AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is executed on this
2nd
day of September, 2008, to be effective May 1, 2007 (“Effective Date”) between
PETROSEARCH ENERGY
CORPORATION, a Nevada
corporation ("Company") and XXXXXXX X. XXXX
(“Employee”).
RECITALS:
A. Company
has been capitalized under the laws of the State of Nevada in order to acquire
and develop key oil and gas development prospects across the United
States.
B. Company
desires to engage the services of Employee as an executive officer for the
Company.
TERMS
OF AGREEMENT:
NOW,
THEREFORE, FOR VALUE RECEIVED, and in consideration of the mutual covenants
contained herein, Company and Employee agree as follows:
1. Engagement/Term/Renewal
Term. Company shall employ Employee as President and Chief Executive
Officer for a period of two (2) years from the Effective Date, subject to
the termination provisions herein (the “Term”), and Employee hereby agrees to be
engaged by Company for the Term in such capacity. This
Agreement shall automatically expire at the end of the indicated term unless
extended in writing by Company. Bonuses shall not be deemed to
be accrued and part of any severance package unless and until the Board of
Directors has declared and awarded the particular bonus to the particular
Employee. THIS
AGREEMENT SUPERSEDES AND REPLACES THE PRIOR EMPLOYMENT AGREEMENT BETWEEN THE
PARTIES DATED NOVEMBER 15, 2004, AMENDED MAY 18, 2005 (“PRIOR AGREEMENT”) AND
UPON EXECUTION HEREOF BY THE PARTIES, THE PRIOR AGREEMENT SHALL BE DEEMED TO BE
TERMINATED AND OF NO FURTHER EFFECT.
2. Employment/Other
Engagements. Company hereby
stipulates that Employee shall have the right to serve in a similar capacity
with another entity and serve on other Boards of Directors. The Board
has established Conflict Resolution Guidelines to be used
by the Board to identify and monitor business conflict activities, if any, the
might occur in the future.
3. Compensation. Employee shall be
compensated for his services as follows:
a. Base
Salary. As compensation to Employee for the performance of his
duties or obligations under this Agreement, Company shall pay Employee a base
salary (the “Base Salary”) of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00) annually, payable monthly, in semi-monthly installments of TEN
THOUSAND FOUR HUNDRED SIXTEEN AND 66/100 DOLLARS ($10,416.66) each during the
term of this Agreement.
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b. Bonus. In
addition to receiving the Base Salary described in Section 3.a., Employee may be
awarded such bonuses from time to time as are recommended by the CEO (including
Employee, while Employee occupies that office) to the Board of Directors, and
then reviewed and approved by the Compensation Committee of the Board of
Directors (or, alternatively, approved by the Board of Directors directly
without committee recommendation should such committee be non-existent or
inactive).
c. Company Related
Travel. Employee shall be reimbursed, upon submission of
receipts and proper documentation, for any and all Company related travel away
from the principal office (Houston, Texas), including coach airfare, hotel and
meals (subject to the expenditure limitations imposed by Company).
d. Documented Out-of-Pocket
Expenses. Employee shall be promptly reimbursed for all other
reasonable out-of-pocket expenses incurred on behalf of Company which are
properly documented to Company; including, long distance telephone charges on
telephones other than Company’s office phones.
e.
Medical/Dental
Insurance. Employee shall be entitled during the Term, upon
satisfaction of all eligibility requirements, to participate in all health,
dental, disability, life insurance, retirement and other benefit programs now or
hereafter established by Company and shall receive such other benefits as may be
approved from time to time by the CEO.
4. Death or
Disability. Upon the death or
long term disability of the Employee, this Agreement will automatically
terminate, and the Employee (or his heirs in the case of death) will be entitled
to twelve (12) months of Base Salary and benefits as listed
above. All of the Employee’s outstanding warrants and deferred stock
awards shall become exercisable upon the date of death or long term disability,
and the warrants shall remain outstanding and exercisable per the terms of the
warrant agreement
5. Acknowledgment
of Legislative Impact Upon Taxation. Company and
Employee acknowledge and agree that Employee may in the future be awarded stock
or warrant-based compensation as a bonus or as part of a plan implemented to
benefit a group. Employee acknowledges that he/she has been advised
of proposed legislative enactments which create uncertainty regarding future
taxation of such stock or warrant-based compensation. Such
compensation may be refused by Employee, if offered, but the Company shall have
no duty to keep Employee apprised of the legislative enactments regarding
taxation and shall have no liability for adverse tax consequences to Employee
should Employee accept such stock or warrant-based compensation unless otherwise
provided in this Agreement.
6. Duties
and Obligations. Employee shall
perform the tasks consistent with the executive office designated herein and
such other reasonable tasks directed by the Board of Directors, from time to
time, as well as those duties and tasks customarily attributable to the
assignment assumed as described in paragraph 1 above. Employee
hereby covenants and agrees to perform the services for which he is hereby
retained in good faith and with reasonable diligence in light of attendant
circumstances.
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7. Termination
for Cause by
Company. This
Agreement may be terminated for “cause” by Company immediately, without prior
notice (except as indicated herein below) and without severance
pay. For purposes hereof, “cause” shall mean any of the following
events:
a.
Any embezzlement or wrongful diversion of funds of Company or any affiliate of
Company by Employee;
b.
Malfeasance, poor performance as to core or delegated job assignments in the
opinion of the Board of Directors or insubordination by Employee in the conduct
of such duties;
c.
Failure to observe or strictly adhere to all Company policies put into effect
and/or amended from time to time, including, without limitation, the Conflict
Resolution Guidelines referenced in paragraph 2 above.
d.
Abandonment by Employee of his job duties.
e.
Competing with the Company or otherwise diverting away from the Company business
opportunities intended for the Company or which could reasonably benefit the
Company’s core business exclusive of the identified conflicts, if any,
which are subject to the Conflict Resolution Guidelines.
f.
Other material breach of this Agreement by Employee that remains uncured for a
period of at least thirty (30) days following written notice from Company to
Employee of such alleged breach, which written notice describes in reasonable
detail the nature of such alleged breach; or
g.
Conviction of Employee or the entry of a plea of nolo contendere or equivalent
plea of a felony in a court of competent jurisdiction, or any other crime or
offense involving moral turpitude.
8. Termination for Good
Reason by Employee. This Agreement
may be terminated for “good reason” by Employee which, if so terminated, shall
give rise to the severance pay provisions set forth in paragraph 10
below. For purposes hereof, “good reason” shall mean only material
breach of this Agreement by the Company that remains uncured for a period of at
least thirty (30) days following written notice from Employee to Company of such
alleged breach, which written notice describes in reasonable detail the nature
of such alleged breach.
9. Termination
Upon a Change in Control. Employee shall
have the right, in his discretion, to terminate employment under this Agreement
as a result of a Change in Control (as defined below). In the event
that Employee is involuntarily terminated or voluntarily elects to terminate his
employment upon a Change in Control, then Employee shall be entitled to the
severance pay benefits described in paragraph 10 below.
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For
purposes hereof, a “Change in Control” shall mean the occurrence during the Term
of any of the following events (i) An acquisition (other than
directly from the Company) of any voting securities of the Company (the “Voting
Securities”) by any “Person” (as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934 (the “1934 Act”))
immediately after which such Person has “Beneficial Ownership” (within the
meaning of Rule 13d-3 promulgated under the 0000 Xxx) of 40% or more of the
combined voting power of the Company’s then outstanding Voting Securities;
provided however, that in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a “Non-Control Acquisition” (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A “Non-Control Acquisition” shall mean an
acquisition by (1) an employee benefit plan (or a trust forming a part thereof)
maintained by (x) the Company or (y) any corporation or other Person of which a
majority of its voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a “Subsidiary”), (2) the Company or
any Subsidiary, or (3) any Person in connection with a “Non-Control”
Acquisition, (ii) the
sale or other disposition of all or substantially all of the business or assets
of the Company to any person (other than a transfer to a Subsidiary); or (iii) a merger,
consolidation or reorganization involving the Company (other than with a
Subsidiary).
10. Severance
Pay Provisions/Effect of Termination Without Cause by Company, With Good Reason
by Employee or Due to Change in Control.
a. In
the event that (i) this Agreement is terminated by Company without “cause”, (ii)
Employee terminates his employment for “good reason”, (iii) Employee’s
employment is voluntarily (by Employee) or involuntarily terminated upon a
“Change in Control”, (iv) the Term of this Agreement expires without the
occurrence of any of the events listed in (i), (ii) or (iii) above, then
Employee shall be entitled to severance pay from Company equal to a lump cash
sum of $850,000 (the “Severance Cash Sum”), whether notice of
termination is delivered by Company or Employee.
b. The
Severance Cash Sum provided for in paragraph 10a above shall be in lieu of any
other severance or termination pay to which the Employee may be entitled under
any Company severance or termination plan, program, practice or arrangement and
in lieu of any remedial sum available under any legal theory of recovery under
applicable law. The limitation of Employee’s severance to the
Severance Cash Sum shall not affect or impair
Employee’s existing warrants or stock options, existing 401K accrued benefits,
existing life insurance, or Employee’s ability to avail himself of COBRA
benefits or indemnification insurance and benefits for matters subject to
indemnification, whether pending at termination or arising subsequent to
termination.
11. Time of
Essence, Attorneys Fees. Time is of the
essence with respect to this Agreement and same shall be capable of specific
performance without prejudice to any other rights or remedies under
law. If either party seeks to enforce, in law or in equity
(including any arbitration proceeding), any provision contained herein, then the
prevailing party in such proceeding shall be entitled to attorneys fees,
interest and all such other disbursements and relief provided under law, but
shall not be entitled to punitive or exemplary damages of any
kind.
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12. Modification
or Amendment. The parties
hereto may modify or amend this Agreement only by written agreement executed and
delivered by the respective parties.
13. Binding
on Heirs and Assigns. This Agreement
shall inure to and be binding upon the undersigned and their respective heirs,
representatives, successors and permitted assigns. This Agreement may
not be assigned by either party without the prior written consent of the other
party.
14. Counterparts. For the
convenience of the parties hereto, this Agreement may be executed in any number
of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
15. No
Waivers. No waiver of or
failure to act upon any of the provisions of this Agreement or any right or
remedy arising under this Agreement shall be deemed or shall constitute a waiver
of any other provisions, rights or remedies (whether similar or
dissimilar).
16. GOVERNING
LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS AND SHALL BE PERFORMABLE IN XXXXXX COUNTY, TEXAS EXCEPT TO THE
EXTENT THAT NEVADA CORPORATE LAW CONTROLS THE MATTERS
PERTAINING TO SECURITIES ISSUANCE AND CORPORATE GOVERNANCE BY
OFFICERS AND DIRECTORS.
17. Notices. Any notice,
request, instruction or other document to be given hereunder by any party to the
other shall be in writing (by FAX, mail, telegram or courier) and delivered to
the parties as follows:
|
If to Company:
|
Board
of Directors
|
000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
FAX: 000-000-0000
|
If to Employee:
|
Xxxxxxx
Xxxx
|
000
Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx 00000
18. Entire
Contract/No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and is not intended to create any obligations to, or
rights in respect of, any persons other than the parties
hereto. There are no third party beneficiaries of this
Agreement.
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19. Captions
for Convenience. All captions
herein are for convenience or reference only and do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
20. Severability. In case any one
or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or enforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal or enforceable
provision had never been contained herein.
21. BINDING
ARBITRATION. ANY CONTROVERSY OR CLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE
SETTLED BY FINAL AND BINDING ARBITRATION CONDUCTED IN HOUSTON, TEXAS, IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES ("RULES") OF THE AMERICAN
ARBITRATION ASSOCIATION IN EFFECT AT THE TIME THE CONTROVERSY OR CLAIM ARISES,
BUT SAID ARBITRATION NEED NOT BE ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION. THE ARBITRATOR, WHICH SHALL BE AGREED UPON BY THE
PARTIES, SHALL HAVE JURISDICTION TO DETERMINE ANY SUCH CLAIM AND MAY GRANT ANY
RELIEF AUTHORIZED BY LAW FOR SUCH CLAIM EXCLUDING CONSEQUENTIAL AND PUNITIVE
DAMAGES. EACH PARTY TO THE ARBITRATION SHALL BEAR THE INITIAL FILING
FEES AND CHARGES EQUALLY, PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD
REIMBURSEMENT OF ALL SUCH COSTS AND FEES TO THE PREVAILING PARTY AS A PART OF
ITS AWARD. THIS PARAGRAPH SHALL LIKEWISE BE SPECIFICALLY ENFORCEABLE
IN A COURT OF COMPETENT JURISDICTION SHOULD THE PARTY NOT DEMANDING ARBITRATION
REFUSE TO PARTICIPATE IN OR COOPERATE WITH THE ARBITRATION
PROCESS.
EXECUTED
by the undersigned as of the Effective Date set forth above.
SIGNATURES
APPEAR ON FOLLOWING PAGE
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PETROSEARCH
ENERGY CORPORATION
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By:
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/s/ Xxxxx Xxxxxxx | ||
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Xxxxx
Xxxxxxx, Chief Financial Officer
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| /s/ XXXXXXX X. XXXX | |||
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XXXXXXX
X. XXXX
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