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EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into to be effective April 1, 1996 (the "Effective Date"), by and
between XXXXXX PRODUCTION SERVICES, INC. (together with its successors, the
"Company") and XXXXXX X. XXXXXXX (the "Executive").
WHEREAS, the Executive is an individual residing in _______, Texas;
WHEREAS, the Company is a Texas business corporation engaged in the
well-servicing business with its principal place of business in San Antonio,
Texas;
WHEREAS, the Executive has considerable experience, expertise and
training in management related to the types of services offered by the Company;
and
WHEREAS, the Company desires and intends to employ the Executive as
Vice President of Operations and Chief Operating Officer of the Company
pursuant to the terms and conditions set forth in this Agreement; and
WHEREAS, both the Company and the Executive have read and understood
the terms and provisions set forth in this Agreement, and have been afforded a
reasonable opportunity to review this Agreement with their respective legal
counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Employment Agreement, the Executive and the Company agree as
follows:
1. RESPONSIBILITIES:
a. The Executive acknowledges and agrees that he shall be
employed as Vice President of Operations and Chief Operating Officer of the
Company. The Executive covenants and agrees that he will faithfully devote his
best efforts and such portion of his time, attention and skill to the business
of the Company as is necessary to perform his obligations under this Agreement.
b. The Executive acknowledges and agrees that he has a fiduciary
duty of loyalty to the Company, and that he will not engage in any activity
which will or could in any way, harm the business, business interests or
reputation of the Company.
c. The Executive acknowledges and agrees that he will not
directly or indirectly engage in competition with the Company at any time
during the existence of the employment relationship between the Company and the
Executive, and Executive will not on his own behalf, or as another's agent,
employee, partner, shareholder or otherwise, engage in any of the same or
similar duties and/or responsibilities required by the Executive's position
with the Company, other than as an employee of the Company pursuant to this
Agreement.
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d. The Executive acknowledges and agrees that all information
concerning the Company's products, techniques, equipment, pricing, business
projections, business plans and strategies, marketing plans, sales techniques,
customer contacts, customer needs and prospective customers is highly sensitive
and confidential, and has been obtained only through significant effort and
expense to the Company; and that, as a result, the Executive must agree to
treat this information as highly confidential trade secret information at all
times during the existence of the employment relationship between the Company
and the Executive, and after the termination of the employment relationship.
2. COMPENSATION: During his employment pursuant to this Agreement, the
Company agrees to provide the Executive the following compensation:
a. BASE SALARY: From the Effective Date until changed as
provided in this section, the Company agrees to pay the Executive an annual
salary of $125,000.00 during the first year of employment with the Company
under this Agreement, payable in at least equal monthly installments in
accordance with the Company's ordinary payroll policies and procedures for
executive compensation. Such salary shall increase to an annual rate of
$132,500.00 on April 1, 1997 and to an annual rate of $140,000.00 on April
1,1998. Such salary shall be subject to withholding for the prescribed federal
income tax, social security and other items as required by law and for other
items consistent with the Company's policy with respect to health insurance and
other benefit plans for similarly situated employees. The above-described
annual salary as in effect from time-to-time hereunder is referred to herein as
the "Base Salary" subject to renegotiation.
b. BUSINESS EXPENSES: The Company shall reimburse all reasonable
travel and entertainment expenses incurred by Executive in connection with the
performance of his duties pursuant to this Agreement. The Executive shall
provide the Company with a written monthly accounting of his expenses on a form
acceptable to the Company and satisfying any applicable federal income tax
reporting or record keeping requirements, within a reasonable time following
the end of each month.
c. DISCRETIONARY INCENTIVE BONUS: In the discretion of the Board
of Directors of the Company, and without implying any obligation on the Company
ever to award a bonus to Executive, Executive may from time to time be awarded
an annual cash bonus during the term of his employment under this Agreement.
If the Company has an executive bonus plan in effect (as any such plan may be
amended from time-to-time), the annual bonus to Executive referenced in the
preceding sentence shall be in general accordance with such plan and with
Executive's status and position with the Company; provided, however, all such
bonuses are entirely discretionary with the Board of Directors. If and to the
extent a bonus is ever considered for Executive, it is expected that any such
bonus will be based not only on Executive's individual performance and his
relative position, service tenure and responsibilities with Company, but also
on the performance and profitability of the entire business of Company.
d. EMPLOYEE BENEFITS: The Executive acknowledges and agrees that
certain employee benefits will be provided to the Executive incident to his
employment as Vice President of
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Operations and Chief Operating Officer of the Company. During the term of this
Agreement, Executive shall be entitled to receive such benefits as are made
available to other personnel of the Company in comparable positions, with
comparable duties and responsibilities. Any benefits substantially in excess
of those granted other salaried employees of Company shall be the subject of
prior approval of the Board of Directors. Additionally, for purposes of
determining eligibility, funding or vesting with respect to any other benefits,
the Executive's prior service with Company and any predecessor of Company shall
be deemed to be service with the Company.
3. DURATION: The duration of this Agreement shall be defined and
determined as follows:
a. INITIAL TERM: This Agreement shall continue in full force and
effect for three (3) years (the "Initial Term"), commencing on the
Effective Date and expiring on April 1, 1999 (the "Expiration Date"), unless
terminated prior to the Expiration Date in accordance with Section 3(c).
b. RENEWAL: This Agreement is not subject to an automatic
renewal on the Expiration Date and is renewable only if both parties mutually
agree in writing.
c. TERMINATION: This Agreement may be terminated by the Company
as follows:
(1) DEATH: In the event of the Executive's death, this
Agreement shall terminate immediately, without notice, on the date of the
Executive's death; provided, however, that the Company shall pay the
Executive's estate the Base Salary that the Executive would have earned for a
period of ninety (90) days following the date of death and a pro rated amount
of the discretionary incentive bonus, if any, paid to Executive for the prior
contract year pursuant to Section 2(c), in the time and manner in which the
Executive would have been paid such compensation. In addition, the Executive's
designated beneficiaries shall be entitled to receive any life insurance
benefits provided to the Executive in accordance with the applicable plan
documents and/or insurance policies governing such benefits.
(2) DISABILITY: In the event the Executive becomes
physically or mentally disabled, as that term is defined by 29 CFR Section
1630.2(g)(1), and is unable to perform the essential functions of his position,
with reasonable accommodation, for a period of one hundred eighty (180)
consecutive days, this Agreement shall terminate immediately, without notice.
(3) GOOD CAUSE:
(a) This Agreement may be terminated by providing
the Executive with thirty (30) days written notice that the Company is
terminating the Agreement for Good Cause, as defined herein ("Notice of
Termination for Good Cause") at any time during his employment. In the event
that Good Cause exists for terminating this Agreement, the Company may elect to
provide the Executive with thirty (30) days pay in lieu of notice, in addition
to any other amounts due under this Agreement.
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(b) For purposes of this Agreement, "Good Cause"
shall be defined as follows:
i) Any act or omission constituting
fraud under the law of the State of Texas; or
ii) Conviction of, or a plea of nolo
contendere to, a felony or any misdemeanor
involving moral turpitude; or
iii) Embezzlement or theft of Company
property or funds; or
iv) The material breach of any provision
of this Agreement; or continued gross neglect
of his duties under this Agreement; or
unauthorized competition with the Company
during his employment pursuant to this
Agreement; or unauthorized use of
Confidential Information (as defined in
Section 9); which is materially detrimental
to the Company; or
v) Engagement in gross misconduct in
the course and scope of his employment with
the Company, including, without limitation,
dishonesty, unlawful harassment, abuse of
alcohol or controlled substances, or
fighting.
(c) In the event the Company believes "Good
Cause" exists for terminating this Agreement pursuant to this section, the
Company shall be required to give the Executive written Notice of the acts or
omissions constituting "Good Cause" ("Cause Notice"), and no Notice of
Termination shall be communicated by the Company unless and until the Executive
fails to cure such acts or omissions within fifteen (15) days after receipt of
the Cause Notice.
(d) In the event the Company communicates Notice
of Termination For Good Cause pursuant to this section, the Executive shall
have the right to a hearing before the Board of Directors, within fifteen (15)
days after the date such Notice is received, to contest the
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alleged "Good Cause" for the Notice of Termination. In the event that the
Board of Directors affirms the "Good Cause" for termination, the Executive
shall have the right to give Arbitration Notice under Section 10(a) prior to
the effective date of termination of this Agreement; provided, however, that in
the event that the Executive communicates Arbitration Notice, the Company shall
have the right to discontinue any payments required under this Agreement
(subject to the payment of such amounts into an interest bearing account in
accordance with Section 10(b)) and suspend the Executive from performing any
duties under this Agreement pending the outcome of the arbitration proceeding.
(4) WITHOUT GOOD CAUSE:
(a) This Agreement shall terminate by the Company
providing thirty (30) days written notice to the Executive that the Company is
terminating the Agreement Without Good Cause, as defined herein ("Notice of
Termination Without Good Cause"), at any time during his employment; provided,
however, that the Company shall be required to pay Severance Pay in accordance
with the SEVERANCE provisions in Section 5.
(b) Any termination of this Agreement which is
not for "Good Cause," as defined above, or which does not result from the death
of the Executive, or the disability of the Executive, shall be deemed to be a
termination "Without Good Cause." Furthermore, in the event that the Company
communicates a Notice of Termination for Good Cause, and the arbitrators
pursuant to Section 10 determine that no Good Cause exists or existed for the
Notice of Termination that was originally communicated, then such Notice of
Termination shall be deemed to have been a communication of a Notice of
Termination Without Good Cause, as appropriate, for all purposes under this
Agreement.
(5) RESIGNATION: The Executive shall be entitled to
terminate this Agreement by providing the Company with a written Notice of
Resignation at least thirty (30) days prior to his intended resignation date,
subject to the following provisions:
(a) RESIGNATION FOR GOOD REASON: The Executive
shall have the right to resign for any "Good Reason," as defined herein, and
such resignation shall be deemed to be a termination "Without Good Cause" as
defined in Section 3(c)(4) for all purposes under this Agreement, including the
"Change in Control" provisions set forth in Section 4 and the Severance
provisions set forth in Section 5. For purposes of this Section, the term
"Good Reason" shall be defined as:
i) The Company's failure in any material respect
to perform any provision of this Agreement; or
ii) Any material changes in the duties and
responsibilities of the Executive under this
Agreement without the written consent of the
Executive; or
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iii) The hiring or promotion by the Company of
another executive employee to a position of equal or
greater responsibility for the management of the
Company without the written consent of the Executive;
or
iv) The Company's directing the Executive to work
at a location other than the Company's principal
office.
(b) RESIGNATION WITHOUT GOOD REASON: Any resignation by
the Executive for any reason other than "Good Reason," as defined above, shall
be deemed to be a resignation "Without Good Reason." In the event of a
Resignation Without Good Reason, the "Change in Control" provisions in Section
4 and the Severance provisions in Section 5 shall be inapplicable.
4. CHANGE OF CONTROL: The parties acknowledge that the Executive has
agreed to assume the position of Vice President of Operations and Chief
Operating Officer to enter into this Agreement based upon his confidence in the
current shareholders of the Company and the support of the Board of Directors
for the development of a new strategy for the Company. Accordingly, if the
Company should undergo a "Change of Control," as defined in this section, the
parties agree as follows:
a. DEFINITIONS: For purposes of this Agreement, a "Change of
Control" shall be deemed to exist in the event that any of the following
occurs:
(1) a change in the ownership of the capital stock of the
Company where a corporation, person or group acting
in concert (a "Person") as described in Section
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), holds or acquires,
directly or indirectly, beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of a number of shares of capital stock
of the Company which constitutes 40% or more (or, 30%
or more in the event the Company is subject to the
reporting requirements of Sections 12 or 15(d) under
the Exchange Act) of the combined voting power of the
Company's then outstanding capital stock then
entitled to vote generally in the election of
directors; or
(2) the persons who were members of the Board of
Directors immediately prior to a tender offer,
exchange offer, contested election or any combination
of the foregoing, cease to constitute a majority of
the Board of Directors of the Company; or
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(3) a dissolution of the Company, or the adoption by the
Company of a plan of liquidation, or the adoption by
the Company of a merger, consolidation or
reorganization involving the Company in which the
Company is not the surviving entity, or a sale of all
or substantially all of the assets of the Company
(for purposes of this Agreement, a sale of all or
substantially all of the assets of the Company shall
be deemed to occur if any Person acquires, or during
the 12-month period ending on the date of the most
recent acquisition by such Person, has acquired,
gross assets of the Company that have an aggregate
fair market value equal to 50% or more of the fair
market value of all of the gross assets of the
Company immediately prior to such acquisition or
acquisitions); or
(4) a tender offer or exchange offer is made by any
Person which, if successfully completed, would result
in such Person beneficially owning (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) either 50% or more of the Company's outstanding
shares of Common Stock or shares of capital stock
having 50% or more of the combined voting power of
the Company's then outstanding capital stock (other
than an offer made by the Company), and sufficient
shares are acquired under the offer to cause such
person to own 30% or more of the voting power; or
(5) a change in control is reported or is required to be
reported by the Company in response to either Item
6(e) of Schedule 14A of Regulations 14A promulgated
under the Exchange Act or Item 1 of Form 8-K
promulgated under the Exchange Act, which change in
control has not been approved by a majority of the
Board of Directors then in office who were directors
at the beginning of the two-year period ending on the
date the reported change in control occurred; or
(6) during any period of two consecutive years,
individuals who, at the beginning of such period
constituted the entire Board of Directors of the
Company, cease for any reason (other than death) to
constitute a majority of the directors, unless the
election, or the nomination for election, by the
Company's stockholders, of each new director was
approved by a vote of at least a majority of the
directors then still in office who were directors at
the beginning of the period.
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For purposes of Section 4(a)(1) above, if a Person were the beneficial owner of
30% or more or 40% or more, as applicable, of the combined voting power of the
Company's then outstanding securities as of the Effective Date and such Person
thereafter accumulates more than 5% of additional voting power, a Change of
Control of the Company shall be deemed to have occurred, notwithstanding
anything in this Agreement to the contrary. A Change of Control shall include
any other transactions or series of related transactions occurring which have
substantially the same effect as the transactions specified in any of the
preceding clauses of Section 4(a)(1)-(6). However, a Change of Control shall
not be deemed to occur if a Person becomes the beneficial owner of the
applicable percentage or more (as referenced above) of the combined voting
power of the Company's then outstanding securities solely by reason of the
Company's redemption or repurchase of securities; but further acquisitions by
such Person that cause such Person to be the beneficial owner of the applicable
percentage or more (as referenced above) of the combined voting power of the
Company's then outstanding securities shall be deemed a Change of Control.
b. VESTING OF STOCK OPTIONS: In the event of a Change of
Control, as defined in this section, all stock options then held by the
Executive for the purchase of equity securities of the Company shall
immediately become vested, effective on the date of the Change of Control.
5. SEVERANCE: Upon termination, Executive shall be entitled to the
following:
a. If the Company terminates this Agreement Without Good Cause as
that term is defined in Section 3(c)(4)(b) of this Agreement, except as
provided in Section 5(b) herein, Company agrees to pay to Executive a cash
payment equal to the sum of: (i) one year's salary of the Executive's then
current, annualized Base Salary, less statutory payroll deductions; (ii) all
accrued benefits; and (iii) a prorated amount of any incentive compensation
paid to Executive for the prior year.
b. In the event this Agreement is terminated within 12 months
after the date of a Change of Control as that term is defined in Section 4(a),
by the Company communicating a Notice of Termination Without Good Cause, the
Company agrees to pay the Executive a cash payment equal to the sum of: (i)
eighteen (18) months' salary of the Executive's then current, annualized Base
Salary less statutory payroll deductions; (ii) all accrued benefits; and (iii)
a prorated amount of any incentive compensation paid to Executive for the prior
year.
c. If Executive terminates this Agreement for "Good Reason" as
that term is defined in Section 3(c)(5)(a) of this Agreement within 12 months
after a Change of Control, Company shall pay to Executive a cash payment equal
to the sum of: (i) one (1) year's salary of the Executive's then current,
annualized salary less statutory payroll deductions; (ii) all accrued benefits;
and (iii) a prorated amount of any incentive compensation paid to Executive for
the prior year.
d. If Company terminates this Agreement For Good Cause as that
term is defined in Section 3(c)(3)(b) of this Agreement, Executive shall not be
entitled to receive any additional salary, benefits or incentive compensation
beyond those earned or accrued as of the effective date of the termination.
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e. Any termination of the Executive's employment shall not
release either Company or Executive from its or his respective obligations to
the date of termination nor from the provisions of Sections 8 and 9 hereof.
f. In the event this Agreement is terminated by the Company (i)
without "Good Cause"; (ii) upon the death or disability of the Executive as
that term is defined in Section 3(c)(1)-(2) of this Agreement; or (iii) by the
Executive for Good Reason, all stock options then held by the Executive for the
purchase of equity securities of the Company shall immediately become vested
upon the effective date of the termination.
g. TERMS OF PAYMENT: Severance pay required pursuant to this
Section shall be payable in cash on at least a monthly basis over the period of
time for which severance payments are due.
h. EXCEPTIONS: The severance payments described above shall not
be payable under this section in any of the following circumstances:
(1) In the event that this Agreement is terminated as a
result of the death or disability of the Executive, as provided in Sections
3(c)(1)-(2);
(2) In the event that this Agreement is terminated
pursuant to a Notice of Termination for Good Cause communicated by the Company,
as provided in Section 3(c)(3) and such termination is affirmed by the
arbitrators after an arbitration proceeding under Section 10; or
(3) In the event that the Executive communicates Notice
of Resignation Without Good Reason as defined in Section 3(c)(4)(b).
i. EXCLUSIVITY: The Company and the Executive acknowledge and
agree that the severance payments required under this section are intended to
be exclusive and to supersede any severance pay plans or policies adopted by
the Company and that the Executive shall not be entitled to any additional
severance compensation under any other severance plan or policy adopted by the
Company.
6. STOCK OPTIONS: In the sole discretion of the Board of Directors of
the Company, and without implying any obligation on Company, Company may grant
Executive options to purchase from the Company shares of the Company's common
stock (the "Option Stock") during the terms of his employment under this
Agreement. Executive shall be considered for the grant of options under any
option grant program the Company may have in effect from time-to-time,
consistent with the terms of any such program and with Executive's status and
position with the Company; provided, however, the grant of any option to
purchase stock shall be entirely discretionary with the Board of Directors. If
and to the extent the Company ever considers granting Executive an option to
purchase Option Stock, such grant will be based not only on the Executive's
individual performance and his relative position, service tenure and
responsibilities with the Company, but also on the performance and
profitability of the entire Company.
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a. STATUS OF THE EXECUTIVE: The Executive shall not be
considered a stockholder of the Company with respect to any shares of Option
Stock, except to the extent that the shares of Stock have been purchased by and
issued to the Executive.
b. EXERCISE OF OPTIONS: Executive shall have the right to
exercise any option to purchase part of the Option Stock granted to him by
Company after such option has vested in accordance with the vesting provisions
set forth in the option agreement, if any, reflecting the grant of options by
the Company.
7. SUCCESSORS AND ASSIGNS: The parties acknowledge and agree that this
Agreement may not be assigned by either party without the written consent of
the other party. In the event of a "Change of Control" as defined in Section
4(a), the Company's obligations under this Agreement shall be assumed by the
person or entity that survives such transaction, or by the person purchasing
assets constituting such Change of Control. In the event of the Executive's
death, this Agreement shall be enforceable by the Executive's estate, executors
or legal representatives, but only to the extent that such persons may collect
any compensation (including through the exercise of stock options) due to the
Executive under this Agreement.
8. INDEMNIFICATION: During and after the employment of the Executive
pursuant to this Agreement, the Company shall indemnify the Executive against
all judgments, penalties, fines, assessments, losses, amounts paid in
settlement and reasonable expenses (including, but not limited to, attorneys'
fees) for which the Executive may become liable as a result of his performance
of his duties and responsibilities pursuant to this Agreement, to the fullest
extent permissible under the laws of the State of Texas. This provision shall
be in addition to any other provisions of the Company's Articles of
Incorporation, Bylaws or Indemnification Agreements providing for
indemnification to the Executive.
9. NON-COMPETITION AND NON-DISCLOSURE: The Company and the Executive
agree as follows:
a. During and after his employment by the Company, the Executive
agrees that he shall not directly or indirectly disclose any Confidential
Information, as defined in this section, unless such disclosure is: (i) to an
employee of the Company or its subsidiaries; or (ii) to a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance of his duties as an executive of the Company; or (iii) authorized
in writing by the Board of Directors; or (iv) required by any Court or
administrative agency.
b. In the event that this Agreement is terminated for any reason,
the Executive agrees that he shall promptly return all records, files,
documents, materials and copies relating to the business of the Company or its
subsidiaries which came into the possession of the Executive during his
employment pursuant to this Agreement.
c. For purposes of this Agreement, the term "Confidential
Information" shall be defined as any information relating to the business of
the Company or its subsidiaries which is not generally available to the public
and which the Company takes affirmative steps to maintain as
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confidential. The term shall not include any information that the Executive
was aware of prior to the date of initial employment by the Company,
information that is a matter of any public record, information contained in any
document filed or submitted to any governmental entity, any information that is
common knowledge in any industry in which the Company does business, any
information that has previously been made available to persons who are not
employees of the Company or any information that is known to the Company's
competitors.
d. In the event that the Executive's employment with the Company
is terminated for any reason, the Executive covenants and agrees not to compete
with the Company by engaging in the business of providing: (i) workover rig
services, including completion of new xxxxx, maintenance and recompletion of
existing xxxxx (including horizontal recompletions) and plugging and
abandonment of xxxxx at the end of their useful lives; (ii) liquid services,
including vacuum truck services, frac tank rental and salt water injection;
and/or (iii) production services, including well test analysis, pipe testing,
slickline wireline services and fishing and rental tool services for the period
of time by which the Executive's severance payment, if any, is measured. The
geographic scope of this non-compete provision shall be: (i) in Texas south of
a line from the following Texas towns: Del Rio, Bryan, and Jasper; and (ii)
within 50 miles from Iraan, Texas and from Pampa, Texas.
e. In the event that Executive violates any of the
Non-Competition or Non-Disclosure provisions set forth in this Agreement,
Executive acknowledges and agrees that the Company will suffer immediate and
irreparable harm which cannot accurately be calculated in monetary damages.
Consequently, Executive agrees that the Company shall be entitled to immediate
injunctive relief, either by temporary or permanent injunction, to prevent any
such violations. Executive agrees that this relief shall be in addition to any
other legal or equitable relief to which the Company would be legally entitled
under Texas law.
10. ARBITRATION: The Company and the Executive agree as follows:
a. Any claim or controversy arising out of or relating to this
Agreement, or any breach of this Agreement, shall be settled by final and
binding arbitration in the city of San Antonio, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in effect
on the date the claim or controversy arises. The Executive and the Company
agree that either party must request arbitration of any claim or controversy
within sixty (60) days of the date the claim or controversy first arises, by
giving written notice of the party's request for arbitration ("Arbitration
Notice"). Failure to effectively communicate the Arbitration Notice within the
time limitation set forth in this section shall constitute a waiver of the
claim or controversy.
b. In the event that any dispute arising under this Agreement
concerns any payment required to be made under any provision of this Agreement,
either party agrees to deposit the amount of the disputed payment in an
interest bearing account with a financial institution acceptable to the other
party within five (5) days after either party effectively communicates its
Arbitration Notice. In the event that any dispute arising under this Agreement
concerns the amount of any payment required to be made under any provision of
this Agreement, either party
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agrees to pay the undisputed portion of the payment to the other party and
deposit the disputed portion of the payment in an interest bearing account with
a financial institution acceptable to the other party within five (5) days
after either party effectively communicates its Arbitration Notice.
c. All claims or controversies subject to arbitration under this
Agreement shall be submitted to an arbitration hearing within thirty (30) days
after the Arbitration Notice is communicated. All claims or controversies
shall be resolved by a panel of three (3) arbitrators selected in accordance
with the applicable Commercial Arbitration Rules. Either party may request
that the arbitration proceeding be stenographically recorded by a Certified
Shorthand Reporter. The arbitrators shall issue a written decision with
respect to all claims or controversies submitted under this section within
thirty (30) days after the completion of the arbitration hearing. The parties
are entitled to be represented by legal counsel at any arbitration hearing and
each party shall be responsible for its own attorneys' fees. The Company shall
be responsible for paying for all expenses in the event of any arbitration
under this section.
d. The parties agree that this section may be specifically
enforced by either party, and submission to arbitration compelled, by any court
of competent jurisdiction. The parties further acknowledge and agree that the
decision of the arbitrators may be specifically enforced by either party in any
court of competent jurisdiction.
11. RULES OF CONSTRUCTION: The following provisions shall govern the
interpretation and enforcement of this Agreement:
a. SEVERABILITY: The parties acknowledge and agree that each
provision of this Agreement shall be enforceable independently of every other
provision. Furthermore, the parties acknowledge and agree that, in the event
any provision of this Agreement is determined to be unenforceable for any
reason, the remaining covenants and/or provisions will remain effective,
binding and enforceable.
b. WAIVER: The parties acknowledge and agree that the failure of
either to enforce any provision of this Agreement shall not constitute a waiver
of that particular provision, or of any other provisions, of this Agreement.
c. CHOICE OF LAW/VENUE: The parties acknowledge and agree that
except as specifically provided otherwise in this Agreement, the law of Texas
will govern the validity, interpretation and effect of this Agreement and any
other dispute relating to, or arising out of, the employment relationship
between the Company and the Executive. Proper venue for any litigation or
arbitration concerning this Agreement shall be in San Antonio, Texas.
d. MODIFICATION: The parties acknowledge and agree that this
Agreement constitutes the complete and entire agreement between the parties;
that the parties have executed this Agreement based upon the express terms and
provisions set forth herein; that the parties have not relied on any
representations, oral or written, which are not set forth in this Agreement;
that no previous agreement, either oral or written, shall have any effect on
the terms or provisions of this Agreement; and that all previous agreements,
either oral or written, are expressly superseded and
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revoked by this Agreement. In addition, the parties acknowledge and agree that
the provisions of this Agreement may not be modified by any subsequent
agreement unless the modifying agreement (i) is in writing (ii) contains an
express provision referencing this Agreement (iii) is signed by the Executive
and (iv) is approved by the Board of Directors.
e. EXECUTION: The parties agree that this Agreement may be
executed in multiple counterparts, each of which shall be deemed an Original
for all purposes.
f. HEADINGS: The parties agree that the subject headings set
forth at the beginning of each section in this Agreement are provided for ease
of reference only, and shall not be utilized for any purpose in connection with
the construction, interpretation or enforcement of this Agreement.
12. LEGAL CONSULTATION: The parties acknowledge and agree that both
parties have been accorded a reasonable opportunity to review this Agreement
with legal counsel prior to executing the agreement.
13. NOTICES: The parties acknowledge and agree that any and all Notices
required to be delivered under the terms of this Agreement shall be forwarded
by personal delivery or certified U.S. mail. Notices shall be deemed to be
communicated and effective on the day of receipt. Such Notices shall be
addressed to each party as follows:
XXXXXX X. XXXXXXX
---------------------
---------------------
XXXXXX PRODUCTION SERVICES, INC.
000 X.X. Xxxx 000, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
With a copy to:
X. Xxxxxxx Xxxx, Esq.
Jenkens & Xxxxxxxxx,
A Professional Corporation
2200 One American Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Any party hereto may change its or his address for the purpose of receiving
notices and other communications as herein provided by a written notice given
in the manner aforesaid to the other party or parties hereto.
Executive Employment Agreement
Xxxxxx X. Xxxxxxx - Page 13
14
EXECUTED on this 6th day of March, 1996.
XXXXXX X. XXXXXXX
/s/Xxxxxx X. Xxxxxxx
------------------------------------------------
XXXXXX PRODUCTION SERVICES, INC.
By:/s/Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Executive Employment Agreement
Xxxxxx X. Xxxxxxx - Page 14
