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EXHIBIT 10.22
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into by
and between ▇▇▇▇▇▇ Petroleum Services Corp., a Delaware corporation
("COMPANY"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("EXECUTIVE") on this 27th day of
November, 1996, effective on the 27th day of November, 1996 ("Effective
Date").
W I T N E S S E T H :
WHEREAS, Company desires to employ Executive and Executive desires to be
employed upon the terms and conditions set forth herein;
WHEREAS, Company and Executive are parties to an Executive Employment
Agreement dated June 25, 1996 which they desire to amend and fully restate upon
the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
TERM AND NATURE OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT. Subject to the terms and conditions of this
Agreement, Company hereby employs Executive and Executive hereby accepts
employment with Company for a term beginning on the date on the Effective Date
as set forth above through and including April 30, 1999 (the "INITIAL TERM"),
unless this Agreement and Executive's employment hereunder are sooner
terminated pursuant to Article 5. On each anniversary of the Effective Date (a
"Renewal Date") the term of this Agreement shall automatically renew and extend
for a period of three years from the Renewal Date (a "Renewal Term") unless
written notice of nonrenewal is delivered from one party to the other at least
sixty days prior to the Renewal Date. The Agreement shall remain in force
during the Initial Term and any Renewal Term until terminated in accordance
with Article 5. The Initial Term together with each Renewal Term shall
hereinafter be referred to collectively as the "EMPLOYMENT PERIOD."
1.2 PRINCIPAL DUTIES. Executive's employment hereunder shall be in the
capacity of Senior Vice President, General Counsel and Secretary. In such
capacity, Executive shall perform the duties for which he currently is
responsible as an executive officer of Company. Executive shall
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perform his duties hereunder in accordance with any lawful instructions, rules,
regulations or policies made or adopted by Company's Board of Directors,
including those applicable to Company's Executives generally, provided that
Executive shall not have his duties, authority, areas of responsibility,
offices, immediate or support staff reduced or eliminated during the Employment
Period. During the Employment Period, Executive shall devote his full time, and
best efforts and skills to the business and interests of Company, do his utmost
to further enhance and develop Company's best interests and welfare, and
endeavor to improve his ability and knowledge of Company's business,
particularly as it relates to his duties hereunder, in an effort to increase
the value of his services for the mutual benefit of the parties hereto. During
the Employment Period, it shall not be a violation of this Agreement for
Executive to (a) serve on corporate, civic, or charitable boards or committees
(except for Boards or committees of a Competing Business (as defined in Section
4.1)), (b) deliver lectures, fulfill teaching or speaking engagements, (c)
manage personal investments, so long as such activities do not materially
interfere with performance of Executive's responsibilities under this
Agreement.
1.3 PLACE OF PERFORMANCE. Executive shall perform his duties hereunder at
the principal executive offices of Company at One ▇▇▇▇▇▇▇▇ Centre, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, , or at such other place where Company's
principal executive offices subsequently may be located. Executive acknowledges
subject to Section 5.3(c) hereof, and agrees that Company may require Executive
to travel and render services in different locations from time to time incident
to the performance of his duties hereunder.
1.4 AFFILIATES. The term "AFFILIATES" shall mean any person or entity
controlled by or under common control with Company.
ARTICLE 2
COMPENSATION
For and in consideration of the performance by Executive of the services,
terms, conditions, covenants and agreements contained in this Agreement,
Company shall pay to Executive at the times, in the amounts and in the manner
herein provided, the following:
2.1 BASE COMPENSATION. As the principal consideration for the services to
be performed by Executive hereunder during the Employment Period, Executive
shall be entitled to receive as base compensation from Company a salary of not
less than Nineteen Thousand and 00/100 Dollars ($19,000.00) per month (the
"BASE SALARY"), which shall be prorated for any partial employment period and
payable in the manner and on the timetable in which Company's payroll is
customarily handled, or at such more frequent intervals as Company and
Executive may hereafter agree to from time to time. No overtime compensation
shall be payable to Executive. Company's Board of Directors shall review
Executive's performance at least annually and shall make any adjustments to
Executive's compensation that it deems, in its sole discretion, appropriate,
provided that at no time during the Employment Period shall Executive's
compensation be adjusted to an amount below the Base Salary. Company shall be
entitled to withhold from all amounts of compensation payable
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under this Article 2 such amounts on account of payroll taxes and similar
matters as are required by any applicable law, rule, or regulation of any
appropriate governmental authority. Such compensation shall continue to be paid
during any period of physical or mental incapacity unless and until Executive's
employment is terminated as herein provided.
2.2 STOCK GRANT AND OPTION. As additional consideration for Executive's
performance of his obligations under Article 3 and Article 4 of this Agreement,
Company has previously, granted to Executive 120,000 restricted shares of
Company's Common Stock, and an option to purchase 71,712 1996 Key Employee
Stock Plan, and the terms of the specific agreements relating to the grants of
restricted stock and stock options. Executive hereby acknowledges and agrees
that Company's grant to Executive of such Common Stock and options, together
with other compensation payable to Executive hereunder, is reasonable and
adequate independent consideration for Executive's performance of his
obligations under Articles 3 and 4 of this Agreement.
2.3 BONUSES AND BENEFITS. In addition to the Base Salary and stock grant
and option described above, Company shall provide Executive with the following
during the Employment Period:
(a) Bonuses, when and based upon or subject to such terms and
conditions as Company's Board of Directors, in its sole and absolute
discretion, may determine provided, however, that an annual bonus plan
shall be prepared which will make a bonus of thirty-three and one-third
percent (331/3%) of base compensation payable if all bonus plan criteria
are met;
(b) Participation in any present or future disability, medical,
health, dental, insurance, pension, profit-sharing, thrift, retirement,
investment, and stock appreciation plans, and any other benefit, bonus or
compensation plans on the same terms generally available to all of
Company's Executives generally or its executive officers in particular;
(c) Payment or reimbursement, as the case may be, of reasonable
business expenses (within limits that may be established by Company's
Board of Directors) incurred in connection with the performance of his
duties hereunder, such expense payment or reimbursement being subject to,
and made in accordance with Company's policies and procedures of Executive
expense payment or reimbursement in effect from time to time;
(d) Access to and use of Company's health club facility in accordance
with the policies and procedures governing such facility;
(e) At the option of Executive each year either (1) use of a current
model Company vehicle comparable to a fully equipped Cadillac, plus
reimbursement of the full cost of repairs, maintenance, gasoline, oil and
cleaning, or (2) an automobile allowance of $1,700.00 per month;
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(f) Use of a Company paid full membership in a local area country
club of the Executive's choice, and
(g) Reimbursement of the reasonable costs of tuition, books and
travel incurred for Executive's continuing education in general business
or continuing professional education. For each fiscal year during the
Employment Period the reimbursement shall not exceed ten percent of
Executive's annual base compensation as set forth in Section 2.1.
2.4 VACATION. During the Employment Period, Executive shall accrue paid
vacation time in such amounts and at such times as determined by Company's
Board of Directors, in its sole discretion; provided, however, that the minimum
amount of paid vacation to which Executive shall be entitled shall be no less
than that to which he is entitled as an Executive of Company immediately prior
to the effective date of this Agreement. If such vacation time is not taken by
Executive during the term of this Agreement, Executive may, at his option,
receive a lump sum payment of cash value of the vacation pay in lieu thereof,
or carry the vacation time forward.
ARTICLE 3
CONFIDENTIAL INFORMATION; PROPERTY RIGHTS
3.1 NON-DISCLOSURE OBLIGATION OF EXECUTIVE. For purposes of this Article
3, all references to Company shall mean and include its Affiliates (as defined
in Section 1.4) Executive hereby acknowledges, understands and agrees that
whether developed by Executive or others employed by or in any way associated
with Executive or Company, all Confidential Information, as defined in Section
3.2, is the exclusive and confidential property of Company and shall be at all
times regarded, treated and protected as such in accordance with this
Agreement. Executive acknowledges that all such Confidential Information is in
the nature of a trade secret. Failure to ▇▇▇▇ any writing confidential shall
not affect the confidential nature of such writing or the information contained
therein.
3.2 DEFINITION OF CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION"
shall mean information, whether or not originated by Executive, which is used
in Company's business and (a) is proprietary to, about or created by Company;
(b) gives Company some competitive business advantage or the opportunity of
obtaining such advantage, or the disclosure of which could be detrimental to
the interests of Company; (c) is designated as Confidential Information by
Company, known by the Executive to be considered confidential by Company, or
from all the relevant circumstances considered confidential by Company, or from
all the relevant circumstances should reasonably be assumed by Executive to be
confidential and proprietary to Company; or (d) is not generally known by
non-Company personnel. Such Confidential Information includes, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing or designated as
confidential):
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1. Work product resulting from or related to work or projects
performed or to be performed for Company or for clients of Company,
including but not limited to data bases, draft and other non-public
written documents, the interim and final lines of inquiry, hypotheses,
research and conclusions related thereto and the methods, processes,
procedures, analyses, techniques and audits used in connection therewith;
2. Computer software of any type or form in any stage of actual or
anticipated research and development, including but not limited to
programs and program modules, routines and subroutines, processes,
algorithms, design concepts, design specifications (design notes,
annotations, documentation, flowcharts, coding sheets, and the like),
source codes, object codes and load modules, programming, program patches
and system designs;
3. Information relating to Company's proprietary rights prior to any
public disclosure thereof, including but not limited to the nature of the
proprietary rights, production data, technical and engineering data, test
data and test results, the status and details of research and development
of products and services, and information regarding acquiring, protecting,
enforcing and licensing proprietary rights (including, without limitation,
patents, copyrights and trade secrets);
4. Internal Company personnel and financial information, vendor names
and other vendor information (including vendor characteristics, services
and agreements), purchasing and internal cost information, internal
service and operational manuals, and the manner and methods of conducting
Company's business;
5. Marketing and development plans, price and cost data, price and
fee amounts, pricing and billing policies, quoting procedures, marketing
techniques and methods of obtaining business, forecasts and forecast
assumptions and volumes, and future plans and potential strategies of
Company which have been or are being discussed;
6. Names of customers and their representatives, contracts and their
contents and parties, customer services, and the type, quantity,
specifications and contents of products and services purchased, leased,
licensed or received by customers of Company;
7. Information provided to Company by any actual or potential
customer, government agency, or other third party (including businesses,
consultants and other entities and individuals); and
8. Contracts with, or developed by Company for use with, agents of
Company, including, without limitation, the terms and conditions thereof.
3.3 EXCLUSIONS FROM CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION"
shall not include information publicly known other than as a result of a
disclosure by Executive in breach of Section 3.1, and the general skills and
experience gained during Executive's work with Company
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which Executive could reasonably have been expected to acquire in similar work
with another company. The phrase "PUBLICLY KNOWN" shall mean readily accessible
to the public in a written publication and, shall not include information which
is only available by a substantial searching of the published literature or
information the substance of which must be pieced together from a number of
different publications and sources. The burden of proving that information or
skills and experience are not Confidential Information shall be on the party
asserting such exclusion.
3.4 COVENANTS OF EXECUTIVE. As a consequence of Executive's acquisition or
anticipated acquisition of Confidential Information, Executive will occupy a
position of trust and confidence with respect to Company's affairs and
business. In view of the foregoing and of the consideration to be provided to
Executive, Executive agrees that it is reasonable and necessary that Executive
make the following covenants:
(a) At any time during or after the termination of the Employment
Period, Executive will not disclose Confidential Information to any person
or entity, either inside or outside of Company, other than as necessary in
carrying out duties on behalf of Company, without obtaining Company's
prior written consent (unless such disclosure is compelled pursuant to
court order or subpoena, and at which time Executive gives notice of such
proceedings to Company), and Executive will take all reasonable
precautions to prevent inadvertent disclosure of such Confidential
Information. This prohibition against Executive's disclosure of
Confidential Information includes, but is not limited to, disclosing the
fact that any similarity exists between the Confidential Information and
information independently developed by another person or entity, and
Executive understands that such similarity does not excuse Executive from
abiding by his covenants or other obligations under this Agreement.
(b) At any time during or after the termination of the Employment
Period, Executive will not use, copy or transfer Confidential Information
other than as necessary in carrying out his duties on behalf of Company,
without first obtaining Company's prior written consent, and will take all
reasonable precautions to prevent inadvertent use, copying or transfer of
such Confidential Information. This prohibition against Executive's use,
copying, or transfer of Confidential Information includes, but is not
limited to, selling, licensing or otherwise exploiting, directly or
indirectly, any products or services (including data bases, written
documents and software in any form) which embody or are derived from
Confidential Information, or exercising judgment in performing analyses
based upon knowledge of Confidential Information.
3.5 RETURN OF CONFIDENTIAL MATERIAL. Executive shall turn over to Company
all originals and copies of materials containing Confidential Information in
the Executive's possession, custody, or control upon request or upon
termination of the Executive's employment with Company. Executive agrees to
attend a termination interview with the General Counsel to confirm turnover of
such materials and to discuss any questions the undersigned may have about his
continuing obligations under this Agreement.
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3.6 INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable works, trademarks, service marks, ideas, processes,
formulae, methods, designs, techniques or trade secrets (collectively
hereinafter referred to as "INVENTIONS") made, developed, conceived or
resulting from work performed by Executive (alone or in conjunction with
others, during regular hours of work or otherwise) while he is employed by
Company and which may be directly or indirectly useful in, or related to, the
business of Company (including, without limitation, research and development
activities of Company), or which are made using any equipment, facilities,
Confidential Information, materials, labor, money, time or other resources of
Company, shall be promptly disclosed by Executive to his supervisor, shall be
deemed Confidential Information for purposes of this Agreement, and shall be
Company's exclusive property. Executive shall, upon Company's request, execute
any documents and perform all such acts and things which are necessary or
advisable in the opinion of Company to cause issuance of patents to, or
otherwise obtain recorded protection of right to intellectual property for,
Company with respect to Inventions that are to be Company's exclusive property
under this Section 3.6, or to transfer to and vest in Company full and
exclusive right, title and interest in and to such Inventions; provided,
however, that the expense of securing any such protection of right to
Inventions shall be borne by Company. In addition, Executive shall, at
Company's expense, assist Company in any proper manner in enforcing any
Inventions which are to be or become Company's exclusive property hereunder
against infringement by others. Executive shall keep confidential and will hold
for Company's sole use and benefit any Invention that is to be Company's
exclusive property under this Section 3.6 for which full recorded protection of
right has not been or cannot be obtained.
ARTICLE 4
COVENANT NOT TO COMPETE; NON-INTERFERENCE
4.1 PROHIBITED EXECUTIVE ACTIVITIES. Executive agrees that except in the
ordinary course of his employment hereunder during the Employment Period,
Executive shall not during the Employment Period and for a period of one (1)
year thereafter within any geographic area in which Company conducts business
during the Employment Period (all references to Company shall include its
Affiliates as defined in Section 1.4):
(a) Directly or indirectly, engage or invest in, own, manage,
operate, control or participate in the ownership, management, operation or
control of, be employed by, associated or in any manner connected with, or
render services or advice to, any Competing Business (as defined below)
provided, however, that the Executive may invest in the securities of any
enterprise with the power to vote up to 5% of the capital stock of such
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
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(b) Directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor
(whether paid or unpaid), stockholder, partner or in any other individual
or representative capacity whatsoever, either for his own benefit or for
the benefit of any other person or entity, solicit, divert or take away,
any customers or clients of Company; or
(c) Directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, Executive, Company, advisor
(whether paid or unpaid), stockholder, partner or in any other individual
or representative capacity whatsoever, either for his own benefit or for
the benefit of any other person or entity, either (1) hire, attempt to
hire, contact or solicit with respect to hiring any Executive of Company,
(2) induce or otherwise counsel, advise or encourage any Executive of
Company to leave the employment of Company, or (3) induce any distributor,
representative or agent of Company to terminate or modify its relationship
with Company.
"COMPETING BUSINESS" shall mean any individual, business, firm, company,
partnership joint venture, organization, or other entity whose products or
services compete, in whole or in part, at any time during the Employment Period
with the products or services of Company or its Affiliates in any domestic or
international market area.
4.2 ESSENTIAL NATURE OF ARTICLE 4. It is acknowledged, understood and
agreed by and between the parties hereto that the covenants made by Executive
in Section 4.1 are essential elements of this Agreement and that, but for the
agreement of the Executive to comply with such covenants, Company would not
have entered into this Agreement.
4.3 NECESSITY AND REASONABLENESS OF ARTICLE 4. Executive hereby
specifically acknowledges and agrees that:
(a) Company has expended and will continue to expend substantial
time, money and effort in developing (1) its business in which the
designs, plans, manuals and specifications are valuable trade secrets, and
(2) a valuable list of customers and agents, and information about their
technical problems and needs, purchasing habits, idiosyncracies and
internal purchasing procedures;
(b) Executive will, in the course of his Employment, be personally
entrusted with and exposed to the trade secrets of Company;
(c) Company, during the term of this Agreement and after its
termination, will be engaged in its highly competitive business in which
many firms, including Company, compete;
(d) A substantial portion of Company's business is conducted outside
the United States;
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(e) Company, pursuant to acquiring certain patents, technology and
associated trade secrets and know-how, will further develop its worldwide
business;
(f) Executive could, after having access to Company's financial
records, contracts, patents, technology and associated trade secrets and
know-how and, after receiving further training by and experience with
Company, and after reviewing Company's trade secrets, become a competitor;
(g) Company will suffer great loss and irreparable harm if Executive
terminates his employment and enters directly or indirectly, into
competition with Company;
(h) The temporal and other restrictions contained in this Article 4
are in all respects reasonable and necessary to protect the business
goodwill, trade secrets, prospects and other business interests of
Company;
(i) The enforcement of this Agreement in general, and of this Article
4 in particular, will not work an undue or unfair hardship on Executive or
otherwise be oppressive to him, it being specifically acknowledged and
agreed by Executive that he has activities and other business interests
and opportunities which will provide him adequate means of support if the
provisions of this Article 4 are enforced after termination of his
employment with Company; and
(j) The enforcement of this Agreement in general, and of this Article
4 in particular, will neither deprive the public of needed goods or
services nor otherwise be injurious to the public.
4.4 JUDICIAL MODIFICATION. Executive agrees that if a court of competent
jurisdiction determines that the length of time or any other restriction, or
portion thereof, set forth in this Article 4 is overly restrictive and
unenforceable, the court shall reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances, and as so
reduced or modified, the parties hereto agree that the restrictions of this
Article 4 shall remain in full force and effect. Executive further agrees that
if a court of competent jurisdiction determines that any provision of this
Article 4 is invalid or against public policy, the remaining provisions of this
Article 4 and the remainder of this Agreement shall not be affected thereby,
and shall remain in full force and effect.
4.5 SURVIVAL OF COVENANTS. The covenants and agreements of Executive set
forth in this Article 4 are of a continuing nature and shall survive the
expiration, termination or cancellation of the remainder of this Agreement
regardless of the reason for such therefor and shall survive the termination,
if any, of the Executive's employment.
4.6 NONCOMPETITION PAYMENTS. Upon termination of Executive's employment
with Company for any reason pursuant to this Agreement, Company shall pay to
Executive , in addition to amounts otherwise payable herein, (a) a single lump
sum payment equal to six (6) months of Base
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Salary, and (b) twelve (12) monthly installments equal to his monthly Base
Salary, as defined in Section 2.1, ("NonCompetition Payments"), provided that:
(i) any payments made to Executive pursuant to Section 5.3 shall be
applied against and reduce the NonCompetition Payments payable to
Executive under this Section 4.6; and
(ii) there shall be no NonCompetition Payments payable for any period
in which Executive is in breach of the obligations set forth in Articles 3
and 4 of this Agreement.
ARTICLE 5
TERMINATION
5.1 COMPANY TERMINATION
(a) Notwithstanding any other provision of this Agreement, at any
time during the Employment Period, including, without limitation, the
Initial Term, this Agreement and Executive's employment hereunder shall
terminate upon his death, and Company shall have the right, in its sole
and absolute discretion, to terminate this Agreement and Executive's
employment hereunder at any time by giving him written notice of such
termination (1) for "Cause" (as defined below), or (2) if Executive shall
suffer a Disability (as defined below). In the event of Executive's death
during the Employment Period, the Company shall (i) pay to Executive's
estate an amount equal to one years Base Salary, (ii) pay to Executive's
estate a pro rata portion of any bonus which would have been payable but
for Executive's death; (iii) vest Executive fully in any Company stock
grant and stock options held by Executive at his death.
(b) "CAUSE" shall mean any of the following events:
1. An act or acts of personal dishonesty taken by the Executive
and intended to result in substantial personal enrichment of the
Executive at the expense of the Company;
2. Repeated violations by the Executive of Executive's
obligations under this Agreement or under written policies of the
Company which are demonstrably willful on the Executive's part, and
for which Executive has received more than one written warning that
specifies each area of Executive's violations;
3. Executive's conviction or pleas of nolo contendere or
equivalent pleas of a felony in a court of competent jurisdiction;
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4. Executive's use of illegal drugs as evidenced by a drug test
authorized by Company; or
5. Executive's conviction or the entry of a plea of nolo
contendere or equivalent plea in a court of competent jurisdiction of
any crime or offense involving moral turpitude.
(c) "DISABILITY" shall mean any mental or physical illness,
impairment or condition which renders the Executive incapable of
performing any material portion of his duties for a continuous period of
six (6) months.
5.2 TERMINATION BY EITHER PARTY. Subject to the provisions of Section
5.3(a), Company may at any time, for any reason, with or without Cause,
terminate this Agreement and Executive's employment hereunder. Executive may
terminate this Agreement at any time and for any reason. Each of Company's and
Executive's option to terminate this Agreement pursuant to this Section 5.2
shall be exercised by delivery of a written notice to Executive or Company, as
applicable, specifying the effective date of such termination which in no event
shall be sooner than expiration of thirty (30) calendar days following delivery
of such written notice.
5.3 EFFECT OF TERMINATION.
(a) "TERMINATION BY COMPANY WITHOUT CAUSE." If Company terminates
this Agreement for any reason other than pursuant to the terms of Section
5.1 and such termination is not within one year of a Change in Control (as
defined in 5.3(b) below), then Company shall: (1) pay to Executive an
amount equal to the greater of (i) his total Base Salary for the remainder
of the Employment Period, or (ii) one month of Base Salary for each full
year of service completed with Company as of the date of termination, (2)
cause Executive to be fully vested in any stock options and stock grants
held by Executive, and (3) pay Executive an amount equal to Executive's
most recent annual bonus. Company shall at its option, make such payments
either in one lump sum on the effective date of termination or over the
remainder of the Employment Period as if the Agreement had not been
terminated.
(b) "TERMINATION BY COMPANY WITHOUT CAUSE AFTER CHANGE IN CONTROL."
If Company terminates this Agreement for any reason other than pursuant to
the terms of Section 5.1 and such termination occurs within one year of
the occurrence of a Change in Control, then Company shall: (1) pay to
Executive an amount equal to the greater of (A) his total Base Salary for
the remainder of the Employment period; (B) two times the greater of his
annualized Base Salary in effect upon the occurrence of the Change in
Control or his annualized Base Salary in effect on the date of notice
termination is received; or (C) one month of Base Salary for each full
year of service completed with the Company as of the date of termination,
(2) pay to Executive an amount equal to two (2) times his most recent
annual bonus, and (3) cause Executive to be fully vested in any stock
options or stock grants
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held by Executive. Company shall make such payments in one lump sum on the
effective date of termination. A "Change in Control" shall be deemed to
have occurred at any time after the date of this Agreement that (i) any
person (other than those persons who own more than 10% of the combined
voting power of the Company's outstanding voting securities on the date
hereof) becomes the beneficial owner, directly or indirectly, of 30% or
more of the combined voting power of the Company's then outstanding voting
securities, or (ii) individuals who at the beginning of any period of two
consecutive fiscal years constitute the Company's Board of Directors cease
for any reason to constitute a majority of such Board of Directors at any
time during such two-year period.
(c) "TERMINATION BY EXECUTIVE WITH GOOD CAUSE AFTER CHANGE IN
CONTROL." If Executive terminates this Agreement for Good Cause (defined
below) and such termination occurs within one year of the occurrence of a
Change in Control, then Company shall: (1) pay to Executive an amount
equal to the greater of (A) his total Base Salary for the remainder of the
Employment Period; (B) two times the greater of his annualized Base Salary
in effect upon the occurrence of the Change in Control or his annualized
Base Salary in effect on the date of notice termination is received; or
(C) one month of Base Salary for each full year of service completed with
the Company as of the date of termination, (2) pay to Executive an amount
equal to two (2) times his most recent annual bonus, and (3) cause
Executive to be fully vested in any stock options or stock grants held by
Executive. "GOOD CAUSE" shall mean the occurrence of any of the following
events:
(i) the assignment by Company to the Executive of duties that
are materially inconsistent with the Executive's office with Company
at the time of such assignment, or the removal by Company from the
Executive of a material portion of those duties usually appertaining
to the Executive's office with Company at the time of such removal;
(ii) a material change by Company, without the Executive's prior
written consent, in the Executive's responsibilities to Company, as
such responsibilities are ordinarily and customarily required from
time to time of a senior officer of a corporation engaged in
Company's business;
(iii) any removal of the Executive from, or any failure to
reelect or to reappoint the Executive to, the office stated in
Section 1.2;
(iv) Company's direction that the Executive discontinue service
(or not seek reelection or reappointment) as a director, officer or
member of any corporation or association of which the Executive is a
director, officer, or member at the date of this Agreement;
(v) a reduction by Company in the amount of the Executive's
salary in effect at the time of the occurrence of a Change in Control
or the failure of Company
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to pay such salary to the Executive at the time and in the
manner specified in this Agreement;
(vi) other than with respect to the annual performance bonus
specified in Article 2 or, as made with the Executive's prior written
consent, the discontinuance (without comparable replacement) or
material reduction by Company of the Executive's participation in any
bonus or other employee benefit arrangement (including, without
limitation, any profit-sharing, thrift, life insurance, medical,
dental, hospitalization, stock option or retirement plan or
arrangement) in which the Executive is a participant under the terms
of this Agreement, as in effect on the date hereof or as may be
improved from time to time hereafter;
(vii) the moving by Company of the Executive's principal office
space, related facilities, or support personnel, from Company's
principal operating offices, or Company's requiring the Executive to
perform a majority of his duties outside Company's principal
operating offices for a period of more than 30 consecutive days;
(viii) the relocation, without the Executive's prior written
consent, of Company's principal executive offices to a location
outside the county in which such offices are located at the time of
the signing of this Agreement;
(ix) in the event Company requires the Executive to reside at a
location more than 25 miles from Company's principal executive
offices, except for occasional travel in connection with Company
business to an extent and in a manner which is substantially
consistent with the Executive's current business travel obligations;
(x) in the event the Executive consents to a relocation of
Company's principal executive offices, the failure of Company to (A)
pay or reimburse the Executive on an after-tax basis for all
reasonable moving expenses incurred by the Executive in connection
with such relocation or (B) indemnify the Executive on an after-tax
basis against any loss realized by the Executive on the sale his
principal residence in connection with such relocation;
(xi) the failure of Company to continue to provide the Executive
with office space, related facilities and support personnel
(including, without limitation, administrative and secretarial
assistance) that are commensurate with the Executive's
responsibilities to and position with Company, and no less than those
prior to this Agreement;
(xii) the failure by Company to promptly reimburse the Executive
for the reasonable business expenses incurred by the Executive in the
performance of his duties for Company, in accordance with this
Agreement.
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(d) Subject to the provisions of Section 4.6, 5.1 or 5.3, upon
termination of this Agreement and Executive's employment hereunder by
either Company or Executive, Executive shall have no right to receive any
compensation or benefits for any period subsequent to the effective date
of such termination, or for any period prior to such date which have not
been earned or vested as of such date except as may be provided for in any
employee benefit plan relating to such benefits, including the Company's
1996 Key Employee Stock Plan.
(e) Company's right of termination shall be in addition to and shall
not affect Company's rights and remedies under Articles 3 and 4, and
Section 6.1 of this Agreement, and Company's rights and remedies shall
survive termination of Executive's employment hereunder.
(f) For purposes of this Agreement, Executive's years of service
shall include service with the Company, service with any predecessor
entity in which all or part of Company's business was conducted, and
service with any Affiliate, as defined in Section 1.4.
5.4 RESIGNATION FROM OFFICES. Any provision of this Agreement to the
contrary notwithstanding, Executive shall immediately resign from any offices
held with Company or its Affiliates upon written request by the Company. Any
resignation made pursuant to a written request by Company under this Section
5.4 shall not affect Executive's rights under this Agreement for any
compensation or payment.
5.5 RELEASE OF FOREIGN RIGHTS. If, during the course of Executives
employment with Company or its Affiliates, Executive may acquire any
compensation, retirement, severance or other similar rights or benefits under
the laws of a country other than the United States of America,
("Extraterritorial Rights") then the compensation and benefits of this
Agreement shall supersede and replace such Extra Territorial Rights to the
extent permitted by law. Furthermore, to the extent the Extra Territorial
Rights may not be superseded under the applicable law, any payments or benefits
under applicable law, any payments or benefits under this Agreement shall be
reduced on a dollar for dollar basis for any amounts paid Executive for any
Extra Territorial Rights. By entering into this Agreement Executive expressly
acknowledges:
(a) Executive's domicile is the United States of America;
(b) Executive acknowledges that the employment relationship with
Company and its Affiliates is to be governed solely by reference to the
laws of the State of Texas, regardless of any services rendered in a
jurisdiction outside the State of Texas;
(c) Executive expressly waives and releases any rights under the laws
of any country other than the United States of America for any Extra
Territorial Rights as heretofore defined; and
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(d) Executive expressly acknowledges and agrees that the payments and
benefits under this Agreement have been bargained for in lieu of any Extra
Territorial Rights.
ARTICLE 6
MISCELLANEOUS
6.1 INJUNCTIVE RELIEF. Because of the unique nature of the Confidential
Information, Executive acknowledges, understands and agrees that Company will
suffer immediate and irreparable harm if Executive fails to comply with any of
his obligations under Articles 3 or 4 of this Agreement, and that monetary
damages will be inadequate to compensate Company for such breach. Accordingly,
Executive agrees that Company shall, in addition to any other remedies
available to it at law or in equity, be entitled to temporary, preliminary, and
permanent injunctive relief to enforce the terms of Articles 3 and 4 without
the necessity of proving inadequacy of legal remedies or irreparable harm.
6.2 ACTION BY AND CONSENT OF COMPANY. All rights and remedies of Company
hereunder shall be exercised by the Company solely by the Compensation
Committee of the Company's Board of Directors.
6.3 NOTICES. Any notice, instruction, authorization, request or demand
required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the parties hereto at the principal offices of
Company at the address indicated beneath its signature on the execution page of
this Agreement, and also to Executive at his home address indicated beneath his
signature on the execution page of this Agreement, or at such other address and
number as a party shall have previously designated by written notice given to
the other party in the manner hereinabove set forth. Notices shall be deemed
given when received, if sent by facsimile means (confirmation of such receipt
by confirmed facsimile transmission being deemed receipt of communications sent
by facsimile means); and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail,
return receipt requested.
6.4 AMENDMENT AND WAIVER. This Agreement may be amended, modified or
superseded only by written instrument executed by all parties hereto. Any
waiver of the terms, provisions, covenants, representations, warranties, or
conditions hereof shall be made only by a written instrument executed and
delivered by the party waiving compliance. Any waiver granted by Company shall
be effective only if executed and delivered by a duly authorized executive
officer of Company other than Executive. The failure of any party at any time
or times to require performance of any provisions hereof, shall in no manner
effect the right to enforce the same. No waiver by any party of any condition
or provision, or the breach of any term, provision, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or
a waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
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6.5 SUCCESSORS AND ASSIGNS. All of the terms, provisions, covenants,
representations, warranties, and conditions of this Agreement shall bind, be
enforceable by, and inure to the benefit of, the parties hereto, but this
Agreement and the rights and obligations hereunder shall not be assignable or
delegable by any party; provided, however, that this Agreement and all of
Company's rights and obligations hereunder may be assigned or delegated by it,
in whole, but not in part, to, and shall be binding upon and inure to the
benefit of, any of its successors or assigns, but such assignment or delegation
by Company shall not relieve it of any of its obligations hereunder.
6.6 DEFINITIONS, GENDER AND CERTAIN REFERENCES. As used in this Agreement,
each parenthetically or quoted capitalized term in the introduction, recitals
and other Sections of this Agreement shall have the meaning so ascribed to it.
Whenever the context requires, the gender of all words used herein shall
include the masculine, feminine and neuter, and the number of all words shall
include the singular and plural. References to Articles or Sections shall be to
Articles or Sections of this Agreement unless otherwise specified. The headings
and captions used in this Agreement are solely for convenient reference and
shall not affect the meaning or interpretation of any article, section or
paragraph herein, or this Agreement. The terms "hereof," "herein" or
"hereunder" shall refer to this Agreement as a whole and not to any particular
Section.
6.7 GOVERNING LAW AND SEVERABILITY. This Agreement has been executed and
is performable in ▇▇▇▇▇▇▇▇▇▇ County, Texas. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Texas. Each party
hereto hereby acknowledges and agrees that it has had the opportunity to
consult with its own legal counsel in connection with the negotiation of this
Agreement, and that it has bargaining power equal to that of the other party
hereto in connection with the negotiation, execution and delivery of this
Agreement. Accordingly, the parties hereto agree that the rule of contract
construction that an agreement shall be construed against the drafter shall
have no application in the construction or interpretation of this Agreement.
The invalidity of any provision of this Agreement shall not affect any other
provision of this Agreement, which shall remain in full force and effect, nor
shall the invalidity of a portion of any provision of this Agreement affect the
balance of such provision.
6.8 EXPENSES. Each party hereto shall pay all of its respective fees and
expenses of attorneys, accountants and other persons employed by it in
connection with the resolution of any dispute between the parties hereto
arising out of or relating to this Agreement.
6.9 ENTIRE AGREEMENT. No agreements or representations, oral or otherwise,
express or implied, have been made by any party hereto with respect to the
subject matter hereof that are not set forth expressly in this Agreement. This
Agreement supersedes and cancels any prior agreement, arrangement or
understanding entered into between Company and Executive relating to the
subject matter hereof, except any agreement entered into pursuant to Company's
1996 Key Employee Stock Plan as contemplated by Section 2.2 of this Agreement.
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6.10 COUNTERPARTS. The parties may execute this Agreement in any number of
counterparts, each of which is an original, but all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the date first above written.
COMPANY:
▇▇▇▇▇▇ PETROLEUM SERVICES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Address: One ▇▇▇▇▇▇▇▇ Center
P. O. Box 1863
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[INTENTIONALLY LEFT BLANK]
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COMPANY ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
Before me, the undersigned authority, on this date personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇, President, of ▇▇▇▇▇▇ Petroleum Services Corp., a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and as
the act and deed of said corporation.
Given under my hand and seal this 27th day of November, 1996.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Notary Public in and for
The State of Texas
My Commission Expires: 5-21-2000
EXECUTIVE ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
Before me, the undersigned authority, on this date personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
Given under my hand and seal this 27th day of November, 1996.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Notary Public in and for
The State of Texas
My Commission Expires: 5-21-2000
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