EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this
“Agreement”)
is
dated the 29th day of April, 2008 (the “Effective
Date”),
by
and between Platinum Energy Resources, Inc., a Delaware corporation (the
“Company”),
and
Xxxxxx X. Xxxxx, Xx. (the “Executive”).
WITNESSETH:
WHEREAS,
on
March 18, 2008, the Company and its wholly owned subsidiary, Permsub, Inc.,
a
Delaware corporation (“Merger
Sub”),
entered into an Agreement and Plan of Merger among the parties (the
“Merger
Agreement”)
with
Maverick Engineering, Inc., a Texas corporation (“MEI”)
and
Xxxxxx X. Xxxxx Services, LLC, as stockholder representative, pursuant to which
Merger Sub will merger with and into MEI (the “Merger”);
WHEREAS,
it is a
condition to the Merger that the Company and the Executive enter into this
Agreement pursuant to which the Company will employ Executive as Chief Operating
Officer of the Company and as President of MEI; and
WHEREAS,
the
Company desires to employ the Executive, and the Executive wishes to accept
such
employment with the Company, upon the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE, in
consideration of the mutual promises and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment.
The
Company hereby employs the Executive as Chief Operating Officer of the Company
and as President of MEI, and the Executive hereby accepts such employment by
the
Company, upon the terms and conditions hereinafter set forth.
2. Employment
Period.
Subject
to the provisions of Section
7
hereof,
the term of the employment shall be for an initial period commencing on the
Effective Date and ending on the earlier to occur of (i) the fifth anniversary
of the Effective Date, or (ii) the occurrence of a Parent Exit Event (as defined
in Section 11 below). This Agreement and the term of the employment hereunder
may be renewed for additional periods to be mutually determined by the parties
hereto in writing, on the same terms and conditions as set forth herein or
upon
such other terms and conditions as they may mutually determine in writing.
The
term of the Executive’s employment hereunder, including any continuation of the
original term, is hereinafter referred to as the “Employment
Period.”
3. Compensation.
(a) For
performance of all services rendered under this Agreement, the Company shall
pay
the Executive a base salary at an annual rate of $200,000 payable in
installments in accordance with the Company’s customary payroll practices, but
no less frequently than once each month. The Company shall withhold from any
and
all payments required to be made to the Executive pursuant to this Agreement
all
federal, state, local and/or other taxes that are required to be withheld in
accordance with applicable statutes and/or regulations.
(b) In
addition to base salary, the Executive shall be eligible for a performance
bonus
in such amount and payable at such time or times as the Board of Directors
of
the Company (the “Board”),
or
any compensation committee thereof, may in its sole discretion determine, which
bonus may be pursuant to the incentive compensation plan of the Company or
otherwise as may be determined by the Board or committee thereof. The actual
amount of any bonus, if any, shall be determined by the Board or committee
in
its sole discretion. To be eligible for any performance bonus, or any other
bonus, Executive must be in the employ of Company upon date of
payment.
(c) On
the
Effective Date, the Executive shall receive from the Company an initial grant
of
stock options pursuant to the Company’s 2006 Long-Term Incentive Compensation
Plan (the “Plan”)
to
purchase 50,000 shares of common stock of the Company in the form of
non-qualified stock options. On each of the four succeeding anniversaries of
the
Effective Date during the Employment Period, Executive shall receive an
additional 50,000 non-qualified stock options pursuant to the Plan. All of
such
stock options: (i) shall entitle the Executive to purchase shares of the Company
common stock at an exercise price equal to the Fair Market Value (as defined
in
the Plan)per share of the Company’s common stock on the date of grant; and (ii)
shall vest with respect to 10,000 of the shares on each anniversary of the
grant
until all shares represented by the stock options are granted in accordance
with
the following schedule:
|
Date
|
Options
Granted
|
Options
Vested
|
Cumulative
Number of Vested Options
|
|
April
29, 2008
|
50,000
|
0
|
0
|
|
April
29, 2009
|
50,000
|
10,000
|
10,000
|
|
April
29, 2010
|
50,000
|
20,000
|
30,000
|
|
April
29, 2011
|
50,000
|
30,000
|
60,000
|
|
April
29, 2012
|
50,000
|
40,000
|
100,000
|
|
April
29, 2013
|
0
|
50,000
|
150,000
|
|
April
29, 2014
|
0
|
40,000
|
190,000
|
|
April
29, 2015
|
0
|
30,000
|
220,000
|
|
April
29, 2016
|
0
|
20,000
|
240,000
|
|
April
29, 2017
|
0
|
10,000
|
250,000
|
and
(iii)
shall expire upon the tenth anniversary of the date of the grant of such
options, or any later date made applicable by the terms of the Plan. A form
of
stock option award agreement is attached hereto as Exhibit
A,
which
Executive agrees to execute and deliver to the Company on the Effective
Date.
2
(d) Nothing
contained in this Agreement shall be interpreted as a guarantee of a salary
increase or annual or other bonus. No termination or amendment of the Plan
will
relieve the Company of its obligations hereunder with respect to the stock
options to be granted pursuant to this Agreement.
(e) The
compensation set forth in this Section
3
shall
constitute total compensation for the Executive as an officer, director or
employee of the Company and any of its subsidiaries, including MEI.
4.
Duties.
The
Executive shall be employed as Chief Operating Officer of the Company and as
President of MEI, and shall have such duties and responsibilities on behalf
of
the Company and MEI as are customarily performed by individuals holding such
positions in the oil and gas and engineering industries, respectively. The
Executive shall also perform such duties and responsibilities as set forth
in
the bylaws of the Company or as are assigned or delegated to him by the Board
or
its designee. Executive shall report directly to the board of directors of
the
Company. The Executive shall devote his entire working time, attention and
energy exclusively to the business of the Company and MEI and shall cooperate
fully with the Board in the advancement of the best interests of the Company.
The Executive agrees not to engage in any activities outside of the scope of
the
Executive’s employment that would detract from, or interfere with, the
fulfillment of his responsibilities or duties under this Agreement. The
Executive agrees that the Executive will not serve as a director or the
equivalent position of any company or entity, and will not render services
of a
business, professional or commercial nature to any other person or firm, without
the prior written consent of the Board. If elected as a director of the Company
or any of its subsidiaries, the Executive agrees to fulfill the duties of such
directorships without additional compensation.
5. Expenses.
Subject
to compliance by the Executive with such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Company , the Executive
is authorized to incur reasonable expenses in the performance of his duties
hereunder in furtherance of the business and affairs of the Company, and the
Company will reimburse the Executive for all such reasonable expenses, upon
the
presentation by the Executive of an itemized account satisfactory to the Company
in substantiation of such expenses when claiming reimbursement.
6. Employee
Benefits; Vacations.
The
Executive shall be eligible to participate in such life insurance, medical
and
other employee benefit plans of the Company that may be in effect from time
to
time, to the extent he is eligible under the terms of those plans, on the same
basis as other similarly-situated executive officers of the Company. The Company
may from time to time modify or eliminate any or all benefits extended or
provided in its sole discretion. The Executive shall be entitled to four weeks
paid vacation per year, to be taken in accordance with the policies of the
Company in effect from time to time, as determined by the Board.
7. Termination.
Upon
termination of the Executive’s employment, the Executive shall be entitled to
any earned but unpaid base salary, as well as the additional benefits provided
below in this Section 7. All capitalized terms used in this Section
7
and not
previously defined are defined
below in
Section
11.
3
(a) In
the
event that the Executive’s employment is terminated by the Company for reasons
other than Cause or in the event that Executive resigns his employment for
Good
Reason, the Executive will be provided a severance package which shall consist
of a continuation for a period of eighteen (18) months following the date of
termination of (A) salary under Section
3(a),
payable
in accordance with the Company's customary payroll practices,
and (B)
employee benefits as provided under Section
6.
Executive shall also be paid an amount equal to the prorated portion of the
performance bonus paid to him, if any, in the last full fiscal year of his
employment by the Company. The Executive and the Company agree and stipulate
that the foregoing severance benefit is intended to fully compensate Executive
for the consequences suffered by him in the event of a termination of his
employment hereunder by the Company for reasons other than Cause or by the
Executive with Good Reason, which consequences are uncertain and difficult
to
prospectively determine, Such severance is not a penalty, and shall not be
subject to reduction in the event that Executive obtains other employment during
any period over which such severance is payable.
(b) In
the
event that the Executive’s employment is terminated by the Company for Cause or
the Executive resigns without Good Reason, the Executive will not be entitled
to
a severance package and no payments or benefits hereunder (other than payment
of
earned but unpaid base salary) shall be owing or payable by the
Company. In
the
event Employee is terminated for Cause or because of Disability, he will
promptly resign from any officer and/or director positions he may hold at the
Company or any of its subsidiaries.
(c)
In
the
event of the Executive’s death or Disability, the Company may (in the case of
Disability) terminate the Executive’s employment and its sole obligation
hereunder shall be to continue to pay to the Executive (or, in the case of
death
or incompetence, to his personal representative) his salary under Section
3(a)
hereof
for a period of twelve (12) months following the date of death or termination.
Executive shall also be paid a prorated portion of his bonus paid in the last
full fiscal year.
(d) Pursuant
to applicable tax regulations, with respect to any incentive stock options
or
nonqualified stock options granted to the Executive, in the event that the
Executive’s employment is terminated by the Company for Cause or by Executive
without Good Reason all unvested stock options will be forfeited by the
Executive and shall be cancelled. In the event that the Executive’s employment
is terminated by the Company without Cause or by Executive with Good Reason
or
in the event of a Payoff Event or Parent Exit Event (as defined below in
Section
11),
all
stock options actually granted prior to such termination date shall immediately
vest. If the Executive’s employment terminates by reason of death or Disability,
the Executive or the Executive’s personal representative will have twelve (12)
months in which to exercise any vested incentive stock options and, with respect
to vested nonqualified stock options, the Executive or the Executive’s personal
representative will have the remaining term of the option period in which to
exercise the option, and any unvested stock options as of such date of
termination shall be cancelled. Notwithstanding the provisions of this
subsection (c), in no event may any option be exercised past the expiration
date
of the option. The board of directors of Platinum may, in its sole discretion,
accelerate the vesting of any unvested options in the event of termination
of
employment. The provisions herein relating to the exercise of options in the
event of termination are intended to modify the provisions of Section 11.2
of
Platinum’s 2006 Long-Term Incentive Plan, as it may be amended (the “Plan”) with
respect to the Executive and are intended to be consistent with the stock option
award agreement issued to Executive and, in the event of any conflict, the
terms
of the stock option award agreement shall govern.
4
(e) Notwithstanding
any termination of the Executive’s employment for any reason whatsoever (with or
without Cause or Good Reason), the Executive will continue to be bound by the
provisions of the Section
8
below.
(f) In
the
event of a termination of the Executive’s employment by the Company for Cause or
by Executive without Good Reason, the Cash Flow Note (as such term is defined
in
the Merger Agreement) issued to Executive shall, in accordance with the terms
of
the Cash Flow Note, be cancelled and the Company will no longer be obligated
to
make any of the payments thereunder. In the event of a termination of the
Executive’s employment by the Company without Cause or by Executive for Good
Reason, the outstanding aggregate principal amount of the Cash Flow Note issued
to the Executive shall, in accordance with the terms of the Cash Flow Note,
become immediately due and payable in full.
(g) All
payments and benefits provided pursuant to subdivisions (a), (c) and (f) of
this
Section
7
shall be
conditioned upon the Executive’s (or, in the case of his death or incompetence,
the Executive’s personal representative’s) execution and non-revocation of a
general release substantially in the form attached hereto as Exhibit
B
at the
time of termination. The Executive’s refusal to execute such general release
shall constitute a waiver by the Executive of any and all payments and benefits
referenced in this Section
7.
(h) In
the
event the Executive materially breaches the terms of Section
8
below or
any of the terms of the general release shown as Exhibit
B,
all of
the Company’s obligations to the Executive pursuant to this Section
7
shall
terminate and be void.
8. Confidentiality,
Non-solicitation and Non-competition.
(a)
Confidentiality.
The
Company considers the protection of its confidential information and proprietary
materials to be very important. In connection with his duties, Company shall
provide Executive with Confidential Information essential and relevant to the
performance of job duties. Other than in the normal course of fulfilling
Executive’s duties to and positions with the Company, its subsidiaries and
affiliates, the Executive in return shall: (i) receive and hold all Confidential
Information absolutely secret, undisclosed, in trust and in confidence, and
shall comply with the Company’s policies and guidelines and use his best efforts
for the protection of Confidential Information; and (ii) not reveal or disclose
to any person outside the Company or use for his own benefit, whether by private
communication or by public address or publication or otherwise, any Confidential
Information without the Company’s specific written authorization or except as
required by a mandatory provision of applicable law, provided however, that
prior to any unauthorized use or disclosure of Confidential Information that
is
required by law, the Executive shall ,unless prohibited from doing so by
applicable law, use best efforts to give the Company prior notice of any
disclosure of Confidential Information required by law and shall permit and
cooperate with any effort by the Company to obtain a protective order or similar
protection for the Corporation.
5
All
Confidential Information, including originals, copies and other forms thereof,
however and whenever produced, shall be the sole property of the Company, not
to
be removed from the premises or custody of the Company, except in the normal
course of business.
(1)
“Confidential Information” shall mean the following information, whether or not
originated by the Executive that relates to the business or affairs of the
Company, its subsidiaries, or affiliates:
(i)
“Material Information” meaning any information relating to the business,
operations, capital and affairs of the Company that when released would have,
or
would reasonably be expected to have, a significant effect on the market price
or value of any of the Company’s securities (or the securities of other
companies with whom the Company may be conducting confidential negotiations).
Material information consists of both material facts and material changes
relating to the Company’s business, operations, capital and affairs and includes
developments in the Company’s business, operations, capital and affairs;
(ii)
“Business Opportunities” meaning all business ideas, prospects, proposals or
other opportunities pertaining to the lease, acquisition, exploration,
production, gathering or marketing of oil and gas and related products and
the
exploration potential of geographical areas on which oil and gas exploration
prospects are located, which are developed by the Company during the term
hereof, or originated by any third party and brought to the attention of the
Company during the term hereof, together with information relating thereto
(including, without limitation, geological and seismic data and interpretations
thereof, whether in the form of maps, charts, logs, seismographs, calculations,
summaries, memoranda, opinions or other written or charted means);
(iii)
“Proprietary Information” meaning any and all records, notes, memoranda, data,
ideas, patterns, processes, methods, techniques, systems, formulas, patents,
models, samples, specimens, devices, programs, computer software, writings,
research, personnel information, plans, customer lists, supplier lists, pricing
materials and policies, purchasing methods and policies, seismic data, estimated
or actual reserve amounts, potential drilling locations or any other information
of whatever nature in the possession or control of the Company which has not
been published or disclosed to the general public, over which the Company
exercises reasonable efforts to maintain in confidence or which is the type
of
information that a similarly situated company would have an expectation would
remain in confidence, and which gives to the Company an opportunity to obtain
an
advantage over competitors who do not know of or currently use such confidential
information.
The
above
notwithstanding, information that:
(A) was
at the time of receipt by a third person otherwise known to that third person
from a source other than the Executive; (B) has been published or is otherwise
within the public domain, or is generally known to the public at the time of
its
disclosure; or (C) becomes known or available to the recipient from a source
other than the Executive, is not Confidential Information
hereunder.
6
(2)
Executive acknowledges and agrees that: (a) he will receive or will become
eligible to receive substantial benefits and compensation as a result of his
employment by the Company, which benefits and compensation are offered to him
only because and on condition of his willingness to commit his best efforts
and
loyalty to the Company, including abiding by the terms and restrictions in
this
Section
8;
(b) as
a result of the acquisition of Confidential Information, the Executive will
occupy a position of trust and confidence with the Company and its subsidiaries,
and affiliates; (c) the Business Opportunities constitute the exclusive property
of the Company; (d) the Executive’s position of trust and knowledge of
Confidential Information would enable the Executive to put the Company at a
significant competitive disadvantage if the Executive breaches the restrictions
in this Section
8;
(e)
irreparable damage would result to the Company if the provisions of this
Section
8
hereof
are not specifically enforced, and the Company shall be entitled to any
appropriate legal, equitable, or other remedy, including injunctive relief,
in
respect of any failure or continuing failure on his part to comply with Section
8: and (g) any breach of this Section
8
shall
constitute grounds for termination of the Executive’s employment for Cause.
(b)
Non-solicitation.
The
Executive covenants and agrees that he will not at any time during his
employment by the Company and for a period of eighteen (18) months thereafter
(the “Restricted
Period”),
solicit, employ or otherwise, engage, as an employee, independent consultant
or
otherwise, any person who is an employee of the Company as of the Executive’s
last day of employment with the Company, or in any manner induce or attempt
to
induce any employee of the Company to terminate his or her employment with
the
Company (as the case may be), or (iii) except as otherwise permitted after
the
expiration of the Restricted Period, at any time during or after the termination
of the Executive's employment by the Company, interfere with the relationship
of
the Company with any person, including any person who at any time during the
Employment Period was an employee of the Company.
(c)
Non-competition.
While
employed by the Company and for a period of eighteen (18) months thereafter,
Executive will not compete with the Company in any State in the United States
in
which the Company is, on the date hereof or on the date of termination, engaged
in business, either in the form of ongoing business operations or active efforts
to establish business operations. In accordance with this restriction regarding
scope of activity, but without limiting its terms, while employed by the
Company, Executive will not: (i) enter into or engage in any business which
competes with the Company’s business or that will result in the use or
disclosure of the Company’s Confidential Information; (ii) solicit customers,
business, patronage or orders for, or sell, any products or services in
competition with, or for any business that competes with, the Company’s
business; (iii) divert, entice or otherwise take away any customers, business,
patronage or orders of the Company or attempt to do so; or (iv) promote or
assist, financially or otherwise, any person, firm, association, partnership,
corporation or other entity engaged in any business which competes with the
Company’s business. The covenant of the Executive contained in Section 8(c) is
referred to herein as the Executive’s “Non-Compete
Covenant.”
7
The
foregoing notwithstanding, Executive may, without breaching or violating the
Executive’s Non-Compete Covenant: (i) at any time following termination of
Executive’s employment by the Company (but before the end of the Restricted
Period), acquire, invest in, own and dispose of interests in minerals, royalty
interests, overriding royalty interests, non-operating working interests and
other non-operating interests in individual oil and gas properties or (ii)
subject to the compliance with the Company’s Code of Ethics, at any time during
or after Executive’s employment by the Company, directly or indirectly, acquire,
invest in, own and dispose of publicly traded securities (in the aggregate
being
less than 3% of the total outstanding amount of any such securities) of
companies other than the Company engaged in one or more competing business
of
the Company; provided however that during Executive’s employment Executive shall
have no agreements, arrangements or other relationships with such company other
than consumer agreements or community charitable organization relationships
of
the sort that such companies routinely maintain with members of the public
at
large, meaning that nothing herein shall prevent the Executive from, for
example, holding a credit card issued by or soliciting a charitable contribution
from a publicly traded oil company.
The
Company acknowledges that Executive, through his interest in Xxxxx Mineral
Partners, owns certain non-operating interests in individual oil and gas
properties as of the date hereof (the “Mineral
Properties”);
such
ownership is within the exception provided by the preceding paragraph.
(d)
Indirect
competition.
For the
purposes of Sections
8(b)
and
8(c),
but
without limitation thereof, Executive will be in violation thereof if Executive
engages in any or all of the activities set forth therein directly as an
individual on Executive’s own account, or indirectly as a partner, joint
venturer, employee, agent, salesperson, consultant, officer and/or director
of
any firm, association, partnership, corporation or other entity.
(e)
Company.
For the
purposes of this Section
8,
the
Company shall include any and all direct and indirect subsidiaries of the
Company for which Executive worked or had responsibility at the time of
termination of his employment and at any time during the two (2) year period
prior to such termination.
(f)
Survival.
Notwithstanding the termination of this Agreement and the Executive’s
employment, the provisions of this Section
8
shall
survive such termination.
(g)
Enforcement.
It is
the desire and intent of the parties hereto that the provisions of this
Agreement be enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, to the extent that a restriction contained in this Agreement is
more restrictive than permitted by the laws of any jurisdiction where this
Agreement may be subject to review and interpretation, the terms of such
restriction, for the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws of such
jurisdiction and such restriction will be deemed to have been revised
accordingly herein.
9. Cooperation
with the Company after Termination.
Following termination of this Agreement for any reason (with or without Cause
or
Good Reason), the Executive shall fully cooperate with the Company in all
matters relating to the winding up of the Executive's services under this
Agreement and the orderly transfer of such matters to any person designated
by
the Company and shall promptly return to the Company all of the property of
the
Company (including any Confidential Information, and any copies thereof) and
any
other materials or information related to the Company, including all work
product, whether finished or unfinished, prepared or produced by the Executive
for the benefit of the Company under this Agreement.
8
10. No
Conflict.
The
Executive hereby represents and warrants to the Company that (a) this Agreement
constitutes the Executive’s legal and binding obligation, enforceable against
him in accordance with its terms, (b) his execution and performance of this
Agreement does not and will not breach any other agreement, arrangements,
understanding, obligation of confidentiality or employment relationship to
which
he is a party or by which he is bound, and (c) during the Employment Period,
he
will not enter into any agreement, either written or oral, in conflict with
this
Agreement or his obligations hereunder.
11. Definitions.
(a) The
term
“Cause” shall mean: (i) the Executive’s failure or refusal to perform the
Executive’s duties or carry out the reasonable and lawful directions of the
Board (other than as a result of physical or mental illness, accident or injury)
or any other material breach of this Agreement by the Executive (other than
Section
8
which is
covered by (viii) below); (ii) dishonesty, misconduct or illegal conduct by
the
Executive in connection with the Executive’s employment with the Company; (iii)
the Executive’s conviction of, or plea of guilty or nolo contendere to, a charge
of commission of a felony or any misdemeanor involving moral turpitude, or
a
material violation by the Executive of federal or state securities laws as
determined by a court or other governmental body of competent jurisdiction;
(iv)
the Executive’s unlawful possession, use, sale or distribution of narcotics or
other controlled substances; (v) a violation by the Executive of any Company
policy or procedure resulting in material and demonstrable harm to the Company
including, without limitation, a material violation of the Company’s Code of
Ethics; (vi) any willful act or omission by Executive in the scope of his
employment by the Company which in the reasonable and good faith judgment of
the
Board is of the type of act of omission that could reasonable result (A) in
the
assessment of a civil or criminal penalty against the Executive, the Company
or
its affiliates, (B) in a violation of any material foreign or United States
federal, State, or local law or regulation having the force of law, or (C)
is
materially injurious to the Company or any of its affiliates; (vii) any
intentional misrepresentation by the Executive of a material fact to, or
intentional concealment by the Executive of a material fact from, (A) the Board
or (B) the chief executive officer or any other member of senior management
of
the Company, where the misrepresentation or concealment results in the
reasonable and good faith judgment of the Board in material and demonstrable
harm to the Company (including, for example, the Company’s materially violating
federal or state securities laws); and (viii) any breach by the Executive of
the
provisions of Section
8
hereof;
provided, however, in the case of clause (i) above, the Company shall be
required to give the Executive thirty (30) calendar days prior written notice
of
its intention to terminate the Executive for Cause and the Executive shall
have
the opportunity during such thirty (30) day period to cure such event if such
event is capable of being cured; provided, further, that in the event that
the
Executive terminates his employment with the Company during such thirty (30)
day
period for any reason, other than for Good Reason the basis of which occurred
prior to the date of notice of intention to terminate, such termination shall
be
considered a termination for Cause.
9
(b) The
term
“Disability” shall mean if the Executive is incapacitated or disabled by
accident or sickness or otherwise so as to render him mentally or physically
incapable of performing the services required to be performed by him under
this
Agreement for a period of 90 consecutive days or longer, or for an aggregate
of
90 days during any twelve-month period.
(c) The
term
“Good Reason” shall mean: (i) any material adverse change in the Executive’s
title or any material diminution in the Executive’s authority or
responsibilities taken as a whole; (ii) the imposition of a requirement upon
Executive that he relocate his residence from Victoria County, Texas or that
his
normal place of report is other than a location in Victoria County, Texas;
and
(iii) any material breach by the Company of its obligations under this
Agreement; provided that, in any case, the Executive provides the Company with
written notice of the Executive’s intention to terminate the Executive’s
employment for Good Reason within thirty (30) days after Executive becoming
aware of the occurrence of the event that the Executive believes would
constitute Good Reason, gives the Company an opportunity to cure for thirty
(30)
days following receipt of such notice from the Executive, if the event is
capable of being cured or, if not capable of being cured, to have the Company’s
representatives meet with the Executive and the Executive’s counsel to be heard
regarding whether Good Reason exists for the Executive to terminate the
Executive’s employment with the Company.
(d) The
term
“Parent Exit Event” shall mean a Change In Control Event as defined in the
Plan.
(e) The
term
“Payoff Event” shall have the meaning given it in the Cash Flow Note issued to
the Executive pursuant to the Merger Agreement.
(f) The
term
“person” shall mean any individual, corporation, firm, association, partnership,
other legal entity or other form of business organization.
12. Successors
and Assigns; Entire Agreement; No Assignment.
This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors or heirs, distributees and personal representatives.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersede other prior and contemporaneous arrangements
or understandings with respect thereto. The Executive may not assign this
Agreement without the prior written consent of the Company.
13. Notices.
All
notices and other communications required or permitted hereunder or necessary
or
convenient in connection herewith shall be in writing and shall be deemed to
have been given when hand-delivered, mailed by registered or certified mail
(three days after deposited), faxed (with confirmation received) or sent by
a
nationally recognized courier service, as follows (provided that notice of
change of address shall be deemed given only when received):
10
If
to the
Company:
Platinum
Energy Resources, Inc.
00
Xxxxxxxx Xxxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxx Xxxxxxxx
Facsimile:
[ ]
With
a
copy to
Xxxxx
Xxxxxx & Xxxxx P.C.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
If
to the
Executive:
Xx.
Xxxxxx X. Xxxxx, Xx.
0000
Xxxx
Xxxx Xxxxx
Xxxx,
Xxxxx 00000
or
to
such other names and addresses as the Company or the Executive, as the case
may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
14. Changes;
No Waiver; Remedies Cumulative.
The
terms and provisions of this Agreement may not be modified or amended, or any
of
the provisions hereof waived, temporarily or permanently, without the prior
written consent of each of the parties hereto. Either party’s waiver or failure
to enforce the terms of this Agreement or any similar agreement in one instance
shall not constitute a waiver of its or his rights hereunder with respect to
other violations of this or any other agreement. No remedy conferred upon the
Company or the Executive by this Agreement is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall
be in
addition to any other remedy given hereunder or now or hereafter existing at
law
or in equity.
15. Governing
Law; Jurisdiction.
This
Agreement and (unless otherwise provided) all amendments hereof and waivers
and
consents hereunder shall be governed by the law of the State of Texas, without
regard to the conflicts of law principles. Each party hereby submits himself
and
itself, for the sole purpose of this Agreement and any controversy arising
hereunder and thereunder, to the exclusive jurisdiction of the state and Federal
courts located in the State of Texas, and waives any objection (on the grounds
of lack of jurisdiction, forum non conveniens or otherwise) to the exercise
of
such jurisdiction over it by any such court in the State of Texas. Each party
hereby agrees that service of process may be served on him or it by certified
mail, return receipt requested, or overnight courier, sent to address of such
entity listed in Section
13
above
(or such other address as any such party notifies the others thereof by written
notice). THE PARTIES HEREBY EXPRESSLY WAIVE THEIR RIGHTS TO HAVE A JURY
TRIAL.
16. Severability.
The
Executive and the Company agree that should any provision of this Agreement
be
judicially determined invalid or unenforceable, that portion of this Agreement
may be modified to comply with the law. The Executive and the Company further
agree that the invalidity or unenforceability of any provision of this Agreement
will not affect the validity or enforceability of its remaining
provisions.
17. Headings;
Counterparts.
All
section headings are for convenience only. This Agreement may be executed in
several counterparts, each of which is an original.
11
IN
WITNESS WHEREOF, the
parties have executed this Employment Agreement as of the date first above
written.
| PLATINUM ENERGY RESOURCES, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name: Xxxxx Xxxxxxxx |
||
| Title: Chief Executive Officer | ||
| /s/ Xxxxxx X. Xxxxx | ||
|
Xxxxxx X. Xxxxx |
||
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