EXHIBIT 10(k)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement") is made as of the 17th
day of November, 1998, ("Effective Date"), by and between Offshore Tool & Energy
Corporation, a Delaware corporation ("Company"), and Xxxxxxx X. Xxxx, Xx.
("Employee").
IN CONSIDERATION of the mutual agreements of the parties contained herein,
Company and Employee hereby agree as follows:
1. Employment. Company agrees to employ Employee and Employee accepts
employment with Company commencing on the effective date. Employee's employment
will be terminable by either party at will with or without cause. The
obligations of Company and Employee set forth in this Agreement regarding
termination will survive the termination of Employee's employment, regardless of
cause.
2. Duties. Employee will be employed as and perform the duties of Chief
Executive Officer with Company, consistent with his training and experience.
Employee agrees that to the best of his ability and experience, he will at all
times consciously perform all of the duties and obligations assigned to him
under the terms of this Agreement. Employee's office will be located at
Company's home offices in Mobile, Alabama. Employee's duties will include
reasonable travel to Company's other offices, if any, and to consult with
Company's other officers and employees subject to reasonable advance notice.
3. Full Time Employment. Employee's employment will be on a full time
basis including devoting substantially all of his work time in the performance
of his responsibilities as Chief Executive Officer.
4. Salary. Employee's salary, commencing on the Effective Date, will be
$200,000 per year, payable monthly, subject to any annual increases as may be
determined by the Compensation Committee of the Board of Directors of the
Company ("Compensation Committee"). Employee will also be eligible for a
monthly bonus in accordance with the guidelines outlined in the Company's
Corporate Compensation Structure, attached hereto as Exhibit "A", provided that
such guidelines shall be subject to modification by the Compensation Committee
on an annual basis.
5. Employee Benefits. Employee will be entitled to insurance, vacation or
other benefits commensurate with his position in accordance with Company's
standard policies in effect from time to time. Additionally, Employee will
receive stock grants and options as shall be determined by the Compensation
Committee.
6. Reimbursement for Business Expenses. Company will, in accordance with
its policies in effect from time to time, reimburse Employee for all reasonable
business expenses incurred by Employee in connection with the performance of his
duties under this Agreement, including, without limitation, reasonable
expenditures for business entertainment and travel, upon submission of the
required documentation.
7. Term. The term of the Employment Agreement shall be for one year
following the Effective Date; provided that, this Employment Agreement shall be
automatically renewed annually for additional one year terms on each anniversary
date of the Effective Date, unless the Company shall give written notice to the
Employee that this Employment Agreement shall not be so renewed not less than 90
days prior to the applicable anniversary date of this Employment Agreement.
8. Termination.
(a) For Cause. Company may terminate Employee's employment at any time for
"cause" effective immediately upon written notice to Employee, without prejudice
to any other remedy which Company may be entitled to at law, in equity, or under
this Agreement. As used in this paragraph 8(a), "cause" will mean actions
involving willful misconduct, gross negligence or consistent dereliction or
disregard of duties including, but not limited to, any crime or act of fraud or
dishonesty against Company, the commission of a felony, or the disregard of
the policies of Company or its subsidiaries or related entities so as to cause
loss, damage or injury to the property, reputation or employees of Company. In
the event of termination for cause, Employee will receive salary, benefits, and
reimbursement of business expenses accrued until the date of termination; all
other compensation and benefits from and after the date of termination under
this Agreement will cease (except those benefits that must be continued pursuant
to applicable law) and Company will have no obligation to pay any severance pay
whatsoever.
(b) Upon Death or Disability. Company may terminate Employee's employment
upon written notice if Employee dies or suffers any mental or physical
disability preventing the substantial performance of his duties under this
Agreement for a period of three consecutive months.
(c) Termination by Company other than for Cause. In the event termination
of Employee for any reason other than cause, death, or disability, and
notwithstanding the provisions of paragraph 7, the Company shall be required to
give written notice no later than one year prior to the effective date of such
termination, or in lieu thereof, pay one year's annual salary in a single lump
sum payment ("Severance Payment"), in which event termination shall be effective
immediately; provided that, it shall be a condition to the entitlement and
receipt by the Employee of the Severance Payment that Employee execute and
deliver to Company the Separation and Release Agreement in the form attached
hereto as Exhibit "B", and that Employee shall not revoke such agreement with
the period provided therein.
(d) Termination by Employee for Cause. Employee may, at his option,
terminate this Agreement and Employee's employment hereunder, immediately upon
giving written notice of termination to Company or under this Agreement. For
purposes of this provision, "Cause" for termination by Employee means the
occurrence of any of the following if not corrected with Company within 15 days
of receipt of Employee's specific written demand for correction:
(i) Company's failure to pay salary or any other benefit due to
Employee hereunder;
(ii) Company's failure to pay or reimburse any other sums due Employee
hereunder; or
(iii) Any other material breach of this Agreement by Company.
In the event Employee terminates this Agreement as provided in this
paragraph, then Employee as its sole remedy at law, in equity or under this
Agreement will continue to be paid his salary at the times such payment would
have been due Employee pursuant to this Agreement of the remainder of the term
of his employment under this Agreement.
9. Vesting of Stock Options. All stock options granted to Employee under
the Company's Stock Incentive Plan shall provide that any such options shall be
immediately vested and exercisable upon termination of this Agreement under the
provisions of paragraph 8(d).
10. Arbitration. Except as otherwise mandated by law, any dispute under
this Agreement shall be submitted to binding arbitration in Mobile, Alabama,
under the auspices of, and pursuant to the rules of, the American Arbitration
Association as then in effect, or such other procedures as the parties may agree
to at the time, before a single arbitrator. Any award issued as a result of
such arbitration shall be final and binding between the parties, and shall be
enforceable by any court having jurisdiction over the party against whom
enforcement is sought.
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11. Miscellaneous.
(a) Notices. Any and all notices permitted or required under this
Agreement must be writing. Notices will be deemed given (i) when received, (ii)
one day after have been sent by commercial overnight courier with written
verification of receipt, or (iii) five days after having been sent by registered
or certified mail from a location on the United States mainland, return receipt
requested, postage prepaid, whichever occurs first, at the addresses set forth
below or at any new address, notice of which has been given under this Section:
If to Company: Offshore Tool & Energy Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
If to Employee: Xxxxxxx X. Xxxx, Xx.
000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
(b) Amendments. This Agreement including the Exhibits hereto contains the
entire agreement and may not be changed or modified in whole or in part except
by a writing signed by the party against whom enforcement of the change or
modification is sought.
(c) Successors and Assigns. This Agreement will not be assignable by
either Employee or Company, except that the rights and obligations under this
Agreement may be assigned to a corporation which becomes the successor to
Company as a result of a merger or other corporate reorganization which
continues the business of Company, or to any other subsidiary of the Company.
(d) Governing Law. This Agreement will be governed by and interpreted
according to the substantive laws of the State of Alabama, without regard to
such state's conflicts laws.
(e) No Waiver. The failure of either party to insist on strict compliance
with the terms of this Agreement will not be deemed to be a waiver of this
Agreement, or of that party's right to require strict compliance with the terms
of this Agreement in any other instance.
(f) Severability. Employee and Company recognize that the limitations
contained herein are reasonably and properly required for the adequate
protection of the interests of Company. If for any reason a court of competent
jurisdiction or binding arbitration proceeding finds any provision of this
Agreement, or the application thereof, to be unenforceable, the remaining
provisions of this Agreement will be interpreted so as to best reasonably
reflect the intent of the parties. The parties further agree to replace any
such invalid or unenforceable provisions with valid and enforceable provisions
designed to achieve, to the extent possible, the business purposes and intent of
such unenforceable provisions.
(g) Repayment of Excess Bonus Payments. Employee shall promptly repay the
Company any portion of the aggregate bonuses paid in any fiscal year under
Section 4 that is in excess of the aggregate bonuses payable under Section 4 as
determined on the basis of the annual audit of the Company's financial
statements.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one original.
Any copy of this Agreement with the original signatures of all parties appended
shall constitute an original.
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IN WITNESS WHEREOF, this Agreement is made and effective as of the day and
year first above written.
OFFSHORE TOOL & ENERGY
CORPORATION
By: /s/ XxXxxxx X. Xxxxxxx, Xx.
---------------------------
Its: President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxx, Xx.
------------------------
Xxxxxxx X. Xxxx, Xx.
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