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EXHIBIT 10.28
AGREEMENT
This Agreement (the "Agreement") is made and entered into this 5th day
of December, 2000, by and between North Coast Energy, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxx ("Xxxxx").
RECITALS
Xxxxx is the President of the Company and is directly responsible for
overseeing the sales and marketing activities associated with the Company's
annual formation of one or more drilling programs. In connection with the
formation of the North Coast Energy 1999 Appalachian Private Drilling Program in
fiscal year 2000, the Company raised $5.2 million in drilling program capital, a
Company record for a single drilling program. The Company acknowledges that this
success was due, in large part, to the initiative demonstrated by Xxxxx in the
exercise of his responsibility for overseeing this endeavor, and the Company
desires to reward Xxxxx for his efforts.
Now Therefore, in consideration of the agreements hereinafter set forth
and other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1. EFFECTIVENESS OF AGREEMENT. The Agreement shall become effective
only upon the satisfaction of the following conditions: (a) the approval of this
Agreement by the Board of Directors of the Company and (b) the execution and
delivery of this Agreement by all parties hereto.
2. BONUS AWARD. The Company hereby grants Xxxxx a one-time cash bonus
of Fifty Thousand Dollars ($50,000) payable within thirty (30) days of execution
hereof, in consideration of exemplary service performed during fiscal year 2000
in connection with the raising of $5.2 million in drilling program capital for
the North Coast Energy 1999 Appalachian Private Drilling Program.
3. OBLIGATION OF XXXXX. Xxxxx agrees that he will, within thirty (30)
days of receipt of the cash bonus, purchase on the open market the number of
shares of common stock of the Company that are equal in value as of the date of
purchase to the cash bonus of $50,000, less that amount of money that is
reasonably withheld by Xxxxx in order to cover anticipated federal, state and
local income taxes that may be due and payable by Xxxxx as a result of his
receipt of the cash bonus.
4. SECURITIES REPRESENTATION. Xxxxx acknowledges that he has previously
traded in the stock of the Company, is familiar with its historical performance
and liquidity, and that the Company has made no representation concerning the
future performance of the common stock of the Company, events that may have an
effect on its future performance, or the ability of Xxxxx to realize a return on
his investment. Xxxxx represents that the only inducement to the purchase of the
referenced shares of common stock is the obligation that he has undertaken
pursuant to this Agreement to use his cash bonus in such manner, and that as of
the date hereof he has no claim
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under any applicable state or federal securities law with respect to the
purchase of the shares of the common stock of the Company or that would subject
the Company to an obligation to repurchase the shares from Xxxxx or pay him any
form of damages with respect thereto.
5. CONFIDENTIALITY. Both Xxxxx and the Company agree to maintain the
confidentiality of this Agreement and not to disclose its contents until such
date as either party may be required to make a disclosure to the Securities and
Exchange Commission, NASD or other governmental agency.
6. ADVICE OF COUNSEL. Each of the parties hereto acknowledges that
he/it has been advised that he/it has the right to consult with and has
consulted with an attorney of his/its own choice prior to executing this
Agreement and has a full understanding of its terms and meaning.
7. ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether in the form of past written
agreements, drafts of understanding or oral understandings; provided, however,
any other agreement executed contemporaneous with this Agreement and dealing
with subject matter other than the herein described cash bonus shall remain in
full force and effect.
8. GOVERNING LAW. This Agreement shall be construed under and the
rights of the parties hereto shall be governed by the laws of the State of Ohio
without regard to the principles of conflict of laws thereof. Any action brought
by either party to this Agreement arising out of or pertaining to the subject
matter of this Agreement shall be brought in the Court of Common Pleas of Summit
County, Ohio, or in the U.S. District Court for the Northern District of Ohio.
Both parties consent to and waive any objection to venue and jurisdiction in
either of the foregoing courts, and do further hereby acknowledge any of the
aforementioned courts to be a proper forum.
9. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement. The signature of any party
to any counterpart, including any facsimile thereof, may be appended to any
other counterpart and when so appended shall constitute an original.
10. BINDING EFFECT. This Agreement shall inure to the benefit of the
parties, their respective heirs, successors and assigns.
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, or twenty-four (24)
hours after being sent by confirmed facsimile transmission, with subsequent mail
delivery, or three (3) days after being mailed (by registered or certified mail,
return receipt requested), in each case to parties at the following addresses,
or such other address for a party as shall be specified by like notice:
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a) If to Xxxxx:
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxx 00000
With a copy to:
Xxxxx X. Xxxxxx, Xx., Esq.
Schneider, Smeltz, Xxxxxx & XxXxxx P.L.L.
Suite 1000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 441 14-2507
b) If to the Company:
North Coast Energy, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn:General Counsel
IN WITNESS WHEREOF, the parties have represented to one another that
they have carefully read the foregoing terms of this Agreement, that they know
and understand the contents of this Agreement, that they have authority to
execute this Agreement, that they have undertaken to sign the same as their own
respective free act and deed, having declared their intention to be bound
contractually by all such terms and conditions, and
do hereby execute and deliver this Agreement this 5th day of December, 2000.
NORTH COAST ENERGY, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Chief Executive Officer
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx (Individually)
