same, the
parties covenant and agree as follows:
(a) The parties shall first use their reasonable best efforts to
resolve such dispute among themselves, with or without mediation.
(b) If the parties are unable to resolve such dispute among
themselves, such dispute shall be submitted to binding arbitration in
Houston, Texas, under the auspices of, and pursuant to the rules of,
the American Arbitration Association's National Rules for the
Resolution of Employment Duties as then in effect, or such other
procedures as the parties may agree to at the time. Any award issued
as a result of such arbitration shall be final and binding between the
parties, and shall be enforceable by any court having jurisdiction
over the party against whom enforcement is sought. A ruling by the
arbitrators shall be non-appealable. The parties agree to abide by and
perform any award rendered by the arbitrators. If either the Executive
or the Employer seeks enforcement of the terms of this Agreement or
seeks enforcement of any award rendered by the arbitrators, then the
prevailing party (designated by the arbitrators) to such proceeding(s)
shall be entitled to recover its costs and expenses (including
applicable travel expenses) from the non-prevailing party, in addition
to any other relief to which it may be entitled. Either the Executive
or the Employer may cause an arbitration proceeding to commence by
giving the other party notice in writing of such arbitration. The
Executive and the Employer covenant and agree to act as expeditiously
as practicable in order to resolve all disputes by arbitration.
Notwithstanding anything in this section to the contrary, neither the
Executive nor the Employer shall be precluded from seeking court
action in the event the action sought is either injunctive action, a
restraining order or other equitable relief. The arbitration
proceeding shall be held in English.
(c) Legal process in any action or proceeding referred to in the
preceding section may be served on any party anywhere in the world.
(d) Except as expressly provided herein and except for
injunctions and other equitable remedies that are required in order to
enforce this Agreement, no action may be brought in any court of law
and EACH OF THE PARTIES WAIVES ANY RIGHTS THAT IT MAY HAVE TO BRING A
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CAUSE OF ACTION IN ANY COURT OR IN ANY PROCEEDING INVOLVING A JURY TO
THE MAXIMUM EXTENT PERMITTED BY LAW. Each party acknowledges that it
has been represented by legal counsel of its own choosing and has been
advised of the intent, scope and effect of this Section 9.10 and has
voluntarily entered into this Agreement and this Section 9.10.
9.11 Section Headings; Construction.
-------------------------------
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation.
All references to "Section" or "Sections" refer to the corresponding
Section or Sections of this Agreement unless otherwise specified. All words
used in this Agreement will be construed to be of such gender or number as
the circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
9.12 Severability.
-------------
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
9.13 Counterparts.
-------------
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
9.14 Waiver of Jury Trial.
---------------------
THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT.
9.15 Guaranty of Parent.
-------------------
The Parent hereby irrevocably, unconditionally and absolutely
guarantees all of the obligations of the Employer under this Agreement,
including but not limited to any payments due the Executive by the Employer
pursuant to the terms hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER
CYMRI, L.L.C.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxxxx X. Xxxxxxx
Vice President
EXECUTIVE
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXX X. XXXXXX
For purposes of Section 9.15 only:
PARENT
TRADESTAR SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
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