AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is executed on this 2nd
day of September, 2008, to be effective May 1, 2007 (“Effective Date”) between
PETROSEARCH ENERGY
CORPORATION, a Nevada
corporation ("Company") and XXXXX XXXXXXXX
(“Employee”).
RECITALS:
A. Company
has been capitalized under the laws of the State of Nevada in order to acquire
and develop key oil and gas development prospects across the United
States.
B.
Company desires to engage the services of Employee on an exclusive basis as
an executive officer for
the Company.
TERMS
OF AGREEMENT:
NOW,
THEREFORE, FOR VALUE RECEIVED, and in consideration of the mutual covenants
contained herein, Company and Employee agree as follows:
1. Engagement/Term. Company
shall employ Employee as Chief
Operating Officer for a period of two (2) years from the Effective Date,
subject to the termination provisions herein (the “Term”) and Employee hereby
agrees to be engaged by Company for the Term in such
capacity. This Agreement shall automatically expire at
the end of the indicated term unless extended in writing by
Company. Bonuses shall not be deemed to be accrued and part of any
severance package unless and until the Board of Directors has declared and
awarded the particular bonus to the particular Employee. THIS AGREEMENT SUPERSEDES AND
REPLACES THE PRIOR EMPLOYMENT AGREEMENT, AS AMENDED, BETWEEN THE PARTIES DATED
MAY 1, 2005 (“PRIOR AGREEMENT”) AND UPON EXECUTION HEREOF BY THE PARTIES, THE
PRIOR AGREEMENT SHALL BE DEEMED TO BE TERMINATED AND OF NO FURTHER
EFFECT.
2. Exclusive
Employment/Other Engagements. Company and Employee
hereby stipulate that this Agreement is exclusive as to Employee, and Employee
shall not accept or enter into contemporaneous consulting/employment
relationships with third parties. Employee shall dedicate a minimum
of forty (40) hours per week to the tasks associated with the executive position
assumed under this Agreement.
3. Compensation. Employee shall be
compensated for his services as follows:
a. Base
Salary. As compensation to Employee for the performance of his
duties or obligations under this Agreement, Company shall pay Employee a base
salary (the “Base Salary”) of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00) annually, payable monthly, in semi-monthly installments of TEN
THOUSAND FOUR HUNDRED SIXTEEN AND 66/100 DOLLARS ($10,416.66) during the term of
this Agreement.
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b. Bonus. In
addition to receiving the Base Salary described in Section 3.a., Employee may be
awarded such bonuses from time to time as are recommended by the CEO to the
Board of Directors, and then reviewed and approved by the Compensation Committee
of the Board of Directors (or, alternatively, approved by the Board of Directors
directly without committee recommendation should such committee be non-existent
or inactive).
c. Company Related
Travel. Employee shall be reimbursed, upon submission of
receipts and proper documentation, for any and all Company related travel away
from the principal office (Houston, Texas), including coach airfare, hotel and
meals (subject to the expenditure limitations imposed by Company).
d. Documented Out-of-Pocket
Expenses. Employee shall be promptly reimbursed for all other
reasonable out-of-pocket expenses incurred on behalf of Company which are
properly documented to Company; including, long distance telephone charges on
telephones other than Company’s office phones.
e. Medical/Dental
Insurance. Employee shall be entitled during the Term, upon
satisfaction of all eligibility requirements, to participate in all health,
dental, disability, life insurance, retirement and other benefit programs now or
hereafter established by Company and shall receive such other benefits as may be
approved from time to time by the CEO.
4. Death or
Disability. Upon the death or long term disability of the Employee,
this Agreement will automatically terminate, and the Employee (or his heirs in
the case of death) will be entitled to six (6) months of Base Salary and
benefits as listed above. All of the Employee’s outstanding warrants
shall become exercisable upon the date of death or long term disability, and
shall remain outstanding and exercisable per the terms of the warrant
agreement.
5. Acknowledgment
of Legislative Impact Upon Taxation. Company and
Employee acknowledge and agree that Employee may in the future be awarded stock
or warrant-based compensation as a bonus or as part of a plan implemented to
benefit a group. Employee acknowledges that he/she has been advised
of proposed legislative enactments which create uncertainty regarding future
taxation of such stock or warrant-based compensation. Such
compensation may be refused by Employee, if offered, but the Company shall have
no duty to keep Employee apprised of the legislative enactments regarding
taxation and shall have no liability for adverse tax consequences to Employee
should Employee accept such stock or warrant-based compensation unless otherwise
provided in this Agreement.
6. Duties
and Obligations. Employee shall
perform such duties and tasks pertaining to Employee’s expertise as Company
shall from time to time reasonably determine and specify as well as those duties
and tasks customarily attributable to the assignment assumed as described in
paragraph 1 above. Employee shall perform the designated tasks at the
location or locations assigned by CEO from time to time, which may include
locations other than the Company’s home office in Houston, Texas. Employee
hereby covenants and agrees to perform the services for which he is hereby
retained in good faith and with reasonable diligence in light of attendant
circumstances. The Employee shall, at all times, be under the
supervision of the CEO and shall comply with such person’s directives as to all
duties and tasks to be performed.
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7. Termination
for Cause by
Company. This
Agreement may be terminated for “cause” by Company immediately, without prior
notice (except as indicated hereinbelow) and without severance pay or
benefits. For purposes hereof, “cause”
shall mean any of the following events:
a. Any
embezzlement or wrongful diversion of funds of Company or any affiliate of
Company by Employee;
b. Malfeasance,
poor performance as to core or delegated job assignments in the opinion of the
Company CEO or insubordination by Employee in the conduct of his
duties;
c. Failure
to observe or strictly adhere to all Company policies put into effect and/or
amended from time to time.
d. Abandonment
by Employee of his job duties or repeated absences from Company-directed tasks
which are not otherwise excused by the Company.
e. Competing
with the Company or otherwise diverting away from the Company business
opportunities intended for the Company or which could reasonably benefit the
Company’s core business.
f.
Other material breach of
this Agreement by Employee that remains uncured for a period of at least thirty
(30) days following written notice from Company to Employee of such alleged
breach, which written notice describes in reasonable detail the nature of such
alleged breach; or
g. Conviction
of Employee or the entry of a plea of nolo contendere or equivalent plea of a
felony in a court of competent jurisdiction, or any other crime or offense
involving moral turpitude.
8. Termination for Good
Reason by Employee. This
Agreement may be terminated for “good reason” by
Employee which, if so terminated, shall give rise to the severance pay
provisions set forth in paragraph 10a below. For purposes hereof,
“good reason” shall mean only a material
breach of this Agreement by the Company that remains uncured for a period of at
least thirty (30) days following written notice from Employee to Company of such
alleged breach, which written notice describes in reasonable detail the nature
of such alleged breach.
9. Termination
Upon a Change in Control.
Employee shall have
the right, in his discretion, to terminate employment under this Agreement as a
result of a Change in Control (as defined below). In the event that
Employee is involuntarily terminated or voluntarily elects to terminate his
employment upon a Change in Control, then Employee shall be entitled to the
severance pay benefits described in paragraph 10 below.
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For purposes hereof, a “Change in Control” shall mean
the occurrence during the Term of any of the following
events: (i) An acquisition (other than directly from the
Company) of any voting securities of the Company (the “Voting Securities”) by
any “Person” (as the term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934 (the “1934 Act”)) immediately after which
such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of 40% or more of the combined voting power of
the Company’s then outstanding Voting Securities; provided however, that in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a “Non-Control Acquisition” (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
“Non-Control Acquisition” shall mean an acquisition by (a) an employee benefit
plan (or a trust forming a part thereof) maintained by (x) the Company or (y)
any corporation or other Person of which a majority of its voting power or its
equity securities or equity interest is owned directly or indirectly by the
Company (a “Subsidiary”), (2) the Company or any Subsidiary, or (3) any Person
in connection with a “Non-Control” Acquisition, (ii) the sale or other disposition of
all or substantially all of the business or assets of the Company to any person
(other than a transfer to a Subsidiary); or (iii) a merger, consolidation or reorganization
involving the Company (other than with a Subsidiary).
10. Severance
Pay Provisions/Effect of Termination Without Cause by Company, With Good Reason
by Employee or Due to Change in Control.
a.
In the event that
(i) this Agreement is terminated by Company without “cause”, (ii)
Employee terminates his employment for “good reason”, (iii) Employee’s
employment is voluntarily (by Employee) or involuntarily terminated upon a
“Change in Control”, (iv) Employee continues his employment through the
expiration of the Term whether or not Company offers continued or renewed
employment, and whether or not such offer of continued employment is accepted or
declined by Employee, in his discretion, then Employee shall
be entitled to severance pay from Company equal to a lump cash sum of
$550,000 (the “Severance Cash Sum”), whether notice of termination is
delivered by Company or Employee.
b. The Severance Cash
Sum provided for in paragraph 10a above shall be in lieu of any other severance
or termination pay to which the Employee may be entitled under any Company
severance or termination plan, program, practice or arrangement and in lieu of
any remedial sum available under any legal theory of recovery under applicable
law. The limitation of Employee’s severance to the Severance Cash Sum
shall not affect or impair Employee’s existing warrants or stock options,
existing 401K accrued benefits, existing life insurance, or Employee’s ability
to avail himself of COBRA benefits or indemnification insurance and benefits for
matters subject to indemnification, whether pending at termination or arising
subsequent to termination.
11. Time of
Essence, Attorneys Fees. Time is of the
essence with respect to this Agreement and same shall be capable of specific
performance without prejudice to any other rights or remedies under
law. If either party seeks to enforce, in law or in equity
(including any arbitration proceeding), any provision contained herein, then the
prevailing party in such proceeding shall be entitled to attorneys fees,
interest and all such other disbursements and relief provided under law, but
shall not be entitled to punitive or exemplary damages of any
kind.
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12. Modification
or Amendment. The parties
hereto may modify or amend this Agreement only by written agreement executed and
delivered by the respective parties.
13. Binding
on Heirs and Assigns. This Agreement shall
inure to and be binding upon the undersigned and their respective heirs,
representatives, successors and permitted
assigns. This Agreement may not be assigned by either party without
the prior written consent of the other party.
14. Counterparts. For the
convenience of the parties hereto, this Agreement may be executed in any number
of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
15. No
Waivers. No waiver of or
failure to act upon any of the provisions of this Agreement or any right or
remedy arising under this Agreement shall be deemed or shall constitute a waiver
of any other provisions, rights or remedies (whether similar or
dissimilar).
16. GOVERNING
LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS AND SHALL BE PERFORMABLE IN XXXXXX COUNTY, TEXAS EXCEPT TO THE
EXTENT THAT NEVADA CORPORATE LAW CONTROLS THE MATTERS
PERTAINING TO SECURITIES ISSUANCE AND CORPORATE GOVERNANCE BY
OFFICERS AND DIRECTORS.
17. Notices. Any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing (by FAX, mail, telegram or courier) and delivered to the
parties as follows:
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If
to Company:
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Xxxxxxx
Xxxx
|
000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
FAX: 000-000-0000
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If
to Employee:
|
Xxxxx
Xxxxxxxx
|
0000
Xxxxxxx
Xxxxx,
XX 00000
FAX:
000-000-0000
18. Entire
Contract/No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and is not intended to create any obligations to, or
rights in respect of, any persons other than the parties
hereto. There are no third party beneficiaries of this
Agreement.
19. Captions
for Convenience. All captions
herein are for convenience or reference only and do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
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20. Severability. In case any one
or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or enforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal or enforceable
provision had never been contained herein.
21. BINDING
ARBITRATION. ANY CONTROVERSY OR CLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE
SETTLED BY FINAL AND BINDING ARBITRATION CONDUCTED IN HOUSTON, TEXAS, IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES ("RULES") OF THE AMERICAN
ARBITRATION ASSOCIATION IN EFFECT AT THE TIME THE CONTROVERSY OR CLAIM ARISES,
BUT SAID ARBITRATION NEED NOT BE ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION. THE ARBITRATOR, WHICH SHALL BE AGREED UPON BY THE
PARTIES, SHALL HAVE JURISDICTION TO DETERMINE ANY SUCH CLAIM AND MAY GRANT ANY
RELIEF AUTHORIZED BY LAW FOR SUCH CLAIM EXCLUDING CONSEQUENTIAL AND PUNITIVE
DAMAGES. EACH
PARTY TO THE ARBITRATION SHALL BEAR THE INITIAL FILING FEES AND CHARGES EQUALLY,
PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD REIMBURSEMENT OF ALL SUCH
COSTS AND FEES TO THE PREVAILING PARTY AS A PART OF ITS AWARD. THIS
PARAGRAPH SHALL LIKEWISE BE SPECIFICALLY ENFORCEABLE IN A COURT OF COMPETENT
JURISDICTION SHOULD THE PARTY NOT DEMANDING ARBITRATION REFUSE TO PARTICIPATE IN
OR COOPERATE WITH THE ARBITRATION PROCESS.
EXECUTED
by the undersigned as of the Effective Date set forth above.
SIGNATURES
APPEAR ON FOLLOWING PAGE
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PETROSEARCH
ENERGY CORPORATION
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By:
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/s/ Xxxxxxx X. Xxxx | ||
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Xxxxxxx
X. Xxxx, President & CEO
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| /s/ XXXXX XXXXXXXX | |||
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XXXXX
XXXXXXXX
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