EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of February 1,
2002, by Jens' Oil Field Service, Inc., a Texas corporation (the "Employer"),
and Jens H. Mortensen, Jr., an individual resident in McAllen, Texas (the
"Employee").
R E C I T A L S
Concurrently with the execution and delivery of this Agreement,
Allis-Chalmers Corporation, a Delaware corporation ("Buyer"), is purchasing from
the Employee eighty-one percent (81%) of the issued shares of stock of Employer,
pursuant to a Stock Purchase Agreement dated February 1, 2002 between the
Employee and Buyer (the "Stock Purchase Agreement"). The Employer desires the
Employee's continued employment, and the Employee wishes to accept such
continued employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"Agreement"--this Employment Agreement.
"Basic Compensation"--Salary and Benefits.
"Benefits"--as defined in Section 3.1(b).
"Board of Directors"--the board of directors of the Employer.
"Confidential Information"--any and all:
(a) trade secrets concerning the business and affairs of the
Employer (not including trade secrets of Tex-Mex Rental & Supply
Company, a Texas corporation which is owned by Employee), product
specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current
and planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs
(including object code and source code), computer software and database
technologies, systems, structures, and architectures (and related
formulae, compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information, and any other information, however documented, that is a
trade secret within the meaning of the law of the State of Texas; and
(b) information concerning the business and affairs of the
Employer (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented and
not including such information on behalf of Tex-Mex owned by Employee;
and
246
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in whole
or in part, on any information included in the foregoing.
"Disability"--as defined in Section 6.2.
"Effective Date"--the date stated in the first paragraph of the
Agreement.
"Employee Invention"--any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial
design (whether registerable or not), any mask work, however fixed or
encoded, that is suitable to be fixed, embedded or programmed in a
semiconductor product (whether recordable or not), and any work of
authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Employee, either solely or in
conjunction with others, during the Employment Period, or a period that
includes a portion of the Employment Period, that relates in any way to,
or is useful in any manner in, the business then being conducted or
proposed to be conducted by the Employer, and any such item created by
the Employee, either solely or in conjunction with others, following
termination of the Employee's employment with the Employer, that is
based upon or uses Confidential Information. The term "Employee
Invention" includes the inventions, techniques, and specially
commissioned works, but does not include the "New Deal Elevator and
Slips" and modifications thereto.
"Employment Period"--the term of the Employee's employment under this
Agreement.
"Fiscal Year"--the Employer's fiscal year, as it exists on the Effective
Date or as changed from time to time.
"For Cause"--as defined in Section 6.3.
"Non-competition Agreement"--as defined in Section 6.3.
"Person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization, or governmental
body.
"Post-Employment Period"--as defined in Section 8.2.
"Proprietary Items"--as defined in Section 7.2(a)(iv).
"Salary"--as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Employee, and the Employee hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of the Employee's
employment under this Agreement will be three years, beginning on the Effective
Date and ending on the third anniversary of the Effective Date.
2.3 DUTIES
247
The Employee will have such duties as are assigned or delegated to the
Employee by the Board of Directors or Chief Executive Officer, and will
initially serve as President of the Employer. The Employee will devote his
entire business time, attention, skill, and energy exclusively to the business
of the Employer, will use his best efforts to promote the success of the
Employer's business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Employer. Nothing in this Section 2.3,
however, will prevent the Employee from engaging in additional activities in
connection with personal investments and community affairs that are not
inconsistent with the Employee's duties under this Agreement, including nominal
time or administrative hours spent on behalf of Tex-Mex Rental & Supply Company
("Tex-Mex") which is owned by Employee and his family. If the Employee is
elected as a director of the Employer or as a director or officer of any of its
affiliates, such company will maintain appropriate liability insurance, and will
provide Employee a copy of such Policy. In addition, Employer will not require
Employee to relocate outside of Hidalgo County, Texas.
3. COMPENSATION
3.1 BASIC COMPENSATION
(a) Salary. The Employee will be paid an annual salary of $150,000.00, subject
to adjustment as provided below (the "Salary"), which will be payable in equal
periodic installments according to the Employer's customary payroll practices,
but no less frequently than monthly and will be made on a timely basis. Failure
to make timely payment of Salary unless cured within fifteen (15) days of
written notice by Employee, shall be a breach of this Agreement. The Salary will
be reviewed by the Board of Directors not less frequently than annually, and may
be adjusted upward in the sole discretion of the Board of Directors, but in no
event will the Salary be less than $150,000.00 per year.
(b) Benefits. The Employee will, during the Employment Period, be permitted to
participate in such pension, profit sharing, bonus, life insurance,
hospitalization, major medical, and other employee benefit plans of the Employer
that may be in effect from time to time, to the extent the Employee is eligible
under the terms of those plans (collectively, the "Benefits"). Employer will
maintain at least the same level and type of medical and liability insurance as
Employer has in the past, and will continue such coverage for Employee for at
least ninety (90) days following termination of this Agreement.
4. FACILITIES AND EXPENSES
4.1 GENERAL
The Employer will furnish the Employee office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Employee's duties under this
Agreement. The Employer will pay the Employee's dues in such professional
societies and organizations as the Chairman of the Board or Chief Executive
Officer deems appropriate, and will pay on behalf of the Employee (or reimburse
the Employee for) reasonable expenses incurred by the Employee at the request
of, or on behalf of, the Employer in the performance of the Employee's duties
pursuant to this Agreement, and in accordance with the Employer's employment
policies, including reasonable expenses incurred by the Employee in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. The Employee must file
expense reports with respect to such expenses in accordance with the Employer's
policies.
4.2 AUTOMOBILE
The Employer will furnish the Employee with an appropriate automobile
similar to or the same as currently used which may be used by Employee for
personal use without reimbursement to Employer, except for fuel costs incurred
in such use. The Employer will maintain liability insurance on any automobile
used in connection with the
248
Employer's business. The Employee must file expense reports with respect to such
automobile in accordance with the Employer's policies.
5. VACATIONS AND HOLIDAYS
The Employee will be entitled to four weeks' paid vacation each Fiscal
Year in accordance with the vacation policies of the Employer in effect for its
Employee officers from time to time. Vacation must be taken by the Employee at
such time or times as approved by the Chairman of the Board or Chief Executive
Officer, approval which shall not be unreasonably withheld. The Employee will
also be entitled to the paid holidays set forth in the Employer's policies of at
least New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day
and Christmas Day. Vacation days and holidays during any Fiscal Year that are
not used by the Employee during such Fiscal Year may not be used in any
subsequent Fiscal Year but shall be paid to Employee.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period, the Employee's Basic Compensation, and any and
all other rights of the Employee under this Agreement or otherwise as an
employee of the Employer will terminate (except as otherwise provided in this
Section 6):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in Section 6.2) immediately
upon notice from either party to the other; or
(c) for cause (as defined in Section 6.3), immediately upon notice from the
Employer to the Employee, or at such later time as such notice may specify.
Employee may terminate this Agreement upon forty-five (45) days written
notice with opportunity to cure for failure by Employer to pay timely salary and
provide the Benefits described hereunder.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, the Employee will be deemed to have a
"disability" if, for physical or mental reasons, the Employee is unable to
perform the essential functions of the Employee's duties under this Agreement
for 120 consecutive days, or 180 days during any twelvemonth period, as
determined in accordance with this Section 6.2. The disability of the Employee
will be determined by a medical doctor selected by written agreement of the
Employer and the Employee upon the request of either party by notice to the
other. If the Employer and the Employee cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Employee has a disability. The determination of the medical doctor selected
under this Section 6.2 will be binding on both parties. The Employee must submit
to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 6.2, and the Employee hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Employee is not legally competent, the
Employee's legal guardian or duly authorized attorney-in-fact will act in the
Employee's stead, under this Section 6.2, for the purposes of submitting the
Employee to the examinations, and providing the authorization of disclosure,
required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause" means: (a) the
Employee's breach of this Agreement or the Non-Competition Agreement entered
into on the date hereof between the Buyer and the Employee (the "Non-Competition
Agreement"); (b) the Employee's failure to adhere to any written Employer policy
if the Employee has
249
been given a reasonable opportunity to comply with such policy or cure his
failure to comply (which reasonable opportunity must be granted during the
ten-day period preceding termination of this Agreement); (c) the appropriation
(or attempted appropriation) of a material business opportunity of the Employer,
including attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of the Employer; (d) the
misappropriation (or attempted misappropriation) of any of the Employer's funds
or property; or (e) the conviction of, the indictment for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest with respect
to, a felony, the equivalent thereof, or any other crime with respect to which
imprisonment is a possible punishment.
6.4 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Employee (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.4, and in lieu of all other amounts and in settlement and complete
release of all claims the Employee may have against the Employer. For purposes
of this Section 6.4, the Employee's designated beneficiary will be such
individual beneficiary or trust, located at such address, as the Employee may
designate by notice to the Employer from time to time or, if the Employee fails
to give notice to the Employer of such a beneficiary, the Employee's estate.
Notwithstanding the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Employee, to
determine whether any beneficiary designated by the Employee is alive or to
ascertain the address of any such beneficiary, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Employee's personal representative (or the trustee of a trust established by the
Employee) is duly authorized to act in that capacity, or to locate or attempt to
locate any beneficiary, personal representative, or trustee.
(a) Termination by the Employer for Cause. If the Employer terminates this
Agreement for cause, the Employee will be entitled to receive his Salary, plus
accrued vacation pay only through the date such termination is effective.
(b) Termination upon Disability. If this Agreement is terminated by either party
as a result of the Employee's disability, as determined under Section 6.2, the
Employer will pay the Employee his Salary, plus accrued vacation pay, through
the remainder of the calendar month during which such termination is effective
and for the lesser of (i) three consecutive months thereafter, or (ii) the
period until disability insurance benefits commence under the disability
insurance coverage furnished by the Employer to the Employee.
(c) Termination upon Death. If this Agreement is terminated because of the
Employee's death, the Employee will be entitled to receive his Salary, plus
accrued vacation pay, through the end of the calendar month in which his death
occurs, for the Fiscal Year during which his death occurs, prorated through the
end of the calendar month during which his death occurs.
(d) Benefits. The Employee's accrual of, or participation in plans providing
for, the Benefits will cease at the effective date of the termination of this
Agreement, and the Employee will be entitled to accrued Benefits pursuant to
such plans only as provided in such plans.
(e) Termination on Default. If this Agreement is terminated by Employee due to a
breach by the Employer of this Agreement, or as a result of a default by the
Buyer under the Note, the Non-Competition Agreement, the Subordination Agreement
or the Security Agreement, then all amounts due under this Agreement shall be
immediately due and payable through the third anniversary of the Effective Date
including accrued vacation pay, and the Company shall continue to provide
Employee all medical and health insurance previously provided through the third
anniversary of this Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
250
7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that (a) during the Employment Period and as a
part of his employment, the Employee will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Employee
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; (d) the Buyer has required that the Employee make the covenants in
this Section 7 as a condition to its purchase of the Employer's stock; and (e)
the provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide the
Employer with exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EMPLOYEE
In consideration of the compensation and benefits to be paid or provided
to the Employee by the Employer under this Agreement, the Employee covenants as
follows:
(a) Confidentiality.
(i) During and following the Employment Period, the Employee will
hold in confidence the Confidential Information and will not disclose it
to any person except with the specific prior written consent of the
Employer or except as otherwise expressly permitted by the terms of this
Agreement.
(ii) Any trade secrets of the Employer will be entitled to all of
the protections and benefits under the law of the State of Texas, and
any other applicable law. If any information that the Employer deems to
be a trade secret is found by a court of competent jurisdiction not to
be a trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of
this Agreement. The Employee hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post
a bond or other security.
(iii) None of the foregoing obligations and restrictions applies
to any part of the Confidential Information that the Employee
demonstrates was or became generally available to the public other than
as a result of a disclosure by the Employee.
(iv) The Employee will not remove from the Employer's premises
(except to the extent such removal is for purposes of the performance of
the Employee's duties at home or while traveling, or except as otherwise
specifically authorized by the Employer) any document, record, notebook,
plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary
Items"). The Employee recognizes that, as between the Employer and the
Employee, all of the Proprietary Items, whether or not developed by the
Employee, are the exclusive property of the Employer. Upon termination
of this Agreement by either party, or upon the request of the Employer
during the Employment Period, the Employee will return to the Employer
all of the Proprietary Items in the Employee's possession or subject to
the Employee's control, and the Employee shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
251
(b) Employee Inventions. Each Employee Invention will belong exclusively to the
Employer. The Employee acknowledges that all of the Employee's writing, works of
authorship and other Employee Inventions are works made for hire and the
property of the Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is determined that any
such works are not works made for hire, the Employee hereby assigns to the
Employer all of the Employee's right, title, and interest, including all rights
of copyright, patent, and other intellectual property rights, to or in such
Employee Inventions. Employee and the Company acknowledge that "The New Deal
Elevator and Slips" and modifications thereto are inventions that are not owned
by or works for hire of the Company. The Employee covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional compensation,
all of the Employee's right to the Employee Invention for the United
States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order to
apply for and obtain patents or other registrations with respect to any
Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support of
the Employer's rights to any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES
The Employee recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Employee, and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
8. GENERAL PROVISIONS
8.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Employee acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement (including
any provision of Section 7) would be irreparable and that an award of monetary
damages to the Employer for such a breach would be an inadequate remedy.
Consequently, the Employer will have the right, in addition to any other rights
it may have, to obtain injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement, and
the Employer will not be obligated to post bond or other security in seeking
such relief. In the event of any dispute involving this Agreement, the
prevailing party shall be entitled to attorney's fees, expenses, court costs and
expert fees from the non-prevailing party.
8.2 COVENANTS OF SECTION 7 IS ESSENTIAL
AND INDEPENDENT COVENANTS
252
The covenants by the Employee in Section 7 are essential elements of
this Agreement, and without the Employee's agreement to comply with such
covenants the Buyer would not have purchased the Employee's stock under the
Stock Purchase Agreement and the Employer would not have entered into this
Agreement or employed or continued the employment of the Employee. The Employer
and the Employee have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Employee's covenants in Section 7 are independent covenants and the
existence of any claim by the Employee against the Employer under this Agreement
or otherwise, or against the Buyer, will not excuse the Employee's breach of any
covenant in Section 7.
If the Employee's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Employee in Section 7.
8.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE
The Employee represents and warrants to the Employer that the execution
and delivery by the Employee of this Agreement do not, and the performance by
the Employee of the Employee's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Employee; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Employee is a party or by which the Employee is or may be
bound.
8.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of the Employer hereunder, including its obligation to
pay the compensation provided for herein, are contingent upon the Employee's
performance of the Employee's obligations hereunder.
8.5 BINDING ARBITRATION
(a) On the request of any party hereto, whether made before or after the
institution of any legal proceeding, any action, dispute, claim or controversy
of any kind now existing or hereafter arising between any of the parties hereto
in any way arising out of, pertaining to or in connection with this Agreement (a
"Dispute) shall be resolved by binding arbitration in accordance with the terms
hereof. In the event of any Dispute, any party may serve written notice of such
Dispute on any other party and each party to such Dispute shall undertake in
good faith to resolve such Dispute. If the parties cannot agree to resolve such
Dispute within fifteen (15) days after such written notice, any party to such
Dispute may, by further written notice (the "Arbitration Notice") to the other
party, commence an arbitration proceeding by bringing the Dispute to one
arbitrator or to an arbitration panel selected as provided below.
(b) Arbitrators. Dispute shall be decided by a single arbitrator, unless the
parties cannot agree within ten (10) days on a single arbitrator, in which case
they shall choose an arbitration panel comprised of three arbitrators, one
arbitrator to be selected by the party who sent the Arbitration Notice, a second
arbitrator to be selected by the other adverse party, and the third arbitrator
(the "Independent Arbitrator") who will be the Chairman of the arbitration
panel, to be appointed by the first two arbitrators. In the event the first two
arbitrators fail to agree on the appointment of the Independent Arbitrator
within fifteen (15) days, the Independent Arbitrator shall be appointed on
request of any party hereto by any state district court judge in Hidalgo or
Harris County, Texas. Whether there is one arbitrator or a panel, each
arbitrator shall be a third party and a business person knowledgeable in the
subject matter of the Dispute. In the
253
event that any arbitrator shall resign, be unable or otherwise fail to perform
his or her duties, each party shall immediately notify the other parties of such
resignation, inability or failure, and a replacement shall immediately be
selected by the party who selected such arbitrator in the instance, or, if the
arbitrator to be replaced is the Independent Arbitrator, then the parties shall
attempt in good faith to appoint a mutually agreeable replacement Independent
Arbitrator. If the parties fail to agree on such replacement within fifteen (15)
days, either party may request any state district court judge in Hidalgo or
Harris County, Texas to appoint such replacement Independent Arbitrator.
(c) Conduct of Arbitration. The arbitrator or the arbitration panel shall
conduct the arbitration in accordance with the Rules of Arbitration of the
American Arbitration Association then in effect, except to the extent such rules
are inconsistent with the provisions of this Section 13. The parties shall
prepare in writing a statement of their positions, together with counterclaims,
with supporting facts, data, and affidavits, if any, and shall submit such
statement to the arbitrator, or arbitration panel within fifteen (15) days after
selection, but, in any event, within forty-five (45) days after service of the
Arbitration Notice. The arbitrator or the arbitration panel shall give all
parties the opportunity to make an oral presentation to the arbitrator or the
arbitration panel in the presence of the other party, if either party so
requests. The parties shall have, for a period of one-hundred twenty (120) days
after service of the Arbitration Notice (the "Discovery Period"), all rights of
discovery provided by the Texas Rules of Civil Procedures then obtaining,
except, unless otherwise agreed, that all responses to discovery requests shall
be served within ten (10) days of such discovery request and no discovery
request may be served after the date ten (10) days before the termination of the
Discovery Period. The arbitrator or the arbitration panel shall assume exclusive
jurisdiction over the Dispute, may order interim equitable relief (which shall
be specifically enforceable as if it were a final Award, as hereinafter
defined), and shall be required to make a final binding determination (the
"Award"). The Award shall not be subject to appeal to or review by any court or
administrative body except as set forth in Section 10(a) of the Federal
Arbitration Act, codified as 9 U.S.C.A. Section 10(a) (West Supp. 1997). The
Award shall determine (i) whether each party's obligations under this Agreement
were met, and (ii) what damages or remedies (which may include final equitable
reliefs) are due under the terms of this Agreement. In addition, the arbitrator
or the arbitration panel shall award recovery of all costs and fees of
arbitration to the prevailing party. The agreement to arbitrate contained in
this Section 13 shall be specifically enforceable under the prevailing
arbitration law, and shall survive termination of this Agreement. Judgment upon
the Award rendered by the arbitrator or the arbitration panel may be entered in
accordance with applicable law in any court having jurisdiction therefor.
Arbitration shall, unless all the parties otherwise agree in writing, take place
in Houston, Texas.
8.6 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
254
8.7 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Employee under this Agreement,
being personal, may not be delegated.
8.8 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nation-ally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer: Jens' Oil Field Services, Inc.
P. O. Box 1176
Edinburg, Texas 78540-1176
Attn: President
Facsimile No: (956) 381-1151
with a copy to: Wilson, Cribbs, Goren & Flaum, P.C.
440 Louisiana, Suite 2200
Houston, TX 77002
Attn: Theodore F. Pound III
Facsimile No: (713) 229-8824
If to the Employee: Jens H. Mortensen, Jr.
12301 Rooth Road
McAllen, Texas 78504
255
With a copy to: J. W. Dyer
Dyer & Associates
3700 North Tenth Street, Suite 105
McAllen, Texas 78501
Facsimile No: (956) 686-6601
8.10 ENTIRE AGREEMENT; AMENDMENTS
This Agreement, the Stock Purchase Agreement, and the documents executed
in connection with the Stock Purchase Agreement, contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended
orally, but only by an agreement in writing signed by the parties hereto.
8.11 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
8.12 JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against either of the
parties in the courts of Hidalgo County or Harris County, Texas, or, if it has
or can acquire jurisdiction, in the United States District Court for the
Southern District of Texas, and each of the parties consents to the jurisdiction
of such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.
8.13 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
8.14 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
8.15 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
256
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER: JENS' OIL FIELD SERVICE, INC.
By:_________________________________
Munawar H. Hidayatallah, Chairman
And Chief Executive Officer
EMPLOYEE: ____________________________________
257