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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 30th day of November, 1992, by and
between Universal Fabricators Incorporated, a close corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), and
Xxxxxx X. Xxxxxx, (the "Employee").
WITNESSETH:
WHEREAS, prior to the date hereof, Employee was the President of Universal
Partners, Inc., a Louisiana corporation ("Universal");
WHEREAS, Universal and XxXxxxxxx Incorporated, a Delaware corporation,
pursuant to the terms of a Contribution Agreement (the "Contribution
Agreement") of even date herewith, have contributed the Contributed Assets to
the Company in exchange for the issuance by the Company of share certificates
representing fifty-one (51%) and forty-nine (49%) percent, respectively, of the
total authorized and issued share capital of the Company; and
WHEREAS, the Company wishes to assure itself of the continued services of
Employee for the period provided for in this Employment Agreement, and Employee
desires to serve in the employ of the Company on a full-time basis for such
period, upon the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises and promises herein
contained, and for other good and valuable consideration, the receipt and
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sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties represent, covenant and agree as follows:
1. Employment. The Company agrees to employ Employee, and Employee
agrees to enter the employ of the Company, upon the terms and conditions
provided herein.
2. Position and Responsibilities. During the period of his
employment hereunder, Employee shall be employed as President of the Company
and shall perform such services for the Company and for any Affiliate of the
Company when and as directed by the Company. The term "Company" as used in
Sections 11, 12, 13, 14 and 15 shall include the Company and its Affiliates.
3. Term. Employee's employment under this Agreement shall commence
on November 30, 1992 and shall end on the date that Employee is no longer a
shareholder in Universal. In the event that Employee continues in the employ
of the Company after the end of such period, such continued employment shall be
subject to the terms and conditions of this Employment Agreement but shall be
terminable at will by either party.
4. Duties. During the period of his employment hereunder, Employee
shall devote all his business time, attention, skill and efforts to the
faithful performance of his duties hereunder. Employee may not serve, or
continue to serve, on the board of directors of, or hold any other offices or
positions in, other companies or organizations, or engage in any other
employment or business activity except for Uniscape, Inc. and Unisep, Inc.,
except the management of his passive investments and except for the Board of
Directors of Universal without
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the express written approval of the Company's Board of Directors. Employee
shall be located at New Iberia, Louisiana and be available for such domestic or
international travel as the needs of the Company require.
5. Compensation. For all services to be rendered by Employee in any
capacity under this Employment Agreement the Company shall pay Employee as
compensation a salary at the annual rate of (see, attached Exhibit "A") payable
in equal (semi-monthly installments on the fifteenth and last day of each
month) unless a payment date falls on a holiday in which case the payment shall
be made on the next preceding business day. Nothing contained herein shall
preclude Employee from participating in the present or future employee benefit
plans of the Company if he meets the eligibility requirements therefor.
6. Reimbursement For Expenses. Employee shall be entitled to
reimbursement for all ordinary and necessary business expenses incurred by him
in the performance of his duties hereunder, provided no such expense shall be
reimbursed unless Employee shall have properly accounted for expenses to the
extent necessary to substantiate the Company's Federal income tax deductions
for such expenses under the Internal Revenue Code, as amended, and the
regulations thereunder or equivalent subsequent legislation.
7. Vacation. Employee shall be entitled each year, at a time
convenient to the Company, to a vacation of four (4) weeks during which time
his compensation shall be paid in full.
8. Termination.
A. Employee's employment shall terminate upon his death.
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B. In the event Employee becomes, in the good faith
opinion of the Board of Directors of the Company,
physically or mentally disabled so as to be unable,
for a period of more than ninety (90) consecutive
working days or for more than one hundred twenty
(120) working days in the aggregate during any
12-month period, to perform his duties hereunder on a
full-time basis, the Company may at its option
terminate his employment upon not less than thirty
(30) days' written notice.
C. Employee's employment hereunder may be immediately
terminated by the Company upon the occurrence of any
of the following:
1. Employee commits, is arrested or otherwise
officially charged with a felony or any crime
involving moral turpitude or any other
criminal activity or unethical conduct which,
in the good faith opinion of the Board of
Directors, would seriously impair Employee's
ability to perform his duties hereunder or
would impair the business reputation of the
Company.
2. Employee commits an act, or omits to take
action, in bad faith and to the detriment of
the Company.
3. In the good faith opinion of the Board of
Directors of the Company, Employee has failed
to fully or faithfully perform his
obligations under this Employment Agreement.
D. Employee's employment may also be terminated pursuant
to the provisions of Section 16B hereof.
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9. Wrongful Termination. In the event Employee is terminated in
violation of this Employment Agreement, the liability of the Company, if any,
arising out of such termination shall be offset by any unemployment
compensation received by Employee or any compensation for services rendered
which is paid to or accrued for the benefit of Employee as a result of other
employment during any unfulfilled portion of this Employment Agreement.
10. Representations and Warranties of Employee. Employee represents and
warrants to the Company that:
A. Employee is under no contractual or other restriction
or obligation compliance with which is inconsistent
with the execution of this Employment Agreement, the
performance of his obligations hereunder, or the
other rights of the Company hereunder;
B. Employee is under no physical or mental disability
that would hinder the performance of his obligation
under this Employment Agreement.
11. Discoveries and Inventions.
A. Employee hereby assigns and agrees to assign to the
Company all his right, title and interest in and to
any and all inventions, discoveries, developments,
modifications, improvements, ideas, know-how,
techniques, designs, data, programs, processes,
formulae and all other work products ("Work
Products") whether tangible or intangible, which
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Employee conceives, reduces to practice, reduces to
writing or other storage media or otherwise creates
either alone or jointly with others in the course of
his employment.
B. If any of such Work Product is created wholly or in
part by Employee during his hours of actual work for
the Company, or with the aid of the Company's
materials, equipment or personnel, or arises out of
or relates to the Company's business, then such
creation shall be deemed conclusively to have
occurred in the course of his employment. It is
recognized that Employee will perform the duties
assigned to him at times other than his actual
working hours and the Company's rights hereunder
shall not be diminished because Employee's Work
Product was created at such other times.
C. Employee agrees to perform all acts necessary to
enable the Company to learn of and protect the rights
it receives hereunder, including, but not limited to,
making full and immediate disclosure to the Company
and assisting in the preparation and execution of all
documents required to acquire and convey to the
Company patent and copyright protection in the United
States and elsewhere.
12. Confidential Information. Employee agrees that he will not
either during the period of his employment hereunder or at any time thereafter
disclose to any unauthorized person, firm or corporation customer lists or
information relating to customers, any trade secrets or confidential
information relating to the Company, or to any of the businesses operated by
the Company, and Employee confirms that such information constitutes the
exclusive property of the Company.
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For the purposes of this Employment Agreement, the term "confidential
information" shall mean information of any nature and in any form which at the
time or times concerned is not generally known to those persons engaged in
business similar to that conducted or contemplated by the Company. Employee
shall return all tangible evidence of such confidential information to the
Company prior to or at the termination of his employment.
13. Obligation of Loyalty to the Company. During the term of this
Employment Agreement and while employed by the Company, Employee agrees that he
will not:
A. Make any statement or perform any act intended to
advance an interest of any existing or prospective
competitor of the Company in any way that will or may
injure the Company in its relationship and dealings
with any existing or potential customer, supplier or
creditor or solicit or encourage any other employee
of the Company to do any act that is disloyal to the
Company or inconsistent with the Company's interest
or in violation of any provision of this Employment
Agreement;
B. Solicit any other employee to participate in or
assist with the formation or operations of any
business intended to compete with the Company or
with respect to the possible future employment of
such other employee by any such business;
C. Inform any existing or potential customer, supplier
or creditor of the Company that Employee intends to
resign, or make any statement or do any act intended
to cause any
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existing or potential customer, supplier or creditor
of the Company to learn of Employee's intention to
resign; and
D. Discuss with any existing or potential customer,
supplier or creditor of the Company the present or
future availability of services or products provided
by a business which competes with or, where such
services or products are competitive, with services
or products which the Company provides.
14. Covenant Not to Compete. If the employment of Employee is
terminated by the Company pursuant to Section 8C hereof, then:
A. Employee will not, for a period of twelve (12) months
from such termination of employment in the Gulf of
Mexico or any other region of the world in which the
Company conducts business at the time of such
termination of employment, directly or indirectly,
own, manage, operate control, be employed by,
participate in, or be connected in any manner with
the ownership, management, operation or control of
any business in competition with the business
conducted by the Company at the time of such
termination, including the business of fabrication
and assembly of jackets, decks, topside facilities
and equipment for installation and use off-shore in
the production and processing of oil and gas; and
B. Employee will not call upon any customer of the
Company or any potential customer with whom the
customer has been negotiating or is expecting to
negotiate, for the purpose of soliciting,
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diverting, enticing away the business of such person
or entity, or otherwise disrupting any previously
established relationship between such person or
entity and the Company.
15. Injunctive Relief. If there is a breach or threatened breach by
the Employee of the provisions of Sections 12, 13 or 14 of this Employment
Agreement during or after the term of this Employment Agreement, the Company
shall be entitled to an injunction restraining the Employee of the violation of
such section. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedy it may have in the event of the breach of this
Agreement by Employee.
16. Consolidation, Merger, or Sale of Assets. In the event of a
future disposition of (or including) the properties and business of the
Company, substantially as an entirety, by merger, consolidation, sale of
assets, joint venture or otherwise, then the Company may elect:
A. To assign this Employment Agreement and all of its
rights and obligations hereunder to the acquiring or
surviving person or entity; provided that such
corporation, person or entity shall assume in writing
all of the obligations of the Company hereunder; and
provided further that the Company (in the event and
so long as it remains in business as an independent
going enterprise) shall remain liable for the
performance of its obligations hereunder in the event
of an unjustified failure of the acquiring
corporation to perform its obligations under this
Employment Agreement; or
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B. In addition to its other rights of termination, to
terminate this Agreement upon at least thirty (30)
days' written notice by paying Employee the
compensation at the rate provided in Section 5 to the
date on which such termination shall take effect.
17. Headings. Section and other headings contained in this
Employment Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Employment Agreement.
18. Jurisdiction and Venue. This Employment Agreement shall be
governed by and construed in accordance with the internal substantive laws of
the State of Louisiana, and the parties hereby irrevocably and unconditionally
consent and submit to the in personam jurisdiction of any court located in
Lafayette, Louisiana having jurisdiction over all matters relating to this
Employment Agreement. Each party agrees that service of process in any action
or proceeding hereunder may be made upon such party by certified mail, return
receipt requested to the address for notice set forth herein. Each party
irrevocably waives any objection it may have to the venue of any action, suit
or proceeding brought in such courts or to the convenience of the forum and
each party irrevocably waives the right to proceed in any other jurisdiction.
Final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact and the amount of
any indebtedness or liability of any party therein described.
19. Integrated Agreement. This Employment Agreement, the exhibits
hereto and all other documents and instruments delivered in accordance with the
terms hereof constitute the entire understanding and agreement among the
parties hereto
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with respect to the subject matter hereof, and there are no agreements,
understandings, restrictions, representations or warranties among the parties
other than those set forth herein or therein provided for.
20. Severability. Each provision of this Employment Agreement is
intended to be severable. In the event that any one or more of the provisions
contained in this Employment Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the same shall not affect the validity or
enforceability of any other provision of this Employment Agreement, but this
Employment Agreement shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained therein, provided, however,
that no provision shall be severed if it is clearly apparent under the
circumstances that the parties would not have entered into the Agreement
without such provision.
21. Amendments. This Employment Agreement may be amended or modified
at any time in all respects, but only by an instrument in writing executed by
the parties hereto.
22. Notices. Any notice, communication, request, reply or advice
(hereinafter severally and collectively called "notice" in this Employment
Agreement provided or permitted to be given or made by any party to another
must be in writing and may be given or served by depositing same in the United
States mail, postage prepaid and registered or certified with return receipt
requested, or by delivering the same to the address of the person or entity to
be notified. Notice deposited in the mail in the manner hereinabove described
shall be effective 48 hours after such deposit, and notice delivered in person
shall be effective at the time of delivery. For purposes of notice, the
addresses of the parties shall, until changed as hereinafter provided, be as
follows:
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(a) If to the Company: Universal Fabricators Incorporated
X.X. Xxx 00000
Xxxx Xxxx, Xxxx xx Xxx Xxxxxx
New Xxxxxx, Xxxxxxxxx 00000
Attention: Controller
Telecopy: (000) 000-0000
or at such other address as the Company may have advised Employee in writing;
and
(b) If to Employee: Xxxxxx X. Xxxxxx
X.X. Xxx 00000
Xxxx Xxxx, Xxxx xx Xxx Xxxxxx
New Xxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
or at such other address as Employee may have advised the Company in writing.
23. Waiver. The failure by any party to enforce any of its rights
hereunder shall not be deemed to be a waiver of such rights, unless such waiver
is an express written waiver which has been signed by the waiving party, and in
the case of the Company, expressly approved by its Board of Directors. Waiver
of any one breach shall not be deemed to be a waiver of any other breach of the
same or any other provision hereof.
24. Counterpart Execution. This Employment Agreement may be executed
in one or more counterparts and by different parties in separate counterparts,
with the same effect as if all parties hereto had signed the same documents.
All counterparts so executed and delivered shall be deemed to be an original,
shall be construed together and shall constitute one agreement.
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25. Defined Terms. All capitalized terms used herein but not defined
shall have the meaning attributed to them in the Contribution Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
COMPANY
UNIVERSAL FABRICATORS INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
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Title: Controller
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EMPLOYEE
/s/ Xxxxxx X. Xxxxxx
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SCHEDULES INTENTIONALLY OMITTED
REGISTRANT WILL PROVIDE COPIES UPON REQUEST
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