EMPLOYMENT AND CONSULTING AGREEMENT
Exhibit (e)(5)
THIS EMPLOYMENT AND CONSULTING AGREEMENT (this “Agreement”) is made and entered into as of
this 17th day of October, 2011 by and between Xxxxxxx Exploration Company, a Delaware corporation
(“BEX”), Xxxxxxx, Inc., a Texas corporation (together with BEX, referred to as the “Company”) and
Xxxxx X. Xxxxxxx (“Consultant”), and for purposes of acknowledging this Agreement, Statoil Gulf
Services LLC (“Statoil”).
WHEREAS, Consultant currently is employed by the Company as its Executive Vice President Land
and Administration;
WHEREAS, Statoil ASA, a public limited liability company organized under the laws of Norway,
Fargo Acquisition Inc., a Delaware corporation and indirect, wholly-owned subsidiary of Statoil
ASA, and BEX are entering into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant
to which, among other things, (i) Fargo Acquisition Inc. will commence an Offer to purchase the
common stock of the BEX, and (ii) after the acquisition of common stock pursuant to the Offer,
Fargo Acquisition Inc. shall merge with and into BEX, with BEX being the surviving corporation (the
“Merger”). As a result of the Merger, the separate corporate existence of Fargo Acquisition Inc.
shall cease and BEX shall continue as the surviving corporation of the Merger and the Company shall
continue its existence as a wholly-owned subsidiary of BEX;
WHEREAS, Consultant and the Company are parties to a Change of Control Agreement dated
September 20, 1999 and amended as of January 1, 2009 (the “Change of Control Agreement”), pursuant
to which Consultant is entitled to certain severance payments and benefits upon the occurrence of a
“Termination Event” during the “Retention Period” as those terms are defined therein;
WHEREAS, the Merger will constitute a “Change of Control” as that term is defined in the
Change of Control Agreement and the termination of Consultant’s employment will constitute a
Termination Event during the Retention Period under the Change of Control Agreement;
WHEREAS, given Consultant’s knowledge of the Company and the industry, the Company desires to
retain the services of Consultant as an employee and thereafter as a consultant on the terms and
conditions set out below;
WHEREAS, Consultant’s execution of this Agreement is an inducement to Statoil ASA’s
willingness to enter into the Merger Agreement; and
WHEREAS, capitalized terms not defined in this Agreement shall have the meanings assigned to
them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the Company and
Consultant agree as follows:
1. Effective Date. This Agreement is effective as of the Acceptance Time.
2. Termination of Employment; Effect of Termination of Employment. Consultant’s employment
with the Company and any affiliate shall terminate effective as of the earlier of (i) 60 days after
the Acceptance Time, (ii) such date that the Company notifies Consultant in writing that
Consultant’s employment is terminated, or (iii) Consultant’s death, (the “Employment Termination
Date”). The Company and Consultant acknowledge and agree as follows:
(a) The Company acknowledges and agrees that (i) during the period from the Acceptance Time
through the Employment Termination Date, Consultant will receive base salary at a rate no less than
the rate in effect as of immediately prior to the Acceptance Time and, except as provided in clause
(iii) below, continue to be eligible to participate in the Company’s or an affiliate’s employee
benefit plans, programs, and arrangements on the same basis as he was eligible to participate
immediately prior to the Acceptance Time; (ii) it will pay Consultant any unpaid salary and accrued
but unused vacation or paid time off as of the Employment Termination Date in the time period
required by law; (iii) in lieu of any bonus under the Company’s 2011 Performance Bonus Plan, it
will pay Consultant a bonus equivalent to 80% of Consultant’s “gross salary” (as that term is
defined in the Company’s 2011 Performance Bonus Plan) in effect as of immediately before the
Acceptance Time, prorated through the Employment Termination Date if such date occurs before
December 31, 2011, in a cash lump sum within three business days after the Employment Termination
Date; (iv) it will continue to reimburse Consultant for any business expenses incurred by him
through the Employment Termination Date, and reimburse Consultant for any unreimbursed business
expenses incurred by him through the Employment Termination Date, in accordance with the Company’s
customary practices concerning expense reimbursement, but in no event later than the 15th day of
the third month following the end of the calendar year in which the Employment Termination Date
occurs; (v) the termination of Consultant’s employment on the Employment Termination Date entitles
Consultant to the severance and other benefits under the Change of Control Agreement upon
Consultant’s satisfaction of the conditions for payments set out therein; (vi) the termination of
Consultant’s employment on the Employment Termination Date constitutes a “separation from service”
under Treasury Regulation Section 1.409A-1(h); and (vii) the Company’s obligations under the Change
of Control Agreement survive the termination of Consultant’s employment and the consummation of the
Merger.
(b) Provided that Consultant has not voluntarily terminated employment with the Company or an
affiliate before the Employment Termination Date, the Company shall pay Consultant a retention
bonus of $575,000.00, less legally required withholdings, in a cash lump sum within three business
days after the Employment Termination Date.
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(c) The
Company and Consultant agree that Section 8 of the Confidentiality, Non-Competition
and Non-Solicitation Agreement dated June 7, 2004 between Consultant and the Company (the
“Confidentiality and Non-Competition Agreement”) is hereby modified to delete any obligation of
Consultant under such Section 8 after the termination of Consultant’s employment. Other than as
amended in the preceding sentence, Consultant acknowledges and agrees that his post-employment
obligations under the Confidentiality and Non-Competition Agreement survive the termination of
Consultant’s employment and the termination of the Consulting Term.
3. Term. This Agreement is effective as of the Acceptance Time and shall continue until the
90th day immediately following the Employment Termination Date (such period, the “Initial Term”)
unless earlier terminated as provided for in paragraph 11 below. Upon the expiration of the
Initial Term, the Company, in its sole discretion, may, by providing written notice to Consultant,
elect to extend the Consulting Term (as defined below) for an additional 90-day period.
4. Scope of Services.
(a) Consultant shall perform such transition services for the Company as may be reasonably
requested from time to time by the Company’s Chief Executive Officer or President during normal
business hours during the period beginning on the Employment Termination Date and ending on the
90th day immediately following the Employment Termination Date unless extended pursuant to
paragraph 3 (such period, the “Consulting Term” and such services, the “Services”) so that the
Company may have the benefit of Consultant’s advice, counsel, experience, and knowledge and of
Consultant’s reputation and contacts in the industry and with respect to the Company and the
business operations of the Company. The Company and Consultant anticipate that Consultant will
devote no more than the equivalent of eight hours per week during the Consulting Term to the
provisions of the Services. However, should Consultant need to devote additional time in order to
properly perform the Services, Consultant agrees to devote such additional time to the Company as
may be reasonably necessary, subject to the limitations of paragraph 4(b) below and provided that
such Services do not otherwise unreasonably interfere with Consultant’s personal and other business
pursuits. Unless Consultant otherwise agrees, Consultant shall not be required to perform any such
Services at the offices of the Company or any affiliate, and shall not be required to travel to
perform any such Services. Consultant acknowledges that the Company is relying on Consultant’s
special skill, knowledge, training, and experience in performing the Services and that Consultant
shall determine the method, details, and means of performing the Services consistent with the
nature and purpose of the Services.
(b) Consultant and the Company acknowledge that the level of bona fide services Consultant
shall perform for the Company during the Consulting Term shall permanently decrease to no more than
20% of the average level of bona fide services performed by Consultant for the Company over the
36-month period immediately preceding the Effective Date, such that the termination of Consultant’s
employment with
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the Company shall constitute a “separation from service” under Treasury Regulation Section
1.409A-1(h).
5. Equipment; Expenses. All supplies, equipment, and other materials provided to Consultant
or authorized by the Company to be used by Consultant in relation to the Services shall remain the
property of the Company and shall be returned immediately upon request of the Company or upon
termination of the Agreement, whichever is earlier. Any equipment owned by Consultant that is used
to perform the Services shall be expunged of all data, programs, documents and any other
information relating to the Services immediately upon request of the Company or upon termination of
the Agreement, whichever is earlier. The Company shall reimburse Consultant for reasonable
business-related expenses incurred by Consultant in connection with the performance of the
Services, including any expenses in connection with agreed-upon travel. Any expenses for which
Consultant seeks reimbursement must be submitted to the Company with appropriate supporting
documentation no later than no later than 15 days after the end of the calendar month in which the
expenses were incurred. The Company shall reimburse Consultant for any such expenses by the end of
the calendar month after Consultant’s submission of appropriate supporting documentation.
6. Confidential Information
(a) During the Consulting Term and in connection with the Services, the Company shall provide
Executive with Confidential Information (as defined in paragraph 6(c) below) and entrust Consultant
with activities designed to maintain or build the goodwill of the Company. In consideration
thereof, and to protect the Company’s legitimate business interests in safeguarding its
Confidential Information and goodwill, Consultant agrees to the provisions of this paragraph 6 and
paragraph 7.
(b) Consultant acknowledges and agrees that, at all times during the Consulting Term and
thereafter, (i) all Confidential Information shall remain and be the sole and exclusive property of
the Company; (ii) he will hold all Confidential Information in strictest confidence and not,
directly or indirectly, disclose or divulge any Confidential Information to any person or entity,
except (A) to the extent necessary for the proper performance of the Services; (B) as otherwise
authorized by the Company; (C) as required by law or legal process; or (D) as necessary in
connection with the enforcement of this Agreement or any other agreement with or obligation of the
Company; and (iii) if he believes he is required by law or legal process to disclose or divulge any
Confidential Information, he will, unless prohibited by applicable law, notify the Company in
writing sufficiently in advance of any such disclosure to allow the Company sufficient opportunity
to defend, limit, or otherwise protect its interests against such disclosure.
(c) For purposes of this Agreement, the term “Confidential Information” shall mean all
proprietary and confidential and other business information of the Company, including, but not
limited to, geological maps, geophysical maps, geological data, geophysical data, geological
interpretations, geophysical interpretations, geological analysis, geophysical analysis, project
location, prospect location, prospect
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leads, project leads, well logs, well log interpretations, well analysis, production
information, financial information and records, personnel information and records (other than as
pertains to Consultant), and other information or matters constituting trade secrets or
confidential information as defined under applicable law, in whatever form or media, but excluding
(i) any such information that is or becomes generally available to the public other than as a
result of an improper disclosure by Consultant in violation of this Agreement; (ii) information
that is or was made available to Consultant on a non-public basis; or (iii) information that is
generally known or available in the industry.
(d) For purposes of this paragraph 6, the “Company” shall include Statoil and its affiliates.
7. Restricted Activities.
(a) In consideration of the retention bonus described in paragraph 2(b) and the Consulting
Fee, and to protect the Company’s legitimate business interests in safeguarding its Confidential
Information and goodwill, Consultant agrees that for the one-year period beginning on the
Employment Termination Date, he shall not, directly or indirectly, either as an employee, employer,
consultant, contractor, agent, principal, partner, stockholder, corporate officer, director,
member, manager, or in any other individual or representative capacity, within the Restricted Area
(as defined below) engage in Competitive Duties (as defined below) on behalf of, or in conjunction
or affiliation with, any person or entity that is in competition with the Company in the business
of oil and gas exploration and production or is planning to compete with the Company in such
business; provided, however, that the provisions in this paragraph 7(a) shall not be deemed to
prohibit (i) Consultant’s ownership of not more than five (5%) percent of the total shares of all
classes of stock outstanding of any publicly held company or (ii) Consultant accepting employment
with, or providing services to, any business or organization which engages in competition with the
Company in the Restricted Area so long as Consultant works exclusively in a subsidiary, division or
other distinct unit that carries on a bona fide business that does not engage in competition with
the Company and Consultant is able, in the reasonable determination of the Company, to satisfy
ongoing obligations under paragraph 6 above notwithstanding such employment or engagement. As used
herein, the “Restricted Area” is that geographic area within a fifty (50) mile radius of those
locations within the United States where the Company currently does business, other than the States
of Texas, Oklahoma, New Mexico and Louisiana. As used herein, the term “Competitive Duties” means
duties that are the same as, or similar to, duties that Consultant performed or over which
Consultant had direct supervisory responsibility during the course of his employment or engagement
with the Company.
(b) Except for purposes of determining the Restricted Area under this paragraph 7, all
references to the “Company” in this paragraph 7 shall include Statoil and its affiliates.
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8. Remedies. Consultant acknowledges that the covenants and agreements contained in this
Agreement are of a special nature and that any breach, violation, or evasion of the terms of
paragraphs 6 or 7 (i) may result in damages to the Company in amounts difficult to ascertain and
(ii) will give rise to irreparable injury to the Company. Accordingly, Consultant agrees that the
Company has a right to xxx and is entitled to equitable relief, including, but not limited to,
injunctive relief and specific performance, without the necessity of proof of actual damage,
against the actual or threatened breach, violation or evasion of paragraphs 6 or 7 by Consultant in
any proceeding that the Company may bring to enforce any provision of this Agreement, in addition
to any other available legal remedies. In the event of any breach, violation or evasion of
paragraphs 6 or 7 by Consultant, the Company shall be entitled to recover reasonable attorneys’
fees and all costs and expenses associated with the enforcement of such paragraphs.
9. Consulting Fee. In consideration of Consultant’s providing the Services, the Company shall
pay to Consultant a fee of $90,000 (the “Consulting Fee”), payable in three equal installments with
the first installment to be paid on the Employment Termination Date and each subsequent installment
to be paid on the 30th day after the previous installment is paid; provided, however, that in the
event the Company terminates this Agreement without Cause (as defined in paragraph 11(a) below),
the full remaining portion of the Consulting Fee shall be paid in a cash lump sum within 10 days
after the termination date. In the event the Company elects to extend the Consulting Term beyond
the Initial Term, the Company shall, subject to the last sentence of this paragraph 9, pay to
Consultant an additional amount equal to $90,000, payable in three equal installments to be paid on
the 30th day after the previous installment is paid hereunder. The Consulting Fee shall be the
sole compensation for all Services Consultant may perform during the Consulting Term.
Notwithstanding the foregoing, Consultant shall not be entitled to any unearned portion of the
Consulting Fee if the Company terminates this Agreement for Cause.
10. Relationship of the Parties; Independent Contractor Status.
(a) Notwithstanding anything to the contrary in this Agreement, express or implied, the status
of Consultant during the Consulting Term shall be that of an independent contractor. Consultant
acknowledges and agrees that during the Consulting Term and with respect to the provision of the
Services, Consultant is solely responsible for complying with obligations imposed upon Consultant
as an independent contractor by all applicable federal, state, or local laws, rules, and
regulations relating to the performance of the Services and payment of the Consulting Fee,
including but not limited to those relating to the reporting of, and paying when due, all income
and other taxes, including estimated taxes, and the filing of all returns and reports required by
applicable law.
(b) During the Consulting Term, Consultant shall not in any way represent himself to be an
agent of the Company and Consultant shall not have any power to bind the Company. During the
Consulting Term, nothing in this Agreement creates or
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shall be deemed to create a partnership, joint venture, agency, or employer-employee
relationship between the Company and Consultant.
11. Termination.
(a) The Company may terminate this Agreement during the Consulting Term for Cause. “Cause,”
for purpose of this Agreement, means (i) Consultant’s willful and continued failure to perform the
Services (other than by reason of injury or illness) as reasonably requested by the Company; (ii)
willful misconduct of Consultant in performing the Services which is demonstrably and materially
economically injurious to the Company; or (iii) a material breach of paragraphs 6 or 7 of this
Agreement. No act or failure to act, shall be considered “willful” unless Consultant has acted, or
failed to act, with a lack of good faith and with a lack of reasonable belief that such action or
failure to act was in the best interest of the Company. Before exercising its right to terminate
this Agreement for Cause, the Company shall notify Consultant in writing of its intent to do so,
identifying the clause(s) under which Cause is alleged to exist and describing in reasonable detail
the circumstances or events claimed to constitute Cause under such clause(s), and provide
Consultant at least 10 days to correct the circumstances or events. If the Company does not accept
Consultant’s correction of the alleged circumstances or events, the Company shall send Consultant
written notice specifying the effective date of the termination of the Agreement for Cause, which
date shall be no earlier than Consultant’s receipt of such written notice. In the event the
Company terminates this Agreement for Cause as provided for in the preceding sentence, the Company
shall pay Consultant any unpaid portion of the Consulting Fee through the date of termination
within 10 days after the date of termination, but the Company’s and Consultant’s obligations under
this Agreement otherwise shall not be affected.
(b) The Company may terminate this Agreement during the Consulting Term without Cause upon 10
days’ advance written notice to Consultant. In the event the Company terminates this Agreement
without Cause as provided for in the preceding sentence, the Company shall pay Consultant the full
remaining portion of the Consulting Fee in a cash lump sum on the date of termination , but the
Company’s and Consultant’s obligations under this Agreement otherwise shall not be affected.
(c) Consultant may terminate this Agreement during the Consulting Term if the Company
materially breaches this Agreement, including by failing to timely pay the Consulting Fee. Before
exercising his right to terminate this Agreement, Consultant shall notify the Company in writing of
his intent to do so, identifying the provision(s) which allegedly has been breached and describing
in reasonable detail the circumstances or events claimed to constitute a breach, and provide the
Company at least 10 days to correct the circumstances or events. If Consultant does not accept the
Company’s correction of the alleged circumstances or events, Consultant shall send the Company
written notice specifying the effective date of the termination of the Agreement, which date shall
be no earlier than the Company’s receipt of such written notice. In the event Consultant
terminates this Agreement as provided for in the
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preceding sentence, the Company shall pay Consultant the full remaining portion of the
Consulting Fee in a cash lump sum within 10 days after the date of termination, but the
Company’s and Consultant’s obligations under this Agreement (other than Consultant’s obligation to
provide the Services) otherwise shall not be affected.
12. Indemnification. To the maximum extent permitted under applicable law, the Company shall
indemnify Consultant and hold him harmless from any costs, expenses (including, without limitation,
attorneys fees and other legal fees and expenses), claims, liabilities, losses, judgments, fines,
settlements, and exposures arising from or in any way connected with the performance of the
Services, including claims, liabilities, losses, judgments, fines, settlements, and exposures
based on Consultant’s own negligence in the performance of the Services, unless it is
established by a final judgment that the act or omission giving rise to the claim, demand, suit or
proceeding (collectively, a “Proceeding”) constituted bad faith, willful misconduct, or gross
negligence. Reasonable expenses, including fees and expenses of counsel, incurred by Consultant in
connection with any such Proceeding shall be paid or reimbursed on a current basis by the Company
in advance of the final disposition of the Proceeding upon receipt by the Company of (i) a written
affirmation by Consultant of his good faith belief that the standard of conduct necessary for
indemnification as authorized in this paragraph 12 has been met, and (ii) a written undertaking by
Consultant to repay the amount if it shall ultimately be determined that the standard of conduct
has not been met.
13. Assignment; Subcontracting; Benefit of Agreement. This Agreement and the rights and
duties under it shall not be assigned, subcontracted, or transferred by any party, in whole or in
part, without the other party’s prior written approval. Specifically, given the nature of the
Services, Consultant must perform the Services personally unless otherwise agreed in advance by the
Company in writing. This Agreement shall inure to the benefit of and be binding upon the parties
and their respective heirs, legal representatives, successors, and permitted assigns, including,
without limitation, any corporation or person which may acquire all or substantially all of the
Company’s assets or business, or with or into which the Company may be consolidated or merged.
14. Amendment. No amendment to this Agreement shall be effective unless made in writing and
signed by the parties.
15. Governing Law and Venue. This Agreement is governed by and shall be construed and
enforced in accordance with Texas law, excluding its choice-of-law principles that would require
the application of the law of any other state. Any action to enforce this Agreement shall be
brought in Xxxxxx County, Texas (or the county of Consultant’s residence, if different).
16. Code Section 409A. This Agreement is intended to be exempt from the requirements of
Internal Revenue Code Section 409A (“Code Section 409A”). Accordingly, all provisions herein, or
incorporated by reference, shall be construed and interpreted to be consistent with such intent.
Notwithstanding the foregoing, if any
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additional tax, penalty or interest under or in relation to Code Section 409A (“Section
409A Tax”) is imposed on Consultant by reason of this Agreement, including, without
limitation, administration of any payments, benefits or reimbursements under this Agreement, the
amendment or modification of this Agreement, or the substitution of another agreement or
arrangement for this Agreement, then the Company shall pay Consultant an additional payment (a
“409A Payment”) in an amount such that, after payment by Consultant of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without limitation, any
federal, state, and local income taxes and employment taxes (and any interest and penalties imposed
with respect thereto) and any Section 409A Tax imposed upon the 409A Payment, Consultant retains an
amount of the 409A Payment equal to the Section 409A Tax. The Company shall pay the 409A Payment
to Executive no later than 10 days after Consultant remits the Section 409A Tax.
17. Notices. Any notice required or permitted under this Agreement shall be in writing and
shall be sufficiently given and received upon receipt, if personally delivered, or three days after
being deposited in the United States mailed if sent by registered or certified mail, postage
prepaid, with return receipt requested, addressed:
If to the Company:
Xxxxxxx, Xxx.
Xxxxxxxx 0, 0xx Xxxxx
0000 XxxxXxxx Xxxxxxxxx,
Xxxxxxx, Xxxxx 00000
Xxxxxxxx 0, 0xx Xxxxx
0000 XxxxXxxx Xxxxxxxxx,
Xxxxxxx, Xxxxx 00000
or to such other address and/or to the attention of such other person as the Company shall
designate by written notice to Consultant.
If to Consultant:
Xxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
or to such other address as Consultant shall designate by written notice to the Company.
18. Counterparts. This Agreement may be executed in as many counterparts as may be deemed
necessary and convenient, and by the different parties on separate counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same instrument.
19. Survival; Continuing Effect of Restrictive Covenants. For the avoidance of doubt,
Consultant acknowledges and agrees that Consultant’s obligations under the Confidentiality and
Non-Competition Agreement, as modified by paragraph
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2(c) above, shall continue in full force and
effect. The Confidentiality and Non- Competition Agreement (as modified by paragraph 2(c) above) and paragraphs 6 and 7 of this
Agreement shall continue in full force and effect and survive the termination of this Agreement,
regardless of the reason for such termination.
[Signature Page Follows]
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The signatures of the parties below confirm their mutual acceptance or acknowledgement of the terms
of this Agreement:
| XXXXXXX, INC. | XXXXX X. XXXXXXX | |||||||||
By: |
/s/ Xxx X. Xxxxxxx | /s/ Xxxxx X. Xxxxxxx | ||||||||
| Name: Xxx X. Xxxxxxx | ||||||||||
| Title: President & Chief Executive Officer | ||||||||||
| Date
Signed October 17, 2011 |
Date Signed: October 17, 0000 | |||||||||
| XXXXXXX EXPLORATION COMPANY | ||||||||||
By: |
/s/ Xxx X. Xxxxxxx | |||||||||
| Name: Xxx X. Xxxxxxx | ||||||||||
| Title: President & Chief Executive Officer | ||||||||||
| Date Signed October 17, 2011 |
||||||||||
| ACKNOWLEDGED: STATOIL GULF SERVICES LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President | |||
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