Exhibit 10(b)
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into this 20th day
of April, 2000 (the "Effective Date") by and among Xxxxxx Xxxxxx,
Inc., a Kansas corporation ("KMI"), Kinder Xxxxxx X.X., Inc., a
Delaware corporation ("KMGP"), and Xxxxxxx X. Xxxxxx
("Employee").
WHEREAS, the parties acknowledge wherever KMI is used in
this Agreement it is intended to refer to both KMI and KMGP;
WHEREAS, the parties acknowledge Employee is an officer of
KMI and KMGP;
WHEREAS, the parties wish to provide for certain conditions
of employment as negotiated relating to continued employment;
WHEREAS, the parties negotiated certain terms to extend past
employment, including, without limitation, terms relating to a
non-compete obligation;
WHEREAS, Employee agrees that ample consideration was
provided to ensure enforcement of certain provisions and the
waiver of certain rights;
NOW THEREFORE, in consideration of the foregoing premises
and the following promises, the parties agree as follows:
1. Intent of the Parties. It is the intent of the parties that
Employee's rights under the Xxxxxx Xxxxxx Energy Partners, L.P.
Executive Compensation Plan shall be waived and forfeited upon
execution of this Agreement.
2. Definitions.
(a) Termination for Cause. "Termination for Cause" shall mean
termination of Employee's employment by KMI because of
(i) Employee's conviction of a felony which in the reasonable,
good faith opinion of the Compensation Committee of the Board of
Directors of Xxxxxx Xxxxxx, Inc. would have an adverse impact on
the reputation or business of KMI or any of its affiliates; (ii)
subject to the notice provision's set forth below in this Section
2(a), Employee's willful refusal without proper legal cause to
perform his duties and responsibilities; (iii) Employee's
willfully engaging in conduct which Employee has reason to know
is materially injurious to KMI or any of its affiliates; or (iv)
subject to the notice and counseling provisions set forth below
in this Section 2(a), failure to meet clearly established and
reasonable performance objectives or standards established by KMI
for Employee's job position. Such termination shall be effected
by notice thereof delivered by KMI to Employee and shall be
effective as of the date of such notice; provided, however, that
if such termination is pursuant to clause (ii) above and within
seven (7) days following the date of such notice Employee shall
cease such refusal and shall use his or her best efforts to
perform such duties and responsibilities, the termination shall
not be effective; provided further, that termination pursuant to
clause (iv) above shall not become effective unless Employee has
been counseled about such unacceptable performance and coached to
improve performance for at least forty-five (45) days; and,
provided further, that KMI shall consult with Employee and
provide an opportunity for Employee to be heard prior to
effecting any termination under this section, and KMI's failure
to do so shall constitute Involuntary Termination and not
Termination for Cause.
(b) Change of Duties. A "Change of Duties" means;
(i) A significant reduction in the nature, scope of authority or
duties of Employee (without the written consent of Employee) from
those applicable to him on the Effective Date of this Agreement;
(ii) Any reduction in Employee's annual base salary, without the
consent of Employee, unless it is part of a program to reduce
salaries for all similarly situated employees;
(iii) Receipt of employee benefits (including but not limited
to medical, dental, life insurance, accidental death and
dismemberment; and long term disability plans) that are
materially inconsistent with and inferior to the employee
benefits provided by KMI to employees with comparable duties; or
(iv) A change in the location of Employee's principal place of
employment by KMI by more than 50 miles from the location where
he was principally employed on the Effective Date of this
Agreement, without Employee's consent.
(c) Pro-Rata Portion. "Pro-Rata Portion" is the amount
determined by the formula: the compensation payment received by
Employee pursuant to section 4(b) hereof, multiplied by the Pro-
Rata Percentage. The Pro-Rata Percentage is defined as: 1460
minus the number of calendar days from Effective Date of this
Agreement up to the date of a Non-Competition Violation, as
defined in Section 5(d) below, not to exceed 1460 days, divided
by 1460.
(d) Confidential Information. "Confidential Information" shall
include all information, the use of which by persons or entities
other than KMI or its employees, agents or representatives would
be detrimental to KMI's business interests, relating to (i) KMI's
Customers, providers, suppliers, and other business affiliates;
(ii) KMI's policies, practices, operating information, financial
information, business plans, and market approaches; and (iii)
other information, techniques or approaches used by KMI and not
generally known or applied in KMI's industry. KMI believes that
some or all of this information constitutes trade secrets;
however, the Confidential Information covered in this Agreement
need not satisfy the legal definition or requirements of a "trade
secret" to be protected from disclosure hereunder. Confidential
Information shall exclude any information that is generally known
in KMI's industry and information known to any future employer of
Employee and any information disclosed by KMI in public filings,
including, without limitation, filings with the Securities and
Exchange Commission and the Federal Energy Regulatory Commission.
(e) Customer. "Customer" shall include any person or entity to
whom during the Term of this Agreement, services are being sold
by KMI, and any person or entity with whom, during the Term of
this Agreement, KMI has established a strategic marketing
alliance.
(f) He, him, himself, his. "He," "him," "himself" and "his"
when used herein shall be synonymous with "she," "her,"
"herself," and "her," as applicable.
(g) Involuntary Termination. "Involuntary Termination" means
(i) termination of Employee's employment at the behest of KMI
other than a Termination for Cause; (ii) Employee's resignation
on or before thirty (30) days following receipt by Employee of a
notice of a Change of Duties; or (iii) a termination which under
the terms of the last clause of Section 2(a) is not a Termination
for Cause. "Involuntary Termination" does not include (i)
Termination for Cause; (ii) termination of Employee's employment
due to the death of Employee; (iii) termination of Employee's
employment due to Employee's disability under circumstances
entitling him to benefits under KMI's long term disability plan;
(iv) or any change of employer due to transfer of Employee's
employment to a successor company that is a wholly owned KMI
subsidiary or affiliate and/or any change of employer due to
transfer of Employee's employment to a purchaser of or successor
to KMI.
(h) KMI. "KMI" means collectively Xxxxxx Xxxxxx, Inc., a Kansas
corporation, Kinder Xxxxxx X.X., Inc., their successors and
assigns, and their divisions and affiliates. For purposes of
this Agreement, the term "affiliates" shall have the same
definition as the term "affiliated group" in Section 1504(a) of
the Internal Revenue Code of 1986, as amended from time to time.
(i) Welfare Benefit Coverages. "Welfare Benefit Coverages"
shall mean the medical, dental, life insurance, long term
disability and accidental death and dismemberment coverages
provided by KMI to its active employees.
3. Term of This Agreement. The term of this Agreement shall be
four (4) years from the Effective Date of this Agreement. It is
expressly understood and agreed that this Agreement shall
terminate and be of no further force or effect at the end of the
initial four (4) year term.
4. KMI's Promises. In consideration of Employee's promises,
KMI hereby agrees as follows:
(a) Salary. Employee shall receive a base salary of two hundred
thousand dollars ($200,000) annually. Increases may occur at the
behest of the senior management of the Company if approved by the
Compensation Committee of the Board. Salary shall be continued
only if Employee's employment continues.
(b) Compensation Payment. In consideration of the obligations
of Employee set forth in Section 5(d) hereof and for waiving all
rights under the Xxxxxx Xxxxxx Energy Partners, L.P. Executive
Compensation Plan, Xxxxxx Xxxxxx, Inc. shall cause Kinder Xxxxxx
X.X., Inc., on behalf of Xxxxxx Xxxxxx Energy Partners, L.P., to
pay Employee a lump sum payment of seven million, ten thousand
dollars ($7,010,000.00) within three (3) days of execution of
this Agreement. The parties acknowledge that Employee and
Xxxxxx Xxxxxx Energy Partners, L.P. have executed a termination
and settlement of the grant agreement evidencing Employee's grant
under the Xxxxxx Xxxxxx Energy Partners, L.P. Executive
Compensation Plan.
(c) Stock Options. Xxxxxx Xxxxxx, Inc. will
provide Employee a grant of 150,000 stock options priced at
$33.125, the closing price of Xxxxxx Xxxxxx, Inc.'s common
stock on the New York Stock Exchange on April 20, 2000. The
terms and conditions are specified in the Option Agreement
(Exhibit B).
(d) Bonus. Employee will be eligible for any applicable
incentive compensation plan of KMI or its predecessors, at the
same level as other senior officers.
(e) Directors and Officers Insurance. As long as Employee is an
officer or director of either Xxxxxx Xxxxxx, Inc. or any of its
affiliates, KMI will provide director and officer liability
coverage to Employee on the same terms as it provides to other
officers and directors.
(f) Bridging. KMI will provide for bridging of service for
eligible employees in accordance with approved plan documents in
effect on the Effective Date of Employee's Involuntary
Termination.
(g) Condition to Receipt of Benefits Listed in This Paragraph 4.
As a condition of receipt of any benefit listed in this Paragraph
4, Employee shall execute Exhibit A, Exhibit B and be subject to
all promises provided in Section 5(d) of this Agreement. Exhibit
A and Exhibit B shall be executed upon execution of this
Agreement.
5. Employee's Promises.
(a) Confidential Information. Employee shall not, while
employed by KMI or at any time thereafter, directly or
indirectly, (i) use or apply any Confidential Information for
unauthorized purposes, alone or with any other person or entity;
or (ii) disclose or provide any Confidential Information to any
person or entity not authorized by KMI to receive such
Confidential Information.
(b) Non-Disparagement Agreement. Employee specifically agrees
that he will not in any way disparage KMI, its officers,
directors, employees, consultants, agents, or business operations
or decisions; provided, however, that Employee shall not be held
in breach of this provision should Employee testify pursuant to
subpoena under oath and give testimony that KMI considers to be
disparaging.
(c) Non-Solicitation of KMI Employees. Employee agrees that,
for the term of the Agreement from the date of termination of
employment hereunder, he will not encourage, entice, or otherwise
solicit any employee of KMI or any of its affiliates or
subsidiaries, or aid any third party to encourage, entice or
solicit any employee of KMI, to leave employment with KMI in
order to accept employment elsewhere. For purposes of this
paragraph, "employment elsewhere" shall include any relationship
of employer/employee and any relationship of
principal/independent contractor.
(d) Non-Competition. Employee acknowledges that; 1) KMI and its
affiliates are engaged in the business (the "Business")of owning
and/or operating integrated natural gas assets, products and bulk
terminals, refined products, natural gas, natural gas liquids and
carbon dioxide pipelines, electricity generating assets and other
midstream energy assets; 2) the Business is conducted throughout
the United States; 3) his work for KMI gives or gave him access
to proprietary information and trade secrets of and confidential
information concerning KMI, and 4) the agreements and covenants
contained in this provision are essential to protect the Business
and the trade secrets, confidential and proprietary information
and other legitimate interests of KMI. Accordingly, Employee
covenants and agrees as follows:
(i) Employee agrees that for a period of four (4) years
following the Effective Date of this Agreement regardless of
whether Employee remains employed by KMI, Employee, other than on
behalf of KMI, will not engage in any conduct, line of business
or activity which is the same as or substantially similar to any
conduct, activity or line of business conducted by KMI or their
affiliates in which Employee was or is engaged in during his
employment by KMI (each such line of business or activity being
an "Exclusive Activity"), in any geographic area in which Company
conducts such Exclusive Activities.
(ii) The parties stipulate and agree that the terms and covenants
contained in this provision are fair and reasonable in all
respects, including the time period and geographical coverage and
that these restrictions are designed for the reasonable
protection of the business of KMI. If, at the time of enforcement
of any of these provisions, a court holds that the restrictions
stated herein are unreasonable under the circumstances then
existing, the parties hereto agree that the maximum period, scope
or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. In such event
KMI and Employee hereby specifically request a trial court
presented with this Agreement for enforcement to reform it as to
time, geographic area or scope of activities prohibited and to
enforce this Agreement as reformed.
(iii) In the event KMI determines that Employee has violated
the provisions of this Section 5(d), KMI agrees to provide
Employee written notice of such violation. If Employee does not
cease the conduct prohibited by this Section 5(d) and cure the
impact of such conduct on KMI within 30 days after receipt of
written notice from KMI, a "Non-Competition Violation" shall be
deemed to have occurred at the end of such 30 day period, and the
provisions of Section 7 shall apply.
(iv) KMI hereby waives any rights under, and
Employee shall not be deemed to have violated, the
provisions of this Section 5(d) with respect to any
conduct or activity of Employee if Employee gives KMI
30 days written notice prior to engaging in such
conduct or activity, and KMI does not object to such
conduct or activity in writing within the 30 day period
following notice from Employee.
(e) Section 5 shall be enforceable only to the extent either
Xxxxxxx X. Xxxxxx or Xxxxxxx X. Xxxxxx serves as Chief Executive
Officer of Xxxxxx Xxxxxx, Inc. or its successor.
6. Effects of Termination. During the term of this Agreement,
a termination of Employee's employment for any of the following
reasons shall have the effects set forth below:
(a) Termination is for Cause. If the Employee's employment is
terminated by a Termination for Cause:
(i) subject to Section 7 below, Employee shall be entitled to
retain the all payments and benefits made under Sections 4(b)
hereof;
(ii) Employee shall retain the stock options
granted in accordance with Section 4(c) hereof;
(iii) Employee shall not be eligible for
severance payments under KMI's severance policy;
and
(iv) all benefits otherwise payable under Sections 4(a) and
4(d) hereof shall cease.
(b) Termination for Change of Duties or Involuntary Termination.
If the Employee's employment is terminated by a Termination for
Change of Duties or an Involuntary Termination:
(i) subject to Section 7 below, Employee shall be entitled to
retain all payments and benefits made under Sections 4(b) hereof;
(ii) Employee shall retain the stock options
granted in accordance with Section 4(c) hereof;
(iii) Employee shall be eligible for severance consistent
with KMI's severance policy; and
(iv) all benefits otherwise payable under
Sections 4(a) and 4(d) hereof shall cease.
(c) Termination for Death, Disability ,Retirement or
Resignation. If the Employee's employment is terminated due to
the death, disability, retirement or resignation of Employee:
(i) subject to Section 7 below, Employee shall be entitled to
retain all payments and benefits made under Sections 4(b) hereof;
(ii) Employee shall retain the stock options
granted in accordance with Section 4(c) hereof;
and
(iii) All other payments and benefits relating to
Employee's employment shall cease upon last day of employment
other than benefits which generally continue for all KMI employees
after termination of employment under the terms of KMI's benefit
plans.
7. Violation of Non-Competition; Payment of Pro-Rata
Portion. Within three business days following a Non-Competition
Violation which occurs during the term of this Agreement,,
Employee shall pay to KMI an amount in U.S. dollars equal to the
Pro-Rata Portion, calculated in accordance with Section 2(c)
hereof.
8. Adequacy of Consideration. By executing this Agreement, KMI
and Employee acknowledges the receipt and sufficiency of the
consideration provided by the other in conjunction with executing
this Agreement. Each acknowledges and confirms to the other that
the consideration provided by the other is good and valuable
consideration legally supportive of each party's respective
rights, duties and obligations hereunder. By executing this
Agreement, KMI and Employee shall be estopped from raising and
hereby expressly waive any defense regarding the receipt and/or
legal sufficiency of the consideration provided by one to the
other with respect to this Agreement.
9. Nonassignability. This Agreement shall inure to the benefit
of, and be binding upon, Employee and Employee's personal or
legal representatives, employees, administrators, successors,
heirs, distributees, devisees and legatees, and KMI, its
successors and assignees, provided, however, that neither KMI nor
Employee may assign any of Employee's or its rights or benefits
hereunder without the prior written consent of the other.
10. No Attachment. Except as required by law, the right to
receive payments under this Agreement shall not be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void ab initio and of no effect.
11. Arbitration. The parties agree that any dispute regarding
the interpretation or breach of any term of this Agreement shall
be resolved through arbitration pursuant to the guidelines set
forth by the American Arbitration Association and that any
attempt by either party to bring a court action concerning this
Agreement shall be subject to dismissal for lack of jurisdiction
at the request of the other party. The arbitration and all
related activities shall occur in Houston, Texas. To the extent
that either party should initiate action to enforce this
Agreement, the party prevailing in the action for breach shall be
entitled to recover its attorney fees and costs incurred in the
prosecution or defense of said action.
12. Headings. The headings of sections and paragraphs herein
are included solely for convenience of reference and shall not
control the meaning or interpretation of any of the provisions of
this Agreement.
13. Controlling Law. This Agreement shall be governed and
construed in accordance with the laws of Texas.
14. Entire Agreement. This document constitutes the entire
agreement of the parties on the subject matters addressed herein
and may not be expanded or except by express written agreement
executed by both.
15. Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by
the different parties on separate counterparts, each of which
shall be deemed an original but all of which shall constitute one
and the same instrument.
16. Effective Date. The Effective Date of this Agreement shall
be the date provided at the top of this Agreement.
KINDER XXXXXX X.X., INC.
By /s/ Xxxxxx Xxxxxxxxxx
______________________________________
Title: Vice President
Witness: /s/ Xxxxx Xxxxxx
_______________________________________
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
___________________________________________
Name: Xxxxxxx X. Xxxxxx
Exhibit A
In connection with the Employment Agreement (the
"Agreement") dated April 20, 2000, by and among Xxxxxxx X.
Xxxxxx, Xxxxxx Xxxxxx, Inc. and Kinder Xxxxxx X.X., Inc.
(collectively ("KMI"), Employee for himself and his
representatives, heirs, and assigns, hereby releases and
discharges KMI, any parent, sister or subsidiary company, and any
present or former shareholders, officers, directors, employees,
agents, representatives, legal representatives, accountants,
successors, and assigns, , Xxxxxxx Xxxxxx, and Xxxxxxx Xxxxxx,
from all claims, demands, and actions of any nature, known or
unknown, in any manner arising out of or involving any aspect of
his rights under the Xxxxxx Xxxxxx Energy Partners, L.P.
Executive Compensation Plan and any agreement executed in
connection therewith. This release includes any and all claims
concerning attorney fees, costs, and any and all other expenses
related to the claims released herein. This release does not
include claims for breach of the Agreement, indemnification,
coverage or defense under any applicable directors and officers'
insurance policy or vested employee benefits.
EMPLOYEE:
________________________________________
Employee Signature
Exhibit B
XXXXXX XXXXXX, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
For the
1994 XXXXXX XXXXXX LONG TERM INCENTIVE PLAN
This Nonqualified Stock Option Agreement ("Option
Agreement") is between Xxxxxx Xxxxxx, Inc. (the "Company"), and
Xxxxxxx X. Xxxxxx ("Optionee"), who agree as follows:
Section 1. Introduction. The Company has heretofore
adopted the Xxxxxx Xxxxxx, Inc. (f/k/a KN Energy, Inc.) 1994
Xxxxxx Xxxxxx Long Term Incentive Plan (the "Plan") for the
purpose of providing eligible employees of the Company and its
Affiliates (as defined in the Plan) with incentive and reward
opportunities designed to enhance the profitable growth of the
Company. The Company, acting through the Committee (as defined
in the Plan), has determined that its interests will be advanced
by the issuance to Optionee of a nonqualified stock option under
the Plan.
Section 2. Option. Subject to the terms and conditions
contained herein, the Company hereby irrevocably grants to
Optionee the right and option ("Option") to purchase from the
Company 150,000 shares of the Company's common stock, $5.00 par
value ("Stock"), at a price of $33.125 per share.
Section 3. Option Period. The Option, herein granted, may
be exercised by Optionee in whole or in part at any time during a
ten year period (the "Option Period") beginning on April 20, 2000
(the "Date of Grant").
Section 4. Procedure for Exercise. The Committee or its
designee shall establish procedures for Exercise of the Option.
Section 5. Termination of Employment. If, for any reason
other than Death, Optionee ceases to be employed by the Company
or its Affiliates, the Option may be exercised to the extent
Optionee would have been entitled to do so, but in no event may
the Option be exercised after the expiration of the Option
Period.
Section 6. Death. In the event that Optionee's employment
is terminated because of Optionee's death, this Option may be
exercised, at any time and from time to time, within the Option
Period after such Death, by (i) the guardian of Optionee's
estate, (ii) the executor or administrator of Optionee's estate,
or (iii) the person or persons to whom Optionee's rights under
this Option Agreement shall pass by will or the laws of descent
and distribution, but in no event may the Option be exercised
after the expiration of the Option Period.
Section 7. Transferability. This Option shall not be trans
ferable by Optionee otherwise than by Optionee's will or by the
laws of descent and distribution. During the lifetime of
Optionee, the Option shall be exercisable only by Optionee or his
guardian or authorized legal representative. Any heir or legatee
of Optionee shall take rights herein granted subject to the terms
and conditions hereof. No such transfer of this Option Agreement
to heirs or legatees of Optionee shall be effective to bind the
Company unless the Company shall have been furnished with written
notice thereof and a copy of such evidence as the Committee may
deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and
conditions hereof.
Section 8. No Rights as Shareholder. Optionee shall have
no rights as a shareholder with respect to any shares of Stock
covered by this Option Agreement until the Option is exercised by
written notice and accompanied by payment as provided in Section
4 of this Option Agreement.
Section 9. Extraordinary Corporate Transactions. The
existence of outstanding Options shall not affect in any way the
right or power of the Company or its shareholders to make or
authorize any or all adjustments, recapitalizations, reorganiza
tions, exchanges or other changes in the Company's capital
structure or its business, or any merger or consolidation of the
Company, or any issuance of Stock or other securities or
subscription rights thereto, or any issuance of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or
proceedings, whether of a similar character or otherwise.
Section 10. Changes in Capital Structure. If the
outstanding shares of Stock or other securities of the Company,
or both, for which the Option is then exercisable shall at any
time be changed or exchanged by declaration of a stock dividend,
stock split or combination of shares, the number and kind of
shares of Stock or other securities subject to the Plan or
subject to the Option, and the exercise price, shall be appro
priately and equitably adjusted so as to maintain the
proportionate number of shares or other securities without
changing the aggregate exercise price.
Section 11. Compliance With Securities Laws. Upon the
acquisition of any shares pursuant to the exercise of the Option
herein granted, Optionee (or any person acting under Section 7)
will enter into such written representations, warranties and
agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Option
Agreement.
Section 12. Compliance With Laws. Notwithstanding any of
the other provisions hereof, Optionee agrees that he or she will
not exercise the Option granted hereby, and that the Company will
not be obligated to issue any shares pursuant to this Option
Agreement, if the exercise of the Option or the issuance of such
shares of Stock would constitute a violation by Optionee or by
the Company of any provision of any law or regulation of any
governmental authority.
Section 13. Withholding of Tax. To the extent that the
exercise of this Option or the disposition of shares of Stock
acquired by exercise of this Option results in compensation
income to Optionee for federal or state income tax purposes,
Optionee shall pay to the Company at the time of such exercise or
disposition such amount of money as the Company may require to
meet its obligation under applicable tax laws or regulations and,
if Optionee fails to do so, the Company is authorized to withhold
from any cash remuneration then or thereafter payable to
Optionee, any tax required to be withheld by reason of such
resulting compensation income or Company may otherwise refuse to
issue or transfer any shares otherwise required to be issued or
transferred pursuant to the terms hereof.
Section 14. No Right to Employment or Directorship.
Optionee shall be considered to be in the employment of the
Company or its Affiliates or in service on the Board so long as
he or she remains an employee or director of the Company or its
Affiliates. Any questions as to whether and when there has been
a termination of such employment or service on the Board and the
cause of such termination shall be determined by the Committee,
and its determination shall be final. Nothing contained herein
shall be construed as conferring upon Optionee the right to
continue in the employ of the Company or its Affiliates or to
continue service on the Board, nor shall anything contained
herein be construed or interpreted to limit the "employment at
will" relationship between Optionee and the Company or its
Affiliates.
Section 15. Resolution of Disputes. As a condition of the
granting of the Option hereby, Optionee and Optionee's heirs,
personal representatives and successors agree that any dispute or
disagreement which may arise hereunder shall be determined by the
Committee in its sole discretion and judgment, and that any such
determination and any interpretation by the Committee of the
terms of this Option Agreement shall be final and shall be
binding and conclusive, for all purposes, upon the Company,
Optionee, and Optionee's heirs, personal representatives and
successors.
Section 16. Legends on Certificate. The certificates
representing the shares of Stock purchased by exercise of the
Option will be stamped or otherwise imprinted with legends in
such form as the Company or its counsel may require with respect
to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stop-transfer
instructions with respect to such shares.
Section 17. Notices. Every notice hereunder shall be in
writing and shall be given by registered or certified mail or by
any other method accepted by the Company or the Company's
designee. All notices of the exercise of any Option hereunder
shall be directed to Xxxxxx Xxxxxx, Inc., 0000 XxXxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, Attention: Secretary, or to the
Company's designee. Any notice given by the Company to Optionee
directed to Optionee at the address on file with the Company
shall be effective to bind Optionee and any other person who
shall acquire rights hereunder. The Company shall be under no
obligation whatsoever to advise Optionee of the existence,
maturity or termination of any of Optionee's rights hereunder and
Optionee shall be deemed to have familiarized himself or herself
with all matters contained herein and in the Plan which may
affect any of Optionee's rights or privileges hereunder.
Section 18. Construction and Interpretation. Whenever the
term "Optionee" is used herein under circumstances applicable to
any other person or persons to whom this award, in accordance
with the provisions of Section 7 hereof, may be transferred, the
word "Optionee" shall be deemed to include such person or
persons.
Section 19. Agreement Subject to Plan. This Option
Agreement is subject to the Plan. The terms and provisions of
the Plan (including any subsequent amendments thereto) are hereby
incorporated herein by reference thereto. In the event of a
conflict between any term or provision contained herein and a
term or provision of the Plan, the applicable terms and
provisions of the Plan will govern and prevail. All definitions
of words and terms contained in the Plan shall be applicable to
this Option Agreement.
Section 20. Entire Agreement; Amendment. This Option
Agreement and any other agreements and instruments contemplated
by this Option Agreement contain the entire agreement of the
parties, and this Option Agreement may be amended only in writing
signed by both parties.
Section 21. Modification and Severability. If a court of
competent jurisdiction declares that any provision of this Option
Agreement is illegal, invalid or unenforceable, then such
provision shall be modified automatically to the extent necessary
to make such provision fully enforceable. If such court does not
modify any such provision as contemplated herein, but instead
declares it to be wholly illegal, invalid or unenforceable, then
such provision shall be severed from this Option Agreement, and
such declaration shall in no way affect the legality, validity
and enforceability of the other provisions of this Option
Agreement to which such declaration does not relate. In this
event, this Option Agreement shall be construed as if it did not
contain the particular provision held to be illegal, invalid or
unenforceable, the rights and obligations of the parties hereto
shall be construed and enforced accordingly, and this Option
Agreement otherwise shall remain in full force and effect. If
any provision of this Option Agreement is capable of two
constructions, one of which would render the provision void and
the other of which would render the provision valid, then the
provision shall have the construction which renders it valid.
Section 22. Binding Effect. This Option Agreement shall be
binding upon and inure to the benefit of any successors to the
Company and all persons lawfully claiming under Optionee as
provided herein.
Section 23. Governing Law. This Option Agreement shall be
interpreted and construed in accordance with the laws of the
State of Colorado and applicable federal law.
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has
been executed as of the 20th day of April, 2000.
XXXXXX XXXXXX, INC.
By:
----------------------------
Xxxxxx Xxxxxxxxxx
Vice President
OPTIONEE
_______________________________________
Xxxxxxx X. Xxxxxx
