EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into
on February 28, 2005 (the "EFFECTIVE DATE") by and between Xxx Xxxxx
("EMPLOYEE") and GulfWest Energy Inc. (the "COMPANY").
WHEREAS, the Company desires to employ Employee as Chief Financial
Officer, and Employee desires to be employed by the Company in said capacity;
and
WHEREAS, each party desires to set forth in writing the terms and
conditions of their understandings and agreements.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the Company hereby agrees to employ Employee and
Employee hereby accepts such employment upon the terms and conditions set forth
in this Agreement:
ARTICLE 1
EMPLOYMENT; RESPONSIBILITIES; COMPENSATION
Section 1.1 EMPLOYMENT. Subject to ARTICLE 3, the Company hereby agrees
to employ Employee and Employee hereby agrees to be employed by the Company, in
accordance with this Agreement, for the period commencing as of the Effective
Date and ending on the third anniversary of the Effective Date ("INITIAL TERM");
PROVIDED, HOWEVER, that beginning on the day immediately preceding the third
anniversary of this Agreement and on the day immediately preceding each
anniversary of this Agreement thereafter, the Initial Term shall automatically
be extended one additional year unless either party gives written notice to the
other party between 90 and 120 days prior to the next anniversary of this
Agreement that it or he, as applicable, does not wish to extend this Agreement.
Employee's continued employment after the expiration of the Initial Term shall
be in accordance with and governed by this Agreement, unless modified by the
parties to this Agreement in writing.
Section 1.2 RESPONSIBILITIES; LOYALTY.
(a) Subject to the terms of this Agreement, Employee is
employed in the position of Chief Financial Officer, and shall perform
the functions and responsibilities of that position. Additional or
different duties may be assigned by the Company. Employee's position,
job descriptions, duties and responsibilities may be modified from time
to time in the sole discretion of the Company.
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(b) Employee shall devote the whole of Employee's professional
time, attention and energies to the performance of Employee's work
responsibilities and shall not, either directly or indirectly, alone or
in partnership, consult with, advise, work for or have any interest in
any other business or pursuit during Employee's employment under this
Agreement. During the term of Employee's employment with the Company,
it shall not be a violation of this Agreement for Employee to (i) serve
on corporate, civic or charitable boards or committees; (ii) deliver
lectures or fulfill speaking engagements; and (iii) subject to SECTION
2.3, manage personal investments, in each case, so long as such
activities do not materially interfere with the performance of
Employee's responsibilities as an employee of the Company in accordance
with this Agreement. Employee further agrees to comply with all
policies of the Company in effect from time to time, and to comply with
all laws, rules and regulations, including those applicable to the
Company
Section 1.3 COMPENSATION. As consideration for the services and
covenants described in this Agreement, the Company agrees to compensate Employee
in the following manner:
(a) The Company will pay Employee a base salary of $220,000
per year ("BASE SALARY").
(b) Employee shall be entitled to employment benefits
including holidays, leaves of absence, health insurance, dental
insurance, 401(k) plan participation, etc., if any, available to
employees of the Company generally, in accordance with any policies,
procedures or benefit plans adopted by the Company from time to time
during the existence of this Agreement. In addition, Employee shall be
entitled to vacation in accordance with the Company's vacation policy
as adopted from time to time. Employee's rights or those of Employee's
dependents under any such benefits policies or plans shall be governed
solely by the terms of such policies or plans. The Company reserves to
itself, or its designated administrators, exclusive authority and
discretion to determine all issues of eligibility, interpretation and
administration of each such benefit plan or policy. The Company's
employment benefits, and policies related thereto, are subject to
termination, modification or limitation at the Company's sole
discretion.
(c) Employee shall be eligible to receive, for each full
calendar year in which Employee is employed by the Company hereunder, a
bonus of 0% to 100% of Base Salary established by the Board of
Directors of the Company or a duly authorized committee thereof (the
"BOARD") in its sole discretion ("DISCRETIONARY Bonus"). However, for
the year ended December 31, 2005, Employee shall receive a bonus of
$110,000 payable on or before February 26, 2006.
(d) Payment of all compensation to Employee shall be made in
accordance with the terms of this Agreement, applicable state or
federal law, and applicable Company policies in effect from time to
time, including normal payroll practices, and shall be subject to all
applicable withholdings and taxes.
(e) So long as Employee has relocated by August 31, 2006,
payment of all costs and reasonable incidental expenses (not to exceed
$100,000) (i) associated with moving Employee's belongings from Miami,
Florida to the greater Houston, Texas metropolitan area and (ii) the
cost of selling Employee's residence in Miami, Florida.
(f) Payment of all reasonable and documented costs and
incidental expenses associated with Employee's commuting costs between
Miami, Florida and the greater Houston, Texas metropolitan area until
August 31, 2006, including documented reasonable travel and corporate
housing expenses.
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Section 1.4 BUSINESS EXPENSES. The Company shall reimburse Employee for
all business expenses that are reasonable and necessary and incurred by Employee
while performing his duties under this Agreement, upon presentation of expense
statements, receipts and/or vouchers or such other information and documentation
as the Company may reasonably require.
ARTICLE 2
CONFIDENTIAL INFORMATION; POST-EMPLOYMENT
OBLIGATIONS; COMPANY PROPERTY
Section 2.1 COMPANY PROPERTY. All written materials, records, data and
other documents prepared or possessed by Employee during Employee's employment
by the Company are the Company's property. All information, ideas, concepts,
improvements, discoveries and inventions that are conceived, made, developed or
acquired by Employee individually or in conjunction with others during
Employee's employment (whether during business hours and whether on Company's
premises or otherwise) that relate to Company business, products or services are
the Company's sole and exclusive property. All memoranda, notes, records, files,
correspondence, drawings, manuals, models, specifications, computer programs,
maps and all other documents, data or materials of any type embodying such
information, ideas, concepts, improvements, discoveries and inventions are
Company property. At the termination of Employee's employment with the Company
for any reason, Employee shall return all of the Company's documents, data or
other Company property to the Company.
Section 2.2 CONFIDENTIAL INFORMATION; NON-DISCLOSURE.
(a) Employee acknowledges that the business of the Company is
highly competitive and that the Company will provide Employee with
access to Confidential Information relating to the business of the
Company. Employee acknowledges that this Confidential Information
constitutes a valuable, special and unique asset used by the Company in
its business to obtain a competitive advantage over competitors.
Employee further acknowledges that protection of such Confidential
Information against unauthorized disclosure and use is of critical
importance to the Company in maintaining its competitive position.
Employee agrees that Employee will not, at any time during or after
Employee's employment with the Company, make any unauthorized
disclosure of any Confidential Information of the Company, or make any
use thereof, except in the carrying out of Employee's employment
responsibilities to the Company. Employee also agrees to preserve and
protect the confidentiality of third party Confidential Information to
the same extent, and on the same basis, as the Company's Confidential
Information.
(b) For purposes hereof, "CONFIDENTIAL INFORMATION" includes
business operations and methods, existing and proposed investments and
investment strategies, seismic, well-log and other geologic and oil and
gas operating and exploratory data, financial performance, compensation
arrangements and amounts (whether relating to the Company or to any of
its employees), contractual relationships, business partners and
relationships (including customers and suppliers), marketing strategies
and other confidential information that is regularly used in the
operation, technology and business dealings of the Company, regardless
of the medium in which any of the foregoing information is contained,
so long as such information is actually confidential and proprietary to
the Company.
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Section 2.3 NON-COMPETITION OBLIGATIONS.
(a) Employee acknowledges and agrees that as an employee and
representative of the Company, Employee will be responsible for
building and maintaining business relationships and goodwill with
current and future operating partners, investors, partners and
prospects on a personal level. Employee acknowledges and agrees that
this responsibility creates a special relationship of trust and
confidence between the Company, Employee and these persons or entities.
Employee also acknowledges that this creates a high risk and
opportunity for Employee to misappropriate these relationships and the
goodwill existing between the Company and such persons. Employee
acknowledges and agrees that it is fair and reasonable for the Company
to take steps to protect itself from the risk of such misappropriation.
(b) Employee acknowledges and agrees that, in exchange for his
agreement in SECTION 2.3(C) below, he will receive substantial,
valuable consideration from the Company immediately upon the execution
of this Agreement, including, (i) Confidential Information and access
to Confidential Information, (ii) compensation and other benefits and
(c) access to the Company's prospects.
(c) During the Non-Compete Term and provided that the Company
has made all severance payments provided for herein, Employee will not,
directly or indirectly, provide the same or substantially the same
services that he provides to the Company or any of its subsidiaries to
any Business Enterprise in the Market Area (as defined below). This
includes working as an agent, consultant, employee, officer, director,
consultant, partner or independent contractor or being a shareholder,
member, joint venturer or equity owner in, any such Business
Enterprise.
(d) For purposes of hereof:
(i) "BUSINESS ENTERPRISE" means any corporation,
partnership, limited liability company, sole proprietorship,
joint venture or other business association or entity engaged
in the business of exploring for, developing, operating or
acquiring oil and gas properties;
(ii) "MARKET AREA" means any hydrocarbon producing
geologic basins in which a material amount of oil, gas or
other mineral properties are owned, or otherwise held for the
benefit of, the Company; and
(iii) "NON-COMPETE TERM" means the period from the
date of Employee's employment to the date ending: (A) except
as contemplated by (B) or (C), 12 months following the date of
termination of Employee's employment by the Company without
Cause or by the Employee for Good Reason, (B) 24 months
following the date of termination of Employee's employment
with the Company (I) by the Company for Cause, or (II) if
Employee gives notice of his desire to accept the extension of
such period under SECTION 3.2 and Employee's employment has
been terminated by the Company without Cause or by Employee
for Good Reason, and (C) 12 months, if Employee's employment
is terminated by the Company without Cause or Employee
terminates his employment for Good Reason within 12 months
following a Change of Control.
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Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the Non-Compete Term,
Employee will not, either directly or indirectly, call on, solicit or induce any
other employee or officer of the Company or its affiliates with whom Employee
had contact with, knowledge of, or association with in the course of employment
with the Company to terminate his employment, and will not assist any other
person or entity in such a solicitation; provided, however, that with respect to
any employee or officer whose employment was terminated by the Company or its
affiliates, the foregoing restriction shall only apply for the six month period
commencing the date of such termination.
Section 2.5 ACKNOWLEDGEMENT. Employee acknowledges that the
Confidential Information provided to Employee pursuant to this Agreement, and
the Company's need to protect its goodwill, gives rise to the Company's interest
in these restrictive covenants, and that any limitations as to time, geographic
scope and scope of activity to be restrained defined herein are reasonable and
do not impose a greater restraint than is necessary to protect the goodwill or
other business interest of the Company. Employee further agrees that if, at some
later date, a court of competent jurisdiction determines that certain covenants
do not meet the criteria set forth in Tex. Bus. & Com. Code ss. 15.50(2), those
covenants shall be reformed by the court, pursuant to Tex. Bus. & Com. Code ss.
15.51(c), to the least extent necessary to make them enforceable. Employee
acknowledges and recognizes that the enforcement of any of the provisions in
this Agreement by the Company will not interfere with Employee's ability to
pursue a proper livelihood.
Section 2.6 EARLY RESOLUTION CONFERENCE. The parties are entering into
this Agreement with the express understanding that this Agreement is clear and
fully enforceable as written. If Employee ever decides later to contend that any
restriction on activities imposed by this Agreement no longer is enforceable as
written or does not apply to an activity in which Employee intends to engage,
Employee first will notify the Company in writing and meet with a company
representative at least 14 days before engaging in any activity that foreseeably
could fall within the questioned restriction to discuss resolution of such
claims.
Section 2.7 EQUITABLE OTHER RELIEF. Employee understands and agrees
that, if Employee breaches this Agreement, the Company will suffer immediate and
irreparable harm which cannot be accurately calculated in monetary damages.
Consequently, the Company shall be entitled to immediate injunctive relief,
either by temporary or permanent injunction, to prevent such violation. This
injunctive relief shall be in addition to any other legal or equitable relief to
which the Company would be entitled. If a bond is required to be posted for the
Company to secure an injunction or other equitable remedy, threatened or actual,
Employee agrees that the bond need not be more than a nominal sum. The Company
shall be entitled to recover its attorneys' fees and costs from Employee should
Employee breach this Agreement. In addition, in the event of an alleged breach
or violation of this Agreement, the time periods set forth above will be tolled
until such breach or violation has been cured.
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ARTICLE 3
TERMINATION OF EMPLOYMENT
Section 3.1 TERMINATION OF EMPLOYMENT.
(a) Employee's employment with Company shall be terminated (i)
immediately upon the death of Employee without further action by the
Company, (ii) upon Employee's Permanent Disability without further
action by the Company, (iii) by the Company for Cause, (iv) by Employee
for Good Reason, (v) by the Company without Cause or by Employee
without Good Reason PROVIDED that the terminating party must give at
least 30 days' advance written notice of such termination.
(b) For purposes hereof:
(i) "PERMANENT DISABILITY" shall mean Employee's
physical or mental incapacity to perform his usual duties with
such condition likely to remain continuously and permanently
as determined by the Board.
(ii) "GOOD REASON" shall mean (A) a material breach
by the Company of any provision of this Agreement that remains
uncorrected for 10 days following written notice of such
breach by Employee to the Company identifying the provision of
this Agreement that Employee determined has been breached; (B)
assignment by the Board to Employee of any duties that
materially and adversely alter the nature or status of
Employee's position, job descriptions, duties, title or
responsibilities from those of a Chief Financial Officer, or
eligibility for Company compensation plans; (C) requirement by
the Company for Employee to relocate anywhere other than the
greater Houston, Texas metropolitan area, except for required
travel on Company business to an extent substantially
consistent with Employee's obligations under this Agreement;
(D) reduction in Employee's Base Salary in effect at the
relevant time; or (E) exclusion of the Employee from
eligibility for the Company's bonus plan as described above.
(iii) "CAUSE" shall include (A) continued failure by
Employee to perform substantially Employee's duties and
responsibilities (other than a failure resulting from
Permanent Disability) that remains uncorrected for ten days
after receipt of appropriate written notice from the Board;
(B) engagement by Employee in willful, reckless or grossly
negligent misconduct that is materially injurious to Company
or any of its affiliates, monetarily or otherwise; (C) except
as provided by (D), the charging of Employee with a crime
involving moral turpitude or a felony, provided that if the
criminal charge is dismissed with prejudice or if Employee is
acquitted at trial or on appeal, Employee will be deemed to
have been terminated without Cause; (D) the charging of
Employee with an act of criminal fraud, misappropriation or
personal dishonesty, provided that if the criminal charge is
subsequently dismissed with prejudice or the Employee is
acquitted at trial or on appeal then the Employee will be
deemed to have been terminated without Cause; or (E) a
material breach by Employee of any provision of this Agreement
that remains uncorrected for 10 days following written notice
of such breach by the Company to Employee identifying the
provision of this Agreement that Company determined has been
breached.
(c) If Employee's employment is terminated under any of the
foregoing circumstances, all future compensation to which Employee is
otherwise entitled and all future benefits for which Employee is
eligible, other than that already earned but which is unpaid, shall
cease and terminate as of the date of termination, except as
specifically provided in this SECTION 3. Employee, or his estate in the
case of Employee's death, shall be entitled to pro rata Base Salary
through the date of such termination. Any other payments or benefits by
or on behalf of Company are limited to those which may be payable
pursuant to the terms of Company's employee benefit plans or required
by any applicable federal, state or local law.
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Section 3.2 SEVERANCE.
(a)
(i) If Employee's employment is terminated by the
Company without Cause or by Employee for Good Reason, and
subject to Employee's compliance with the conditions set forth
in SECTION 3.3, Employee shall, subject to the provisions of
this SECTION 3.2, be entitled to a severance payment
consisting of (A) a cash amount equal to the greater of (I)
two times the sum of the current calendar year's Base Salary
and the prior year's Discretionary Bonus, and (II) $600,000
and (B) health insurance benefits for two years from the
termination date. If no Discretionary Bonus was paid for the
year before the year in which termination occurs, Employee
shall be entitled to the greater of (A) the amount of the
Discretionary Bonus most recently paid to Employee and (B) the
Employee's target bonus (as set by the Board) for the calendar
year in which the termination occurs.
(ii) If the severance payment is to be made as result
of termination by the Company without Cause or by Employee for
Good Reason within 90 days before or 12 months after a Change
of Control, payment of the entire cash severance amount will
be made in a lump sum on the earlier of (i) the date on which
the Change of Control occurs and (ii) Employee's effective
date of termination. If the Company otherwise terminates
Employee without Cause or Employee terminates his employment
for Good Reason, Employee shall receive half of the cash
severance amount in a lump sum within 15 days of termination.
Employee shall not be entitled to the remainder of the cash
severance payment, or the second year of health insurance
benefits, unless Employee gives notice to the Company within
30 days of the conclusion of the 12 month period following his
termination date that he agrees to comply with SECTION 2.3(C)
and SECTION 2.4 for an additional 12 month period and, in
consideration therefor, desires to receive the remainder of
the severance payment and an extension of health insurance
benefits, in which event Employee shall be entitled to health
insurance benefits for an additional year and the remainder of
the cash severance payment, payable monthly over the second 12
month period following the date of Employee's termination.
(iii) Employee shall not be under any duty or
obligation to seek or accept other employment following a
termination of employment pursuant to which a severance
payment under this SECTION 3.2 is payable and the amounts due
Employee pursuant to this SECTION 3.2 shall not be reduced or
suspended if Employee accepts subsequent employment or earns
any amounts as a self-employed individual.
(b) If Employee's employment is terminated because of death or
Permanent Disability, Employee's family members covered by the Company
group health plan shall be reimbursed for group health plan
continuation coverage they elect to receive under the Consolidated
Omnibus Budget Reconciliation Act (COBRA) for up to 18 months, provided
a member of Employee's family provides timely notice to the health plan
administrator of Employee's death or Permanent Disability.
(c) Additional Payments.
(i) Anything in this Agreement to the contrary
notwithstanding, if it is determined that any payment, award,
benefit or distribution (or any acceleration of any payment,
award, benefit or distribution) by the Company or any entity
which effectuates a change in control (or other change in
ownership) to or for the benefit of Employee would be subject
to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "CODE") ("EXCESS
PARACHUTE PAYMENTS"), or any interest or penalties are
incurred by Employee with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "EXCISE TAX"),
then the Company shall pay to Employee an additional payment
(a "GROSS-UP PAYMENT") in an amount equal to such Excise Tax.
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(ii) Subject to clause (i), all determinations
required to be made under this Section, including whether and
when a Gross-Up Payment is required, the amount of such
Gross-Up Payment and the assumptions to be used in arriving at
such determinations, shall be made by a public accounting firm
that is selected by the Board (the "ACCOUNTING FIRM") which
shall provide detailed supporting calculations both to the
Company and Employee within 15 business days of the receipt of
notice from the Company or Employee that there has been a
Excess Parachute Payment, or such earlier time as is requested
by the Company or Employee (collectively, the
"DETERMINATION"). All fees and expenses of the Accounting Firm
shall be borne solely by the Company and the Company shall
enter into any agreement requested by the Accounting Firm in
connection with the performance of the services hereunder. The
Gross-Up Payment under this Section with respect to any Excess
Parachute Payments made to Employee shall be made no later
than 30 days following such Excess Parachute Payment.
(iii) As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the
Determination, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("UNDERPAYMENT") or Gross-Up Payments will be made by the
Company which should not have been made ("OVERPAYMENT"),
consistent with the calculations required to be made
hereunder. If Employee thereafter is required to make payment
of any Excise Tax or additional Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code) shall
be promptly paid by the Company to or for the benefit of
Employee. If the amount of the Gross-Up Payment exceeds the
amount necessary to reimburse Employee for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment
that has been made and any such Overpayment (together with
interest at the rate provided in Section 1274(b)(2) of the
Code) shall be promptly paid by Employee to or for the benefit
of the Company. Employee shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable
requests by the Company in connection with any contest or
disputes with the Internal Revenue Service in connection with
the Excise Tax.
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(d) For purposes hereof: "CHANGE OF CONTROL" means such time
as Oaktree Parties "beneficially own" (as defined under the Securities
Exchange Act of 1934, as amended) less than 10% of the Company's Common
Stock; "OAKTREE PARTY" means each of Oaktree Capital Management, LLC,
OCM Principal Opportunities Fund III, L.P., OCM Principal Opportunities
Fund IIIA, L.P., OCM GW Holdings, LLC and any of their respective
Permitted Transferees; and "PERMITTED TRANSFEREE" means as to any
person or entity, (i) any general partner or managing member of such
person or entity or (ii) any partnership, limited partnership, limited
liability company, corporation or other entity organized, formed or
incorporated and managed or controlled by such person or entity, its
general partner or managing member as a vehicle for purposes of making
investments; in each case so long as such Permitted Transferee is an
affiliate of Oaktree Capital Management LLC.
Section 3.3 CONDITIONS FOR SEVERANCE.
(a) The severance payment payable to Employee pursuant to
Section 3.2 shall be in consideration of Employee's continuing
obligations hereunder after such termination, including Employee's
obligations under ARTICLE 2.
(b) As a condition to the receipt of any severance payment,
Employee agrees to execute and deliver a severance and release
agreement, including a waiver of all claims except for any claims
relating to benefits due under the plans described in SECTION 1.3(B)
and any future amount which may be payable as a deferred bonus. The
severance and release agreement shall be in a form reasonably
acceptable to the Board; provided that such release shall not provide
for a release of Employee's right to indemnification under the
Company's organizational documents or directors and officers insurance
against third party claims. If Employee fails to execute and deliver
such release, Employee agrees that he shall not be entitled to receive
the severance payment described in SECTION 3.2.
(c) As a condition to the receipt of any severance payment,
Employee agrees that any and all claims and any and all causes of
action of any kind or character, including all claims and causes of
action arising out of Employee's employment with the Company, the
termination of such employment, any claims or demands against the
Company based upon Employee's employment for any monies other than
those specified in SECTION 3.2, and the actions by the officers,
directors, employees and agents of Company shall be resolved through a
dispute resolution process as provided in SECTION 4.11; PROVIDED,
HOWEVER, that any determination as to whether and as of what date
Employee has suffered a Permanent Disability are delegated to the Board
and any objection by Employee with any such determination shall be
limited to whether the Board reached such decision in good faith.
(d) Except as expressly provided herein, Employee shall not be
entitled to any other severance payment.
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Section 3.4 TRANSITION PERIOD. Upon termination of this Agreement, and
for 90 consecutive calendar days thereafter (the "TRANSITION PERIOD"), Employee
agrees to make himself available to assist the Company with transition projects
assigned to him by the Board. Employee will be paid at a reasonable, agreed upon
hourly rate for any work performed for the Company during the Transition Period.
Section 3.5 CONTINUING OBLIGATIONS OF EMPLOYEE. Termination of the
employment relationship does not terminate those obligations of Employee imposed
by ARTICLES 2 and SECTIONS 3.4 through 3.5, which are continuing obligations.
ARTICLE 4
MISCELLANEOUS
Section 4.1 NOTICES. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed by certified mail (return
receipt requested) or sent by overnight delivery service, or electronic mail, or
facsimile transmission (with electronic confirmation of successful transmission)
to the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice, in order of preference of the
recipient:
To the Company:
GulfWest Energy Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention:
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Employee:
Xxx Xxxxx
c/o GulfWest Energy Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Notice so given shall, in the case of mail, be deemed to be given and received
on the fifth calendar day after posting, in the case overnight delivery service,
on the date of actual delivery and, in the case of facsimile transmission, telex
or personal delivery, on the date of actual transmission or, as the case may be,
personal delivery. Any such notice or communication shall be delivered by hand
or by courier or sent certified or registered mail, return receipt requested,
postage prepaid, addressed as above (or to such other address as such party may
designate in a notice duly delivered as described above), and the third business
day after the actual date of mailing (or, if earlier, the actual date of
receipt) shall constitute the time at which notice was given.
Section 4.2 SEVERABILITY AND REFORMATION. If any one or more of the
terms, provisions, covenants or restrictions of this Agreement shall be
determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect, and the invalid, void or
unenforceable provisions shall be deemed severable. Moreover, if any one or more
of the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be reformed by limiting and reducing it to the minimum extent necessary,
so as to be enforceable to the extent compatible with the applicable law as it
shall then appear.
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Section 4.3 ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the heirs and legal representatives of Employee and the
permitted assigns and successors of the Company, but neither this Agreement nor
any rights or obligations hereunder shall be assignable or otherwise subject to
hypothecation by Employee (except by will or by operation of the laws of
intestate succession) or by the Company, except that the Company may assign this
Agreement to any successor (whether by merger, purchase or otherwise), if such
successor expressly agrees to assume the obligations of the Company hereunder.
Section 4.4 AMENDMENT. This Agreement may be amended only by writing
signed by Employee and by a duly authorized representative of the Company (other
than Employee).
Section 4.5 ASSISTANCE IN LITIGATION. Employee shall reasonably
cooperate with the Company in the defense or prosecution of any claims or
actions now in existence or that may be brought in the future against or on
behalf of the Company that relate to events or occurrences that transpired while
Employee was employed by the Company. Employee's cooperation in connection with
such claims or actions shall include being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Company
at mutually convenient times. Employee also shall cooperate fully with the
Company in connection with any investigation or review by any federal, state or
local regulatory authority as any such investigation or review relates, to
events or occurrences that transpired while Employee was employed by the
Company. The Company will pay Employee an agreed upon reasonably hourly rate for
Employee's cooperation pursuant to this Section.
Section 4.6 BENEFICIARIES; REFERENCES. Employee shall be entitled to
select (and change, to the extent permitted under any applicable law) a
beneficiary or beneficiaries to receive any compensation or benefit payable
hereunder following Employee's death, and may change such election, in either
case by giving the Company written notice thereof. In the event of Employee's
death or a judicial determination of his incompetence, reference in this
Agreement to Employee shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative. Any reference to the
masculine gender in this Agreement shall include, where appropriate, the
feminine.
Section 4.7 USE OF NAME; LIKENESS AND BIOGRAPHY. The Company may use,
publish and broadcast, and to authorize others to do so, the name, approved
likeness and approved biographical material of Employee to advertise, publicize
and promote the business of the Company and its affiliates, but not for the
purposes of direct endorsement without Employee's consent. This right shall
terminate upon the termination of this Agreement. An "approved likeness" and
"approved biographical material" shall be, respectively, any photograph or other
depiction of Employee, or any biographical information or life story concerning
the professional career of Employee.
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Section 4.8 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED,
INTERPRETED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REFERENCE TO RULES RELATING TO CONFLICTS OF LAW.
Section 4.9 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes in all respects any prior or other agreement or
understanding, written or oral, between the Company or any affiliate of the
Company and Employee with respect to such subject matter.
Section 4.10 COUNTERPARTS; NO ELECTRONIC SIGNATURES. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original.
For purposes of determining whether a party has signed this Agreement or any
document contemplated hereby or any amendment or waiver hereof, only a
handwritten signature on a paper document or a facsimile transmission of a
handwritten original signature will constitute a signature, notwithstanding any
law relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
Section 4.11 ARBITRATION. Other than as provided in ARTICLE 3, the
parties agree that any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by arbitration administered
by the American Arbitration Association ("AAA") under its Commercial Arbitration
Rules. All disputes shall be resolved by one arbitrator within 120 days of the
date arbitration is initiated. The arbitrator will have the authority to award
the same remedies, damages and costs that a court could award, and will have the
additional authority to award those remedies set forth in ARTICLE 3. The
arbitrator shall issue a reasoned award explaining the decision, the reasons for
the decision and any damages awarded, including those set forth in ARTICLE 3,
where the arbitrator finds Employee violated ARTICLE 3. The arbitrator's
decision will be final and binding. The judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration proceedings, any record of the same, and the award shall be
considered Confidential Information under this Agreement. This provision can be
enforced under the Federal Arbitration Act.
Section 4.12 NON-WAIVER. The failure by either party to insist upon the
performance of any one or more terms, covenants or conditions of this Agreement
shall not be construed as a waiver or relinquishment of any right granted
hereunder or of any future performance of any such term, covenant or condition,
and the obligation of either party with respect hereto shall continue in full
force and effect, unless such waiver shall be in writing signed by the Company
(other than Employee) and Employee.
Section 4.13 ANNOUNCEMENT. The Company may make public announcements
concerning the execution of this Agreement and the terms contained herein, at
the Company's discretion.
Section 4.14 CONSTRUCTION. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed in accordance to its fair meaning and not
strictly for or against the Company or Employee. The words "include,"
"includes," and "including" will be deemed to be followed by "without
limitation."
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Section 4.15 RIGHT TO INSURE. The Company shall have the right to
secure, in its own name or otherwise, and at its own expense, life, health,
accident or other insurance covering Employee, and Employee shall have no right,
title or interest in and to such insurance. Employee shall assist the Company in
procuring such insurance by submitting to examinations and by signing such
applications and other instruments as may be required by the insurance carriers
to which application is made for any such insurance.
Section 4.16 NO INCONSISTENT OBLIGATIONS. Employee represents and
warrants that to his knowledge he has no obligations, legal, in contract or
otherwise, inconsistent with the terms of this Agreement or with his undertaking
employment with the Company to perform the duties described herein. Employee
will not disclose to the Company, or use or induce the Company to use, any
confidential, proprietary or trade secret information of others. Employee
represents and warrants that to his knowledge he has returned all property and
confidential information belonging to all prior employers, if he is obligated to
do so.
Section 4.17 VOLUNTARY AGREEMENT. Each party to this Agreement has read
and fully understands the terms and provisions hereof, has reviewed this
Agreement with legal counsel, has executed this Agreement based upon such
party's own judgment and advice of counsel, and knowingly, voluntarily, and
without duress, agrees to all of the terms set forth in this Agreement. The
parties have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties and no
presumption or burden of proof will arise favoring or disfavoring any party
because of authorship of any provision of this Agreement. Except as expressly
set forth in this Agreement, neither the parties nor their affiliates, advisors
and/or their attorneys have made any representation or warranty, express or
implied, at law or in equity with respect of the subject matter contained
herein. Without limiting the generality of the previous sentence, the Company,
its affiliates, advisors and/or attorneys have made no representation or
warranty to Employee concerning the state or federal tax consequences to
Employee regarding the transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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Signature Page to Xxxxx Employment Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above:
GULFWEST ENERGY INC.
By:/s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Chief Executive Officer and President
/S/ XXX XXXXX
--------------------------------------------
Xxx Xxxxx
Signature Page to Xxxxx Employment Agreement
