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EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is made and entered into effective as of January 7, 1998, among OEI HOLDING
CORPORATION, a Delaware corporation ("Newco"), UNITED MERIDIAN CORPORATION, a
Delaware corporation ("UMC"), and OCEAN ENERGY, INC. a Delaware corporation
("OEI").
RECITALS
A. Newco, UMC and OEI have entered into that certain Agreement
and Plan of Merger, dated as of December 22, 1997 (the "Merger Agreement").
B. Newco, UMC and OEI desire to amend the Merger Agreement as set
forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in the Merger
Agreement and this Amendment, the parties hereto agree as follows:
1. Amendment to Section 1.5(b) of the Merger Agreement. Section
1.5(b) of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"(b) Charter Documents. The Certificate of Merger for the
Newco Merger shall provide that at the Newco Effective Time, the
introductory paragraph to Section 4 of the certificate of incorporation
of OEI shall be amended and restated in its entirety as set forth in
EXHIBIT G hereto. At the Newco Effective Time, Sections 13 and 14 of
Article III of the Amended and Restated Bylaws of OEI (the "OEI
Bylaws") shall be amended and restated in their entirety as set forth
on EXHIBIT A-1 hereto, and Articles V and VIII of the OEI Bylaws shall
be amended and restated as set forth in EXHIBIT A-2 hereto. At the UMC
Effective Time, the certificate of incorporation and bylaws of OEI, as
in effect immediately prior to the UMC Effective Time, shall be the
certificate of incorporation and bylaws, respectively, of OEI until
thereafter changed or amended as provided therein or by applicable
law."
2. Deletion of Exhibit A to the Merger Agreement. Exhibit A
attached to the Merger Agreement is hereby deleted in its entirety.
3. Addition of Exhibits X-0, X-0 and G to the Merger Agreement.
The Merger Agreement is hereby amended to add Exhibits X-0, X-0 and G thereto as
set forth on EXHIBITS X-0, X-0 and G, respectively, attached hereto.
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4. Amendment to Section 1.7 of the Merger Agreement. Section
1.7 of the Merger Agreement is hereby deleted in its entirety.
5. Amendment to Exhibit E of the Merger Agreement. Exhibit E to
the Merger Agreement is hereby amended and restated in its entirety as set forth
on EXHIBIT E attached hereto.
6. Amendment to Exhibit F of the Merger Agreement. Exhibit F to
the Merger Agreement is hereby amended and restated in its entirety as set forth
on EXHIBIT F attached hereto.
7. Effect of Amendment. Except as amended by the foregoing, the
Merger Agreement shall remain in full force and effect.
8. Counterparts. This Amendment may be executed in any number of
identical counterparts, each of which shall be deemed an original for all
purposes.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of January 7, 1998.
OEI HOLDING CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
UNITED MERIDIAN CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
and Chief Executive Officer
OCEAN ENERGY, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman or the Board, President and
Chief Executive Officer
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EXHIBIT A-1 TO AMENDMENT NO.1
TO THE MERGER AGREEMENT
EXHIBIT A-1
TO THE MERGER AGREEMENT
AMENDMENTS TO ARTICLE III OF OEI BYLAWS
Committees of Directors
Section 13.
(a) In addition to the committees set forth in Section
14(a) of this Article III, the Board of Directors may, by resolution passed by a
two-thirds vote of the entire Board of Directors, designate one or more
additional committees, with each such committee consisting of one or more
directors of the Corporation and having such powers and authority as the Board
of Directors shall designate by such resolutions. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation (except pursuant to a resolution relating to the
issuance of capital stock pursuant to Section 151 of Title 8 of the Delaware
General Corporation Law); adopting an agreement of merger or consolidation;
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; recommending to the
stockholders the dissolution of the Corporation or a revocation of a
dissolution; or amending the bylaws of the Corporation and, unless the
resolution, certificate of incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
members as may be determined from time to time by resolution adopted by the
Board of Directors.
(b) Any modification to the powers and authority of any
committee shall require the adopting of a resolution by a two-thirds vote of the
entire Board of Directors.
(c) All acts done by any committee within the scope of
its powers and authority pursuant to these Bylaws and the resolutions adopted by
the Board of Directors in accordance with the terms hereof shall be deemed to
be, and may be certified as being, done or conferred under authority of the
Board of Directors. The Secretary or any Assistant Secretary is empowered to
certify that any resolutions duly adopted by any such committee is binding upon
the Corporation and to execute and deliver such certifications from time to time
as may be necessary or proper to conduct of the business of the Corporation.
(d) Regular meetings of committees shall be held at such
times as may be determined by resolution of the Board of Directors or the
committee in question and no notice shall be required for any regular meeting
other than such resolution. A special meeting of any
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committee shall be called by resolution of the Board of Directors, or by the
Secretary or an Assistant Secretary upon the request of the chairman or a
majority of the members of any committee. Notice of special meetings shall be
given to each member of the committee in the same manner as that provided for in
Article IV, Section 1 of these Bylaws.
(e) Each committee shall keep regular minutes of its
meeting and report the same to the Board of Directors.
Section 14.
(a) The Corporation shall have four standing committees:
the finance committee, the nominating committee, the audit committee and the
compensation committee.
(1) The finance committee shall have those powers and
authority as are delegated to it from time to time pursuant to a
resolution passed by a two-thirds vote of the total number of directors
fixed by the Board of Directors pursuant to Article III, Section 1 of
these Bylaws which the Corporation would have if there were not
vacancies (the "entire Board of Directors").
(2) The nominating committee shall have the following
exclusive powers and authority: (i) evaluating and recommending
director candidates to the Board of Directors, (ii) recommending
director compensation and benefits philosophy for the Corporation,
(iii) reviewing individual director performance as issues arise and
(iv) periodically reviewing the Corporation's corporate governance
profile.
(3) The audit committee shall have the following
powers and authority: (i) employing independent public accountants to
audit the books of account, accounting procedures and financial
statements of the Corporation and to perform such other duties from
time to time as the audit committee may prescribe, (ii) receiving the
reports and comments of the Corporation's internal auditors and of the
independent public accountants employed by the committee and to take
such action with respect thereto as may seem appropriate, (iii)
requesting the Corporation's consolidated subsidiaries and affiliated
companies to employ independent public accountants to audit their
respective books of account, accounting procedures and financial
statements, (iv) requesting the independent public accountants to
furnish to the compensation committee the certifications required under
any present or future stock option, incentive compensation or employee
benefit plan of the Corporation, (v) reviewing the adequacy of internal
financial controls, (vi) approving the accounting principles employed
in financial reporting, (vii) approving the appointment or removal of
the Corporation's general auditor, and (viii) reviewing the accounting
principles employed in financial reporting. None of the members of the
audit committee shall be an officer or full-time employee of the
Corporation or of any subsidiary or affiliate of the Corporation.
(4) The compensation committee shall have the
following powers and authority: (i) determining and fixing the
compensation for all senior officers of the
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Corporation and those of its subsidiaries that the compensation
committee shall from time to time consider appropriate, as well as all
employees of the Corporation and its subsidiaries compensated at a
rate in excess of such amount per annum as may be fixed or determined
from time to time by the Board of Directors, (ii) performing the
duties of the committees of the Board of Directors provided for in any
present or future stock option, incentive compensation or employee
benefit plan of the Corporation or, if the compensation committee
shall so determine, any such plan of any subsidiary and (iii)
reviewing the operations of and policies pertaining to any present or
future stock option, incentive compensation or employee benefit plan
of the Corporation or any subsidiary that the compensation committee
shall from time to time consider appropriate.
(b) The Board of Directors may elect a secretary of any
such committee. If the Board of Directors does not elect such a secretary, the
committee shall do so. The secretary of any committee need not be a member of
the committee, but shall be selected from a member of the staff of the office of
the Secretary of the Corporation, unless otherwise provided by the Board of
Directors or the committee, as applicable.
(c) Each member of any committee of the Board of
Directors shall hold office until such member's successor is elected and has
qualified, unless such member sooner dies, resigns or is removed. The number of
directors which shall constitute any committee shall be determined by resolution
adopted by the Board of Directors.
(d) The Board of Directors may remove a director from a
committee or change the chairmanship of a committee by resolution adopted by the
Board of Directors, provided that a resolution to remove Xxxx Xxxxx or Xxxxx X.
Xxxxxx from a committee or the chairmanship of a committee shall require a
two-thirds vote of the entire Board of Directors.
(e) The Board of Directors may designate one or more
directors as alternate members of any committee to fill any vacancy on a
committee and to fill a vacant chairmanship of a committee, occurring as a
result of a member or chairman leaving the committee, whether through death,
resignation, removal or otherwise.
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EXHIBIT A-2 TO AMENDMENT NO.1
TO THE MERGER AGREEMENT
EXHIBIT A-2
TO THE MERGER AGREEMENT
AMENDMENTS TO ARTICLES V AND VIII OF OEI BYLAWS
ARTICLE V
OFFICERS
General
Section 1. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a Chairman of the Board; a
President and Chief Executive Officer (which shall be the same person holding
both such offices); and may also consist of a Chief Operating Officer; a Chief
Financial Officer; one or more vice presidents; a secretary; one or more
assistant secretaries; a treasurer; one or more assistant treasurers; a
controller; and such other officers as in the judgment of the Board of Directors
may be necessary or desirable.
Section 2. All officers chosen by the Board of Directors
shall have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article V. Such officers
shall also have powers and duties as from time to time may be conferred by the
Board of Directors or any committee thereof.
Section 3. Any number of officers may be held by the same
person, unless otherwise prohibited by law, the certificate of incorporation or
these Bylaws. The officers of the Corporation need not be stockholders or
directors of the Corporation.
Section 4. The salaries of all officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
Election and Term of Office
Section 5. Subject to Section 15 of this Article V, the
elected officers of the Corporation shall be elected annually by the Board of
Directors at the regular meeting of the Board of Directors held after each
annual meeting of the stockholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
convenient. Subject to Section 15 of this Article V, each officer shall hold
office until his successor shall have been duly elected and shall have qualified
or until his death or until he shall resign or be removed.
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Chairman of the Board
Section 6. The Chairman of the Board shall be a member of the
Board of Directors and shall be an officer of the Corporation. The Chairman of
the Board, if present, shall preside at all meetings of the Board of Directors.
Vice Chairman of the Board
Section 7. The Vice Chairman of the Board shall be a member
of the Board of Directors and shall be an officer of the Corporation. The Vice
Chairman of the Board shall have such duties and powers as shall be assigned to
him from time to time by the President and Chief Executive Officer of the
Corporation.
President and Chief Executive Officer
Section 8. Subject to the penultimate sentence of this
Section, the offices of President and Chief Executive Officer shall be held by a
single individual who is a member of the Board of Directors and such person
shall be an officer of the Corporation. The President and Chief Executive
Officer shall supervise, coordinate and manage the Corporation's business and
activities and supervise, coordinate and manage its operating expenses and
capital allocation, shall make recommendations as to compensation and benefits
to the Compensation Committee of the Board of Directors with respect to the
employees of the Corporation and its subsidiaries, shall have general authority
to exercise all the powers necessary for the President and Chief Executive
Officer of the Corporation and shall perform such other duties and have such
other powers as may be prescribed by the Board of Directors or these Bylaws, all
in accordance with basic policies as established by and subject to the oversight
of the Board of Directors. In the absence or disability of the Chairman of the
Board, the duties of the Chairman of the Board shall be performed and the
Chairman of the Board's authority may be exercised by the President and Chief
Executive Officer, and in the event the President and Chief Executive Officer is
absent or disabled, such duties shall be performed and such authority may be
exercised by a director designated for this purpose by the Board of Directors.
Notwithstanding the foregoing, the Board of Directors may designate the Chief
Operating Officer, if one is so designated by the Board of Directors, as
President of the Corporation provided that the duties and authority of the Chief
Executive Officer are not materially diminished. The Vice Chairman and all
executive vice presidents shall report directly to the Chief Executive Officer
or such other officer of the Corporation that the President and Chief Executive
Officer may designate.
Chief Financial Officer
Section 9. The Chief Financial Officer shall have
responsibility for the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer
and the Controller. The Chief Financial Officer shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
these Bylaws, all in accordance with basic policies as established by and
subject to the oversight of the
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Board of the Directors, the Chairman and Chief Executive Officer and the
President and Chief Operating Officer.
The Executive Vice Presidents, Senior Vice Presidents and Vice Presidents
Section 10. In the absence of the president or in the event of
his inability or refusal to act, an executive vice president or, in the absence
of an executive vice president, a senior vice president or a vice president (in
either case in the order determined by the Board of Directors, or, if there be
no such determination, then in the order of their election), shall perform the
duties of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions imposed upon the president. The executive vice
presidents, senior vice presidents and vice presidents shall perform such other
duties and have such other powers as the president or Board of Directors may
from time to time prescribe.
The Secretary and the Assistant Secretary
Section 11. The secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation, if any such seal be
adopted by resolution of the Board of Directors, and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing thereof by his signature.
Section 12. The assistant secretary (or if there be more than
one, the assistant secretaries in the order determined by the Board of
Directors, or, if there be no such determination, then in the order of their
election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
The Treasurer and Assistant Treasurer
Section 13. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the president and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation.
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Section 14. The assistant treasurer (or, if there shall be
more than one, the assistant treasurers in the order determined by the Board of
Directors, or, if there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Certain Actions
Section 15. Notwithstanding anything to the contrary contained
in these Bylaws, the removal of the current Chairman of the Board and President
and Chief Executive Officer as of [DATE OF THE EFFECTIVE TIME], or any material
modification to either of their respective roles, duties or authority shall
require a two-thirds vote of the entire Board of Directors.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed,
or new bylaws may be adopted by the affirmative vote of a majority of the entire
Board of Directors at any meeting and without the consent or vote of the
stockholders; provided, however, that the affirmative vote of no less than
two-thirds of the entire Board of Directors is required to alter, amend or
repeal the bylaws set forth in Article III, Sections 13 and 14, Article V,
Section 15 and this proviso. These Bylaws may be altered, amended or repealed,
or new bylaws may be adopted by the stockholders at any regular meeting of the
stockholders or at any special meeting of the stockholders, if notice of such
alteration, amendment, repeal or adoption of new bylaws is contained in the
notice of such meeting, by the holders of at least 66-2/3% of the total voting
power of all shares of stock of the Corporation entitled to vote in the election
of directors, considered for purposes of this Article VIII as one class.
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EXHIBIT E TO AMENDMENT NO.1
TO THE MERGER AGREEMENT
EXHIBIT E
TO THE MERGER AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective
as of [date of the Effective Time] (the "Effective Date") by and between Ocean
Energy, Inc., a Delaware corporation ("Company"), and Xxxxx X. Xxxxxx
("Employee").
WHEREAS, the Company employs Employee and desires to continue such
employment relationship and Employee desires to continue such employment;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Employee, and
Employee hereby accepts employment by the Company, on the terms and conditions
set forth in this Agreement.
2. Term of Employment. Subject to the provisions for earlier
termination provided in the Agreement, the term of this Agreement (the "Term")
shall commence on the Effective Date and shall terminate on the third
anniversary of the Effective Date; provided, however, commencing on the
Effective Date and on each day thereafter, the Term shall automatically be
extended one additional day unless the Board of Directors of the Company (the
"Board") shall give written notice to Employee that the Term shall cease to be
so extended as of a specified future date, in which event the Agreement shall
terminate on the third anniversary of the specified future date. Notwithstanding
any provision of this Agreement to the contrary, termination of this Agreement
shall not alter or impair any rights or benefits of Employee (or Employee's
estate or beneficiaries) that have arisen under this Agreement on or prior to
such termination.
3. Employee's Duties. During the Term, Employee shall serve as
the Chief Executive Officer and President of the Company, with such customary
duties and responsibilities as may from time to time be assigned to him by the
Board, provided that such duties are at all times consistent with the duties of
such positions. Employee shall report directly to the Board. All other employees
of the Company shall report to Employee.
Employee agrees to devote his full attention and time during normal
business hours to the business and affairs of the Company and to use reasonable
best efforts to perform faithfully and efficiently such duties and
responsibilities. Notwithstanding the foregoing, during the Term Employee may
engage in the following activities so long as they do not interfere in any
material respect with the performance of Employee's duties and responsibilities
hereunder: (i) serve on corporate, civic or charitable boards or committees,
(ii) deliver lectures, fulfill speaking
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engagements or teach on a part-time basis at educational institutions, and (iii)
manage his personal investments; provided, however, in no event shall the
conduct of any of such activities by Employee be deemed to materially interfere
with Employee's duties hereunder until Employee has been notified in writing
thereof by the Board and given a reasonable period in which to cure such
interference.
The Company agrees to use its reasonable best efforts to cause
Employee to be elected or appointed, or re-elected or re-appointed, as a
director of the Company at all times during the Term.
4. Base Compensation. For services rendered by Employee under
this Agreement the Company shall pay to Employee a base salary ("Base
Compensation") of $600,000 per annum payable in accordance with the Company's
customary payroll practice for its senior executive officers. The amount of Base
Compensation shall be reviewed periodically by the Board and may be increased
from time to time as the Board may deem appropriate. Base Compensation, as in
effect at any time, may not be decreased.
5. Annual Bonus. In addition to his Base Compensation, Employee
shall be eligible to receive each year during the Term, a cash incentive payment
in an amount equal to 200% of Employee's Base Compensation (the "Target Bonus").
The amount of the Target Bonus earned for any year shall be determined by the
Compensation Committee of the Board based on Employee's individual performance
and the performance by the Company.
6. Other Benefits. Employee shall be entitled to participate in
all incentive compensation plans and to receive all fringe benefits and
perquisites offered by the Company to any of its senior executive officers,
including, without limitation, participation in the various employee benefit
plans or programs provided to the employees of the Company in general, subject
to the regular eligibility requirements with respect to each of such benefit
plans or programs, and such other benefits or prerequisites as may be approved
by the Board during the Term, all on a basis at least as favorable to Employee
as may be provided or offered to any other senior executive officer of the
Company.
In addition, and not in limitation of the foregoing, Employee
shall be entitled to the following:
(a) Business Expenses. The Company shall reimburse Employee
for all business expenses reasonably incurred by Employee in the
performance of his duties. It is understood that Employee is authorized
to incur reasonable business expenses for promoting the business of the
Company, including reasonable expenditures for travel, lodging, meals
and client or business associate entertainment. Request for
reimbursement for such expenses must be accompanied by appropriate
documentation.
(b) Automobile. The Company shall either provide Employee
with an automobile of a make and model selected by Employee or
promptly reimburse Employee in full for his cost of leasing or
purchasing an automobile. In addition, the Company shall
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pay or reimburse Employee for all reasonable costs and expenses
associated with the use, maintenance, insurance and repair of such
automobile.
(c) Clubs. The Company shall reimburse Employee for the
cost and expenses (including initiation fees, assessments and annual
dues) of such social clubs and business clubs as Employee determines,
in his good faith opinion, to be helpful or appropriate to the
performance of his duties.
(d) Relocation Expenses. In conjunction with Employee's
relocation of his principal residence to the greater Houston, Texas
metropolitan area, the Company shall reimburse Employee for all
out-of-pocket expenses involved in such move, including, without
limitation, packing and transport of personal, family, and household
goods and vehicles by suitable service providers, for any brokerage
fees for the sale or purchase of any residences, of any loss of
economic value occasioned by the timing of the sale or by Employee's
inability to recover monies invested in any personal residence sold,
temporary housing costs in suitable alternative housing, all utility
severance and hook-up costs, and any other relocation expenses, all
such sums to be grossed-up for the impact of any federal, state or
local taxes levied against Employee for such portions of such
reimbursement as shall be taxable and non-deductible to Employee.
7. Termination. This Agreement may be terminated prior to the end
of its Term as set forth below.
(a) Resignation. Employee may resign his position at any
time. In the event of such resignation, except in the case of
resignation for Good Reason (as defined below), Employee shall not be
entitled to further compensation pursuant to this Agreement.
(b) Death. If Employee's employment is terminated due to
his death, this Agreement shall terminate and the Company shall have
no obligations to his legal representatives with respect to this
Agreement other than the payment of any compensation which had accrued
hereunder at the date of Employee's death.
(c) Discharge.
(i) The Company may terminate this Agreement and
Employee's employment for any reason deemed sufficient by the
Company upon notice as provided in Section 10. However, in the
event that Employee's employment is terminated during the Term
by the Company for any reason other than his Misconduct or
Disability (as such terms are defined below), then, subject to
Section 7(h) below: (A) within five business days of the Date
of Termination, the Company shall pay to Employee a lump sum
amount in cash equal to three times the sum of (1) Employee's
Base Compensation and (2) Employee's Target Bonus; (B) for the
36-month period after such Date of Termination the Company, at
its sole expense, shall continue to provide or arrange to
provide Employee (and Employee's dependents) with health
insurance benefits no less favorable than the
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health plan benefits provided by the Company (or any
successor) during such 36-month period to any senior
executive officer of the Company; provided, further, to the
extent the coverage or benefits received are taxable to
Employee, the Company shall make Employee "whole" on a net
after tax basis; and (C) on the Date of Termination all then
outstanding Company stock-based awards of Employee, whether
under this Agreement, a Company stock plan or otherwise,
shall become immediately exercisable and payable in full, as
the case may be, with any performance goals associated
therewith being deemed to have been achieved at the maximum
levels. Notwithstanding anything in this Agreement to the
contrary, if any payment to Employee in respect of a Company
stock-based award would give rise to a short-swing profit
liability to Employee under Section 16(b) of the Securities
Exchange Act of 1934, then both the payment and the
entitlement to payment thereof shall automatically be
deferred until the earliest date at which the payment of
such benefit would not result in a short-swing profit
liability to Employee.
(ii) Notwithstanding the foregoing provisions of this
Section 7, in the event Employee is terminated because of
Misconduct, the Company shall have no obligations pursuant to
this Agreement after the Date of Termination. As used herein,
"Misconduct" means (a) the willful and continued failure by
Employee to substantially perform his duties with the Company
(other than any such failure resulting from Employee's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice
of Termination by Employee for Good Reason), after a written
demand for substantial performance is delivered to Employee by
the Board, which demand specifically identifies the manner in
which the Board believes that Employee has not substantially
performed his duties, or (b) the willful engaging by Employee
in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise. For purposes hereof, no
act, or failure to act, on Employee's part shall be deemed
"willful" unless done, or omitted to be done, by Employee not
in good faith and without reasonable belief that Employee's
action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Employee shall not be deemed to
have been terminated for Misconduct unless and until there
shall have been delivered to Employee a copy of a resolution
duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board at a meeting
of the Board called and held for such purpose, finding that in
the good faith opinion of the Board Employee was guilty of
conduct set forth above and specifying the particulars thereof
in detail.
(d) Disability.
(i) If Employee shall have been absent from the
full-time performance of Employee's duties with the Company
for six consecutive months as a result of Employee's
incapacity due to physical or mental illness, as determined by
Employee's physician, and within 30 days after written Notice
of Termination is
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given by the Company Employee shall not have returned to the
full-time performance of Employee's duties, Employee's
employment may be terminated by the Company for
"Disability", provided Employee is entitled to and receiving
benefits under an insured long term disability plan of the
Company. Thereafter, Employee shall not be entitled to
further compensation pursuant to this Agreement.
(ii) If Employee fails during any period during the
Term to perform Employee's full-time duties with the Company
as a result of incapacity due to physical or mental illness,
as determined by Employee's physician, Employee shall continue
to receive his Base Compensation, less any amount payable to
Employee under a Company disability plan, and all other
compensation and benefits during such period until this
Agreement is terminated.
(e) Resignation for Good Reason. Employee shall be entitled
to terminate his employment for Good Reason as defined herein. If
Employee terminates his employment for Good Reason, Employee shall be
entitled to the compensation and benefits provided in Paragraph
7(c)(i) hereof. "Good Reason" shall mean (1) the breach of any of the
Company's obligations under this Agreement without Employee's express
written consent or (2) the occurrence of any of the following
circumstances, as the case may be, without Employee's express written
consent unless such breach or circumstances are fully corrected prior
to the Date of Termination specified in the Notice of Termination
pursuant to Subsection 7(f) given in respect thereof:
(i) the assignment by the Board to Employee of any
duties that, in the good faith opinion of Employee, are
inconsistent with Employee's positions with the Company, or an
adverse alteration (as determined in good faith by Employee)
in the nature or status of Employee's office, title,
responsibilities, including reporting responsibilities, or the
conditions of Employee's employment from those in effect
immediately prior to such alteration;
(ii) the failure by the Company to continue in effect
any compensation plan in which Employee participates that is
material to Employee's total compensation unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure
by the Company to continue Employee's participation therein
(or in such substitute or alternative plan) on a basis not
materially less favorable to Employee, both in terms of the
amount of benefits provided and the level of Employee's
participation relative to other participants;
(iii) the taking of any action by the Company which
would directly or indirectly materially reduce or deprive
Employee of any material fringe benefit then enjoyed by
Employee;
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00
(xx) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and agree
to perform this Agreement, as contemplated in Section 12
hereof;
(v) the relocation of the Company's principal
executive offices outside the greater Houston, Texas
metropolitan area, or the Company's requiring Employee to
relocate anywhere other than the location of the Company's
principal executive offices, except for required travel on the
Company's business to an extent substantially consistent with
Employee's past business travel obligations; or
(vi) any purported termination of Employee's
employment that is not effected pursuant to a Notice of
Termination satisfying the requirements of Subsection (f)
hereof, which purported termination shall not be effective for
purposes of this Agreement.
Employee's right to terminate employment pursuant to this
subsection shall not be affected by Employee's incapacity due to
physical or mental illness. In addition, Employee's continued
employment following any event, act or omission, regardless of the
length of such continued employment, shall not constitute Employee's
consent to, or a waiver of Employee's rights with respect to, such
event, act or omission constituting a Good Reason circumstance
hereunder.
(f) Notice of Termination. Any purported termination of
Employee's employment by the Company or by Employee shall be
communicated by written Notice of Termination to the other party hereto
in accordance with Section 10 hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall set forth in
reasonable detail the reason for termination of Employee's employment,
or in the case of resignation for Good Reason, said notice must specify
in reasonable detail the basis for such resignation. No purported
termination which is not effected pursuant to this Section 7(f) shall
be effective.
(g) Date of Termination, Etc. "Date of Termination" shall
mean the date specified in the Notice of Termination. Either party
may, within 15 days after any Notice of Termination is given, provide
notice to the other party pursuant to Section 10 hereof that a dispute
exists concerning the termination. Notwithstanding the pendency of any
such dispute, the Company will continue to pay Employee his full Base
Compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, Base Compensation) and continue
Employee as a participant in all compensation, benefit and insurance
plans in which Employee was participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in
accordance with Section 16 hereof, but in no event past the expiration
date of this Agreement. Any payments and benefits provided during such
period of dispute shall not reduce any other payments or benefits due
Employee under this Agreement nor shall Employee be liable to repay
the Company for such payments and benefits if it is finally determined
the Employee is not
E-6
17
entitled to payments under the other provisions of this Agreement
following Employee's termination of employment.
(h) Mitigation. Employee shall not be required to mitigate
the amount of any payment or benefit provided for in this Section 7 by
seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Agreement be reduced by any
compensation or benefit earned by Employee as a result of employment
by another employer, self-employment earnings, by retirement benefits,
by offset against any amount claimed to be owing by Employee to the
Company, or otherwise, except that any cash severance amount payable
to Employee pursuant to a Company maintained severance plan or policy
for employees in general shall reduce the amount otherwise payable to
Employee pursuant to Section 7(c)(i)(A).
(i) Gross-Up of Parachute Payments. If, during the Term,
any payment, including without limitation any imputed income, made or
benefit provided to or on behalf of Employee, including any
accelerated vesting or any deferred compensation or other award, in
connection with a "change in control" of the Company, whether or not
made or provided pursuant to this Agreement, results in Employee being
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code of 1986, as amended (or any successor or similar
provision), the Company shall pay Employee an additional amount of
cash (the "Additional Amount") such that the net amount of all
payments and benefits received by Employee after paying all applicable
taxes thereon, including on such Additional Amount, shall be equal to
the net after-tax amount of payments and benefits that Employee would
have received if section 4999 were not applicable.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Employee's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its
affiliated companies and for which Employee may qualify, nor shall anything
herein limit or otherwise adversely affect such rights as Employee may have
under any stock option or other agreements with the Company or any of its
affiliated companies.
9. Assignability. The obligations of Employee hereunder are
personal and may not be assigned or delegated by him or transferred in any
manner whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder, either
in whole or in part, to any parent, affiliate, successor or subsidiary
organization or company of the Company, provided that no such assignment or
delegation shall relieve the Company of its duties and obligations hereunder nor
affect the rights of Employee hereunder.
10. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when personally delivered, sent by overnight
courier or by facsimile with confirmation of receipt or on the third business
day after being mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the Company at its principal office
address and facsimile
E-7
18
number, directed to the attention of the Board with a copy to the Secretary of
the Company, and to Employee at Employee's residence address and facsimile
number on the records of the Company or to such other address as either party
may have furnished to the other in writing in accordance herewith except that
notice of change of address shall be effective only upon receipt.
11. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and assets of the Company ("Successor") or any
corporation which becomes the ultimate parent corporation of the Company or any
such Successor ("Ultimate Parent") to expressly assume and agree in writing
satisfactory to the Employee to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such written
agreement prior to the effectiveness of any such succession or creation of the
parent corporation relationship shall be a breach of this Agreement and shall
entitle Employee to compensation and benefits from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he
terminated his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession (or creation
of the parent corporation relationship) becomes effective shall be deemed the
Date of Termination. As used in this Agreement, including, without limitation,
in Section 3, the term "Company" shall include any Successor and Ultimate Parent
which executes and delivers the Agreement as provided for in this Section 12 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall
inure to the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
13. Indemnification. During the Term and for a period of six years
thereafter, the Company shall cause Employee to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Company or service in
other capacities at the request of the Company. The coverage provided to
Employee pursuant to this Section 8 shall be of a scope and on terms and
conditions at least as favorable as the most favorable coverage provided to any
other officer or director of the Company (or any successor).
In addition, to the maximum extent permitted under applicable
law, during the Term and for a period of six years thereafter, the Company shall
indemnify Employee against and hold Employee harmless from any costs,
liabilities, losses and exposures for Employee's services as an employee,
officer and director of the Company (or any successor).
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00. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement is an integration of the parties
agreement; no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Texas.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
16. Arbitration. Employee shall be permitted (but not required) to
elect that any dispute or controversy arising under or in connection with this
Agreement be settled by arbitration in the city in which Employee resides at
such time in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. All legal fees and costs incurred by Employee in connection
with the resolution of any dispute or controversy under or in connection with
this Agreement shall be paid by the Company as bills for such services are
presented by Employee to the Company.
17. Prior Employment Agreement. This Agreement supersedes and
replaces in full any existing employment agreement (written or oral) between the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on
___________, 1998, effective for all purposes as provided above.
OCEAN ENERGY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Chairman of the Compensation
Committee of the Board
EMPLOYEE
----------------------------------------
Xxxxx X. Xxxxxx
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20
EXHIBIT F TO AMENDMENT NO.1
TO THE MERGER AGREEMENT
EXHIBIT F
TO THE MERGER AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective
as of [date of the Effective Time] (the "Effective Date") by and between Ocean
Energy, Inc., a Delaware corporation ("Company"), and Xxxx X. Xxxxx
("Employee").
WHEREAS, the Company employs Employee and desires to continue such
employment relationship and Employee desires to continue such employment;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Employee, and
Employee hereby accepts employment by the Company, on the terms and conditions
set forth in this Agreement.
2. Term of Employment. Subject to the provisions for earlier
termination provided in the Agreement, the term of this Agreement (the "Term")
shall commence on the Effective Date and shall terminate on the third
anniversary of the Effective Date; provided, however, commencing on the
Effective Date and on each day thereafter, the Term shall automatically be
extended one additional day unless the Board of Directors of the Company (the
"Board") shall give written notice to Employee that the Term shall cease to be
so extended as of a specified future date, in which event the Agreement shall
terminate on the third anniversary of the specified future date. Notwithstanding
any provision of this Agreement to the contrary, termination of this Agreement
shall not alter or impair any rights or benefits of Employee (or Employee's
estate or beneficiaries) that have arisen under this Agreement on or prior to
such termination.
3. Employee's Duties. During the Term, Employee shall assume and
discharge the responsibilities of the Chairman of the Board, as well as such
other responsibilities as may be assigned to him by the Board; provided that
such duties are at all times consistent with the duties of such positions.
Employee agrees to devote his full attention and time during normal
business hours to the business and affairs of the Company and to use reasonable
best efforts to perform faithfully and efficiently such duties and
responsibilities. Notwithstanding the foregoing, during the Term, Employee may
engage in the following activities so long as they do not interfere in any
material respect with the performance of Employee's duties and responsibilities
hereunder: (i) serve on corporate, civic or charitable boards or committees,
(ii) deliver lectures, fulfill speaking engagements or teach on a part-time
basis at educational institutions, and (iii) manage his personal
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21
investments; provided, however, in no event shall the conduct of any of such
activities by Employee be deemed to materially interfere with Employee's duties
hereunder until Employee has been notified in writing thereof by the Board and
given a reasonable period in which to cure such interference.
The Company agrees to use its reasonable best efforts to cause
Employee to be elected or appointed, or re-elected or re-appointed, as a
director of the Company at all times during the Term.
4. Base Compensation. For services rendered by Employee under
this Agreement the Company shall pay to Employee a base salary ("Base
Compensation") of $475,000 per annum payable in accordance with the Company's
customary payroll practice for its senior executive officers. The amount of Base
Compensation shall be reviewed periodically by the Board and may be increased
from time to time as the Board may deem appropriate. Base Compensation, as in
effect at any time, may not be decreased.
5. Annual Bonus. In addition to his Base Compensation, Employee
shall be eligible to receive each year during the Term, a cash incentive payment
in an amount equal to 200% of Employee's Base Compensation (the "Target Bonus").
The amount of the Target Bonus earned for any year shall be determined by the
Compensation Committee of the Board based on Employee's individual performance
and the performance by the Company.
6. Other Benefits. Employee shall be entitled to participate in
all incentive compensation plans and to receive all fringe benefits and
perquisites offered by the Company to any of its senior executive officers,
including, without limitation, participation in the various employee benefit
plans or programs provided to the employees of the Company in general, subject
to the regular eligibility requirements with respect to each of such benefit
plans or programs, and such other benefits or prerequisites as may be approved
by the Board during the Term, all on a basis at least as favorable to Employee
as may be provided or offered to any other senior executive officer of the
Company.
7. Termination. This Agreement may be terminated prior to the end
of its Term as set forth below.
(a) Resignation. Employee may resign his position at any
time. In the event of such resignation, except in the case of
resignation for Good Reason (as defined below), Employee shall not be
entitled to further compensation pursuant to this Agreement.
(b) Death. If Employee's employment is terminated due to
his death, this Agreement shall terminate and the Company shall have
no obligations to his legal representatives with respect to this
Agreement other than the payment of any compensation which had accrued
hereunder at the date of Employee's death.
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22
(c) Discharge.
(i) The Company may terminate this Agreement and
Employee's employment for any reason deemed sufficient by the
Company upon notice as provided in Section 10. However, in the
event that Employee's employment is terminated during the Term
by the Company for any reason other than his Misconduct or
Disability (as such terms are defined below), then, subject to
Section 7(h) below: (A) within five business days of the Date
of Termination, the Company shall pay to Employee a lump sum
amount in cash equal to three times the sum of (1) Employee's
Base Compensation and (2) Employee's Target Bonus; (B) for the
36-month period after such Date of Termination the Company, at
its sole expense, shall continue to provide or arrange to
provide Employee (and Employee's dependents) with health
insurance benefits no less favorable than the health plan
benefits provided by the Company (or any successor) during
such 36-month period to any senior executive officer of the
Company; provided, further, to the extent the coverage or
benefits received are taxable to Employee, the Company shall
make Employee "whole" on a net after tax basis; and (C) on the
Date of Termination all then outstanding Company stock-based
awards of Employee, whether under this Agreement, a Company
stock plan or otherwise, shall become immediately exercisable
and payable in full, as the case may be, with any performance
goals associated therewith being deemed to have been achieved
at the maximum levels. Notwithstanding anything in this
Agreement to the contrary, if any payment to Employee in
respect of a Company stock-based award would give rise to a
short-swing profit liability to Employee under Section 16(b)
of the Securities Exchange Act of 1934, then both the payment
and the entitlement to payment thereof shall automatically be
deferred until the earliest date at which the payment of such
benefit would not result in a short-swing profit liability to
Employee.
(ii) Notwithstanding the foregoing provisions of this
Section 7, in the event Employee is terminated because of
Misconduct, the Company shall have no obligations pursuant to
this Agreement after the Date of Termination. As used herein,
"Misconduct" means (a) the willful and continued failure by
Employee to substantially perform his duties with the Company
(other than any such failure resulting from Employee's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice
of Termination by Employee for Good Reason), after a written
demand for substantial performance is delivered to Employee by
the Board, which demand specifically identifies the manner in
which the Board believes that Employee has not substantially
performed his duties, or (b) the willful engaging by Employee
in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise. For purposes hereof, no
act, or failure to act, on Employee's part shall be deemed
"willful" unless done, or omitted to be done, by Employee not
in good faith and without reasonable belief that Employee's
action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Employee shall not be
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23
deemed to have been terminated for Misconduct unless and
until there shall have been delivered to Employee a copy of
a resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire membership of the Board
at a meeting of the Board called and held for such purpose,
finding that in the good faith opinion of the Board Employee
was guilty of conduct set forth above and specifying the
particulars thereof in detail.
(d) Disability.
(i) If Employee shall have been absent from the
full-time performance of Employee's duties with the Company
for six consecutive months as a result of Employee's
incapacity due to physical or mental illness, as determined by
Employee's physician, and within 30 days after written Notice
of Termination is given by the Company Employee shall not have
returned to the full-time performance of Employee's duties,
Employee's employment may be terminated by the Company for
"Disability", provided Employee is entitled to and receiving
benefits under an insured long term disability plan of the
Company. Thereafter, Employee shall not be entitled to further
compensation pursuant to this Agreement.
(ii) If Employee fails during any period during the
Term to perform Employee's full-time duties with the Company
as a result of incapacity due to physical or mental illness,
as determined by Employee's physician, Employee shall continue
to receive his Base Compensation, less any amount payable to
Employee under a Company disability plan, and all other
compensation and benefits during such period until this
Agreement is terminated.
(e) Resignation for Good Reason. Employee shall be entitled
to terminate his employment for Good Reason as defined herein. If
Employee terminates his employment for Good Reason, Employee shall be
entitled to the compensation and benefits provided in Paragraph
7(c)(i) hereof. "Good Reason" shall mean (1) the breach of any of the
Company's obligations under this Agreement without Employee's express
written consent or (2) the occurrence of any of the following
circumstances, as the case may be, without Employee's express written
consent unless such breach or circumstances are fully corrected prior
to the Date of Termination specified in the Notice of Termination
pursuant to Subsection 7(f) given in respect thereof:
(i) the assignment by the Board to Employee of any
duties that, in the good faith opinion of Employee, are
inconsistent with Employee's positions with the Company, or an
adverse alteration (as determined in good faith by Employee)
in the nature or status of Employee's office, title,
responsibilities, including reporting responsibilities, or the
conditions of Employee's employment from those in effect
immediately prior to such alteration;
F-4
24
(ii) the failure by the Company to continue in effect
any compensation plan in which Employee participates that is
material to Employee's total compensation unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure
by the Company to continue Employee's participation therein
(or in such substitute or alternative plan) on a basis not
materially less favorable to Employee, both in terms of the
amount of benefits provided and the level of Employee's
participation relative to other participants;
(iii) the taking of any action by the Company which
would directly or indirectly materially reduce or deprive
Employee of any material fringe benefit then enjoyed by
Employee;
(iv) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and agree
to perform this Agreement, as contemplated in Section 12
hereof;
(v) the relocation of the Company's principal
executive offices outside the greater Houston, Texas
metropolitan area, or the Company's requiring Employee to
relocate anywhere other than the location of the Company's
principal executive offices, except for required travel on the
Company's business to an extent substantially consistent with
Employee's past business travel obligations; or
(vi) any purported termination of Employee's
employment that is not effected pursuant to a Notice of
Termination satisfying the requirements of Subsection (f)
hereof, which purported termination shall not be effective for
purposes of this Agreement.
Employee's right to terminate employment pursuant to this
subsection shall not be affected by Employee's incapacity due to
physical or mental illness. In addition, Employee's continued
employment following any event, act or omission, regardless of the
length of such continued employment, shall not constitute Employee's
consent to, or a waiver of Employee's rights with respect to, such
event, act or omission constituting a Good Reason circumstance
hereunder.
(f) Notice of Termination. Any purported termination of
Employee's employment by the Company or by Employee shall be
communicated by written Notice of Termination to the other party hereto
in accordance with Section 10 hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall set forth in
reasonable detail the reason for termination of Employee's employment,
or in the case of resignation for Good Reason, said notice must specify
in reasonable detail the basis for such resignation. No purported
termination which is not effected pursuant to this Section 7(f) shall
be effective.
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25
(g) Date of Termination, Etc. "Date of Termination" shall
mean the date specified in the Notice of Termination. Either party
may, within 15 days after any Notice of Termination is given, provide
notice to the other party pursuant to Section 10 hereof that a dispute
exists concerning the termination. Notwithstanding the pendency of any
such dispute, the Company will continue to pay Employee his full Base
Compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, Base Compensation) and continue
Employee as a participant in all compensation, benefit and insurance
plans in which Employee was participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in
accordance with Section 16 hereof, but in no event past the expiration
date of this Agreement. Any payments and benefits provided during such
period of dispute shall not reduce any other payments or benefits due
Employee under this Agreement nor shall Employee be liable to repay
the Company for such payments and benefits if it is finally determined
the Employee is not entitled to payments under the other provisions of
this Agreement following Employee's termination of employment.
(h) Mitigation. Employee shall not be required to mitigate
the amount of any payment or benefit provided for in this Section 7 by
seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Agreement be reduced by any
compensation or benefit earned by Employee as a result of employment
by another employer, self-employment earnings, by retirement benefits,
by offset against any amount claimed to be owing by Employee to the
Company, or otherwise, except that any cash severance amount payable
to Employee pursuant to a Company maintained severance plan or policy
for employees in general shall reduce the amount otherwise payable to
Employee pursuant to Section 7(c)(i)(A).
(i) Gross-Up of Parachute Payments. If, during the Term,
any payment, including without limitation any imputed income, made or
benefit provided to or on behalf of Employee, including any
accelerated vesting or any deferred compensation or other award, in
connection with a "change in control" of the Company, whether or not
made or provided pursuant to this Agreement, results in Employee being
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code of 1986, as amended (or any successor or similar
provision), the Company shall pay Employee an additional amount of
cash (the "Additional Amount") such that the net amount of all
payments and benefits received by Employee after paying all applicable
taxes thereon, including on such Additional Amount, shall be equal to
the net after-tax amount of payments and benefits that Employee would
have received if section 4999 were not applicable.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Employee's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its
affiliated companies and for which Employee may qualify, nor shall anything
herein limit or otherwise adversely affect such rights as Employee may have
under any stock option or other agreements with the Company or any of its
affiliated companies.
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26
9. Assignability. The obligations of Employee hereunder are
personal and may not be assigned or delegated by him or transferred in any
manner whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder, either
in whole or in part, to any parent, affiliate, successor or subsidiary
organization or company of the Company, provided that no such assignment or
delegation shall relieve the Company of its duties and obligations hereunder nor
affect the rights of Employee hereunder.
10. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when personally delivered, sent by overnight
courier or by facsimile with confirmation of receipt or on the third business
day after being mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the Company at its principal office
address and facsimile number, directed to the attention of the Board with a copy
to the Secretary of the Company, and to Employee at Employee's residence address
and facsimile number on the records of the Company or to such other address as
either party may have furnished to the other in writing in accordance herewith
except that notice of change of address shall be effective only upon receipt.
11. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and assets of the Company ("Successor") or any
corporation which becomes the ultimate parent corporation of the Company or any
such Successor ("Ultimate Parent") to expressly assume and agree in writing
satisfactory to the Employee to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such written
agreement prior to the effectiveness of any such succession or creation of the
parent corporation relationship shall be a breach of this Agreement and shall
entitle Employee to compensation and benefits from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he
terminated his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession (or creation
of the parent corporation relationship) becomes effective shall be deemed the
Date of Termination. As used in this Agreement, including, without limitation,
in Section 3, the term "Company" shall include any Successor and Ultimate Parent
which executes and delivers the Agreement as provided for in this Section 12 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall
inure to the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
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13. Indemnification. During the Term and for a period of six years
thereafter, the Company shall cause Employee to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Company or service in
other capacities at the request of the Company. The coverage provided to
Employee pursuant to this Section 8 shall be of a scope and on terms and
conditions at least as favorable as the most favorable coverage provided to any
other officer or director of the Company (or any successor).
In addition, to the maximum extent permitted under applicable
law, during the Term and for a period of six years thereafter, the Company shall
indemnify Employee against and hold Employee harmless from any costs,
liabilities, losses and exposures for Employee's services as an employee,
officer and director of the Company (or any successor).
14. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement is an integration of the parties
agreement; no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Texas.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
16. Arbitration. Employee shall be permitted (but not required) to
elect that any dispute or controversy arising under or in connection with this
Agreement be settled by arbitration in the city in which Employee resides at
such time in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. All legal fees and costs incurred by Employee in connection
with the resolution of any dispute or controversy under or in connection with
this Agreement shall be paid by the Company as bills for such services are
presented by Employee to the Company.
17. Prior Employment Agreement. This Agreement supersedes and
replaces in full any existing employment agreement (written or oral) between the
parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement on
___________, 1998, effective for all purposes as provided above.
OCEAN ENERGY, INC.
By:
-----------------------------------
Name:
---------------------------------
Chairman of the Compensation
Committee of the Board
EMPLOYEE
--------------------------------------
Xxxx X. Xxxxx
F-9
29
EXHIBIT G TO AMENDMENT NO.1
TO THE MERGER AGREEMENT
EXHIBIT G
TO THE MERGER AGREEMENT
AMENDMENT TO OEI CERTIFICATE
"4. The total number of shares of stock which the
Corporation shall have the authority to issue is two hundred sixty million
(260,000,000), consisting of ten million (10,000,000) shares of preferred stock,
par value $.01 per share (hereinafter called "Preferred Stock"), and two hundred
fifty million (250,000,000) shares of common stock, par value $.01 per share
(hereinafter called "Common Stock")."
G-1
