AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
CONFIDENTIAL
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into effective as of the 19th day of May, 1998 by and between
Syntroleum Corporation, an Oklahoma corporation (the "Company"), and Xxxxxxx X.
Xxxx, an individual (the "Employee").
WHEREAS, the Company and Employee, are parties to that certain Employment
Agreement dated November 16, 1988 ("Original Employment Agreement"); and
WHEREAS, the Company and Employee desire to amend and restate the Original
Employment Agreement to continue Employee's employment by the Company on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the Company and Employee hereby agree as follows.
1. EMPLOYMENT AND DUTIES. The Company employs Employee in the capacity
of Chief Executive Officer and Chairman of the Board, or in such other position
and at such location as the Company may direct or desire and Employee hereby
accepts such employment, on the terms and conditions hereinafter set forth.
Employee agrees to perform such services and duties (including reasonable
travel) and hold such offices at such locations as may be reasonably assigned to
him from time to time by the Company and to devote substantially his full
business time, energies and best efforts to the performance thereof to the
exclusion of all other business activities, except any activities disclosed to
the Company in advance and consented to by the Company.
2. COMPENSATION. As compensation for the services to be rendered by
Employee to the Company pursuant to this Agreement, Employee shall be paid the
following compensation and other benefits.
(a) Salary in the amount of $225,000 per year, payable in equal bi-monthly
installments in arrears, or such higher compensation as may be established by
the Company from time to time. Payments of salary shall be made in accordance
with the Company's usual payroll procedures.
(b) Employee shall be eligible to participate, to the extent he may be
eligible, in any group medical and hospitalization, profit sharing, retirement,
life insurance or other employee benefit plans which the Company may from time
to time offer to its employees. All group insurance provided to Employee shall
be in such form and provide such coverage as is provided to other employees of
the Company.
(c) All compensation payments to Employee shall be made subject to normal
deductions therefrom, including federal and state social security and
withholding taxes.
3. LIFE INSURANCE. The Company, in its discretion, may apply for and
procure in its own name and for its own benefit, life insurance on the life of
Employee in any amount or
amounts considered advisable by the Company. Employee shall submit to any
medical or other examination and execute and deliver any application or other
instrument in writing, reasonably necessary for the Company to acquire such
insurance.
4. EXPENSES. The Company shall reimburse Employee for his actual
out-of-pocket expenses incurred in carrying out his duties hereunder in the
conduct of the Company's business, which expenses shall be limited to
ordinary and necessary items and which shall be supported by vouchers,
receipts or similar documentation submitted in accordance with the Company's
expense reimburse policy and as required by law.
5. VACATIONS AND LEAVE. Employee shall be entitled to vacation and leave
in accordance with the Company's policies in effect from time to time.
6. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Employee acknowledges that in and as a result of his employment by the
Company, he will be making use of, acquiring, and/or adding to the Company's
Trade Secret Information. Except as required in the performance of Employee's
duties under this Agreement, Employee will not use any Trade Secret Information
of the Company for Employee's own benefit or purposes or disclose to third
parties, directly or indirectly, any Trade Secret Information of the Company,
either during or after Employee's employment with the Company.
(b) As used in this Agreement, "Trade Secret Information" means
information, including, but not limited to, any formula, pattern, compilation,
program, device, method, technique or process, that: (i) derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by other persons who can obtain
economic value from its disclosure or use, and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. For
purposes of this Agreement, "Trade Secret Information" includes both information
disclosed to Employee by the Company and information developed by Employee in
the course of his employment with the Company. The types and categories of
information which are considered to be Trade Secret Information include, without
limitation: (a) specifications, descriptions, designs, dimensions, content
(including chemical composition) and tolerances of products, parts and
components; (b) plans, blueprints, design packages construction, part and
assembly drawings and diagrams; (c) design, construction and component costs and
cost estimates; (d) the existence, terms or conditions of any agreements
(including license agreements) between the Company and any third party; (e)
computer programs (whether in the form of source code, object code or any other
form, including software, firmware and programmable array logic), formulas,
algorithms, methods, techniques, processes, designs, specifications, diagrams,
flow charts, manuals, descriptions, instructions, explanations, improvements,
and the ideas, systems and methods of operation contained in such programs; (f)
information concerning or resulting from research and development work performed
by Syntroleum; (g) information concerning Syntroleum's management, financial
condition, financial operations, purchasing activities, sales activities,
marketing activities and business plans; (h) information
2
acquired or compiled by Syntroleum concerning actual or potential customers;
and (i) all other types and categories of information (in whatever form) with
respect to which, under all the circumstances, Employee knows or has reason
to know that Syntroleum intends or expects secrecy to be maintained and as to
which Syntroleum has made reasonable efforts to maintain its secrecy.
(c) The Company may also advise Employee from time to time as to
restrictions upon the use or disclosure of specified information which has been
licensed or otherwise disclosed to the Company by third parties pursuant to
license or confidential disclosure agreements which contain restrictions upon
the use or disclosure of such information. Employee agrees to abide by the
restrictions upon use and/or disclosure contained in such agreements.
(d) Employee has not and will not use or disclose to the Company any
confidential or proprietary information belonging to others without the written
consent of the person to whom such information is confidential, and Employee
represents that his employment with the Company will not require the use of such
information or the violation of any confidential relationship with any third
party.
7. OTHER PROPERTY OF THE COMPANY. All documents, encoded media, and
other tangible items provided to Employee by the Company or prepared, generated
or created by Employee or others in connection with any business activity of the
Company are the property of the Company. Upon termination of Employee's
employment with the Company, Employee will promptly deliver to the Company all
such documents, media and other items in his possession, including all complete
or partial copies, recordings, abstracts, notes or reproductions of any kind
made from or about such documents, media, items or information contained
therein. Employee will neither have nor claim any right, title or interest in
any trademark, service xxxx or trade name owned or used by the Company.
8. INVENTIONS AND WORKS OF AUTHORSHIP.
(a) Employee agrees to assign and hereby irrevocably assigns to the
Company all of Employee's right, title and interest in and to any and all
Inventions and Works of Authorship made, generated or conceived by Employee
during the period of his employment with the Company, and Employee agrees to and
shall promptly disclose all such Inventions and Works of Authorship to the
Company in writing. As used herein, "Invention" means any discovery,
improvement, innovation, idea, formula, or shop right (whether or not
patentable, whether or not put into writing and whether or not put into
practice) made, generated or conceived by Employee (whether alone or with
others) while employed by the Company. For purposes of this Agreement, any
discovery, improvement, innovation, idea, formula, or shop right (whether or not
patentable, whether or not put into writing and whether or not put into
practice) relating directly or indirectly to the business of the Company or to
the Company's actual or demonstrably anticipated business, research or
development with respect to which Employee files a patent application within two
years after termination of employment with the Company shall be presumed to be
an Invention. As used herein, "Work
3
of Authorship" means any original work of authorship within the purview of
the copyright laws of the United States of America, and both the Company and
Employee intend and agree that all Works of Authorship created by Employee in
the course of his employment with the Company will be and shall constitute
works made for hire within the meaning and purview of such copyright laws.
(b) Employee will execute and assign any and all applications,
assignments, and other documents and will render all assistance which may be
reasonably necessary for the Company to obtain patent, copyright, or any other
form of intellectual property protection with respect to all Inventions and
Works of Authorship in all countries and will cooperate with Syntroleum as
reasonably necessary to enforce any such intellectual property protection. The
Company will pay Employee $200 for each patent issued to the Company upon which
Employee's name appears as an inventor.
(c) The provisions of this Paragraph 8 do not apply to an invention for
which no equipment, supplies, facility or Trade Secret Information of the
Company was used and which was developed entirely on Employee's own time, and
which does not relate (i) directly or indirectly to the business, research or
development of the Company, or (ii) to the Company's actual or demonstrably
anticipated business, research or development. A reasonable determination of
the applicability of this Paragraph 8(a) to an Employee's invention shall be
made by Syntroleum after the Employee submits notification in writing of the
invention. Said notice shall include adequate detail for Syntroleum to evaluate
the invention.
9. LIMITED COVENANTS AGAINST COMPETITION; NON-SOLICITATION.
(a) Employee acknowledges that the services he is to render to the Company
are of a special and unusual character with a unique value to the Company, the
loss of which cannot adequately be compensated by damages in an action at law.
In view of the unique value to the Company of the services of Employee and
because of the confidential Trade Secret Information to be obtained by or
disclosed to Employee, as set forth above, and as a material inducement to the
Company to enter into this Agreement and to pay to Employee the compensation
stated in Paragraph 2, Employee covenants and agrees that during the period of
Employee's employment within the Company and for a period of two years following
termination of Employee's employment with the Company for any reason,
voluntarily or involuntarily, Employee will not directly or indirectly: (i)
start or participate or assist (as a proprietor, partner, shareholder, lender,
investor, director, employee, consultant, independent contractor or otherwise)
in starting any Competing Business; (ii) assist (as a proprietor, partner,
shareholder, lender, investor, director, employee, consultant, independent
contractor or otherwise) any existing Competing Business in the design,
development or manufacture of any Competing Product; (iii) sell or assist in the
sale of any Competing Product to any person or organization with whom Employee
had any contact while employed with the Company; (iv) directly or indirectly
solicit for employment or employ any of the Company's employees; or (v) become
employed by a former employee of the Company. Because Syntroleum actively
pursues opportunities throughout the world and is engaged in a world-wide
oriented
4
business the Employee acknowledges the reasonableness of having no geographic
limitation hereunder.
(b) Employee further acknowledges that, while employed by the Company, he
will have contact with and become aware of the Company's customers and licensees
and their respective representatives, including their names and addresses,
specific needs and requirements, as well as leads and references to prospective
customers and licensees. Employee further acknowledges that loss of such
customers or licensees would cause the Company great and irreparable harm.
Employee agrees that for a period of two years following termination of
Employee's employment with the Company for any reason, voluntarily or
involuntarily, Employee will not directly or indirectly solicit, contact, call
upon, communicate with or attempt to communicate with any customer or licensee,
former customer or licensee, or prospective customer or licensee of the Company
for the purpose of selling, installing, implementing, or modifying any Competing
Product. This restriction shall apply only to any customer or licensee, former
customer or licensee, or prospective customer or licensee of the Company with
whom Employee had contact during the last two years of Employee's employment
with the Company.
(c) The Employee agrees that for as long as he is employed by the Company
and for a period of two years after termination of Employee's employment with
the Company for any reason, voluntarily or involuntarily, Employee will not
solicit, recruit, hire or attempt to solicit, recruit or hire, directly or by
assisting others, any other employee of the Company.
(d) As used in this Agreement, (i) "Competing Business" means any person,
entity or organization other than the Company which is engaged in or is about to
become engaged in the design, manufacture or sale of a Competing Product, (ii)
"Competing Product" means any product (including, without limitation, any
chemical formula or process) which is or may be marketed in competition with any
product marketed or under development by the Company at any time, and (iii)
"contact" means interaction between Employee and a customer or licensee, former
customer or licensee, or prospective customer or licensee of the Company, which
takes place to further any business relationship; or performing services for the
customer or licensee, former customer or licensee, or prospective customer or
licensee on behalf of the Company.
10. REASONABLENESS OF RESTRICTIONS.
(a) Employee expressly acknowledges that he has carefully read and
considered the provisions of Paragraphs 6, 7, 8 and 9, and, having done so,
agrees that the restrictions set forth in these Paragraphs, including, but not
limited to, the time periods and geographic areas of restriction are fair and
reasonable and are reasonably required for the protection of the interests of
the Company and its officers, directors, shareholders and other employees.
(b) In the event that, notwithstanding the foregoing, any of the
provisions of Xxxxxxxxxx 0, 0, 0 xxx 0 xxxxx xx held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though the
5
invalid or unenforceable parts had not been included therein. In the event
that any provision of Paragraphs 6, 7, 8 and 9 relating to the time period
and/or the areas of restriction and/or related aspects shall be declared by a
court of competent jurisdiction to exceed the maximum restrictiveness such
court deems reasonable and enforceable, the time period and/or areas of
restriction and/or related aspects deemed reasonable and enforceable by the
court shall become and thereafter be the maximum restriction in such regard,
and the restriction shall remain enforceable to the fullest extent deemed
reasonable by such court.
11. REQUESTS FOR CLARIFICATION. In the event Employee is uncertain as to
the meaning of any provision of this Agreement or its application to any
particular information, item or activity, Employee will inquire in writing to
the Company, specifying any areas of uncertainty. The Company will respond in
writing within a reasonable time and will endeavor to clarify any areas of
uncertainty, including such things as whether it considers particular
information to be its Trade Secret Information or whether it considers any
particular activity or employment to be in violation of this Agreement.
12. REMEDIES. In the event of a breach or threatened breach of any of the
covenants in Paragraphs 6, 7, 8 and 9, the Company shall have the right to seek
monetary damages and equitable relief, including specific performance by means
of an injunction against Employee or against Employee's partners, agents,
representatives, servants, employers, employees, family members and/or any and
all persons acting directly or indirectly by or with him, to prevent or restrain
any such breach.
13. TERM AND TERMINATION.
(a) The term of this Agreement shall be for an initial term of 12 months
from the effective date hereof, unless sooner terminated as provided herein, and
shall thereafter be automatically renewed for successive terms of 12 months each
unless sooner terminated as provided herein.
(b) Employment of Employee under this Agreement may be terminated:
(i) by the Company upon the death of Employee.
(ii) by the Company if Employee becomes disabled. For the purposes
of this Agreement, Employee will be deemed disabled if he (i) has been
declared legally incompetent by a final court decree (the date of such
decree being deemed to be the date on which the disability occurred), or
(ii) receives disability insurance benefits from any disability income
insurance policy maintained by the Company for a period of three
consecutive months, or (iii) has been found to be disabled pursuant to a
disability determination. A "disability determination" means a finding
that Employee, because of a medically determinable disease, injury, or
other mental or physical disability, is unable to perform substantially all
of his regular duties to the Company and that such disability is determined
or reasonably expected to last at least six months. The disability
determination shall be based upon the written opinion of
6
the physician regularly attending Employee whose disability is in
question. If the Company disagrees with the opinion of this physician
(the "First Physician"), it may engage, at its own expense, another
physician of its choice (the "Second Physician") to examine Employee.
If the First and Second Physicians agree in writing that Employee is or
is not disabled, their written opinion shall, except as otherwise set
forth in this subsection, be conclusive on the issue of disability. If
the First and Second Physicians disagree on the disability of Employee,
they shall choose a third consulting physician (whose expense shall be
borne by the Company), and the written opinion of a majority of these
three physicians shall, except as otherwise provided in this subsection,
be conclusive as to Employee's disability. The date of any written
opinion conclusively finding Employee to be disabled is the date on
which the disability will be deemed to have occurred. If there is a
conclusive finding that Employee is not totally disabled, the Company
shall have the right to request additional disability determinations
provided it agrees to pay all the expenses of the disability
determinations and does not request an additional disability
determination more frequently than once every three months. In
connection with any disability determination, Employee hereby consents
to any required medical examination, and agrees to furnish any medical
information requested by any examining physician and to waive any
applicable physician-patient privilege that may arise because of such
examination. All physicians except the First Physician must be
board-certified in the specialty most closely related to the nature of
the disability alleged to exist.
(iii) by the Company when Employee reaches mandatory retirement age
under any retirement policy applicable to all executive officers adopted by
the Company.
(iv) by mutual agreement of Employee and the Company.
(v) by the Company upon the dissolution and liquidation of the
Company (other than as part of a reorganization, merger, consolidation or
sale of all or substantially all of the assets of the Company whereby the
business of the Company is continued).
(vi) by the Company for just cause at any time upon written notice.
For purposes of this Agreement, "just cause" shall mean any one or more of
the following: (A) Employee's material breach of his obligations, duties
and responsibilities under any term or provision of this Agreement, which
breach remains uncured for a period of five days after written notice by
the Company to Employee; (B) Employee's failure to adhere to the reasonable
standards of performance prescribed by the Company; (C) Employee's act of
insubordination to the Company's Board of Directors; (D) Employee's gross
negligence or willful misconduct in the performance of his duties under
this Agreement; (E) Employee's dishonesty, fraud, misappropriation or
embezzlement in the course of, related to or connected with the business of
the Company; (F) Employee's conviction of a felony; or (G) Employee's
failure (after written notice to Employee of such failure and Employee not
correcting
7
such failure within five days of such notice) to devote his time,
attention and best efforts to the business of the Company as provided in
this Agreement.
(vii) by either the Company or Employee upon 60 days written notice.
(c) Any termination of Employee's employment, either by the Company or
Employee, shall be communicated by a written notice of termination to the other
party.
(d) If Employee's employment is terminated pursuant to the terms of this
Agreement for any reason, Employee shall be entitled to all arrearages of salary
and expenses up to and including the date of termination but shall not be
entitled to further compensation. Provided, that if, at any time after the
first 12 months from the date of the Original Employment Agreement, Employee's
employment is terminated by the Company for any reason other than Employee's
death, disability or retirement, the Company's dissolution or just cause as
provided in Paragraphs 13(b)(i), (ii), (iii), (v) or (vi), respectively,
Employee shall be entitled to and the Company shall pay Employee all arrearages
of salary and expenses up to and including the date of termination and, in
addition, Employee's monthly base salary for an additional period of 24 months.
(e) Upon expiration of the term of this Agreement or upon earlier
termination of this Agreement, Employee shall deliver all Trade Secret
Information of the Company to an authorized representative of the Company, and
the non-disclosure provisions of PARAGRAPH 6 shall survive such expiration or
termination and shall remain in full force and effect for a period of 15 years
from such expiration or termination.
14. CHANGE OF CONTROL.
(a) In the event of a Change of Control of the Company and (i) during
the one-year period immediately following any Change of Control, the Company
terminates Employee's employment for any reason other than Employee's death,
disability, retirement or just cause as provided in Paragraphs 13(b)(i),
(ii), (iii) and (vi), respectively, (ii) the Employee terminates his
employment for Good Reason, or (iii) during the Window Period the Company or
Employee terminates Employee's employment for any reason, then the Company or
its successor shall pay Employee his full base salary in effect at the time
of the notice of termination through the date of termination, and in lieu of
any further salary payments for periods subsequent to the date of
termination, the Company or its successor shall pay Employee as severance pay
an amount equal to two times Employee's full base salary in effect on the
date of termination payable in 24 equal monthly installments beginning on the
first day of the first calendar month following the date of Employee's
termination and continuing on the first day of each month thereafter until
paid.
(b) Anything in this Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Employee's employment with the Company is
terminated prior to the date on which the Change of Control occurs, and if it is
reasonably demonstrated by the Employee that such termination of employment (i)
was at the request of a third party who has
8
taken steps reasonably calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of the Change of Control,
then for all purposes of this Agreement, the "Change of Control" shall be
deemed to have occurred on the date immediately prior to the date of such
termination of employment.
(c) as used in this Agreement, the terms set forth below shall have the
following respective meanings:
(i) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the Agreement Effective Date.
(ii) "Agreement Effective Date" shall mean May 19, 1998.
(iii) "Associate" shall mean, with reference to any Person, (a) any
corporation, firm, partnership, association, unincorporated organization or
other entity (other than the Company or a subsidiary of the Company) of which
such Person is an officer or general partner (or officer or general partner of a
general partner) or is, directly or indirectly, the Beneficial Owner of 10% or
more of any class of equity securities, (b) any trust or other estate in which
such Person has a substantial beneficial interest or as to which such Person
serves as trustee or in a similar fiduciary capacity and (c) any relative or
spouse of such Person, or any relative of such spouse, who has the same home as
such Person.
(iv) "Beneficial Owner" shall mean, with reference to any
securities, any Person if:
(a) such Person or any of such Person's Affiliates and
Associates, directly or indirectly, is the "beneficial owner" of (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations
under the Exchange Act, as in effect on the Agreement Effective Date)
such securities or otherwise has the right to vote or dispose of such
securities, including pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this subsection (a) as a result
of an agreement, arrangement or understanding to vote such security if
such agreement, arrangement or understanding: (i) arises solely from a
revocable proxy or consent given in response to a public (I.E., not
including a solicitation exempted by Rule 14a-2(b)(2) of the General
Rules and Regulations under the Exchange Act) proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
provisions of the General Rules and Regulations under the Exchange Act
and (ii) is not then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report);
(b) such Person or any of such Person's Affiliates and
Associates, directly or indirectly, has the right or obligation to
acquire such securities (whether such right or obligation is exercisable
or effective immediately or only after the passage of time
9
or the occurrence of an event) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, other rights, warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to "beneficially own," (i) securities tendered
pursuant to a tender or exchange offer made by such Person or any of
such Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange or (ii) securities issuable upon
exercise of Exempt Rights; or
(c) such Person or any of such Person's Affiliates or Associates
(i) has any agreement, arrangement or understanding (whether or not in
writing) with any other Person (or any Affiliate or Associate thereof)
that beneficially owns such securities for the purpose of acquiring,
holding, voting (except as set forth in the proviso to subsection (a) of
this definition) or disposing of such securities or (ii) is a member of
a group (as that term is used in Rule 13d-5(b) of the General Rules and
Regulations under the Exchange Act) that includes any other Person that
beneficially owns such securities;
provided, however, that nothing in this definition shall cause a Person engaged
in business as an underwriter of securities to be the Beneficial Owner of, or to
"beneficially own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of 40 days
after the date of such acquisition. For purposes hereof, "voting" a security
shall include voting, granting a proxy, consenting or making a request or demand
relating to corporate action (including, without limitation, a demand for a
stockholder list, to call a stockholder meeting or to inspect corporate books
and records) or otherwise giving an authorization (within the meaning of Section
14(a) of the Exchange Act) in respect of such security.
The terms "beneficially own" and "beneficially owning" shall have meanings
that are correlative to this definition of the term "Beneficial Owner."
(v) "Change of Control" shall mean any of the following (provided,
however, that without limiting the generality of any other provision hereof, no
Change of Control shall be deemed to have occurred as a result of the
consummation of any of the transactions contemplated by the Agreement and Plan
of Merger dated as of March 30, 1998 by and between SLH Corporation, a Kansas
corporation, and the Company (the "Merger Agreement")):
(a) any Person (other than an Exempt Person) shall become the
Beneficial Owner of 30% or more of the shares of Common Stock then
outstanding or 30% or more of the combined voting power of the Voting
Stock of the Company then outstanding; provided, however, that no Change
of Control shall be deemed to occur for purposes of this subsection (a)
if such Person shall become a Beneficial Owner of 30% or more of the
shares of Common Stock or 30% or more of the combined voting power of
the Voting Stock of the Company solely as a result of (i) an Exempt
10
Transaction or (ii) an acquisition by a Person pursuant to a
reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described in
clauses (i), (ii) and (iii) of subsection (c) of this definition are
satisfied;
(b) individuals who, as of the Agreement Effective Date,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Agreement Effective
Date whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board; provided,
further, that there shall be excluded, for this purpose, any such
individual whose initial assumption of office occurs as a result of any
actual or threatened election contest that is subject to the provisions
of Rule 14a-11 under the Exchange Act;
(c) approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless, following
such reorganization, merger or consolidation, (i) more than 80% of the
then outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation and the combined
voting power of the then outstanding Voting Stock of such corporation is
then beneficially owned, directly or indirectly, by all or substantially
all of the Persons who were the Beneficial Owners of the outstanding
Common Stock immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of
the outstanding Common Stock, (ii) no Person (excluding any Exempt
Person or any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, 30% or
more of the Common Stock then outstanding or 30% or more of the combined
voting power of the Voting Stock of the Company then outstanding)
beneficially owns, directly or indirectly, 30% or more of the then
outstanding shares of common stock of the corporation resulting from
such reorganization, merger or consolidation or the combined voting
power of the then outstanding Voting Stock of such corporation and (iii)
at least a majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or consolidation
were members of the Incumbent Board at the time of the execution of the
initial agreement or initial action by the Board providing for such
reorganization, merger or consolidation; or
(d) approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company unless such
liquidation or dissolution is approved as part of a plan of liquidation
and dissolution involving a sale or disposition of all or substantially
all of the assets of the Company to a corporation with respect to which,
following such sale or other disposition, all of the requirements of
clauses (ii)(A), (B) and (C) of this subsection (d) are satisfied, or
(ii) the sale or other disposition of all or substantially all of the
assets of the Company, other than to
11
a corporation, with respect to which, following such sale or other
disposition, (A) more than 80% of the then outstanding shares of common
stock of such corporation and the combined voting power of the Voting
Stock of such corporation is then beneficially owned, directly or
indirectly, by all or substantially all of the Persons who were the
Beneficial Owners of the outstanding Common Stock immediately prior to
such sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other disposition, of
the outstanding Common Stock, (B) no Person (excluding any Exempt Person
and any Person beneficially owning, immediately prior to such sale or
other disposition, directly or indirectly, 30% or more of the Common
Stock then outstanding or 30% or more of the combined voting power of
the Voting Stock of the Company then outstanding) beneficially owns,
directly or indirectly, 30% or more of the then outstanding shares of
common stock of such corporation and the combined voting power of the
then outstanding Voting Stock of such corporation and (C) at least a
majority of the members of the board of directors of such corporation
were members of the Incumbent Board at the time of the execution of the
initial agreement or initial action of the Board providing for such sale
or other disposition of assets of the Company.
(vi) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(vii) "Exempt Person" shall mean the Company, any subsidiary of the
Company, any employee benefit plan of the Company or any subsidiary of the
Company, and any Person organized, appointed or established by the Company for
or pursuant to the terms of any such plan.
(viii) "Exempt Rights" shall mean any rights to purchase shares of
Common Stock or other Voting Stock of the Company if at the time of the issuance
thereof such rights are not separable from such Common Stock or other Voting
Stock (I.E., are not transferable otherwise than in connection with a transfer
of the underlying Common Stock or other Voting Stock) except upon the occurrence
of a contingency, whether such rights exist as of the Agreement Effective Date
or are thereafter issued by the Company as a dividend on shares of Common Stock
or other Voting Securities or otherwise.
(ix) "Exempt Transaction" shall mean an increase in the percentage
of the outstanding shares of Common Stock or the percentage of the combined
voting power of the outstanding Voting Stock of the Company beneficially owned
by any Person solely as a result of a reduction in the number of shares of
Common Stock then outstanding due to the repurchase of Common Stock or Voting
Stock by the Company, unless and until such time as (a) such Person or any
Affiliate or Associate of such Person shall purchase or otherwise become the
Beneficial Owner of additional shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock or additional Voting Stock
representing 1% or more of the combined voting power of the then outstanding
Voting Stock, or (b) any other Person (or Persons) who is (or collectively are)
the Beneficial Owner of shares of Common Stock constituting 1% or more of the
then outstanding shares of Common Stock or Voting
12
Stock representing 1% or more of the combined voting power of the then
outstanding Voting Stock shall become an Affiliate or Associate of such
Person.
(x) "Good Reason" shall mean:
(a) the assignment to the Employee of any duties materially
inconsistent in any respect with the Employee's position (including
status, offices, titles and reporting requirements), authority, duties
or responsibilities as contemplated by Section 1 of this Agreement, or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Employee;
(b) any material failure by the Company to comply with any
of the provisions of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Employee;
(c) the Company's requiring the Employee to be based at any
office outside the Tulsa metropolitan area;
(d) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this
Agreement; or
(e) any failure to reelect Employee as a member of the
Board of Directors.
(xi) "Person" shall mean any individual, firm, corporation,
partnership, association, trust, unincorporated organization or other entity.
(xii) "Voting Stock" shall mean, with respect to a corporation, all
securities of such corporation of any class or series that are entitled to vote
generally in the election of directors of such corporation (excluding any class
or series that would be entitled so to vote by reason of the occurrence of any
contingency, so long as such contingency has not occurred).
(xiii) "Window Period" shall mean the 60-day period immediately
following elapse of one year after any Change of Control.
15. RESIGNATION UPON TERMINATION. In the event of termination of this
Agreement other than for death, Employee agrees to resign from all positions
held in the Company, including without limitation any position as a director,
officer, agent, trustee or consultant of the Company or any affiliate of the
Company.
13
16. NOTICE TO SUBSEQUENT EMPLOYERS. For a period of two years after
termination of Employee's employment with the Company for any reason, Employee
will inform any new employer (before accepting employment) of the obligations of
Employee under Paragraphs 6, 7, 8, 9, and 10 of this Agreement.
17. OBLIGATIONS UNCONDITIONAL. The obligations of the parties under this
Agreement are unconditional and do not depend upon the performance of any
agreements, duties, obligations, or terms outside this Agreement.
18. WAIVER. A party's failure to insist on compliance or enforcement of
any provision of this Agreement shall not affect the validity or enforceability
or constitute a waiver of future enforcement of that provision or of any other
provision of this Agreement by that party or any other party.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA, UNITED STATES OF AMERICA,
WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. The Company and Employee
expressly and irrevocably consent and submit to the nonexclusive jurisdiction of
any state or federal court sitting in Tulsa County, Oklahoma and agree that, to
the fullest extent allowed by law, such Oklahoma state or federal courts shall
have jurisdiction over any action, suit or proceeding arising out of or relating
to this Agreement. The Company and Employee each irrevocably waive, to the
fullest extent allowed by law, any objection either of them may have to the
laying of venue of any such suit, action or proceeding brought in any state or
federal court sitting in Tulsa County, Oklahoma based upon a claim that such
court is inconvenient or otherwise an objectionable forum. Any process in any
action, suit or proceeding arising out of or relating to this Agreement may,
among other methods, be served upon the Company or Employee by delivering it or
mailing it to their respective addresses set forth herein. Any such delivery or
mail service shall be deemed to have the same force and effect as personal
service in the State of Oklahoma.
20. SEVERABILITY. If for any reason any paragraph, term or provision of
this Agreement is held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed and enforced as if such provision had not been
included herein and all other valid provisions herein shall remain in full force
and effect. If for any reason the restrictions and covenants contained herein
are held to cover a geographical area or be for a length of time which is
unreasonable or unenforceable, or in any other way are construed to be too broad
or to any extent invalid, then to the extent the same are or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a covenant having
the maximum area, time or other provisions (not greater than those contained
herein) as shall be valid and enforceable under such applicable law.
14
21. JURISDICTION. The Company and Employee intend to and hereby confer
jurisdiction to enforce the provisions of this Agreement and any restrictive
covenants contained herein upon the courts of any jurisdiction within the
geographical scope of such covenants. If the courts of any one or more of such
jurisdictions hold the provisions of this Agreement or any of the restrictive
covenants contained herein unenforceable by reason of the breadth of such scope
or otherwise, it is the intention of the Company and Employee that such
determination not bar or in any way affect the Company's right to the relief
provided herein in the courts of any other jurisdiction within the geographical
scope of such covenants, as to breaches of such covenants, such covenants as
they relate to each jurisdiction being, for this purpose, severable into diverse
and independent covenants.
22. NOTICE. Any and all notices required or permitted herein shall be
deemed delivered if delivered personally or if mailed by registered or certified
mail to the Company at its principal place of business and to Employee at the
address hereinafter set forth following Employee's signature, or at such other
address or addresses as either party may hereafter designate in writing to the
other.
23. AMENDMENTS. This Agreement may be amended at any time by mutual
consent of the parties hereto, with any such amendment to be invalid unless in
writing, signed by the Company and Employee.
24. BURDEN AND BENEFIT. This Agreement, together with any amendments
hereto, shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and personal
representatives. The Company may, in its sole discretion, assign this Agreement
or its rights hereunder to any parent, affiliate, shareholder, or successor of
the Company, or to any person or entity which purchases substantially all of the
assets of the Company. Employee may not transfer or assign this Agreement or
any of Employee's rights or obligations under this Agreement.
25. REFERENCES TO GENDER AND NUMBER TERMS. In construing this Agreement,
feminine or number pronouns shall be substituted for those masculine in form and
vice versa, and plural terms shall be substituted for singular and singular for
plural in any place which the context so requires.
26. HEADINGS. The various headings in this Agreement are inserted for
convenience only and are not part of the Agreement.
27. ENTIRE AGREEMENT. This Agreement contains the entire understanding
and agreement between the parties relating to the subject matter hereof. The
original Employment Agreement between the Company and Employee dated November
16, 1988 is hereby amended and restated in its entirety as set forth herein.
28. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and all such counterparts shall constitute one and the same
instrument.
15
29. SEVERANCE COMPENSATION. In the event of termination of Employee's
employment with the Company under the terms of this Agreement which provide for
payment by the Company to Employee of severance compensation, the amount of such
severance compensation shall in no event be greater than the amount which would
be deductible by the Company under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), after taking into consideration all payments to
Employee covered by Code Section 280G which Employee receives or is deemed to
receive (i) under this Agreement; (ii) under the Company's 1993 Stock Option and
Incentive Plan, as amended, by reason of the acceleration of the right to
exercise any options (including any related stock appreciation rights) granted
thereunder or the acceleration of the vesting of any restricted stock awards
granted thereunder; or (iii) under any new plan or arrangement implemented by
the Company after the date of this Agreement which would otherwise be considered
a "parachute payment" under Section 280G. In the event such payments exceed the
amount which would be deductible by the Company under Code Section 280G, the
timing of such payments shall be extended or otherwise modified such that such
payments shall be deductible by the Company under Code Section 280G and in a
manner which, to the extent possible, provides Employee the full benefit of such
payments as originally agreed to.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the date and year first above written.
COMPANY:
SYNTROLEUM CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx, President
Syntroleum Corporation.
0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
Home address:
0000 X. Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
16
