EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between Xxxxxx
Industries, Inc. (to be renamed Xxxxxx Shipyard, Inc.), a Louisiana
corporation (the "Company"), and Xxxxx X. Xxxxxxxxx ("Executive") is hereby
entered into effective as of March 31, 1998 (the "Effective Date").
RECITALS
WHEREAS, the Company desires to continue Executive's employment, and
Executive desires to continue his employment with the Company, all on the terms
and conditions set forth in this Agreement; and
WHEREAS, a Delaware corporation to be named Xxxxxx Industries, Inc.
("Xxxxxx") has been formed to become the parent corporation of the Company and
the stockholders of the Company will exchange their stock in the Company for
stock of Xxxxxx following such formation;
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each, it is
hereby agreed as follows:
AGREEMENTS
1. Employment and Duties.
(a) The Company hereby employs Executive as the Vice President-Finance
and Administration and Chief Financial Officer of the Company. As such,
Executive shall have responsibilities, duties and authority reasonably
accorded to, expected of and consistent with Executive's positions as the
Vice President-Finance and Administration and Chief Financial Officer of
the Company. Executive hereby accepts this employment upon the terms and
conditions herein contained and, subject to paragraph 1(c), agrees to
devote substantially all of his time, attention and efforts to promote and
further the business and interests of the Company and its affiliates.
(b) Executive shall faithfully adhere to, execute and fulfill all
lawful policies established by the Company.
(c) Executive shall not, during the term of his employment hereunder,
engage in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes in any material respect
with Executive's duties and responsibilities hereunder. The foregoing
limitations shall not be construed as prohibiting Executive from making
personal investments in such form or manner as will neither require his
services in the operation or affairs of the companies or enterprises in
which such investments are made nor violate the terms of paragraph 3
hereof.
2. Compensation. For all services rendered by Executive, the Company
shall compensate Executive as follows:
(a) Base Salary. The base salary payable to Executive during the term
shall be $150,000 per year, payable in accordance with the Company's
payroll procedures for executives, but not less frequently than monthly.
Such base salary may be increased from time to time, at the discretion of
the Board of Directors of the Company (the "Board"), in light of the
Executive's position, responsibilities and performance, and, as increased
from time to time, may not be reduced.
(b) Company Stock. The Company hereby grants to Executive 67 shares
of common stock of the Company ("Company Stock"), subject to the following
terms:
(i) Executive shall be immediately vested in 50% of the shares
of Company Stock on the Effective Date;
(ii) Executive shall vest in the remaining 50% of the shares of
Company Stock (the "Nonvested Shares") at the rate of 33 1/3% on each
anniversary of the Effective Date (rounded up to the nearest whole
share) on which Executive continues to be an employee of the Company,
subject to the further provisions of this Agreement;
(iii) Executive shall become automatically 100% vested in the
Nonvested Shares immediately prior to a "Change in Control" of the
Company, as such term is defined in the Xxxxxx Industries, Inc. 1998
Stock Plan;
(iv) prior to becoming vested, the Nonvested Shares may not be
transferred (except by will or the laws of descent and distribution),
pledged or encumbered in any manner by Executive;
(v) all distributions made by the Company with respect to the
Nonvested Shares (cash, stock or other property), and any shares
issued upon a stock split or stock dividend or by Xxxxxx in exchange
for the Nonvested Shares shall be subject
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to the same restrictions applicable to the Nonvested Shares as set
forth in this Agreement; and
(vi) the Company may place such legends on the certificate for
the Nonvested Shares evidencing the restrictions provided herein as it
deems appropriate.
Executive hereby covenants that he shall enter into that certain Stock
Exchange Agreement between the Company, Xxxxxx and the stockholders of the
same.
(c) Executive Perquisites, Benefits and Other Compensation. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Executive shall be promptly reimbursed for all business
travel and other out-of-pocket expenses reasonably incurred by
Executive in the performance of his duties pursuant to this Agreement
and in accordance with the Company's policy for executives of the
Company. All such expenses shall be appropriately documented in
reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the
Company's expense reporting policy;
(ii) Executive shall, subject to the satisfaction of any general
eligibility criteria, be eligible to participate in all compensation
and benefit plans and programs as are maintained from time to time for
executives of the Company;
(iii) Executive shall be entitled to vacation in accordance with
the policies of the Company; and
(iv) The Company shall provide Executive with such other
perquisites as may be deemed appropriate for Executive by the Board.
3. Non-Competition Agreement.
(a) Executive recognizes that the Company's willingness to enter into
this Agreement is based in material part on Executive's agreement to the
provisions of this paragraph 3 and that Executive's breach of the
provisions of this paragraph 3 could materially damage the Company.
Subject to the further provisions of this Agreement, Executive will not,
during the term of his employment with the Company, and for a period of two
years immediately following the termination of such for any reason
whatsoever, either for Cause or in the event Executive terminates his
employment without Good Reason, except
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as may be set forth herein, directly or indirectly, for himself or on
behalf of or in conjunction with any other person, company, partnership,
corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any business in direct competition with the
construction, conversion or repair of marine vessels or the
fabrication of modular components for offshore drilling rigs or
floating production, storage and offloading vessels (collectively, the
"Businesses") of the Company, Xxxxxx, or any subsidiary or affiliate
of Xxxxxx (collectively, the "Companies") in any area in which any of
the Companies conduct one or more of the Businesses, including any
territory serviced by any of the Companies during the term of
Executive's employment (the "Territory");
(ii) call upon any person who is, at that time, an employee of
any of the Companies for the purpose or with the intent of enticing
such employee away from or out of the employ of any of the Companies;
(iii) call upon any person or entity which is, at that time, or
which has been, within one year prior to that time, a customer of any
of the Companies within the Territory for the purpose of soliciting or
selling products or services in direct competition with any of the
Companies within the Territory;
(iv) call upon any prospective acquisition candidate, on
Executive's own behalf or on behalf of any competitor, which candidate
was, to Executive's knowledge after due inquiry, either called upon by
any of the Companies or for which any of the Companies made an
acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether in existence or proposed, of
any of the Companies to any person, firm, partnership, corporation or
business for any reason or purpose whatsoever except to the extent
that any of the Companies has in the past disclosed such information
to the public for valid business reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Executive from acquiring as an investment (i) not more than 1%
of the capital stock of a competing business, whose stock is traded on a
national securities exchange, the Nasdaq Stock Market or similar market or
(ii) not more than 5% of the capital stock of a competing business whose
stock is not publicly traded unless the Board consents to such acquisition.
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(b) Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable damage that could be caused to the Company
for which it would have no other adequate remedy, Executive agrees that
foregoing covenant may be enforced by the Company, in the event of breach
by him, by injunctions and restraining orders. Executive further agrees to
waive any requirement for the Company's securing or posting of any bond in
connection with such remedies.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the Companies on the date of the execution of
this Agreement and the current plans of the Companies; but it is also the
intent of the Company and Executive that such covenants be construed and
enforced in accordance with the changing activities, business and locations
of the Companies throughout the term of this covenant, whether before or
after the date of termination of the employment of Executive, unless
Executive was conducting such new business prior to any Company conducting
such new business.
(d) It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed by the Company and shall enter into a
business or pursue other activities not in competition with the Businesses
of the Companies or similar activities or businesses in locations the
operation of which, under such circumstances, does not violate clause
(a)(i) of this paragraph 3, and in any event such new business, activities
or location are not in violation of this paragraph 3 or of Executive's
obligations under this paragraph 3, if any, Executive shall not be
chargeable with a violation of this paragraph 3 if the Companies shall
thereafter enter the same, similar or a competitive (i) business, (ii)
course of activities or (iii) location, as applicable.
(e) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of
competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and the Agreement shall thereby be reformed.
(f) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants. It is
specifically agreed that the period of two years (subject to the further
provisions of this Agreement) following termination of employment stated at
the beginning of this paragraph 3, during which the agreements and
covenants of Executive made in this
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paragraph 3 shall be effective, shall be computed by excluding from such
computation any time during which Executive is in violation of any
provision of this paragraph 3.
(g) The Company and Executive hereby agree that this covenant is a
material and substantial part of this Agreement.
4. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the Effective Date and continue for three years (the "Initial
Term") and, unless terminated sooner as herein provided, shall continue
thereafter at Executive's and Company's mutual election on a year-to-year basis
on the same terms and conditions contained herein in effect as of the time of
renewal (the "Extended Term"); provided, however, upon a Change in Control of
the Company, the term of this Agreement shall automatically continue following
such Change in Control for a period equal to the then remaining term or two
years, whichever period is longer, unless earlier terminated as provided in
paragraph 11. This Agreement and Executive's employment may be terminated in any
one of the followings ways:
(a) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due Executive's estate; provided,
however, all Nonvested Shares, if any, shall immediately vest in full.
(b) Disability. If Executive becomes entitled to receive benefits
under an insured long-term disability plan of the Company that includes its
officers, the Company may terminate Executive's employment hereunder with
no severance compensation due Executive; provided, however, all Nonvested
Shares, if any, shall immediately vest in full.
(c) Cause. The Company may terminate this Agreement and Executive's
employment 10 days after written notice to Executive for "Cause", which
shall be: (1) Executive's willful, material and irreparable breach of this
Agreement (which remains uncured 10 days after receipt of written notice);
(2) Executive's gross negligence in the performance or intentional
nonperformance (in either case continuing for 10 days after receipt of
written notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's dishonesty or fraud with
respect to the business, reputation or affairs of the Company which
materially and adversely affects the Company (monetarily or otherwise); or
(4) Executive's conviction of a felony crime involving moral turpitude. In
the event of a termination for Cause, Executive shall have no right to any
severance compensation.
(d) Without Cause. Executive may, without Good Reason (as hereinafter
defined), terminate this Agreement and Executive's employment effective 30
days after written notice is provided to the Company. Executive may only
be terminated without Cause by the Company during either the Initial Term
or Extended Term if such termination is
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approved by at least 51% of the members of the Board. Should Executive be
terminated by the Company without Cause during the Initial Term or should
Executive terminate with Good Reason during the Initial Term, then, (i)
Executive shall receive from the Company, in a lump sum payment due on the
effective date of such termination, the equivalent of the base salary (at
the rate then in effect) for whatever time period is remaining under the
Initial Term or for one year, whichever amount is greater, and (ii) all
Nonvested Shares immediately shall be vested in full. Should Executive be
terminated by the Company without Cause during the Extended Term or should
Executive terminate with Good Reason during the Extended Term, Executive
shall receive from the Company, in a lump sum payment due on the effective
date of such termination, the equivalent to one year of base salary at the
rate then in effect. Further, any termination without Cause by the Company
or by Executive for Good Reason shall operate to shorten the period set
forth in paragraph 3(a) and during which the terms of paragraph 3 apply to
one year from the date of termination of employment. If Executive resigns
or otherwise terminates his employment without Good Reason, rather than the
Company terminating his employment pursuant to this paragraph 4(d),
Executive shall receive no severance compensation.
Executive shall have "Good Reason" to terminate his employment
hereunder upon the occurrence of any of the following events, unless such
event is agreed to in writing by Executive: (a) Executive is demoted by
means of a material reduction in authority, responsibilities or duties to a
position of less stature or importance within the Company than the position
described in Section 1(a) hereof; (b) Executive's annual base salary as
then in effect is reduced; or (c) the relocation of the Company's principal
executive offices to a location outside the Morgan City, Louisiana area or
the Company's requiring Executive to relocate anywhere other than the
Company's principal executive offices.
If termination of Executive's employment arises out of the Company's
failure to pay Executive on a timely basis the amounts to which he is entitled
under this Agreement or as a result of any other breach of this Agreement by the
Company, as determined by a court of competent jurisdiction or pursuant to the
provisions of paragraph 18 below, the Company shall pay all amounts and damages
to which Executive may be entitled as a result of such breach, including
interest thereon and all reasonable legal fees and expenses and other costs
incurred by Executive to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 shall apply in the event this Agreement is terminated
as a result of a breach by the Company.
Upon termination of this Agreement for any reason provided above, in
addition to the above payments, if any, Executive shall be entitled to receive
all compensation earned and all benefits and reimbursements due through the
effective date of termination, paid to Executive in a lump sum on the effective
date. All other rights and obligations of the Company and Executive under this
Agreement shall cease as of the effective date of termination, except that the
Executive's obligations
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under paragraphs 3, 5, 6, 7, and 8 herein shall survive such termination in
accordance with their terms.
5. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company or any of
the Companies or their representatives, vendors or customers which pertain to
the business of the Company or any of the Companies shall be and remain the
property of the Company or the Companies, as the case may be, and be subject at
all times to their discretion and control. Likewise, all correspondence,
reports, records, charts, advertising materials and other similar data
pertaining to the business, activities or future plans of the Company or the
Companies which is collected by Executive shall be delivered promptly to the
Company without request by it upon termination of Executive's employment.
6. Inventions. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one year thereafter, if conceived during employment, and which are
directly related to the business or activities of the Company and which
Executive conceives as a result of his employment by the Company. Executive
hereby assigns and agrees to assign all his interests therein to the Company or
its nominee. Whenever requested to do so by the Company, Executive shall
execute any and all applications, assignments or other instruments that the
Company shall deem necessary to apply for and obtain Letters Patent of the
United States or any foreign country or to otherwise protect the Company's
interest therein.
7. Trade Secrets. Executive agrees that he will not, during or after the
term of this Agreement, disclose the specific terms of the Company's
relationships or agreements with their respective significant vendors or
customers or any other significant and material trade secret of the Company,
whether in existence or proposed, to any person, firm, partnership, corporation
or business for any reason or purpose whatsoever.
8. Confidentiality.
(a) Executive acknowledges and agrees that all Confidential
Information (as defined below) of the Company is confidential and a
valuable, special and unique asset of the Company that gives the Company an
advantage over its actual and potential, current and future competitors.
Executive further acknowledges and agrees that Executive owes the Company a
fiduciary duty to preserve and protect all Confidential Information from
unauthorized disclosure or unauthorized use, that certain Confidential
Information constitutes "trade secrets" under applicable laws and, that
unauthorized disclosure or unauthorized use of the Company's Confidential
Information would irreparably injure the Company.
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(b) Both during the term of Executive's employment and after the
termination of Executive's employment for any reason (including wrongful
termination), Executive shall hold all Confidential Information in strict
confidence, and shall not use any Confidential Information except for the
benefit of the Company, in accordance with the duties assigned to
Executive. Executive shall not, at any time (either during or after the
term of Executive's employment), disclose any Confidential Information to
any person or entity (except other employees of the Company who have a need
to know the information in connection with the performance of their
employment duties), or copy, reproduce, modify, decompile or reverse
engineer any Confidential Information, or remove any Confidential
Information from the Company's premises, without the prior written consent
of the President of the Company, or permit any other person to do so.
Executive shall take reasonable precautions to protect the physical
security of all documents and other material containing Confidential
Information (regardless of the medium on which the Confidential Information
is stored). This Agreement applies to all Confidential Information,
whether now known or later to become known to Executive.
(c) Upon the termination of Executive's employment with the Company
for any reason, and upon request of the Company at any other time,
Executive shall promptly surrender and deliver to the Company all documents
and other written material of any nature containing or pertaining to any
Confidential Information and shall not retain any such document or other
material. Within five days of any such request, Executive shall certify to
the Company in writing that all such materials have been returned.
(d) As used in this Agreement, the term "Confidential Information"
shall mean any information or material known to or used by or for the
Company (whether or not owned or developed by the Companies and whether or
not developed by Executive) that is not generally known to persons in the
Business. Confidential Information includes, but is not limited to, the
following: all trade secrets of the Companies; all information that the
Companies have marked as confidential or has otherwise described to
Executive (either in writing or orally) as confidential; all nonpublic
information concerning the Companies' products, services, prospective
products or services, research, product designs, prices, discounts, costs,
marketing plans, marketing techniques, market studies, test data,
customers, customer lists and records, suppliers and contracts; all
business records and plans; all personnel files; all financial information
of or concerning the Companies'; all information relating to operating
system software, application software, software and system methodology,
hardware platforms, technical information, inventions, computer programs
and listings, source codes, object codes, copyrights and other intellectual
property; all technical specifications; any proprietary information
belonging to the Companies; all computer hardware or software manuals; all
training or instruction manuals; and all data and all computer system
passwords and user codes.
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9. No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive, his employment by the
Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Further, Executive agrees to indemnify the Company for any claim,
including, but not limited to, reasonable attorneys' fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against the Company based upon or arising out of any non-
competition agreement, invention or secrecy agreement between Executive and such
third party which was in existence as of the date of this Agreement.
10. Assignment; Binding Effect. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. The
parties hereby acknowledge that, upon the formation of Xxxxxx and the related
transactions, the term "Company" as used in this Agreement and shall include
Xxxxxx, except (i) with respect to the definition of "Change in Control", where
the term "Company" shall mean Xxxxxx, and (ii) references to the Board shall
mean the Board of Directors of Xxxxxx. The Company will require any successor,
other than Xxxxxx, by agreement in form and substance reasonably acceptable to
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Subject to the preceding, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
11. Change in Control.
(a) In the event a Change in Control is initiated or occurs during the
Initial Term or Extended Term, then the provisions of this paragraph 11
shall be applicable.
(b) If, on or within two years following the effective date of a
Change in Control, the Company terminates Executive's employment other than
for Cause or Executive terminates his employment for Good Reason, or if
Executive's employment with the Company is terminated by the Company within
six months before the effective date of a Change in Control and it is
reasonably demonstrated by Executive that such termination (i) was at the
request of a third party who has taken steps reasonably calculated to
effect a Change in Control, or (ii) otherwise arose in connection with or
anticipation of a Change in Control, then Executive shall receive from
Company, in a lump sum payment due on the later of the effective date of
Executive's termination or the Change in Control, as the case may be, the
equivalent of two years' base salary at the rate in effect on Executive's
termination date.
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(c) Notwithstanding anything in this Agreement to the contrary, a
termination pursuant to paragraph 11(b) shall operate to automatically
waive in full the noncompetition restrictions imposed on Executive pursuant
to paragraph 3(a).
(d) If it shall be determined that any payment made or benefit (a
"Payment") provided to Executive, whether or not made or provided pursuant
to this Agreement and whether or not upon a Change in Control as defined
herein, is subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, or any successor thereto, the
Company shall pay Executive an amount of cash (the "Additional Amount")
such that the net after tax benefit received by Executive after paying all
applicable taxes on such Payment and the Additional Amount shall be equal
to the net after-tax amount that Executive would have received with respect
to the Payment if Section 4999 had not been applicable.
12. No Mitigation or Offset. Executive shall not be required to mitigate
the amount of any Company payment provided for in this Agreement by seeking
other employment or otherwise. The amount of any payment required to be paid to
Executive by the Company pursuant to this Agreement shall not be reduced by any
amounts that are owed to the Company by Executive, or by any setoff,
counterclaim, recoupment, defense or other claim, right or action.
13. Release. Notwithstanding anything in this Agreement to the contrary,
Executive shall not be entitled to receive any payments pursuant to this
Agreement unless Executive has executed a general release of all claims
Executive may have against the Company and its affiliates in a form of such
release reasonably acceptable to the Company and such release has become final.
14. Indemnification. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
against Executive), by reason of the fact that he is or was performing services
under this Agreement, then the Company shall indemnify Executive against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, as actually and reasonably incurred by Executive in connection
therewith. In the event that both Executive and the Company are made a party to
the same third-party action, complaint, suit or proceeding, the Company agrees
to engage competent legal representation, and Executive agrees to use the same
representation, provided that if counsel selected by the Company shall have a
conflict of interest that prevents such counsel from representing Executive,
Employee may engage separate counsel and the Company shall pay all reasonable
attorneys' fees and reasonable expenses of such separate counsel. Further, while
Executive is expected at all times to use his best efforts to faithfully
discharge his duties under this Agreement, Executive cannot be held liable to
the Company for errors or omissions made in good faith where Executive has not
exhibited gross, willful and wanton negligence and misconduct nor performed
criminal and fraudulent acts which materially damage the business of the
Company.
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15. Complete Agreement. Executive has no oral representations,
understandings or agreements with the Company or any of its officers, directors
or representatives covering the same subject matter as this Agreement. This
written Agreement is the final, complete and exclusive statement and expression
of the agreement between the Company and Executive and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented by evidence of
any prior or contemporaneous oral or written agreements. This written Agreement
may not be later modified except by a further writing signed by a duly
authorized officer of the Company and Executive, and no term of this Agreement
may be waived except by writing signed by the party waiving the benefit of such
term. Without limiting the generality of the foregoing, either party's failure
to insist on strict compliance with this Agreement shall not be deemed a waiver
thereof.
16. Notice. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Xxxxxx Industries, Inc.
000 Xxxxx Xx.
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxxx 00000
Attn: Chairman of the Board
To Executive: Xxxxx X. Xxxxxxxxx
c/x Xxxxxx Industries, Inc.
P. X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxxx 00000
Notice shall be deemed given and effective on the earlier of three days after
the deposit in the U.S. mail of a writing addressed as above and sent first
class mail, certified, return receipt requested, or when actually received.
Either party may change the address for notice by notifying the other party of
such change in accordance with this paragraph 16.
17. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
18. Dispute Resolutions. Except with respect to injunctive relief as
provided in paragraph 3(b), neither party shall institute a proceeding in any
court or administrative agency to resolve a dispute between the parties before
that party has sought to resolve the dispute through direct negotiation with the
other party. If the dispute is not resolved within two weeks after a
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demand for direct negotiation, the parties shall attempt to resolve the dispute
through mediation. If the parties do not promptly agree on a mediator, the
parties shall request the Association of Attorney Mediators in Louisiana (or
similar association) to appoint a mediator. If the mediator is unable to
facilitate a settlement of the dispute within a reasonable period of time, as
determined by the mediator, the mediator shall issue a written statement to the
parties to that effect and any unresolved dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in Morgan City,
Louisiana, in accordance with the rules of the American Arbitration Association
then in effect. The arbitrators shall have the authority to order back-pay,
severance compensation, vesting of options (or cash compensation in lieu of
vesting of options), reimbursement of costs, including those incurred to enforce
this Agreement, and interest thereon in the event the arbitrators determine that
Executive was terminated without disability or Cause, as defined in paragraphs
4(b) and 4(c), respectively, or that the Company has otherwise materially
breached this Agreement. A decision by a majority of the arbitration panel shall
be final and binding. Judgment may be entered on the arbitrators' award in any
court having jurisdiction. The costs and expenses, including reasonable
attorneys' fees, of the prevailing party in any dispute arising under this
Agreement will be promptly paid by the other party.
19. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Louisiana without regard to its conflicts
of law provisions.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective for all purposes as of the Effective Date.
XXXXXX INDUSTRIES, INC.
By:______________________________
Name:____________________________
Title:___________________________
EXECUTIVE
_________________________________
Xxxxx X. Xxxxxxxxx
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