EXHIBIT 10.13
EMPLOYMENT AGREEMENTS WITH OFFICERS AND KEY EMPLOYEES OF THE REGISTRANT
(E) XXXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT is hereby made and entered into by and between ENERGY
SEARCH, INCORPORATED, a Tennessee corporation ("Employer"), and XXXXXXX X.
XXXXXX ("Employee"), this 1st day of November, 1997.
W I T N E S S E T H:
1. EMPLOYMENT. Employer employs Employee, and Employee accepts
employment, upon the terms and conditions of this Agreement.
2. TERM. The term of this Agreement, and of Employee's employment
hereunder, shall begin on November 1, 1997, and shall terminate on October
31, 1998. This Agreement, and Employee's employment hereunder, shall be
renewed automatically for successive periods of one (1) year each, subject
to termination as provided hereinafter.
3. COMPENSATION.
(a) During the first year of employment, Employer shall pay
to Employee as Base Salary Compensation for his services the sum
of Eighty-six Thousand Four Hundred Dollars ($86,400) per annum,
which shall be paid in arrears in equal biweekly installments of
Three Thousand Six Hundred Dollars ($3,600) each. Employee will
receive a salary compensation increase of a minimum of three
percent (3%) per year.
(b) Employee shall receive as additional compensation, a
Signing Bonus of Twenty Thousand Dollars ($20,000) and five
thousand shares of Energy Search, Incorporated common stock.
(c) Employer will assign to Employee an Incentive Bonus of
five thousand (5,000) shares of Energy Search, Incorporated
common stock for each year of Employee's employment during the
years of 1998 through 2002 assignable on January 5 of each year.
(d) Employee will receive a Share Bonus of five thousand
(5,000) shares when Energy Search, Incorporated common stock
maintains a trading price of Twelve Dollars ($12) per share for
twenty (20) days (the "$12 Bonus").
Employee will receive a Share Bonus of five thousand
(5,000) shares when Energy Search, Incorporated common stock
maintains a trading price of Sixteen Dollars ($16) per share for
twenty (20) days (the "$16 Bonus").
If Energy Search, Incorporated is sold in less than
five (5) years, all annual five thousand (5,000) share stock
bonuses will be deemed to be earned as of date of sale. If
Energy Search, Incorporated is sold for Sixteen Dollars ($16) or
more per share then both the Twelve Dollar ($12) and Sixteen
Dollar ($16) Bonuses are earned.
(e) Employer will pay Nine Thousand Five Hundred Dollars
($9,500) plus a matching three percent (3%) per year into the
Employee's Company sponsored XXX/SEP Plan.
4. DUTIES. Employee is engaged as Chief Operating Officer for
Employer and shall have such authority as is commensurate with said
position and shall have the following specific duties: Coordinating all
drilling and completion functions of the Company as well as coordination of
all production activities with respect to Company operated xxxxx, and the
general supervision of company personnel involved in the drilling,
completion and production functions of the Company, and such other duties
as the President of the Company delegates.
5. EXTENT OF SERVICES. Employee shall devote his entire time,
attention, and energies to Employer's business and shall not during the
term of this Agreement be engaged in any other business activity whether or
not such business activity is pursued for gain, profit, or other pecuniary
advantage. However, Employee may invest his assets in such form or manner
as will not require his services in the operation of the affairs of the
companies or entities in which such investments are made.
6. WORKING FACILITIES. Employee shall have an office, stenographic
help, typing and filing assistance, telephone(s) and facsimile machine(s),
and such other facilities and services as are suitable to his position and
appropriate for the performance of his duties.
7. EXPENSES.
(a) Reimbursement. Employer shall reimburse Employee for
all reasonable and necessary business expenses incurred by him in
carrying out his duties under this Agreement. Employee shall
present to Employer from time to time an itemized account of such
expenses in such form as may be required by Employer.
(b) Automobile. In recognition of Employee's need for an
automobile for business purposes, Employer will provide Employee
with an automobile, and pay all maintenance, repair, insurance
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and reasonable costs incident thereto. In lieu of the above,
Employee may choose to use his personal vehicle for business
purposes and receive an automobile allowance therefor in the
amount of Four Hundred Dollars ($400) per month.
8. BENEFITS. Employer shall further:
(a) provide Employee with medical health and
hospitalization insurance coverage as Employer provides to its
other employees (Employee will be responsible for the incremental
cost of family coverage);
(b) if Employee is totally disabled during the term of the
employment agreement, Employee's salary will continue at one
hundred percent (100%) for six months, and then continue for one
additional year at fifty percent (50%); if Employee is totally
disabled at any time there will be a minimum of 20,000 shares of
all the earnable Bonus Shares set out above construed to be
earned; and
(c) allow Employee to take part in any executive bonus
plan, profit-sharing plan, qualified salary deferral plan, and
pension plan which Employer now has or may hereafter adopt during
the term of Employee's employment hereunder.
9. VACATIONS. Employee shall be entitled each year to a vacation of
two (2) weeks, during which time his compensation shall be paid in full.
10. TERMINATION.
(a) Without cause, Employer and Employee may terminate this
Agreement at any time upon one hundred twenty (120) days' written
notice. In such event, Employee, if requested by Employer, shall
continue to render his services and shall be paid one (1) year's
severance pay from the date of termination.
(b) Employer may terminate Employee's employment for cause
if:
(1) Employee refuses to perform, or does not perform,
in a normal business manner his duties of employment with
Employer;
(2) Employee fails or refuses to obey and comply with
the instructions, rules and regulations of Employer as
promulgated by its Board of Directors respecting the
operations of Employer; or
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(3) Employee engages in any unlawful conduct in
connection with his duties of employment with Employer, is
guilty of any acts of dishonesty in connection therewith, is
convicted of a felony, is convicted of a misdemeanor
involving moral turpitude, or engages in any conduct clearly
detrimental to the business of Employer.
(4) Employee breaches any confidentiality or non-competition
covenant or agreement with the Employer.
If Employee's employment is terminated for cause, as set forth
just hereinabove, Employee shall receive his Base Salary accrued up through
the date of termination and shall be entitled to receive any Bonus (or
portion thereof) set forth in herein.
Upon termination for any reason, except as may be otherwise
required by law, all benefits set forth in Section 8 shall cease, although
Employee may keep any pension or other similar rights which have already
vested in him.
Employee will receive one (1) year's severance pay on termination
by the Company for any or no reason. If Employee leaves the Company on his
own violation, there will be no severance pay, and if Employee leaves the
employ of the Company within one (1) year of commencement, the Signing Cash
and Stock Bonuses are to be returned to the Company.
11. DEATH DURING EMPLOYMENT. If Employee dies during the term of
employment, Employer shall pay to the estate of Employee the Base Salary
and Incentive Bonus that would otherwise be payable to Employee up to the
end of the month in which his death occurs.
12. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing and delivered in person or by
courier or sent by certified, United States mail, return receipt requested,
postage prepaid, to his residence shown below in the case of Employee, or
to its principal office as shown below in the case of Employer. Notice
shall be effective upon the date of delivery, if delivered in person or by
courier, or three (3) days after depositing the notice in the United States
mail, if sent by certified mail.
Employee: Employer:
Xxxxxxx X. Xxxxxx Energy Search, Xxxxxxxxxxxx
XX 0, Xxx 000-X 000 Xx. Xxxxxxx X. Xxxx.
Xxxxxxxx, XX 00000 Xxxxx 000
Xxxxxxxxx, XX 00000
13. WAIVER OF BREACH. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not operate or be construed
as a waiver of any subsequent breach by Employee. No waiver shall be valid
unless in writing and signed by an authorized officer of Employer.
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14. ASSIGNMENT. Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Employee may not
assign any of his rights or delegate any of his duties or obligations under
this Agreement. The rights and obligations of Employer under this
Agreement shall inure to the benefit of, and shall be binding upon, the
successors and assigns of Employer.
15. CONFIDENTIALITY. Employee acknowledges that Company data is
confidential and proprietary to Employer and agrees not to impart to any
third party any of such proprietary data. Employer shall be entitled to
protect its interest herein by specific performance and the right to enjoin
Employee from engaging in such prohibited practices, without limiting any
other remedies available to it.
16. COVENANT AGAINST COMPETITION. In recognition of the close
personal contact Employee will have with Employer's confidential and
proprietary information and records, and the position of trust in which
Employer holds Employee, Employee agrees as follows:
(a) Non-Compete. For a period of one (1) year from date of
termination, Employee shall not, either as an officer,
stockholder, director, employee, representative, broker, partner,
sole proprietor or in any other manner or capacity directly or
indirectly take proprietary information of Employer and share it
with a competitor of Employer who operates within a fifty mile
radius of any Employer operations.
(b) Remedy for Breach. The parties hereto recognize that
the services to be rendered under this Agreement by Employee are
of a special and unique character; and that in the event of the
breach by Employee of the terms and conditions of this Agreement
to be performed by Employee, or in the event the Employee shall
violate any of the restrictions set forth in this Section 16,
then Employer shall be entitled, if it so elects, to institute
and prosecute proceedings in any court of competent jurisdiction,
either at law or in equity, to obtain damages for any breach of
this Agreement, to enforce the specific performance hereof and to
enjoin Employee from performing any prohibited act hereunder.
Nothing herein contained shall be construed to prevent Employer's
election of any such remedy in the event of the breach of the
Agreement by Employee.
17. APPLICABLE LAW. This Agreement has been negotiated and entered
into and to some extent shall be performed in the State of Ohio, and by
agreement of the parties shall be interpreted and construed in accordance
with and pursuant to the laws of the State of Ohio.
18. TAXES. Employer shall withhold all taxes, such as FICA and all
employment-related taxes (income or otherwise), from the compensation,
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bonuses and benefits paid hereunder, as required by law. Employee shall be
responsible for the payment of his income taxes on such compensation,
bonuses, and benefits, though the Employer will withhold such taxes as it
is required to withhold.
19. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties. It may not be changed orally but only by an
agreement in writing signed by both parties hereto.
20. CAPTIONS. The captions herein contained in no way limit or
extend the meaning of any Section, or the provisions therein, and are to be
used for reference purposes only.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement in
duplicate on the day and date first
above written.
EMPLOYER:
EMPLOYEE: ENERGY SEARCH, INCORPORATED
/S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx By: /S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, President
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