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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, effective October 1, 1996 by and between Xxxxxxx
X. Xxxxxxxx (the "Employee") and Xxxxxx Industries, Inc. (the "Corporation"), a
Delaware corporation.
WHEREAS, the Corporation currently employs the Employee in the capacity
of Vice Chairman and as President of its subsidiary, Xxxxxx Drilling U.S.A.;
and
WHEREAS, the Compensation Committee of the Board of Directors (the
"Compensation Committee") approved the terms of this Agreement,
NOW, THEREFORE, in consideration of the conditions and covenants set
forth herein, the parties agree as follows;
1. Employment. The Corporation hereby agrees to employ the Employee
pursuant to the terms and conditions of this Agreement effective the date
hereof (the "Effective Date"), and the Employee hereby accepts such employment
by the Corporation upon such terms and conditions.
2. Responsibilities and Duties. During the Term of Employment (as
defined in Section 4 hereof) the Employee shall be employed by the Corporation
as a member of the Executive Committee and Officer of the Corporation with such
responsibilities and duties as the Board of Directors of the Corporation
("Board") may from time to time determine consistent with the Employee's
position. The Employee shall devote his full working time to the performance of
his responsibilities and duties hereunder. The Employee's principal duties
shall be rendered at the Corporation's headquarters in Houston, Texas.
During the Term of Employment, the Employee will not, without the prior
written consent of the Board, render services, whether or not compensated, to
any other person or entity as an employee, independent contractor or otherwise,
provided, however, that nothing herein shall restrict the Employee from
rendering services to charitable organizations and from managing his personal
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investments in such manner as shall not interfere with the performance by the
Employee of his duties hereunder.
During the Term of Employment the Employee agrees to comply with the
policies of the Corporation with respect to conflicts of interest and business
ethics as may be adopted by the Board from time to time.
If elected in a manner consistent with the By-Laws of the Corporation,
the Employee also shall serve as a member of the Corporation's Board of
Directors.
3. Compensation. The Corporation shall compensate the Employee
during the Term of Employment hereunder in the following manner:
(a) Base Salary. During the Term of Employment, tThe Corporation shall
pay the Employee a base salary at the annual rate of $275,000 (the "Base
Salary"). Effective October 1, 1997 the Base Salary shall be $450,000. The
Base Salary is payable in accordance with the regular payroll practices of the
Company subject to review by the Board of Directors or its Compensation
Committee annually.
(b) Annual Cash Bonus. The Employee shall be entitled to additional
cash bonus compensation, the amount of which shall be determined in the
discretion of the Compensation Committee for each fiscal year during the Term
of Employment.
(c) Stock Option and Stock Grant Awards. The Corporation may award
stock options and stock grants from time to time as it deems appropriate.
4. Term of Employment.
(a) The Employee's term of employment hereunder ("Term of Employment")
shall commence on the Effective Date and shall continue until the Termination
Date, which shall mean the earliest to occur of:
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(i) September 30, 2001 (the "Expiration Date"), provided that on
each October 1st of every succeeding year after October 1, 1996, the
then Expiration Date shall be extended automatically for an additional
one year term unless ten (10) days prior to such October 1st, a written
notice of expiration is given by Company in writing to Employee and
delivered personally to him and by certified mail to his place of
notice set forth in Section 17;
(ii) the death of the Employee;
(iii) the permanent and total disability of the Employee which
renders him unable to perform his duties hereunder;
(iv) the partial or total disability of the Employee which
renders him unable to perform his duties hereunder for a period of at
least 180 consecutive days
(v) the discharge of the Employee by the Board of Directors of
the Corporation "for cause" which shall mean only one or more of the
following:
(A) The commission in the course of the Employee's
employment by the Corporation of any fraudulent act or dishonesty;
(B) Conviction of a felony (from which, through lapse of
time or otherwise, no successful appeal shall have been made)
whether or not committed in the course of his employment by the
Corporation;
(C) The willful refusal to carry out reasonable instructions
of the Board; provided, however, that the Employee may only be
discharged after he shall have been given 30 days written notice
setting forth his alleged deficiencies and; provided, further, that
the Employee shall be suspendable with pay for such 30-day period
and that he shall not, within such 30-day period, have ceased or
otherwise cured the activity or activities or omission constituting
the grounds for termination; and
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(D) The willful disclosure of any trade secrets or
confidential corporate information of the Corporation to persons
not authorized to know same, unless such disclosure is required by
any law or court order or similar process.
(vi) the voluntary written resignation by the Employee.
(b) In the event of voluntary written resignation, the Employee shall
continue to serve until released by the Board or for a period of four months,
whichever comes first.
5. Effects of Termination.
(a) In the event that the Employee is terminated for any reason other
than a termination by the Corporation for cause or a termination by Employee
upon voluntary resignation by reason of death or disability of the Employee or
by discharge of the Employee by the Corporation in breach of this Agreement,
the Employee (or his estate, as the case may be) shall be entitled to receive,
upon the occurrence of any such event:
(i) all Base Salary which would have been payable for the period
from the Termination Date until the Expiration Date;
(ii) all "Deemed Bonus" for each fiscal year which would have been
payable for the period from the Termination Date until the Expiration
Date. For this purpose, "Deemed Bonus" for each fiscal year shall equal
the highest cash bonus paid to Employee during the last three fiscal years
prior to the Termination Date;
(iii) such benefits as he may be entitled to under any welfare plans
or pension plans as defined in Sections 3(1) and 3(2) of the Employee
Retirement Income Security Act of 1974 (as amended) respectively, that are
or may be maintained by the Corporation, which would have been payable
through Expiration Date December 3l, 1995 as if such date was the
Termination Date;
(iv) any restricted stock outstanding, whether or not vested, shall
become immediately and fully vested and transferable to the full extent
possible at the time of termination;
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(v) any outstanding stock option (including any reload rights
contained therein) of any kind whatsoever shall become immediately and
fully vested and transferable to the full extent possible at the time of
termination without regard to any contingencies or conditions specified
therein, for the remainder of the original term of the option;
(vi) any amounts earned, accrued or owing to Executive but not yet
paid, including any and all obligations to be performed following
termination under Sections 6-9. Executive, or his designee, shall be
entitled to continue to receive all the benefits set forth in Section 6-9
through the later of: (1) Expiration Date as if no termination occurred,
or (2) three-years from the Termination Date.
(b) In the event that the Employee is terminated for cause or voluntarily
resigns in writing, he shall be entitled to receive the options as to which his
right of exercise has vested under any stock option plans.
(c) The Employee, by written notice to the Board (or to the Board of its
successor entity in the event of a merger, consolidation or sale of
substantially all of the assets of the Corporation) may elect to treat a Change
in Control as defined in Section 11 (a) (i) of this Agreement or any breach of
this Agreement by the Corporation (or by any such successor) of any of its
obligations under this Agreement, as a discharge of the Employee without cause
in breach of this Agreement, entitling the Employee to receive, upon the giving
of such notice, the payments provided for in paragraph (a) of this Section 5.
Notice pursuant to this Section 5 may be given by the Employee at any time
within six (6) months after the occurrence of either the Change in Control or
any breach of this Agreement which the Employee deems to be a discharge of the
Employee without cause by the Corporation.
6. Vacation. The Employee shall be entitled to paid vacation of six weeks
per Salary Year. Vacation shall be taken each Salary Year and, if not taken,
shall be forfeited.
7. Reimbursement of Expenses. The Corporation shall promptly reimburse
the Employee for all reasonable, ordinary and necessary expenses incurred by him
in the performance of his duties
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hereunder and the Employee shall account to the Corporation there for in the
manner normally prescribed by the Corporation for reimbursement of the
Employee's expenses.
8. Other Compensation.
(a) During the Term of Employment, the Corporation shall provide
comprehensive medical, disability, and life insurance protection for the
Employee and his dependents, in accordance with the general policies of the
Corporation as in effect from time to time.
(b) The Corporation shall provide a policy of life insurance on the
life of the Employee in the amount of not less than $2,000,000 for the Employee,
under a split dollar life insurance agreement in the Employee's or his
designees name(s) on the life of the Employee alone (or joint survivorship with
his spouse). The Employee or his assignee shall bear and incur that part of the
annual premium on such policy equal to the amount of the entire economic benefit
that would be taxable to the Employee but for such payment as computed in
accordance with applicable Internal Revenue Service standards and (B) the
Corporation shall bear and incur the remainder of such premium. The terms and
conditions of this survivorship split dollar insurance arrangement shall be
evidenced in a separate split dollar agreement to be entered into between the
Employee or his assignee and the Corporation.
(c) The Corporation shall provide the Employee with an automobile, and
shall pay all related maintenance, repairs, insurance and other costs incurred
with respect to such automobile.
(d) The Corporation shall pay for club memberships necessary and
appropriate to the conduct of the Corporation's business.
(e) The Corporation shall provide the Employee with personal financial
(including tax) counseling by a firm to be chosen by the Employee.
(f) The Corporation shall provide the Employee with a personal umbrella
policy in the amount of $5,000,000.
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9. Life Insurance. The Corporation in its discretion may apply for
and procure as owner and for its own benefit, insurance on the life of the
Employee, in such amount and in such forms as the Corporation may choose. The
Employee shall have no interest whatsoever in any such policy or policies, but,
at the request of the Corporation, shall submit to medical examinations and
supply such information and execute such documents as may reasonably be
required by the insurance company or companies to which the Corporation has
applied for insurance.
10. Non-Disclosure, Non-Competition and Non-Solicitation
(a) Non-Disclosure. The Employee agrees that all information
pertaining to the prior, current or contemplated business of the Corporation
and its subsidiaries (excluding (i) publicly available information (in
substantially the form in which it is publicly available) unless such
information is publicly available by reason of unauthorized disclosure and (ii)
information of a general nature not pertaining exclusively to the Corporation
which is generally available) are valuable and confidential assets of the
Corporation. Such information shall include, without limitation, information
relating to trade secrets, supplier lists, customer lists, financing
techniques, bidding procedures and sources and such financial statements of the
Corporation as are not available to the public. The Employee shall hold all
such information in trust and confidence for the Corporation and shall not use
or disclose any such information for other than the Corporation's business and
shall be liable for damages incurred by the Corporation as a result of
disclosure of such information by the Employee for any purpose other than the
Corporation's business, either during his employment or after his employment
terminates for whatever reason.
(b) Non-Competition. Employee agrees that during the one year period
following a termination for cause or the resignation of the Employee, he will
not accept any employment with, or render any services to, any person, firm or
corporation which competes with the Corporation's or its subsidiaries' drilling
or drilling-related activities and oil rig service or transportation business
in Alaska, Canada, the Lower 48 area, the Gulf of Mexico, the Middle East, the
North Sea, South America or the Far East.
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(c) Non-Solicitation. Employee shall not, during his employment and
for a period of one year after the Termination Date, directly or indirectly,
individually or on behalf of other person, aid or endeavor to solicit or induce
(i) then remaining employees of the Corporation and its subsidiaries to leave
their employment with the Corporation in order to accept employment with another
person or entity, or (ii) then customers of the Corporation to purchase products
or services then sold or provided by the Corporation from another person or
entity.
(d) No Adequate Remedy at Law. It is agreed that it is impossible to
measure in money the damages which will accrue to the Corporation in the event
the Employee breaches any of the covenants in paragraphs (a) through (c) above
and, if the Corporation shall institute any action or proceeding to enforce
those covenants, the Employee hereby waives and agrees not to assert the claim
or defense that the Corporation has an adequate remedy at law. The foregoing
shall not prejudice the Corporation's right to require the Employee to account
for and pay over to the Corporation the amount of any actual damages incurred
by the Corporation as a result of any such breach, up to, but not in excess of
the compensation and other benefits derived or received by the Employee as a
result of any transaction constituting a breach of the covenants set forth in
paragraph (a), (b) or (c) above.
11. Indemnification.
(a) Defined Terms. For purposes of Sections 5 (c) and 11 through
15 inclusive, the following terms shall have the meaning given here:
(i) "Change of Control" shall mean any of the following
events:
(A) Unless approved by the affirmative vote of at
least two-thirds (2/3) of those members of the Board who are
in office immediately prior to the event(s) and who are not
employees of the Corporation:
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(1) the merger or consolidation of the
Corporation with, or the sale of all or substantially
all of the assets of the Corporation to, any person
or entity or group of associated persons or entities;
or
(2) the direct or indirect beneficial
ownership in the aggregate of securities of the
Corporation representing twenty percent (20%) or more
of the total combined voting power of the
Corporation's then issued and outstanding securities
by any person or entity, or group of associated
persons or entities acting in concert, not affiliated
(within the meaning of the Securities Act of 1933, as
amended) with the Corporation as of the Effective
Date; or
(3) approval by the stockholders of the
Corporation of any plan or proposal for the
liquidation or dissolution of the Corporation.
(B) A change in the composition of the Board at
any time during any consecutive twenty-four (24) month period
such that the "Continuing Directors" cease for any reason to
constitute at least a seventy percent (70%) majority of the
Board.
For purposes of this clause (B) the "Continuing Directors"
shall mean those members of the Board who either:
(1) were directors at the beginning of such
consecutive 24-month period; or
(2) were elected by, or on the nomination or
recommendation of, at least a two-thirds (2/3) majority
(consisting of at least four directors) of the then existing
Board.
(ii) "Corporate Status" shall mean the status of a person
who is or was a director, officer or fiduciary of the Corporation or
of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving
at the express written request of the Corporation.
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(iii) "Disinterested Director" shall mean a director of the
Corporation who is not and was not a party to the Proceeding in
respect of which indemnification is sought by the Employee.
(iv) "Enterprise" shall mean the Corporation and any other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which the Employee is or was serving as a
director, officer or fiduciary at the express written request of the
Corporation.
(v) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating or being or preparing to be a witness in a
Proceeding.
(vi) "Good Faith" shall mean the Employee's having acted
in good faith and in a manner the Employee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and,
with respect to any criminal Proceeding, having had no reasonable
cause to believe his conduct was unlawful.
(vii) "Independent Counsel" means a law firm, or a member
of a law firm, that is experienced in matters of corporation law and
neither presently is, not in the past five (5) years has been,
retained to represent: (i) the Corporation or Employee in any matter
material to either party, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "independent Counsel" shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Corporation or the Employee in an action to determine the
Employee's rights under this Agreement.
(viii) "Proceeding" includes any action, suit arbitration,
alternate dispute resolution mechanism, investigation, administrative
hearing or any other actual, threatened or
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completed proceeding, whether civil, criminal, administrative or
investigative, other than one initiated by the Employee.
(b) In General. In connection with any Proceeding involving acts
or omissions occurring subsequent to the Effective Date, the Corporation shall
indemnify and advance Expenses to the Employee as provided in this Agreement to
the fullest extent permitted by applicable law in effect on the Effective Date
and to such greater extent as applicable law may thereafter from time to time
permit.
(c) Proceedings Other Than Proceedings by or in the Right of
Corporation. If, by reason of the Employee's Corporate Status, the Employee is
or is threatened to be made a party to any Proceeding other than a Proceeding
by or in the right of the Corporation, the Corporation shall indemnify the
Employee against Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by the Employee or in the
Employee's behalf in connection with such Proceeding or any claim, issue or
matter therein if the Employee acted in Good Faith.
(d) Proceedings by or in the Right of Corporation. If, by reason
of the Employee's Corporate Status, the Employee is, or is threatened to be
made a party to any Proceeding brought by or in the right of the Corporation to
procure a judgment in its favor, the Employee shall be indemnified against
Expenses, judgments, penalties and amounts paid in settlement, actually and
reasonably incurred by the Employee or on the Employee's behalf in connection
with such Proceeding if the Employee acted in Good Faith. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which the Employee shall have been adjudged
to be liable to the Corporation if applicable law prohibits such
indemnification; provided, however, that if applicable law so permits,
indemnification shall nevertheless be made by the Corporation in such event if
and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such Proceeding shall have been brought or is pending shall
determine.
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(e) Indemnification of a Party who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that the
Employee is, by reason of the Employee's Corporate Status, a party to and is
successful on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding the Corporation shall indemnify
the Employee to the maximum extent permitted by law against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by the Employee or on the Employee's behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this
paragraph (e) and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter, so long as
there has been no finding (either adjudicated or pursuant to this Section 10)
that the Employee did not act in Good Faith.
(f) Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that the
Employee is, by reason of the Employee's Corporate Status, a witness in any
Proceeding, the Employee shall be indemnified against all Expenses actually and
reasonably incurred by the Employee or on the Employee's behalf in connection
therewith.
(g) Successors. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Agreement shall continue as to the
Employee and shall inure to the benefit of the heirs, executors and
administrators of the Employee.
12. Advancement of Expenses. Notwithstanding any provision to the
contrary in Section 10 the Corporation shall advance all reasonable Expenses,
which, by reason of the Employee's Corporate Status, were incurred by or on
behalf of the Employee in connection with any Proceeding, within twenty (20)
days after the receipt by the Corporation of a statement or statements from the
Employee requesting such advance or advances, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by the Employee and shall include or be preceded
or accompanied by an undertaking by or on behalf of the Employee to repay any
Expenses if it shall ultimately be determined that the Employee is not
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entitled to be indemnified against such Expenses. Any advance and undertakings
to repay pursuant to this Section 12 shall be unsecured and interest-free.
13. Procedures for Determination of Entitlement to
Indemnification.
(a) Initial Request. To obtain indemnification under this
Agreement, the Employee shall submit to the Corporation a written request,
including therein or therewith such documentation and information as is
reasonably available to the Employee and which is reasonably necessary to
determine whether and to what extent the Employee is entitled to
indemnification. The Secretary of the Corporation shall promptly advise the
Board in writing that the Employee has requested indemnification.
(b) Method of Determination. A determination (if required by
applicable law) with respect to the Employee's entitlement to indemnification
shall be made as follows;
(i) if a Change in Control has occurred, unless the
Employee shall request in writing that such determination be made in
accordance with paragraph (b) (ii) of this Section 12, the
determination shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to the
Employee;
(ii) if a Change of Control has not occurred the determination
shall be made by the Board by a majority vote of a quorum consisting
of Disinterested Directors. In the event that a quorum of the Board
consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, the
determination shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to the
Employee.
(c) Selection, Payment and Discharge of Independent Counsel. In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(b) of this Agreement, the
Independent Counsel shall be selected, paid and discharged in the following
manner:
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(i) If a Change of Control has not occurred the
Independent Counsel shall be selected by the Board and the Corporation
shall give written notice to the Employee advising the Employee of the
identity of the Independent Counsel so selected.
(ii) If a Change of Control has occurred, the Independent
Counsel shall be selected by the Employee (unless the Employee shall
request that such selection be made by the Board, in which event
clause (i) of this Section shall apply), and the Employee shall give
written notice to the Corporation advising it of the identity of the
Independent Counsel so selected.
(iii) Following the initial selection described in clauses
(i) and (ii) of this Section 13(c), the Employee or the Corporation,
as the case may be, may, within seven (7) days after such written
notice of selection has been given, deliver to the other party a
written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" and the objection shall
set forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the person so selected shall act
as Independent Counsel. If such written objection is made, the
Independent Counsel so selected may not serve as Independent Counsel
unless and until a court has determined that such objection is without
merit.
(iv) Either the Corporation or the Employee may petition
the Court of Chancery of the State of Delaware or other court of
competent jurisdiction if the parties have been unable to agree on the
selection of Independent Counsel within twenty (20) days after
submission by the Employee of a written request for indemnification
pursuant to Section I (2) of this Agreement. Such petition may request
a determination whether an objection to the party's selection is
without merit and/or seek the appointment as Independent Counsel of a
person selected by the Court shall designate. A person so appointed
shall act as Independent Counsel under Section 13(b) of this
Agreement.
(v) The Corporation shall pay any and all reasonable fees
and expenses of Independent counsel incurred by such Independent
Counsel in connection with acting pursuant to
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this Agreement, and the Corporation shall pay all reasonable fees and
expenses incident to the procedures of this Section 13(c), regardless
of the manner in which such Independent Counsel was selected or
appointed.
(vi) Upon the due commencement of any judicial proceeding
or arbitration pursuant to Section 14(b) of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards
of professional conduct then prevailing).
(d) Cooperation. The Employee shall cooperate with the person,
persons or entity making the determination with respect to the Employee's
entitlement to indemnification under this Agreement, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to the Employee and
reasonably necessary to, such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by the Employee in so cooperating
with the person, persons or entity making such determination shall be borne by
the Corporation (irrespective of the determination as to the Employee's
entitlement to indemnification) and the Corporation hereby indemnifies and
agrees to hold the Employee harmless therefrom.
(e) Payment. If it is determined that the Employee is entitled to
indemnification, payment to the Employee shall be made within ten (10) days
after such determination.
14. Presumption and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to
entitlement of indemnification hereunder, the person or persons or entity
making such determination shall presume that the Employee is entitled to
indemnification under this Agreement if the Employee has submitted a request
for indemnification in accordance with Section 13(a) of this Agreement, and the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making of any person, persons or entity of any
determination contrary to that presumption.
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(b) Effect of Other Proceedings. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of the Employee to indemnification or create a presumption
that the Employee did not act in Good Faith.
(c) Reliance as Safe Harbor. For purposes of any determination of
Good Faith, the Employee shall be deemed to have acted in Good Faith if the
Employee's action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to the
Employee by the officers of the Enterprise in the course of their duties, or on
information or records given or reports made to the Enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise. The provisions of this Section
13(c) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Employee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(d) Actions of Others. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Enterprise shall not be
imputed to the Employee for purposes of determining the right to
indemnification under this Agreement.
15. Remedies of the Employee.
(a) Application. This Section 15 shall apply in the event of a
dispute. For purposes of this Section, "Dispute" shall mean any of the
following events:
(i) a determination is made pursuant to Section 12 of this
Agreement that the Employee is not entitled to indemnification under
this Agreement;
(ii) advancement of Expenses is not timely made pursuant to
Section I1 of this Agreement;
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(iii) the determination of entitlement to be made pursuant to
Section 12(b) of this Agreement has not been made within ninety (90)
days after receipt by the Corporation of the request for
indemnification;
(iv) payment of indemnification is not made pursuant to
Section 11(f) of this Agreement within ten (10) days after receipt by
the Corporation of a written request therefor; or
(v) payment of indemnification is not made within ten (10)
days after a determination has been made that the Employee is entitled
to indemnification or such determination is deemed to have been made
pursuant to Section 1 of this Agreement.
(b) Adjudication. In the event of a Dispute, the Employee shall
be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of the Employee's
entitlement to such indemnification or advancement of Expenses. Alternatively,
the Employee at the Employee's option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules then obtaining of the
American Arbitration Association. The Employee shall commence such proceeding
seeking an adjudication or an award in arbitration within one hundred eighty
(180) days following the date on which the Employee first has the right to
commence such proceeding pursuant to this Section 14(b). The Corporation shall
not oppose the Employee's right to seek any such adjudication or award in
arbitration.
(c) De Novo Review. In the event that a determination shall have
been made pursuant to Section 12 of this Agreement that the Employee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 14 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Employee shall not be prejudiced
by reason of that adverse determination. In any such proceeding or arbitration,
the Company shall have the burden of proving that the Employee is not entitled
to indemnification or advancement of Expenses, as the case may be.
(d) Corporation Bound. If a determination shall have been made or
deemed to have been made pursuant to Section 12 of this Agreement that the
Employee is entitled to indemnification, the
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Corporation shall be bound by such determination in any judicial proceeding or
arbitration absent (i) a misstatement by the Employee of a material fact, or a
failure to disclose facts which would make Employee's statement not materially
misleading, in connection with the request for indemnification or (ii) a
prohibition of such indemnification under applicable law.
(e) Procedures Valid. The Corporation shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 14 that the procedures and presumptions of Sections 12 and 13 are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Corporation is bound by all the provisions of this
Agreement.
(f) Expenses of Adjudication. In the event that the Employee,
pursuant to this Section I1, seeks a judicial adjudication of or an award in
arbitration to enforce the Employee's rights under, or to recover damages for
breach of, this Agreement, the Employee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by the Employee, in such adjudication
or arbitration, but only if and to the extent that the Employee prevails
therein.
16. Non-Exclusivity Insurance, Subrogation.
(a) Non-Exclusivity. The rights of Employee to be indemnified and
to receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which the Employee may at any time be
entitled under applicable law, the Certificate of Incorporation, the By-Laws,
any agreement, a vote of stockholders, a resolution of directors or otherwise.
No amendment, alteration, rescission or replacement of this Agreement or any
provision hereof shall be effective as to the Employee with respect to any
action taken or omitted by such the Employee in the Employee's Corporate Status
prior to such amendment, alteration, rescission or replacement.
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(b) Insurance. The Company may maintain an insurance policy or
policies against liability arising out of this Agreement or otherwise.
However, nothing contained in this Agreement shall obligate the Corporation to
maintain any directors' and officers' liability insurance.
(c) Subrogation. In the event of any payment under this Agreement,
the Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Employee, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
(d) No Duplicative Payment. The Corporation shall not be liable
under this Agreement to make any payment of amounts otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
17. General Provisions.
(a) Successors and Assigns. This Agreement shall be binding upon
the Corporation and its successors and assigns and shall inure to the benefit
of the Employee and the Employee's heirs executors and administrators.
(b) Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section
of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or
unenforceable.
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(c) Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
(d) Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
the parties hereto. No waiver of any other provisions hereof (whether or not
similar) shall be binding unless executed in writing by both the parties
hereto, nor shall such waiver constitute a continuing waiver.
(e) Notice. Any notice to be given hereunder shall be given in
writing. Notice shall be deemed to be given when delivered by hand to, or
fifteen days after being mailed, postage prepaid, registered with return
receipt requested, addressed to:
If to the Corporation:
Xxxxxx Industries, Inc.
000 X. Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chairman of the Board
If to Employee:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
or to such other address as either party may specify to the other in writing.
(f) Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which shall constitute one and the same Agreement.
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(g) Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Texas.
(h) Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the employment of Employee by the
Corporation and supersedes any and all prior understandings, agreements or
correspondence between the parties.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
signed by its duly authorized representative and Employee has hereunto set his
hand as of the day and year first above written.
XXXXXX INDUSTRIES, INC.
By:
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Xxxxxxx X. Xxxxxxxx
Attest:
XXXXXXX X. XXXXXXXX
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