AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BETWEEN
SUPERIOR ENERGY SERVICES, INC.
AND
XXXXXXX X. XXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered in and
effective as of July 15, 1999, (the "Effective Date") between Superior
Energy Services, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
X. Xxxx (the "Executive").
WITNESSETH:
WHEREAS, Executive is serving as the President and Chief Executive
Officer of the Company pursuant to that certain Employment Agreement dated
December 13, 1995; and
WHEREAS, the Company and the Executive desire to amend and restate
such Employment Agreement as of the Effective Date on the terms and
conditions contained herein.
1. EMPLOYMENT. The Company hereby agrees to employ Executive,
and Executive hereby agrees to serve the Company, on the terms and
conditions set forth herein.
2. TERM. Subject to earlier termination as hereinafter
provided, the employment of Executive by the Company as provided in Section
1 shall have an initial term of three years; provided, however, that on
each anniversary of the Effective Date, the term of Executive's employment
under this Agreement shall be automatically extended for one additional
year, unless either party hereto gives written notice of its election not
to so extend the term at least 90 days prior to the applicable anniversary
date.
3. POSITION AND DUTIES.
(a) The Company agrees to employ Executive, and Executive
agrees to be so employed, in the capacity of Chairman of the Board,
President and Chief Executive Officer of the Company. The Executive shall
be nominated for re-election as a member of the Company's Board of
Directors (the "Board") annually, commencing with the annual stockholders
meeting in 2000, and shall serve as Chairman of the Board so long as this
Agreement is in effect. In addition, for so long as the Executive is
employed by the Company and without further compensation, the Executive
shall serve as a director and officer of the Company's principal
subsidiaries to which he may be elected or appointed from time to time.
(b) The Executive shall be subject to the direction of the
Board and shall have such powers, duties and responsibilities consistent
with the Executive's position as President and Chief Executive Officer of
the Company as may from time to time be prescribed by the Board including,
but not limited to, full authority for all operating, personnel (including
officer positions of the Company, subject to approval by the Board) and
capital expenditure decisions (subject to the supervision of the Board).
(c) Executive shall devote his full business time and
attention to the business and affairs of the Company and shall use his best
efforts in performing faithfully his duties under this Agreement as the
Company's President and Chief Executive Officer. Notwithstanding the
foregoing, Executive shall be free to pursue and attend to on a regular
basis other business matters in accordance with the terms of this Agreement
that do not involve competition with the business of the Company and the
performance of which do not detract from or impair the discharge of his
duties on behalf of the Company.
4. PLACE OF PERFORMANCE. In connection with Executive's
employment by the Company, Executive shall be based at the principal
executive offices of the Company in the greater New Orleans Louisiana,
metropolitan area and shall not be transferred to any other location
without his consent.
5. COMPENSATION AND RELATED MATTERS.
(a) SALARY. The Company shall pay to Executive a base
salary of $375,000 or such greater amount as may be approved from time to
time by the Board, payable in equal semi-monthly installments in accordance
with the Company's regular payroll practices for its principal executives.
The Executive's base salary will be reviewed annually by the Board.
(b) INCENTIVE BONUS. During the term hereof, the Executive
shall be eligible to earn an annual bonus pursuant to the Company's
Management Incentive Plan (the "bonus"), in an amount of up to 125% of his
then current base salary, the exact amount of which shall be determined by
the Board based on the Executive's achievement of performance objectives
for each year, as established by the Board following its review with the
Executive of the Company's operating budget, financial position and
business prospects for such fiscal year. The Bonus shall be payable within
30 days after final determination of the amount payable, but in no event
later than three months after the close of each fiscal year of the Company,
commencing with the fiscal year ending December 31, 1999. It is expressly
agreed by the parties that with respect to the 1999 fiscal year, the
Executive's annual bonus shall not be less than $160,000.
(c) STOCK OPTIONS. On the Effective Date, the Company
shall grant to the Executive, pursuant to the Company's 1998 Stock
Incentive Plan, options to purchase a total of 488,617 shares of the
Company's common stock, $0.001 par value per share, at an exercise price
equal to the closing sales price of the common stock on the Nasdaq National
Market on the Effective Date. The stock option will be granted pursuant to
the form of Stock Option Agreement in the form attached hereto as Exhibit
"A."
(d) EXPENSES. During the term of Executive's employment
hereunder, Executive shall be entitled to receive prompt reimbursement
for all reasonable and necessary expenses incurred by Executive in
performing services hereunder, including all expenses of travel and living
expenses while away from home on business or at the request of and in the
service of the Company; provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established
by the Company.
(e) OTHER BENEFITS. During the term hereof, Executive
shall be entitled to participate in any medical/dental, life insurance,
accidental death, long-term disability insurance plan and 401(k) or other
insurance and retirement plans which have been or may be adopted by the
Company for the general and overall benefit of executive employees of the
Company, according to the participation or eligibility requirements of each
such plan.
(f) VACATIONS. Executive shall be excused from rendering
his services during reasonable vacation periods for not more than 15 days
per year and during other reasonable temporary absences. Executive shall
also be entitled to all paid holidays and personal days given by the
Company to its executives.
(g) VEHICLE. The Company shall make available to Executive
a Company vehicle selected by the Executive for his use in the discharge of
his duties. The Company shall reimburse the Executive for all related
expenses such as repair, insurance and gasoline in accordance with the
policies and practices of the Company in effect from time to time.
6. TERMINATION. Executive's employment hereunder may be
terminated effective as of the Date of Termination (as defined below)
without any breach of this Agreement only under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall
terminate upon his death.
(b) DISABILITY. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been absent from
his duties hereunder on a full-time basis for a period of 120 consecutive
days, or 180 non-consecutive days within any 365 day period, the Company
may terminate Executive's employment.
(c) CAUSE. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this Agreement, the
Company shall have "Cause" to terminate Executive's employment hereunder
upon: (i) substantial and continued willful failure by the Executive to
perform his duties hereunder which results, or could reasonably be expected
to result, in material harm to the business or reputation of the Company,
which failure is not cured (if curable) by Executive within 15 days after
written notice of such failure is delivered to the Executive by the
Company; and (ii) the commission by Executive of any criminal act involving
moral turpitude or a felony which results in an arrest or indictment, or
the commission by Executive, based on reasonable proof, of any act of fraud
or embezzlement involving the Company or its customers or suppliers. For
purposes of this Section 6(c), no act, or failure to act, on Executive's
part shall be considered "willful" unless done, or omitted to be done, by
him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
without (A) reasonable notice to Executive setting forth the reasons for
the Company's intention to terminate for Cause, (B) an opportunity for
Executive, together with his counsel, to be heard before the Board, and (C)
delivery to Executive of a Notice of Termination (as hereinafter defined)
from the Board, finding that, in good faith opinion of the Board, Executive
was guilty of conduct set forth above, and specifying the particulars
thereof in detail.
(d) TERMINATION BY EXECUTIVE.
(i) The Executive may terminate his status as an
employee for Good Reason. The termination by the Executive of his
status as an employee for Good Reason shall be deemed to be a
justifiable termination and shall excuse the Executive from the
obligation to render services under or relating to this Agreement. As
used herein, the term "Good Reason" shall mean:
(A) The occurrence of any of the following:
(1) the assignment by the Board to the
Executive of any duties or responsibilities that are inconsistent with the
Executive's status, title and position as President and Chief Executive
Officer of the Company;
(2) any removal of the Executive from, or any
failure to reappoint or reelect the Employee to, the position of President
and Chief Executive Officer of the Company, except in connection with a
termination by the Company of the Executive's employment for Cause or on
account of disability or death of the Executive;
(3) the failure by the Company to obtain the
assumption of its obligations under this Agreement by any successor or
assign as contemplated in Section 10;
(4) the Company's requiring the Executive to
be based anywhere other than in greater New Orleans, Louisiana metropolitan
area, except for required travel in the ordinary course of the Company's
business;
(5) a reduction in the Employee's base salary
or a failure by the Company to pay to the Employee any installment of the
base salary or to pay any other amounts required to be paid under this
Agreement, which failure continues for a period of ten days after written
notice thereof is given by the Executive to the Company;
(6) any purported termination by the Company
of the Employee's status as an employee which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section 6(e), or which
is not justified as a termination based on Cause; or
(7) any breach of this Agreement by the
Company.
(e) Any termination of Executive's employment by the
Company or by Executive (other than termination pursuant to Section 6(a))
shall be communicated by written Notice of Termination to the other party
hereto in accordance with Section 11. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(f) "Date of Termination" shall mean (i) if Executive's
employment is terminated by his death, the date of his death, (ii) if
Executive's employment is terminated pursuant to Section 6(b), 30 days
after Notice of Termination is given (provided that Executive shall not
have returned to the performance of his duties on a full-time basis during
such 30 day period), (iii) if Executive's employment is terminated pursuant
to Section 6(c), the date specified in the Notice of Termination, and (iv)
if Executive's employment is terminated pursuant to Section 6(d),
immediately upon the Executive's giving to the Company a Notice of
Termination; provided, however, that, if within 30 days after any Notice of
Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination,
the Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a binding
and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected).
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) If Executive's employment is terminated pursuant to
Section 6(a) or 6(b), the Company shall pay the Executive, in a lump sum
within 30 days following the Date of Termination, an amount equal to the
Executive's then current annual base salary.
(b) If Executive's employment is terminated by the Company
for Cause or by Executive for other than Good Reason, the Company shall pay
Executive his then current base salary through the Date of Termination and
the Company shall have no further obligations to Executive under this
Agreement.
(c) If (i) in breach of this Agreement, the Company shall
terminate Executive's employment; or (ii) Executive shall terminate his
employment for Good Reason, then
in lieu of any further salary payments to Executive for periods subsequent
to the Date of Termination, the Company shall pay as liquidated damages to
Executive an amount equal to the product of (A) the sum of Executive's then
current annual base salary and the bonus paid or payable to the Executive
for the preceding fiscal year, and (B) the greater of the number of years
(including partial years) remaining in the term of employment hereunder or
the number 2 in one lump sum within 30 days following the Date of
Termination.
(d) If Executive terminates this Agreement for Good Reason
and such termination occurs within two years of the occurrence of a Change
in Control (as defined below), then, in addition to any amounts otherwise
due under this Agreement, the Company shall: (i) pay to Executive an amount
equal to two times his then current annual base salary plus the bonus paid
or payable to Executive for the preceding fiscal year; (ii) continue
Executive's participation in the Company's medical, dental, accidental
death, and life insurance plans, as provided in Section 5, for two years,
subject to COBRA required benefits thereafter; and (iii) cause Executive to
be fully vested in any stock options or stock grants held by Executive.
The Company shall make the payment due in one lump sum within 30 days
following the Date of Termination. A "Change in Control" shall mean the
occurrence at any time after the date of this Agreement of any of the
following events: (A) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the assets of the Company, to any person or group of related
persons, together with any affiliates thereof; (B) any person or group
shall become the owner, directly or indirectly, beneficially or of record,
of shares representing more than 50% of the aggregate voting power of the
issued and outstanding common stock of the Company; or (C) a merger or
consolidation of the Company with another person in which the holders of
the Company's common stock immediately prior to the consummation of the
transaction hold, directly or indirectly, immediately following the
consummation of the transaction, 50% or less of the common equity interest
in the surviving person in such transaction. Notwithstanding anything to
the contrary in this Agreement, in no event shall the aggregate amount
payable to the Executive pursuant to Section 7(c) and 7(d)(i) exceed an
amount equal to three times the Executive's current base annual salary plus
the bonus paid or payable to Executive for the preceding fiscal year.
(e) If Executive's employment is terminated hereunder other
than by the Company for Cause, the Company shall provide following such
termination to the extent required by the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), COBRA continuation coverage with
respect to the employee benefit plans to which Executive was entitled
immediately prior to the Notice of Termination.
(f) If Executive is subjected to an excise tax as a result
of the "golden parachute" provisions of Section 4999 of the Internal
Revenue Code of 1986, as amended, the Company shall pay to Executive such
amounts as are necessary to place Executive in the same after-tax position
as he would have been had such golden parachute provisions not been
applicable to him. This gross-up provision shall take into account any
such applicable excise tax, any state or federal interest and penalties and
any state or federal income tax and excise tax payable with respect to the
additional payment provided by this Section 6(f).
8. MITIGATION. If Executive's employment is terminated,
Executive shall not be required to make efforts to mitigate damages by
seeking other employment; provided, however, that, to the extent Executive
shall receive compensation from such other employment, the payments to be
made by the Company under the provisions of Sections 7(c) and 7(d) shall
(provided (i) that the term "employment" as used herein shall not include
any independent financial ventures undertaken by executive or employment of
Executive by any proprietorship owned by Executive or any entity in which
Executive has a majority equity interest or in which he is a general
partner and (ii) such independent financial ventures are undertaken after
leaving the employ of the Company and are not in conflict with any non-
compete obligations of the executive) be correspondingly reduced or
correspondingly repaid by Executive to the Company.
9. NONDISCLOSURE AND NONCOMPETITION
(a) CERTAIN DEFINITIONS. For purposes of this Agreement,
the following terms shall have the following meanings:
(i) "Confidential Information" means any
information, knowledge or data of any nature and in any form
(including information that is electronically transmitted or stored on
any form of magnetic or electronic storage media) relating to the
past, current or prospective business or operations of the
Company and its subsidiaries, that at the time or times concerned is
not generally known to persons engaged in businesses similar to those
conducted or contemplated by the Company and its subsidiaries
(other than information known by such persons through a violation of
an obligation of confidentiality to the Company), whether produced by
the Company and its subsidiaries or any of their consultants,
agents or independent contractors or by Executive, and whether or
not marked confidential, including without limitation information
relating to the Company's or its subsidiaries' products and services,
business plans, business acquisitions, processes, product or service
research and development methods or techniques, training methods
and other operational methods or techniques, quality assurance
procedures or standards, operating procedures, files, plans,
specifications, proposals, drawings, charts, graphs, support data,
trade secrets, supplier lists, supplier information, purchasing
methods or practices, distribution and selling activities,
consultants' reports, marketing and engineering or other technical
studies, maintenance records, employment or personnel data, marketing
data, strategies or techniques, financial reports, budgets,
projections, cost analyses, price lists and analyses, employee
lists, customer lists, customer source lists, proprietary computer
software, and internal notes and memoranda relating to any of the
foregoing.
(ii) "Company's Business" includes providing
services in connection with the plugging and abandonment of oil and
gas xxxxx, providing wireline services, chartering and operating lift
boats and other marine service vessels, renting specialized tools and
equipment used in oil and gas drilling and production, providing
workover services on oil and gas xxxxx, providing oil spill
containment services, and renting equipment and/or tools used in
fishing operations.
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Executive
shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information which shall have been obtained by Executive during
Executive's employment (whether prior to or after the effective date
hereof) and shall use such Confidential Information solely within the scope
of his employment with and for the exclusive benefit of the Company. At
the end of the employment term, Executive agrees (i) not to communicate,
divulge or make available to any person or entity (other than the Company)
any such Confidential Information, except upon the prior written
authorization of the Company or as may be required by law or legal process,
and (ii) to deliver promptly to the Company any Confidential Information in
his possession, including any duplicates thereof and any notes or other
records Executive has prepared with respect thereto. In the event that the
provisions of any applicable law or the order of any court would require
Executive to disclose or otherwise make available any Confidential
Information then Executive shall give the Company prompt prior written
notice of such required disclosure and an opportunity to contest the
requirement of such disclosure or apply for a protective order with respect
to such Confidential Information by appropriate proceedings.
(c) LIMITED COVENANT NOT TO COMPETE. During the term of
this Agreement and for a period of two years thereafter, commencing with
the Date of Termination, Executive agrees that:
(i) Executive shall not, directly or indirectly, for
himself or others, own, manage, operate, control, be employed by,
engage or participate in, allow his skill, knowledge, experience or
reputation to be used by, or otherwise be connected in any manner with
the ownership, management, operation or control of, any company or
other business enterprise engaged in any aspect of the Company's
Business, within any parish (or any adjacent offshore areas) of the
State of Louisiana, (as set forth in Appendix A), or within the States
of Florida, Alabama, Mississippi or Texas (including any adjacent
offshore areas), and any other state or other jurisdiction (or any
adjacent offshore areas) (whether within or outside the United
States), in which the Company or any of its subsidiaries carries on a
like line of business on the Date of Termination; provided, however,
that nothing contained herein shall prohibit Executive from making
passive investments in any publicly held company that do not exceed in
the aggregate 1% of the equity interest of such company;
(ii) Executive shall not call upon any customer of the
Company or its subsidiaries or any potential customer of the Company,
for the purpose of soliciting, diverting or enticing away the business
of such person or entity, or otherwise disrupting any previously
established relationship existing between such person or entity and
the Company or its subsidiaries;
(iii) Executive shall not solicit, induce, influence or
attempt to influence any supplier, lessor, licensor, or any other
person who has a business relationship with the Company or its
subsidiaries, or who on the Date of Termination is engaged in
discussions or negotiations to enter into a business relationship with
the Company or its subsidiaries, to discontinue or reduce the extent
of such relationship with the Company or its subsidiaries; and
(iv) Executive shall not make contact with any of the
employees of the Company or its subsidiaries with whom he had contact
during the course of his employment with the Company for the purpose
of soliciting such employee for hire, whether as an employee or
independent contractor, or otherwise disrupting such employee's
relationship with the Company or its subsidiaries.
Executive further agrees that, for a period of one year from and after the
Date of Termination, Executive shall not hire any employee of the Company
as an employee or independent contractor, whether or not such engagement is
solicited by Executive.
Notwithstanding the foregoing, the parties agree that this paragraph
(c) shall not be binding upon Executive in the event that Executive is
discharged by the Company for other than death, disability or Cause, or the
Executive terminates his employment for Good Reason.
(d) PROTECTION OF INFORMATION.
(i) The Company shall disclose to Executive, or
place Executive in a position to have access to or develop, trade
secrets or confidential information of the Company; and/or shall
entrust Executive with business opportunities of the Company; and/or
shall place Executive in a position to develop business good will on
behalf of the Company.
(ii) Executive agrees not to disclose or utilize,
for Executive's personal benefit or for the direct or indirect benefit
of any other person or entity, or for any other reason, whether for
consideration or otherwise, during the term of his employment
hereunder or at any time thereafter, any information, ideas, concepts,
improvements, discoveries or inventions, whether patentable or not,
which are conceived, made, developed, or acquired by Executive,
individually or in conjunction with others, during Executive's
employment by the Company (whether during business hours or otherwise
and whether on the Company's premises or otherwise) which relate to
the business, products, or services of the Company (including, without
limitation, all such business ideas, prospects, proposals or other
opportunities which are developed by Executive during his employment
hereunder, or originated by any third party and brought to the
attention of Executive during his employment hereunder, together with
information relating thereto (including, without limitation, data,
memoranda, opinions or other written, electronic or charted means, or
any other trade secrets or other confidential or proprietary
information of or concerning the Company)) (collectively, "Business
Information"). Moreover, all documents, drawings, notes, files, data,
records, correspondence, manuals, models, specifications, computer
programs, E-mail, voice mail, electronic databases, maps, and all
other writings or materials of any type embodying any such Business
Information are and shall be the sole and exclusive property of the
Company. Upon termination of Executive's employment by the Company,
for any reason, Executive promptly shall deliver all Business
Information, and all copies thereof, to the Company. As a result of
knowledge of confidential Business Information of third parties, such
as customers, suppliers, partners, joint ventures, and the like, of
the Company, Executive also agrees to preserve and protect the
confidentiality of such third party Business Information to the same
extent, and on the same basis, as the Company's Business Information.
(iii)Executive agrees that, during his employment,
any inventions (whether or not patentable), concepts, ideas,
expressions, discoveries, or improvements, including, without
limitation, products, processes, methods, publications, works of
authorship, software programs, designs, trade secrets, technical
specifications, algorithms, technical data, know-how, internal reports
and memoranda, marketing plans and any other patent or proprietary
rights conceived, devised, developed, or reduced to practice, in whole
or in part, by the Executive during the term of his employment by the
Company (the "Developments") are the sole and exclusive property of
the Company on a worldwide basis as works made for hire or otherwise,
and further that any revenue or other consideration obtained from the
sale, license or other transfer or conveyance of any such Development,
or a product or service incorporating such Development, is solely for
the benefit of and becomes the property of the Company. To the extent
a Development may not be considered work made by the Executive for
hire for the Company, the Executive agrees to assign, and
automatically assigns at the time of creation of the Development,
without any requirement of further consideration, any and all right,
title and interest he may have in such Development. Executive shall
preserve each such Development as confidential and proprietary
information of the Company. Executive shall promptly disclose each
such Development and shall, upon demand, at the Company's expense,
execute and deliver to the Company such documents, instruments, deeds,
acts and things as the Company may request to evidence or maintain the
Company's ownership of the Development, in any and all countries of
the world, or to effect enforcement thereof, and to assign all rights,
if any, of the Executive in and to each of such Developments. In
addition, Executive agrees not to publish or seek to publish any
information whatsoever concerning any Development without the prior
written consent of the Company, which may be withheld in its sole and
absolute discretion.
(iv) Any inventions relating to the business of
the Company conceived or reduced to practice after the Executive
leaves the employ of the Company shall be conclusively deemed to have
been conceived and/or reduced to practice during the period of the
employment if conceived and/or reduced to practice within six months
from termination of employment, and shall be subject to the terms of
this Section 9.
(e) INJUNCTIVE RELIEF. Executive acknowledges that a
breach by Executive of paragraph (b), (c) or (d) of this Section 9 would
cause immediate and irreparable harm to the Company for which an adequate
monetary remedy does not exist; hence, Executive agrees that, in the event
of a breach or threatened breach by Executive of the provisions of
paragraph (b), (c) or (d) of this Section 10 during or after the employment
term, the Company shall be entitled to injunctive relief restraining
Executive from violation of any such paragraph without the necessity of
proof of actual damage or the posting of any bond, except as required by
non-waivable, applicable law. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedy at law or in equity
to which the Company may be entitled under applicable law in the event of a
breach or threatened breach of this Agreement by Executive including, but
not limited to, recovery of costs and expenses such as reasonable
attorney's fees incurred by reason of any such breach, actual damages
sustained by the Company as a result of any such breach, and cancellation
of any unpaid salary, bonus, commissions or reimbursements otherwise
outstanding at the Date of Termination.
(f) GOVERNING LAW OF THIS SECTION 9; CONSENT TO
JURISDICTION. Any dispute regarding the reasonableness of the covenants
and agreements set forth in this Section 9, or the territorial scope or
duration thereof, or the remedies available to the Company upon any breach
of such covenants and agreements, shall be governed by and interpreted in
accordance with the laws of the state in which the prohibited competing
activity or disclosure occurs, and, with respect to each such dispute, the
Company and Executive each hereby irrevocably consent to the exclusive
jurisdiction of the state and federal courts sitting in the relevant state
for resolution of such dispute, and agree to be irrevocably bound by any
judgment rendered thereby in connection with such dispute, and further
agree that service of process may be made upon him in any legal proceeding
relating to this Section 9 by any means allowed under the laws of such
state. Each party irrevocably waives any objection he, she or it may have
as to the venue of any such suit, action or proceeding brought in such a
court or that such a court is an inconvenient forum.
(g) EXECUTIVE'S UNDERSTANDING OF THIS SECTION. Executive
hereby represents to the Company that he has read and understands, and
agrees to be bound by, the terms of this Section. Executive acknowledges
that the geographic scope and duration of the covenants contained in
paragraph (c) are the result of arm's-length bargaining and are fair and
reasonable in light of (i) the importance of the functions performed by
Executive and the length of time it would take the Company to find and
train a suitable replacement, (ii) the nature and wide geographic scope of
the operations of the Company, (iii) Executive's level of control over and
contact with the Company's business and operations in all jurisdictions
where same are conducted and (iv) the fact that the Company's Business is
conducted throughout the geographic area where competition is restricted by
this Agreement. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permitted
under applicable law, whether now or hereafter in effect and therefore, to
the extent permitted by applicable law, the parties hereto waive any
provision of applicable law that would render any provision of this Section
9 invalid or unenforceable.
10. SUCCESSORS; BINDING AGREEMENT
(a) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory 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. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle Executive to
compensation from the Company in the same amount and on the same terms as
he would be entitled to hereunder if he terminated his employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 10 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) This Agreement and all rights of Executive hereunder
shall inure to the benefit of and be enforceable by Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's devisee,
legatee, or other designee or, if there be no such designee, to Executive's
estate.
11. NOTICE. For the purpose of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
(unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepared, addressed as
follows:
If to Executive:
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
If to the Company:
Superior Energy Services, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
12. 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 Executive and such officer of
the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of,
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
express or implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this Agreement.
13. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
14. 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 shall constitute one and the same instrument.
15. RIGHTS AND REMEDIES. In the event that Executive institutes
proceedings to enforce this Agreement; he shall be entitled to recover all
reasonable attorneys' fees and costs incurred, in addition to any damages
or other relief awarded.
16. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto;
and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.
17. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with and governed by the internal laws of the State
of Louisiana without regard to principles of conflict of laws, except as
expressly provided in Section 9(f) with respect to the resolution of
disputes arising under, or the Company's enforcement of, Section 9 of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date and year first above written.
SUPERIOR ENERGY SERVICES, INC.
By: _____________________
Xxxxxxx Xxxxxxxxx
Vice President
_____________________
Xxxxxxx X. Xxxx
APPENDIX A
Acadia Madison
Xxxxx Xxxxxxxxx
Ascension Natchitoches
Assumption Orleans
Avoyelles Ouachita
Xxxxxxxxxx Plaquemines
Bienville Pointe Coupee
Bossier Rapides
Caddo Red River
Calcasieu Richland
Xxxxxxxx Xxxxxx
Xxxxxxx St. Xxxxxxx
Catahoula St. Xxxxxxx
Xxxxxxxxx St. Helena
Concordia St. Xxxxx
XxXxxx St. Xxxx the Baptist
East Baton Rouge St. Xxxxxx
East Xxxxxxx St. Xxxxxx
East Xxxxxxxxx St. Xxxx
Xxxxxxxxxx St. Tammany
Franklin Tangipahoa
Grant Tensas
Iberia Terrebonne
Iberville Union
Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Washington
Xxxxxxxxx Xxxxxxx
Lafourche West Baton Rouge
LaSalle West Xxxxxxx
Xxxxxxx West Xxxxxxxxx
Xxxxxxxxxx Xxxx
