EXHIBIT 2.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
July 24, 1997, by and between XXXXXXX CONSTRUCTION COMPANY, INC., a Texas
corporation ("Employer"), and _______________ ("Employee"), with reference to
the following facts:
A. Employee has been employed by Employer as its Vice President.
B. On the date of this Agreement, Employer has become a wholly-owned
subsidiary of NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark").
Employer desires to assure itself of the continued services of Employee for a
term expiring no sooner than July 31, 2000, and the parties are entering into
this Agreement for that purpose and in order to set forth the terms of the
employment of Employee.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth herein, the parties agree as follows:
1. Term of Employment. Employer hereby continues the employment of
Employee, and Employee hereby accepts continued employment with Employer, for a
period commencing on the date hereof and, except as otherwise provided herein,
expiring July 31, 2000, provided, however, that, each time neither party
terminates this Agreement by written notice given at least sixty (60) days prior
to the expiration of the employment term as last renewed or extended, it shall
be automatically renewed for an additional twelve month period. As used herein,
the phrase "employment term" refers to the entire period that Employee shall be
employed hereunder, whether for the initial period provided above, or whether
this Agreement is terminated earlier or extended automatically as provided
herein or by mutual agreement between Employer and Employee. This Agreement
supersedes all agreements and understandings between Employer and Employee
relating to compensation of Employee existing on the date hereof, including but
not limited to salary, commission, bonus and other arrangements, and all such
existing agreements and understandings are hereby terminated.
2. Duties of Employee.
2.1 Employee shall serve as Vice President of Employer and shall do
and perform all services, acts and things necessary or advisable in that
capacity in connection with the conduct of the business of Employer, subject to
the instructions of and policies and limitations set by its Board of Directors.
It is contemplated that Employee's role initially will be substantially the same
as his role with Employer immediately prior to the date hereof.
2.2 Employee shall devote such productive time, ability and attention
to the business of Employer during the employment term as is reasonably required
for the performance of his duties hereunder. Employee may devote time and
effort to personal activities to the extent that such activities do not
materially interfere with the performance of his duties hereunder. If Employer
advises Employee that, in its good faith judgment, such activities are
materially interfering with the
performance of Employee's duties hereunder, Employee will promptly take steps to
appropriately limit such activities. Subject to the foregoing, Employee shall
not directly or indirectly render any services of a business, commercial or
professional nature to any other person or organization, whether for
compensation or otherwise, without the prior written consent of the Board of
Directors of Employer.
2.3 Employee agrees to serve without additional compensation, if
elected or appointed thereto, in one or more offices as an officer, director or
member of any committee of the Board of Directors of Employer or of any direct
or indirect subsidiary of Employer.
3. Compensation of Employee.
3.1 As compensation for his services hereunder, Employee shall
receive a salary at the annual rate of $91,000, payable in equal installments on
Employer's regular payroll dates for executive employees. Employer's Board of
Directors will review Employee's salary annually, and, with the approval of
Newpark's Board of Directors or Compensation Committee, may (but shall be under
no obligation to) increase such salary.
3.2 For each full or partial fiscal year of Employer during the
employment term, Employer shall pay to Employee, in addition to his salary, a
bonus in such amount, if any, as may be determined by the Board of Directors or
Compensation Committee of Newpark, in its sole discretion.
4. Benefits. Employee shall be entitled to participate in and receive
benefits under all bonus plans, profit-sharing plans, pension plans, group
medical plans and other plans for payment of additional compensation or benefits
to employees of Employer which Employer at any time maintains for executive
employees. To the extent permitted by law, and provided that such participation
does not result in duplicate payments to Employee, Employee shall also
participate in such benefits plans as Newpark makes available to its executive
employees and the executive employees of its subsidiaries.
5. Business Expenses. Employee is authorized to incur reasonable expenses
for promoting and conducting the business of Employer, including expenditures
for entertainment and travel. Employer shall reimburse Employee monthly for all
such business expenses upon presentation of reasonable documentation
establishing the amount, date, place and essential character of the
expenditures.
6. Disability.
6.1 If Employee becomes disabled by reason of sickness, physical or
mental disability or any other cause which materially impairs his ability to
perform his duties under this Agreement with reasonable accommodation for a
period of six consecutive months or for nine months in any twelve-month period,
Employer shall have the option to terminate this Agreement effective immediately
by giving written notice of termination to Employee within a reasonable time
following the end of such period of disability. If Employee becomes temporarily
disabled by reason
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of sickness, physical or mental disability, or any other cause so that he is
unable to perform efficiently his duties hereunder with reasonable
accommodation, he shall be entitled to compensation as provided for herein until
the total period of such temporary disability shall equal an aggregate of three
consecutive months or an aggregate of six months during any period of twelve
consecutive months. As to any subsequent periods of disability during said
twelve month period, Employee shall not be entitled to compensation.
6.2 In the event of the termination of this Agreement pursuant to the
provisions of Paragraph 6.1 above, Employee shall be entitled to salary and
discretionary bonus earned by him prior to the date of termination as provided
for in this Agreement computed pro rata up to and including that date; but he
shall not be entitled to compensation after the date of termination.
7. Termination of Employment.
7.1 This Agreement and the employment of Employee hereunder may be
terminated at any time prior to the expiration of the term of this Agreement as
follows:
7.1.1 By Employer as a result of disability of Employee as
provided in Paragraph 6.1 above, or the death of Employee;
7.1.2 upon the mutual agreement of the parties;
7.1.3 by Employer in the event of: (i) conviction of Employee of
a major felony (whether or not committed in the course of his employment) from
which no appeal has been made, or, if an appeal has been made, upon a final
determination adverse to Employee; or (ii) gross misconduct by Employee causing
material harm to Employer, but only if (x) Employee shall not have discontinued
such gross misconduct within ten days after receiving written notice from
Employer that it will consider the continuation of such gross misconduct cause
for termination of this Agreement, or (y) the gross misconduct is of such a
nature that Employer would be materially prejudiced thereby whether or not
Employee discontinues such gross misconduct;
7.1.4 by Employee if Employer shall fail to cure a material or
default by it under any of the terms of this Agreement within thirty days after
written notice of such breach or default is given by Employee;
7.1.5 by Employer if Employee shall fail to cure a material
breach or default by him under this Agreement within thirty days after written
notice of such breach or default is given by Employer; and
7.2 This Agreement shall not be terminated by any merger or
consolidation where Employer is not the consolidated or surviving corporation or
by any transfer of all or substantially all of the assets of Employer. In the
event of any such merger or consolidation or transfer of assets, the surviving
or resulting corporation or the transferee of the assets of Employer shall be
bound by and shall have the benefit of the provisions of this Agreement; and
Employer shall take all actions necessary to ensure that such corporation or
transferee is bound by the provisions of this Agreement.
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7.3 Upon termination of this Agreement for any reason whatsoever,
Employee shall return to Employer all automobiles, equipment, books, records,
customer lists, catalogs, invoices, correspondence and other property which was
acquired from or otherwise belongs to Employer, including any property or
documentation developed by Employee in the course of his employment.
8. Proprietary Information and Non-Competition.
8.1 Employee recognizes and acknowledges that the performance of his
services hereunder will necessarily result in disclosure to him of certain trade
secrets and confidential information, including source of supply information,
sales information, customer lists, customer information and pricing, all of
which are special and unique assets and trade secrets of Employer's business.
For the purpose of this Agreement, such information shall be referred to and is
acknowledged as "proprietary information of the Employer." In view of the
foregoing, in addition to and not in limitation of the provisions of the
Noncompetition Agreement executed concurrently herewith by Newpark and Employee,
Employee agrees that:
8.1.1 During and after the employment term, Employee will not
disclose or use any proprietary information of Employer, except for the purpose
of carrying out his duties hereunder, unless such use or disclosure is
specifically consented to in writing by Employer.
8.1.2 For the period of one year after the employment term,
Employee will not in any way, directly or indirectly, for himself or on behalf
of any other person or entity, associate in business as an employer, employee or
otherwise, with any employee, officer or agent of Employer until such person has
terminated employment with Employer for a period of one year.
8.1.3 During the employment term and thereafter, Employee will
not, directly or indirectly, for himself or on behalf of any other person or
entity, induce or attempt to induce any of Employer's personnel to terminate
their relationship with Employer, nor will Employee induce or attempt to induce
any of Employer's personnel to do anything contrary to the best interests of
Employer.
8.2 Employee agrees that in the event of any breach by Employee of any
covenant in this Paragraph 8, Employer shall be entitled, in addition to other
remedies, to immediate injunctive relief if necessary to avoid irreparable harm
and injury.
9. General Provisions.
9.1 Any notices to be given hereunder by either party to the other
shall be in writing and may be effected either by personal delivery or by mail,
registered or certified, return receipt requested, postage prepaid. Mailed
notices shall be addressed to the parties at the addresses appearing opposite
their respective signatures below and shall be deemed effective 24 hours after
being deposited in the U.S. mails, postage prepaid and property addressed. Each
party may change its address by written notice in accordance with this
Paragraph.
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9.2 This Agreement supersedes and any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee and contains all of the covenants and agreements between
the parties with respect to such employment. Each party acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing signed by the party to be charged.
9.3 Any paragraph, sentence, phrase, or other provision of this
Agreement which is in conflict with any applicable statute, rule, or other law
shall be deemed, if possible, to be modified or altered to conform thereto or,
if not possible, to be omitted from this Agreement. The invalidity of any
portion hereof shall not affect the force or effect of the remaining portions
hereof.
9.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, and the Judicial District Court of Xxxxxx
County, Texas, Houston Division, shall be the only proper forum for disputes
hereunder.
9.5 The rights and obligations of Employer under this Agreement shall
enure to the benefit of and shall be binding on the successors and assigns of
Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
XXXXXXX CONSTRUCTION Address:
COMPANY, INC.("Employer")
0000 Xxxxxxx
Xxxxxxxx, Xxxxx 00000
By:____________________________
_______________________________ Address:
("Employee")
__________________________
__________________________
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