EXHIBIT 10.24
EMPLOYMENT AGREEMENT
This Employment Agreement, effective November 12, 2001 is between Xxxxxx
Oil and Gas Company, (15835 Park Ten Place Drive, Suite 115, Houston, Texas
77084) (hereinafter sometimes called the "Company") and Xxxx X. Xxxxxx, a
resident of Texas, United States of America, whose residence is 00000 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxx 00000-0000 (SS No. ###-##-####) ("Employee"), the terms and
conditions of which are as follows:
SECTION 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 starts on November 12, 2001 and ends on November 11,
2002, which term shall be referred to in this Employment Agreement as the
"Term."
SECTION 2. POSITION, DUTIES AND GEOGRAPHIC AREA.
(a) Position. Subject to election by the Company's Board of Directors,
Employee's position at the beginning of the Term shall be Vice
President - Controller of Xxxxxx Oil and Gas Company.
(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 Company's affiliates.
(c) The Company. 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.
SECTION 3. COMPENSATION AND BENEFITS.
(a) Monthly Base Salary.
During the Term, Employee' yearly base salary shall be $135,000.00
US, which yearly base salary shall be payable from the Company's
Houston offices listed above to Employee at his address indicated
above 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.
(b) Annual Bonus. Employee shall be entitled to an annual bonus
beginning in 2002, as 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 contract results, the Company's overall
performance and any special circumstances the Human Resources
Committee and the Board deems appropriate. Any such bonus is to be
determined at the discretion of the Company's Human Resources
Committee and the Board of Directors.
(c) 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.
(d) Stock Options. On November 14, 2001, Employee was granted a stock
option to purchase 50,000 shares of the Company under the Company's
2001 Long-Term Stock Incentive Plan at an option price set on the
date the option is granted. Employee's right to exercise this option
shall vest over a three (3) year period: 16,666 shares on November
14, 2002; 16,666 shares on November 14, 2003; and 16,668 shares on
November 14, 2004; provided, Employee is still an employee of
Company and as otherwise set forth in the Plan and Stock Option
Agreement, attached hereto and incorporated herein, to be executed
between Employee and Company on the date of grant.
(e) Vacation - Employee shall be entitled to four (4) weeks annual
vacation beginning in 2002.
SECTION 4. TERMINATION OF EMPLOYMENT.
(a) Termination By The Company Other Than For Cause Or Disability Or By
Employee For Good Reason.
(1) The Company shall have the right to terminate Employee's
employment other than for "Cause" or "Disability" at any time and
Employee shall have the right to quit or resign for "Good Reason" at
any time.
(2) If the Company or its successors terminates Employee's
employment (or, fails to maintain or reelect Employee an officer of
the Company) other than for Cause or Disability, Employee resigns
for Good Reason, or the Company fails to renew Employee's employment
agreement for a term of at least one (1) year, the Company shall
continue to pay Employee's monthly base salary as in effect
immediately before Employee's termination of employment until the
end of the Term, and for one (1) year thereafter or, if earlier,
until the date the Company determines that Employee has engaged in
any activity which violates any covenant under this Agreement.
(3) Option Acceleration. If Employee's employment with the Company
or its successors terminates as a result other than for "Cause" or
"Disability," Company fails to maintain or reelect Employee an
officer of the Company, Employee resigns for "Good Reason", or
Company fails to renew this Employment Agreement for an additional
one (1) year term, then any outstanding stock option(s) granted by
the Company to the
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Employee shall become fully vested and shall remain exercisable for
twelve (12) months following Employee's termination pursuant to this
Section 4(a), or the tenth anniversary of the date(s) of the
grant(s) specified in the relevant option agreement(s), whichever is
the shorter period.
(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 resign at any time other than for Good Reason.
(2) If the Company terminates Employee's employment for Cause 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) Cause. The term "Cause" shall mean (1) Employee's final conviction
of a felony by a trial court, (2) Employee's breach of this
Employment Agreement or (3) Employee's violation of any policy or
code of conduct of the Company, all as reasonably determined by the
Company.
(d) Good Reason. The term "Good Reason" shall mean 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.
(e) 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(e), the
Company's only obligation under this Employment Agreement shall be
to pay Employee or, if Employee dies, Employee's estate any base
salary (including accrued vacation) earned but unpaid through the
date employee's employment terminates.
(f) 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.
(g) Benefits. Employee shall have the right to receive any benefits
payable under the Company's employee benefits plans, programs and
policies which Employee otherwise has a non-forfeitable right to
receive under the terms of such plans, programs and policies
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(other than severance benefits) independent of Employee's rights under
this Employment Agreement upon a termination of employment in addition to
any monthly base salary payable under this section 4 without regard to the
reason for such termination of employment.
SECTION 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 shall promptly return all "Property" which had
been entrusted or made available to Employee by the Company.
(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 Company's business,
products or services.
(b) Trade Secrets.
(1) In consideration for the promises made in section 5(d) of this
Agreement, the Company promises that it will provide and make
available to Employee certain confidential, proprietary information
and trade secrets.
(2) Employee covenants and agrees that Employee will hold in a
fiduciary capacity for the benefit of the Company and each of its
affiliates, and will 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,
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
which are in addition to those rights the Company has under the
common law or applicable statutes for the protection of trade
secrets.
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(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 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 that the Company
or an affiliate (not otherwise included in the definition of a Trade
Secret under this 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 Term of Employee's employment with the
Company or for any period beyond the Term that Employee continues to
be paid a base salary, the Employee covenants and agrees that 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 competing with Company (unless
the 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 (d), the term "Company" shall include Xxxxxx Oil and Gas
Company 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, the term "businesses" shall mean any
enterprise, commercial venture, or project involving oil and gas
upstream or downstream commercial activities.
Further, during the Term of Employee's employment with the Company
or for any period beyond the Term that Employee continues to be paid
a base salary, the Employee covenants and agrees that he will not
directly or indirectly through another entity induce or otherwise
attempt to influence any employee of the Company to leave the
Company's employment or in any way interfere with the relationship
between Company and any employee thereof. Further, the 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.
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(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 the United States of America, having
jurisdiction over Employee or the Company.
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 the
United States of America, having jurisdiction over Employee or the
Company
By signing this 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 the
United States of America, having jurisdiction over Employee or the
Company.
(f) Restricted Period. The term "Restricted Period" shall mean the two
years 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.
(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, 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.
SECTION 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 00000 Xxxx Xxx Xxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000. Notices and communications to Employee
shall be sent to the Employee's address provided above.
(b) No Waiver. Except for the notice described in section 4(d), 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
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(c) Arbitration and Governing Law. ANY UNRESOLVED DISPUTE OR CONTROVERSY
BETWEEN EMPLOYEE AND THE COMPANY ARISING UNDER OR IN CONNECTION WITH
THIS 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 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, INCLUDING BACK-PAY,
SEVERANCE COMPENSATION, REIMBURSEMENT OF COSTS, INCLUDING THOSE
INCURRED TO ENFORCE THIS AGREEMENT, AND INTEREST THEREON IN THE
EVENT THE ARBITRATOR DETERMINES THAT EMPLOYEE WAS TERMINATED WITHOUT
DISABILITY OR GOOD CAUSE, AS DEFINED HEREIN, OR THAT THE COMPANY HAS
OTHERWISE MATERIALLY BREACHED THIS AGREEMENT. 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(c), 5(d) OR 5(e) OF THIS AGREEMENT. THIS
AGREEMENT SHALL IN ALL RESPECTS BE CONSTRUCTED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS.
(d) Assignment. 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. 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.
(e) Other Agreements. 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.
(f) Amendment. No amendment to this Employment Agreement shall be
effective unless it is in writing and signed by the Company and by
Employee.
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(g) Invalidity. If any part of this Employment Agreement is held by a
court of competent jurisdiction to be invalid or otherwise
unenforceable, the remaining part shall be unaffected and shall
continue in full force and effect, and the invalid or otherwise
unenforceable part shall be deemed not to be part of this Employment
Agreement.
IN WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement in multiple originals to be effective as set out above.
XXXXXX OIL AND GAS COMPANY XXXX X. XXXXXX
By:_______________________________ _____________________________
_______________________________
Title
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