EXHIBIT 10.8
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made and entered into this the
14th day of December, 1996 to be effective as of the 1st day of January, 1997
(the "Effective Date") by and between HAM MARINE, INC., a Mississippi
Corporation (the "Company"), and XXXXX X. XXXX, III ("Employee").
Whereas, the Company desires Employee to render legal services as an
attorney licensed to practice in the state of Mississippi, aid in the
negotiations of certain transactions arising in the course of the Company's
business and render general legal advice to the Company, its subsidiaries and
affiliates; and
Whereas, Employee is willing to render services to the Company, its
subsidiaries and affiliates, on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and representations set forth herein, the Company and Employee hereby agree as
follows:
ARTICLE I
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EMPLOYMENT
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1.1 TERM OF EMPLOYMENT. Employee's employment shall commence on the
Effective Date and shall continue until terminated as herein provided (the
"Term").
1.2 DUTIES OF EMPLOYEE. As of the Effective Date, Employee shall be
employed full time to render general, non-litigation, legal and tax planning
services to the Company, its subsidiaries and affiliates, reporting directly to
the Chairman of the Board of the Company; provided, however, that the Company
shall not impose employment duties or constraints of any kind which would
require
Employee to infringe upon or violate the ethics of the legal profession or
violate any ordinance or law. Employee agrees to perform such duties as are
normally performed by general legal counsel of enterprises similar to the
Company. Employee hereby accepts such employment and undertakes to use his best
efforts to discharge his duties and responsibilities. During the Term of this
Agreement, Employee shall devote substantially his full time to the discharge of
his duties and responsibilities under this Agreement, except for vacations in
accordance with this Agreement and with the Company's vacation policy applicable
to executive personnel. This provision shall not prevent Employee from (i)
devoting a reasonable amount of time during normal business hours to his current
duties as Chairman of the Taxation Section of the Mississippi Bar Association,
(ii) completing certain specific legal matters for which he has been previously
engaged by other individual clients, and (iii) managing his other interests and
business affairs (so long as such interests and affairs are not in substantial
and direct competition with the Company or any of its subsidiaries or
affiliates). Employee shall not be required to move his residence.
1.3 COMPENSATION. During the Term, Employee shall be entitled to a salary
of $120,000.00 per year payable in equal monthly installments of $10,000.00 plus
any future increases and bonuses authorized by the Board of Directors of the
Company.
1.4 COMPENSATION - STOCK. On the Effective Date, and as additional
compensation, the Company shall transfer to Employee, free and clear of liens
and encumbrances, a number of shares of the Company's outstanding common capital
stock equal to two percent (2%) of the outstanding common capital stock as of
December 1, 1996. However, if, on the Effective Date, the Company has completed
an anticipated recapitalization then the Company shall transfer to Employee,
free and clear of liens and encumbrances, one and 67/100ths percent (1.67%) of
the Company's total
authorized shares of common capital stock. The shares of the Company's common
capital stock transferred to Employee (the "Common Stock") shall be fully vested
in Employee subject only to the provisions of a stock redemption agreement to be
executed by the Company, X. X. Xxxxxxxx (the "Majority Shareholder") and
Employee on the Effective Date providing for a thirty (30) day right of first
refusal in the Company, and then in the Majority Shareholder, to purchase
Employee's Common Stock for fair market value, to be paid in full at closing, in
the event of Employee's (i) desire to sell or hypothecate the Common Stock
during his lifetime, (ii) death, (iii) total disability (as defined in the
disability income insurance policies maintained by Employee pursuant to Section
1.8 of this Agreement) , (iv) retirement, or (v) voluntary or involuntary
termination of employment with Company. At all times following the receipt of
the Common Stock Employee shall enjoy all rights associated with the ownership
of the Common Stock including, but not limited to, the right to vote and receive
dividends thereon.
1.5 COMPENSATION - TAX PAYMENTS. The parties acknowledge that the
transfer to Employee of the Common Stock in accordance with the provisions of
Section 1.4 shall be deemed to be additional compensation to Employee for
federal and state income tax purposes. Company agrees to pay as bonuses to
Employee such amounts at such times as the certified public accountants normally
providing services to the Company and Employee determine to be necessary to pay
in a timely manner all taxes imposed upon Employee by federal, state and local
statutes, regulations and rulings due to the receipt by Employee of such stock
and the receipt by Employee of each of such bonuses. The provisions of this
Section 1.5 shall survive the termination of this Agreement for any reason.
1.6 EXPENSE REIMBURSEMENTS. The Company shall reimburse Employee for
business expenses reasonably incurred in connection with his employment in
accordance with the Company's reimbursement practice for executive officers upon
presentation of adequate documentation. Such business expenses shall include up
to $2,500.00 per year for tuition, fees, travel, lodging and meals associated
with continuing legal education seminars necessary to maintain Employee's
license to practice law in the State of Mississippi and insurance premiums
necessary to maintain up to $1,500,000.00 in professional errors and omissions
insurance coverage for Employee.
1.7 BENEFITS.
(a) Employee shall be entitled to paid vacation and sick leave as
determined in accordance with the Company's vacation and sick leave policies
applicable to executive personnel as in effect from time to time; provided,
however, that Employee shall be entitled to at least two (2) weeks paid vacation
and two (2) weeks paid sick leave each year.
(b) Employee shall be entitled to receive all employee benefits and to
participate in any employee benefit plans or programs as are generally offered
to or provided for executives of the Company from time to time, including
without limitation, participation in the Section 401(k) Plan and the payment of
full medical and dental insurance premiums for Employee and his dependents.
1.8 DISABILITY OF EMPLOYEE. Employee has secured (or will secure, as soon
as practicable after the date hereof) disability income insurance for the
benefit of Employee such that, should Employee become totally or partially
disabled, and, by reason of such disability is unable to perform the duties of
his employment under this Agreement for a period of six (6) consecutive months,
Employee will receive monthly disability income payments through such disability
income insurance
program commencing at the end of said six (6) month period and continuing until
the termination or discontinuance of such disability or the period provided for
in the insurance program, whichever is longer. In the event of Employee's
disability, as defined in Employee's insurance policies, Employee's compensation
provided for in Section 1.3 shall continue for a period of six (6) consecutive
months following the date of Employee's disability.
1.9 WORKING FACILITIES. The Company shall furnish Employee with such
office, secretarial and technical facilities and assistance and legal and tax
publications as are suitable for his position and adequate for the performance
of his duties.
ARTICLE II
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COVENANTS OF EMPLOYEE
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2.1 CONFIDENTIALITY. Employee recognizes the interest of the Company and
its subsidiaries and affiliates in maintaining the confidential nature of their
proprietary and other business and commercial information. In consideration
thereof, during Employee's employment with the Company and following termination
thereof for any reason, Employee shall not (except as authorized in writing by
the Board of Directors of the Company) publish, disclose or use for his own
benefit or for the benefit of a business or entity other than the Company or
otherwise, any secret, confidential, proprietary or other information not in the
public domain which was acquired by Employee during his employment relating to
the Company's or any of its subsidiaries' businesses, operations, customers,
suppliers, products, employees, financial affairs, trade or industrial
practices, trade secrets, technology, know-how or intellectual property. All
records, files, data, documents and the like relating to suppliers, customers,
costs, prices, systems, methods, personnel, technology and other materials
relating to the Company or its subsidiaries shall be and remain the sole
property of
the Company and such subsidiaries. Upon termination of Employee's employment
hereunder, Employee shall not remove from the Company's premises or retain any
of the materials described in this Section 2.1 except with the prior written
consent of the Board of Directors of the Company, and all such materials in
Employee's possession shall be returned promptly to the Company.
ARTICLE III
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TERMINATION OF EMPLOYMENT
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3.1 TERMINATION BY COMPANY. Employee's employment may be terminated at
will by the Company. Upon the termination of Employee's employment, for any
reason, by the Company, Employee shall receive his base salary pro-rated to the
date of termination, a termination payment equal to six (6) months base salary,
payable in one (1) lump sum immediately upon termination, and any amounts
remaining unpaid as provided in Section 1.5 Compensation - Tax Payments of this
Agreement.
ARTICLE IV
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GENERAL PROVISIONS
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4.1 WITHHOLDING OF TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
4.2 NOTICES. All notices or other documents required to be delivered
under this Agreement shall be given in writing and shall be personally
delivered, delivered by United States certified mail, return-receipt requested
or by facsimile to the parties at the addresses listed below. Such notices shall
be effective as of the time of delivery if personally delivered, as of the date
of receipt as referenced by the official receipt of the Unites States Postal
Service if delivered by
certified mail, or as of the date and time of receipt as reflected by facsimile
acknowledgment. The addresses of the parties are as follows:
If to the Company:
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Ham Marine, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxx Xxxxxx Xxx 00
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Employee:
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Xxxxx X. Xxxx, III
000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: None
Other addresses may be substituted for the foregoing addresses upon the
giving of written notice to the other parties in accordance with the provisions
of this Section.
4.3 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Mississippi, without giving effect to the principles of conflict of laws of such
State.
4.4 VALIDITY. If any provisions of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal.
4.5 ENTIRE AGREEMENT. This Agreement supersedes any other agreement, oral
or written, between the parties with respect to the employment of Employee by
the Company, and contains all of the agreements and understandings between the
parties with respect to such employment. Any waiver or modification of any term
of this Agreement shall be effective only if it is signed in writing by both
parties.
4.6 SUCCESSORS AND BINDING AGREEMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any Successor of or to the Company, but shall not otherwise be
assignable or delegable by the Company. "Successor" shall mean any successor in
interest, including, without limitation, any entity, individual or group of
persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company whether by sale, merger, consolidation,
reorganization, stock purchase or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) The Company shall require any Successor to agree (by agreement in
form and substance satisfactory to Employee) within thirty (30) days after
becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
(d) This Agreement is personal in nature and neither of the parties
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
this Section 4.6.
4.7 CAPTIONS. The captions in this Agreement are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of the Agreement.
4.8 MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee, the Company. No waiver by any party hereto at
any time of any breach by any party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by
any party which are not set forth expressly in this Agreement.
4.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
4.10 INDEPENDENT ADVICE. At Employee's request, due to the nature of the
relationship between the company and Employee, the Company has obtained the
advice of independent legal counsel with respect to the terms and provisions of
this Agreement and the signature of such independent legal counsel appears below
for the sole purpose of evidencing his review of this Agreement and the
rendering of such advice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
COMPANY: COUNSEL FOR COMPANY:
Ham Marine, Inc.
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X. X. Xxxxxxxx, President Xxxxx Xxxxxxx
EMPLOYEE:
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Xxxxx X. Xxxx, III
