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Exhibit 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into between
National-Oilwell, L.P. having offices at 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000 ("Employer"), an indirect subsidiary of National Oilwell, Inc. ("NOW"),
and. Honor Xxxxxx, an individual currently residing at 000 Xxxxx Xxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 ("Employee"), to be effective as of April 19, 1999.
WHEREAS, Employee has been a consultant with Employer as the person in
charge of Employer's Information Technologies Group since on or about September
1, 1998; and
WHEREAS, Employer is desirous of continuing to utilize the services of
Employee as an employee rather than a consultant, pursuant to the terms and
conditions and for the consideration set forth in this Agreement and of
terminating any prior existing agreement or arrangement; and
WHEREAS, Employee is desirous of working in the employ of Employer
pursuant to such terms and conditions and for such consideration set forth in
this Agreement and of terminating any prior existing agreement or arrangement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer, NOW and Employee agree as
follows:
1. EMPLOYMENT AND DUTIES:
1.1. Both Employer and Employee agree that the Employee shall be
employed by Employer, beginning April 19, 1999, and continuing throughout the
Term (as defined below) of this Agreement, subject to the terms and conditions
of this Agreement.
Notwithstanding anything else contained herein to the contrary, Employee
shall have the option, with Employer's consent, to work on a part time basis
from the commencement of this Agreement until August 1, 1999, after which date
Employee must work full time pursuant to the terms of this Agreement. In the
event Employee elects to work on a part time basis, Employer may allocate
Employee's salary accordingly.
1.2. Employee shall serve as Chief Information Officer of NOW, Employer
and their affiliates and subsidiaries. Employee agrees to serve in the assigned
position and to perform diligently and to the best of Employee's abilities the
duties and services appertaining to such position as determined by Employer or
NOW, as well as such additional or different duties and services appropriate to
such position which Employee from time to time may be reasonably directed to
perform by Employer or NOW. Employee shall at all times comply with and be
subject to such policies and procedures as Employer or NOW may establish from
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time to time, including without limitation, the Statement of Policy on Business
Ethics, Statement of Policy Regarding Conflict of Interest, Antitrust Laws,
Statement of Policy on Xxxxxxx Xxxxxxx and Statement of Policy Regarding
Improper Business Payment.
1.3. Employee shall, subject to the location and travel provisions of
Section 2.3, during the period of Employee's employment by Employer, devote
Employee's full business time, energy, and best efforts to the business and
affairs of Employer. Employee may not engage, directly or indirectly, in any
other business, investment, or activity that interferes with Employee's
performance of Employee's duties hereunder, is not in the best interests of
Employer, NOW, or any of their subsidiaries or affiliates, or requires any
significant portion of Employee's business time.
1.4. Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of Employer, NOW, or any of their subsidiaries or affiliates and to do
no act which would injure the business, interests, or reputation of Employer,
NOW, or any of their subsidiaries or affiliates. In keeping with these duties,
Employee shall make full disclosure to Employer and to NOW of all business
opportunities pertaining to Employer's business and shall not appropriate for
Employee's own benefit business opportunities concerning the subject matter of
the fiduciary relationship.
2. COMPENSATION AND BENEFITS:
2.1. Employee's initial base salary under this Agreement shall be Two
Hundred Eight Thousand Dollars ($208,000.00) per annum and shall be paid in
biweekly installments in accordance with Employer's standard payroll practice.
Employee's base salary may be increased from time to time at the sole discretion
of Employer and, after any such change, Employee's new level of base salary
shall be Employee's base salary for purposes of this Agreement until the
effective date of any subsequent change.
2.2. NOW and Employee shall enter into a separate written stock option
agreement pursuant to which Employee shall be granted options to purchase shares
of common stock of NOW subject to the terms and conditions of the Non-Statutory
Option Agreement between Honor Xxxxxx and National Oilwell, Inc. dated April 19,
1999 (the "TARSAP"). The number of shares and terms of the restrictions placed
upon exercising the options shall be as specified in the TARSAP. Employee
acknowledges that her base salary, the TARSAP and her right to purchase Twenty
Thousand (20,000) shares of NOW stock at an exercise price of $8.625 as provided
in Employee's stock option agreement with NOW dated September 1, 1998, and her
right to purchase Thirty Five Thousand (35,000) shares of NOW stock at an
exercise price of $10.125, as provided in Employee's stock option agreement with
NOW dated February 9, 1999, ("collectively these two option grants being
referred to herein as the Option Plan") constitutes sufficiently high
remuneration that she shall not be entitled to
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participation in any other Employer provided bonus or incentive plans; however,
she will be entitled to participate in any Employer stock option plans subject
to the Board of Directors approval of her participation.
2.3. Employer acknowledges that Employee resides in Castle Rock,
Colorado and does not intend to relocate to Employer's principal place of
business in Houston, Texas. Employer will therefore, for the Term of this
Agreement, so long as Employee is a resident of Colorado, provide the following
to Employee at Employer's expense:
1. weekly round-trip air transportation between Denver, Colorado and Houston,
Texas,
2. ground transportation in Houston, Texas,
3. reasonable apartment accommodations in Houston, Texas,
4. reasonable furniture for an apartment in Houston, Texas,
5. Reasonable long distance telephone expenses,
6. One Hundred Fifteen Dollars ($115.00) per week for meals and other incidental
expenses while away from Colorado.
It is understood that Employee may travel between Colorado and Texas, and
therefore may only be at Employer's Houston, Texas location four (4) business
days per week. All travel and travel related expenses shall be per Employer's
standard travel policy.
2.4. While employed by Employer, Employee shall be allowed to
participate, on the same basis generally as other employees of Employer, in all
general employee benefit plans and programs, including improvements or
modifications of the same, which on the effective date or thereafter are made
available by Employer to all or substantially all of Employer's employees. Such
benefits, plans, and programs may include, without limitation, medical, health,
and dental care, life insurance, disability protection, and pension plans.
Nothing in this Agreement is to be construed or interpreted to provide greater
rights, participation, coverage, or benefits under such benefit plans or
programs than provided to similarly situated employees pursuant to the terms and
conditions of such benefit plans and programs.
2.5. Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
such incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally. Unless
specifically provided for in a written plan document adopted by the Board of
Directors of NOW, none of the benefits or arrangements described in this Article
2 shall be secured or funded in any way, and each shall instead constitute an
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unfunded and unsecured promise to pay money in the future exclusively from the
general assets of Employer and its subsidiaries and affiliates.
2.6. Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
2.7. Employee shall be entitled to four (4) weeks paid vacation per
year.
3. TERM OF THIS AGREEMENT, EFFECT OF EXPIRATION OF TERM, AND TERMINATION
PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH TERMINATION:
3.1. The term of this Agreement shall commence on April 19, 1999, and
expire on March 31, 2001, and shall be automatically extended on a daily basis
thereafter.
3.2. Notwithstanding any other provisions of this Agreement, NOW and
Employer shall have the right to terminate Employee's employment under this
Agreement at any time for any of the following reasons:
(i) For "cause" upon the determination by NOW's Chief Executive
Officer that "cause" exists for the termination of the employment
relationship. As used in this Section 3.2(i), the term "cause"
shall mean (a) Employee has engaged in gross negligence,
incompetence or willful misconduct in the performance of, or
Employee's refusal to perform, the duties and services required
of Employee pursuant to this Agreement; (b) Employee is charged
with a crime involving moral turpitude; or (c) Employee's
material breach of any material provision of this Agreement or
corporate code or policy. It is expressly acknowledged and agreed
that the final decision as to whether "cause" exists for
termination of the employment relationship by Employer is
delegated to NOW's Board of Directors for determination.
Employee, if she so requests, after reasonable notice of the
Chief Executive Officer's decision that cause exists, shall be
entitled to be heard before the Board of Directors. If Employee
disagrees with the decision reached by NOW's Board of Directors,
the dispute will be limited to whether NOW's Board of Directors
reached its decision in good faith;
(ii) for any other reason whatsoever, including termination without
cause, in the sole discretion of NOW's Chief Executive Officer or
the Board of Directors;
(iii) upon Employee's being offered employment by a successor to all or
a portion of Employee's or NOW's business or assets with (a)
comparable responsibilities, (b) the same or greater base salary,
(c) comparable value for her participation in any stock option
plans and (d) comparable severance benefits.
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(iv) upon Employee's death; or
(v) upon Employee's becoming incapacitated by accident, sickness, or
other circumstance which in the reasonable opinion of a qualified
doctor approved by NOW's Board of Directors renders her mentally
or physically incapable of performing the duties and services
required of Employee, and which will continue, in the reasonable
opinion of such doctor, for a period of not less than 180 days.
The termination of Employee's employment shall constitute a "Termination for
Cause" if made pursuant to Section 3.2(i); the effect of such termination is
specified in Section 3.4. The termination of Employee's employment shall
constitute an "Involuntary Termination" if made pursuant to Section 3.2(ii); the
effect of such termination is specified in Section 3.5. The termination of
Employee's employment shall constitute a "Voluntary Termination" if made
pursuant to Section 3.2(iii), provided that if Employee accepts the employment
contemplated by Section 3.2(iii) such Voluntary Termination will not prevent the
possible application of Section 3.3(ii) or (iii) if the successor employer
terminates Employee's employment by virtue of an Involuntary Termination within
one year after completion of the relevant transaction. The effect of such
termination if a Voluntary Termination is specified in Section 3.4; the effect
of such termination if an Involuntary Termination is specified in Section 3.5.
The effect of the employment relationship being terminated pursuant to Section
3.2(iv) as a result of Employee's death is specified in Section 3.7. The effect
of the employment relationship being terminated pursuant to Section 3.2(v) as a
result of the Employee becoming incapacitated is specified in Section 3.8.
3.3. Notwithstanding any other provisions of this Agreement, Employee
shall have the right to terminate the employment relationship under this
Agreement at any time for any of the following reasons:
(i) a material breach by Employer or NOW of any material provision of
this Agreement, including, without limitation, elimination of
Employee's job and her not being offered employment by NOW,
Employer or a successor to all or a portion of Employer's or
NOW's business or assets, with (a) comparable responsibilities,
(b) the same or greater base salary, (c) comparable value for her
participation in any stock option plans and (d) comparable
severance benefits any of which remains uncorrected for 30 days
following written notice of such breach by Employee to NOW's
Board of Directors;
(ii) (x) NOW completes the sale of assets (which does not constitute
all or substantially all of NOW's assets) having a gross sales
price which exceeds 50% of the consolidated total capitalization
of NOW and its subsidiaries (consolidated total stockholders'
equity plus consolidated total long-term debt as determined in
accordance with
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generally accepted accounting principles) as at the end of the
last full fiscal quarter prior to the date such sale is made, (y)
the Chief Executive Officer of NOW shall have voted against any
such sale as a director of NOW and (z) Employee's employment is
terminated after such transaction by virtue of an Involuntary
Termination within one year after the completion of such
transaction;
(iii) any corporation, person or group within the meaning of Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Act"), other than Inverness Management LLC or First
Reserve Corporation or their respective affiliates, becomes the
beneficial owner (within the meaning of Rule 13d-3 under the Act)
of voting securities of NOW or the general partner of Employer
representing more than thirty (30%) percent of the total votes
eligible to be cast at any election of directors of NOW or the
general partner of Employer and Employee's employment is
terminated after such event by virtue of Involuntary Termination
within one year after the occurrence of such event;
(iv) the dissolution of NOW; or
(v) for any other reason whatsoever, in the sole discretion of
Employee.
The termination of Employee's employment by Employee shall constitute an
"Involuntary Termination" if made pursuant to Section 3.3(i), 3.3(ii), 3.3(iii),
or 3.3(iv); the effect of such termination is specified in Section 3.5. The
termination of Employee's employment by Employee shall constitute a "Voluntary
Termination" if made pursuant to Sections 3.3(v); the effect of such termination
is specified in Section 3.4.
3.4. Upon a "Voluntary Termination" of the employment relationship by
Employee or a termination of the employment relationship for "Cause" by Employer
or NOW, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate as of the date
of termination. Employee shall be entitled to pro rata salary through the date
of such termination, but Employee shall not be entitled to any bonuses not yet
paid at the date of such termination.
3.5. Upon an Involuntary Termination of the employment relationship by
either Employer or Employee pursuant to Sections 3.2(ii), 3.3(i), 3.3(ii) or
3.3(iii) and upon Voluntary Termination by Employee after March 31, 2001,
Employee shall be entitled, in consideration of Employee's continuing
obligations hereunder after such termination (including, without limitation,
Employee's non-competition obligations), to receive payment equal to one
calendar year base salary as specified in Section 2.1. In addition, Employer
shall provide for up to one calendar year's benefits, which benefits shall be
construed to be equal to the total value of all non-salary benefits received by
Employee as an employee of
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Employer for one calendar year, including Employer provided or subsidized
insurance, tax deferred savings, medical benefits. Employer shall pay one year's
salary and benefits over a twelve-month period. Employee shall enter into a
reasonable consulting or similar arrangement with Employer for the amount of
time she is receiving payment under this Section. The Employer's obligation to
pay COBRA benefits for Employee shall cease upon the earlier of one calendar
year or Employee commencing to work for another employer where medical benefits
are available. Employee's rights under this Section 3.5 are Employee's sole and
exclusive rights against Employer, NOW, or their subsidiaries or affiliates, and
Employer's, NOW's and their subsidiaries' and affiliates' sole and exclusive
liability to Employee under this Agreement, in contract, tort, or otherwise, for
any Involuntary Termination of the employment relationship or Voluntary
Termination of such relationship after March 31, 2001, provided however,
Employee's rights and obligations with respect to Employee stock options are
governed by the respective option agreements.
3.6. Employee covenants not to xxx or lodge any claim, demand or cause
of action against Employer based on Involuntary Termination or Voluntary
Termination after March 31, 2001 for any monies other than those specified in
Section 3.5. If Employee breaches this covenant, Employer, NOW and their
subsidiaries' and affiliates' shall be entitled to recover from Employee all
sums expended by Employer, NOW and their subsidiaries and affiliates (including
costs and attorneys fees) in connection with such suit, claim, demand or cause
of action. Employer, NOW and their subsidiaries and affiliates shall not be
entitled to offset any of the amounts specified in the immediately preceding
sentence against amounts otherwise owing by Employer, NOW and their subsidiaries
and affiliates to Employee prior to a final determination under the terms of the
arbitration provisions of this Agreement that Employee has breached the covenant
contained in this Section 3.6.
3.7. Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not be entitled to any
individual bonuses not yet paid to Employee at the date of such termination,
provided however, Employee's rights and obligations with respect to Employee
stock options are governed by the respective option agreements
3.8. Upon termination of the employment relationship as a result of
Employee's incapacity, Employee shall be entitled to her pro rata salary through
the date of such termination, but Employee shall not be entitled to any
individual bonuses not yet paid to Employee at the date of such termination.
3.9. In all cases, the compensation and benefits payable to Employee
under this Agreement upon termination of the employment relationship shall be
reduced and offset by any amounts to which Employee may otherwise be entitled
under any and all severance plans or policies of Employer, NOW, or their
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subsidiaries or affiliates or any successor to all or a portion of the business
or assets of NOW or Employer.
3.10. Termination of the employment relationship shall not terminate
those obligations imposed by this Agreement which are continuing in nature,
including, without limitation, Employee's obligations of confidentiality,
non-competition and Employee's continuing obligations with respect to business
opportunities that had been entrusted to Employee by Employer during the
employment relationship.
3.11. This Agreement governs the rights and obligations of Employer and
Employee with respect to Employee's salary and other perquisites of employment.
Except as otherwise provided in this Agreement, Employee's rights and
obligations with respect to Employee stock options are governed by the
respective option agreements.
4. UNITED STATES FOREIGN CORRUPT PRACTICES ACT AND OTHER LAWS:
4.1. Employee shall at all times comply with United States laws
applicable to Employee's actions on behalf of NOW, Employer and their
subsidiaries and affiliates, including specifically, without limitation, the
United States Foreign Corrupt Practices Act, generally codified in 15 USC 78
(FCPA), as the FCPA may hereafter be amended, and/or its successor statutes. If
Employee pleads guilty to or nolo contendre or admits civil or criminal
liability under applicable United States law, or if a court finds that Employee
has personal civil or criminal liability under the FCPA or other applicable
United States law, or if a court finds that Employee committed an action
resulting in any NOW entity having civil or criminal liability or responsibility
under applicable United States law, such action or finding shall constitute
"cause" for termination under this Agreement unless NOW's Board of Directors
determines that the actions found to be in violation of the FCPA or other
applicable United States law were taken in good faith and in compliance with all
applicable policies of Employer and NOW. Moreover, to the extent that any NOW
entity is found or held responsible for any civil or criminal fines or sanctions
of any type under the FCPA or other applicable United States law or suffers
other damages as a result of Employee's actions, Employee shall be responsible
for, and shall reimburse and pay to such NOW entity an amount of money equal to,
such civil or criminal fines, sanctions or damages. The rights afforded NOW
entities under this provision are in addition to any and all rights and remedies
otherwise afforded by the law.
5. OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
5.1. All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to
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NOW's, Employer's or any of their subsidiaries' or affiliates' businesses,
products or services (including, without limitation, all such information
relating to corporate opportunities, research, financial and sales data, pricing
and trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity of key
contacts within the customer's organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques, prospective
names, and marks) shall be disclosed to NOW and Employer and are and shall be
the sole and exclusive property of NOW and Employer. Upon termination of
Employee's employment, for any reason, Employee promptly shall deliver the same,
and all copies thereof, to NOW and Employer.
5.2. Employee will not, at any time during or after her employment by
Employer, make any unauthorized disclosure of any confidential business
information or trade secrets of Employer, NOW, or their subsidiaries or
affiliates, or make any use thereof, except in the carrying out of her
employment responsibilities hereunder. NOW and its subsidiaries and affiliates
shall be third party beneficiaries of Employee's obligations under this Section.
As a result of Employee's employment by Employer, Employee may also from time to
time have access to, or knowledge of, confidential business information or trade
secrets of third parties, such as customers, suppliers, partners, joint
ventures, and the like, of Employer, NOW, and their subsidiaries and affiliates.
Employee also agrees to preserve and protect the confidentiality of such third
party confidential information and trade secrets to the same extent, and on the
same basis, as Employer's, NOW's or any of their subsidiaries' or affiliates'
confidential business information and trade secrets.
5.3. If, during Employee's employment by Employer, Employee creates any
original work of authorship fixed in any tangible medium of expression which is
the subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, E-mail, voice mail, electronic databases,
drawings, maps, architectural renditions, models, manuals, brochures, or the
like) relating to Employer's, NOW's or any of their subsidiaries' or affiliates'
businesses, products, or services, whether such work is created solely by
Employee or jointly with others (whether during business hours or otherwise and
whether on Employer's, NOW's or any of their subsidiaries' or affiliates'
premises or otherwise), Employer and NOW shall be deemed the author of such work
if the work is prepared by Employee in the scope of her employment; or, if the
work is not prepared by Employee within the scope of her employment but is
specially ordered by Employer, NOW, or any of their subsidiaries or affiliates
as a contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation,
or as an instructional text, then the work shall be considered to be work made
for hire and Employer, NOW, or any of their subsidiaries or affiliates shall be
the author of the work. If such work is neither prepared by Employee within the
scope of her employment nor a work specially ordered that is deemed to be a work
made for hire, then Employee hereby agrees to assign, and by these presents does
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assign, to Employer and NOW all of Employee's worldwide right, title, and
interest in and to such work and all rights of copyright therein.
5.4. Both during the period of Employee's employment by Employer and
thereafter, Employee shall assist Employer, NOW, or any of their subsidiaries or
affiliates and their nominees, at any time, in the protection of Employer's,
NOW's or any of their subsidiaries' or affiliates' worldwide right, title, and
interest in and to information, ideas, concepts, improvements, discoveries, and
inventions, and its copyrighted works, including without limitation, the
execution of all formal assignment documents requested by Employer, NOW, or any
of their subsidiaries or affiliates or their nominees and the execution of all
lawful oaths and applications for applications for patents and registration of
copyright in the United States and foreign countries.
6. POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
6.1. As part of the consideration for the compensation and benefits to
be paid to Employee hereunder, and as an additional incentive for Employer and
NOW to enter into this Agreement, Employer, NOW and Employee agree to the
non-competition provisions of this Article 6. Employee agrees that during the
period of Employee's non-competition obligations hereunder, Employee will not,
directly or indirectly for Employee or for others, in any geographic area or
market where Employer, NOW or any of their subsidiaries or affiliated companies
are conducting any business as of the date of termination of the employment
relationship or have during the previous twelve months conducted any business:
(i) engage in any business competitive with any line of business
conducted by Employer, NOW, or any of their subsidiaries or
affiliates;
(ii) render advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or
indirectly, in any business competitive with any line of business
conducted by Employer, NOW, or any of their subsidiaries or
affiliates;
(iii) induce any employee of Employer or NOW, or any of their
subsidiaries or affiliates to terminate his or her employment
with Employer, NOW, or any of their subsidiaries or affiliates,
or hire or assist in the hiring of any such employee by person,
association, or entity not affiliated with Employer, NOW or any
of their subsidiaries or affiliates.
These non-competition obligations shall apply during Employee's employment and
for a period of one year after Termination for Cause or Voluntary Termination by
Employee prior to March 31, 2001. After termination of employment as provided
herein these non-competition obligations shall apply only to businesses having
annual revenues in excess of $20 million competitive with any line of business
conducted by Employer, NOW, or any of their subsidiaries having
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annual revenues in excess of $20 million for the last fiscal year prior to the
time of termination. If Employer, NOW, or any of their subsidiaries or
affiliates abandons a particular aspect of its business, that is, ceases such
aspect of its business with the intention to permanently refrain from such
aspect of its business, then this post-employment non-competition covenant shall
not apply to such former aspect of that business.
6.2. Employee understands that the foregoing restrictions may limit her
ability to engage in certain businesses anywhere in the world during the period
provided for above, but acknowledges that Employee will receive sufficiently
high remuneration and other benefits (e.g., the right to receive compensation
under Section 3.6) under this Agreement to justify such restriction. Employee
acknowledges that money damages would not be sufficient remedy for any breach of
this Article 6 by Employee, and Employer, NOW, or any of their subsidiaries or
affiliates shall be entitled to enforce the provisions of this Article 6 by
terminating any payments then owing to Employee under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article 6, but shall be in addition to all remedies available
at law or in equity to Employer, NOW, or any of their subsidiaries or
affiliates, including, without limitation, the recovery of damages from Employee
and her agents involved in such breach.
6.3. It is expressly understood and agreed that Employer, NOW and
Employee consider the restrictions contained in this Article 6 to be reasonable
and necessary to protect the proprietary information of Employer, NOW and their
subsidiaries and affiliates. Nevertheless, if any of the aforesaid restrictions
are found by a court having jurisdiction to be unreasonable, or overly broad as
to geographic area or time, or otherwise unenforceable, the parties intend for
the restrictions therein set forth to be modified by such courts so as to be
reasonable and enforceable and, as so modified by the court, to be fully
enforced.
7. MISCELLANEOUS:
7.1. For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with NOW
or Employer.
7.2. Employee shall refrain, both during the employment relationship and
after the employment relationship terminates, from publishing any oral or
written statements about Employer, NOW, or any of their respective subsidiaries'
or affiliates' directors, officers, employees, agents or representatives that
are slanderous, libelous, or defamatory; or that disclose private or
confidential information about Employer, NOW, or any of their respective
subsidiaries' or affiliates' business affairs, officers, employees, agents, or
representatives; or that constitute an intrusion into the seclusion or private
lives of Employer, NOW, or any of their respective subsidiaries' or affiliates'
directors, officers, employees, agents, or representatives; or that give rise to
unreasonable publicity about the
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private lives of Employer, NOW, or any of their respective subsidiaries' or
affiliates' officers, employees, agents, or representatives; or that place
Employer, NOW, or any of their respective subsidiaries' or affiliates' or its
officers, employees, agents, or representatives in a false light before the
public; or that constitute a misappropriation of the name or likeness Employer,
NOW, or any of their respective subsidiaries' or affiliates' or its officers,
employees, agents, or representatives. A violation or threatened violation of
this prohibition may be enjoined.
7.3. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employer or NOW, to:
National Oilwell, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: President and Chief Executive Officer
with a copy to:
General Counsel
If to Employee, to the address shown on the first page hereof.
Either Employer, NOW or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
7.4. This Agreement shall be governed in all respects by the laws of the
State of Texas, excluding any conflict-of-law rule or principle that might refer
the construction of the Agreement to the laws of another State or country.
7.5. No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
7.6. It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be
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construed in a manner so as to permit its enforceability under the applicable
law to the fullest extent permitted by law. In any case, the remaining
provisions of this Agreement or the application thereof to any person,
association, or entity or circumstances other than those to which they have been
held invalid or unenforceable, shall remain in full force and effect.
7.7. Any and all claims, demands, cause of action, disputes,
controversies and other matters in question arising out of or relating to this
Agreement, any provision hereof, the alleged breach thereof, or in any way
relating to the subject matter of this Agreement, involving NOW, Employer, their
respective subsidiaries and affiliates and Employee (all of which are referred
to herein as "Claims"), even though some or all of such Claims allegedly are
extra-contractual in nature, whether such Claims sound in contract, tort or
otherwise, at law or in equity, under state or federal law, whether provided by
statute or the common law, for damages or any other relief, including equitable
relief and specific performance, shall be resolved and decided by binding
arbitration pursuant to the Federal Arbitration Act in accordance with the
Commercial Arbitration Rules then in effect with the American Arbitration
Association. In the arbitration proceeding the Employee shall select one
arbitrator, the Employer shall select one arbitrator and the two arbitrators so
selected shall select a third arbitrator. Should one party fail to select an
arbitrator within five days after notice of the appointment of an arbitrator by
the other party or should the two arbitrators selected by the Employee and the
Employer fail to select an arbitrator within ten days after the date of the
appointment of the last of such two arbitrators, any person sitting as a Judge
of the United States District Court of the Southern District of Texas, Houston
Division, upon application of the Employee or the Employer, shall appoint an
arbitrator to fill such space with the same force and effect as though such
arbitrator had been appointed in accordance with the immediately preceding
sentence of this Section 7.7. The decision of a majority of the arbitrators
shall be binding on the Employee, the Employer and NOW and their respective
subsidiaries and affiliates. The arbitration proceeding shall be conducted in
Houston, Texas. Judgment upon any award rendered in any such arbitration
proceeding may be entered by any federal or state court having jurisdiction.
This agreement to arbitrate shall be enforceable in either federal or state
court. The enforcement of this agreement to arbitrate and all procedural aspects
of this Agreement to arbitrate, including but not limited to, the construction
and interpretation of this agreement to arbitrate, the scope of the arbitrable
issues, allegations of waiver, delay or defenses to arbitrability, and the rules
governing the conduct of the arbitration, shall be governed by and construed
pursuant to the Federal Arbitration Act.
In deciding the substance of any such Claim, the Arbitrators shall apply the
substantive laws of the State of Texas; provided, however, that the Arbitrators
shall have no authority to award treble, exemplary or punitive type damages
under any circumstances regardless of whether such damages may be available
under Texas law, the parties hereby waiving their right, if any, to recover
treble, exemplary or punitive type damages in connection with any such Claims.
14
7.8. This Agreement shall be binding upon and inure to the benefit of
Employer, NOW, their subsidiaries and affiliates and any other person,
association, or entity which may hereafter acquire or succeed to all or a
portion of the business or assets of NOW or Employer by any means whether direct
or indirect, by purchase, merger, consolidation, or otherwise. Employee's rights
and obligations under this Agreement are personal and such rights, benefits, and
obligations of Employee shall not be voluntarily or involuntarily assigned,
alienated, or transferred, whether by operation of law or otherwise, by Employee
without the prior written consent of NOW and Employer.
7.9. Except as provided in (1) written company policies promulgated by
Employer or NOW dealing with issues such as securities trading, business ethics,
governmental affairs and political contributions, consulting fees, commissions
and other payments, compliance with law, investments and outside business
interests as officers and employees, reporting responsibilities, administrative
compliance, and the like, (2) the written benefits, plans, and programs
referenced in Sections 2.2, 2.3 and 2.4, or (3) any signed written agreements
contemporaneously or hereafter executed by Employer, NOW and Employee, this
Agreement constitutes the entire agreement of the parties with regard to such
subject matters, and contains all of the covenants, promises, representations,
warranties, and agreements between the parties with respect to such subject
matters and replaces and merges previous agreements and discussions pertaining
to the employment relationship between Employer and Employee. Specifically, but
not by way of limitation, any other employment agreement or arrangement in
existence as of the date hereof between Employer and Employee is hereby canceled
and Employee hereby irrevocably waives and renounces all of Employee's rights
and claims under any such agreement or arrangement.
IN WITNESS WHEREOF, Employer, NOW and Employee have duly executed this Agreement
in multiple originals to be effective on the date first stated above.
National-Oilwell, Inc. National-Oilwell L.P.
by it general partner
NOW Oilfield Services, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx Xxxxxx
/s/ Honor Xxxxxx
Honor Xxxxxx
