EXHIBIT 2.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
May 28, 1997, by and between EXCALIBAR MINERALS INC., a Texas corporation
("Employer"), and XXXXXX X. XXXXXXXX ("Employee"), with reference to the
following facts:
A. Employee has been employed by Employer as its President.
B. On the date of this Agreement, Employer has become a wholly-owned
subsidiary of NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark").
Employer desires to assure itself of the continued services of Employee for a
term expiring no sooner than June 30, 2000, and the parties are entering into
this Agreement for that purpose and in order to set forth the terms of the
employment of Employee.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth herein, the parties agree as follows:
1. Term of Employment.
Employer hereby continues the employment of Employee, and Employee
hereby accepts continued employment with Employer, for a period commencing on
the date hereof and, except as otherwise provided herein, expiring June 30,
2000, provided, however, that, each time neither party terminates this Agreement
by written notice given at least sixty (60) days prior to the expiration of the
employment term as last renewed or extended, it shall be automatically renewed
for an additional twelve month period. As used herein, the phrase "employment
term" refers to the entire period that Employee shall be employed hereunder,
whether for the initial period provided above, or whether this Agreement is
terminated earlier or extended automatically as provided herein or by mutual
agreement between Employer and Employee. This Agreement supersedes all
agreements and understandings between Employer and Employee relating to
compensation of Employee existing on the date hereof, including but not limited
to salary, commission, bonus and other arrangements, and all such existing
agreements and understandings are hereby terminated.
2. Duties of Employee.
2.1 Employee shall serve as President of Employer and shall do
and perform all services, acts and things necessary or advisable in that
capacity in connection with the conduct of the business of Employer, subject to
the instructions of and policies and limitations set by its Board of Directors.
It is contemplated that Employee's role initially will be substantially the same
as his role with Employer immediately prior to the date hereof.
2.2 Employee shall devote such productive time, ability and
attention to the business of Employer during the employment term as is
reasonably required for the performance of his duties hereunder. Employee may
devote time and effort to personal activities to the extent that such activities
do not materially interfere with the performance of his duties hereunder. If
Employer advises Employee that, in its good faith judgment, such activities are
materially interfering with the performance of Employee's duties hereunder,
Employee will
promptly take steps to appropriately limit such activities. Subject to the
foregoing, Employee shall not directly or indirectly render any services of a
business, commercial or professional nature to any other person or organization,
whether for compensation or otherwise, without the prior written consent of the
Board of Directors of Employer.
2.3 Employee agrees to serve without additional compensation, if
elected or appointed thereto, in one or more offices as an officer, director or
member of any committee of the Board of Directors of Employer or of any direct
or indirect subsidiary of Employer.
3. Compensation of Employee.
3.1 As compensation for his services hereunder, Employee shall
receive a salary at the annual rate of $110,000, payable in equal installments
on Employer's regular payroll dates for executive employees. Employer's Board
of Directors will review Employee's salary annually, and, with the approval of
Newpark's Board of Directors or Compensation Committee, may (but shall be under
no obligation to) increase such salary.
3.2 For each full or partial fiscal year of Employer during the
employment term, Employer shall pay to Employee, in addition to his salary, a
bonus in such amount, if any, as may be determined by the Board of Directors or
Compensation Committee of Newpark, in its sole discretion.
4. Benefits.
Employee shall be entitled to participate in and receive benefits
under all bonus plans, profit-sharing plans, pension plans, group medical plans
and other plans for payment of additional compensation or benefits to employees
of Employer which Employer at any time maintains for executive employees. To
the extent permitted by law, and provided that such participation does not
result in duplicate payments to Employee, Employee shall also participate in
such benefits plans as Newpark makes available to its executive employees and
the executive employees of its subsidiaries.
5. Business Expenses.
Employee is authorized to incur reasonable expenses for promoting and
conducting the business of Employer, including expenditures for entertainment
and travel. Employer shall reimburse Employee monthly for all such business
expenses upon presentation of reasonable documentation establishing the amount,
date, place and essential character of the expenditures.
6. Disability.
6.1 If Employee becomes disabled by reason of sickness, physical
or mental disability or any other cause which materially impairs his ability to
perform his duties under this Agreement with reasonable accommodation for a
period of six consecutive months or for nine months in any twelve-month period,
Employer shall have the option to terminate this
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Agreement effective immediately by giving written notice of termination to
Employee within a reasonable time following the end of such period of
disability. If Employee becomes temporarily disabled by reason of sickness,
physical or mental disability, or any other cause so that he is unable to
perform efficiently his duties hereunder with reasonable accommodation, he shall
be entitled to compensation as provided for herein until the total period of
such temporary disability shall equal an aggregate of three consecutive months
or an aggregate of six months during any period of twelve consecutive months.
As to any subsequent periods of disability during said twelve month period,
Employee shall not be entitled to compensation.
6.2 In the event of the termination of this Agreement pursuant
to the provisions of Paragraph 6.1 above, Employee shall be entitled to salary
and discretionary bonus earned by him prior to the date of termination as
provided for in this Agreement computed pro rata up to and including that date;
but he shall not be entitled to compensation after the date of termination.
7. Termination of Employment.
7.1 This Agreement and the employment of Employee hereunder may
be terminated at any time prior to the expiration of the term of this Agreement
as follows:
(a) By Employer as a result of disability of Employee as
provided in Paragraph 6.1 above, or the death of Employee;
(b) upon the mutual agreement of the parties;
(c) by Employer in the event of: (i) conviction of Employee
of a major felony (whether or not committed in the course of his employment)
from which no appeal has been made, or, if an appeal has been made, upon a final
determination adverse to Employee; or (ii) gross misconduct by Employee causing
material harm to Employer, but only if (x) Employee shall not have discontinued
such gross misconduct within ten days after receiving written notice from
Employer that it will consider the continuation of such gross misconduct cause
for termination of this Agreement, or (y) the gross misconduct is of such a
nature that Employer would be materially prejudiced thereby whether or not
Employee discontinues such gross misconduct;
(d) by Employee if Employer shall fail to cure a material or
default by it under any of the terms of this Agreement within thirty days after
written notice of such breach or default is given by Employee;
(e) by Employer if Employee shall fail to cure a material
breach or default by him under this Agreement within thirty days after written
notice of such breach or default is given by Employer; and
(f) by Employee upon thirty days' written notice given
during the thirty-day period commencing eleven months after a "Change in
Control" of Employer. As
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used herein, the term Change in Control shall mean consummation of any one or
more of the following:
(1) any transaction as a result of which Newpark ceases to
beneficially own, directly or indirectly through one or more subsidiaries,
capital stock or other equity interests of Employer having a majority of the
voting power of the outstanding capital stock or other equity interests of
Employer;
(2) any transaction as a result of which Newpark ceases to control,
directly or indirectly through one or more subsidiaries, including Employer,
substantially all of the assets of Employer used in its business from time to
time, except for financing transactions; and
(3) any of the following transactions or events effecting a change in
ownership or control of Newpark:
(A) a merger or consolidation in which Newpark is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which Newpark is incorporated;
(B) The sale, transfer or other disposition of all or
substantially all of the assets of Newpark;
(C) Any merger or reverse merger in which Newpark ceases to
exist as an independent corporation or becomes the subsidiary of another
corporation; or
(D) If any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934) who is not such beneficial
owner on the date hereof becomes the "beneficial owner" (as defined in Rule
13(d)-3 under said Act), of securities possessing more than a majority of the
total combined voting power of the Newpark's outstanding securities.
7.2 Except as provided herein, this Agreement shall not be
terminated by any merger or consolidation where Employer is not the consolidated
or surviving corporation or by any transfer of all or substantially all of the
assets of Employer. In the event of any such merger or consolidation or
transfer of assets, the surviving or resulting corporation or the transferee of
the assets of Employer shall be bound by and shall have the benefit of the
provisions of this Agreement; and Employer shall take all actions necessary to
ensure that such corporation or transferee is bound by the provisions of this
Agreement.
7.3 Upon termination of this Agreement for any reason
whatsoever, Employee shall return to Employer all automobiles, equipment, books,
records, customer lists, catalogs, invoices, correspondence and other property
which was acquired from or otherwise belongs to Employer, including any property
or documentation developed by Employee in the course of his employment.
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8. Proprietary Information.
8.1 During the employment term and thereafter, Employee agrees
to keep secret and retain in confidence, and to refrain from using for the
benefit of any person or entity other than Employer, all confidential
information concerning the business of Employer or its affiliates ("Confidential
Information") including, without limitation, "know-how," trade secrets, customer
lists, details of client or consultant contracts, pricing policies, operational
methods, marketing plans or strategies, business acquisition plans, technical
processes and designs and design projects of Employer and its affiliates
relating to the business of Employer learned by Employee as a result of prior
and current business relationships with Employer or its predecessors.
Confidential Information shall not include information which (a) is or becomes
generally available to the public other than as a result of a disclosure by
Employee, (b) was available to Employee on a non-confidential basis prior to its
disclosure to the Employee by Employer or (c) becomes available to Employee on a
non-confidential basis from a source other than Employer, provided that such
source is not bound by a confidentiality agreement with Employer known to
Employee. The provisions of this Paragraph shall survive any termination of
this Agreement.
8.2 Concurrently with the execution and delivery of this Agreement,
Employee (as Covenantor) has entered into a Noncompetition Agreement with
Newpark. The provisions of Paragraph 8 of this Agreement are in addition to and
are intended to supplement the provisions of said Noncompetition Agreement.
8.3 Employee agrees that in the event of any breach by Employee of any
provision of Paragraph 8.1, Employer shall be entitled, in addition to other
remedies, to immediate injunctive relief if necessary to avoid irreparable harm
and injury.
9. General Provisions.
9.1 Any notices to be given hereunder by either party to the
other shall be in writing and may be effected either by personal delivery or by
mail, registered or certified, return receipt requested, postage prepaid.
Mailed notices shall be addressed to the parties at the addresses appearing
opposite their respective signatures below and shall be deemed effective 24
hours after being deposited in the U.S. mails, postage prepaid and property
addressed. Each party may change its address by written notice in accordance
with this Paragraph.
9.2 This Agreement supersedes and any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee and contains all of the covenants and agreements between
the parties with respect to such employment. Each party acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing signed by the party to be charged.
9.3 Any paragraph, sentence, phrase, or other provision of this
Agreement which is in conflict with any applicable statute, rule, or other law
shall be deemed,
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if possible, to be modified or altered to conform thereto or, if not possible,
to be omitted from this Agreement. The invalidity of any portion hereof shall
not affect the force or effect of the remaining portions hereof.
9.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, and the Judicial District Court of Xxxxxx
County, Texas, Houston Division, shall be the only proper forum for disputes
hereunder.
9.5 The rights and obligations of Employer under this Agreement shall
enure to the benefit of and shall be binding on the successors and assigns of
Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
EXCALIBAR MINERALS INC. ("Employer") Address:
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxx 00000
By:/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx, Vice President
Address:
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx ("Employee") X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxx 00000
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