EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is effective as of the
17th day of June, 1997 (the "Effective Date"), between U S LIQUIDS INC., a
Delaware corporation ("Employer"), and Xxxxx Xxxxxx, a resident of Xxxxxxxxx
Xxxxx Parish, Louisiana ("Employee"), under the following terms and
conditions.
The Employee, who is willing to be employed by the Employer, on the
terms and conditions hereinafter set forth, and the Employer, which is
willing to employ the Employee, on the terms and conditions hereinafter set
forth, agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee as Vice President -
NOW Operations in Louisiana and Texas, or such other location in the United
States as Employer shall designate, with such responsibilities as may be
designated by Employer from time to time. Employee agrees to render such
services to Employer as may be required by the referenced position and such
other duties as Employer may from time to time reasonably request Employee to
assume with respect to Employer and its affiliates, and to serve Employer
faithfully, diligently and to the best of his ability. Employee shall
faithfully adhere to, execute and fulfill all policies established by
Employer.
2. TERM OF EMPLOYMENT. Subject to the provisions of Section 7 of this
Agreement, Employee's employment under this Agreement shall be deemed to have
commenced on the Effective Date and continue to the first anniversary of the
Effective Date, unless sooner terminated as otherwise provided in this
Agreement. The term of this Agreement will be subject to automatic annual
renewals on each anniversary of the Effective Date without action by either
party for additional one-year periods on the same terms and conditions.
Notwithstanding the foregoing, either party may prevent the term of this
Agreement from automatically renewing by giving written notice to the other
party of its election not to renew at least 60 days in advance of the renewal
date, which occurs on the next anniversary of the Effective Date.
3. COMPENSATION. Employer shall pay Employee an annualized salary of
Ninety Thousand and No/100 Dollars ($90,000.00) (the "Base Salary"). The
Base Salary will be paid by Employer to Employee in equal installments
payable $7,500.00 per month in accordance with the regular payroll policies
of Employer in effect during the term of this Agreement, less applicable tax
withholdings or other deductions required by law or authorized by Employee.
The Base Salary may be increased, on an annual basis, but only in the sole
discretion of the Board of Directors of Employer. Employee shall have the
opportunity to earn an annual bonus of up to 50% of the Base Salary then in
effect, determined solely at the discretion of the Board of Directors of
Employer, based on corporate results and personal performance.
4. BENEFITS. In addition to the compensation provided for in Section
3 above, Employer shall provide Employee with employment benefits of the type
provided to employees of Employer generally during the term of this
Agreement, including but not limited to eligibility in any vacation and sick
leave benefits and health, life and disability insurance benefits, whether
now in effect or subsequently adopted, subject to Employer's right to amend,
alter or terminate such plans. Employee shall receive fifteen (15) business
days of paid vacation per calendar year.
5. EXPENSES. Employer shall pay all reasonable pre-approved expenses
incurred by Employee in furtherance of the business of the Employer,
including traveling and entertainment expenses, and shall reimburse Employee
monthly for all such expenses paid or incurred by Employee during the
preceding month upon delivery of an appropriate expense report and receipts
to Employer.
6. Intentionally Omitted
7. TERMINATION BY EMPLOYER. Employer may terminate this Agreement at
any time with or without Cause. Employer may terminate Employee immediately
and without notice for Cause. As used herein, "Cause" shall mean any of the
following occurrences:
(i) numerous recurring unexcused absences of Employee; or
(ii) willful violation by Employee of any statute, regulation or
ordinance, the compliance with which is necessary for operation of the
business of Employer; or
(iii) material breach by Employee of any of the material
provisions of this Agreement; or
(iv) commission by Employee of one or more acts of gross negligence as
to any material matter, willful or reckless misconduct, or willful
disobedience in connection with his duties as prescribed in writing by the
Board of Directors of Employer or a person delegated by the Board of
Directors ("Board Representative") or described hereunder, which, when
considered individually or in the aggregate, the Board of Directors deems
material; or
(v) use by Employee during the term hereof of illegal substances
which have a material adverse effect on the performance of the Employee's
duties hereunder or upon the reputation, business, or goodwill of Employer;
or any act of fraud or dishonesty by Employee of any material matters in
connection with his employment hereunder; or any intentional act by
Employee materially compromising Employee's reputation or ability to
represent Employer with the public; any
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intentional act or omission by Employee which substantially impairs
Employer's business, good will or reputation; or
(vi) failure by Employee to follow acceptable practices as prescribed
by Employer, the Board of Directors or a Board Representative for work,
safety or general conduct relating to the business of Employer or the
premises of Employer; or
(vii) failure by Employee to abide by the rules, policies,
standards and regulations of Employer or those of its clients to which
Employer is subject which are published or communicated to employees of
Employer; or
(viii) Employee being convicted of a felony; or
(ix) Employee becoming by reason of injury or illness incapacitated
or unable to perform his duties under this Agreement, which incapacity or
inability continues more than 180 days during any period of 360 days,
except to the extent prohibited by the Family Medical Leave Act or other
state or federal statute or regulation.
Notwithstanding the foregoing, no occurrence except those listed above
as items (ii), (viii) and (ix) shall constitute Cause unless Employee
receives written notice from Employer objecting to such occurrence, and
Employee fails to remedy such occurrence within ten (10) days after the
receipt of such written notice or subsequently repeats such occurrence;
provided, however, in no event shall Employer be required to give notice of
or an opportunity to cure the occurrence of any of items (i), (iii), (iv),
(v), (vi) or (vii) above more often than once for such an occurrence to
constitute Cause hereunder.
Upon Employee's termination with Cause, Employer shall be required to
pay Employee compensation and benefits only through the effective date of
termination. Sums due Employee for salary under Section 3 shall be prorated
for the then current month through the date of termination. Any proration of
compensation or benefits paid on a weekly basis shall be calculated based on
a business week consisting of five (5) days and not seven (7) days. By way of
example and not of limitation, two weeks of vacation would be calculated as
ten (10) business days of vacation.
If Employer terminates Employee's employment without Cause, as defined
under this Section (including by giving the notice required by Section 2 to
prevent the automatic renewal of the term of this Agreement), Employer shall
pay Employee's salary until the end of the annual term then in effect;
provided, however, that if notice of termination is given less than 60 days
prior to the end of the annual term then in effect, Employer shall pay
Employee's salary until the end of the next annual term.
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8. VOLUNTARY TERMINATION. Employee may terminate this Agreement prior
to the end of its term by written notice to Employer. Employer may accept
the proposed termination date or may set an earlier termination date by
mailing or personally delivering notice of such earlier date to Employee. In
the event Employee voluntarily terminates this Agreement (other than by
preventing the automatic renewal of the term in accordance with the notice
provisions of Section 2), he will receive the salary due under Section 3
hereof through the effective date of termination and no other compensation or
benefits.
9. OTHER ACTIVITIES. Employee shall devote all of his working time
and efforts during the Employer's normal business hours (reasonable vacations
and sick leave excluded) to the business and affairs of the Employer and to
the duties and responsibilities assigned to him pursuant to this Agreement.
10. CONFIDENTIAL INFORMATION. In the course of Employee's employment,
Employer will disclose to Employee information, technical data and know-how
regarding the business affairs, services and products of Employer as well as
Employer's customers, which constitute Confidential Information.
"Confidential Information," under this Agreement, shall consist of any and
all proprietary information and proprietary data related thereto, and any
derivative works thereof including but not limited to research, development,
customer information, pricing information, knowledge of Employer's financial
condition, information and relationships with resources, suppliers and
customers of Employer, manufacturing processes, techniques, methods, systems
and trade secrets of the Employer, its employees, or other subsidiaries,
affiliates, agents, or customers, whether or not specifically identified as
confidential. Employee agrees to receive, hold and treat all Confidential
Information received from Employer as confidential and secret and agrees to
protect the secrecy of said Confidential Information, whether or not
specifically identified as confidential. Such Confidential Information
constitutes valuable, special and unique assets of Employer, and Employee
agrees that the Confidential Information will be disclosed by Employee only
to those persons who are required to have such knowledge in connection with
their work for Employer and that such Confidential Information will not be
disclosed by Employee to others without the prior written consent of the
Employer. As used herein, "persons required to have such knowledge" shall
include, but not be limited to, the Board of Directors and such officers,
employees and agents of Employer or its affiliates to which such information
is furnished in the normal course of business under established policies
approved by Employer or its affiliates and such outside parties as are
legally entitled to such information (other than as a result of action by
Employee not previously approved or authorized by the Board of Directors of
Employer) and customers and banking, lending, collection and data processing
institutions or agencies in the course of maintaining ordinary business
procedures of Employer. The provisions hereof shall not be applicable to:
(a) information which at the time of disclosure to Employee is a matter of
public knowledge or in the public domain; or (b) information which, after
disclosure to Employee, becomes public knowledge or in the public domain
other than through a breach of this Agreement. Unless the Confidential
Information shall be of the type hereinbefore
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set forth in the two immediately preceding sentences, Employee shall not use
such Confidential Information for his own benefit or for a third party's or
parties' benefit at any time. The obligations imposed upon Employee by this
Section shall survive the expiration or termination of this Agreement.
11. COVENANT NOT TO COMPETE AND NON-SOLICITATION BY EMPLOYEE. For and
in consideration of Employee's employment and the disclosures that Employer
will make to Employee under Section 10 above, Employee agrees that during his
employment by Employer and for a period of two (2) years from and after the
date of termination of employment with Employer, whether by discharge with or
without Cause, or by voluntary resignation or in any other manner whatsoever
including completion of the term of this Agreement, Employee shall not,
directly or indirectly, as an employee, principal, owner, consultant,
officer, director, agent or otherwise, compete with the Business in the
states of Texas or Louisiana. As used in this Agreement, the "Business"
means the collection, transfer, transportation, treatment, minimization,
recycling or disposal of nonhazardous oilfield waste associated with the
exploration and production of oil, gas and geothermal energy. As used in this
Agreement, "Compete" means to (i) attempt in any fashion to solicit business
similar in nature to the Business from any of Employer's customers existing
as of the date of termination; or (ii) invest in, own, manage, operate,
control or render services or advice relating to the Business to any
business, individual, firm, company or organization which engages in the
Business (hereinafter collectively referred to as "Competitor"), in whole or
in part. Employee further agrees that for two (2) years after termination of
employment by Employer that he will in no way attempt to attract, induce, or
solicit any employee of Employer to leave his or her employment or to accept
employment with or provide services or advice to any Competitor.
12. INVENTIONS. Any and all inventions, conceptions, processes,
discoveries, improvements, patent rights, letter patents, programs,
copyrights, trademarks, trade names and applications therefor, in the United
States and all other countries, whether patentable or not, and any and all
rights and interest in, to and under the same, that are conceived, made,
acquired, or possessed by the Employee, alone or with other employees, during
the term of this Agreement, or within one (1) year thereafter shall become
the exclusive property of the Employer and shall at all times and for all
purposes be regarded as acquired and held by the Employee in a fiduciary
capacity for the sole benefit of the Employer, and the Employee hereby
assigns and agrees to assign the same to the Employer without further
compensation. The Employee agrees that, upon request, he will promptly make
all disclosures, execute all applications, assignments or other instruments
and perform all acts whatsoever necessary or desired by the Employer to vest
and confirm in it, its successors, assigns and nominees, fully and
completely, all rights and interests created or contemplated by this Section
12.
13. EMPLOYER PROPERTY. All products, records, designs, patents, plans,
data, manuals, "field guides", catalogs, brochures, memoranda, machinery,
devices, lists and
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other property delivered to Employee by or on behalf of the Employer or by
its customers (including, but not limited to, Employer's customers solicited
by Employee), and all records compiled by the Employee which pertain to the
business of the Employer shall be and remain the property of the Employer and
be subject at all times to its discretion and control. The Employee shall
promptly deliver to a designated representative of the Employer all such
Employer property, as well as any and all correspondence with customers and
representatives, reports, records, charts, advertising materials, and other
materials, and property in his possession or control which belong to the
Employer upon termination of Employee's employment.
14. REPRESENTATIONS OF EMPLOYEE.
(a) The Employee represents that to the best of his knowledge he
is not the subject of any pending or threatened claim which involves any
criminal or governmental proceedings, or allegations of misfeasance or
malfeasance, and that he has not been charged nor threatened to be charged by
any governmental or administrative body with any violation of law except for
minor traffic violations and similar charges.
(b) The Employee represents and warrants to the Employer that he
is not prohibited from acting in any capacity for the Employer by virtue of
the operation of any non-competition or similar agreement with any prior
employer, or by any applicable statutes, regulations or ordinances or any
other applicable law or by the rules and regulations of the Securities and
Exchange Commission or any national securities exchange, and that his acting
in any capacity for the Employer, will not subject the Employer to claims or
materially impair the permit or license status of the Employer or its
affiliates or any business operated by the Employer or its affiliates.
15. DEFENSE OF CLAIMS. The Employee agrees that during the period he
is employed by the Employer, and at all reasonable times thereafter, he will
cooperate with the Employer in the defense of any claim that may be made
against the Employer or any affiliates, to the extent that such claims may
relate to services performed by the Employee for the Employer or its
affiliates. In connection with such claim, (i) if the Employee is required
to travel more than 100 miles from his home, the Employer agrees to reimburse
the Employee for all of his reasonable out-of-pocket expenses associated with
such travel and, to the extent reasonably practicable, to provide the
Employee with notice of at least 10 days prior to the date on which such
travel is required, and (ii) if the Employee is no longer employed by the
Employer, to compensate the Employee at a reasonable rate.
16. NOTIFICATION OF AGREEMENT. Employee shall notify any future or
prospective employers, partners or persons with a similar business
relationship to Employee ("Future Employers") about the terms of this
Agreement for any period during Employee's employment by Employer and for two
(2) years after the termination of Employee's employment by Employer.
Employee does hereby authorize Employer to notify any Future
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Employers about the terms of this Agreement upon discovery by Employer that
Employee is being considered for employment, partnership or similar business
relationship (or has entered into such a relationship) with a Future Employer
in order to ensure Employee's observance and compliance herewith.
17. INJUNCTION AND OTHER RELIEF. Both parties hereto recognize that
the services to be rendered under this Agreement by Employee are special,
unique and of extraordinary character, and that in the event of the breach by
Employee of any of the terms and conditions of this Agreement to be performed
by him, or in the event Employee performs services for any person, firm or
corporation in violation of Section 11, or if Employee shall breach the
provisions of this Agreement with respect to Confidential Information, then
Employer shall be entitled, if it so elects, in addition to all other
remedies available to it under this Agreement or at law or in equity, to
affirmative injunctive or other equitable relief, and Employee waives (and
shall execute such documents as may be necessary to further evidence such
waiver) any requirement that Employer secure or post any bond in connection
with such injunctive or other equitable relief.
18. STIPULATION. Employee hereby specifically acknowledges, agrees,
stipulates and represents to Employer that:
(i) Employee has received adequate and sufficient consideration for
entering into this Agreement including the above-referenced compensation
and benefits and opportunity to purchase shares of the Employer's stock;
(ii) the execution and delivery of this Agreement and the performance
hereunder do not and shall not constitute a violation of any covenants of
non-competition, trade secrecy, or confidentiality to which Employee is a
party;
(iii) the covenants of Employee contained in Section 10 and
Section 11 of this Agreement are in consideration of the promise of
Employer to provide Confidential Information (including trade secrets) to
Employee and are necessary to protect Employer's interests in such
Confidential Information, as well as Employer's business goodwill and
other business interests;
(iv) Employer will suffer great loss and irreparable harm if Employee
Competes directly or indirectly with Employer;
(v) the temporal, geographic and other restrictions contained in
this Agreement are in all respects reasonable and necessary to protect the
business goodwill, Confidential Information, trade secrets, prospects and
other business interests of Employer; and
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(vi) the enforcement of this Agreement will not work an undue or
unfair hardship on Employee or otherwise be oppressive to him.
19. SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such invalidity or unenforceability shall not affect the
remainder of this Agreement and same shall be construed as if such invalid or
unenforceable provisions had never been a part hereof. If a court of
competent jurisdiction determines that the length of time, geographical
restrictions or any other restriction, or portion thereof, set forth in this
Agreement is overly restrictive and unenforceable, the parties agree that 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 Agreement
shall remain in full force and effect. In the event there is a breach by
Employer or Employee of any other provision of this Agreement, the covenants
contained in Sections 10 and 11 shall remain in full force and effect.
20. WAIVER. The waiver by either party of a breach or violation of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any subsequent or continuing breach hereof.
21. NOTICES. Any notices provided for in this Agreement shall be given
in writing and transmitted by personal delivery or prepaid first class
registered or certified U.S. mail addressed as follows:
Employer: U S Liquids Inc.
Attn: W. Xxxxxxx Xxx
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Employee: Xxxxx Xxxxxx
0000 0xx Xxxxxx
Xxxx Xxxxxx, XX 00000
22. SUCCESSORS TO EMPLOYER. Except as otherwise provided herein, this
Agreement shall inure to the benefit of Employer and any successor of
Employer, including, without limitation, any corporation or corporations
acquiring directly or indirectly all or substantially all of the assets or
business of Employer whether by merger, consolidation, sale or otherwise (and
such successor shall thereafter be deemed "Employer" for the purposes of this
Agreement), but shall not otherwise be assignable by Employer.
23. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the state of Texas.
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24. CHOICE OF FORUM. The parties hereto agree that in the event that
any legal suits, actions or proceedings arising out of this Agreement are
instituted by any party hereto, such suits, actions or proceedings shall be
instituted only in the state or federal courts in the county of Xxxxxx in the
state of Texas. The parties hereto do hereby consent to the jurisdiction of
such courts and waive any objection which they may now or hereafter have to
the venue of any such suits, actions or proceedings; provided, however, that
any party hereto shall have the right to institute proceedings in another
jurisdiction if the purpose of such proceedings is to enforce or realize upon
any final court judgment arising out of this Agreement.
25. CONSENT TO SERVICE. Service of any and all process which may be
served on any party hereto in any suit, action or proceeding related to this
Agreement may be made by registered or certified mail, return receipt
requested, to Employee or Employer at their respective addresses for notice
as set forth in Section 21 and service so made shall be taken and held to be
valid personal service upon such party by any party to this Agreement on
whose behalf such service is made.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties, superseding all prior understandings, arrangements and
agreements, whether oral or written, and may not be amended except by a
writing signed by the parties hereto. As used herein, unless the context
otherwise indicates, the term "this Agreement" means the Agreement executed
to be effective as of the Effective Date and any written amendments thereof.
IN WITNESS WHEREOF, Employer has, by its appropriate officers, executed
this Agreement and Employee has executed this Agreement on the 17th day of
June, 1997 to be effective as of the Effective Date.
U S LIQUIDS INC.:
By: /s/ W. Xxxxxxx Xxx
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W. Xxxxxxx Xxx, Chief Executive Officer
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Employee
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