THIS EMPLOYMENT AGREEMENT
(hereinafter called this “Agreement”) is entered into effective as of
October 5, 1998 (the “Effective Date”), by and between MARINER ENERGY,
INC. (hereinafter called “Company”) and C. Xxx Xxxxxxx (hereinafter
called “Employee”).
WHEREAS, Company desires to employ Employee upon the terms and conditions set forth
herein; and
WHEREAS, Employee desires to be employed by Company upon the terms and conditions
set forth herein;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment.
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Company hereby employs
Employee as an employee of Company to perform such duties and responsibilities
and act in such capacity as may from time to time be determined by Company. The
place of employment shall be at such place or places as Company may designate.
If Company elects to utilize Employee’s services outside the metropolitan
area of the City of Houston, Texas, Employee’s relocation expenses and
allowances will be paid in accordance with Company’s relocation policy.
Employee hereby accepts such employment, and agrees to serve Company faithfully,
diligently and in a good and workmanlike manner.
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2. Term.
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The term of employment
shall be for a term of two (2) years beginning on the Effective Date, subject,
however, to the provisions of paragraph 3.
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3. Extension and Termination.
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3.1 |
If either Employee or Company elects to terminate this Agreement at the end of
the term stated in paragraph 2, or at the end of any extended term hereof as
hereinafter provided, notice of the election to terminate shall be given to the
other party no later than three (3) months before the end of this Agreement. If
no notice is given by either party, the term, or extended term, of this
Agreement shall be deemed to have been extended for an additional three (3)
months.
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3.2 |
In the event Company elects to terminate this Agreement as provided in paragraph 3.1 above:
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3.2.1 |
Company shall pay to Employee his salary and other benefits provided elsewhere
in this Agreement for Employee’s services rendered to Company hereunder
through the end of such term or extended term.
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3.2.2 |
Company shall pay to Employee, on or before the last day of his employment
hereunder, a lump sum cash payment equal to three (3) months’ salary at
Employee’s monthly rate for the month immediately preceding the month in
which Company elects to terminate this Agreement.
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3.2.3 |
Company shall pay to Employee, on or before the last day of his employment
hereunder, a lump sum cash payment for all (a) vacation time carried forward
from a previous year in accordance with paragraph 8, and (b) all earned and
unused vacation time for the then current year. Earned vacation time shall, for
the purpose of this paragraph, be calculated by dividing the number of days in
the calendar year which have transpired by 365, and then multiplying the result
by the number of vacation days to which Employee is entitled for that year
pursuant to paragraph 8. |
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3.3 |
In the event Employee elects to terminate this Agreement as provided in
paragraph 3.1 above: |
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3.3.1 |
Employee agrees to serve to the end of the term, or extended term hereof, unless
waived by Company.
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3.3.2 |
The provisions of paragraphs 3.2.1 and 3.2.3 shall be applicable, but Employee
shall not be entitled to the payment provided for in paragraph 3.2.2. |
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3.4 |
Company may at its option consent to a request by Employee to terminate this
Agreement at a time other than that stated in paragraph 2, as extended, in which
case the date requested by Employee and agreed to by Company will be the end of
the term of this Agreement and the provisions of paragraph 3.3 shall be
applicable.
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3.5 |
Company may terminate this Agreement for “Cause” (as hereinafter
defined in this paragraph 3.5) upon written notice of such termination to
Employee by Company. Any termination of this Agreement by Company for Cause
shall be effective thirty (30) days after written notice of termination for
Cause is given by Company to Employee. If Company terminates this Agreement for
Cause, Company shall have no liability or obligation to Employee
thereafter
under this Agreement except for the payment of his salary and other benefits
through the month of discharge, prorated in the case of salary for the month of
discharge on a daily basis to the date of termination. As used in this
Agreement, the term “Cause” means (a) Employee is found guilty of,
admits in writing facts amounting to, or is held civilly liable for fraud,
embezzlement or dishonesty, (b) Employee is convicted of a felony involving a
crime of moral turpitude or any other felony if the Board of Directors of the
Company in good faith determines that the continued employment of the Employee
would be materially detrimental to the Company (in any case which felony through
lapse of time or otherwise is not subject to appeal), (c) Employee knowingly
discloses trade secrets or confidential Company matters to unauthorized persons,
(d) Employee willfully breaches or habitually neglects any duties he is required
to perform under the terms of this Agreement and any such breach or neglect is
not cured within thirty (30) days after Company has provided Employee with
written notice of such breach or neglect, (e) Employee materially breaches any
of the other material terms of this Agreement and any such breach is not cured
within thirty (30) days after the Company has provided Employee with written
notice of such breach, and (f) the occurrence of an action or finding described
in paragraph 15, except as otherwise provided in paragraph 15. The waiver by
Company of a breach of any provision of this Agreement by Employee shall not
operate or be construed as a waiver of any subsequent breach by Employee.
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3.6 |
In the event Company terminates this Agreement or discharges Employee other than
as provided in paragraphs 3.1, 3.4 or 3.5 above, Employee shall be entitled to
receive on the date of such termination or discharge: |
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3.6.1 |
A lump sum cash payment equal to Employee’s salary, at Employee’s
monthly rate for the month immediately preceding the month in which such
termination or discharge occurs, for the unexpired portion of the term or
extended term hereof then in effect.
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3.6.2 |
The payments and other benefits provided for in paragraphs 3.2.2 and 3.2.3
hereof. |
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3.7 |
In the event Employee terminates this Agreement for “Good Reason” (as
defined in paragraph 3.9), and prior to such termination Employee has not
terminated this Agreement under paragraph 3.1 hereof, Employee shall be entitled
to receive from Company on the date of such termination: |
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3.7.1 |
A lump sum cash payment equal to Employee’s salary, at Employee’s
monthly rate in effect at the effective time of such termination (but prior to
giving effect to any reduction therein which precipitated such
termination), for the unexpired portion of the term or extended term
hereof then in effect.
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3.7.2 |
A lump sum cash payment equal to three (3) months’ salary, at
Employee’s rate in effect at the time of such termination (but prior to
giving effect to any reduction therein which precipitated such termination).
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3.7.3 |
The payments and other benefits provided for in paragraph 3.2.3. |
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3.8 |
Any termination of this Agreement by Employee for Good Reason shall be effective
thirty (30) days after written notice of termination for Good Reason is given by
Employee to Company
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3.9 |
As used in this Agreement, the term “Good Reason” means any one or
more of the following events has occurred: |
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3.9.1 |
Any (a) reduction in Employee’s monthly salary as established in paragraph
5 (including subsequent increases), or (b) reduction in, or failure to allow or
continue Employee’s participation in, any employee benefit plan or program
(except when such benefit plan or program is replaced with another benefit plan,
program or arrangement that provides Employee, in the aggregate, with reasonably
comparable benefits) in which Employee is participating or is eligible to
participate prior to such reduction or failure (other than as a result of the
expiration of such plan or program), and any such reduction, discontinuance or
failure is not cured within thirty (30) days after Employee has provided Company
with written notice of such reduction or failure; or
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3.9.2 |
A breach of any material provision of this Agreement by Company (other than any
breach described in paragraph 3.9.1) which is not cured within thirty (30) days
after Employee has provided Company with written notice of such breach. |
4. Confidential Information.
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4.1 |
Employee agrees that he will, during the term of this Agreement, and for a
period of four (4) years from the date of termination of his employment
hereunder, keep secret and confidential and not disclose to any party not a
party to this Agreement, land or lease data, geological or geophysical data,
well data or any other information which he may receive as a result of the
performance of his duties hereunder, except when disclosure is necessary for the
performance of his duties to Company hereunder. This paragraph shall
not apply to information that is in the public domain through no action of
Employee.
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4.2 |
Upon termination of this employment hereunder, Employee shall promptly deliver
to Company all written information and documents (whether confidential or not),
and all copies thereof, relating to Company’s business and activities and
which are in the possession of or under the control of Employee. |
5. Salary.
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As compensation for his
services rendered to Company hereunder, Company shall pay to Employee a salary
at the rate of $11,250.00 per month. Employee’s salary may be reviewed at
such times as may be determined by Company, and Company may at its discretion
increase this salary. Employee’s salary shall be paid in two equal monthly
installments, payable on the fifteenth and last days of each month (or on the
first business day of Company thereafter if any such payment date is not a
business day of Company), subject to any and all necessary withholdings and
deductions.
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6. Automobile Allowance.
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Company agrees to pay an
automobile allowance of $250.00 dollars per month to Employee. In addition to
such monthly allowance, Company shall pay, in accordance with Company policy,
for all gasoline, insurance and maintenance required for use of the automobile. |
7. Business Expenses.
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Employee is authorized to
incur reasonable business expenses in accordance with Company’s policies as
may be established from time to time for promoting the business of Company,
including expenditures for entertainment and travel. Company shall reimburse
Employee from time to time for all such business expenses in accordance with
those policies adopted by Company which include, but are not limited to, the
requirement that Employee timely present to Company: |
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7.1 |
The amount of the expenditure;
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7.2 |
The time, place and description of the expense;
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7.3 |
The business reason for the expenditure and business benefit derived or
expected to be derived therefrom; and
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7.4 |
The name and occupation of the person or persons entertained to establish the
business relationship with Company. |
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With respect to any
reimbursable business expense contemplated above exceeding twenty-five dollars
($25.00), Employee will furnish documentary evidence of such expense to Company. |
8. Vacation.
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Employee shall be entitled
to an annual vacation leave of twenty (20) days per calendar year at full pay.
The timing and use of such vacation days shall be requested by Employee and
approved by Company in accordance with its policy. Up to five (5) days of
vacation leave may be carried over from one calendar year to the next calendar
year. Employee shall not be entitled to receive payment in lieu of unused
vacation time except as otherwise provided herein. With prior approval, vacation
may be deferred if business matters keep Employee from taking his normal
vacation. |
9. Insurance.
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Employee shall be eligible
for participation in such insurance programs as Company shall institute from
time to time covering medical and dental expenses and such life and accidental
death and dismemberment insurance programs as Company shall institute from time
to time. Payment of premiums for such coverages shall be in accordance with
Company policy covering all employees as may be established from time to time by
Company. Employee shall also be eligible for participation in such retirement,
pension, deferred compensation and other benefit programs the Company shall
initiate from time to time. |
10. Outside Activities.
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During the term or extended
term of this Agreement, Employee shall devote all of his working time, energy
and talents to the due discharge and performance of his duties hereunder, at the
direction and subject to the control of Company, and shall perform such services
and duties as shall reasonably be required from him from time to time by
Company. Employee agrees that he will not knowingly become involved in a
conflict of interest with Company or its subsidiaries, or upon discovery
thereof, allow such a conflict to continue. Moreover, Employee agrees to provide
Company a statement of all other directorships Employee holds, with a brief
description of the business activities of each organization. This statement
shall be provided on or before December 31 of each year. If, in the opinion of
Company, a conflict of interest exists between Company (and its affiliates) and
the organization in which the Employee holds a directorship, Company can require
Employee to resign the outside directorship. |
11. Right to Invest.
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Nothing in this Agreement
is intended or shall be construed to limit Employee’s right (i) to engage
in passive personal investments, including, but not limited to, holding as an
investment not more than five percent (5%) of any class of the issued and
outstanding and publicly traded (on a recognized national or regional securities
exchange or in the over-the-counter market) capital stock or other securities of
any corporation or other entity that conducts activities that compete with the
business of Company or any affiliate of Company; or (ii) to invest, individually
or with others, in oil and gas prospects, subject, however, in the case of oil
and gas prospects to the following conditions: |
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11.1 |
Company must have first had the right and opportunity to purchase all of the
interest in any prospect made available to Employee, even if this would preclude
Employee’s participation.
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11.2 |
Company must have made known its election either to participate in less than the
full interest made available to Employee and have no desire to acquire an
additional interest, or declined to participate at all in the prospect. If
Company elects to participate in less than the full interest made available to
Employee, Employee may invest in the portion of such interest not acquired by
Company.
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11.3 |
Employee must purchase his interest in the oil and gas prospect on terms which
are no more favorable than those made available to Company. |
12. Disability During Employment.
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If Employee shall become
unable to perform his duties by reason of disability, he shall be entitled to
receive, in addition to any insurance benefits he may receive, all of his salary
for the first one (1) month of his disability, and one-half (½) of his
salary for the next three (3) months of disability. Periods of disability shall
not be cumulative so long as they are separated by at least ninety (90) days of
continuous service.
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The term
“disability” shall mean disability which, in the opinion of a doctor
satisfactory to Company, renders Employee unable to perform his duties hereunder
as evidenced by such doctor’s certificate. The date disability commences
shall be the date Employee first absents himself from work during a continuous
period of disability. |
13. Merger or Acquisition.
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In the event Company should
be acquired by or merged into another company, by signature of Company’s
authorized representatives, Company hereby agrees that this Employment Agreement
shall be binding upon Company, its successors and assigns, and shall be
disclosed to any party considering merger with, or acquisition of, Company. |
14. Arbitration.
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14.1 |
If a dispute arises out of or related to this Agreement and the dispute cannot
be settled through direct discussions, Company and Employee agree that they
shall first endeavor to settle the dispute in an amicable fashion. If such
efforts fail to resolve the dispute, the dispute shall, except as otherwise
provided in paragraph 18, be resolved as follows: |
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14.1.1 |
Except as provided in paragraph 14.1.2 below, any and all claims, demands, cause of
action, disputes, controversies, and other matters in question arising out of or
relating to this Agreement, any provision hereof, the alleged breach thereof, or
in any way relating to the subject matter of this Agreement, involving Company,
Employee, and/or their respective representatives, even though some or all of
such claims allegedly are extra contractual in nature, whether such claims sound
in contract, tort, or otherwise, at law or in equity, under state or federal
law, whether provided by statute or the common law, for damages or any other
relief, shall be resolved by binding arbitration pursuant to the Federal
Arbitration Act in accordance with the Commercial Arbitration Rules then in
effect with the American Arbitration Association (the “AAA”). The
arbitration proceeding shall be conducted in Houston, Texas. The arbitration may
be initiated by either party by providing to the other a written notice of
arbitration specifying the claims, and the parties shall thereafter endeavor to
agree on an arbitrator. If within thirty (30) days of the notice of initiation
of the arbitration procedure, the parties are unable to agree on an arbitrator,
the party requesting arbitration shall file a request with the AAA that the
Houston, Texas office of the AAA provide a list of potential arbitrators to both
parties. The parties shall thereafter have sixty (60) days to select an
arbitrator from such list, with such selection to be by mutual agreement. If the
parties fail to select an arbitrator within such time by mutual agreement, then
either party may request that the Chief Judge of the U.S. District Court for the
Southern District of Texas appoint an arbitrator, and any such appointment shall
be binding. The arbitrator, utilizing the Commercial Arbitration Rules of the
American Arbitration Association,
shall within 120 days of his or her selection, resolve all disputes between the
parties. There shall be no transcript of the hearings before the arbitrator. The
arbitrator’s decision shall be in writing, but shall be as brief as
possible. The arbitrator shall not assign the reasons for his or her decision.
The arbitrator’s decision shall be final and non-appealable to the maximum
extent permitted by law. Judgment upon any award rendered in any such
arbitration proceeding may be entered by any federal or state court having
jurisdiction. This agreement to arbitrate shall be enforceable in either federal
or state court. The enforcement of this agreement to arbitrate and all
procedural aspects of this agreement to arbitrate, including but not limited to,
the construction and interpretation of this agreement to arbitrate, the issues
subject to arbitration (i.e., arbitrability), the scope of the arbitrable
issues, allegations of waiver, delay or defenses to arbitrability, and the rules
governing the conduct of the arbitration, shall be governed by and construed
pursuant to the Federal Arbitration Act and shall be decided by the arbitrator.
In deciding the substance of any such claims, the arbitrator shall apply the
substantive laws of the State of Texas (excluding Texas choice-of-law principles
that might call for the application of some other State’s law); provided,
however, it is expressly agreed that the arbitrator shall have no authority to
award treble, exemplary, or punitive damages under any circumstances regardless
of whether such damages may be available under Texas law, the parties hereby
waiving their right, if any, to recover treble, exemplary, or punitive damages
in connection with any such claims.
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14.1.2 |
the agreement to arbitrate contained in paragraph 14.1.1 above, in the event
that either party wishes to seek a temporary restraining order, a preliminary or
temporary injunction, or other injunctive relief in connection with any or all
such claims, demands, cause of action, disputes, controversies, and other
matters in question arising out of or relating to this Agreement, any provision
hereof, the alleged breach thereof, or in any way relating to the subject matter
of this Agreement, involving Company, Employee, and/or their respective
representatives, including disputes arising out of a breach or alleged breach of
paragraph 4, even though some or all of such claims allegedly are
extra-contractual in nature, whether such claims sound in contract, tort, or
otherwise, at law or in equity, under state or federal law, whether provided by
statute or the common law, for damages or any other relief, each party shall
have the right to pursue such injunctive relief in court, rather than by
arbitration. The parties agree that such action for a temporary restraining
order, a preliminary or
temporary injunction, or other injunctive relief will be brought in the State or
federal courts residing in Houston, Xxxxxx County, Texas. |
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14.2 |
The Company shall pay all costs and expenses of Company and Employee (including,
but not limited to, attorneys’ fees, the fees of the arbitrator and the AAA
and any other related costs) for any arbitration proceeding or legal action;
provided, however, that if in any such arbitration proceeding or legal action,
the arbitrator or court, respectively, determines that Employee has prosecuted
or defended any issue in such proceeding or action in bad faith, the arbitrator
or court, respectively, may allocate the portion of such costs and expenses
relating to such issue between the parties in any other manner deemed fair,
equitable and reasonable by the arbitrator or court, respectively. |
15. Foreign Corrupt Practices Act.
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Employee shall at all times
comply with the United States Foreign Corrupt Practices Act, generally codified
in 15 USC 78 (FCPA), as the FCPA may hereafter be amended, and/or its successor
statutes. If Employee pleads guilty to or nolo contendere or admits civil or
criminal liability under the FCPA, or if a court finds that Employee committed
an action resulting in any Company entity having civil or criminal liability or
responsibility under the FCPA with knowledge of the activities giving rise to
such liability or knowledge of facts from which Employee should have reasonably
inferred the activities giving rise to liability had occurred or were likely to
occur, such action or finding shall constitute Cause for termination by Company
under paragraph 3.3 of this Agreement unless Company’s Board of Directors
determines that the actions found to be in violation of the FCPA were taken in
good faith and in compliance with all applicable policies of Company. |
16. Survival.
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The provisions of
paragraphs 4 and 20 shall survive any termination of the employment relationship
and/or of this Agreement for the periods stated therein. The provisions of
paragraph 14 relating to arbitration shall survive any termination of the
employment relationship between Employee and Company and the termination of this
Agreement. Amounts, compensation, rights and benefits which Employee is entitled
to receive or have accrued to Employee under this Agreement or under any plan,
program, arrangement, agreement or policy of or with Company or any of its
affiliates before, at or subsequent to the termination of the employment
relationship between Employee and Company or the termination of this Agreement
shall not be superseded and shall survive any such termination. |
17. Certain Additional Payments by Company.
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17.1 |
Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by Company or any of its
affiliates to or for the benefit of Employee, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (any such payments or distributions being individually referred to
herein as a “Payment,” and any two or more of such payments or
distributions being referred to herein as “Payments”), would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”) (such excise tax, together with
any interest thereon, any penalties, additions to tax, or additional amounts
with respect to such excise tax, and any interest in respect of such penalties,
additions to tax or additional amounts, being collectively referred herein to as
the “Excise Tax”), then Employee shall be entitled to receive an
additional payment or payments (individually referred to herein as a
“Gross-Up Payment” and any two or more of such additional payments
being referred to herein as “Gross-Up Payments”) in an amount such
that after payment by Employee of all taxes (as defined in paragraph 17.11)
imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
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17.2 |
Subject to the provisions of paragraph 17.3 through 17.11, any determination
(individually, a “Determination”) required to be made under this
paragraph 17, including whether a Gross-Up Payment is required and the amount of
such Gross-Up Payment, shall initially be made, at Company’s expense, by
nationally recognized tax counsel mutually acceptable to Company and Employee
(“Tax Counsel”). Tax Counsel shall provide detailed supporting legal
authorities, calculations, and documentation both to Company and Employee within
15 business days of the termination of Employee’s employment, if
applicable, or such other time or times as is reasonably requested by Company or
Employee. If Tax Counsel makes the initial Determination that no Excise Tax is
payable by Employee with respect to a Payment or Payments, it shall furnish
Employee with an opinion reasonably acceptable to Employee that no Excise Tax
will be imposed with respect to any such Payment or Payments. Employee shall
have the right to dispute any Determination (a “Dispute”) within 15
business days after delivery of Tax Counsel’s opinion with respect to such
Determination. The Gross-Up Payment, if any, as determined pursuant to such
Determination shall be paid by Company to Employee within five business days of
Employee’s receipt of such Determination. The existence of a Dispute shall
not in any way affect Employee’s right to receive the Gross-Up Payment in
accordance with such Determination. If there is no Dispute, such Determination
shall be binding, final and conclusive upon Company and Employee, subject in all
respects, however,
to the provisions of paragraph 17.3 through 17.11 below. As a result of the
uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that Gross-Up Payments (or portions thereof) which will not have been
made by Company should have been made (“Underpayment”), and if upon
any reasonable written request from Employee or Company to Tax Counsel, or upon
Tax Counsel’s own initiative, Tax Counsel, at Company’s expense,
thereafter determines that Employee is required to make a payment of any Excise
Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at
Company’s expense, determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by Company to
Employee.
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17.3 |
Company shall defend, hold harmless, and indemnify Employee on a fully
grossed-up after tax basis from and against any and all claims, losses,
liabilities, obligations, damages, impositions, assessments, demands,
judgements, settlements, costs and expenses (including reasonable
attorneys’, accountants’, and experts’ fees and expenses) with
respect to any tax liability of Employee resulting from any Final Determination
(as defined in paragraph 17.10) that any Payment is subject to the Excise Tax.
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17.4 |
If a party hereto receives any written or oral communication with respect to any
question, adjustment, assessment or pending or threatened audit, examination,
investigation or administrative, court or other proceeding which, if pursued
successfully, could result in or give rise to a claim by Employee against
Company under this paragraph 17 (“Claim”), including, but not
limited to, a claim for indemnification of Employee by Company under paragraph
17.3, then such party shall promptly notify the other party hereto in writing of
such Claim (“Tax Claim Notice”).
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17.5 |
If a Claim is asserted against Employee (“Employee Claim”), Employee
shall take or cause to be taken such action in connection with contesting such
Employee Claim as Company shall reasonably request in writing from time to time,
including the retention of counsel and experts as are reasonably designated by
Company (it being understood and agreed by the parties hereto that the terms of
any such retention shall expressly provide that Company shall be solely
responsible for the payment of any and all fees and disbursements of such
counsel and any experts) and the execution of powers of attorney,
provided that: |
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17.5.1 |
within 30 calendar days after Company receives or delivers, as the case may be, the Tax
Claim Notice relating to such Employee Claim (or such earlier date that any
payment of the taxes claimed is due from Employee, but in no event sooner than
five calendar days after Company receives or delivers such Tax Claim Notice),
Company shall have notified Employee in writing (“Election Notice”) that Company
does not dispute its obligations (including, but not limited to, its indemnity
obligations) under this Agreement and that Company elects to contest, and to
control the defense or prosecution of, such Employee Claim at Company’s
sole risk and sole cost and expense; and
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17.5.2 |
Company shall have advanced to Employee on an interest-free basis, the total amount of
the tax claimed in order for Employee, at Company’s request, to pay or
cause to be paid the tax claimed, file a claim for refund of such tax and,
subject to the provisions of the last sentence of paragraph 17.7, xxx for a
refund of such tax if such claim for refund is disallowed by the appropriate
taxing authority (it being understood and agreed by the parties hereto that
Company shall only be entitled to xxx for a refund and Company shall not be
entitled to initiate any proceeding in, for example, United States Tax Court)
and shall indemnify and hold Employee harmless, on a fully grossed-up after tax
basis, from any tax imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and
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17.5.3 |
Company shall reimburse Employee for any and all costs and expenses resulting from any
such request by Company and shall indemnify and hold Employee harmless, on fully
grossed-up after-tax basis, from any tax imposed as a result of such
reimbursement. |
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17.6 |
Subject to the provisions of paragraph 17.5 hereof, Company shall have the right
to defend or prosecute, at the sole cost, expense and risk of Company, such
Employee Claim by all appropriate proceedings, which proceedings shall be
defended or prosecuted diligently by Company to a Final Determination;
provided, however, that (i) Company shall not, without
Employee’s prior written consent, enter into any compromise or settlement
of such Employee Claim that would adversely affect Employee, (ii) any request
from Company to Employee regarding any extension of the statute of limitations
relating to assessment, payment, or collection of taxes for the taxable year of
Employee with respect to which the contested issues involved in, and amount of,
the Employee Claim relate is limited solely to such contested issues and amount,
and (iii) Company’s control of any contest or proceeding shall be limited
to issues with respect to the Employee Claim and Employee shall be entitled to
settle or contest, in his sole and absolute discretion, any other issue raised
by the Internal Revenue Service or any other taxing authority. So long as
Company is diligently defending or prosecuting such Employee Claim, Employee
shall provide or cause to be provided to Company any information reasonably
requested by Company that relates to such Employee Claim, and shall otherwise
cooperate with Company
and its representatives in good faith in order to contest effectively such
Employee Claim. Company shall keep Employee informed of all developments and
events relating to any such Employee Claim (including, without limitation,
providing to Employee copies of all written materials pertaining to any such
Employee Claim), and Employee or his authorized representatives shall be
entitled, at Employee’s expense, to participate in all conferences,
meetings and proceedings relating to any such Employee Claim.
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17.7 |
If, after actual receipt by Employee of an amount of a tax claimed (pursuant to
an Employee Claim) that has been advanced by Company pursuant to paragraph
17.5.2 hereof, the extent of the liability of Company hereunder with respect to
such tax claimed has been established by a Final Determination, Employee shall
promptly pay or cause to be paid to Company any refund actually received by, or
actually credited to, Employee with respect to such tax (together with any
interest paid or credited thereon by the taxing authority and any recovery of
legal fees from such taxing authority related thereto), except to the extent
that any amounts are then due and payable by Company to Employee, whether under
the provisions of this Agreement or otherwise. If, after the receipt by Employee
of an amount advanced by Company pursuant to paragraph 17.5.2, a determination
is made by the Internal Revenue Service or other appropriate taxing authority
that Employee shall not be entitled to any refund with respect to such tax
claimed and Company does not notify Employee in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of any Gross-Up Payments and other payments required to be paid
hereunder.
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17.8 |
With respect to any Employee Claim, if Company fails to deliver an Election
Notice to Employee within the period provided in paragraph 17.5.1 hereof or,
after delivery of such Election Notice, Company fails to comply with the
provisions of paragraph 17.5.2, 17.5.3 or 17.6 hereof, then Employee shall at
any time thereafter have the right (but not the obligation), at his election and
in his sole and absolute discretion, to defend or prosecute, at the sole cost,
expense and risk of Company, such Employee Claim. Employee shall have full
control of such defense or prosecution and such proceedings, including any
settlement or compromise thereof. If requested by Employee, Company shall
cooperate, and shall cause its affiliates to cooperate, in good faith with
Employee and his authorized representatives in order to contest effectively such
Employee Claim. Company may attend, but not participate in or control, any
defense, prosecution, settlement or compromise of any Employee Claim controlled
by Employee pursuant to this paragraph 17.8 and shall bear its own costs and
expenses with respect thereto. In the case of any Employee
Claim that is defended or prosecuted by Employee, Employee shall, from time to
time, be entitled to current payment, on a fully grossed-up after tax basis,
from Company with respect to costs and expenses incurred by Employee in
connection with such defense or prosecution.
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17.9 |
In the case of any Employee Claim that is defended or prosecuted to a Final
Determination pursuant to the terms of this paragraph 17.9, Company shall pay,
on a fully grossed-up after tax basis, to Employee in immediately available
funds the full amount of any taxes arising or resulting from or incurred in
connection with such Employee Claim that have not theretofore been paid by
Company to Employee, together with the costs and expenses, on a fully grossed-up
after tax basis, incurred in connection therewith that have not theretofore been
paid by Company to Employee, within ten calendar days after such Final
Determination. In the case of any Employee Claim not covered by the preceding
sentence, Company shall pay, on a fully grossed-up after tax basis, to Employee
in immediately available funds the full amount of any taxes arising or resulting
from or incurred in connection with such Employee Claim at least ten calendar
days before the date payment of such taxes is due from Employee, except where
payment of such taxes is sooner required under the provisions of this paragraph
17.9, in which case payment of such taxes (and payment, on a fully grossed-up
after tax basis, of any costs and expenses required to be paid under this
paragraph 17.9 shall be made within the time and in the manner otherwise
provided in this paragraph 17.9.
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17.10 |
For purposes of this Agreement, the term “Final Determination” shall
mean (A) a decision, judgment, decree or other order by a court or other
tribunal with appropriate jurisdiction, which has become final and
non-appealable; (B) a final and binding settlement or compromise with an
administrative agency with appropriate jurisdiction, including, but not limited
to, a closing agreement under Section 7121 of the Code; (C) any
disallowance of a claim for refund or credit in respect to an overpayment of tax
unless a suit is filed on a timely basis; or (D) any final disposition by
reason of the expiration of all applicable statutes of limitations.
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17.11 |
For purposes of this Agreement, the terms “tax” and “taxes”
mean any and all taxes of any kind whatsoever (including, but not limited to,
any and all Excise Taxes, income taxes, and employment taxes), together with any
interest thereon, any penalties, additions to tax, or additional amounts with
respect to such taxes and any interest in respect of such penalties, additions
to tax, or additional amounts. |
18. No Obligation to Mitigate.
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Employee shall not be
required to mitigate the amount of any payment or other benefit required to be
paid to Employee pursuant to this Agreement, whether by seeking other employment
or otherwise; nor shall the amount of any such payment or other benefit be
reduced on account of any compensation earned by Employee as a result of
employment by another person or entity.
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19. Annual Bonus; Stock Options.
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19.1 |
In addition to the salary provided for in paragraph 5.1 hereof (the
“Base Salary”), Employee shall be eligible to receive, for each
calendar year or portion thereof occurring during the term of this Agreement, an
annual cash bonus based on performance (the “Annual Bonus”) in an
amount up to twenty-five percent (25%) of the Base Salary for such calendar year
or portion thereof (or such greater percentage of such Base Salary as the Board
of Directors or the Committee may, in its discretion, determine) upon approval
of such Annual Bonus by the Board of Directors of Company (the “Board of
Directors”) or a committee of the Board of Directors designated by the
Board of Directors (the “Committee”). The amount of any such Annual
Bonus shall be determined by the Board of Directors or the Committee, as the
case may be, in accordance with the cash incentive compensation program of
Company in effect with respect to such determination. The Annual Bonus shall be
paid to Employee, less such amounts as shall be required to be deducted or
withheld therefrom by applicable law and regulations, at such time or times as
is in accordance with the then prevailing policy of Company relating to cash
incentive compensation payments.
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19.2 |
As of the Effective Date, Company shall, or shall cause Mariner Holdings Inc.
to, grant to Employee stock options for 2,469 shares of the common stock of
Mariner Holdings, Inc. (“Parent Common Stock”) pursuant to the Mariner
Holdings Inc. 1996 Stock Option Plan. To the fullest extent possible, the
options granted to Employee shall be incentive stock options, and otherwise
shall be non-qualified stock options. The terms, conditions and restrictions
with regard to such stock options shall be evidenced by an Incentive Stock
Option Agreement (as to qualified stock options) and a Nonstatutory Stock Option
Agreement (as to the nonqualified stock options), substantially in the forms
attached hereto as Exhibit A and Exhibit B, respectively,
which are incorporated herein by reference and their terms, conditions and
restrictions shall be considered a part of this Agreement. |
20. Noncompetition Obligations.
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20.1 |
As part of the consideration for the compensation and benefits to be paid to
Employee hereunder, and as an additional incentive for Company to enter into
this Agreement, Company and Employee agree to the non-competition obligations
hereunder. Employee will not, directly or indirectly for Employee or for others: |
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20.1.1 |
in any geographic area or market where Company or any of its subsidiaries are
conducting any business as of the date of termination of the employment
relationship or have during the previous twelve months conducted such business,
engage in any business competitive with any such business; or
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20.1.2 |
in any geographic area or market where Employee knew Company contemplated entering
any business as of the date of termination of the employment relationship, but
only if Company had, as of such date, invested significant resources toward
entering into such business in such geographic area or market, engage in any
business competitive with any such business;
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20.1.3 |
render advice or services to, or otherwise assist, any other person, association, or
entity who is engaged, directly or indirectly, in any business competitive with
Company’s business within the parameters described in paragraphs 20.1.1 and
20.1.2 above with respect to such competitive business; or
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20.1.4 |
induce any employee of Company or any of its subsidiaries to terminate his or her
employment with Company or its subsidiaries, or hire or assist in the hiring of
any such employee by any person, association, or entity not affiliated with
Company. |
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These
non-competition obligations shall commence upon the date of execution of this
Agreement and extend until the earlier of (a) the expiration of the term of this
Agreement (or any extended term) or (b) six (6) months after termination of the
employment relationship; provided, however, that notwithstanding anything
contained in this paragraph 20 to the contrary, such obligations shall only
apply after the termination of employment if the termination of employment
results from termination for Cause by Company under paragraph 3.5 or voluntary
termination without Good Reason by Employee (it being understood and agreed that
termination of this Agreement by Employee under paragraph 3.1 shall not, for
purposes of this paragraph 20, constitute voluntary termination without Good
Reason by Employee).
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20.2 |
Employee understands that the foregoing restrictions may limit Employee’s
ability to engage in certain businesses anywhere in the world during the period
provided for above, but acknowledges that Employee will receive sufficiently
high remuneration and other benefits under this Agreement to justify such
restriction. Employee acknowledges that money damages would not be sufficient
remedy for any breach of this Article by Employee, and Company shall be entitled
to enforce the provisions of this Agreement and/or to specific performances and
injunctive relief as remedies for such breach or any threatened breach. Such
remedies shall not be deemed the exclusive remedies for a breach of this
Article, but shall be in addition to all remedies available at law or in equity
to Company, including, without limitation, the recovery of damages from Employee
and Employee’s agents involved in such breach and remedies available to
Company pursuant to other agreements with Employee.
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20.3 |
It is expressly understood and agreed that Company and Employee consider the
restrictions contained in this paragraph 20 to be reasonable and necessary.
Nevertheless, if any of the aforesaid restrictions are found by a court having
jurisdiction to be unreasonable, or overly broad as to geographic area or time,
or otherwise unenforceable, the parties intend for the restrictions therein set
forth to be modified by such courts so as to be reasonable and enforceable and,
as so modified by the court, to be fully enforced. |
21. Miscellaneous.
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21.1 |
This Agreement shall not be modified or amended except in writing and signed by
Company and Employee. This Agreement shall be binding upon the heirs,
administrators, or executors and the successors and assigns of each party to
this Agreement.
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21.2 |
The rights and benefits of Employee under the Agreement are personal to him and
shall not be assigned or transferred without the prior written consent of
Company. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
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21.3 |
All titles or headings of sections or paragraphs or other divisions of this
Agreement are only for the convenience of the parties and shall not be construed
to have any effect or meaning with respect to the other content of such sections
or paragraphs or other divisions, such content being controlling as to the
agreement between the parties hereto.
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21.4 |
This Agreement is made and will be performed under, and shall be governed by and
construed in accordance with, the law of the State of Texas.
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21.5 |
EMPLOYEE AFFIRMS AND ATTESTS BY HIS SIGNATURE TO THIS AGREEMENT THAT HE HAS READ
THIS AGREEMENT BEFORE SIGNING IT AND THAT HE FULLY UNDERSTANDS ITS PURPOSES,
TERMS AND PROVISIONS, WHICH HE HEREBY EXPRESSLY ACKNOWLEDGED TO BE REASONABLE IN
ALL RESPECTS. EMPLOYEE FURTHER ACKNOWLEDGES RECEIPT OF ONE COPY OF THIS
AGREEMENT.
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21.6 |
Notices contemplated under this Agreement shall be directed to the following
address:
If to Company:
Mariner Energy, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President and Chief Executive Officer
If to Employee:
C. Xxx Xxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Company
and Employee may change the above addresses for notice purposes by notifying the
other in writing.
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21.7 |
The Company may withhold from any amounts payable under this Agreement such
federal, state, or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation. |
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Executed as of the
Effective Date in duplicate originals at Houston, Texas. |
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| Acknowledged by: | | X. Xxxx Xxxxx
Vice President - Administration |
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MARINER ENERGY, INC. | | |
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By:
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Xxxxxx X. Xxxxxxxxx
President and
Chief Executive Officer
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| "COMPANY" | | |
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| C. Xxx Xxxxxxx | | |
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| "EMPLOYEE" | | |
