Employment Agreement
This
Employment Agreement (“Agreement”),
dated as of February 14, 2008 (the “Effective
Date”), is made between Best Energy Services, Inc., a Nevada corporation
(the “Company”),
and Xxxx Xxxxx (the “Executive”).
RECITALS:
A. The
Company is engaged in the business of oil field and mineral services, including
operating drilling, core and well service rigs and the rental of ancillary
equipment, such as pipe racks, mud pumps, blowout preventers, and the sale and
rental of ancillary products and services (the “Business”).
B. The
Company and the Executive desire to enter into this Agreement to govern the
employment relationship between them.
Now,
Therefore, in consideration of the foregoing Recitals (which are hereby
incorporated by reference), the agreements hereafter set forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE
I
EMPLOYMENT
AND ACCEPTANCE
1.1 Employment by the
Company. The Company hereby agrees to employ the Executive
from the Effective Date through February 14, 2009 (including all
renewal periods, if any, the “Term” or
“Employment
Term”), subject to any earlier termination pursuant to Article III. During
the Term, the Executive shall serve in the capacity of Vice President of Central
Operations of the Company, subject to the direction of the Chief Executive
Officer of the Company.
1.2 Duties and
Responsibilities. During the Term, the Executive shall devote
the Executive’s best efforts and all of the Executive’s business time and
services to the Company, its affiliates and subsidiaries, and shall carry out
all Company policies and directives in a manner which will promote and develop
the Company’s best interests. The Executive shall have the duties and authority
assigned to the Executive by the Chief Executive Officer, and as set forth in
the Company’s Bylaws, policies and procedures from time to time in
force.
1.3 Acceptance of Employment by the
Executive. The Executive hereby accepts such employment and
represents and warrants that (i) the Executive has full authority to enter into
this Agreement, (ii) the Executive is not restricted in any manner from
providing services hereunder or from engaging in the Business and (iii) the
Executive is not aware of any situation creating a conflict of interest between
the Executive and the Company.
ARTICLE
II
COMPENSATION
AND OTHER BENEFITS
2.1 Annual Salary. The
Company shall pay the Executive a salary at the rate of $150,000 per year of
employment hereunder (the “Annual
Salary”). The Annual Salary shall be payable in accordance with the
payroll policies of the Company as from time to time in effect (but no less
often than monthly), less such deductions as shall be required to be withheld by
applicable law and regulations. The Board of Directors of the Company (the
“Board”)
shall review the Executive’s performance each year this Agreement is in effect
and, in its sole discretion, may decide whether to increase the Executive’s
Annual Salary.
2.2 Annual Bonus. In
addition to the Annual Salary, the Company may in it is discretion award a bonus
to the Executive following the end of each fiscal year during the
Term.
2.3 Participation in Employee Benefit
Plans. At the Executive’s option, the Company agrees to permit
the Executive during the Term, if and to the extent eligible, to participate in
any group life, health care or group disability insurance plan, pension plan,
similar benefit plan or other so-called “fringe benefits” of the Company
(collectively “Benefits”)
which may be made generally available to other executive officers of the Company
and on such terms as the Benefits are made generally available to such executive
officers.
2.4 Expenses. The
Company shall pay or reimburse the Executive for all business expenses
reasonably and necessarily incurred by the Executive during the Term in the
performance of the Executive’s services under this Agreement, in each case in
accordance with Company policy.
ARTICLE
III
TERMINATION
3.1 Mutual Agreement. This
Agreement may be terminated upon the mutual agreement of Executive and
Company.
3.2 By the Company For Cause. This
Agreement may be terminated by the Company by delivery of written notice to
Executive specifying the Cause or Causes relied upon for such
termination. For purposes of this Agreement, “Cause”
means:
(i) An
unauthorized use or disclosure by Executive of the Company’s confidential
information or trade secrets, or Executive's engaging or in any manner
participating in any other activity which is intentionally injurious to the
Company, which use or disclosure causes material harm to the
Company;
(ii) A
material breach by the Executive of this Agreement which Executive has failed to
cure or remedy within ten days after written notice by the Company indicating
such breach;
(iii) the
commission of fraud against Company by Executive, or the misappropriation, theft
or embezzlement of Company’s assets by Executive;
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(iv) Executive’s
conviction of, or plea of nolo contendere or guilty to, a felony under the laws
of the United States or any State; or
(v) Executive’s
gross neglect or gross misconduct in carrying out Executive’s duties hereunder
and the continuation of such gross neglect or
gross misconduct for a period of three days after written notice from the
Company specifying such failure.
3.3 Upon Death or
Disability. This Agreement shall terminate upon the
Executive’s death or Disability. For purposes of this Agreement,
“Disability”
shall have the meaning set forth in the Company’s long term disability insurance
plan policy that may be in place from time to time, but if at any time the
Company does not have a long term disability insurance policy shall mean the (i)
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than six months, or (ii) receipt of income replacement benefits for a period of
at least three months under an accident and health plan of the employer, by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than six months. The determination of whether a
Disability has occurred will be made in good faith by the Board in its
reasonable discretion. If this Agreement terminates as a result of
the Executive’s death or Disability, the Company’s obligation to the Executive
or the Executive’s estate shall be limited to the payment of accrued and unpaid
Annual Salary earned.
3.4 Effect of Termination. Upon
the effective date of termination of Executive’s employment with the Company
(the “Termination
Date”), Executive will not be eligible for further compensation, benefits
or perquisites under Section 2, other than
those that have already accrued as of the Termination Date.
ARTICLE
IV
MISCELLANEOUS
4.1 Notices. Any notice
or other communication required or permitted hereunder shall be in writing and
shall be delivered personally, sent by nationally-recognized overnight delivery
service or sent by certified or registered mail, postage prepaid, return receipt
requested, address as set forth below; receipt shall be deemed to occur on the
earlier of the date of actual receipt or receipt by the sender of confirmation
that the delivery was completed or that the addressee has refused to accept such
delivery or has changed its address without giving notice of such change as set
forth herein:
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(a) if to the
Company, to:
Best
Energy Services, Inc.
0000
Xxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
(b) if to the
Executive, to:
0000 Xxxx
X
Xxxxxxx,
Xxxxxx 00000
Email:
xxxxxxxxxxxx@xxxxx.xxx
Either
party may change its address for notice hereunder by notice to the other party
hereto.
4.2 Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supercedes all
prior discussions and agreements, written or oral, with respect
thereto.
4.3 Waivers and
Amendments. This Agreement may be amended, suspended,
cancelled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by both parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof. Nor shall any waiver on the part of any party of any such right, power
or privilege hereunder, nor any single or partial exercise of any right, power
or privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
4.4 Assignment. Executive
shall not be entitled to assign any of the Executive’s rights or delegate any of
the Executive’s duties under this Agreement. The Executive agrees that this
Agreement may be freely assigned by the Company to any person or entity which
succeeds to all or any significant portion of the Company’s assets or Business,
whether pursuant to a sale of assets, sale of stock, merger or other similar
transaction.
4.5 Severability:
Construction. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held by a count of
competent jurisdiction to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement. Use of the
word “including” shall not be limited by the terms following such word. All
references to singular or plural terms shall mean the other where appropriate.
The term “subsidiary” shall refer to subsidiaries of the Company now existing or
hereafter formed or acquired.
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4.6 Choice of Law. This
Agreement (including any claim or controversy arising out of or relating to this
Agreement) shall be governed by the law of the State of Texas, without regard to
conflict of law principles that would result in the application of any law other
than the law of the State of Texas.
4.7 Headings. The
section and subsection headings contained in this Agreement are for reference
purposes only and shall not effect in any way the meaning or interpretation of
this Agreement.
4.8 Execution of
Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document. The exchange of copies of this Agreement and
of signature pages by facsimile transmission, PDF or other electronic file shall
constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile, PDF or other electronic file shall be
deemed to be their original signatures for all purposes.
4.9 Dispute
Resolution. Except as provided below, in the event of any
dispute, claim or disagreement arising out of or in connection with this
Agreement, including, without limitation, the negotiation, execution,
interpretation, performance or non-performance of this Agreement, the parties
shall first submit the dispute, claim or disagreement to non-binding mediation
administered by the American Arbitration Association (the “AAA”) in
accordance with its Employment Mediation Rules. The place of
mediation shall be Dallas, Texas. If the dispute, claim or
disagreement is not resolved within 30 days after the initial mediation meeting
among the parties and the mediator, or if the mediation is otherwise terminated,
then either party may submit the dispute, claim or disagreement to binding
arbitration administered by the AAA in accordance with the provisions of its
Employment Arbitration Rules (the “Rules”)
and, except as otherwise provided in this Agreement, such arbitration shall be
the sole means of dispute resolution. The place of arbitration shall
be Dallas, Texas. The arbitration shall be conducted by a panel of
three arbitrators selected in accordance with the Rules, unless the parties
otherwise agree to one arbitrator. Any mediator or arbitrator
selected under this Section 4.9 shall be a
practicing attorney experienced in employment agreements and acquisitions and
shall not have been employed or engaged by or affiliated with either of the
parties or their respective affiliates. Each party shall initially
bear its own costs and expenses in connection with any mediation or arbitration
hereunder, including, without limitation, its attorneys’ fees, and an equal
share of the mediator’s or arbitrator’s and administrative fees of mediation or
arbitration. The decision of the arbitrators shall be in
writing. Judgment upon an arbitration award may be entered in any
court of competent jurisdiction and shall be final, binding and
non-appealable. Notwithstanding anything in this Section 4.9 to the
contrary, each party shall be entitled to seek injunctive or other equitable
relief without first submitting the matter to mediation or arbitration in
accordance with the provisions of this Section 4.9, even if a
similar or related matter has already been referred to meditation or arbitration
in accordance with the terms of this Section
4.9. Venue for any action permitted to be brought in court
under this Section
4.9 shall be the appropriate state and federal courts located in Dallas
County, Texas.
4.10 Representation. The
Executive has consulted with and relied upon independent legal counsel in
determining whether to sign this Agreement, and has not relied on Company’s
counsel to represent the Executive’s interests.
[Signature Page to
Follow]
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In
Witness Whereof, the parties hereto have executed this Agreement on the date
first above written.
| Best Energy Services, Inc. |
| /s/ Xxxxx Xxxxxxxx |
| Xxxxx Xxxxxxxx, Chief Executive Officer |
| Executive: |
|
/s/
Xxxx Xxxxx
|
|
Xxxx
Xxxxx, individually
|
