EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BLACK WARRIOR WIRELINE CORP.
AND
XXXXXXX X. XXXXXXX
Agreement made this 18th day of September, 1996, between Black Warrior
Wireline Corp., a Delaware corporation (the "Company") and Xxxxxxx X. Xxxxxxx
(the "Executive").
The Company is desirous of continuing the employment of the Executive
as its President, Chief Executive Officer and a Director, and the Executive is
desirous of continuing in the employment of the Company in those capacities.
The Company and the Executive desire to set forth in this Agreement the
terms and conditions on which the Executive will continue to be employed by the
Company as its President, Chief Executive Officer and a Director with this
Agreement superseding and replacing the Employment Agreement dated April 1,
1994.
Accordingly, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to serve the Company, on the terms and conditions set
forth herein.
2. TERM
The employment of the Executive by the Company as provided in
Section 1 will commence on the date hereof and end on September 30, 1999, unless
further extended or sooner terminated as hereinafter provided.
3. POSITION AND DUTIES
The Executive shall serve as President, Chief Executive
Officer and a Director of the Company, and shall have such responsibilities and
authority consistent with those positions as may, from time to time, be assigned
to the Executive by the Board of Directors of the Company. The Executive shall
devote substantially all his working time and efforts to the business and
affairs of the Company.
4. PLACE OF PERFORMANCE
In connection with the Executive's employment by the Company,
the Executive shall be based at the principal executive offices of the Company
located in Columbus, Mississippi, except for required travel on the Company's
business.
5. COMPENSATION AND RELATED MATTERS
(a) SALARY. During the period of the Executive's employment
hereunder, the Company shall pay to the Executive a base salary at a rate of not
less than $110,000 per annum in equal monthly or other installments. It is
agreed that Executive's base salary for each of the two years ended September
30, 1998 and September 30, 1999 shall be increased to reflect increases in the
cost of living by an amount equal to the result obtained by multiplying $110,000
by the percentage increase in the Consumer Price Index for Urban Wage Earners
and Clerical Workers (U.S. City Average) published by the U.S. Department of
Labor, Bureau of Labor Statistics, for each of the months of September 1997 and
September 1998, respectively, over the Index for the month of September 1996.
Such increased salary shall be payable in the same manner as the base salary.
(b) EXPENSES. The Company shall reimburse Executive for all
normal, usual and necessary expenses incurred by Executive in furtherance of the
business and affairs of the Company against receipt by the Company of
appropriate vouchers or other proof of the Executive's expenditures and
otherwise in accordance with such expense reimbursement policy as may, from time
to time, be adopted by the Board of Directors of the Company.
(c) OTHER BENEFITS. The Company shall maintain in full
force and effect, and the Executive shall be entitled to participate in, all of
its employee benefit plans and arrangements in effect on the date hereof or
plans or arrangements providing the Executive with at least equivalent benefits
thereunder (including, without limitation, each pension and retirement plan and
arrangement, supplemental pension and retirement plan and arrangement, stock
option plan, life insurance and health and accident plan and arrangement,
medical insurance plan, disability plan, survivor income plan, relocation plan
and vacation plan). The Company shall not
make any changes in such plans or arrangements which would adversely affect the
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executives of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to the Executive
as compared with any other executive of the Company. The Executive shall be
entitled to participate in or receive benefits under any employee benefit plan
or arrangement made available by the Company in the future to its executives and
key management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. Nothing
paid to the Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary payable to
the Executive pursuant to paragraph (a) of this Section.
(d) VACATIONS. The Executive shall be entitled to vacation in
accordance with the Company's existing policies. The Executive shall also be
entitled to all paid holidays given by the Company to its executives.
(e) SERVICES FURNISHED. The Company shall furnish the
Executive with office space, stenographic assistance and such other facilities
and services as shall be suitable to the Executive's position and adequate for
the performance of his duties as set forth in Section 3 hereof.
(f) OPTIONS. Subject to execution of this Agreement, Executive
shall be granted an option to purchase 100,000 shares of the Company's Common
Stock, exercisable for a period of ten (10) years at an exercise price of $2.00
per share (a price determined to be not less than the fair market value of the
Common Stock on September _____, 1996). Such option shall be immediately fully
exercisable. Provided the Company's operating results equal or exceed 85% of the
benchmark operating results agreed to between the Company and the Executive, the
Executive shall be granted as of the last day of the fiscal year as to which
such benchmark operating results relate, an option to purchase an additional
50,000 shares of the Company's Common Stock. Such option shall be exercisable
for a period of ten (10) years at a price equal to the closing bid price of the
Company's Common Stock on the last business day of such fiscal year. The grant
of the foregoing option shall not preclude the participation of the Executive in
any other stock option plan of the Company.
6. OFFICES
The Executive agrees to serve without additional compensation,
if elected or appointed thereto, as a Director of any of the Company's
subsidiaries and in one or more executive offices of any of the Company's
subsidiaries, provided that the Executive is indemnified for serving in any and
all such capacities on a basis no less favorable than is currently provided by
Article VII of the Company's By-Laws. Executive agrees that, upon
termination of his employment with the Company for any reason whatsoever, he
will resign from all positions as an executive officer and Director of the
Company and all of its subsidiaries.
7. CONFIDENTIAL INFORMATION
Executive covenants and agrees that he will not (except as
required in the course of his employment), while in the employment of the
Company or thereafter, communicate or divulge to, or use for the benefit of
himself, or any other person, firm, association or corporation, without the
consent of the Company, any information concerning any inventions, discoveries,
improvements, processes, formulas, apparatus, technology, expertise,
technological know-how, equipment, methods, trade secrets, research, secret
data, costs or uses or purchasers of the Company's products or services, or
other confidential matters possessed, owned, or used by the Company that may be
communicated to, acquired by, or learned of by the Executive in the course of,
or as a result of, his employment with the Company. All records, files,
memoranda, reports, price lists, customer lists, drawings, plans, sketches,
documents, equipment, and the like, relating to the business of the Company,
which the Executive shall use or prepare or come into contact with, shall remain
the sole property of the Company.
8. COMPETITION
(a) During the period of the Executive's employment by the
Company, and, in the event Executive terminates his employment prior to the
termination date of this Agreement provided in Section 2 hereof, for a period of
eighteen (18) months after such employment, in the event Executive terminates
his employment prior to the termination date of this Agreement provided in
Section 2 hereof, Executive will not (i) engage in; (ii) have any interest in
any person, firm, or corporation that engages in; or (iii) perform any services
for any person, firm, or corporation that engages in competition with the
Company, or any of its subsidiaries in the development, research relating to,
manufacture, processing, marketing, distribution, or sale of any products or
services that were the subject of activities of the Company, or any of its
subsidiaries, at any time during the period of his employment by the Company, in
any area in which such business shall be carried on.
(b) In the event Executive terminates his employment prior to
the termination date of this Agreement provided in Section 2 hereof, Executive
will not, directly or indirectly, employ, solicit for employment, or advise or
recommend to any other person that they employ or solicit for employment, any
employee of the Company during the period of Executive's employment by the
Company and for a period of two (2) years thereafter.
(c) Notwithstanding any provision of this Section 8 to the
contrary, Executive may own no more than three percent (3%) of the total shares
of all classes of stock outstanding of
any corporation having securities registered with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
(d) Executive represents that his experience and capabilities
are such that the provisions of this Section 8 will not prevent him from earning
a livelihood.
9. TERMINATION
Notwithstanding any provision of this Agreement to the
contrary, Executive's employment shall terminate upon his death, and the Company
at any time may terminate his employment by giving him written notice of such
termination (i) for cause, as hereinafter defined; (ii) if Executive shall
violate any of the provisions of Sections 7 or 8 hereof; or (iii) if Executive
shall become physically or mentally incapacitated and by reason thereof unable
to perform his duties here under for a period of ninety (90) consecutive days.
For the purpose of clause (i) of this subsection 9, "for cause" shall mean any
of the following events: (x) conviction in a court of law of any crime or
offense involving money or other property of the Company, or any of its
subsidiaries, or any felony, or (y) violation of specific written directions of
the Board of Directors of the Company, provided, however, no discharge shall be
deemed "for cause" under this clause (y) unless Executive shall have first
received written notice from the Board of Directors of the Company advising of
the acts or omissions that constitute such violation, and such violation
continues uncured for a period of thirty (30) days after Executive shall have
received such notice.
10. SUCCESSORS; BINDING AGREEMENT
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. As
used in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 11, or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) This Agreement, and all rights of the Executive hereunder,
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die
while any amounts would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee,
or other designee or, if there be no such designee, to the Executive's estate.
11. NOTICE
For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxxx
000 Xxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to the Company:
Black Warrior Wireline Corp.
0000 Xxxxxxx #00 Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. MISCELLANEOUS
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the parties hereto. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. This Agreement
supersedes and replaces the Employment Agreement dated April 1, 1994 between the
Company and Executive which agreement and all
options agreed to be granted thereunder is herewith terminated. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Mississippi.
13. VALIDITY
The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
15. ARBITRATION
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators, in Jackson, Mississippi, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction. The expense
of such arbitration shall be borne by the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
Black Warrior Wireline Corp.
By:
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Attest Name:
Title:
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Xxxxxxx X. Xxxxxxx
