EXHIBIT 10.19
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of
the 1st day of July, 1997 (the "Effective Date") by and between ZYDECO ENERGY,
INC., a Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX, an
individual with an address of 00000 Xxxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxxx, Xxxxx
00000 (the "Employee").
WHEREAS, the Company has proposed to engage the Employee as its Vice
President of Innovation ("VP of Innovation");
WHEREAS, the Company wishes to employ the Employee and the Employee
desires to continue to work for the Company upon the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the Company and the Employee agree as follows:
1. Employment. The Company hereby agrees to employ the Employee and
the Employee hereby agrees to work for the Company upon the terms and conditions
set forth herein.
2. Term of Employment. Subject to Section 6 hereof, this Agreement
shall have a term of four (4) years (the "Initial Term") commencing on the
Effective Date. Thereafter this Agreement shall continue in effect on a year to
year basis unless terminated in accordance with Section 6 or by either party on
written notice to the other party given no less than sixty (60) days.
3. Scope of Duties; Representations and Warranties.
(a) The Employee shall be employed by the Company as its VP of
Innovation. At all times, the Employee shall serve under the direction of the
Vice Chairman of the Company, or if there is no Vice Chairman, the Chairman of
the Board, and shall perform such services as the Vice Chairman (or the Chairman
of the Board, as the case may be), in his sole discretion, shall deem
appropriate.
(b) So long as he is employed by the Company, the Employee shall
devote his skill, energy and best efforts to the faithful discharge of his
duties as an employee of the Company. The Employee agrees that in the provision
of all services to the Company, he will comply with and follow all generally
applicable or reasonable directives, policies, standards and regulations from
time to time established by the Board of Directors of the Company.
(c) The Employee represents and warrants that he is under no
contractual or other restrictions or obligations which will in any way limit his
activities on behalf of the Company.
4. Compensation.
(a) The Company shall pay the Employee a salary at a rate equal to
$150,000 per year (payable at such regular intervals as other employees of the
Company are compensated in accordance with the Company's employment practices).
(b) All payments of salary and other compensation to the Employee
shall be made after deduction of any taxes which are required to be withheld
with respect thereto under applicable federal and state laws.
5. Fringe Benefits; Expenses.
(a) The Company shall, without duplication, provide Employee with any
non-cash benefits provided by the Company to its other officers and key
employees as they may exist from time to time. Such benefits shall include
leave or vacation time (not less than two (2) weeks per year), medical and
dental insurance, life insurance and other health care benefits, retirement and
disability benefits as may hereafter be provided by the Company in accordance
with its policies.
(b) The Company will reimburse the Employee for all reasonable
business expenses incurred by the Employee in the scope of his employment.
6. Termination. The Employee's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
(a) Death. The Employee's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his
duties hereunder on a substantial basis for a period of five consecutive
months and within thirty (30) days after written notice of termination is
given shall not have returned to the performance of his duties hereunder on
a full-time basis, the Company may terminate the Employee's employment
hereunder for "Disability."
(c) Cause. The Company may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall
have "Cause" to terminate the Employee's employment hereunder upon the
Employee's:
(i) conviction of the commission of a felony; or
-2-
(ii) willful and continuing failure to substantially perform his
duties hereunder (other than such failure resulting from the
Employee's incapacity due to physical or mental illness or subsequent
to the issuance of a notice of termination by the Employee for Good
Reason) after demand for substantial performance is delivered by the
Company in writing that specifically identifies the manner in which
the Company believes the Employee has not substantially performed his
duties and the Employee does not remedy such failure within thirty
(30) days following receipt of such written notice;
(iii) commission of fraud by the Employee against the Company,
its affiliates or customers, including any misrepresentation on Employee's
resume or regarding the terms of separation from any prior employer; or
(iv) willful breach of any material provision of the
Confidentiality Agreement dated the date hereof between the Company
and Employee that is materially injurious to the Company or its
subsidiaries, whether monetarily or otherwise.
Cause shall not exist unless and until the Company has delivered to the
Employee a copy of a resolution duly adopted by a majority of the Board at
a meeting of the Board called and held for such purpose (after reasonable
notice to the Employee and an opportunity for the Employee, together with
his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the conduct set forth in this Section 6(c) occurred,
and specifying the particulars thereof in detail.
(d) Good Reason. The Employee may terminate his employment hereunder
for "Good Reason" within ten (10) days after the expiration of the thirty
(30) day period following written notice of such an occurrence, without the
written consent of the Company, of one of the following events that has not
been cured within thirty (30) days after written notice thereof has been
given by the Employee to the Company:
(i) the failure of a successor to the Company (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the Company's business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession, without regard to the 30 day
notice provision above, shall be a breach of this Agreement; or
(ii) a failure of the Company to comply with any other material
provision of this Agreement.
-3-
(e) Termination Without Cause. The Company may terminate the
Employee without Cause at any time, subject to the terms of Sections 7(b)
and 7(d) and any other applicable provisions of this Agreement.
7. Compensation Upon Termination or During Disability.
(a) Disability Period. During any period that the Employee fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), the Employee shall continue to receive his full
base salary and annual bonus, if any, until his employment is terminated
pursuant to Section 7(b), provided that payments so made to the Employee during
the first 180 days of the Disability Period shall be reduced by the sum of the
amounts, if any, payable to the Employee at or prior to the time of any such
payment under the disability insurance policy provided for herein, under any
disability benefit plans of the Company or under the Social Security disability
insurance program, and which amounts were not previously applied to reduce any
such payment.
(b) Death, Disability Termination by Company (without Cause) or By
Employee Pursuant to Section 6(d). If the Employee's employment is terminated
by his death or his Disability then the Company shall continue to pay to the
Employee (or his legal representatives or estate or as may be directed by the
legal representatives of his estate, as the case may be) his then current
salary, on the usual schedule for payment of the salary, for ninety (90) days
after such termination. If the Employee's employment is terminated by the
Company (without Cause) or by the Employee pursuant to Section 6(d), then the
Company shall continue to pay to the Employee (or his legal representatives or
estate or as may be directed by the legal representatives of his estate, as the
case may be) his then current salary, on the usual schedule for payment of the
salary, for the remainder of the Initial Term.
The Company shall also continue to provide Employee, for the
applicable period as indicated in the foregoing paragraph, the benefits then
available to Employee and described in Section 5(a) above (to the extent the
Company is legally able to provide such benefits). In the event that the
Employee's participation in any such benefit plan is barred and the Employee is
not otherwise entitled to be covered by a comparable benefit plan, the Company
shall arrange to provide the Employee and his dependents with benefits
substantially similar to those which the Employee and his dependents would
otherwise have been entitled to receive under such plans and programs from which
their continued participation is barred. The foregoing salary payments and
benefits shall terminate prior to the time provided if Employee accepts
employment, whether as an employee, a consultant or otherwise, during such
period.
The Company shall also pay Employee for any accrued and unpaid salary
payments, expense reimbursements, and bonuses resulting from the occurrence of
any performance milestones which have been achieved as of the date of
termination and are owing as of the date of such termination; all of such above
amounts shall be paid within thirty (30) days of such termination if not sooner.
-4-
With respect to a termination in accordance with Section 6 above (other
than Section 6(c)), Company and Employee agree that the receipt of all of the
salary payments and benefits under Sections 7(b) and 7(d) shall constitute and
act as liquidated damages and not as a penalty and as the exclusive remedy for
any such termination. Employee hereby waives all rights (i) under Federal,
state, local or common law relating to discrimination based upon age, sex, race
or disability, and (ii) to xxx the Company for any additional amounts other than
those identified above resulting from the termination of this Agreement.
(c) Cause or By Employee Other than Pursuant to Section 6(d). If the
Employee's employment shall be terminated by the Company for Cause or by the
Employee (other than pursuant to Section 6(d)) then:
(i) the Company shall pay the Employee within thirty (30) days if not
sooner his base salary (at the rate in effect at the time notice of
termination is given) through the date of termination;
(ii) except as specifically provided herein (including Section 7(d)
below), Employee shall receive no further base salary or annual bonus and
the Company shall have no additional obligation to the Employee under this
Agreement.
(d) Compensation Plans. Following any termination of Employee's
employment, the Company shall pay the Employee all unpaid amounts, if any, to
which the Employee is entitled as of the date of termination under any
compensation plan or program of the Company, at the time such payments are due.
8. No Mitigation. Nothing in Sections 6 and 7 of this Agreement
shall require Employee to, or impose a duty on Employee to, seek alternative
employment following a termination of his employment with the Company as a
condition to the Company's obligation to pay the salary continuation payments
and benefits provided in Sections 6 and 7 above.
9. Noncompetition. The Employee agrees that he will not for one
year after the termination of his employment with the Company, directly or
indirectly, solicit business, of the type in which the Company is then engaged,
from any person (whether an individual or a business organization) who was,
within two years prior to such termination, a customer (i.e., a party who paid
funds to the Company other than investors) of the Company, or to whom the
Employee was introduced during the course of his engagement. Employee
acknowledges that (i) he is an officer of the Company, (ii) he is involved in
the development of the Company's products and services, (iii) it is intended
that such products and services will be sold nationally and internationally,
(iv) a company producing products and services similar to those of the Company
regardless of its geographic location is likely to jeopardize the Company's
business and (v) the ability of the Company to attain its goals is likely to be
materially jeopardized and its value
-5-
reduced if Employee competes with the Company or assist other persons in
competing with the Company. Employee agrees that during the term of his
engagement with the Company and for a period of one year after termination of
his employment by the Company he will not, directly or indirectly (through one
or more intermediaries), whether individually, or as an officer, director,
employee or consultant, compete in whole or in part with, or assist any
corporation or business enterprise in competing in whole or in part with, the
business then engaged in by the Company, nor will Employee directly or
indirectly interfere with employees of the Company or suppliers, manufacturers,
distributors, wholesalers or other such companies with which the Company
transacts business for any purpose. Notwithstanding anything contained herein to
the contrary, this Section 9 shall not be applicable if Employee is terminated
without Cause or if Employee terminates this Agreement for Good Reason.
10. Other Obligations. Notwithstanding anything contained herein to
the contrary, Company and Employee agree that during the first six (6) months of
the Initial Term Employee may devote a portion of his time to fulfilling
Employee's existing obligations under various consulting agreements. Employee
and Vice Chairman shall agree upon a monthly schedule regarding the proportion
of Employee's time to be devoted to such obligations. Employee's salary shall be
proportionately reduced during such period, and Employee agrees to pay to
Company the same proportionate amount of the rent, utility, equipment costs and
similar expenses, based on Wavefield Image, Inc.'s current obligations, incurred
during such period.
11. Other Agreements.
(a) Employee shall execute and comply with the Confidentiality
Agreement in the form attached as Exhibit A hereto and incorporated herein by
reference. Employee acknowledges that the terms of such Confidentiality
Agreement are agreed to in consideration of the Company's agreement to employ
Employee and the consideration set out in this Agreement.
(b) The Company shall, to the fullest extent permitted by applicable
Delaware law, and in accordance with the Company's Bylaws and Charter, indemnify
Employee and hold him harmless from any cost, expense or liability arising out
of or relating to any acts or decisions made by him in the course of performing
his duties hereunder. Employee shall be added as an additional named insured
under all appropriate insurance policies now in force or hereinafter obtained by
the Company. Any termination of the Employee's employment or of this Agreement
shall have no effect on the continuing operation of this Section.
12. License Option Grant. If Employee serves as an employee for the
entire Initial Term, or is terminated by the Company without Cause prior to the
end of the Initial Term,
-6-
then, upon termination of employment, Employee shall have an option to obtain a
"Personal License," as defined below, to the "Wavefield Image Technology," as
defined below, for a one time payment of Five Hundred Thousand Dollars
($500,000.00). The option must be exercised, and the payment made, within sixty
(60) days of termination of the Employee's employment. If not exercised and paid
within such period, the option shall terminate. The payment may be made in cash
or by delivery of shares of Zydeco Energy, Inc. common stock. Such shares shall
be valued at the average of the closing bid price on a national exchange, or if
not traded on a national exchange, on a Nasdaq market, for the twenty days
preceding the payment date; if shares of Zydeco Energy, Inc. common stock are
not so listed or quoted, the payment must be made in cash.
"Personal License" shall mean a personal, nonexclusive, worldwide license
to use the Wavefield Image Technology for (i) analysis of seismic data as a
service to third parties subject to the limitations below and (ii) analysis of
seismic data from properties in which Employee has at least a twenty-five
percent (25%) interest in the property or mineral rights or in the entity owning
the property or mineral rights. If the licensed rights are used to provide
services to third parties, such services may only be rendered in exchange for
payment in cash and not in exchange for a property or royalty interest or any
other form of consideration unless consented to in writing; provided further,
Employee may not in any one year sell an amount of such services the "Net Price"
of which exceeds One Million Dollars ($1,000,000). "Net Price" shall mean the
gross price Employee charges for the service less any costs of required computer
processing time included in the gross price. The Company shall be entitled to
audit Employee's books and records relating to the sale of services and use of
the licensed technology to confirm compliance with the restrictions herein. In
addition to the foregoing limitations, whenever Employee desires to exercise its
rights under (ii) above, it shall first notify the Company in writing of the
country or U.S. state in which the property is located. If the Company is
currently involved in a project using the Wavefield Image Technology (a
"Project"), or is considering in good faith to commence a Project within one
year of such notice, in such country or U.S. state, Employee may not exercise
the licensed rights in such country or U.S. state unless the Company consents in
writing. The Personal License shall not include the right to sublicense, assign
or otherwise transfer, directly or indirectly, the licensed rights to any other
person. The Personal License shall automatically terminate upon the earlier of
Employee's breach of any of the license restrictions or his death. Within sixty
(60) days of Employee's exercise of the foregoing option, the parties shall
execute a license agreement memorializing the Personal License. Such license
agreement shall include such other terms as are customary for such agreements.
"Wavefield Image Technology" shall mean all technology owned by Wavefield
Image, Inc. as of the date hereof and such improvements thereto as are developed
primarily by Employee
-7-
during his employment, and the source code for software applying such technology
to seismic analysis.
13. Notice. (a) All notices, requests, demands and other
communications required by or permitted under this Agreement shall be in writing
and shall be sufficiently delivered if delivered by hand, by courier service, or
sent by registered or certified mail, postage prepaid, to the parties at their
respective addresses listed below:
(b) If to the Employee, to the address set out in the beginning of
this Agreement;
(c) If to the Company:
Zydeco Energy, Inc.
0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chairman
Either party may change such party's address by such notice to the other party.
14. Assignment. This Agreement is personal to the Employee, and he
shall not assign any of his rights or delegate any of his duties hereunder
without the prior written consent of the Company. The Company shall have the
right to assign this Agreement, subject to the provisions of Section 6(d)(i)
hereof, to a successor in interest in connection with a merger, sale of
substantially all assets, or similar transaction.
15. Survival. The provisions of this Agreement shall survive the
termination of the Employee's employment hereunder in accordance with their
terms.
16. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of Texas, without regard to
its conflicts of laws principles. The parties agree that venue and jurisdiction
shall be proper with the state and/or federal courts situated in Houston, Texas
to hear any disputes arising under this Agreement.
17. Binding Upon Successors. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns. All rights of
the Employee hereunder shall inure to the benefit
-8-
of and be enforceable by the Employee's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devices and
legatees.
18. Entire Agreement. This Agreement and the exhibit hereto
constitute the entire agreement between the Company and the Employee with
respect to the terms of employment of the Employee by the Company and supersedes
all prior agreements and understandings, whether written or oral, between them
concerning such terms of employment except for any contemporaneous written
letter agreements signed by the parties.
19. Waiver and Amendments; Cumulative Rights and Remedies.
(a) This Agreement may be amended, modified or supplemented, and any
obligation hereunder may be waived, only by a written instrument executed by the
parties hereto. The waiver by either party of a breach of any provision of this
Agreement shall not operate as a waiver of any subsequent breach.
(b) No failure on the part of any party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right or remedy. All rights and remedies hereunder are cumulative and are in
addition to all other rights and remedies provided by law, agreement or
otherwise.
20. Severability. Wherever there is any conflict between any
provision of this Agreement and any statute, law, regulation or judicial
precedent, the latter shall prevail, but in such event the provisions of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring it within the requirement of the law. In the event that any
part, section, paragraph or clause of this Agreement shall be held by a court of
proper jurisdiction to be indefinite, invalid or otherwise unenforceable, the
entire Agreement shall not fail on account thereof, but the balance of the
Agreement shall continue in full force and effect unless such construction would
clearly be contrary to the intention of the parties or would result in an
unconscionable injustice.
21. Arbitration. Upon the demand of either party, whether made
before or after the institution of any judicial proceeding, any Dispute shall be
resolved by binding arbitration in accordance with the terms of the arbitration
provisions contained on Annex "A" attached hereto and incorporated herein for
all purposes. Either party to this Agreement may, by summary proceedings (e.g.,
a plea in abatement or motion to stay further proceedings), bring any action in
court to compel arbitration of any Dispute. Either party who fails or refuses
to submit to binding arbitration
-9-
following a lawful demand by the other party shall bear all costs and expenses
incurred by such other party in compelling arbitration of any Dispute.
22. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be an original but all of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement effective as of the date first above written.
ZYDECO ENERGY, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------
Title: Vice Chairman
---------------------------
EMPLOYEE:
/s/ XXXXXX X. XXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxx
-10-
ANNEX "A"
ARBITRATION PROVISIONS
----------------------
(a) All Disputes between the parties submitted to arbitration shall be resolved
by binding arbitration administered by the American Arbitration Association
(the "AAA") in accordance with, and in the following order of priority: (i)
the terms of these arbitration provisions; (ii) the Commercial Arbitration
Rules of the AAA; (iii) the Federal Arbitration Act (Title 9 of the United
States Code); and (iv) to the extent the foregoing are inapplicable,
unenforceable or invalid, the Laws of the State of Texas. The validity and
enforceability of these arbitration provisions shall be determined in
accordance with this same order of priority. In the event of any
inconsistency between these arbitration provisions and such rules and
statutes, these arbitration provisions shall control. Judgment upon any
award rendered hereunder shall be entered in any court having jurisdiction.
(b) All statutes of limitation applicable to any Dispute shall apply to any
proceeding in accordance with these arbitration provisions.
(c) Arbitrators are empowered to resolve Disputes by summary rulings
substantially similar to summary judgments and motions to dismiss.
Arbitrators shall resolve all Disputes in accordance with the applicable
substantive Law. Any arbitrator selected shall be required to be
experienced and knowledgeable in the substantive Laws applicable to the
subject matter of the Dispute. A single arbitrator shall be chosen by
mutual agreement of the parties and shall resolve the Dispute. In such
case, the arbitrator shall be required (unless all parties to the
proceeding shall otherwise agree in writing) to make specific, written
findings of fact and conclusions of law and shall have the authority to
issue monetary or other awards, including all amounts properly payable and
costs, fees and expenses. In the event the parties cannot agree on the
selection of a single arbitrator, each party shall select an arbitrator,
which two arbitrators shall then select a third arbitrator, which panel of
three arbitrators so selected (an "Arbitration Panel") shall resolve the
Dispute. Disputes resolved by an Arbitration Panel shall be decided by a
majority vote of a panel of three arbitrators, the determination of any two
of the three arbitrators constituting the determination of the Arbitration
Panel; provided, however, that all three arbitrators on the Arbitration
Panel must actively participate in all hearings and deliberations.
Arbitrators, including any Arbitration Panel, may grant any remedy or
relief deemed just and equitable and within the scope of these arbitration
provisions and may also grant such ancillary relief as is necessary to make
effective any award. Arbitration Panels shall be required (unless all
parties to the proceeding shall otherwise agree in writing) to make
specific, written findings of fact and conclusions of law. The
determination of an arbitrator or Arbitration Panel shall be binding on all
parties and shall not be subject to review or appeal.
-11-
(d) To the maximum extent practicable, the AAA, the arbitrator (or the
Arbitration Panel, as appropriate) and the parties shall take any action
necessary to require that an arbitration proceeding hereunder shall be
concluded within 60 days of the filing of the Dispute with the AAA. Unless
the parties shall agree otherwise, arbitration proceedings hereunder shall
be conducted in Houston, Texas. Arbitrators shall be empowered to impose
sanctions, permit or order depositions and discovery and to take such other
actions as they deem necessary to the same extent a judge could pursuant to
the Federal Rules of Civil Procedure and applicable law. With respect to
any Dispute, each party agrees that all discovery activities shall be
expressly limited to matters directly relevant to the Dispute and any
arbitrator, Arbitration Panel and the AAA shall be required to fully
enforce this requirement. The provisions of these arbitration provisions
shall survive any termination, amendment or expiration of this Agreement,
unless the parties otherwise expressly agree in writing. To the extent
permitted by applicable Law, arbitrators, including any Arbitration Panel,
shall have the power to award recovery of all costs and fees (including
attorneys' fees, administrative fees and arbitrators' fees) to the
prevailing party or, if no clear prevailing party, as the arbitrator (or
Arbitration Panel, if applicable) shall deem just and equitable. Each
party agrees to keep all Disputes and arbitration proceedings strictly
confidential, except for disclosures of information required by applicable
Law.
-12-
