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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Between
The Home-Stake Oil & Gas Company
and
Xxxxxx X. Xxxxxxx
Effective as of February 5, 1998
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is
amended and restated effective this 5th day of February, 1998, by and among The
Home-Stake Oil & Gas Company, an Oklahoma corporation (the "Company"), and
Xxxxxx X. Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, on October 23, 1991, the Company and the Executive executed an
Employment Agreement (the "Original Employment Agreement"), effective as of
November 15, 1991; and
WHEREAS, the Company and the Executive desire to change certain terms
and provisions of the Original Employment Agreement and to amend and restate the
same;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby amend and restate the Original Employment
Agreement to read as follows:
1. Introduction. The Executive is currently the Chief Executive
Officer, President and Treasurer of the Company. The Company believes that
retaining the Executive's services as an employee of the Company and the benefit
of his business experience are of material importance. The Company desires to
encourage the Executive to continue in the employ of the Company for the benefit
of the Company and its stockholders. Therefore, the Company and the Executive
intend by this Agreement to specify the terms and conditions of the Executive's
employment relationship with the Company.
2. Employment. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company upon the terms and subject
to the conditions set forth herein.
3. Term. This Agreement shall commence on the effective date of this
Agreement and shall continue until terminated.
4. Duties and Responsibilities.
(a) The Executive shall serve the Company as Chief Executive
Officer, President and Treasurer and shall perform, faithfully and
diligently, the services and functions relating to such offices.
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(b) The Executive shall devote such of his entire time,
attention, energies and business efforts to his duties as an executive
of the Company as are reasonably necessary to carry out his duties
specified in Section 4(a). The Executive shall not engage in any other
business activity (regardless of whether such business activity is
pursued for gain, profit or other pecuniary advantage) if such business
activity would impair the Executive's ability to carry out his duties
hereunder. This Section 4(b), however, shall not be construed to
prevent the Executive from (i) investing his personal assets as a
passive investor in such form or manner as will not contravene the best
interests of the Company, (ii) participating in various charitable
efforts, or (iii) serving as a director or member of a committee of any
organization when such position has previously been approved in writing
by the Board of Directors.
5. Compensation and other Employee Benefits.
As compensation for his services under the terms of this
Agreement:
(a) the Executive shall be paid an annual salary of
not less than $150,000, payable in accordance with the then
current payroll policies of the Company. Such annual salary is
herein referred to as the "Base Salary". The Base Salary shall
be reviewed annually by the Board of Directors and shall be
subject to increase in the sole discretion of the Board of
Directors.
(b) subject to the right of the Company to amend or
terminate any employee and/or group or executive benefit plan,
the Executive shall be entitled to receive the following
employee benefits:
(i) The Executive shall have the right to
participate in all current or future employee and/or
group benefit plans of the Company that are available
to its salaried employees generally (including,
without limitation, disability, accident, medical,
life insurance, parking and hospitalization plans);
(ii) The Executive shall have the right to
participate in all current executive benefit plans of
the Company, including but not limited to the
Company's Key Employee Incentive Bonus Plan and The
Home-Stake Oil & Gas Company Profit Sharing 401(k)
Plan, all in accordance with the Company's regular
practices with respect to its executive officers;
(iii) The Executive shall be entitled to
reimbursement from the Company for reasonable
out-of-pocket expenses incurred by him in the course
of the performance of his duties hereunder;
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(iv) In order to promote the interests of
the Company, the Executive shall be entitled to
reimbursement from the Company for all monthly dues
incurred by him in connection with his membership in
Southern Hills Country Club;
(v) The Executive shall have the right to
participate in any Company oil, gas or mineral
property acquisition in accordance with the Company's
policy as it may exist from time to time regarding
employee participation in such acquisitions;
(vi) The Executive shall be entitled to such
vacation, holidays and other paid or unpaid leaves of
absence as are consistent with the Company's normal
policies or as are otherwise approved by the Board of
Directors; and
(vii) The Executive shall be entitled to the
use of an automobile with the costs thereof,
including acquisition cost of up to $30,000,
insurance, license tag and maintenance (excluding
gas) to be borne by the Company. In the event the
Executive's employment with the Company is terminated
for any reason, he shall have the right to purchase
the Company automobile he is then using for the
lesser of its then book value after depreciation as
shown on the books and records of the Company or its
fair market value.
6. Termination of Employment.
(a) Due Cause. Nothing herein shall prevent the Company from
terminating the Executive for "Due Cause" (as hereinafter defined), in
which event the Executive shall be entitled to receive his Base Salary
on a pro rata basis to the date of termination. In the event of such
termination for Due Cause, all other rights and benefits the Executive
may have under the employee and/or group or executive benefit plans and
programs of the Company, generally, shall be determined in accordance
with the terms and conditions of such plans and programs. The term "Due
Cause" shall mean (i) the Executive has committed a willful criminal
act, such as embezzlement, against the Company intending to enrich
himself at the expense of the Company, (ii) the Executive has engaged
in conduct that has caused serious injury, monetary or otherwise, to
the Company as evidenced by a binding and final judgment, order or
decree of a court or administrative agency of competent jurisdiction in
effect after exhaustion of all rights of appeal of the action, suit or
proceeding, (iii) the Executive, in carrying out his duties hereunder,
has been guilty of gross neglect or gross misconduct, resulting in
either case in material harm to the Company, or (iv) the Executive
fails to carry out his duties in gross dereliction of duty and, after
receiving notice to such effect from the Board of Directors, the
Executive fails to cure the existing problem within 30 days.
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(b) Death. In the event of the death of the Executive, this
Agreement [other than this Section 6(b)] shall terminate on the date of
death and the estate of the Executive shall be entitled to (i) the
Executive's Base Salary through the end of the month in which he died,
(ii) a cash payment equal to the pro rata portion (calculated through
the end of the month in which he died) of the annual bonus, if any, due
the Executive in respect of the calendar year in which his death
occurs, and (iii) a continuation, for one year, of the Executive's most
recent Base Salary. In the event of such termination due to death, all
other rights and benefits the Executive (or his estate) may have under
the employee and/or group or executive benefit plans and programs of
the Company, generally, as permitted by law, shall be determined in
accordance with the terms and conditions of such plans and programs.
(c) Disability.
(1) For purposes of this Agreement, "Disability"
shall mean the inability or incapacity of the Executive for
six months to perform the duties and responsibilities related
to the job or position with the Company described in Section
4(a), and "the date on which the Disability occurs" shall mean
the first day following such six month period. Such inability
or incapacity shall be documented to the reasonable
satisfaction of the Board of Directors by appropriate
correspondence from registered physicians reasonably
satisfactory to the Board of Directors.
(2) In the event the Executive suffers a Disability,
this Agreement (other than this Section 6(c) and Sections 7
and 8) shall terminate on the date on which the Disability
occurs and the Executive shall be entitled to (i) his Base
Salary through the end of the month in which his employment is
terminated due to the Disability, (ii) a cash payment equal to
the pro rata portion (calculated through the end of the month
in which his employment is terminated due to Disability) of
the annual bonus, if any, due the Executive in respect of the
calendar year in which his Disability occurs, and (iii) a
continuation, for one year, of the Executive's most recent
Base Salary.
(d) Voluntary Termination. The Executive may voluntarily
terminate his employment under this Agreement at any time by providing
at least 90 days' prior written notice to the Company. In such event,
the Executive shall be entitled to receive his Base Salary until the
date his employment terminates and all other rights and benefits the
Executive may have under the employee and/or group or executive benefit
plans and programs of the Company, generally, shall be determined in
accordance with the terms and conditions of such plans and programs.
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(e) Constructive Termination.
(1) If the Company (i) terminates the employment of
the Executive other than for Due Cause or because of a
Disability, (ii) materially changes the Executive's function,
duties, or responsibilities, which change would cause the
Executive's position with the Company to become of less
dignity, responsibility, importance or scope than the position
and responsibilities held by the Executive immediately prior
to such change, (iii) decreases the Executive's Base Salary
below the level provided for by the terms of Section 5(a) or
reduces the employee benefits and perquisites below the level
provided for by the terms of Section 5(b) (other than as a
result of any amendment or termination of any employee and/or
group or executive benefit plan, which amendment or
termination is applicable to all executives of the Company),
or (iv) fails prior to the effectiveness of any succession
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to cause any successor to all or
substantially all of the 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 if no such succession had taken place,
then any such action by the Company, unless consented to in
writing by the Executive, shall be deemed to be a constructive
termination by the Company of the Executive's employment
("Constructive Termination").
(2) In the event of a Constructive Termination, this
Agreement (other than this Section 6(e) and Sections 7 and 8)
shall terminate on the date of Constructive Termination and
the Executive shall be entitled to (i) his Base Salary through
the end of the month in which the Constructive Termination
occurs, (ii) an amount equal to twice the Executive's most
recent Base Salary, and (iii) an amount equal to the sum of
the annual bonuses paid the Executive in each of the three
calendar years prior to the calendar year in which the
Constructive Termination occurs divided by three.
(3) Any amount payable to the Executive pursuant to
section 6(e)(2)(i) above shall be paid on the last day of the
month in which the Constructive Termination occurs. Any
amounts payable to the Executive pursuant to Sections
6(e)(2)(ii) or 6(e)(2)(iii) above shall be paid in one cash
payment within 30 days after the Constructive Termination
occurs.
(f) Termination from Change in Control.
(1) In the event any of the following occurs with
respect to the Company: (i) any individual, corporation,
partnership, group, association or other entity or "person",
as such term is defined in Section 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), is or becomes the
"beneficial owner" (as defined
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in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act), directly or indirectly, of outstanding
securities of the Company having fifty percent (50%) or more
of the voting power of all classes of securities of the
Company having the right to vote at elections of directors,
(ii) the membership of the Board of Directors of the Company
is changed as a result of a contested election for Directors
so that the nominees for Directors in such election designated
by the then existing Board of Directors of the Company
together with the members of the existing Board of Directors
previously proposed by Management but not up for re-election
fail to constitute a majority of the persons comprising the
Board of Directors following such election, or (iii) merger,
liquidation, dissolution, consolidation, reorganization or
reverse stock split (as a result of any of which there is a
material change in the control of the Company), then any such
event shall be deemed to be a "Change in Control." In the
event a Constructive Termination occurs during or after a
Change in Control, a "Termination from Change in Control"
shall be deemed to have occurred.
(2) In the event of a Termination from Change in
Control, then, in lieu of the amount provided in Section
6(e)(2)(ii) above, the Executive shall be entitled to an
amount equal to three times the Executive's most recent Base
Salary. Such amount shall be paid in one cash payment within
30 days after the Termination from Change in Control shall
have occurred.
7. Effect of Death after Disability, Constructive Termination or
Termination from Change in Control. In the event of the death of the Executive
following Disability, Constructive Termination, or Termination from Change in
Control, any amounts owed pursuant to Sections 6(c)(2), 6(e)(2) and 6(f)(2) to
the Executive prior to his death shall continue to be owing and shall be paid to
the estate of the Executive.
8. Continuation of Rights under Plans. In the event of the Executive's
Disability, all rights and benefits the Executive may have under the employee
and/or group or executive benefit plans and programs of the Company, generally,
as permitted by law, shall be determined in accordance with the terms and
conditions of such plans and programs as though the Executive were still an
employee of the Company until the end of the period of continuation of the Base
Salary.
9. Notices. All notices, requests, demands and other communications
given under or by reason of this Agreement shall be in writing and shall be
deemed sufficiently given if delivered in person, sent by certified mail (return
receipt requested), postage prepaid, or delivered by a recognized commercial
courier to the following addresses (or to such other address as a party may
specify by notice pursuant to this provision):
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(a) To the Company:
The Home-Stake Oil & Gas Company
00 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
Executive Vice President
(b) To the Executive:
Xxxxxx X. Xxxxxxx
0000 X. Xxxxxxxx Xxx.
Xxxxx, Xxxxxxxx 00000
10. Controlling Law and Performability. The execution, validity,
interpretation and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled by arbitration in Tulsa,
Oklahoma. In the proceeding, the Executive shall select one arbitrator, the
Company shall select one arbitrator and the two arbitrators so selected shall
select a third arbitrator. The decision of a majority of the arbitrators shall
be binding on the Executive and the Company. Should one party fail to select an
arbitrator within five days after notice of the appointment of an arbitrator by
the other party or should the two arbitrators selected by the Executive and the
Company fail to select an arbitrator within ten days after the date of the
appointment of the last of such two arbitrators, any person sitting as a Judge
of the United States District Court for the Northern District of Oklahoma, upon
application of the Executive or the Company, shall appoint an arbitrator to fill
such space with the same force and effect as though such arbitrator had been
appointed in accordance with the second sentence of this Section 11. Any
arbitration proceeding pursuant to this Section 11 shall be conducted in
accordance with the rules of the American Arbitration Association. Judgment may
be entered on the arbitrators' award in any court having jurisdiction.
12. Expenses. The Company shall pay or reimburse the Executive (or his
estate, as the case may be) for all costs and expenses (including arbitration
and court costs and attorneys fees) incurred by the Executive as a result of any
successful claim, action or proceeding arising out of, or challenging the
validity, advisability or enforceability of, this Agreement or any provision
hereof.
13. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the Executive and the Company relating to the matters contained
herein and supersedes all prior agreements and understandings, oral or written,
between the Executive and the Company with
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respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
14. Separability. If any provision of this Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a court
of last resort, the Executive and the Company shall promptly meet and negotiate
substitute provisions for those rendered or declared illegal or unenforceable to
preserve the original intent of this Agreement to the extent legally possible,
but all other provisions of this Agreement shall remain in full force and
effect.
15. Effect of Agreement. This Agreement shall be binding upon the
Executive and his heirs, executors, administrators, legal representatives and
assigns and upon the Company and its respective successors and assigns. Failure
of the Company prior to the effectiveness of any succession (whether direct or
indirect, by purchase, assignment, merger, consolidation or otherwise) to cause
any successor to all or substantially all of the 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 if
no such succession had taken place, shall entitle the Executive to certain
compensation from the Company as set forth in Section 6 of this Agreement.
16. Waiver of Breach. The waiver by either party to this Agreement of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver by such party of any subsequent breach by such other
party.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement on the date first above written.
"EXECUTIVE" "COMPANY"
THE HOME-STAKE OIL & GAS COMPANY
/s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Executive Vice President
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