EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into this 31st day of October,
1996, but is effective for all purposes hereof as of September 1, 1996 (the
"Effective Date"), between XXXXXX PETROLEUM COMPANY, a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx, an individual residing in Xxxxx County,
Mississippi (the "Employee");
W I T N E S E T H:
WHEREAS, the Company desires to retain the benefit of Employee's
experience, knowledge, reputation and contacts to benefit the Company's
business; and
WHEREAS, the Employee is willing to undertake the duties hereinafter set
forth and to be subject to the restrictions hereinafter specified in exchange
for the substantial inducements and incentives herein set forth;
NOW, THEREFORE, the Company and the Employee agree as follows:
1. TERM. The Company hereby retains the Employee as President and Chief
Operating Officer of the Company for term commencing on the Effective Date and
continuing until January 1, 2001 (the "Expiration Date"), which period of
employment may be extended or terminated under the terms and conditions set
forth in paragraph 7 (such period being hereinafter sometimes called the "term
of this Agreement"). The Employee accepts such employment and agrees to perform
the services specified herein, all upon the terms and conditions hereinafter
stated.
2. DUTIES AS EMPLOYEE. The Employee shall serve the Company in the
capacity of President and Chief Operating Officer of the Company and shall
report to, and be subject to the general direction and control of, the Board of
Directors of the Company (the "Board"). The Employee shall perform the
executive, management and administrative duties of the President and Chief
Operating Officer of the Company and such other executive duties as are from
time to time assigned to him by the Board of Directors and as are not
inconsistent with the provisions hereof.
3. TIME AND AVAILABILITY. The Employee shall devote his full business
time and attention to the business of the Company, and, except as may be
specifically permitted by the Company, shall not be engaged in any other
business activity during the term of this Agreement. The foregoing shall not be
construed as preventing the Employee from making investments in other businesses
or enterprises, provided, however, that such investments do not require services
on the part of the Employee which would in any way impair the performance of his
duties under this Agreement. Employee will not be required by the Company to
relocate to any place other than a location within the Natchez, Mississippi
metropolitan area, except for a relocation consented to by Employee; provided,
however, that in connection with a relocation of the corporate headquarters of
the Company, Employee may be required to relocate out of the Natchez area to a
city or other local jurisdiction in which the new corporate headquarters of the
Company is located under the following conditions: (i) the corporate
headquarters of the Company shall be relocated in the state of Mississippi,
Louisiana or Texas; (ii) all of the Company's executive officers, including
without limitation the Employee, shall be employed out of such new corporate
headquarters; and (iii) all reasonable costs of relocation, including moving
expenses, costs of selling a principal residence (and, if requested by Employee,
the purchase of such principal residence at its value as appraised by a
qualified appraiser selected by Employee) are paid or provided for by the
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Company. If Employee is required to relocate to an area with a higher cost of
living than the cost of living in the Natchez, Mississippi area as reflected by
a consumer price index or other measure of the cost of living selected by the
Employee and approved by the Company, which approval shall not be unreasonably
withheld, the Salary provided for hereunder shall be increased to an amount to
reflect such cost of living increase.
4. COMPENSATION. As regular compensation for all services rendered by
Employee under this Agreement to the Company, its subsidiaries and affiliates
and for the agreements of the Employee set forth in Sections 9 and 10 hereof,
the Company shall pay to the Employee a salary of $200,000 (the "Salary") per
full calendar year of service completed. From time to time during the term of
this Agreement, the Employee's salary may be increased by, and at the sole
discretion of, the Board, in which case the amount of such increased salary
shall thereafter be deemed to be the amount of salary contracted for in this
Agreement. The Salary set forth herein shall be payable in monthly or
semi-monthly installments in accordance with the payroll policies of the Company
in effect from time to time during the term of this Agreement.
5. BENEFITS. During the term of this Agreement, the Employee shall be
entitled to participate in all employee benefit plans and arrangements in the
same manner as other executive officers of the Company. During this Agreement,
Employer shall maintain term life insurance for Employee with a death benefit
payable to or as directed by Employee of at least four times base Salary.
Employer shall pay all premiums under the life insurance policy when due prior
to the termination of this Agreement. Upon the termination of this Agreement,
Employer shall assign such policy to Employee or, if such policy cannot be
assigned, Employer shall continue to pay premiums on such policy if requested by
Employee provided Employee promptly reimburses Employer for such premiums.
6. EXPENSES. During the term of this Agreement, the Company shall pay or
reimburse the Employee, upon submission of an appropriate statement by him
documenting such expenses as required by the Internal Revenue Code, for all
out-of-pocket expenses for entertainment, travel, meals, hotel accommodations
and the like incurred by him in the interest of the business of the Company and
in accordance with such procedures established by the Board of Directors.
7. TERMINATION.
(a) DEATH. Employee's employment hereunder shall terminate upon
the death of Employee.
(b) DISABILITY. Employee's employment hereunder shall terminate
upon the disability of Employee which, for purposes of this Agreement,
shall be the physical or mental inability of Employee to carry out the
normal and usual duties of his employment on a full-time basis for an
entire period of six (6) contiguous months together with the reasonable
likelihood as determined by the Board that Employee, upon the advice of
a qualified physician, will be unable to carry out the normal and usual
duties of his employment on a full-time basis for the following
continuous period of six (6) months, and within 30 days after Notice of
Termination is given, Employee shall not have returned to the
performance of his duties on a full-time basis.
(i) During any period that the Employee fails to perform
his duties hereunder as a result of incapacity due to physical or
mental illness (the "disability period"), the Employee shall
continue to receive his Salary at the rate then in effect for such
period until the Date of Termination, provided that payments so
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made to the Employee during the disability period shall be reduced
by the sum of the amounts, if any, payable to the Employee to or
prior to the time of any such payment under disability benefit
plans of the Company and which were not previously applied to
reduce any such payment.
(ii) If the Employee's employment is terminated because of
his disability, the Company shall pay to the Employee, commencing
on the next succeeding day which is the fifteenth day or the last
day of the month, as the case may be, and semimonthly thereafter
on the fifteenth and last days of each month, until 48 payments
have been made, an amount on each payment date equal to the
semi-monthly installment of the Salary payment payable to the
Employee pursuant to Paragraph 4 hereof at the time of
disability. Employee shall also be paid (i) the vested portion of
any incentive compensation plan to which Employee is entitled and
(ii) a pro rata portion of any incentive compensation to which
Employee is entitled for the full fiscal year in which Employee's
employment is terminated based on a 365 day year and the number
of days elapsed prior to the Date of Termination. All payments
made to the Employee pursuant to this subparagraph (b)(ii) shall
be reduced by the sum of the amount, if any, payable to the
Employee to or prior to the time of any such payment under
disability benefit plans of the Employer and which were not
previously applied to reduce any such payment.
(iii) If Employee should die prior to the time that he has
received all the payments provided for pursuant to this
subparagraph (b), Employee shall not be entitled to any further
payments under this Paragraph 7(b). For purposes of this
Paragraph 7(b), "Date of Termination" shall mean thirty (30) days
after Employee receives Notice of Termination pursuant to this
subparagraph (b) (provided that the Employee shall not have
returned to the performance of his duties on a full-time basis
during such thirty (30) day period).
(c) TERMINATION BY EMPLOYEE. The Employee may terminate his
employment hereunder for Good Reason. For purposes of this Agreement,
Good Reason shall mean (1) the failure of the Board of Directors to
reelect Employee as President and Chief Operating Officer of the
Company, or Employee's removal from such office, or at any time during
the term of employment, the Company's failure to vest Employee with the
powers and authority of President and Chief Operating Officer of the
Company, except in connection with a termination for cause as
contemplated by subparagraph (d) of this Agreement; (2) a significant
change in the scope, nature or status of Employee's responsibilities or
employment prerogatives; (3) an attempted reduction in Employee's Salary
after a Change in Control (as hereinafter defined) or a failure by the
Company to increase Employee's salary from time to time or to pay
Employee a bonus at a level comparable to the level of salary increases
or bonuses paid prior to a Change in Control; (4) Employee's relocation
by the Company to any place other than a location within the Natchez,
Mississippi area, except for a relocation consented to by Employee or as
provided in Section 3; (5) following a Change in Control, the failure by
the Company to continue in effect any compensation plan in which
Employee participates unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to
such plan in connection with a Change in Control or the failure of the
Company to continue Employee's participation therein or the taking of
any action by the Company which would materially and adversely affect
Employee's participation in any such plan or reduce Employee's benefits
thereunder; (6) following a Change in Control, the failure by the
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Company to continue to provide Employee with benefits not less than
those enjoyed under any of the Company's pension, life insurance,
medical, health and accident, or disability plans in which Employee was
participating at the time of a Change in Control or the taking of any
action by the Company which would directly or indirectly materially
reduce any such benefits; (7) the failure of the Company to obtain a
satisfactory agreement from any successor or parent thereof to assume
and agree to perform this Agreement, as contemplated in Paragraph 17
hereof; and (8) any purported termination of Employee's employment with
the Company which is not effected pursuant to a Notice of Termination
satisfying the requirements of Paragraph 7(h) hereof (and for purposes
of this Agreement, no such purported termination shall be effective).
(i) Other than following a Change in Control (as
hereinafter defined), if Employee shall terminate his employment
for Good Reason, then the Company shall pay the Employee his
Salary through the Date of Termination and for a period of
twenty-four (24) months thereafter at the rate in effect at the
time Notice of Termination is given, such payment to be made in
substantially equal semimonthly installments on the fifteenth and
last days of each month commencing with the month in which the
Date of Termination occurs.
(ii) If the Employee voluntarily terminates this
Agreement, other than for Good Reason pursuant to an Anticipatory
Termination or in accordance with Paragraph 7(e) hereof, then the
Company shall have no further obligation to the Employee except
to pay to the Employee the Salary accrued through the date on
which the Employee terminated this Agreement. Such payment to the
Employee shall be made in the same manner and at the same times
as the Salary would have been paid to the Employee had he not
terminated this Agreement.
(d) DISCHARGE FOR CAUSE. Notwithstanding any other provision of
this Agreement, if prior to the expiration of the term of this Agreement
the Employee shall be discharged by the Company for cause, then this
Agreement shall automatically terminate (except for the provisions of
Section 9 and 10 which shall continue in effect), and upon such
termination, the Company shall have no further obligation to the
Employee except that the Company shall pay to the Employee an amount
equal to the Employee's base salary accrued to the date of such
termination. As used herein "for cause" shall mean any of the following
events: (i) willful misconduct or intentional and continual neglect of
duties which in the business judgment of the Board (excluding Employee)
has materially adversely affected the Company; provided, however, that
Employee shall have first received written notice from such Board
advising of the acts or omissions that constitute the misconduct or
neglect of duties, and such misconduct or neglect of duties continues
after Employee shall have had a reasonable opportunity to correct the
same; (ii) theft or conviction of a felony or any crime involving
dishonesty or moral turpitude; or (iii) willful and continual failure or
refusal to substantially perform employment duties as directed from time
to time by the Board of Directors (other than any such failure resulting
from Employee's incapacity due to physical or mental illness); provided,
however, that Employee shall have first received written notice from the
Board advising of the acts or omissions that constitute the failure or
refusal to substantially perform duties, and such failure or refusal
continues after Employee shall have had a reasonable opportunity to
correct the same.
For purposes of this paragraph, no act, or failure to act, on
Employee's part shall be considered "willful" unless done, or omitted to
be done, by him not in good faith and
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without reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding the foregoing, Employee shall
not be deemed to have been terminated for cause without (i) reasonable
notice to Employee setting forth the reasons for the Company's intention
to terminate for cause, (ii) an opportunity for Employee, together with
his counsel, to be heard before the Board, and (iii) delivery to Employee
of a Notice of Termination from the Board finding that in the good faith
opinion of the Board, Employee was guilty of conduct set forth above in
clause (i), (ii), or (iii) of the preceding paragraph, and specifying the
particulars thereof in detail.
(e) BREACH BY COMPANY. If, other than in connection with a Change
in Control or a termination for Good Reason, (i) Employee terminates his
employment hereunder upon the failure by the Company to comply with any
material provision of this Agreement which has not been cured within ten
(10) days after notice of such noncompliance has been given by Employee
to the Company; or (ii) in breach of this Agreement, the Company shall
terminate the Employee's employment, the Company shall pay to the
Employee, commencing on the next succeeding day which is the fifteenth
day or the last day of the month, as the case may be, and semimonthly
thereafter on the fifteenth and last days of each month, for a period of
twenty-four (24) months, an amount on each payment date equal to the
semi-monthly installment of the Salary payment payable to the Employee
pursuant to Paragraph 4 hereof at the time of disability. Employee shall
also be paid (i) the vested portion of any incentive compensation plan
to which Employee is entitled and (ii) a pro rata portion of any
incentive compensation to which Employee is entitled for the full fiscal
year in which Employee's employment is terminated based on a 365 day
year and the number of days elapsed prior to the Date of Termination.
(f) EXPIRATION DATE. In the event Employee shall continue to be
employed on the Expiration Date, or the last day of December of each
year thereafter, and no previous Notice of Termination of this Agreement
by the Company or Employee is effective on that date, this Agreement and
Employee's employment hereunder shall be automatically extended one
additional year, subject to termination by either party upon not less
than thirty (30) days written notice to the other party prior to the end
of any year thereafter. For purposes of this Agreement, with respect to
termination of this Agreement by employee for Good Reason, the
Expiration Date shall be the date that is twenty-four (24) months
subsequent to the Date of Termination.
(g) PARTICIPATION IN BENEFITS. Unless Employee is terminated for
cause or pursuant to Paragraphs 7(a), (b) or (c) (ii), the Company shall
maintain in full force and effect, for the continued benefit of Employee
until the then applicable Expiration Date determined pursuant to
Paragraph 7(f), all employee benefit plans and programs in which the
Employee was entitled to participate immediately prior to the Date of
Termination provided that the Employee's continued participation is
possible under the general terms and provision of such plans and
programs. In the event that the Employee's participation in any such
plan or program is barred, the Company shall arrange to provide the
Employee with benefits substantially similar to those which the Employee
would otherwise have been entitled to receive under such plans and
programs from which his continued participation is barred. Unless
Employee is terminated for cause, pursuant to Paragraph 7(c)(2) or upon
a Change in Control, the Company, at its expense, shall maintain in full
force and effect until the earlier of (A) the then applicable Expiration
Date determined pursuant to Paragraph 7(f), or (B) Employee's
commencement of full-time employment with a new employer (if
5
applicable), for the continued benefit of Employee and/or his spouse and
dependent children, all life, disability, medical, dental, accident and
health insurance coverage to which they were entitled immediately prior
to the Date of Termination. In the event that such participation in any
such coverage is barred under the general terms and provisions of the
plans and programs under which such coverage is provided, or any such
coverage is discontinued or the benefits thereunder materially reduced,
the Company shall provide or arrange to provide benefits substantially
similar to those which Employee and/or his spouse and dependent children
were entitled to receive under such coverage immediately prior to the
Notice of Termination. Unless Employee is terminated pursuant to
Paragraph 7(a), at the end of the period of coverage hereinabove
provided for, Employee shall have the option to have assigned to
Employee at no cost and with no apportionment of prepaid premiums, any
assignable insurance owned by the Company and relating specifically to
Employee and Employee shall be entitled to all health and similar
benefits that are or would have been made available to Employee under
law.
(h) NOTICE OF TERMINATION. Any termination of the Employee's
employment by the Company or by the Employee (other than termination
pursuant to subparagraph 7(a) above) shall be communicated by written
Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated.
8. COMPENSATION UPON TERMINATION AFTER CHANGE IN CONTROL. The following
provisions shall be applicable in the event of a Change in Control.
(a) CHANGE IN CONTROL. Except in the case of an Anticipatory
Termination, no benefits shall be payable under this Paragraph 8 unless
there shall have been a Change in Control of the Company, as defined
below, and Employee's employment shall thereafter have been terminated
in accordance with subparagraph (b). For purposes of this Agreement, a
"Change in Control" shall have occurred only if: (i) any person or group
of persons acting in concert (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) shall have become the beneficial owner
of a majority of the outstanding common stock of the Company other than
pursuant to the Stockholders' Agreement dated September 16, 1994 between
the Company, certain members of the Xxxxxx family and NOCO Enterprises,
L.P.; (ii) the stockholders of the Company shall cause a change in a
majority of the members of the Board within a twelve-month period,
provided, however, that the election of a newly-elected director shall
not be deemed to be a change in the membership of the Board if the
nomination for election by the Company's stockholders of such new
director was approved by the vote of two-thirds of the directors then
still in office who were directors at the beginning of such twelve-month
period; or (iii) the Company or its stockholders shall enter into an
agreement to dispose of all or substantially all of the assets or
outstanding capital stock of the Company in any manner (including, but
not limited to, by means of sale, merger, reorganization or
liquidation). For purposes of this Agreement an "Anticipatory
Termination" means the termination of Employee's employ-
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ment with the Company in contemplation of the consummation of a pending
transaction that subsequently results in a Change in Control, if such
termination is by an Employer other than for cause, death or disability.
(b) TERMINATION. If any of the events described in subparagraph
(a) hereof constituting a Change in Control of the Company shall have
occurred, Employee shall be entitled to the benefits provided in
subparagraph (c) hereof upon the subsequent termination of Employee's
employment pursuant to a Notice of Termination given on or prior to the
expiration of two years following the Change in Control, unless such
termination is because of Employee's death or retirement, by the Company
for cause or disability, or by Employee other than for Good Reason.
(c) PAYMENT ON TERMINATION. If Employee's employment has been
terminated by means of an Anticipatory Termination or if Employee is
entitled to receive benefits hereunder pursuant to subparagraph (b)
above, then the Company shall pay to Employee, commencing on the next
succeeding day which is the fifteenth day or the last day of the month,
as the case may be, and semimonthly thereafter on the fifteenth and last
days of each month, for a period of thirty-six (36) months, an amount on
each payment date equal to the semi-monthly installment of the Salary
payment payable to the Employee pursuant to Paragraph 4 hereof at the
Date of Termination.
(d) MITIGATION. The Employee shall not be required to mitigate
the amount of any payment provided in this Paragraph 8 by seeking or
accepting other employment or otherwise.
(e) ADDITIONAL BENEFITS. If Employee is entitled to receive
benefits under subparagraph (c), then Employee shall be entitled to the
following additional benefits:
(i) Employee shall be entitled to receive all benefits
payable to Employee under the grants of options of the Company as
if Employee were fully vested thereunder, and such benefits shall
be paid to Employee promptly following the Date of Termination
but no later than such benefits would normally be paid to a
withdrawing participant in the plan or agreement.
(ii) The Company, at its expense, shall maintain in full
force and effect for Employee's continued benefit until the
earlier of (A) 24 months after the Date of Termination or (B)
Employee's commencement of full-time employment with a new
employer, all life, disability, medical, dental, accident and
health insurance coverage to which Employee was entitled
immediately prior to the Notice of Termination. In the event that
Employee's participation in any such coverage is barred under the
general terms and provisions of the plans and programs under
which such coverage is provided, or any such coverage is
discontinued or the benefits thereunder materially reduced, the
Company shall provide or arrange to provide Employee with
benefits substantially similar to those which Employee was
entitled to receive under such coverage immediately prior to the
Notice of Termination. At the end of the period of coverage
hereinabove provided for, Employee shall have the option to have
assigned to Employee at no cost and with no apportionment of
prepaid
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premiums, any assignable insurance owned by the Company
and relating specifically to Employee and Employee shall be
entitled to all health and similar benefits that are or would
have been made available to Employee under law.
(f) If the aggregate of all payments in the nature of
compensation and other benefits to Employee that are to be paid to
Employee contingent on the Change in Control (the "Aggregate Amount")
would constitute a "parachute payment" (as defined in Section 280G of
the Internal Revenue Code of 1986, as amended or supplemented (the
"Code")), the lump sum payment otherwise payable to Employee pursuant to
subparagraph (c)(i) shall be grossed up to an amount such that Employee
receives the amount Employee would have received had no portion of the
Aggregate Amount been subject to the excise tax imposed by Section 4999
of the Code.
9. CONFIDENTIAL INFORMATION. The Employee acknowledges that in the
course of his past employment with the Company and his future engagement with
the Company, he has received and will receive certain trade secrets, know-how,
lists of customers, investors and other confidential information and knowledge
concerning the business of the Company (hereinafter collectively referred to as
"information") which the Company desires to protect. The Employee understands
that such information is confidential and he agrees not to reveal such
information to anyone outside the Company so long as the confidential or secret
nature of such information shall continue. The Employee further agrees that
during the term of this Agreement and thereafter he will not use such
information in competing with the Company. Upon termination of this Agreement,
the Employee shall surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by or through his
employment hereunder and relating to the information referred to in this Section
9, and the Employee agrees that all such materials will at all times remain the
property of the Company.
10. RESTRICTIVE COVENANT. In partial consideration of the Company's
agreement to enter into this Agreement, the Employee agrees that during the term
of this Agreement, without the prior written consent of the Company, the
Employee shall not engage, as principal, agent, trustee or through the agency of
any corporation, partnership, association, agent, agency or other entity, in any
business similar to or competitive with the businesses conducted by the Company,
and the Employee shall not be the owner of more than 5% of the outstanding
capital stock of any corporation, or a member or consultant of any partnership
or an owner or consultant of any other business which conducts a business in
competition with the business of the Company. During his employment with the
Company and if this Agreement is terminated by the Company for cause for a
period of one-year thereafter, the Employee further agrees that he will not,
either directly or indirectly, through any person, firm, association or
corporation with which he is now or may hereafter become associated, cause or
induce any present or future employee of the Company to leave the employ of the
Company or to accept employment with the Employee or with such person, firm,
association or corporation. Employee further agrees that during his employment
with the Company and if this Agreement is terminated for cause for a period of
one year thereafter, the Employee will not, either directly or indirectly,
through any person, firm, association or corporation which he is now or may
hereafter become associated, cause or induce any investor (including without
limitation, persons who purchase net profits interests in working interests
owned by the Company and its subsidiaries) to invest (including the purchase of
net profits interests from) with or in such person, firm, association or
corporation.
11. VACATIONS. The Employee shall be entitled each year to a vacation of
four (4) weeks, during which time his compensation shall be paid in full. Each
vacation shall be taken during a period of time to be mutually agreed upon by
the parties.
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12. INTELLECTUAL PROPERTY. The Employee hereby agrees that any and all
copyrights, patents, trademarks, patent or trademark applications, copyrights,
franchises, licenses, permits, rights (including, without limitation, rights to
software and rights to trade secrets and proprietary information, processes and
know-how) and other authorizations (collectively, the "Rights") which he
develops either alone or in collaboration with employees of the Company during
the term of this Agreement shall belong exclusively to the Company and, if
requested, he will execute any deeds, bills of sale, assignments, assurances, or
any other actions or things are necessary or desirable to vest, perfect, or
confirm of record or otherwise in the Company its right, title, or interest in,
to, or under any of the Rights.
13. NOTICES. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or on the date mailed, postage
prepaid, by certified mail, return receipt requested, if addressed to the
respective parties as follows:
If to Employee: Xxxx X Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
If to the Company: Xxxxxx Petroleum Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
14. SPECIFIC PERFORMANCE. The Employee acknowledges that a remedy at law
for any breach or attempted breach of Section 9 or 10 of this Agreement will be
inadequate, agrees that the Company shall be entitled to specific performance
and injunctive and other equitable relief in case of any such breach or
attempted breach, and further agrees to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such injunctive
or any other equitable relief.
15. SEVERABILITY. In case any term, phrase, clause, paragraph, section,
restriction, covenant or agreement contained in this Agreement shall be held to
be invalid or unenforceable, the same shall be deemed, and it is hereby agreed
that the same are meant to be several, and shall not defeat or impair the
remaining provisions hereof.
16. WAIVER. The waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent or continuing breach of this Agreement by the Employee.
17. ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of the other parties. This Agreement is binding upon and inures to the
benefit of Employee, the Company and their respective heirs, personal
representatives and permitted successors and assigns. 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/or assets of the
Company, by agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement
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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 agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Employee to compensation 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 following a Change in
Control, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, the "Company" shall mean the Company as
hereinbefore defined and any successors to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Paragraph 17 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
18. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the matters covered
hereby.
19. AMENDMENT. This Agreement may be amended only by an instrument in
writing executed by the parties hereto.
20. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the law of the State of Mississippi.
21. SURVIVAL. The provisions of Sections 9 and 10 shall survive until
the termination of this Agreement, regardless of the fact that the Company will
no longer be obligated to continue to make payments to the Employee hereunder.
22. PRIOR AGREEMENT. Employee and Company entered into an Employment
Agreement effective January 1, 1994 ("Prior Agreement"). This Agreement shall
replace the prior Agreement, and Employee and Employer shall have no further
rights or obligations under the Prior Agreement.
23. RESTRICTED STOCK GRANTS. Attached hereto as Exhibit A is a form of
Performance Share Award Agreement ("Award") under the Company's 1996 Stock
Incentive Plan ("Plan"). The Plan is subject to stockholder approval at the next
meeting of the Company's stockholders. The Company agrees that if the Plan is
approved by the Company's stockholders at the next meeting of stockholders, the
Company will execute the Award and issue the performance shares described
therein, which shall be subject to the vesting provisions of such Award, to the
Employee (or, in the event of the prior death of Employee, to Employee's
estate). If Employee's employment with the Company terminates prior to such
stockholder approval and, under the terms of the Award, the performance shares
would not have vested prior to or upon such termination of employment, then the
Company shall not be obligated to execute the Award or issue the performance
shares to Employee pursuant to the Award.
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
THE COMPANY:
XXXXXX PETROLEUM COMPANY
By________________________________
THE EMPLOYEE:
----------------------------------
XXXX X. XXXXXX
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