EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement"), effective September 12,
2005, is between Harvest Natural Resources, Inc. (the "Company") and Xxxxx X.
Xxxxxxxx, a resident of Texas, ("Employee"), the terms and conditions of which
are as follows:
WHEREAS, the Company and Employee entered into an amended and restated
employment agreement effective February 20, 2003 (the "Amended Employment
Agreement");
WHEREAS, the Company wishes to provide Employee with certain additional
benefits and the Company and Employee wish to change the benefits described in
the Amended Employment Agreement provided to Employee in the event of a Change
of Control;
WHEREAS, the Company and Employee acknowledge that if Employee's employment
with the Company terminates for any reason, Employee may inevitably disclose
trade secrets of, and other proprietary and confidential information about, the
Company's business, operations and prospects; and
WHEREAS, Employee wishes to enter into this Employment Agreement to receive
the benefit of the provisions contained in it.
NOW THEREFORE, for good and valuable consideration, the sufficiency and
receipt of which are acknowledged, the Company and Employee agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the terms and conditions set forth in this Employment Agreement,
the Company agrees to employ Employee and Employee agrees to be employed by the
Company for the term which started on July 15, 2002, and ends on May 31, 2006.
On May 31, 2006, and on each anniversary thereafter (an "Extension Date") the
term of this Employment Agreement shall automatically be extended for a one-year
period unless and until either party has given written notice to the other at
least one year before any Extension Date that it or he wishes to terminate this
Employment Agreement as of such Extension Date.
2. POSITION AND DUTIES.
(a) Position. Subject to annual election by the Company's Board of
Directors, Employee's position shall be Senior Vice President, General Counsel
and Corporate Secretary of Harvest Natural Resources, Inc.
(b) Duties and Responsibilities. Employee's duties and responsibilities
initially shall be those normally associated with Employee's position, plus any
additional duties and responsibilities the Company initially may assign orally
or in writing to Employee. Employee shall undertake to perform all Employee's
duties and responsibilities for the Company and its affiliates in good faith and
on a full-time basis and shall at all times act in the course of Employee's
employment under this Employment Agreement in the best interest of the Company
and the Company's affiliates.
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(c) The Company's Right to Change Position or Duties. Subject to the terms
of this Employment Agreement, the Company shall have the right, to the extent
the Company from time to time reasonably deems necessary or appropriate, to
change Employee's position, or to expand or reduce Employee's duties and
responsibilities.
3. COMPENSATION AND BENEFITS.
(a) Base Salary. During the term of this Employment Agreement, Employee's
yearly base salary shall be not less than $245,000 US, which yearly base salary
shall be payable from the Company's Houston offices to Employee in accordance
with the Company's standard payroll practices and policies, and shall be subject
to such withholdings as required by U.S. Federal law and the State of Texas or
as otherwise permissible under such practices or policies. The Company shall
annually review Employee's base salary.
(b) Annual Bonus. Employee shall be eligible for such annual bonus as may
be determined by the Human Resources Committee of the Company's Board of
Directors and the Company's Board of Directors, which bonus shall be based on
Employee's performance under the guidelines adopted by the Company, the
Company's overall performance and any special circumstances the Human Resources
Committee and the Company's Board of Directors deem appropriate. Any such bonus
is to be determined at the discretion of the Company's Human Resources Committee
and the Company's Board of Directors. Employee acknowledges that the Company is
not obligated to award him any bonus in any year.
(c) Special Bonus. Concurrently with the execution and delivery of this
Employment Agreement by the Company, the Company is paying Employee a special
bonus of $25,000.
(d) Employee Benefit Plans. Employee shall be eligible to participate in
the employee benefit plans, programs and policies maintained by the Company for
similarly situated employees in accordance with the terms and conditions to
participate in such plans, programs, and policies as in effect from time to
time.
(e) Stock Options and Restricted Stock. Previously Employee has been
granted certain stock options and restricted stock pursuant to the Company's
long-term incentive plans. Except as provided in Section 4(a), this Employment
Agreement neither increases nor decreases the number of stock options and shares
of restricted stock previously granted, nor does it change the terms under which
they were granted.
(f) Vacation. Employee shall be entitled to four (4) weeks annual vacation.
(g) Expenses. The Company shall pay or reimburse Employee for all
reasonable expenses actually incurred or paid by Employee in the performance of
his services hereunder upon the presentation of expense statements or vouchers
or such other supporting information as the Company may reasonably require of
Employee.
(h) Office Facilities and Services. Employee shall be accorded such
benefits and support services, including without limitation, office facilities,
administrative assistant, communications, and such other perquisites as would
normally be accorded by a corporation of
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the size and at the stage of development in the industry in which the Company
is, to its Senior Vice President, General Counsel and Corporate Secretary.
(i) Indemnification. Employee shall be entitled to the benefit of the
indemnification provisions contained in the bylaws of the Company, as the same
may be amended.
4. TERMINATION OF EMPLOYMENT.
(a) Termination By The Company Other Than For Cause Or By Employee For Good
Reason.
(1) The Company shall have the right to terminate Employee's
employment other than for Cause at any time and Employee shall have the right to
quit or resign for Good Reason at any time.
(2) If (a) the Company or its successors terminate Employee's
employment with the Company other than (i) for Cause or (ii) pursuant to a
notice of termination delivered in accordance with Section 1 of this Employment
Agreement or (b) Employee resigns for Good Reason, then (v) the Company shall
pay to Employee within thirty (30) days after the termination or resignation an
amount equal to twenty-four months of Employee's base salary as in effect
immediately before Employee's termination of employment or resignation, (w) the
Company shall pay to Employee within thirty (30) days after the termination or
resignation an amount equal to twenty-four months of the maximum contribution
the Company may make for Employee under the Company's 401(k) profit sharing plan
as in effect immediately before Employee's termination of employment or
resignation, (x) any outstanding stock option(s) granted by the Company to
Employee shall become fully vested and shall remain exercisable for twelve (12)
months following Employee's termination pursuant to this Section 4(a)(2), or the
tenth anniversary of the date(s) of the grant(s) specified in the relevant
option agreement(s), whichever is the shorter period, (y) the restriction period
on restricted shares of stock granted by the Company to Employee will continue
and will lapse as if Employee had continued in the employ of the Company and a
certificate(s) representing such shares will be delivered to Employee within
thirty (30) days after the end of the applicable restriction period, and (z)
Employee shall be reimbursed for up to $20,000 of outplacement services with an
outplacement service approved by the Company.
(3) If the termination or resignation described in Section 4(a)(2)
occurs within 730 days after or 240 days before a Change of Control, then (s)
the Company shall pay to Employee, within thirty (30) days after the termination
of employment or resignation an amount equal to twenty-four months of Employee's
base salary as in effect immediately before Employee's termination of employment
or resignation, (t) the Company shall pay to Employee, within thirty (30) days
after the later to occur of the termination, resignation or Change of Control,
the Bonus Amount, (u) the Company shall pay to Employee within thirty (30) days
after the termination or resignation an amount equal to twenty-four months of
the maximum contribution the Company may make for Employee under the Company's
401(k) profit sharing plan as in effect immediately before Employee's
termination of employment or resignation, (v) any outstanding stock option(s)
granted by the Company to Employee shall become fully vested and shall remain
exercisable for twelve (12) months following Employee's termination or
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resignation, or the tenth anniversary of the date(s) of the grant(s) specified
in the relevant option agreement(s), whichever is the shorter period, (w) the
restriction period on restricted shares of stock granted by the Company to
Employee will continue and will lapse as if Employee had continued in the employ
of the Company and a certificate(s) representing such shares will be delivered
to Employee within thirty (30) days after the end of the applicable restriction
period, (x) Employee shall be reimbursed for up to $20,000 of outplacement
services with an outplacement service approved by the Company, (y) for a period
of twenty-four months following the later to occur of the termination,
resignation or Change of Control, the Company shall continue to provide Employee
and Employee's dependents with the same level of life, disability, accident,
dental and health insurance benefits Employee and Employee's dependents were
receiving immediately before Employee's termination or resignation, and (z) the
Company will pay Employee, within thirty (30) days after the later to occur of
the termination, resignation or Change of Control, an additional amount such
that the net amount retained by Employee pursuant to the benefits described in
this Section 4(a)(3) after any excise tax imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended from time to time, shall be equal to
the amount that Employee would have received pursuant to those benefits before
payment of any such excise tax.
(4) If the Company or its successors terminate Employee's employment
with the Company pursuant to a notice of termination delivered in accordance
with Section 1 of this Employment Agreement within 730 days after or 240 days
before a Change of Control, then (s) the Company shall pay to Employee, within
thirty (30) days after the later to occur of the termination or Change of
Control an amount equal to twenty-four months of Employee's base salary as in
effect immediately before Employee's termination of employment, (t) the Company
shall pay to Employee, within thirty (30) days after the later to occur of the
termination or Change of Control, the Bonus Amount, (u) the Company shall pay to
Employee within thirty (30) days after the later to occur of the termination or
Change of Control, an amount equal to twenty-four months of the maximum
contribution the Company may make for Employee under the Company's 401(k) profit
sharing plan as in effect immediately before Employee's termination of
employment, (v) any outstanding stock option(s) granted by the Company to
Employee shall become fully vested and shall remain exercisable for twelve (12)
months following the later to occur of Employee's termination or Change of
Control, or the tenth anniversary of the date(s) of the grant(s) specified in
the relevant option agreement(s), whichever is the shorter period, (w) the
restriction period on restricted shares of stock granted by the Company to
Employee will continue and will lapse as if Employee had continued in the employ
of the Company and a certificate(s) representing such shares will be delivered
to Employee within thirty (30) days after the end of the applicable restriction
period, (x) Employee shall be reimbursed for up to $20,000 of outplacement
services with an outplacement service approved by the Company, (y) for a period
of twenty-four months following the later to occur of Employee's termination or
Change of Control, the Company shall continue to provide Employee and Employee's
dependents with the same level of life, disability, accident, dental and health
insurance benefits Employee and Employee's dependents were receiving immediately
before Employee's termination, and (z) the Company shall pay to Employee, within
thirty (30) days after the later to occur of the termination or Change of
Control, an additional amount such that the net amount retained by Employee
pursuant to the benefits described in this Section 4(a)(4) after any excise tax
imposed under Section 4999 of the Internal Revenue Code of 1986, as
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amended from time to time, shall be equal to the amount that Employee would have
received pursuant to such benefits before payment of any such excise tax.
(b) Termination By The Company For Cause Or By Employee Other Than For Good
Reason.
(1) The Company shall have the right to terminate Employee's
employment at any time for Cause, and Employee shall have the right to quit or
resign at any time other than for Good Reason.
(2) If the Company terminates Employee's employment for Cause or
pursuant to a notice of termination delivered in accordance with Section 1 of
this Employment Agreement that is not delivered within 730 days after or 240
days before a Change of Control, or Employee quits or resigns other than for
Good Reason, the Company's only obligation to Employee under this Employment
Agreement shall be to pay Employee's base salary (including accrued vacation)
actually earned up to the date Employee's employment terminates.
(c) Termination for Disability or Death.
(1) The Company shall have the right to terminate Employee's
employment on or after the date Employee has a Disability, and Employee's
employment shall terminate at Employee's death.
(2) If Employee's employment terminates under this Section 4(c), the
Company shall pay Employee or, if Employee dies, Employee's estate the amount
provided for under Section 4(a)(2)(v) and, in addition, Employee or, if Employee
dies, Employee's estate shall be entitled to the provisions of Sections
4(a)(2)(w), (x) and (y) with respect to the Company's 401(k) profit sharing
plan, Employee's stock options and Employee's restricted stock.
(d) Bonus Amount. The term "Bonus Amount" means twice the amount of the
higher of (i) the highest annual bonus earned by Employee for the last three
fiscal years ending prior to the termination date, and (ii) (A) the target bonus
percentage as established by the Company's Board of Directors for the fiscal
year in which the Change of Control occurs, multiplied by (B) Employee's annual
base salary for that fiscal year (whether or not paid or accrued for the full
year at the time of Employee's termination or resignation).
(e) Cause. The term "Cause" shall mean (1) Employee's final conviction of a
felony by a trial court, (2) Employee's material breach of this Employment
Agreement or (3) Employee's material violation of any policy or code of conduct
of the Company, all as reasonably determined by the Company.
(f) Good Reason. The term "Good Reason" shall mean any of the following,
unless Employee shall have given his express written consent thereto: (1) a
material breach of the terms and conditions of this Employment Agreement by the
Company which remains uncorrected for thirty (30) days after Employee delivers
written notice of such breach to the Company; (2) failure to maintain or reelect
Employee to the position described in Section 2(a); (3) a significant reduction
of Employee's duties, position or responsibilities relative to Employee's
duties,
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position or responsibilities in effect immediately prior to such reduction,
unless Employee is provided with comparable duties and responsibilities; (4) a
substantial reduction, without good business reasons, of the facilities and
perquisites available to Employee immediately prior to such reduction; (5) a
reduction by the Company of Employee's monthly base salary in effect immediately
prior to such reduction; (6) the Company fails to continue Employee's
participation in any bonus, incentive, profit sharing, performance, savings,
retirement or pension policy, plan, program or arrangement on substantially the
same or better basis, both in terms of the amount of benefits provided to
Employee and the level of Employee's participation, relative to other
participants; (7) the relocation of Employee more than fifty (50) miles from the
location of the Company's principal office on the date hereof; or (8) the
failure of the Company to obtain a satisfactory agreement from a successor to
assume and agree to perform this Employment Agreement as contemplated by Section
6(d).
(g) Disability. Employee shall have a "disability" under this Employment
Agreement on the date the Company receives written notice from a physician
selected by the Company that Employee no longer can perform one or more of the
essential functions of Employee's job even with reasonable accommodation.
(h) Change of Control. A "Change of Control" means the occurrence of any of
the following:
(1) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934)
(a "Covered Person") of beneficial ownership (within the meaning of rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50 percent or more of
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the "Voting
Securities"); provided, however, that for purposes of this subsection (1) of
this Section 4(g) the following acquisitions shall not constitute a Change of
Control: (i) any acquisition by the Company, (ii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any entity controlled by the Company, or (iii) any acquisition by any entity
pursuant to a transaction which complied with clauses (i), (ii) and (iii) of
subsection (3) of this Section 4(g); or
(2) individuals who, as of the date of this Employment Agreement,
constitute the board of directors of the Company (the "Incumbent Board") cease
for any reason to constitute at least a majority of the board of directors of
the Company; provided, however, that any individual becoming a director after
the date of this Employment Agreement whose election, or nomination for
election, by the Company's stockholders was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors; or
(3) the consummation of a reorganization, merger or consolidation or
sale of the Company, or a disposition of at least 50 percent of the assets of
the Company, together with its subsidiaries, including goodwill (a "Business
Combination"), provided, however, that for
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purposes of this subsection (3), a Business Combination will not constitute a
change of control if the following three requirements are satisfied:
following such Business Combination, (i) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Company's voting securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50 percent of the ownership interests of
the entity resulting from such Business Combination (including,
without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
assets of the Company, together with its subsidiaries, either
directly or through one or more subsidiaries or other affiliated
entities) in substantially the same proportions as their
ownership immediately prior to such Business Combination, (ii) no
Covered Person (excluding any employee benefit plan (or related
trust) of the Company or its subsidiaries or such entity
resulting from such Business Combination) beneficially owns,
directly or indirectly, 50 percent or more of, respectively, the
ownership interests in the entity resulting from such Business
Combination, except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority
of the members of the board of directors of the entity resulting
from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or
of the action of the board of directors of the Company, providing
for such Business Combination. For this purpose any individual
who becomes a director after the date of this Employment
Agreement, and whose election, or nomination for election, by the
Company's stockholders was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors.
(i) Benefits. Employee shall have the right to receive any benefits payable
under the Company's employee benefits plans, programs and policies (other than
the Company's Policy for Termination and Separation of Employment (the
"Severance Plan")) which Employee otherwise has a non-forfeitable right to
receive under the terms of such plans, programs and policies (other than
severance benefits) independent of Employee's rights under this Employment
Agreement upon a termination of employment in addition to any other benefits
under this Section 4 without regard to the reason for such termination of
employment. Employee acknowledges and agrees that until the termination of this
Employment Agreement, he shall not be entitled to participate in the Severance
Plan.
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(j) Notice of Termination. Any termination by the Company or by Employee
for any reason shall be communicated by a notice of termination to the other
party hereto and shall be given in accordance with Section 6(a). Such notice
shall state the specific termination provision in this Employment Agreement
relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so
indicated.
(k) No Mitigation. Employee shall not be required to mitigate the amount of
any severance payment contemplated by this Employment Agreement, nor shall any
such payment be reduced by any earnings that Employee may receive from any other
source.
(l) Stock Award Agreements. In the event of a conflict adverse to Employee
between the terms of this Employment Agreement and the terms of any agreement
granting Employee stock options or restricted stock, the terms of this
Employment Agreement shall govern.
5. COVENANTS BY EMPLOYEE
(a) Property of the Company.
(1) Employee covenants and agrees that upon the termination of
Employee's employment for any reason or, if earlier, upon the Company's request
Employee shall promptly return all Property which had been entrusted or made
available to Employee by the Company or any of its subsidiaries.
(2) The term "Property" shall mean all records, files, memoranda,
reports, price lists, drawing, plans, sketches, keys, codes, computer hardware
and software and other property of any kind or description prepared, used or
possessed by Employee during Employee's employment by the Company (and any
duplicates of any such property) together with any and all information, ideas,
concepts, discoveries, and inventions and the like conceived, made, developed or
acquired at any time by Employee individually or with others during Employee's
employment which relate to the business, products or services of the Company or
any of its subsidiaries.
(b) Trade Secrets.
(1) In consideration for the promises made in Section 5(d) of this
Employment Agreement, the Company promises that it shall provide and make
available to Employee certain confidential, proprietary information and trade
secrets.
(2) Employee covenants and agrees that Employee shall hold in a
fiduciary capacity for the benefit of the Company and each of its affiliates,
and shall not directly or indirectly use or disclose, any Trade Secret that
Employee may have acquired pursuant to Section 5(b)(1) above during the term of
Employee's employment by the Company for so long as such information remains a
trade secret.
(3) The term "Trade Secret" shall mean information, including, but not
limited to, technical or non-technical data, a formula, a patent, a compilation,
a program, a device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans,
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or that (a) derives economic value, actual or potential, from not being
generally known to, and not being generally readily ascertainable by proper
means by other persons who can obtain economic value from its disclosures or use
and (b) is the subject of reasonable efforts by the Company and its affiliates
to maintain its secrecy.
(4) This Section 5(b) is intended to provide rights to the Company and
its subsidiaries which are in addition to those rights the Company and its
subsidiaries have under the common law or applicable statutes for the protection
of trade secrets.
(c) Confidential Information.
(1) Employee covenants and agrees while employed under this Employment
Agreement and thereafter during the Restricted Period he shall hold in a
fiduciary capacity for the benefit of the Company and each of its affiliates,
and shall not directly or indirectly use or disclose, any of the Company's or
the Company's affiliates' Confidential or Proprietary Information that Employee
may have acquired (whether or not developed or compiled by Employee and whether
or not Employee is authorized to have access to such information) during the
term of, and in the course of, or as a result of Employee's employment by the
Company or its affiliates.
(2) The term "Confidential or Proprietary Information" shall mean any
secret, confidential or proprietary information of the Company or an affiliate
(not otherwise included in the definition of a Trade Secret under this
Employment Agreement) that has not become generally available to the public by
the act of one who has the right to disclose such information without violation
of any right of the Company or its affiliates.
(d) Non-Competition. During the period of Employee's employment with the
Company and thereafter during the Restricted Period, Employee covenants and
agrees that, in connection with the business operations and prospective
interests of the Company on the date of Employee's termination as an employee of
the Company, which prospective interests are disclosed to Employee prior to or
on the date of Employee's termination as an employee of the Company, he shall
not, directly or indirectly, own any interest in, manage, control, participate
in, consult with, render services for, or in any manner engage in any businesses
in competition with the Company or materially adverse to the Company (unless the
Company's Board of Directors shall have authorized such activity and the Company
shall have consented thereto in writing). Investments in less than 5% of the
outstanding securities of any class of the Company subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, shall not be prohibited by this section. For purposes of this
Section 5(d), the term "Company" shall include Harvest Natural Resources, Inc.
and any of its affiliates or subsidiaries or any company in which it is a
minority shareholder or a joint venture partner. For purposes of this Section
5(d), the term "businesses" shall mean any enterprise, commercial venture, or
project involving oil and gas exploration or production activities in the same
geographic areas as the Company's activities during the period of Employee's
employment.
Further, during the period of Employee's employment with the Company and
thereafter during the Restricted Period, Employee covenants and agrees that he
will not directly or indirectly through another entity induce or otherwise
attempt to influence any employee of the
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Company to leave the Company's employment or in any way interfere with the
relationship between the Company and any employee thereof. Further, Employee
will not induce or attempt to induce any customer, supplier, licensee, joint
venture partner, shareholder, licensor or other business relation of the Company
to cease doing business with the Company or in any way interfere with the
relationship between any such customer, supplier, licensee, joint venture
partner, shareholder, licensor or business relation of the Company.
If (i) pursuant to the arbitration process described in Section 6(c) of
this Employment Agreement (or such other process as to which the Company and
Employee may agree upon in writing), it is determined that Employee has violated
the provisions of this Section 5(d), and (ii) Employee has received a payment
from the Company pursuant to Section 4(a)(2)(v), Section 4(a)(3)(s), Section
4(a)(3)(t), Section 4(a)(4)(s) or Section 4(a)(4)(t) of this Employment
Agreement (the "Lump Sum Severance Amount"), then, in addition to any other
remedies that the Company may have, Employee shall be obligated, and hereby
agrees, to pay the Company, as liquidated damages, an amount (but not less than
zero) equal to the product of (x) the Lump Sum Severance Amount and (y) a
fraction whose numerator is the excess of twenty-four (24) over the number of
calendar months that have elapsed since the last day of Employee's termination
of employment under Section 4 of this Employment Agreement and whose denominator
is twenty-four (24).
(e) Employment Restriction - Conflict of Interest. Employee covenants and
agrees that he will not receive and has not received any payments, gifts or
promises and Employee will not engage in any employment or business enterprises
that in any way conflict with his service and the interests of the Company or
its affiliates. In addition, Employee agrees to comply with the laws or
regulations of any country, including, without limitation, the United States of
America, having jurisdiction over Employee, the Company or any of the Company's
subsidiaries.
Employee shall not make any payments, loans, gifts or promises or offers of
payments, loans or gifts, directly or indirectly, to or for the use or benefit
of any official or employee of any government or to any other person if Employee
knows, or has reason to believe, that any part of such payments, loans or gifts,
or promise or offer, would violate the laws or regulations of any country,
including, without limitation, the United States of America, having jurisdiction
over Employee, the Company or any of the Company's subsidiaries.
By signing this Employment Agreement, Employee acknowledges that he has not
made and will not make any payments, loans, gifts, promises of payments, loans
or gifts to or for the use or benefit of any official or employee of any
government or to any other person which would violate the laws or regulations of
any country, including, without limitation, the United States of America, having
jurisdiction over Employee, the Company or any of the Company's subsidiaries.
(f) Restricted Period. The term "Restricted Period" shall mean the two-year
period which starts on the date Employee's employment terminates with the
Company without regard to whether such termination comes before or after the end
of the term of this Employment Agreement.
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(g) Reasonable and Continuing Obligations. Employee agrees that Employee's
obligations under this Section 5 are obligations which will continue beyond the
date Employee's employment terminates and that such obligations are reasonable
and necessary to protect the Company's legitimate business interests. The
Company additionally shall have the right to take such other action as the
Company deems necessary or appropriate to compel compliance with the provisions
of this Section 5.
6. MISCELLANEOUS.
(a) Notices. Notices and all other communications shall be in writing and
shall be deemed to have been duly given when personally delivered or when mailed
by United States registered or certified mail. Notices to the Company shall be
sent to 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000. Notices and
communications to Employee shall be sent to Employee's home address as indicated
by the records of the Company.
(b) No Waiver. Except for the notice described in Section 4(f), no failure
by either the Company or Employee at any time to give notice of any breach by
the other of, or to require compliance with, any condition or provision of this
Employment Agreement shall be deemed a waiver of any provisions or condition of
this Employment Agreement.
(c) Arbitration and Governing Law. ANY UNRESOLVED DISPUTE OR CONTROVERSY
BETWEEN EMPLOYEE AND THE COMPANY ARISING UNDER OR IN CONNECTION WITH THIS
EMPLOYMENT AGREEMENT SHALL BE SETTLED EXCLUSIVELY BY ARBITRATION, CONDUCTED IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN
EFFECT. THE COMPANY WILL BEAR THE ADMINISTRATIVE COSTS OF ANY ARBITRATION UNDER
THIS EMPLOYMENT AGREEMENT, INCLUDING THE ARBITRATOR'S FEES. THE ARBITRATOR SHALL
NOT HAVE THE AUTHORITY TO ADD TO, DETRACT FROM, OR MODIFY ANY PROVISION HEREOF.
THE ARBITRATOR SHALL HAVE THE AUTHORITY TO ORDER REMEDIES WHICH EMPLOYEE COULD
OBTAIN IN A COURT OF COMPETENT JURISDICTION. A DECISION BY THE ARBITRATOR SHALL
BE IN WRITING AND WILL BE FINAL AND BINDING. JUDGMENT MAY BE ENTERED ON THE
ARBITRATOR'S AWARD IN ANY COURT HAVING JURISDICTION. THE ARBITRATION PROCEEDING
SHALL BE HELD IN HOUSTON, TEXAS, UNITED STATES OF AMERICA. NOTWITHSTANDING THE
FOREGOING, THE COMPANY SHALL BE ENTITLED TO SEEK INJUNCTIVE OR OTHER EQUITABLE
RELIEF FROM ANY COURT OF COMPETENT JURISDICTION, WITHOUT THE NEED TO RESORT TO
ARBITRATION IN THE EVENT THAT EMPLOYEE VIOLATES SECTIONS 5(b), 5(c), 5(d) OR
5(e) OF THIS EMPLOYMENT AGREEMENT. THIS EMPLOYMENT AGREEMENT SHALL IN ALL
RESPECTS BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS.
(d) Assignment by the Company; Meaning of "Company". This Employment
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to all or substantially all of the business or assets of the Company.
The Company may assign this Employment Agreement to any affiliate or successor,
and no such assignment shall be treated as a termination of Employee's
employment under this Employment Agreement; provided,
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however, that in the case of an assignment to an affiliate, the Company shall
not be relieved of its obligations under this Employment Agreement. The Company
will require any successor corporation (whether direct or indirect, and whether
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company to expressly assume and to agree to
perform this Employment Agreement in the same manner and to the same extent as
the Company, as if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effectiveness of any such
succession shall be a material breach of this Employment Agreement. As used in
this Employment Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business or assets as aforesaid which assumes
and agrees to perform this Employment Agreement by operation of law, or
otherwise.
(e) Assignment by Employee. Employee's rights and obligations under this
Employment Agreement are personal, and they shall not be assigned or transferred
without the Company's prior written consent.
(f) Other Agreements. With the exception of the Company's stock option
plans (and related agreements), restricted stock plan (and related agreements)
and incentive plans, and the guidelines referred to in Section 3(b), this
Employment Agreement replaces and merges any and all previous agreements and
understandings regarding all the terms and conditions of Employee's employment
relationship with the Company, and this Employment Agreement constitutes the
entire agreement of the Company and Employee with respect to such terms and
conditions.
(g) Amendment. No amendment to this Employment Agreement shall be effective
unless it is in writing and signed by the Company and by Employee.
(h) Invalidity. If any provision of this Employment Agreement is held to be
invalid, illegal or otherwise unenforceable, the remaining provisions shall be
unaffected and shall continue in full force and effect, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
(i) Enforceability by Beneficiaries. This Employment Agreement shall inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, legal or personal representatives and successors and if Employee should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts shall be paid in accordance with the terms of this
Employment Agreement to Employee's devisee, legatee or other designee or, if
there is no such designee, to his estate.
(j) Reimbursement of Certain Expenses. To the extent Employee shall prevail
in any arbitration proceeding pursuant to Section 6(c) to resolve any dispute or
controversy between Employee and the Company arising under or in connection with
this Employment Agreement, then the Company shall reimburse Employee, or pay on
Employee's behalf, all of Employee's reasonable expenses, including without
limitation attorneys' fees, incurred by Employee in connection with the
arbitration.
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7. NOVATION.
This Employment Agreement is a novation to the Amended and Restated
Employment Agreement between the Company and Employee effective February 20,
2003, which is hereby extinguished. As consideration for this novation, Employee
acknowledges the value of the matters described in the recitals to this
Employment Agreement and the other terms of this Employment Agreement and agrees
that they are adequate to make the novation binding in all respects.
IN WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement in multiple originals to be effective as set out above.
HARVEST NATURAL RESOURCES, INC. XXXXX X. XXXXXXXX
By: /s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ----------------------------------------
Xxxxx X. Xxxx
President and Chief Executive
Officer
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