EMPLOYMENT, CONFIDENTIALITY,
NON-SOLICITATION,
NON-COMPETITION, AND
NON-RECRUITMENT AGREEMENT
This Employment, Confidentiality,
Non-Solicitation, Non-Competition, and Non-Recruitment Agreement
(the "Agreement") is made and entered into on this 1
st day of May, 2008 between MAXIM TEP, INC., a
Texas corporation, its subsidiaries, affiliates, successors and
assigns (collectively referred to as the "Company"), and ROBERT D.
JOHNSON ("Executive"). In consideration of the mutual promises and
covenants contained in this Agreement, the parties agree as
follows:
1.
Agreement to
Employ. The Company desires to secure the services of Executive
as President and Chief Operating Officer, or such other title or
titles which may be mutually acceptable to Company and Executive.
The Company and Executive desire to enter into this Agreement to,
among other things, set forth the terms of Executive's employment
with the Company.
2.
Term of
Agreement. This Agreement shall be binding upon and
enforceable against the Company and Executive immediately when both
parties execute the Agreement. The Agreement's stated term and the
employment relationship created under it will begin on May 1, 2008,
and will remain in effect for a term of three (3) years, unless
earlier terminated in accordance with Agreement Section 9 (the
"Initial Employment Term"). This Agreement shall be automatically
renewed for successive thirty (30) day periods after the Initial
Employment Term (each a "Renewal Term"), unless
terminated by either party upon written notice ("Non-Renewal
Notice") given at least ten (10) days before the end of
the Initial Employment Term or any Renewal Term, or unless earlier
terminated in accordance with the above or Agreement Section 9. The
date Executive commences employment under this Agreement will be
referred to as the "Commencement Date" and the period
during which Executive is employed under this Agreement (including
any Renewal Term) will be referred to as the "Employment
Period."
3.
Surviving
Agreement Provisions. Notwithstanding any provision of this
Agreement to the contrary, the parties' respective rights and
obligations under Agreement Sections 6 and 7 shall survive any
termination or expiration of this Agreement or the termination of
Executive's employment for any reason whatsoever.
4.
Services to be
Provided by Executive.
(a) Position and Responsibilities.
Subject to the Agreement's terms, Executive agrees to serve as
President and Chief Operating Officer and Executive shall be
assigned responsibilities by the Company's CEO and/or Board of
Directors consistent with such position. The Company, in its sole
discretion, will determine whether Executive has satisfactorily
performed his employment duties during the Initial Employment Term,
any Renewal Term, or the Employment Period. During the Employment
Period, Executive will devote his undivided loyalty to the Company
and devote all of his skill, knowledge and working time (except for
vacation time as provided for in this Agreement and reasonable
absences for sickness or disability in accordance with policies
established from time-to-time by the
Company) such reasonable time as may be
necessary from time to time for personal and financial matters to
the extent they do not interfere with the conscientious performance
of his duties and responsibilities under the Agreement. Executive's
duties shall be performed at the Company's offices in The
Woodlands, Texas.
(b) Executive's Employment Representations.
Executive represents to the Company that he (i) will not serve
as a member of any board of directors, or as a trustee of, or in
any manner be affiliated with, any present or future agency or
organization (except for civic and not-for-profit organizations)
without the consent of the Company; (ii) will not, directly or
indirectly, have any interest in, or perform any services for, any
business competing with or similar in nature to the Company's
business. Executive further represents to the Company that (i) he
is not violating and will not violate any contractual, legal, or
fiduciary obligations or burdens to which Executive is subject to
by entering into this Agreement or providing services under the
Agreement's terms; and (ii) Executive is under no contractual,
legal, or fiduciary obligation or burden that reasonably may be
expected to interfere with Executive's ability to perform services
under the Agreement's terms.
5.
Compensation for Services. As compensation for the services Executive will
perform under this Agreement during the Employment Period, the
Company will pay Executive, and Executive shall accept as full
compensation, the following:
(a) Base Salary. Executive will
receive a base salary of $240,000 per year, less applicable payroll
deductions and tax withholdings ("Base Salary"), for all
services rendered by Executive under this Agreement. The Company
shall pay the Base Salary in accordance with the normal payroll
policies of the Company and subject to the applicable federal and
state laws concerning payment of wages. The payment of the Base
Salary shall be made only during the Employment Period, except as
set forth herein. The designation of Executive's compensation does
not constitute a guarantee of employment for any specific period of
time. Notwithstanding anything in this Section 5(a) or otherwise in
this Agreement to the contrary, Company shall have the option to
defer payment of all or some portion of Executive's Base Salary and
at the option of the Executive the Company shall either (i) pay
such accrued salary when and to the extent the Company has
available resources to do so or (ii) covert such accrued salary
into common stock of the Company at a conversion rate of $0.75 per
share.
(b) Initial Grant of Stock /
Options. Contemporaneously with the execution hereof, as a sign-on
bonus Executive shall be granted shares of the Company's common
stock and options as follows:
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Executive shall
be granted 1,148,312 restricted shares of the Company's common
stock and all such shares shall be fully vested as of the date
granted.
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Executive shall be granted options to purchase
574,156 shares of the Company's common stock at a price of $0.75
per share. Such options to purchase common stock shall be fully
vested as of the date granted.
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(c) Benefits and Expenses.
Executive shall be entitled to participate in the Company's benefit
plans for all employees generally, and for the Company's executive
employees, subject to the third-party benefit provider's
determination that Executive is eligible to participate in such
plans. The Company shall be entitled to change or terminate these
plans in its sole discretion. Executive acknowledges that an
additional cost may, if so determined by the Company, will be
incurred by Executive for adding a spouse and/or children to
Executive's benefit plan. Executive will comply with the Company's
policies regarding these benefits, including all Internal Revenue
Service rules and requirements. Subject to the requirements of the
business expense reimbursement policies and procedures of the
Company as in effect from time to time, the Company will reimburse
Executive for authorized, reasonable and authorized out-of-pocket
business expenses upon presentation of an itemized account and
appropriate supporting documentation, with the Company being the
sole decision-maker as to what constitutes a reasonable
out-of-pocket business expense.
(d) Vacations. During each
calendar year of the Employment Period, Executive shall be entitled
to five (5) weeks of vacation, during which his compensation
hereunder shall be paid in full. Such vacation shall be taken at
times consistent with the effective discharge of Executive's duties
and the reasonable business needs of the Company, and in accordance
with the Company's policies then in effect. Unless specifically
stated to the contrary in writing by the Company, unused vacations
in any year shall lapse and may not be carried forward and no cash
amount shall be paid for any unused vacation.
(e) Bonus. Executive shall be
entitled to annual or more frequent consideration for performance
bonuses under any plan of the Company currently in effect or may
come to be in effect.
(f) Severance. If Executive is
terminated without cause during the Employment Period, Executive
will receive a severance pay equal to three months of the Base
Salary in effect at the time.
6.
Confidential Information.
(a) The Company's Promise to Provide
Confidential Information. The Company agrees to provide Executive with
Confidential Information (defined below) or specialized training to
which Executive has not previously had access and of which
Executive has not had previous knowledge. This information (the
"Confidential Information") includes the Company's business,
proprietary, and technical information not known to others that
could have economic value to others if improperly disclosed.
Confidential Information also means any information disclosed to
Executive by the Company, either directly or indirectly, in
writing, orally or by inspection of tangible objects, including
without limitation, information and technical data contained in the
Company's manuals, booklets, publications and materials and
equipment of every kind and character, as well as documents,
prototypes, samples, prospects, inventions, trade secrets, product
ideas, technical information, know-how, processes, plans (including
without limitation, marketing plans and strategies),
specifications, designs, methods of operations, techniques
including pricing and marketing techniques and strategies,
technology, formulas, software including business software and
computer programs, improvements, financial