EMPLOYMENT AGREEMENT
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Exhibit
10.1
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THIS EMPLOYMENT AGREEMENT
(this “Agreement”) is entered into effective the 25th day
of March, 2010 (the “Effective Date”) by and between Xxxx X. Xxxxxx, a resident
of the State of Minnesota (“Employee”), and Northern Oil and Gas, Inc., a Nevada
corporation having its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxx (the “Company”).
WHEREAS, the Company is an oil
and gas exploration and production company headquartered in Wayzata, Minnesota,
focused on drilling exploratory and developmental xxxxx in the Rocky Mountain
regions of the United States;
WHEREAS, the Company and Employee
previously entered into that certain Employment Agreement effective November 1,
2007, that certain Amended and Restated Employment Agreement effective September
22, 2008, and that certain Second Amended and Restated Employment Agreement
effective January 30, 2009, and desire to enter into a new Employment Agreement
superseding all previous employment agreements and any amendments thereto;
and
WHEREAS, the Company desires to
continue to employ Employee, and Employee desires to accept such continued
employment, pursuant to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties agree as
follows:
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(i) A
lump sum payment equal to twice Employee’s then-applicable Annual Salary payable
to Employee under the terms of this Agreement in lieu of any and all other
benefits and compensation to which Employee otherwise would be entitled under
the terms of this Agreement; and
(ii) Pre-payment
of the remaining lease term of Employee’s Company vehicle and use of such
vehicle through the remaining lease term of such vehicle, along with a lump sum
payment to employee of the estimated insurance premiums for such vehicle through
the remaining lease term.
In
addition to the foregoing payments, any options or warrants (the “Securities”)
held in the name of Employee, or any portion thereof, shall accelerate and
become immediately exercisable upon any “change in control” of the Company (as
defined below).
Any of
the following shall constitute a “change in control” for the purposes
hereof:
(iii) The
consummation of a reorganization, merger, share exchange, consolidation or
similar transaction, or the sale or disposition of all or substantially all of
the assets of the Company, unless, in any case, the persons beneficially owning
the voting securities of the Company immediately before that transaction
beneficially own, directly or indirectly, immediately after the transaction, at
least seventy-five percent (75%) of the voting securities of the Company or any
other corporation or other entity resulting from or surviving the transaction in
substantially the same proportion as their respective ownership of the voting
securities of the Company immediately prior to the transaction;
(iv) Individuals
who constitute the incumbent Board of Directors cease for any reason to
constitute at least a majority of the Board of Directors; or
(v) The
Company’s shareholders approve a complete liquidation or dissolution of the
Company.
The
Company shall be obligated to make the payments to Employee required by this
Section 3 immediately upon any “change in control” that occurs during Employee’s
employment with the Company or within six (6) months following termination of
Employee’s employment with the Company. The Company’s obligations
under this Section 3 of this Agreement are absolute and unconditional, and not
subject to any set-off, counterclaim, recoupment, defense, or other right that
the Company or any affiliate of the Company may have against the
Employee. The parties agree that the provisions of this Section 3
shall survive any termination of this Agreement.
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(i) In
the event of a Change in Control not involving a transaction with any other
entity, immediately issue to Employee (or his designee) that number of shares of
Common Stock which represent thirty thousand (30,000) fully-paid and
non-assessable shares of Common Stock prior to the Change in
Control;
(ii) In
the event of a Change in Control involving solely the exchange or issuance of
shares of the Company’s Common Stock or shares of capital stock or ownership
interests of any other entity, immediately issue to Employee (or his designee)
that number of shares of the Company’s Common Stock or shares of capital stock
or ownership interests of any other entity which Employee would have been
entitled to receive in connection with the Change in Control had the Employee
owned an aggregate of thirty thousand (30,000) fully-paid and non-assessable
shares of Common Stock prior to the Change in Control;
(iii) In
the event of a Change in Control involving the exchange or issuance of a
combination of cash and shares of the Company’s Common Stock or shares of
capital stock or ownership interests of any other entity, immediately pay to
Employee and issue to Employee (or his designee) that amount of cash and that
number of shares of the Company’s Common Stock or shares of capital stock or
ownership interests of any other entity which Employee would have been entitled
to receive in connection with the Change in Control had the Employee owned an
aggregate of thirty thousand (30,000) fully-paid and non-assessable shares of
Common Stock prior to the Change in Control; or
(iv) In
the event of a Change in Control involving solely the payment of cash in
exchange for shares of the Company’s Common Stock, immediately pay to Employee
(or his designee) that amount of cash which Employee would have been entitled to
receive in connection with the Change in Control had the Employee owned an
aggregate of thirty thousand (30,000) fully-paid and non-assessable shares of
Common Stock prior to the Change in Control.
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(i) Employee
(or Employee’s estate) shall be paid (a) his Annual Salary through the end of
the month in which his death occurred and (b) any unpaid expense reimbursement
that might have accrued prior to Employee’s death; and
(ii) Any
Securities held in the name of Employee, or any portion thereof, may be
exercised to the extent Employee was entitled to do so at the time of the
Employee’s death, by his or her executor or administrator or other person
entitled by law to the Employee’s rights under the Securities, at any time
within six (6) months subsequent to the date of death, at which time the
Securities shall expire.
(i) Upon
the earlier to occur of the Employee’s death or six (6) months following the
date of termination of employment the Company shall pay Employee a single lump
sum payment equal to Employee’s then-applicable Annual Salary and shall
reimburse any unpaid expenses in lieu of any and all other benefits and
compensation to which Employee otherwise would be entitled under the terms of
this Agreement.
(ii) Any
Securities held in the name of Employee, or any portion thereof, may be
exercised to the extent Employee was entitled to do so at the time of
termination of Employee’s employment at any time within ninety (90) days
subsequent to the date of termination of Employee’s employment, at which time
the Securities shall expire.
Termination
of Employee “for cause” shall mean any of the following acts by
Employee:
(iii) an
intentional act of fraud, embezzlement, theft or any other material violation of
law;
(iv) intentional
damage to the Company’s assets;
(v) the
willful and continued failure to substantially perform required duties for the
Company (other than as a result of incapacity due to physical or mental
illness); or
(vi) willful
conduct that is demonstrably and materially injurious to the Company, monetarily
or otherwise.
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6.1 Employee
shall maintain the confidentiality of all trade secrets, (whether owned or
licensed by the Company) and related or other interpretative materials and
analyses of the Company’s projects, or knowledge of the existence of any
material, information, analyses, projects, proposed joint ventures, mergers,
acquisitions, divestitures and other such anticipated or contemplated business
ventures of the Company, and other confidential or proprietary information of
the Company (“Confidential Information and Materials”) obtained by Employee as
result of this Agreement during the term of the Agreement and for two (2) years
following termination of Employee’s employment with the Company.
6.2 In
the event that such Confidential Information and Materials are memorialized on
any computer hardware, software, CD-ROM, disk, tape, or other media, Company
shall have the right, subject to the rights of third parties under contract,
copyright, or other law, to view, use and copy for safekeeping or backup
purposes such Confidential Information and Materials. During the
period of confidentiality, Employee shall make no use of such Confidential
Information and Materials for his own financial or other benefit, and shall not
retain any originals or copies, or reveal or disclose any Confidential
Information and Materials to any third parties, except as otherwise expressly
agreed by the Company. Employee shall have no right to use the
Company’s corporate logos, trademarks, service marks, or other intellectual
property without prior written permission of the Company and subject to any
limitations or restrictions upon such use as the Company may
require.
6.3 Upon
expiration or termination of this Agreement, Employee shall turn over to a
designated representative of the Company all property in Employee’s possession
and custody and belonging to the Company. Employee shall not retain
any copies or reproductions of correspondence, memoranda, reports, notebooks,
drawings, photographs or other documents relating in any way to the affairs of
the Company and containing Confidential Information and Materials which came
into Employee’s possession at any time during the term of this
Agreement.
6.4 Employee
acknowledges that Company is a public company registered under the Exchange Act
and that this Agreement may be subject to the filing requirements of the
Exchange Act. Employee acknowledges and agrees that the applicable
xxxxxxx xxxxxxx rules and limitations on disclosure of non-public information
set forth in the Exchange Act and rules and regulations promulgated by the SEC
shall apply to this Agreement and Employee’s employment with the
Company. Employee (on behalf of himself as well as his executors,
heirs, administrators and assigns) absolutely and unconditionally agrees to
indemnify and hold harmless the Company and all of its past, present and future
affiliates, executors, heirs, administrators, shareholders, employees, officers,
directors, attorneys, accountants, agents, representatives, predecessors,
successors and assigns from any and all claims, debts, demands, accounts,
judgments, causes of action, equitable relief, damages, costs, charges,
complaints, obligations, controversies, actions, suits, proceedings, expenses,
responsibilities and liabilities of every kind and character whatsoever
(including, but not limited to, reasonable attorneys’ fees and costs) in the
event of Employee’s breach or alleged breach of any obligation under the
Exchange Act, any rules promulgated by the SEC and any other applicable Federal
or state laws, rules, regulations or orders.
6.5 The
parties agree that the provisions of this Section 6 shall survive any
termination of this Agreement.
As to
Employee, at the Employee’s home address on file with the Company.
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As to the
Company: Northern Oil
and Gas, Inc.
Attn: Chief Executive Officer
or President
000 Xxxxxxxx Xxxxxx –
Xxxxx 000
Xxxxxxx, Xxxxxxxxx
00000
Either
party may designate a different person to whom notices should be sent at any
time by notifying the other party in writing in accordance with this
Agreement.
16. Governing
Law. This Agreement
shall be governed by and construed under the internal laws of the State of
Minnesota, without regard to the principles of comity and/or the applicable
conflicts of laws of any state that would result in the application of any laws
other than the State of Minnesota.
17. Jurisdiction. This Agreement,
including the documents, instruments and agreements to be executed and/or
delivered by the parties pursuant hereto, shall be construed, governed by and
enforced in accordance with the internal laws of the State of Minnesota, without
giving effect to the principles of comity or conflicts of laws
thereof. Employee and the Company agree and consent that any legal
action, suit or proceeding seeking to enforce any provision of this Agreement
shall be instituted and adjudicated solely and exclusively in any court of
general jurisdiction in Minnesota, or in the United States District Court having
jurisdiction in Minnesota and Employee and the Company agree that venue will be
proper in such courts and waive any objection which they may have now or
hereafter to the venue of any such suit, action or proceeding in such courts,
and each hereby irrevocably consents and agrees to the jurisdiction of said
courts in any such suit, action or proceeding. Employee and the
Company further agree to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in said courts, and
also agree that service of process or notice upon them shall be deemed in every
respect effective service of process or notice upon them, in any suit, action,
proceeding, if given or made (i) according to applicable law, (ii) by
a person over the age of eighteen (18) who personally served such notice or
service of process on Employee or the Company, as the case may be,
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or
(iii) by certified mail, return receipt requested, mailed to employee or
the Company, as the case may be, at their respective addresses set forth in this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first set forth
above.
NORTHERN
OIL AND GAS, INC.
By /s/ Xxxx X.
Xxxxxxxxxx
By: Xxxx
X. Xxxxxxxxxx
Its: President
EMPLOYEE:
/s/ Xxxx X.
Xxxxxx
Xxxx X.
Xxxxxx
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