EMPLOYMENT AGREEMENT
FOR
XXXXXX X. XXXXXXXX
This AGREEMENT (the "Agreement') is dated as of August 9, 1999, by and
between SARATOGA RESOURCES, INC., a Delaware corporation (the "Employer"), and
XXXXXX X. XXXXXXXX, of Rocky Mount, North Carolina (the "Employee").
WHEREAS, the Employer desires to continue to employ the Employee as its
President, Managed Care Division, and the Employee desires to continue to render
such services, each on the terms and conditions set forth below;
WHEREAS, Employee understood, before agreeing to be employed, that the
covenant not to compete was a condition of his employment;
WHEREAS, the Employer considers the establishment, maintenance and
continuity of qualified management to be essential to protecting and enhancing
its best interests and the best interests of its shareholders;
WHEREAS, the Employer has determined that it is in its best interest to
enter into employment agreements with key management and executive personnel to
enable the Employer to attract and retain qualified management;
WHEREAS, the Employer believes that when a change in control is
perceived as imminent, or is occurring, it should be able to receive and rely on
disinterested advice from management regarding the best interests of the
Employer without concern that members of management might be distracted or
concerned by the personal uncertainties and risks created by the perception of
an imminent or occurring change in control, and the Employer also recognizes
that the possibility of such a change in control could result in the departure
or distraction of key management personnel to the detriment of the Employer;
WHEREAS, the Employer has determined that it would be in its best
interest to reinforce and encourage the continued attention and dedication of
key members of the management of the Employer to their duties without financial
or employment concerns arising from the possibility of a change in control and
to enable such key employees to consider only the best interests of all
shareholders and employees in negotiating with respect to any such change in
control; and
WHEREAS, in furtherance of the above stated objectives, the parties
desire to enter into this Agreement to set forth the terms and conditions for
the employment relationships of the Employee with the Employer.
NOW, THEREFORE, it is AGREED as follows:
1. EMPLOYMENT. The Employer hereby employs the Employee and the Employee
hereby accepts employment upon the terms and conditions set forth below.
2. SCOPE OF EMPLOYMENT.
(a) The Employee is hereby employed as President, Managed Care
Division of the Employer as of the closing of a business combination between
PrimeVision Health, Inc. and OptiCare Eye Health Centers, Inc. (the
"Commencement Date") and which shall continue through the term of this
Agreement. In that capacity, the Employee shall be responsible for the
operations of the Employer's Managed Care business unit and other management
services to the Employer of the type customarily performed by persons serving in
such capacity or in another executive capacity. The Employee shall also perform
such other duties as the Chief Executive Officer of the Employer may from time
to time reasonably direct.
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(b) The Employee shall maintain regular hours at the offices of
the Employer in Rocky Mount, North Carolina, or such other office(s) as the
Employer shall from time to time designate. The Employee shall comply with all
reasonable rules, regulations and overall policies established by the Employer.
(c) During the term of employment hereunder, the Employee shall
devote his full professional time and his best efforts to the business and
affairs of the Employer and shall not engage in any outside business activities
related to the managed care industry, except as may otherwise be agreed to by
the Chief Executive Officer of the Employer.
3. COMPENSATION.
(a) Base Salary. The Employer shall pay the Employee, during the
term of this Agreement, a base salary at an annual rate of $175,000.00 (the
"Base Salary"). Participation in deferred compensation, discretionary bonus,
retirement, and other employee benefit plans and in fringe benefits (including
those described below) shall not reduce the Base Salary payable to the Employee.
The Base Salary shall be payable not less frequently than semimonthly. The
Employee's Base Salary shall be increased effective January 1, 2002 to
$193,000.00.
(b) Bonuses. During the term of this Agreement, the Employee
shall be eligible to receive the following described Base Bonuses, Performance
Bonuses, Incremental Performance Bonuses and Executive Bonuses.
(1) Base Bonuses. Each month during the following calendar
years, or portions thereof, included within the term of this Agreement, the
Employee shall receive the following monthly Base Bonus:
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Calendar Year Monthly Base Bonus
------------- ------------------
1999 $3,833.00
2000 $4,763.00
2001 $5,667.00
(2) Performance Bonuses. If the net operating profit for
the Employer's Managed Care Division for the following calendar years equals or
exceeds the following amounts, the Employee shall be entitled to the following
Performance Bonus, payable not later than ninety (90) days after the end of such
calendar year:
Calendar Year Minimum Net Operating Profit Performance Bonus
------------- ---------------------------- -----------------
1999 $1.4 million $72,930.00
2000 $1.9 million $76,611.00
2001 2001 Managed Care Division Net Operating $ 2,000.00
Profit Budget Amount Approved by the
Employer's Board of Directors
2002 2002 Managed Care Division Net Operating $77,200.00
Profit Budget Amount Approved by the
Employer's Board of Directors
Notwithstanding the foregoing, for purposes of determining the net operating
profit for calendar year 1999, if, as of the Commencement Date, the net
operating profit of the Managed Care Division of PrimeVision Health, Inc. would
reasonably be likely to equal or exceed $1.4 million as of the end of calendar
year 1999 (absent the business combination of PrimeVision Health, Inc.
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and OptiCare Eye Health Centers, inc.), the Performance Bonus identified
hereinabove shall be payable to the Employee within ninety days of the
Commencement Date.
(3) Incremental Performance Bonuses. If the net operating
profit for the Employer's Managed Care Division for the following calendar years
equals or exceeds the Managed Care Division's net operating profit budget for
such calendar year approved by the Employer's Board of Directors, the Employee
shall be entitled to receive the following percentage of the difference between
the actual and budgeted net operating profit as an Incremental Performance
Bonus, payable not later than ninety (90) days after the end of such calendar
year:
Percentage of Difference Between Actual
Calendar Year and Budget Net Operating Profit
------------- ---------------------------------------
2000 8%, but not more than $41,234.00
2001 6%, but not more than $17,500.00
2002 5%, but not more than $19,300.00
(4) Executive Bonuses. For calendar years 2001 and 2002,
if the Employer's net income for such calendar year equals or exceeds the
Employer's net income budget for such calendar year approved by the Employer's
Board of Directors, the Employee shall be entitled to receive, as an Executive
Bonus, a fraction of twenty-five percent (25%) of the difference between the
actual and budgeted net income, the numerator of which is fifty percent (50%) of
the Employee's Base Salary for such calendar year and the denominator of which
is fifty percent (50%) of the base salaries of all of the Employer's senior
managers. Such Executive Bonus shall be paid not later than ninety (90) days
after the end of such calendar year.
(c) Participation in Stock Incentive Plan. The Board of Directors
may grant the Employee certain stock option shares of the Employer's Common
Stock, in accordance with the
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Employer's 1999 Omnibus Plan, as amended from time to time. Such options shall
vest in the event the Employee's employment is terminated for any reason other
than for cause (as defined in paragraph 7(a)(2)), including death, disability
and termination by the Employer other than for cause. Upon the Commencement
Date, the Employee shall receive a grant of 45,000 options to purchase the
Employer's stock.
4. BENEFITS, VACATIONS AND SEMINARS; SICK LEAVE.
(a) Benefit Programs and Expenses.
(1) The Employer shall provide the Employee with the
benefit of its health insurance plans and such other benefits as the Employer
may establish from time to time for the benefit of its full-time key management
personnel.
(2) The Employer shall reimburse the Employee for the cost
of pursuing post-graduate business or financial studies and/or acquiring
additional professional qualifications all as previously approved by the
Employer.
(3) The Employer shall pay the cost to the Employee of
attending professional meetings or conventions, etc., as previously approved by
the Employer.
(4) The Employer shall pay for the Employee's dues for
membership in any professional, social or civic organization approved by the
Employer.
(b) Vacations and Seminars.
The Employee shall be entitled to a paid vacation of four (4)
work weeks per calendar year, or prorata for a portion of a calendar year. The
time of said vacation shall be determined by mutual consent of the parties
hereto. Unused days of vacation may not be carried over from year to year.
Notwithstanding the foregoing, the Employee shall be entitled to use on
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or before December 31, 1999 any unused vacation time existing as of the
Commencement Date that was accumulated while the Employee was employed by
PrimeVision Health, Inc.
(c) Sick Leave. In the event that the Employee shall be absent
due to illness or injury, his Base Salary shall continue for a period not
exceeding one (1) day for each month of active employment with the Employer
prior to the date of said illness or injury, up to an annual maximum of twelve
(12) days, plus any unused vacation time. Absences in excess of the number of
days so determined shall be without pay. Sick leave may not be carried over to a
succeeding year. Notwithstanding the foregoing, the Employee shall be entitled
to use on or before December 31, 1999 any unused sick leave existing as of the
Commencement Date that was accumulated while the Employee was employed by
PrimeVision Health, Inc.
5. DISABILITY AND DISABILITY PAYMENTS.
(a) The Employer shall pay or reimburse (grossed up to account
for federal and state income taxes) the Employee for long-term disability
insurance covering total disability as defined in such long-term disability
policy or policies, providing a combined maximum benefit of up to 65% of the
Base Salary plus bonus earned as of the date of total disability, subject to a
ninety (90) day elimination period, an inflation or cost of living benefit
rider, and the longest available benefit period. In the event that the Employee
shall become partially or totally disabled (as defined in such long term
disability policy) for a period of not more than 90 days, then, during the
period of such partial or total disability, Employee shall be paid the
compensation set forth in Paragraph 3 for such 90 day period. If available, the
Employee may purchase additional coverage enhancements or riders at his own
expense.
(b) Notwithstanding the provisions of Paragraph 7, the Employer
may terminate the Employee's employment effective at a time after the lapse of
the ninety (90) day period
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referred to in Paragraph 5(a). If the Employee's employment is terminated by
reason of disability, the Employee shall receive the benefits, if any, payable
under any long-term disability plan maintained by the Employer and the Employee
shall be entitled to the accelerated vesting of any stock options granted to the
Employee as provided in Paragraph 3(c), but no additional compensation or other
benefits for any period after termination for disability.
6. TERM. The initial term of employment under this Agreement shall
commence on the Commencement Date and shall continue for an initial period of
three (3) years from the Commencement Date. Thereafter, the term of employment
shall be extended automatically for subsequent one (1) year terms on the same
terms and conditions unless either party gives contrary written notice to the
other party on or before the "Applicable Notice Date". The "Applicable Notice
Date" shall be the date that is six (6) months prior to the next anniversary
date, in the event that the Employee does not desire to renew the term of this
Agreement or in the event that the Employer desires not to renew this Agreement.
References herein to the term of this Agreement shall refer to both such initial
term and any additional or extended terms.
7. TERMINATION OF EMPLOYMENT.
(a) Termination By the Employer for Cause.
(1) The Employer may at any time terminate the Employee's
employment with the Employer for cause. The Employee shall have no right to
receive compensation or other benefits for any period after termination for
cause.
(2) The term "termination for cause" shall mean
termination because of the Employee's dishonesty or willful misconduct in
respect of the Employee's duties under this Agreement, conviction of, or plea of
nolo contendere to, a felony or crime involving moral
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turpitude, or a breach of fiduciary duty, whether or not involving personal
profit, in connection with the Employee's employment by the Employer.
(3) In determining whether a "termination for cause" has
occurred, it shall be the Employer's burden to prove the alleged acts.
(b) Termination by the Employer Other Than For Cause. The
Employer may at any time terminate upon three (3) months' prior written notice
the Employee's employment other than for cause; provided, however, that in the
event of any such termination of employment other than for cause, the Employer
shall make the payments provided in Paragraph 8(b).
(c) Termination by the Employee. The Employee may terminate his
employment for any reason upon six (6) months prior written notice to that
effect delivered to the Employer, unless a shorter notice period is approved by
the Chief Executive Officer of the Employer. The Employee agrees that if he
terminates his employment with the Employer under this subparagraph 7(c), he
shall devote his full professional time and best efforts to the business and
affairs of the Employer during such six (6) month period; and the Employer
agrees to continue to pay the Employee his Base Salary, any declared bonuses
until the close of such period and such other payments as may be provided in
Paragraph 8(b); provided, however, that if the Employee fails to devote his full
professional time and best efforts to the business and affairs of the Employer
during such six (6) month period, the Employer shall not be obligated to make
any further payments under any provision of this Agreement other than to make
payments to the Employee of the Base Salary accrued prior to the Employee's
breach of his commitment under this subparagraph 7(c) and such bonuses allocable
to the annual period prior to the date of such breach, when and in such amounts
as are declared by the Board of Directors of the Employer, and such other
payments as may be provided in Paragraph 8(b). In the event of such breach, the
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Employer shall have the right to pursue all other remedies available at law or
in equity. Notwithstanding anything to the contrary in the foregoing, nothing in
this subparagraph 7(c) is intended to modify the Employee's obligations pursuant
to paragraphs 10, 11, and 12 of this Agreement.
8. PAYMENTS IN THE EVENT OF OR SEPARATION FROM SERVICE PRIOR TO CHANGE
OF CONTROL.
(a) Death. Upon the death of the Employee, the Employee's Base
Salary, prorated to the date of his death, and such bonuses allocable to the
annual period prior to the date of death, when and in such amounts as declared
by the Board of Directors of the Employer, shall be paid to his named
beneficiary, or if there be none then living, to the Employee's estate. In
addition, the Employer shall, if it is commercially feasible, purchase insurance
on the life of the Employee in the amount of one (1) times the Employee's Base
Salary, with the proceeds payable to the Employee's estate. If the premium for
such life insurance is not commercially feasible, and such insurance is not
obtained, the Employee's estate shall be paid $200,000 as a death benefit.
(b) Compensation and Benefits Upon Termination. In the event the
Employee's employment is terminated without cause by the Employer, the Employee
shall be paid, as severance pay, an amount equal to eighteen (18) months of Base
Salary as a lump sum and the benefits hereunder. If the Employee terminates his
employment and, in consideration of the enforcement of the covenant not to
compete set forth in subparagraph (a) of Paragraph 11, the Employee shall be
paid an amount equal to twelve (12) months Base Salary, payable in monthly
installments.. In the event the Employees' employment is terminated for cause or
if the Employee breaches Paragraph 10 or 11 hereunder or if the Employee is
receiving payment upon
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a change in control pursuant to Paragraph 14, no payments under this
Paragraph 8(b) shall be made following such termination or breach.
9. CONSENT TO INSURANCE PROCEDURES. The Employee agrees that the
Employer may from time to time apply for and take out in its own name and at its
own expense such life, health, accident or other insurance upon the Employee as
the Employer may deem necessary or advisable to protect its interests hereunder.
The Employee agrees to submit to any medical or other examination necessary for
such purpose and to assist and cooperate with the Employer in procuring such
insurance. The Employee agrees that the Employee shall have no right, title or
interest in and to such insurance whether presently existing or hereafter
procured.
10. NONDISCLOSURE. The Employee shall not, during the term of this
Agreement, or thereafter, without the express written permission of the
Employer: (a) disclose to any person, or permit any person to have access to,
any information or knowledge whatsoever relating to the Employer, or to any
successor entity thereto or its affiliates, business or affairs, obtained by the
Employee while in the employ of the Employer, whether prepared by the Employee
or others, to the extent such information or knowledge constitutes Confidential
Information as defined below, (b) use any such Confidential Information except
for the Employer's benefit, or (c) copy any papers, charts, documents or other
records or remove them from the Employer's property, except as may be necessary
in the performance of the Employee's duties hereunder. For purposes of this
Agreement, the term "Confidential Information" shall include all patient
information and charts, information regarding referring physicians and
optometrists, hospital arrangements, suppliers and supplies, vendors, and other
companies and individuals with whom the Employer has business relationships, any
financial or budgetary records, and all other information and knowledge, rules,
regulations and policies of the Employer, unless such information (1) was
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already known to the Employee at the time of the Employee's receipt thereof and
the Employee can demonstrate such knowledge by the Employee's written records;
(2) is or becomes publicly known through no act of the Employee; (3) is approved
for release by written authorization of the Employer; or (4) is compelled by
compulsory court process to disclose, provided that the Employee immediately
notifies the Employer of such process and tenders the defense of such process to
the Employer.
11. COVENANT NOT TO COMPETE. In consideration of the Employee being
granted certain stock options and for other valuable consideration, the Employee
agrees as follows:
(a) During the term of the Employee's employment by the Employer
and for a period of twelve (12) months immediately following the termination of
such employment (such period to be extended to include any period of violation
or period of time required for litigation to enforce this covenant) (the
"Non-Competition Period"), the Employee shall not, without the prior written
consent of the Employer, engage in or become associated with a Competitive
Activity. For purposes hereof, a Competitive Activity means any competitor with
the Employer's Managed Eye Care business identified by the Employer from time to
time prior to the termination of the Employee's employment or any other person
or entity that competes, or intends to compete, with the Employer's Managed Eye
Care business or is otherwise engaged in the Managed Eye Care business at any
time or from time to time during the Non-Competition Period. For purposes
hereof, the Employee shall be considered to have become "associated with a
Competitive Activity" if the Employee becomes directly or indirectly involved as
an owner, principal, employee, officer, director, independent contractor,
consultant, representative, stockholder, financial backer, agent, partner,
advisor, lender, or in any other individual
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representative capacity with any individual, partnership, corporation or other
organization that is engaged in a Competitive Activity. Notwithstanding the
foregoing, the Employee may make and retain investments during the
Non-Competition Period in less than one percent (1%) of the equity of any entity
engaged in a Competitive Activity, if such equity is listed on a national
securities exchange or regularly traded in an over-the-counter market.
(b) During the term of the Employee's employment by the Employer
and for a period of eighteen (18) months immediately following the termination
of such employment (such period to be extended to include any period of
violation or period of time required for litigation to enforce this covenant),
the Employee shall not, without the prior written consent of the Employer,
directly or indirectly: (1) employ, or solicit the employment of (whether as an
employee, officer, director, agent, consultant or independent contractor), any
person who was or is at any time during the previous eighteen (18) months an
employee, representative, officer or director of the Employer (except for such
employment by the Employer); or (2) solicit any company regarding Managed Eye
Care that was or is, at any time during the previous eighteen (18) months, a
customer of the Managed Care business of the Employer or that was solicited by
the Managed Care business of the Employer during the previous eighteen (18)
months.
12. ASSIGNMENT OF INVENTIONS. The Employee hereby assigns, and will
promptly disclose and assign, to the Employer exclusively, all inventions,
discoveries, improvements, devices, tools, machines, apparatuses, appliances,
designs, practices, processes, methods, formulae, products, trade secrets and
the like (hereinafter collectively called "inventions"), whether or not
patentable, which are directly or indirectly useful in or related to either the
Employer's business or to that of any of its affiliated or managing entities,
which the
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Employee shall make, originate, conceive or reduce to practice, either solely or
jointly with others, during the term of the Employee's employment by the
Employer or any of its affiliated or managing entities. The Employee further
agrees that during and after the term of this Agreement, without charge to the
Employer, the Employee will execute, acknowledge and deliver any and all papers
and take any other reasonable actions necessary or helpful for the Employer to
obtain patents for its own benefit on said inventions in any and all countries
or to otherwise protect and secure the Employer's interests in said inventions;
said patents, applications for patents and inventions to remain the property of
the Employer whether patented or not.
13. REMEDIES FOR BREACH. In the event of the Employee's breach or
threatened breach of any provision of Paragraph 10, 11, or 12 hereof, the
Employer shall be entitled, if it so elects, to institute and prosecute
proceedings in any court of competent jurisdiction, either in law or in equity,
to obtain damages for breach of said paragraphs, or to enforce the specific
covenants therein, or to obtain an injunction restraining the Employee from the
continuation of such breach. Nothing herein shall be construed as prohibiting
the Employer from pursuing any other remedies available to it, including the
recovery of damages from the Employee.
14. PAYMENTS UPON CHANGE IN CONTROL.
(a)(i) If following a Change in Control of the Employer (as
defined in subparagraph 14(b) below), the Employee terminates his employment
with the Employer in accordance with Paragraph 7(c);
(ii) Then in the event of the termination set forth in
subparagraph 14(a)(i), the Employee shall be entitled to receive from the
Employer, as a severance payment for services
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previously rendered to the Employer, a lump sum cash payment as provided for in
subparagraph 14(a) (iii) below (subject to subparagraph 14(c) below)
(the "Severance Payment").
(iii) Subject to subparagraph 14(c) below, the amount of the
Severance Payment provided shall equal eighteen (18) months of the Base Salary.
The Severance Payment shall not be reduced by any compensation which the
Employee may receive from other employment with another employer after
termination of the Employee's employment with the Employer.
(b) A "Change in Control of the Employer," for purposes of this
Agreement, shall be deemed to have taken place, if:
(i) any person becomes the beneficial owner of fifty-one
percent (51%) or more of the total number of voting shares of the Employer; or
(ii) any person has commenced a tender or exchange offer
to acquire beneficial ownership of fifty-one percent (51%) or more of the total
number of voting shares of the Employer; or
(iii) less than two-thirds of the total membership of the
Board of Directors of the Employer shall be Continuing Directors. For purposes
of this Section 14(b), a Continuing Director shall mean any member of the Board
of Directors of the Employer who was a member of a Board as of the date hereof,
and any successor of a Continuing Director while such successor is a member of
the Board who is not a person described in Section 14(b)(i) or (ii) or an
Affiliate or Associate of such a person or of any such Affiliate or Associate
and is recommended or elected to succeed the Continuing Director by a majority
of the Continuing Directors. As used herein, "Affiliate" and Associates" shall
have the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in effect of
the date hereof (the "Exchange Act"). For purposes of this Section 14(b), a
"person"
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includes an individual, corporation, partnership, trust or group acting in
concert. A person for these purposes shall be deemed to be a beneficial owner as
that term is used in Rule 13d-3 under the Exchange Act.
(c) Notwithstanding any other provision of this Agreement or of
any other agreement, contract, or understanding heretofore or hereafter entered
into between the Employee and the Employer, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this Section 14(c) (the "Other Agreements"), and notwithstanding
any formal or informal plan or other arrangement heretofore or hereafter adopted
by the Employer for the direct or indirect provision of compensation to the
Employee (including groups or classes of Participants or beneficiaries of which
the Employee is a member), whether or not such compensation is deferred, is in
cash, or is in the form of a benefit to or for the Employee (a "Benefit Plan"),
the Employee shall not have any right to receive any payment or other benefit
under this Agreement, any other Agreement, or any Benefit Plan if such payment
or benefit, taking into account all other payments or benefits to or for the
Employee under this Agreement, all Other Agreements, and all Benefit Plans,
would cause any payment to the Employee under this Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code (a
"Parachute Payment"). In the event that the receipt of any such payment or
benefit under this Agreement, any Other Agreement, or any Benefit Plan would
cause the Employee to be considered to have received a Parachute Payment under
this Agreement, then the Employee shall have the right, in the Employee's sole
discretion, to designate those payments or benefits under this Agreement, any
other Agreements, and/or any Benefit Plans, which should be reduced or
eliminated so as to avoid having the payment to the Employee under this
Agreement to be deemed to be a Parachute Payment.
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15. AMENDMENTS OR ADDITIONS; ACTION BY BOARD. No amendments or additions
to this Agreement shall be binding unless in writing and signed by all of the
parties hereto. The prior approval by the Employer's Chief Executive Officer
shall be required to authorize any amendments or additions to this Agreement, to
give any consents or waivers of provisions of this Agreement, or to take any
other action under this Agreement including any termination of employment with
or without cause.
16. CONTINUED ENFORCEABILITY AFTER CHANGE IN OWNERSHIP; ENFORCEABILITY
AGAINST SUCCESSORS AND TRANSFEREES. The parties intend that this Agreement shall
continue to be a legally valid, binding agreement, enforceable in accordance
with its terms, notwithstanding a change in the ownership of the Employer,
including, without limitation, a sale of substantially all of the Employer's
assets, merger or consolidation of the Employer, whether or not the Employer is
the surviving entity, and a sale of voting control of the Employer; and may be
assigned by the Employer. The parties agree that any transferee of all or
substantially all of the assets of the Employer or surviving or resulting
entity, as the case may be, shall be subject to the obligations of the Employer
hereunder, whether such transfer occurs by merger, operation of law, or
otherwise. The Employer agrees that before the consummation of any such transfer
(other than a transfer whereby such obligations are assumed by operation of law)
it will obtain the agreement of the transferee, enforceable by the Employee, to
assume such obligations. No such transfer shall release the Employer of its
obligations hereunder without the prior written consent of the Employee.
17. SECTION HEADINGS. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
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18. 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 unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein. If, moreover, any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
excessively broad as to time, duration, geographical scope, activity or subject,
it shall be construed, by limiting and reducing it, so as to be enforceable to
the fullest extent compatible with the applicable law as it shall then appear.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State of
Connecticut, excluding the choice of law rules thereof.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and together shall
constitute one and the same instrument.
21. PRIOR AGREEMENTS SUPERSEDED. Any prior agreement between the parties
relating to the employment by the Employer of the Employee, whether written or
oral, is hereby replaced and superseded by this Agreement and shall be of no
further force or effect after the date hereof.
22. ATTORNEY'S FEES. In the event either of the parties hereto shall
institute any action or proceeding against the other party relating to this
Agreement, the unsuccessful party in such action or proceeding shall reimburse
the successful party for its reasonable disbursements
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incurred in connection therewith, and for its reasonable attorneys fees incurred
in connection therewith.
23. WAIVER; CONSENTS. No consent or waiver, express or implied, by
either party hereto to or of any breach or default by the other party in the
performance by the other of its obligation hereunder shall be valid unless in
writing, and no such consent or waiver shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligation of such party hereunder.
Failure on the part of either party to complain of any act or failure to act of
the other party or to declare the other party in default, irrespective of how
long such failure continues, shall not constitute a waiver by such party of its
rights hereunder. The granting of any consent or approval in any other instance
by or on behalf of either party shall not be construed to waive or limit the
need for such consent in any other or subsequent instance.
24. NOTICES. All notices, requests, and communications required or
permitted hereunder shall be in writing and shall be sufficiently given and
deemed to have been received upon personal delivery or, if mailed, upon the
first to occur of actual receipt and seventy-two (72) hours after being placed
in the United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the above parties as follows:
Employer Saratoga Resources, Inc.
(Address as of the closing of
the Contemplated Transaction)
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Employee: Xxxxxx X. Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
-19-
Employer: /s/ Xxxx Xxxxxxxxx
President
SARATOGA RESOURCES, INC.
ATTEST: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx 8-9-99
----------------------- -----------------------------------------
Xxxxxx X. Xxxxxxxx, Employee
-20-
