EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated
effective as of May 15, 1997, is by and between American
Oilfield Divers, Inc., a Louisiana corporation (the "Company"),
and Xxxxx Xxxxxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to assure itself of the
services of Employee for the period provided in this Agreement,
and Employee desires to serve in the employ of the Company on a
full-time basis for such period, and upon the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of
the respective representations and warranties hereinafter set
forth and of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
I. Employment and Capacity. (a). Subject to the terms
and conditions of this Agreement and applicable law, the
Company hereby agrees to employ Employee, and Employee agrees
to serve for an initial period, as Executive Vice President and
President - Technology Group of the Company during the term of
this Agreement. In such capacity, Employee's primary duties
and responsibilities shall be those assigned from time to time
by the Company's President and Chief Executive Officer, to whom
Employee shall report directly, or by the Company's Board of
Directors including, without limitation, those duties and
responsibilities set forth in Appendix A attached hereto and
made a part hereof.
(b). In performing his duties as Executive Vice
President and President - Technology Group of the Company or
other position hereunder, Employee shall devote his entire full
time, attention, energies and business efforts to the Company
and shall not, without the consent of the Company's Board of
Directors, during the term of this Agreement, engage in any
other business activity, whether or not such business activity
is pursued for profit; provided, however, this Section 1(b)
shall not prohibit Employee from (i) being a passive investor
in a business enterprise (other than an enterprise engaged in
the Company Business, as defined in Section 8), provided such
investment will not unduly interfere or materially conflict
with his obligations hereunder and will not require any active
services whatsoever on his part in the management or operation
of the affairs of such enterprise, or (ii) serving as a
director or trustee of any civic, charitable or other
eleemosynary organization, provided that such service does not
unduly interfere with Employee's performance of his duties and
responsibilities hereunder. Notwithstanding anything to the
contrary herein, Employee shall be entitled to remain as an
owner or director of or otherwise be involved in the business
enterprises set forth in Appendix B attached hereto and made a
part hereof.
(c). In connection with Employee's employment by the
Company, except for reasonable travel necessary to the conduct
of the business of the Company or its subsidiaries, Employee
shall be based at the Houston, Texas headquarters office of the
Company or such other location as may be determined by the
President and Chief Executive Officer or Board of Directors of
the Company. Subject to the execution of this Agreement,
Company shall pay a lump sum of $35,0000 to cover the
reasonable and necessary cost of travel (economy class or
equivalent) and transportation of household goods and
furnishings and vehicles of the Employee, his spouse and
dependent children (if any) from Jupiter, Florida, to Houston,
Texas, subject to the terms and conditions of the Company's
corporate moving policy. In the event of termination of this
Agreement by Employee for Good Reason or by the Company for a
reason other than Cause, as defined herein, on or before the
second anniversary of this Agreement the Company shall
immediately pay the reasonable and necessary cost of travel
(economy class or equivalent) and cost of transportation of
household goods, furnishings and vehicles of the Employee, his
spouse and dependent children from the location where the
Employee is employed at the time that employment ceases to
Jupiter, Florida.
(d). For purposes of this Agreement, Employee's
employment shall begin on, and be effective as of the date
hereof and, notwithstanding anything to the contrary herein,
the date hereof shall be considered as the Employee's
anniversary date of employment hereunder.
II. Term of Employment. Subject to the terms and
conditions hereof, Employee's employment under this Agreement
shall commence on the date hereof and shall end at the close of
business on the fifth anniversary of the date hereof, unless
sooner terminated pursuant to Section 4. The term of
Employee's employment under this Agreement is referred to
herein as the "Employment Term" and the date of termination of
such employment as the "Termination Date." All provisions
herein governing the parties' rights and obligations upon the
termination of Employee's employment shall survive the
termination of this Agreement.
III.Compensation and Other Benefits. (a). In
consideration of all services to be rendered by Employee in any
capacity to the Company and any of its subsidiaries or
affiliates under this Agreement, the Company shall pay Employee
the compensation and benefits described below:
(i). An annual salary ("Annual Salary") in the
amount of not less than $220,000, or in such greater amount as
may from time to time be fixed by the Company's Board of
Directors. The Annual Salary shall be reviewed by the Board's
Compensation Committee at the end of each of the Company's
fiscal years.
(ii).Employee shall be eligible for an annual
bonus of up to 60% of his Annual Salary upon (A) the
attainment of such Company-wide performance goals, in
accordance with such terms and conditions, as shall be
established by the Company's Board of Directors or the
Compensation Committee thereof and (B) any annual
evaluation of Employee's individual performance/merit.
Employee shall have the right to provide input and make
recommendations with respect to the establishment of
reasonable Company-wide performance goals prior to their
finalization and adoption by the Compensation Committee.
Notwithstanding anything to the contrary herein, the
payment of such bonus shall be in the sole discretion of
the Company's Board of Directors or the Compensation
Committee thereof.
(iii).Promptly after the first meeting of the
Board of Directors of the Company or the Compensation
Committee thereof following execution of this Agreement,
pursuant to the Company's 1993 Incentive Compensation Plan
(the "Plan"), the Company will grant to Employee options
to purchase 200,000 shares of its common stock at a
purchase price equal to "fair market value," as defined in
the Plan, on the date of issuance of such options; the
grant of the option to purchase 200,000 shares shall be
subject to approval by the Company's shareholders, which
matter shall be placed on the next annual Company
shareholder's meeting in calendar year 1997. Such options
(A) will vest and become exercisable in increments of
40,000 per year of the Employment Term, and (B) will be
subject to such other reasonable restrictions and
limitations as may be determined by the Compensation
Committee. In the event of a change in control
transaction involving the Company such as the acquisition
of 50% of the Company's outstanding Common Stock or the
change in a majority of the Company's Board of Directors
after within one calendar year, all outstanding options
will vest and become immediately exercisable. If the
Company does not obtain shareholder approval for the
Employee's options granted hereunder, the Company agrees
to place the Employee in the same or substantially similar
economic position as if the options had been approved
(i.e., in the form of a cash payment, etc.)
(iv).During each year of Employee's employment
hereunder, Employee shall be entitled to three weeks' paid
vacation and six paid days sick leave, which shall not
cumulate from year to year; no vacation/sick pay shall be
payable with respect to vacation/sick leave not taken.
Notwithstanding the foregoing, if Employee delays or
disrupts a previously scheduled vacation at the request of
the Company to handle Company business, then the Company
shall accommodate the Employee to make up for such
delayed/disrupted vacation.
(v). Employee shall be entitled to participate
in and receive benefits ("Other Benefits") under each
employee benefit plan and incentive compensation plan
maintained by the Company on the same basis and subject to
the same eligibility and other requirements and
limitations as other Company employees similarly situated.
(vi).Employee shall entitled to an automobile
allowance of $600 per month and to reimbursement of the
cost of fuel, fluids, batteries and tires used in the
operation of such automobile.
(vii).Employee shall be entitled to the use of a
cellular telephone in connection with the performance of
his duties hereunder and all cellular telephone charges
associated with Company business shall be reimbursed to
the Employee by the Company.
(b). Payment to Employee of all compensation
hereunder shall be at such times and in accordance with
such payroll and reimbursement practices as are followed
by the Company for employees occupying positions similar
to that of Employee.
(c). Employee will be entitled to reimbursement for
ordinary and necessary business expenses incurred from
time to time on behalf of the Company in accordance with
the Company's policies in the performance of his duties
hereunder, provided no such expense will be reimbursed
unless Employee will 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 of 1986 and the regulations
promulgated thereunder and consistent with the Company's
expense reimbursement policy. Subject to the Company's
air travel policy, as amended from time to time, air
travel on trans-Atlantic flights, flights over any portion
of the Pacific Ocean and flights which exceed a total of 6
hours of flight time shall be in business class or
equivalent thereof.
(d). Any and all of Employee's service as an
employee, officer or director of any subsidiary or other
affiliate of the Company shall be performed without
additional compensation.
(e). Company shall use its best efforts to provide
directors and officers liability insurance coverages of
the Employee as an officer and director of the Company
with a minimum limit of liability of $5 million in the
aggregate and shall obtain the broadest possible coverage
terms using its commercially reasonable best efforts and
shall provide indemnification of the Employee as an
officer and director of the Company to the maximum extent
permitted by applicable law and the applicable provisions
of the Company's By-laws, as amended from time to time.
Simultaneous with the execution of this Agreement,
Employee and Company shall execute and deliver the
Company's standard indemnification agreement entered into
between the Company and its executive officers.
IV. Termination. (a). Death. This Agreement will
terminate upon Employee's death, in which event the
Company shall pay to Employee's spouse or, if Employee
leaves no spouse, to Employee's estate, in a lump sum in
cash within 30 days the sum of the pro rata amount of
Employee's Annual Salary earned through the date of death
to the extent due but not previously paid (the "Accrued
Salary"). The Company shall also timely pay or provide to
such person any Other Benefits required to be furnished to
such person under any employee benefit plan.
(b). Disability. If Employee becomes unable to
discharge the essential functions of his job for a period
of more than 30 consecutive days or for more than 60 days
in the aggregate during any 12-month period because of
physical or mental impairment, the Company may, at its
option, terminate Employee's employment under this
Agreement upon not less than 30 days' written notice.
Employee shall continue to receive his full Annual Salary
at the rate then in effect until his employment is
terminated pursuant to this Section, provided that
payments so made to Employee shall be reduced by the sum
of the amounts, if any, payable to Employee under
disability benefit plans of the Company. Upon termination
of Employee's employment under this Section, the Company
shall pay to Employee in a lump sum in cash within 30 days
of the date of termination all Accrued Salary and shall
timely furnish to Employee all Other Benefits.
(c). Cause. The Company shall have the right to
terminate Employee's employment for Cause. For purposes
of this Agreement, the Company shall have "Cause" if: (i)
Employee commits an illegal act (other than traffic
violations or misdemeanors punishable solely by the
payment of monetary fines) or engages in dishonest or
unethical conduct that has an adverse effect on the
Company or its business reputation; (ii) Employee is found
guilty of fraud, theft, embezzlement or the
misappropriation of funds or a crime involving moral
turpitude; or (iii) Employee fails to perform the duties
required to be performed by him hereunder or breaches any
covenant or agreement hereunder and such failure or breach
is not waived by the Company or cured by Employee within
15 business days after the Company notifies Employee of
the basis for the Company's claim that Employee has failed
to perform his obligations hereunder, unless and to the
extent that such failure is a result of the Company's
breach of this Agreement or such failure occurs at a time
during which Employee has Good Reason (as defined below)
to terminate his employment, or such failure is excused
under the Company's sick leave or vacation policies. If
Employee's employment shall be terminated for Cause by the
Company, this Agreement shall terminate without further
obligation to Employee whatsoever other than for Accrued
Salary, which shall be paid in a lump sum in cash within
30 days of the date of termination, and for Other
Benefits, which the Company shall timely furnish to
Employee.
(d). Notwithstanding anything to the contrary herein,
the Employee's employment may not be terminated for Cause
under Section 4(c)(iii) hereof (A) unless the Employee
shall have failed to have corrected the failure or
misconduct constituting such Cause within 15 business days
after having received written notice from the Company's
Chief Executive Officer specifying such failure or
misconduct and the action that the Company requests the
Employee take to remedy such failure or misconduct, and
(B) unless and until there shall have been delivered to
the Employee a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called
on behalf for the purpose (after 10 day's notice to the
Employee and an opportunity for the Employee together with
his counsel, to be heard before the Board), finding that
in the good faith opinion of the Board the Employee was
guilty of the conduct set forth in clause 4(c)(iii)
hereof, specifying the particulars thereof in detail, that
the Employee was given written notice to correct such
failure or misconduct as provided above, and the Employee
failed to have corrected such failure or misconduct within
the 15 business day period provided above. It is
expressly agreed and understood that this Section 4(d)
shall not apply to the term "Cause" as defined in Section
4(c)(i) and (ii) hereof. It is also expressly understood
that the Employee's attention to the business set forth in
Appendix B attached hereto shall not provide a basis for
termination for Cause; provided such attention does not
unduly interfere or materially conflict with his
obligations hereunder, as determined by the affirmative
vote of not less than a majority of the entire membership
of the Board at a meeting of the Board called on behalf
and for the purpose of making such determination (after 10
day's notice to the Employee and an opportunity for the
Employee, together with his counsel, to be heard before
the Board).
(e). Good Reason. Employee may terminate his
employment at any time and for any reason, including for
Good Reason (as defined below). For purposes of this
Agreement, "Good Reason" shall mean any action by the
Company in relation to Employee's salary, duties or
position as an officer of the Company (other than any
action contemplated under this Agreement, any action that
is voluntary on the part of Employee, and any isolated,
insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company after receipt
of notice thereof given by Employee) that results in any
of the following: (i) a reduction in Employee's Annual
Salary or other compensation provided for under this
Agreement or a failure by the Company to pay to the
Employee any installment of the Annual Salary or incentive
bonus, if any, which failure continues for a period of 20
days after written notice thereof is given by Employee to
the Company; (ii) a change in the Employee's status, title
or position (as an officer of the Company) which does not
represent a promotion from or enhancement of his status,
title, position as an executive officer, or the assignment
by the Company's Board of Directors to the Employee of any
duties or responsibilities which are inconsistent with
such status, title or position or any removal of the
Employee from or any failure to reappoint or re-elect to
such position, except in connection with a justifiable
termination by the Company of the Employee's employment
for Cause or, the disability, retirement or death of
Employee or termination by Employee of his employment
other than for Good Reason; (iii) the failure of the
Company to review the Employee's Annual Salary as provided
in Section 3 hereof; and (iv) Company's requiring the
Employee, without the Employee's consent, to be based
anywhere other than in Houston, Texas, except for required
travel on the Company's business to an extent
substantially consistent with the business and travel
obligations which the Employee undertook on behalf of the
Company prior to such required change. If Employee
voluntarily terminates his employment other than for Good
Reason, this Agreement shall terminate without further
obligation to Employee whatsoever other than for the
Accrued Salary, which shall be paid in a lump sum in cash
within 30 days of the date of termination, and for Other
Benefits and fully vested stock options hereunder, if any,
which the Company shall timely furnish to Employee.
(f). If on or prior to the second anniversary hereof,
the Company shall terminate Employee's employment other
than for death, disability or Cause or if Employee shall
terminate his employment for Good Reason, ("Severance
Payment Event") then Employee shall be entitled to receive
in a lump sum in cash within 30 days of the date of
termination equal to the product of (A) two times (B) his
then Annual Salary. If the Severance Payment Event occurs
after the second anniversary thereof, Employee shall be
entitled to receive a lump sum in cash within 30 days of
the date of termination equal to his then Annual Salary
In the event of such termination, the Company shall also
timely pay or provide Other Benefits, if any, to Employee.
Earnings of Employee from other sources before or after
the date of termination shall not be taken into account
and shall not reduce the amount payable to Employee
hereunder.
V. Representations and Warranties of Employee. Employee
represents and warrants to the Company that (a) Employee
is under no contractual or other obligation compliance
with which is inconsistent with the execution of this
Agreement, the performance of his obligations hereunder,
or the other rights of the Company hereunder and (b)
Employee agrees faithfully and consistently to comply in
all material respects with all of the Company's policies,
procedures, regulations and workplace rules, as amended
from time to time.
VI. Confidential Information. (a). Employee agrees that
he will not either during the period of his employment
hereunder or at any time within five years thereafter
disclose to any unauthorized person or entity, or use for
his own benefit or the benefit of any unauthorized person
or entity, any Confidential Information relating to the
Company, its subsidiaries or affiliates, or to any of the
businesses operated by them, and Employee confirms that
all such information constitutes the exclusive property of
the Company. For the purposes of this Agreement, the term
"Confidential Information" shall mean information of any
nature and in any form that 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 or its subsidiaries (other than by the act or acts
of an employee not authorized by the Company to disclose
such information), and shall be deemed to include all
lists or other compilations of data regarding the names,
addresses or other information concerning existing or
potential customers of the Company and its subsidiaries
("Customers"), trade secrets, new ideas, pricing policies,
operational methods, marketing plans or strategies,
business expansion plans or strategies, and financial
data, irrespective of whether such information or material
is marked "Confidential." Employee shall return to the
Company all Confidential Information reduced to a tangible
or electronic medium and all other Company property in
Employee's possession or within Employee's control prior
to or at the termination of his employment.
(b). The confidential obligations, restrictions of
use and ownership provisions set forth herein shall not
extend to any device, process, technology, idea, design,
hardware or other Confidential Information that: (i) is
currently in the public domain; (ii) subsequently becomes
a part of the public domain through no fault or breach by
Employee; (iii) is disclosed by others to Employee without
any breach of any obligation to the Company or its
subsidiary or affiliated companies; or (iv) which Employee
can show (A) was already in his possession at the time of
disclosure to him or (B) was independently developed by
Employee during a period of time not including the
Employment Term.
VII.Obligation of Loyalty to the Company. (a). During
the term of Employee's employment under this Agreement,
Employee agrees that he will not:
(i). Make any statement or perform any act
intended to advance an interest of any existing competitor of
the Company or its subsidiaries in any way that will or may
injure the Company or its subsidiaries in their relationship
and dealings with any existing or potential customer, supplier
or creditor, or solicit or encourage any other employee of the
Company and its subsidiaries to do any act that is disloyal to
the Company or its subsidiaries or inconsistent with the inte-
rests of the Company or its subsidiaries or in violation of any
material provision of this Agreement;
(ii).Solicit any other employee to participate
in or assist with the formation or operations of any busi-
ness intended to compete with the Company and its
subsidiaries or with respect to the possible future
employment of such other employee by any such business; or
(iii).Inform any existing or potential customer,
supplier or creditor of the Company and its subsidiaries
that Employee intends to resign, or make any statement or
do any act intended to cause any existing or potential
customer, supplier or creditor of the Company and its
subsidiaries to learn of Employee's intention to resign.
(b). During the term of Employee's employment under
this Agreement, if Employee has or expects to acquire a
proprietary interest in, or is or expects to be made an
agent, consultant, employee, officer or director of, any
existing or future business that provides or will provide
services or products in competition with the Company and
its subsidiaries, Employee agrees that he will immediately
furnish to a corporate officer of the Company all in-
formation that may reasonably be of assistance to the
Company in acting promptly to protect its relationships
with any existing or potential customer, supplier or
creditor with whom Employee has had any dealings as a re-
xxxx of his employment by the Company and its
subsidiaries.
VIII.Covenant Not to Compete. (a). During the
Employment Term and for a period of up to two years
commencing on the Termination Date in the event the
Company elects pursuant to Section 8(c) hereof, Employee
agrees that, with respect to each State of the United
States or other jurisdiction, or specified portions
thereof, in which the Employee regularly (i) makes contact
with customers of the Company or any of its subsidiaries,
(ii) conducts the business of the Company or any of its
subsidiaries or (iii) supervises the activities of other
employees of the Company or any of its subsidiaries, as
identified in Appendix C attached hereto and forming a
part of this Agreement, and in which the Company or any of
its subsidiaries engages in the Company Business on the
Termination Date (collectively, the "Subject Areas"),
Employee will restrict his activities within the Subject
Areas in accordance with the following provisions of this
Section 8. For purposes of this Section 8, the term
"Company Business" means the business of directly
providing diving, remotely operated vehicles, vessels and
related marine construction and other ancillary services
and products including, without limitation, the sale,
manufacture and installation of subsea pipeline connector
products and marginal well protection systems and the
provision of environmental remediation and oil spill
response services and xxxxxxx barge and related ancillary
services.
(i). Employee will not, directly or indirectly,
for himself or others, own, manage, operate, control, be
employed in an executive, managerial or supervisory
capacity by, or otherwise engage or participate in or
allow his skill, knowledge, experience or reputation to be
used in connection with, the ownership, management,
operation or control of, any company or other business
enterprise, or any part thereof or interest therein,
engaged in the Company Business within any of the Subject
Areas; except Employee may engage in the business
enterprises set forth in Appendix B attached hereto and
made a part hereof.
(ii).Employee will not call upon any customer of
the Company or its subsidiaries 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).Employee will not solicit, induce,
influence or attempt to influence any supplier, lessor,
licensor, potential acquiree or any other person who has a
business relationship with the Company or its
subsidiaries, or who on the Termination Date 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).For a period of one year from and after the
Termination Date, Employee will 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 except
Employee's new employer, if any, may make contact with and
solicit Company or its subsidiary employees provided
Employee has not breached Section 6 hereof with respect to
such new employer's action.
(b). Employee agrees that he will from time to time
upon the Company's request promptly execute any
supplement, amendment, restatement or other modification
of Appendix C as may be necessary or appropriate to
correctly reflect the jurisdictions which, at the time of
such modification, should be covered by Appendix C and
this Section 8. Furthermore, Employee agrees that all
references to Appendix C in this Agreement shall be deemed
to refer to Appendix C as so supplemented, amended,
restated or otherwise modified from time to time.
(c). In the event of the termination of Employee's
employment hereunder for any reason or no reason, whether
by the Company or the Employee, Company shall have the
option at the time of such termination, upon payment to
Employee of an amount in cash equivalent to $220,000 to
extend Employee's foregoing covenant not to compete for a
period of one (1) year or two (2) years from the date of
termination (at the Company's option) and Employee agrees
to such extension of such covenant upon receipt of payment
of such above amount in immediately available good funds;
the $220,000 payment shall be due and payable on the first
day of each of the two years if two years is elected by
Company ($440,000 in total).
(d). Employee acknowledges that a breach by Employee
of Section 6 or 8 would cause immediate and irreparable
harm to the Company for which an adequate monetary remedy
does not exist; hence, Employee agrees that, in the event
of a breach or threatened breach by Employee of the
provisions of Section 6 or 8 during or after the
Employment Term, the Company shall be entitled to
injunctive relief restraining Employee from such violation
without the necessity of proof of actual damage or the
posting of any bond, except as required by non-waivable,
applicable law. Nothing herein, however, 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 Employee,
including without limitation the recovery of damages and
costs and expenses, such as reasonable attorneys' fees,
incurred by the Company as a result of any such breach.
Employee acknowledges that the payments provided under
Section 8(c) are conditioned upon, among other things,
Employee's fulfilling his agreements contained in this
Section 8. In the event Employee shall at any time
materially breach any noncompetition or nondisclosure
agreements contained in Section 6 or this Section 8, the
Company may suspend or eliminate such payments during the
period of such breach. Employee acknowledges that any
such suspension or elimination of payments would be an
exercise of the Company's right to suspend or terminate
its performance hereunder upon Employee's breach of this
Agreement; such suspension or elimination of payments
would not constitute, and should not be characterized as,
the imposition of liquidated damages.
(e). Any dispute regarding the reasonableness of the
covenants and agreements set forth in this Section 8, 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 of the United States
or other jurisdiction in which the alleged prohibited
competing activity or disclosure occurs, and, with respect
to each such dispute, the Company and Employee each hereby
irrevocably consent to the exclusive jurisdiction of the
state and federal courts sitting in the relevant State
(or, in the case of any jurisdiction outside the United
States, the relevant courts of such jurisdiction) 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 or it in any legal proceeding
relating to this Section 8 by any means allowed under the
laws of such jurisdiction.
(f). Employee hereby represents to the Company that
he has read and understands, and agrees to be bound by,
the terms of this Section 8. Employee acknowledges that
the geographic scope and duration of the covenants
contained in Section 8 are the result of arm's length
bargaining and are fair and reasonable in light of (i) the
importance of the functions performed by Employee 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 and its
subsidiaries, (iii) Employee's level of control over and
contact with the business and operations of the Company
and its subsidiaries in all jurisdictions where same are
conducted and (iv) the fact that all facets of the Company
Business are conducted by the Company and its subsidiaries
throughout the geographic area where competition is
restricted by this Agreement.
IX. Binding Effect.
(a). This Agreement shall be binding upon and inure
to the benefit of the Company and any of its successors or
assigns.
(b). This Agreement is personal to the Employee and
shall not be assignable by the Employee without the
consent of the Company (there being no obligation to give
such consent) other than such rights or benefits as are
transferred by will or the laws of descent and
distribution.
(c). The Company shall require any successor to or
assignee of (whether direct or indirect, by purchase,
merger, consolidation or otherwise) all or substantially
all of the assets or businesses of the Company (i) to
assume unconditionally and expressly this Agreement and
(ii) to agree to perform all of the obligations under this
Agreement in the same manner and to the same extent as
would have been required of the Company had no assignment
or succession occurred, such assumption to be set forth in
a writing reasonably satisfactory to the Employee. In the
event of any such assignment or succession, the term
"Company" as used in this Agreement shall refer also to
such successor or assign.
X. Notices. All notices hereunder must be in writing
and shall be deemed to have given upon receipt of delivery
by: (a) hand (against a receipt therefor), (b) certified
or registered mail, postage prepaid, return receipt
requested, (c) a nationally recognized overnight courier
service (against a receipt therefor) or (d) telecopy
transmission with confirmation of receipt. All such
notices must be addressed as follows:
If to the Company, to:
American Oilfield Divers, Inc.
000 Xxxx Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy No. 000-000-0000
Attn: Xxxxx X. Xxxxxx
If to the Employee, to:
Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: (000) 000-0000
or such other address as to which any party hereto may
have notified the other in writing.
XI. Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the internal
laws of the State of [Texas] without regard to principles
of conflict of laws, except as expressly provided in
Section 8 above with respect to the resolution of disputes
arising under, or the Company's enforcement of, Section 8
of this Agreement.
XII.Withholding. The Employee agrees that the Company
has the right to withhold, from the amounts payable
pursuant to this Agreement, all amounts required to be
withheld under applicable income and/or employment tax
laws, or as otherwise stated in documents granting rights
that are affected by this Agreement.
XIII.Severability. If any term or provision of this
Agreement (including without limitation those contained in
Appendix A, B or C), or the application thereof to any
person or circumstance, shall at any time or to any extent
be invalid, illegal or unenforceable in any respect as
written, Employee and the Company intend for any court
construing this Agreement to modify or limit such
provision temporally, spatially or otherwise so as to
render it valid and enforceable to the fullest extent
allowed by law. Any such provision that is not
susceptible of such reformation shall be ignored so as to
not affect any other term or provision hereof, and the
remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than
those as to which it is held invalid, illegal or
unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
XIV.Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent
breach thereof.
XV. Remedies Not Exclusive. No remedy specified herein
shall be deemed to be such party's exclusive remedy, and
accordingly, in addition to all of the rights and remedies
provided for in this Agreement, the parties shall have all
other rights and remedies provided to them by applicable
law, rule or regulation.
XXX.Xxxxxxx's Reservation of Rights. Employee
acknowledges and understands that the Employee serves at
the pleasure of the Company's Board of Directors and that
the Company has the right at any time to terminate
Employee's status as an employee of the Company, or to
change or diminish his status during the Employment Term,
subject to the rights of the Employee to claim the
benefits conferred by this Agreement.
17. Survival. The rights and obligations of the Company
and Employee contained in Section 8 of this Agreement
shall survive the termination of the Agreement. Following
the Termination Date, each party shall have the right to
enforce all rights, and shall be bound by all obligations,
of such party that are continuing rights and obligations
under this Agreement.
18. 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.
IN WITNESS WHEREOF, the Company and the Employee have
caused this Agreement to be executed as of the date first
above written.
AMERICAN OILFIELD DIVERS, INC.
By: /s/ Xxx X. Xxxxxxx
-------------------
Xxx X. Xxxxxxx
President and Chief Executive
Officer
EMPLOYEE:
By: /s/ Xxxxx Xxxxxxxx
----------------------
Xxxxx Xxxxxxxx
APPENDIX A
AMERICAN OILFIELD DIVERS, INC.
POSITION SPECIFICATION
EXECUTIVE VICE PRESIDENT AND
PRESIDENT - TECHNOLOGY GROUP
SUMMARY
Reporting to the Chief Executive Officer and President,
the Executive Vice President and President - Technology Group
will be the key executive responsible for the overall
management of the Technical Services Group, Hard Suits Inc. and
certain other special projects. This position will focus on
overseeing day-to-day activities of these profit centers,
providing leadership for increasing sales, undertaking safe and
profitable projects and creating an effective and positive
growth and profitability-focused working environment. He will
provide hands-on profit and loss management to a company facing
significant international growth opportunities in highly
competitive market conditions.
RELATIONSHIPS
Reports to: President & Chief Executive Officer
Direct reports: General Manager, Hard Suits Inc.
Vice President Technical Services Group
Key Board of Directors
relationships:
President & Chief Executive Officer
Corporate Counsel and Secretary
VP-Finance and Chief Financial Officer
MAJOR RESPONSIBILITIES
* Plan, develop, establish and enforce long-term and short-
term policies, directives and business strategies of his
area of responsibility in accordance with the Board of
Directors' and the CEO's policies and directives.
* Oversee the day-to-day operations and resolve the material
and significant issues that arise during the ordinary course
of business. Confer with his managers and other Company
executives on a regular basis to coordinate functions and
operations among all Company subsidiaries, divisions and
departments to maximize profit and eliminate unnecessary
duplication. Establish, maintain and enforce internal
responsibilities and procedures to maximize growth and
profitability and eliminate inefficiencies. Establish,
maintain and enforce internal controls and checks and
balances to ensure the Company's manufacturing subsidiaries
accurately track products, costs, stay on schedule and
otherwise comply in all material respects with government
contracting standards.
* Review management information systems and analyze
organization's financial and other reports to determine
results of operations compared to the plan. Timely revise
and adjust business plans and strategies in accordance with
current and expected market conditions. Stay fully abreast
of all market conditions.
* Evaluate performance of appropriate managers on a semi-
annual basis for compliance with established policies,
profitability and performance objectives.
* Review and recommend potential acquisition candidates
(whether a separate company, products or new service lines)
and other business opportunities with the President and
other appropriate executives.
* Act as a facilitator among the various subsidiaries for
future business growth and profitability.
* Create an atmosphere of cohesive teamwork for appropriate
internal performance analysis and action.
* Confer with members of senior management regarding sales and
marketing activities for unified and thorough presentations.
* Member of Executive Committee comprised of CEO, VP-Finance
and CFO and Corporate Counsel/Secretary and to, among other
things, review strategic issues and handle various other
companywide matters.
* Participate in and help lead Company meetings and functions,
investor conference calls, sales calls and other similar
meetings and functions, as required by the above duties and
responsibilities or as requested by the President.
* Ensure the effective function and integrity of the Company's
capital budgetary process.
Appendix B to Employment Agreement
between American Oilfield Divers, Inc.
and
Xxxxx Xxxxxxxx
* Capitalized terms used herein unless otherwise defined shall
have the same meanings ascribed to them in the Employment
Agreement.
Appendix C to Employment Agreement
between American Oilfield Divers, Inc.
and
Xxxxx Xxxxxxxx
Revision No. O of Appendix A,
Effective as of May 15, 1997;
Jurisdictions In Which Competition
Is Restricted As Provided
In Section 0
X. Xxxxxx xxx Xxxxxxxxxxx xx xxx Xxxxxx Xxxxxx:
1. Louisiana-- The following parishes in the State of
Louisiana:
Cameron, Vermilion, St. Xxxx, Xxxxxxxxxx, Lafourche,
Jefferson, Plaquemines, Orleans, St. Xxxxxxx, Lafayette
and Iberia.
2. Texas-- All counties.
3. Kansas-- All counties.
4. Ohio-- All counties.
5. California-- All counties.
B. Other Jurisdictions: Nigeria, Ivory Coast, Australia and
the United Arab Emirates, including without limitation,
all of the land area within their respective
jurisdictional boundaries or otherwise under the control
of or claimed by their respective governments, their
respective territorial offshore waters, other offshore
waters otherwise under the control of or claimed by their
respective governments.
