1
EXHIBIT 10.35
MANAGEMENT EMPLOYMENT AGREEMENT
THIS MANAGEMENT EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into
by and between Xxxxxx Petroleum Services Corp., a Delaware corporation
("EMPLOYER"), and Xxxx Xxxxx ("EMPLOYEE") on this 20th day of June, 1997, but
to be effective on the 20th day of June, 1997 ("Effective Date").
W I T N E S S E T H :
WHEREAS, Employer desires to employ Employee and Employee desires to be
employed by Employer upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
TERM AND NATURE OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT. Subject to the terms and conditions of this
Agreement, Employer hereby employs Employee and Employee hereby accepts
employment with Employer for a term beginning on the Effective Date as set
forth above through and including December 31, 1998, (the "INITIAL TERM"),
unless this Agreement and Employee's employment hereunder are sooner terminated
pursuant to Article 5. Upon expiration of the Initial Term, this Agreement
shall remain in full force and effect in a series of automatic renewals in
increments of one consecutive year (each such year term a "RENEWAL TERM") until
this Agreement and Employee's employment hereunder are terminated in accordance
with Article 5. The Initial Term together with each Renewal Term shall
hereinafter be referred to collectively as the "EMPLOYMENT PERIOD."
1.2 PRINCIPAL DUTIES. Employee's employment hereunder shall be in the
capacity of Vice President - Business Development. Employee may be assigned to
service in a similar capacity for any subsidiary of Employer as part of his
duties hereunder. In such capacity, Employee shall perform the duties for which
he currently is responsible as an employee of Employer and/or any duties set
forth in any job description provided by Employer and agreed upon by Employee.
In addition, Employee shall perform other duties as may from time to time be
prescribed by Employer's Board of Directors or more senior management and which
are reasonably related or incidental to the capacity in which Employee serves
Employer. Employee shall perform his duties hereunder in accordance with any
lawful instructions, rules, regulations or policies made or adopted by
Employer's Board of Directors or more senior management, including those
applicable to Employer's employees generally. During the Employment Period,
Employee shall devote his full time, and best efforts and skills to the
business and interests of Employer during Employer's normal working hours, do
his utmost to further enhance and develop Employer's best interests and
welfare, and endeavor to improve his ability and knowledge of Employer's
business, particularly as it relates to his duties hereunder, in an effort to
increase the
Xxxxx Employment Agreement
June 20, 1997
Page 1
2
value of his services for the mutual benefit of the parties hereto. At all
times during the term of this Agreement, Employee shall project a positive and
professional image on behalf of Employer.
1.3 ACCOUNTING AND FIDELITY BOND. Employee shall truthfully and
accurately make, maintain and preserve all records and reports that Employer
may from time to time request or require. Employee shall fully account for all
money, records, goods, wares and merchandise or other property belonging to
Employer or its "AFFILIATES" (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended) of which he may have custody and will pay
over and deliver the same promptly whenever and however he may be directed to
do so. Employee also shall make available to Employer any and all information
of which he has knowledge that is relevant to Employer's business, and will
make all suggestions and recommendations which he feels will be of benefit to
Employer. Employee shall, upon Employer's written request, furnish all
information and take any other steps necessary to enable Employer to obtain a
fidelity bond conditioned on the rendering of a true account by Employee of all
moneys, goods or other property which may come into the custody, charge or
possession of Employee during the Employment Period. The surety company issuing
the bond and the amount of the bond must be acceptable to Employer in its sole
discretion. Employer shall pay all premiums on any such bond.
1.4 EMPLOYEE DISHONESTY. If at any time Employee becomes aware or
believes that any other employee of the Employer is or appears to be (i)
removing or using the property or funds of Employer or its Affiliates for the
benefit of anyone other than Employer or its Affiliates, or (ii) providing
Confidential Information (as defined in Section 3.2) to any person not
authorized by Employer to receive such Confidential Information (any such
employee described in (i) or (ii) being referred to as a "DISHONEST EMPLOYEE"),
Employee shall immediately communicate his knowledge or belief as to such
matters to Employer's Board of Directors. Employee acknowledges and agrees that
he shall be conclusively presumed to be in complicity with such Dishonest
Employee if Employee does not so disclose his knowledge or belief as to such
matters to Employer's Board of Directors.
1.5 FIDUCIARY DUTIES OF EMPLOYEE. The obligations of Employee expressed
in this Agreement shall be in addition to any obligations imposed upon Employee
as an employee or officer of Employer or its Affiliates by Employer's Policies
and Procedures, as amended, the law of the State of Texas applicable to
employees, the General Corporation Law of the State of Delaware applicable to
corporate officers, or federal law which limit the activities of an employee or
corporate officer to those which will not threaten, impair or usurp the
goodwill, trade secrets, intellectual property, business opportunities, and
business relations of his employer.
1.6 PLACE OF PERFORMANCE. Employee shall perform his duties hereunder at
Employer's subsidiary's Englewood, Colorado offices or at such other place
where Employer's offices subsequently may be located, or at any other place as
may be directed by Employer in order to enable Employee to discharge his duties
hereunder. Employee acknowledges and agrees that Employer may require Employee
to travel and render services in different locations from time to time incident
to the performance of his duties hereunder.
Xxxxx Employment Agreement
June 20, 1997
Page 2
3
ARTICLE 2
COMPENSATION
For and in consideration of the performance by Employee of the services,
terms, conditions, covenants and agreements contained in this Agreement,
Employer shall pay to Employee at the times, in the amounts and in the manner
herein provided, the following:
2.1 BASE COMPENSATION. As the principal consideration for the services
to be performed by Employee hereunder during the Employment Period, Employee
shall be entitled to receive as base compensation from Employer a salary of not
less than One Hundred Thirty Thousand Dollars ($130,000.00) per annum (the
"BASE SALARY"), which shall be prorated for any partial employment period and
payable in the manner and on the timetable in which Employer's payroll is
customarily handled, or at such more frequent intervals as Employer and
Employee may hereafter agree to from time to time. No overtime compensation
shall be payable under this Agreement. Employer's Board of Directors shall
review Employee's performance at least annually and shall make any adjustments
to Employee's compensation which it deems, in its sole discretion, appropriate,
provided that at no time during the Employment Period shall Employee's
compensation be adjusted to an amount below the Base Salary. Employer shall be
entitled to withhold from all amounts of compensation payable under this
Article 2 such amounts on account of payroll taxes and similar matters as are
required by any applicable law, rule, or regulation of any appropriate
governmental authority. Such compensation shall continue to be paid during any
period of physical or mental incapacity unless and until Employee's employment
is terminated as herein provided.
2.2 STOCK OPTIONS. As additional consideration for Employee's
performance of his obligations under Article 3 and Article 4 of this Agreement,
Employer grants to Employee, subject to the conditions set forth below, options
to purchase 12,000 shares of Employer's Class A Common Stock. This grant shall
be subject to the terms of the specific agreement relating to the grant of the
stock options. The foregoing stock option grant shall be subject to shareholder
approval of a stock purchase plan authorizing the grant of said options. If
shareholder approval of a stock purchase plan authorizing the grant of said
options is not obtained by December 31, 1997, the foregoing grant of options to
purchase 12,000 shares of Employer's Class A Common Stock shall be null and
void.
2.3 RELOCATION EXPENSES. In connection with Employee's relocation to the
Denver, Colorado area, Employer agrees to pay Employee relocation expenses in
accordance with Employer's relocation policy. Notwithstanding the foregoing,
Employee shall be entitled to reasonable relocation expenses as set forth in
subparagraphs (a) through (g) below:
(a) Advance Relocation Visits. Employer shall pay for the following
costs associated with advance relocation visits to secure a new
residence: round trip coach class airfare tickets for Employee and
Employee's immediate family, and hotel, food and car rental expenses.
(b) Return Trips Home. If Employee precedes his family to the new work
location, reasonable expenses incurred to visit home will be reimbursed.
Employer will pay for coach class round trip airfare once every one (1)
week up to a maximum of six (6) trips.
Xxxxx Employment Agreement
June 20, 1997
Page 3
4
(c) Temporary Living Expenses. Employer shall pay Employee temporary
living expenses for a period not to exceed three (3) months.
(d) Real Estate Closing Costs Associated with Sale of Residence.
Employee will have full responsibility for independently selling his
residence. Reasonable closing costs incurred in connection with the sale
of Employee's residence will be reimbursed, when verified by either a
copy of the closing statement or verifiable receipts.
(e) Real Estate Closing Costs Associated with Purchase of a New
Residence. Employee shall be reimbursed reasonable closing costs
incurred in connection with Employee's purchase of a new residence, when
supported by either a copy of the closing statement verifiable receipts
(f) Cost of Moving Family. When Employee and his immediate family
proceed to their new location, Employer shall pay the cost of coach
class airfare for Employee and Employee's immediate family, and the
actual costs of meals and lodging for Employee and Employee's immediate
family, for the allowable travel days, when supported by proper
receipts.
(g) Cost of Moving Household Goods. Employer shall pay for Employee's
moving expenses for household goods when either supported by proper
receipts or billed directly. Such expenses include, packing and
unpacking of household goods, ground transportation of household goods,
and normal removal, preparation and installation of appliances.
(h) Relocation Fee. Employer shall pay to Employee one (1) month of base
salary, less applicable taxes, to cover miscellaneous expenses incurred
during relocation.
(i) Later Relocation. Should Employer require Employee's subsequent
relocation from the Denver, Colorado area to a new work area or if this
Agreement is terminated for any reason other than cause, Employer agrees
to pay Employee's loss, if any, in selling the Denver, Colorado area
residence; provided, however, any such amount paid under this
subparagraph (i) shall be limited to the actual difference between the
purchase price and sale price of the Denver, Colorado area residence and
cost of moving Employee's family and household good to the Houston area
or other domestic location of Employee's choice.
2.2 BONUSES AND BENEFITS. In addition to the Base Salary, stock options,
and relocation expenses described above, Employer shall provide Employee with
the following during the Employment Period:
(a) bonuses, when and based upon or subject to such terms and
conditions as Employer's Board of Directors, in its sole and
absolute discretion, may determine, provided, however, that an
annual bonus plan of fifteen percent (15 %) of base compensation
payable if all bonus plan criteria are met;
(b) participation in any present or future disability, medical,
health, dental, insurance, pension, profit-sharing, thrift,
retirement, investment, and stock appreciation plans,
Xxxxx Employment Agreement
June 20, 1997
Page 4
5
and any other benefit, bonus or compensation plans on the same
terms generally available to all of Employer's employees
generally or its operating officers in particular;
(c) payment or reimbursement, as the case may be, of reasonable
business expenses (within limits that may be established by
Employer's Board of Directors) incurred in connection with the
performance of his duties hereunder, such expense payment or
reimbursement being subject to, and made in accordance with
Employer's policies and procedures on employee expense payment or
reimbursement in effect from time to time;
(d) a monthly car allowance of One Thousand Two Hundred Dollars
($1,200);
(e) use of an Employer paid full membership in a local area country
club of Employee's choice including monthly dues and any business
related fees or expenses; and
(f) a signing bonus of Ten Thousand Dollars ($10,000), payable upon
execution of this Agreement.
2.3 VACATION. During the Employment Period, Employee shall accrue paid
vacation time in such amounts and at such times as determined by Employer's
Board of Directors, in its sole discretion; provided, however, that the minimum
amount of paid vacation to which Employee shall be entitled shall be no less
than that to which he is entitled as an employee of Employer immediately prior
to the effective date of this Agreement. If such vacation time is not taken by
Employee during the term of this Agreement, there will be compensation payable
in lieu thereof. Notwithstanding the foregoing, in no event shall Employee be
entitled to less than four (4) weeks of paid vacation.
ARTICLE 3
CONFIDENTIAL INFORMATION; PROPERTY RIGHTS
3.1 NON-DISCLOSURE OBLIGATION OF EMPLOYEE. For purposes of this Article
3, all references to Employer shall mean and include its Affiliates (as defined
in Section 1.3). Employee hereby acknowledges, understands and agrees that
whether developed by Employee or others employed by or in any way associated
with Employee or Employer, all Confidential Information, as defined in Section
3.2, is the exclusive and confidential property of Employer and shall be at all
times regarded, treated and protected as such in accordance with this
Agreement. Employee acknowledges that all such Confidential Information is in
the nature of a trade secret. Failure to xxxx any writing confidential shall
not affect the confidential nature of such writing or the information contained
therein.
3.2 DEFINITION OF CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION"
shall mean information, whether or not originated by Employee, which is used in
Employer's business and (1) is proprietary to, about or created by Employer;
(2) gives Employer some competitive business advantage or the opportunity of
obtaining such advantage, or the disclosure of which could be
Xxxxx Employment Agreement
June 20, 1997
Page 5
6
detrimental to the interests of Employer; (3) is designated as Confidential
Information by Employer, known by the Employee to be considered confidential by
Employer, or from all the relevant circumstances considered confidential by
Employer, or from all the relevant circumstances should reasonably be assumed
by Employee to be confidential and proprietary to Employer; or (4) is not
generally known by non-Employer personnel. Such Confidential Information
includes, but is not limited to, the following types of information and other
information of a similar nature (whether or not reduced to writing or
designated as confidential):
(a) Work product resulting from or related to work or projects
performed or to be performed for Employer or for clients of
Employer, including but not limited to data bases, draft and
other non-public written documents, the interim and final lines
of inquiry, hypotheses, research and conclusions related thereto
and the methods, processes, procedures, analyses, techniques and
audits used in connection therewith;
(b) Computer software of any type or form in any stage of actual or
anticipated research and development, including but not limited
to programs and program modules, routines and subroutines,
processes, algorithms, design concepts, design specifications
(design notes, annotations, documentation, flowcharts, coding
sheets, and the like), source codes, object codes and load
modules, programming, program patches and system designs;
(c) Information relating to Employer's proprietary rights prior to
any public disclosure thereof, including but not limited to the
nature of the proprietary rights, production data, technical and
engineering data, test data and test results, the status and
details of research and development of products and services, and
information regarding acquiring, protecting, enforcing and
licensing proprietary rights (including, without limitation,
patents, copyrights and trade secrets);
(d) Internal Employer personnel and financial information, vendor
names and other vendor information (including vendor
characteristics, services and agreements), purchasing and
internal cost information, internal service and operational
manuals, and the manner and methods of conducting Employer's
business;
(e) Marketing and development plans, price and cost data, price and
fee amounts, pricing and billing policies, quoting procedures,
marketing techniques and methods of obtaining business, forecasts
and forecast assumptions and volumes, and future plans and
potential strategies of Employer which have been or are being
discussed;
(f) Names of customers and their representatives, contracts and their
contents and parties, customer services, and the type, quantity,
specifications and contents of products and services purchased,
leased, licensed or received by customers of Employer;
(g) Information provided to Employer by any actual or potential
customer, government
Xxxxx Employment Agreement
June 20, 1997
Page 6
7
agency, or other third party (including businesses, consultants
and other entities and individuals); and
(h) Contracts with, or developed by Employer for use with, agents of
Employer, including, without limitation, the terms and conditions
thereof.
3.3 EXCLUSIONS FROM CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION"
shall not include information publicly known other than as a result of a
disclosure by Employee in breach of Section 3.1, and the general skills and
experience gained during Employee's work with Employer which Employee could
reasonably have been expected to acquire in similar work with another company.
The phrase "PUBLICLY KNOWN" shall mean readily accessible to the public in a
written publication, shall not include information which is only available by a
substantial searching of the published literature or information the substance
of which must be pieced together from a number of different publications and
sources. The burden of proving that information or skills and experience are
not Confidential Information shall be on the party asserting such exclusion.
3.4 COVENANTS OF EMPLOYEE. As a consequence of Employee's acquisition or
anticipated acquisition of Confidential Information, Employee will occupy a
position of trust and confidence with respect to Employer's affairs and
business. In view of the foregoing and of the consideration to be provided to
Employee, Employee agrees that it is reasonable and necessary that Employee
make the following covenants:
(a) At any time during or after the termination of the Employment
Period, Employee will not disclose Confidential Information to
any person or entity, either inside or outside of Employer, other
than as necessary in carrying out duties on behalf of Employer,
without obtaining Employer's prior written consent (unless such
disclosure is compelled pursuant to court order or subpoena, and
at which time Employee gives notice of such proceedings to
Employer), and Employee will take all reasonable precautions to
prevent inadvertent disclosure of such Confidential Information.
This prohibition against Employee's disclosure of Confidential
Information includes, but is not limited to, disclosing the fact
that any similarity exists between the Confidential Information
and information independently developed by another person or
entity, and Employee understands that such similarity does not
excuse Employee from abiding by his covenants or other
obligations under this Agreement.
(b) At any time during or after the termination of the Employment
Period, Employee will not use, copy or transfer Confidential
Information other than as necessary in carrying out his duties on
behalf of Employer, without first obtaining Employer's prior
written consent, and will take all reasonable precautions to
prevent inadvertent use, copying or transfer of such Confidential
Information. This prohibition against Employee's use, copying, or
transfer of Confidential Information includes, but is not limited
to, selling, licensing or otherwise exploiting, directly or
indirectly, any products or services
Xxxxx Employment Agreement
June 20, 1997
Page 7
8
(including data bases, written documents and software in any
form) which embody or are derived from Confidential Information,
or exercising judgment in performing analyses based upon
knowledge of Confidential Information.
3.5 RETURN OF CONFIDENTIAL MATERIAL. Employee shall turn over to
Employer all originals and copies of materials containing Confidential
Information in the Employee's possession, custody, or control upon request or
upon termination of the Employee's employment with Employer. Employee agrees to
attend a termination interview with the Executive Compensation Committee of
Employer's Board of Directors to confirm turnover of such materials and to
discuss any questions the undersigned may have about his continuing obligations
under this Agreement.
3.6 INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable works, trademarks, service marks, ideas, processes,
formulae, methods, designs, techniques or trade secrets (collectively
hereinafter referred to as "INVENTIONS") made, developed, conceived or
resulting from work performed by Employee (alone or in conjunction with others,
during regular hours of work or otherwise) while he is employed by Employer and
which may be directly or indirectly useful in, or related to, the business of
Employer (including, without limitation, research and development activities of
Employer), or which are made using any equipment, facilities, Confidential
Information, materials, labor, money, time or other resources of Employer,
shall be promptly disclosed by Employee to Employer's Board of Directors, shall
be deemed Confidential Information for purposes of this Agreement, and shall be
Employer's exclusive property. Employee shall, upon Employer's request, execute
any documents and perform all such acts and things which are necessary or
advisable in the opinion of Employer to cause issuance of patents to, or
otherwise obtain recorded protection of right to intellectual property for,
Employer with respect to Inventions that are to be Employer's exclusive
property under this Section 3.6, or to transfer to and vest in Employer full
and exclusive right, title and interest in and to such Inventions; provided,
however, that the expense of securing any such protection of right to
Inventions shall be borne by Employer. In addition, Employee shall, at
Employer's expense, assist Employer in any proper manner in enforcing any
Inventions which are to be or become Employer's exclusive property hereunder
against infringement by others. Employee shall keep confidential and will hold
for Employer's sole use and benefit any Invention that is to be Employer's
exclusive property under this Section 3.6 for which full recorded protection of
right has not been or cannot be obtained.
ARTICLE 4
COVENANT NOT TO COMPETE; NON-INTERFERENCE
4.1 PROHIBITED EMPLOYEE ACTIVITIES. Employee agrees that except in the
ordinary course of his employment hereunder during the Employment Period,
Employee shall not during the Employment Period and for a period of two (2)
years thereafter (all references to Employer shall mean and include its
Affiliates as defined in Section 1.3):
(a) directly or indirectly, engage or invest in, own, manage,
operate, control or participate in the ownership, management,
operation or control of, be employed by, associated or in any
manner connected with, or render services or advice to, any
Competing
Xxxxx Employment Agreement
June 20, 1997
Page 8
9
Business (as defined below) provided, however, that the Employee
may invest in the 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;
(b) directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer,
advisor (whether paid or unpaid), stockholder, partner or in any
other individual or representative capacity whatsoever, either
for his own benefit or for the benefit of any other person or
entity, solicit, divert or take away, any customers or clients of
Employer; or
(c) directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer,
advisor (whether paid or unpaid), stockholder, partner or in any
other individual or representative capacity whatsoever, either
for his own benefit or for the benefit of any other person or
entity, either (i) hire, attempt to hire, contact or solicit with
respect to hiring any employee of Employer, (ii) induce or
otherwise counsel, advise or encourage any employee of Employer
to leave the employment of Employer, or (iii) induce any
distributor, representative or agent of Employer to terminate or
modify its relationship with Employer.
"COMPETING BUSINESS" shall mean any individual, business, firm, company,
partnership joint venture, organization, or other entity whose products or
services compete, in whole or in part, at any time during the Employment Period
with the products or services of Employer or its Affiliates in any domestic or
international market area.
4.2 ESSENTIAL NATURE OF ARTICLE 4. It is acknowledged, understood and
agreed by and between the parties hereto that the covenants made by Employee in
Section 4.1 are an essential part of the Employer's consideration for entering
into this Agreement and that, but for the agreement of the Employee to comply
with such covenants, Employer would not have entered into this Agreement.
4.3 NECESSITY AND REASONABLENESS OF ARTICLE 4. Employee hereby
specifically acknowledges and agrees that:
(a) Employer has expended and will continue to expend substantial
time, money and effort in developing (i) its business in which
the designs, plans, manuals and specifications are valuable trade
secrets, and (ii) a valuable list of customers and agents, and
information about their technical problems and needs, purchasing
habits, idiosyncracies and internal purchasing procedures;
(b) Employee will, in the course of his Employment, be personally
entrusted with and exposed to the trade secrets of Employer;
(c) Employer, during the term of this Agreement and after its
termination, will be
Xxxxx Employment Agreement
June 20, 1997
Page 9
10
engaged in its highly competitive business in which many firms,
including Employer, compete;
(d) A substantial portion of Employer's business is conducted outside
the United States;
(e) Employer, pursuant to acquiring certain patents, technology and
associated trade secrets and know-how, will further develop its
worldwide business;
(f) Employee could, after having access to Employer's financial
records, contracts, patents, technology and associated trade
secrets and know-how, perform his obligations under this
Agreement, and after receiving further training by and experience
with Employer, and after reviewing Employer's trade secrets,
become a competitor;
(g) Employer will suffer great loss and irreparable harm if Employee
terminates his employment and enters directly or indirectly, into
competition with Employer;
(h) the temporal and other restrictions contained in this Article 4
are in all respects reasonable and necessary to protect the
business goodwill, trade secrets, prospects and other business
interests of Employer;
(i) the enforcement of this Agreement in general, and of this Article
4 in particular, will not work an undue or unfair hardship on
Employee or otherwise be oppressive to him, it being specifically
acknowledged and agreed by Employee that he has activities and
other business interests and opportunities which will provide him
adequate means of support if the provisions of this Article 4 are
enforced after termination of his employment with Employer; and
(j) the enforcement of this Agreement in general, and of this Article
4 in particular, will neither deprive the public of needed goods
or services nor otherwise be injurious to the public.
4.4 JUDICIAL MODIFICATION. Employee agrees that if a court of competent
jurisdiction determines that the length of time or any other restriction, or
portion thereof, set forth in this Article 4 is overly restrictive and
unenforceable, the court may reduce or modify such restrictions to those which
it deems reasonable and enforceable under the circumstances, and as so reduced
or modified, the parties hereto agree that the restrictions of this Article 4
shall remain in full force and effect. Employee further agrees that if a court
of competent jurisdiction determines that any provision of this Article 4 is
invalid or against public policy, the remaining provisions of this Article 4
and the remainder of this Agreement shall not be affected thereby, and shall
remain in full force and effect.
4.5 SURVIVAL OF COVENANTS. The covenants and agreements of Employee set
forth in this Article 4 are of a continuing nature and shall survive the
expiration, termination or cancellation of the
Xxxxx Employment Agreement
June 20, 1997
Page 10
11
remainder of this Agreement regardless of the reason for such therefor and
shall survive the termination, if any, of the Employee's employment.
ARTICLE 5
TERMINATION
5.1 EMPLOYER TERMINATION
(a) Notwithstanding any other provision of this Agreement, at any
time during the Employment Period, including, without limitation,
the Initial Term, this Agreement and Employee's employment
hereunder shall terminate upon his death, and Employer shall have
the right, in its sole and absolute discretion, to terminate this
Agreement and Employee's employment hereunder at any time by
giving him written notice of such termination (i) for "Cause" (as
defined below), (ii) if Employee shall fail to qualify for the
fidelity bond described in Section 1.3 within sixty (60) days
from the date of the Employer's written request thereunder, or
(iii) if Employee shall suffer a Disability (as defined below).
(b) "CAUSE" shall mean any of the following events:
(1) Employee's conviction or the entry of a plea of guilty or
nolo contendere or equivalent plea in a court of competent
jurisdiction of any crime or offense involving moral
turpitude or any felony;
(2) Employee's commission of an act of fraud upon Employer or
any of its Affiliates;
(3) Employee's willful misappropriation of funds or property
of Employer or any of its Affiliates;
(4) Employee's knowing engagement, without prior approval by
resolution of Employer's Board of Directors, in any direct
conflict of interest with Employer or any of its
Affiliates, in any activity which would constitute a
breach of Employee's representations, covenants,
agreements and obligations under Articles 3 and 4 of this
Agreement, or which would otherwise result in substantial
injury to Employer's business or financial condition;
(5) Employee's refusal to perform his duties under Article 1
of this Agreement; or
(6) Employee's habitual use of alcohol or drugs which, in the
reasonable opinion of Employer, substantially impairs the
performance of Employee's duties.
Xxxxx Employment Agreement
June 20, 1997
Page 11
12
(c) "DISABILITY" shall mean any mental or physical illness,
impairment or condition which, in the sole opinion of Employer:
(i) is of a nature that cannot reasonably be controlled by
Employee, (ii) significantly inhibits or impedes Employee's
ability to perform the services required under this Agreement,
and (iii) is likely to be either long-lasting in duration or
recurring from time to time.
5.2 TERMINATION BY EITHER PARTY. Subject to the provisions of Section
5.3(a), Employer may at any time, for any reason, with or without Cause,
terminate this Agreement and Employee's employment hereunder. After expiration
of the Initial Term, Employee may terminate this Agreement and his employment
hereunder without regard to any reason for such termination. Each of Employer's
and Employee's option to terminate this Agreement pursuant to this Section 5.2
shall be exercised by delivery of a written notice to Employee or Employer, as
applicable, specifying the effective date of such termination which in no event
shall be sooner than expiration of thirty (30) calendar days following delivery
of such written notice.
5.3 EFFECT OF TERMINATION.
(a) If Employer terminates this Agreement for any reason other than
pursuant to the terms of Section 5.1, then Employer shall pay to
Employee an amount equal to the greater of (a) his total Base
Salary for the remainder of the Employment Period, or (b) which
shall be the greater of (i) three months of his Base Salary or
(ii) one month of Base Salary for each full year of service
completed with Employer as of the date of termination. Employer
may, in its sole and absolute discretion, make such payment in
the manner and on the timetable specified in Section 2.1, or in
one lump sum on the effective date of termination.
(b) Subject to the provisions of Section 5.3(a), upon termination of
this Agreement and Employee's employment hereunder by either
Employer or Employee, Employee shall have no right to receive any
compensation or benefits for any period subsequent to the
effective date of such termination, or for any period prior to
such date which have not been earned or vested as of such date.
(c) Employer's right of termination shall be in addition to and shall
not affect Employee's rights and remedies under Articles 3 and 4,
and Section 6.1 of this Agreement, and such rights and remedies
shall survive termination of Employee's employment hereunder.
5.4 YEARS OF SERVICE. For purposes of this Article Five, any reference
to Employee's year(s) of service shall include (i) service with the Employer,
(ii) service with any Affiliate of Employer, and (iii) service with any
predecessor entity of Employer whether by merger, acquisition or operation of
law.
Xxxxx Employment Agreement
June 20, 1997
Page 12
13
ARTICLE 6
MISCELLANEOUS
6.1 INJUNCTIVE RELIEF. Because of the unique nature of the Confidential
Information, Employee acknowledges, understands and agrees that Employer will
suffer immediate and irreparable harm if Employee fails to comply with any of
his obligations under Articles 3 or 4 of this Agreement, and that monetary
damages will be inadequate to compensate Employer for such breach. Accordingly,
Employee agrees that Employer shall, in addition to any other remedies
available to it at law or in equity, be entitled to temporary, preliminary, and
permanent injunctive relief to enforce the terms of Articles 3 and 4 without
the necessity of proving inadequacy of legal remedies or irreparable harm.
6.2 INDEMNIFICATION. Employer shall indemnify Employee in the same
manner and to the same extent that Employer is obligated to indemnify its
directors pursuant to Employer's Certificate of Incorporation and Bylaws, as
each may be amended or restated from time to time.
6.3 ACTION BY AND CONSENT OF EMPLOYER. All rights and remedies of
Employer hereunder shall be exercised by the Employer solely by and through
management authorized by Employer's Board of Directors.
6.4 NOTICES. Any notice, instruction, authorization, request or demand
required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the parties hereto at the principal offices of
Employer at the address indicated beneath its signature on the execution page
of this Agreement, and also to Employee at his home address indicated beneath
his signature on the execution page of this Agreement, or at such other address
and number as a party shall have previously designated by written notice given
to the other party in the manner hereinabove set forth. Notices shall be deemed
given when received, if sent by facsimile means (confirmation of such receipt
by confirmed facsimile transmission being deemed receipt of communications sent
by facsimile means); and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail,
return receipt requested.
6.5 AMENDMENT AND WAIVER. This Agreement may be amended, modified or
superseded only by written instrument executed by all parties hereto. Any
waiver of the terms, provisions, covenants, representations, warranties, or
conditions hereof shall be made only by a written instrument executed and
delivered by the party waiving compliance. Any waiver granted by Employer shall
be effective only if executed and delivered by a duly authorized executive
officer of Employer other than Employee. The failure of any party at any time
or times to require performance of any provisions hereof, shall in no manner
effect the right to enforce the same. No waiver by any party of any condition
or provision, or the breach of any term, provision, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or
a waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
Xxxxx Employment Agreement
June 20, 1997
Page 13
14
6.6 SUCCESSORS AND ASSIGNS. All of the terms, provisions, covenants,
representations, warranties, and conditions of this Agreement shall bind, be
enforceable by, and inure to the benefit of, the parties hereto, but this
Agreement and the rights and obligations hereunder shall not be assignable or
delegable by any party; provided, however, that this Agreement and all of
Employer's rights and obligations hereunder may be assigned or delegated by it,
in whole, but not in part, to, and shall be binding upon and inure to the
benefit of, any of its successors or assigns, but such assignment or delegation
by Employer shall not relieve it of any of its obligations hereunder.
6.7 DEFINITIONS, GENDER AND CERTAIN REFERENCES. As used in this
Agreement, each parenthetically or quoted capitalized term in the introduction,
recitals and other Sections of this Agreement shall have the meaning so
ascribed to it. Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter, and the number of all
words shall include the singular and plural. References to Articles or Sections
shall be to Articles or Sections of this Agreement unless otherwise specified.
The headings and captions used in this Agreement are solely for convenient
reference and shall not affect the meaning or interpretation of any article,
section or paragraph herein, or this Agreement. The terms "hereof," "herein" or
"hereunder" shall refer to this Agreement as a whole and not to any particular
Section.
6.8 GOVERNING LAW AND SEVERABILITY. This Agreement has been executed and
is performable in Xxxxxxxxxx County, Texas. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Texas, except to
the extent that the General Corporation Law of the State of Delaware or federal
law is explicitly made applicable by Section 1.5. Each party hereto hereby
acknowledges and agrees that it has had the opportunity to consult with its own
legal counsel in connection with the negotiation of this Agreement, and that it
has bargaining power equal to that of the other party hereto in connection with
the negotiation, execution and delivery of this Agreement. Accordingly, the
parties hereto agree that the rule of contract construction that an agreement
shall be construed against the drafter shall have no application in the
construction or interpretation of this Agreement. The invalidity of any
provision of this Agreement shall not affect any other provision of this
Agreement, which shall remain in full force and effect, nor shall the
invalidity of a portion of any provision of this Agreement affect the balance
of such provision.
6.9 EXPENSES. Each party hereto shall pay all of its respective fees and
expenses of attorneys, accountants and other persons employed by it in
connection with the resolution of any dispute between the parties hereto
arising out of or relating to this Agreement, except for any indemnification
obligations of Employer pursuant to Section 6.2.
6.10 ENTIRE AGREEMENT. No agreements or representations, oral or
otherwise, express or implied, have been made by any party hereto with respect
to the subject matter hereof that are not set forth expressly in this
Agreement. This Agreement supersedes and cancels any prior agreement,
arrangement or understanding entered into between Employer and Employee
relating to the subject matter hereof.
Xxxxx Employment Agreement
June 20, 1997
Page 14
15
6.11 COUNTERPARTS. The parties may execute this Agreement in any number
of counterparts, each of which is an original, but all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
EMPLOYER:
XXXXXX PETROLEUM SERVICES CORP.
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: President
-------------------------------------
Address: One Xxxxxxxx Center
X.X. Xxx 0000
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
EMPLOYEE:
/s/ Xxxx Xxxxx
---------------------------------------------
Xxxx Xxxxx:
Address: 101 S. Timber Top
----------------------------------
Xxx Xxxxxxxxx, XX 00000
----------------------------------
----------------------------------
Xxxxx Employment Agreement
June 20, 1997
Page 15
16
EMPLOYER ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF XXXXXXXXXX )
Before me, the undersigned authority, on this date personally appeared
Xxxxx X. Xxxx, President, of Xxxxxx Petroleum Services Corp., a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and as
the act and deed of said corporation.
Given under my hand and seal this 20th day of June, 1997.
[SEAL] /s/ XXXXX XXXXX
-------------------------------------
Notary Public in and for
The State of Texas
My Commission Expires: 00-00-00
XXXXXXXX XXXXXXXXXXXXXX
XXXXX XX XXXXX )
)
COUNTY OF XXXXXXXXXX )
Before me, the undersigned authority, on this date personally appeared
Xxxx Xxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
Given under my hand and seal this 20th day of June, 1997.
[SEAL] /s/ XXXXX XXXXX
-------------------------------------
Notary Public in and for
The State of Texas
My Commission Expires: 11-25-97
Xxxxx Employment Agreement
June 20, 1997
Page 16
