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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This employment agreement is effective as of September 16, 1997,
between FLOTEK INDUSTRIES, INC., an ALBERTA, CANADA corporation (hereafter
known as "Flotek") and BILL JAYROE.
RECITALS
1. Flotek desires assurance of the continued association and services
of Bill Jayroe in order to retain his experience, abilities, and knowledge, and
is therefore willing to engage his services on the terms and conditions set
forth below.
2. Bill Jayroe desires to continue in the employ of Flotek and is
willing to do so on the terms and conditions set forth below.
THEREFORE, in consideration of the above recitals and of the mutual
promises and conditions in this agreement, it is agreed as follows:
ARTICLE I
TERM, PLACE, AND DUTIES OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT: Subject to earlier termination as provided in this
agreement, Bill Jayroe shall be employed for a three (3) year term beginning
September 16, 1997, and ending September 16, 2000.
1.2 AUTOMATIC RENEWAL: This agreement shall be renewed automatically for
succeeding terms of one (1) year each unless either party gives notice to the
other at least ninety (90) days prior to the expiration of any term of his or
its intention not to renew this agreement.
1.3 EMPLOYMENT TERM DEFINED: As used herein, the phrase "employment term"
refers to the entire period of employment of Bill Jayroe by Flotek hereunder,
whether for the periods provided above, or whether terminated earlier as
hereinafter provided or extended by mutual agreement between Flotek and Bill
Jayroe.
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1.4 PLACE OF EMPLOYMENT: Unless the parties agree otherwise in writing,
during the employment term Bill Jayroe shall perform the services he is
required to perform under this agreement at Flotek's offices, located at 7030
Empire Central Drive, Houston, Texas 77040; provided, however, that Flotek may
from time to time require Bill Jayroe to travel temporarily to other locations
on Flotek's business.
1.5 DUTIES AND AUTHORITY: Bill Jayroe shall be the President and Chief
Executive Officer of Flotek, with full power and authority to manage and
conduct all the business of Flotek, subject to the directions and policies of
Flotek and its board of directors as they may be, from time to time, stated
either orally or in writing.
ARTICLE II
EMPLOYEE RESTRICTIONS AND OBLIGATIONS
2.1 RESTRICTIONS ON OUTSIDE BUSINESS ACTIVITY: During his employment, Bill
Jayroe shall devote his full business time, energy, and ability exclusively to
the business and interests of Flotek, and shall not, without Flotek's prior
written consent, render to others services of any kind for compensation, or
engage in any other business activity that would materially interfere with the
performance of his duties under this agreement, provided, however, that he may
continue to serve as a director of Nevada Gold and Casinos and to receive
compensation for that service, and, with the Board's approval, may accept
similar positions and receive compensation therefor.
a. No Other Commitments: Bill Jayroe represents to Flotek that he
has no other outstanding commitments inconsistent with any of the terms of this
agreement or the services to be rendered under it.
b. Passive Investments: This agreement shall not be interpreted to
prohibit Bill Jayroe from making passive personal investments or conducting
private business affairs if those activities do not interfere with the services
required under this agreement. However, Bill Jayroe shall not directly or
indirectly acquire, hold, or retain any interest in any business competing with
or similar in nature to the business of Flotek.
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2.2 COVENANT NOT TO COMPETE DURING TERM: During the employment term, Bill
Jayroe shall not, directly or indirectly, whether as partner, employee,
creditor, shareholder, or otherwise, promote, participate, or engage in any
activity or other business competitive with Flotek's business.
ARTICLE III
COMPENSATION
3.1 BASE SALARY: During the term of this agreement, Flotek agrees to pay
Bill Jayroe a Base Salary of One Hundred Fifty Thousand Dollars ($150,000.00).
The Base Salary shall be payable as current salary, in semimonthly installments
subject to all applicable withholdings and deductions.
3.2 ANNUAL BASE SALARY REVIEW: Flotek's board of directors shall review
Bill Jayroe's Base Salary and additional benefits then being paid to Bill
Jayroe not less frequently than every twelve (12) months, such review to
coincide with the board's review of annual performance goals, which normally
will occur on or about the month of May. Following such review, the board may
in its discretion increase (but shall not be required to increase) Bill
Jayroe's Base Salary or any other benefits, but may not decrease Bill Jayroe's
Base Salary during the term of this agreement.
3.3 INCENTIVE COMPENSATION: In addition to the Base Salary provided for
above, Flotek shall pay to Bill Jayroe as incentive compensation for each
fiscal year of Flotek a graduated bonus which shall be tied to the net profits
of Flotek. The bonus shall be calculated as a percentage of Bill Jayroe's
annual base salary up to a maximum bonus of one hundred percent (100%) of such
base salary. Bonuses shall be calculated and paid as follows:
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GRADUATED BONUS SCHUDULE - NET INCOME - FISCAL 97/98
Total Bonus as a Total Dollar value of
Net Income (CDN) % of Base Salary Bonus in U.S. Dollars
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1,200,000 or more 20% $ 30,000
1,500,000 or more 30% $ 45,000
1,800,000 or more 40% $ 60,000
2,100,000 or more 50% $ 75,000
2,400,000 or more 60% $ 90,000
2,700,000 or more 70% $105,000
3,000,000 or more 80% $120,000
3,300,000 or more 90% $135,000
3,600,000 or more 100% $150,000
If earned, all such bonuses shall be paid to Bill Jayroe in full
within ninety (90) days after final board approval of the year end financial
statements.
For each succeeding year of Bill Jayroe's contract, new performance
goals, as proposed by management and agreed to by the Board, will be set. Based
on such goals, a similar bonus schedule will be established through a formal
budget process developed by management and approved by the board of directors.
a. The term "Net Profits" for purposes of this section shall be
defined as follows: "Net profits before taxes, resulting from all operations
and from all product lines, excluding extraordinary or unusual items, as set
forth in Flotek's annual audited consolidated financial statements of
operations and income."
b. The incentive compensation payable to Bill Jayroe under this
paragraph shall be prorated for any partial fiscal year that occurs during the
employment term. The incentive compensation shall be prorated by multiplying
the total net profits for the fiscal year within which such partial fiscal year
occurs by (a) the above mentioned percentage and by (b) a number equal to the
number of months during any such partial fiscal year in which Bill Jayroe is
employed by Flotek within the meaning of this agreement, divided by twelve.
3.4 NON-QUALIFIED STOCK OPTION #1: As previously approved by the Board of
Directors of Flotek in January, 1997, and as part of the consideration for this
agreement, Flotek granted Bill Jayroe a non-qualified stock option to purchase
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Four Hundred Thousand (400,000) shares of Flotek's common stock at a purchase
price of fifty cents ($0.50 CDN) Canadian per share. The terms and conditions
of the option grant are memorialized in a separate option agreement previously
executed and approved by the VSE.
3.5 NON-QUALIFIED STOCK OPTION #2: As further consideration for this
agreement, Flotek wishes to grant Bill Jayroe an additional non-qualified stock
option to purchase Three Hundred Thousand (300,000) shares of Flotek's common
stock at a purchase price equal to the market price per share (in Canadian
dollars) on the close of business as of the date of this agreement.
3.6 FUTURE STOCK OPTION GRANT: As previously approved by the Board of
Directors of Flotek in January, 1997, and as part of the consideration for this
agreement, Flotek has agreed to grant Bill Jayroe two (2) additional
non-qualified stock options to purchase common stock of Flotek on the following
terms and conditions:
A. YEAR ONE OF TERM: Provided Bill Jayroe meets or exceeds the
minimum net income performance goal necessary to earn a twenty percent (20%) or
greater incentive bonus in fiscal 97/98 (as set forth above in paragraph 3.3 of
this Article III), Flotek will grant Bill Jayroe a non-qualified stock option
to purchase Three Hundred Thousand (300,000) shares of Flotek's common stock at
the then current market price. Such option to be granted within thirty (30)
days after final Board approval of the year end financial statements.
B. YEAR TWO OF TERM: Provided Bill Jayroe meets or exceeds the
minimum net income performance goals in fiscal 98/99 as shall be agreed by the
parties as required in paragraph 3.3 of this Article III, Flotek will grant
Bill Jayroe an additional non-qualified stock option to purchase another Three
Hundred Thousand (300,000) shares of Flotek's common stock at the then current
market price. Such option to be granted within thirty (30) days after final
Board approval of the year end financial statements.
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In the event Bill Jayroe does not achieve the agreed upon minimum
performance goals for either or both fiscal 97/98 or fiscal 98/99, Bill Jayroe
shall forfeit his absolute rights to such non-qualified stock option(s).
However, if, in the opinion of the compensation committee, the failure to
achieve the minimum performance goal(s) was caused by unforeseen events which
could not have been reasonably anticipated, the compensation committee shall
retain the discretion to authorize the grant to Bill Jayroe of a similar
non-qualified stock option for either or both fiscal 97/98 or fiscal 98/99, for
any number of shares (for each grant) up to, but not exceeding three hundred
thousand (300,000).
Assuming the performance goals are achieved, or if not, options are
granted at the compensation committee's discretion, the terms and conditions of
each grant, which the parties agree shall be subject to VSE and all other
appropriate regulatory approvals, shall be as follows:
1. Each stock option shall be subject to a twenty-four (24) month
vesting schedule beginning on the date of each grant, with the total number of
shares to vest at the rate of 1/24th per month until full vesting is obtained.
2. The number of shares subject to each option shall be
proportionately adjusted for any change in the stock structure of Flotek
because of share dividends, recapitalizations, reorganizations, mergers, or
otherwise. Each option may be exercised in whole or in part, but may only be
exercised in lots of Ten Thousand (10,000) shares or more. Bill Jayroe shall
not have any of the rights of, nor be treated as, a shareholder with respect to
the shares subject to this option until he has exercised the option and has
become the shareholder of record of those shares.
3. Each option shall not be assignable.
4. Each option shall have a maximum five (5) year term and may only
be exercised by Bill Jayroe during the term of his employment hereunder.
However, in the event that the employment term is terminated by Flotek for
reasons other than for cause, Bill Jayroe shall retain the right to exercise
any unused portion of either option until the last day of the employment term
as specified herein.
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ARTICLE IV
COMPANY BENEFITS
4.1 PARTICIPATION IN COMPANY PLANS: During the employment term, Bill Jayroe
shall be entitled to receive all other benefits of employment generally
available to Flotek's other executive and managerial employees when and as he
becomes eligible for them, including, but not limited to, medical, dental, life
and disability insurance benefits, and participation in Flotek's pension plan
and profit sharing plan(s).
In the event Flotek is unable to provide medical coverage on a
company-wide basis, Flotek will, until such benefits are made generally
available, purchase a separate medical insurance policy covering Bill Jayroe
and his family. At such time as Flotek is able to offer medical insurance
coverage on a company-wide basis, Flotek's obligation to pay for the separate
medical insurance coverage on Bill Jayroe and his family shall terminate.
a. Flotek reserves the right to modify, suspend or discontinue any
and all of the above benefit plans, policies, and practices at any time without
notice to or recourse by Bill Jayroe, so long as such action is taken generally
with respect to other similarly situated persons and does not single out Bill
Jayroe.
4.2 VACATION: Bill Jayroe shall be entitled to five (5) weeks of paid
vacation for each twelve month period of employment, which shall accrue on a
prorata basis from the date employment commences under this agreement. However,
as of the date of this agreement, Bill Jayroe shall be deemed to have accrued
twelve (12) days of paid vacation in consideration of his having worked without
a contract from November 1, 1996, to the date of this agreement.
a. Vacation time will continue to accrue so long as Bill Jayroe's
total accrued vacation does not exceed ten (10) weeks. Should Bill Jayroe's
accrued vacation time reach ten (10) weeks, Bill Jayroe will cease to accrue
further vacation until Bill Jayroe's accrued vacation time falls below that
level.
4.3 PAID HOLIDAYS: ADHERE TO STANDARD COMPANY POLICY.
4.4 SICK PAY: ADHERE TO STANDARD COMPANY POLICY.
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4.5 EXPENSE REIMBURSEMENT: During the employment term, to the extent that
such expenditures satisfy the criteria under the Internal Revenue Code for
deductibility by Flotek (whether or not fully deductible) for federal income
tax purposes as ordinary and necessary business expenses, Flotek shall
reimburse Bill Jayroe promptly for reasonable business expenses, including
travel, entertainment, parking, business meetings, and professional dues, made
and substantiated in accordance with the policies and procedures established
from time to time by Flotek with respect to Flotek's other executive and
managerial employees.
4.6 CAR ALLOWANCE: During the employment term, Flotek shall furnish to Bill
Jayroe an automobile owned or leased by Flotek. Within reasonable limits, or as
approved by the board, Bill Jayroe may select any car or truck he deems
appropriate. The terms and conditions of Bill Jayroe's use of such automobile
and the extent to which Flotek shall defray the costs of its operation shall be
generally in line with those pertaining to automobiles presently being
furnished other executives and managerial personnel of Flotek, with allowance
being made for Bill Jayroe's position as CEO. At such time as Flotek may choose
to dispose of or return any such vehicle, Flotek shall first offer Bill Jayroe
the opportunity to purchase said vehicle at its then fair market value.
4.7 LIFE INSURANCE: In addition to any standard coverage provided on a
company-wide basis, Flotek agrees to obtain a twenty (20) year level-term life
insurance policy on the life of Bill Jayroe in the face amount of One Million
Dollars ($1,000,000). Flotek further agrees to make the insurance policy
payable to the beneficiary or beneficiaries designated from time to time by
Bill Jayroe. Flotek agrees to pay all premiums on the policy during the term of
employment provided herein.
a) In the event Bill Jayroe terminates his employment with Flotek
for any reason whatsoever, Flotek shall have no further obligation to maintain
the policy in any manner or pay the premiums therefore. However, Flotek agrees,
upon Bill Jayroe's termination, that it will assign the ownership of said
policy to Bill Jayroe and allow Bill Jayroe to continue said policy in force
for so long as Bill Jayroe continues to pay the premiums.
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b) Bill Jayroe agrees to submit to a physical examination at any
time requested by Flotek for the purpose of Flotek's obtaining "key man" life
insurance on the life of Bill Jayroe for the benefit of Flotek; provided,
however, that Flotek shall bear the entire cost (if any) of such examination.
4.8 DISABILITY INSURANCE: In addition to, or as a supplement of, any
standard coverage provided on a company-wide basis, Flotek agrees to purchase
and maintain a disability insurance policy for Bill Jayroe which will, after
ninety (90) days of full or partial disability, provide him with an income of
not less than sixty percent (60%) of his then annual base salary.
ARTICLE V
EXCESSIVE COMPENSATION, INTANGIBLES, AND INDEMNIFICATION
5.1 REPAYMENT OF EXCESSIVE COMPENSATION: If any part of the salary or other
compensation paid by Flotek to Bill Jayroe, or of any amount paid by Flotek for
travel or entertainment expenses incurred by Bill Jayroe, is finally determined
not to be allowable as a federal or state income tax deduction to Flotek, the
part disallowed shall be repaid to Flotek by Bill Jayroe.
5.2 FLOTEK'S OWNERSHIP OF INTANGIBLES: All processes, inventions, patents,
copyrights, trademarks, and other intangible rights that may be conceived or
developed by Bill Jayroe, either alone or with others, during the term of Bill
Jayroe's employment, whether or not conceived or developed during Bill Jayroe's
working hours, and with respect to which the equipment, supplies, facilities,
or trade secret information of Flotek was used, or that relate at the time of
conception or reduction to practice of the invention to the business of the
Flotek or to Flotek's actual or demonstrably anticipated research and
development, or that result from any work performed by Bill Jayroe for Flotek,
shall be the sole property of Flotek. Bill Jayroe shall disclose to Flotek all
inventions conceived during the term of employment and for one year thereafter,
whether or not the property of Flotek under the terms of the preceding
sentence, provided that such disclosure shall be received by Flotek in
confidence. Bill Jayroe shall execute all documents, including patent
applications and assignments, required by Flotek to establish Flotek's rights
under this Section.
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5.3 INDEMNIFICATION BY FLOTEK: Flotek shall, to the maximum extent
permitted by law and its bylaws, indemnify and hold Bill Jayroe harmless for
any acts or decisions made in good faith while performing services for Flotek.
To the same extent, Flotek will pay, and subject to any legal limitations,
advance all expenses, including reasonable attorney fees and costs of court
approved settlements and any judgments, actually and necessarily incurred by
Bill Jayroe in connection with the defense of any action, suit or proceeding
and in connection with any appeal, which has been brought against Bill Jayroe
by reason of his service as an officer or agent of Flotek.
5.4 INDEMNIFICATION INSURANCE: Flotek shall use its best efforts to obtain
coverage for Bill Jayroe (provided it may be obtained at a reasonable cost)
under any liability insurance policy or policies now in force or hereafter
obtained during the term of this agreement that cover other officers of Flotek
having comparable or lesser status and responsibility.
ARTICLE VI
TERMINATION
6.1 TERMINATION FOR CAUSE: Flotek reserves the right to terminate this
agreement if Bill Jayroe willfully breaches or habitually neglects the duties
which he is required to perform under the terms of this agreement; or commits
such acts of dishonesty, fraud, misrepresentation or other act of moral
turpitude as would prevent the effective performance of his duties.
a) Flotek may at its option terminate this agreement for the reasons
stated in this section by giving written notice of termination to Bill Jayroe
without prejudice to any other remedy to which Flotek may be entitled either at
law, in equity, or under this agreement.
b) The notice of termination required by this section shall specify
the ground(s) for termination and shall be supported by a statement of all
relevant facts.
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c) Termination under this section shall be considered "for cause"
for the purposes of this agreement.
6.2 TERMINATION ON RESIGNATION: Bill Jayroe may terminate this agreement at
any time by giving Flotek six (6) months' prior written notice of such
resignation.
6.3 TERMINATION ON DISABILITY: If, at the end of any calendar month during
the initial term or any renewal term of this agreement, Bill Jayroe is and has
been for the three (3) consecutive full calendar months then ending, or for
fifty percent (50%) or more of the normal working days during the six (6)
consecutive full calendar months then ending, unable due to mental or physical
illness or injury to perform his duties under this agreement in his normal and
regular manner, this agreement may then be terminated.
a) Any termination pursuant to this paragraph shall be effected by
giving fifteen (15) days written notice of termination to Bill Jayroe.
Termination pursuant to this provision shall not prejudice Bill Jayroe's rights
to continued compensation pursuant to Article IV of this agreement.
b) Termination under this section shall not be considered "for
cause" for the purposes of this agreement.
6.4 TERMINATION ON DEATH: If Bill Jayroe dies during the initial term or
during any renewal term of this agreement, this agreement shall be terminated
on the last day of the calendar month of his death.
6.5 RIGHTS AND OBLIGATIONS AFTER NOTICE OF TERMINATION: If Bill Jayroe
gives notice of termination of this agreement under Section 6.2, or if it
becomes known that this agreement will otherwise terminate in accordance with
its provisions, Flotek may, in its sole discretion and subject to its other
obligations under this agreement, relieve Bill Jayroe of his duties under this
agreement and assign Bill Jayroe other reasonable duties and responsibilities
to be performed until the termination becomes effective.
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ARTICLE VII
BUSINESS COMBINATION OR DISSOLUTION
7.1 AGREEMENT TO SURVIVE COMBINATION OR DISSOLUTION: This agreement shall
not be terminated by Flotek's voluntary or involuntary dissolution or by any
merger in which Flotek is not the surviving or resulting corporation, or on any
transfer of all or substantially all of Flotek's assets. In the event of any
such merger or transfer of assets, the provisions of this agreement shall be
binding on and inure to the benefit of the surviving business entity or the
business entity to which such assets shall be transferred.
ARTICLE VIII
UNFAIR COMPETITION, CONFIDENTIALITY
8.1 UNFAIR COMPETITION PROHIBITED: Because of his employment by Flotek,
Bill Jayroe will have access to trade secrets and confidential information
about Flotek, its products, its customers, and its methods of doing business.
In consideration of his access to this information, Bill Jayroe agrees that for
a period of one (1) year after termination of his employment, he will not,
directly or indirectly, compete with Flotek in a similar or related oil field
services business, located in the State of Texas or doing business in the Gulf
of Mexico, which shall deal in the manufacture, distribution, or servicing of
products similar to, or in competition with, any of Flotek's then current
product lines and services.
a) Bill Jayroe understands and agrees that direct competition means
the design, development, production, promotion, or sale of products or services
competitive with those of Flotek. Indirect competition means employment by any
competitor or third party providing products competing with Flotek's products,
for whom Bill Jayroe will perform the same or similar function as he performs
for Flotek.
b) Bill Jayroe acknowledges and agrees that the sale or unauthorized
use or disclosure of any of Flotek's trade secrets or confidential information
obtained by Bill Jayroe during his employment with Flotek, including
information
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concerning "Inventions," "Proprietary Information," and "Rights," all as
defined below, would constitute unfair competition. Bill Jayroe promises and
agrees not to engage in any unfair competition with Flotek either during the
term or this agreement or at any time thereafter.
c) For purposes of the agreement, the terms "Inventions,"
Proprietary Information," and "Rights," shall have the following meanings:
1. "Inventions" means all discoveries, developments, designs,
improvements, inventions, formulas, software programs, processes, techniques,
know how, negative know how, data, research, techniques, and technical data
(whether or not patentable or registrable under patent, copyright or similar
statutes and including all rights to obtain, register, perfect, and enforce
those proprietary interests) that are related to or useful in Flotek's present
or future business or result from use of property owned, leased, or contracted
for by Flotek. "Inventions" shall also include anything that derives actual or
potential economic value from not being generally known to the public or to
other persons who can obtain economic value from its disclosure or use.
2. "Proprietary Information" means information (a) that is not known
by actual or potential competitors of Flotek or is generally unavailable to the
public, (b) that has been created, discovered, developed, or otherwise become
known to Flotek or in which property rights have been assigned or otherwise
conveyed to Flotek, and (c) that has material economic value or potential
material economic value to Flotek's present or future business. "Proprietary
Information" shall include trade secrets {as defined under Texas Penal Code
Section 31.05 (a) (4)} and all other discoveries, developments, designs,
improvements, inventions, formulas, software programs, processes, techniques,
know how, negative know how, data, research, techniques, technical data,
customer and supplier lists, and any modifications or enhancements of any of
the foregoing, and all program, marketing, sales, or other financial or
business information disclosed to Bill Jayroe by Flotek, either directly or
indirectly, in writing or orally or by drawings or observation, which has
actual or potential economic value to Flotek.
3. "Rights" means all patents, trademarks, service marks and
copyrights, and other rights pertaining to Proprietary Information, Inventions,
or both.
8.2 CUSTOMER INFORMATION AND SOLICITATION OF EMPLOYEES: In the course
of his employment, Bill Jayroe will have access to confidential
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records and data pertaining to Flotek's customers and to the relationship
between these customers and Flotek's account executives. Such information is
considered secret and is disclosed to Bill Jayroe in confidence. During his
employment by Flotek and for two (2) years after termination of that
employment, Bill Jayroe shall not directly or indirectly disclose or use any
such information except as required in the course of his employment by Flotek.
In addition, for a period of two (2) years after termination of his employment,
Bill Jayroe shall not induce or attempt to induce any account executive of
Flotek to discontinue representing Flotek for the purpose of representing any
competitor of Flotek.
ARTICLE IX
GENERAL AND CONCLUDING PROVISIONS
9.1 ARBITRATION: Any controversy or claim arising out of or relating to
this agreement, or breach of this agreement, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction. There shall be three arbitrators, one
to be chosen directly by each party at will, and the third arbitrator to be
selected by the two arbitrators so chosen. The prevailing party shall be
entitled to reasonable attorney's fees, costs, and necessary disbursements in
addition to any other relief to which that party may be entitled.
9.2 INJUNCTION: Bill Jayroe is obligated under this agreement to render
services of a special, unique, unusual, extraordinary, and intellectual
character, which give this agreement peculiar value. The loss of these services
cannot be reasonably or adequately compensated in damages in an action at law.
Accordingly, in addition to other remedies provided by law or this agreement,
Flotek shall have the right during the term or any renewal term of this
agreement to obtain injunctive relief against the breach of this contract by
Bill Jayroe or the performance of services elsewhere by Bill Jayroe, or both.
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9.3 ENTIRE AGREEMENT: This agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Bill Jayroe by Flotek and contains all of the covenants
and agreements between the parties with respect to that employment in any
manner whatsoever. Each party to this agreement acknowledges that no
representation, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of 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 on either party.
9.4 AMENDMENT AND MODIFICATION: This Agreement may be supplemented,
amended, or modified only by the mutual agreement of the parties. No
supplement, amendment, or modification of this Agreement shall be binding
unless it is in writing and signed by the party to be charged.
9.5 EFFECT OF WAIVER: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
9.6 CHOICE OF LAW: The formation, construction, and performance of this
agreement shall be construed in accordance with the laws of the State of Texas.
9.7 NOTICES: Any notice to Flotek required or permitted under this
agreement shall be given in writing to Flotek, either by personal service or by
registered or certified mail, postage prepaid, addressed to the Corporate
Secretary, at Flotek's then principal place of business. Any such notice to
Bill Jayroe shall be given in a like manner and, if mailed, shall be addressed
to Bill Jayroe at his home address then shown in Flotek's files. For the
purpose of determining compliance with any time limit in this agreement, a
notice shall be deemed to have been duly given (a) on the date of service, if
served personally on the party to whom notice is to be given, or (b) on the
second business day after mailing, if mailed to the party to whom the notice is
to be given in the manner provided in this section.
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9.8 SEVERABILITY: If any provision of this agreement is held invalid or
unenforceable, the remainder of this agreement shall nevertheless remain in
full force and effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other circumstances.
9.9 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on and shall
inure to the benefit of the parties to this Agreement and their respective
heirs, executors, assigns, and administrators.
9.10 VANCOUVER STOCK EXCHANGE APPROVAL: The obligations of Flotek are
subject to execution and delivery of formal documentation relating to the
Employment Agreement in a form acceptable to Flotek and its solicitors, acting
reasonably, and to the acceptance of such documentation for filing by the
Vancouver Stock Exchange (the "Exchange").
EXECUTION
This agreement is executed by the parties as of the day and year first
above written.
Flotek Industries, Inc.
By /s/ HECTOR DOMINGUEZ
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Hector Dominguez
Chairman of the Board
Employee
/s/ BILL JAYROE
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Bill Jayroe
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