EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective January 1, 2008 (the “Effective Date”), between XXXXXXXXX
ENERGY, INC., a Delaware corporation (the “Company”), and
EXECUTIVE’S FIRST NAME, M.I., LAST NAME, an individual (the “Executive”).
WITNESSETH :
WHEREAS, the Company and the Executive desire to set forth the terms of their agreements
relating to the employment of Executive by the Company; and
NOW, THEREFORE, in consideration of the mutual promises herein contained, the Company and the
Executive agree as follows:
1. Employment. The Company hereby employs the Executive and the
Executive hereby accepts such employment subject to the terms and conditions contained in this
Agreement. The Executive is engaged as an employee of the Company and the Executive and the
Company do not intend to create a joint venture, partnership or other relationship that might
impose a fiduciary obligation on the Executive or the Company in the performance of this Agreement,
other than as an officer of the Company.
2. Executive’s Duties. The Executive is employed on a full-time basis.
Throughout the term of this Agreement, the Executive will use his/her best efforts and due
diligence to assist the Company in the objective of achieving the most profitable operation of the
Company and the Company’s affiliated entities consistent with developing and maintaining a quality
business operation. The Executive shall also devote all of Executive’s working time, attention and
energies to the performance of Executive’s duties and responsibilities under this Agreement.
2.1 Specific Duties. During the term of this Agreement, the Executive will serve as
the Executive’s Job Title for the Company. The Executive will perform all of the services
required to fully and faithfully execute the position to which the Executive is appointed
and such other services as may be assigned by the Company’s Board of Directors in their
sole discretion. The Executive agrees to use the Executive’s best efforts to perform all
of the services required to fully and faithfully execute the offices and positions to which
the Executive is appointed and elected. In addition, the precise duties to be performed by
Executive may be changed or curtailed in the sole discretion of the Board of Directors of
the Company.
2.2 Rules and Regulations. From time to time, the Company may issue policies and
procedures applicable to employees and the Executive including an employment policies
manual. The Executive agrees to comply with
such policies and procedures, except to the extent such policies are inconsistent with
this Agreement. Such policies and procedures may be supplemented, modified, changed or
adopted without notice in the sole discretion of the
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Company at any time. In the event of a conflict between such policies and procedures and
this Agreement, this Agreement will control unless compliance with this Agreement will
violate any law or regulation applicable to the Company or its affiliated entities.
3. Other Activities. The Executive shall not engage in any business activity that in the
judgment of the Board conflicts with the Executive’s duties hereunder, whether or not such activity
is pursued for gain, profit, or other pecuniary advantage. In addition, except for the activities
permitted under paragraph 3.1 of this Agreement or approved by the Board of Directors in writing,
the Executive will not: (a) engage in activities which require such substantial services on the
part of the Executive that the Executive is unable to perform the duties assigned to the Executive
in accordance with this Agreement; (b) serve as an officer or director of any publicly held entity;
or (c) directly or indirectly invest in, participate in or acquire an interest in any oil and gas
business, including, without limitation, (i) producing oil and gas, (ii) drilling, owning or
operating oil and gas leases or xxxxx, (iii) providing services or materials to the oil and gas
industry, (iv) marketing or refining oil or gas, or (v) owning any interest in any corporation,
partnership, company or entity which conducts any of the foregoing activities. The limitations in
this paragraph 3 will not prohibit an investment by the Executive in publicly traded securities.
The Executive is not restricted from maintaining or making investments, or engaging in other
businesses, enterprises or civic, charitable or public service functions if such activities,
investments, businesses or enterprises do not result in a violation of clauses (a) through (c) of
this paragraph 3. Notwithstanding the foregoing, the Executive will be permitted to participate in
the activities set forth in Section 3.1 that will be deemed to be approved by the Company, if such
activities are undertaken in strict compliance with this Agreement.
3.1 Royalty Interests and Gifts. The foregoing restriction in clause (c) will not
prohibit the ownership of royalty interests where the Executive owns or previously owned
the surface of the land covered by the royalty interest and the ownership of the royalty
interest is incidental to the ownership of the surface estate or the ownership of royalty,
overriding royalty or working interests that are received by gift or inheritance subject to
disclosure by Executive to the Company in writing.
4. Executive’s Compensation. The Company agrees to compensate the
Executive as follows:
4.1 Base Salary. Executive will be paid a base salary (the “Base Salary”) in an
annual rate of not less Dollar Amount Dollars ($xxxx.00), which will be paid to the
Executive in installments consistent with the Company’s
customary payroll practices, beginning January 23, 2008 during the term of this
Agreement.
4.2 Bonus. In addition to the Base Salary described at paragraph 4.1 of this
Agreement, the Company may periodically pay bonus compensation to the Executive. Any bonus
compensation will be paid by separate check apart
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from Executive’s Base Salary less appropriate deductions pursuant to Internal Revenue Service
guidelines. In order to be entitled to the bonus compensation set forth herein and any future
bonuses, Executive must be an active full-time employee of the Company on the date the bonus is to
be paid. Upon notice of intent to separate employment or separation of employment for any reason
prior to the date any bonuses are paid, Executive shall not be eligible for any pro rata bonus
compensation. Executive recognizes and acknowledges that except as provided above, the award of
bonus is not guaranteed or promised in any way. Any additional bonus compensation will be at the
absolute discretion of the Company in such amounts and at such times as the Board of Directors of
the Company (or a Compensation Committee thereof) may determine.
4.3 Equity Compensation. In addition to the compensation set forth in paragraphs 4.1 and 4.2
of this Agreement, the Executive may periodically be granted awards of Company restricted stock
under and subject to the Company’s equity compensation plans (the “Equity Compensation Plans”).
Such equity compensation will vest over a four (4) year period which begins to run from the date
of each grant. In order to be entitled to the award of equity compensation, the Executive must be
an active full-time employee of the Company on the grant date. Further, the terms and provisions
of the Equity Compensation Plans control and direct the award of Company restricted stock.
4.4 Benefits. The Company agrees to extend to the Executive retirement benefits and deferred
compensation (if any and if made available) and reimbursement of reasonable expenditures. The
Company will also provide the Executive the opportunity to apply for coverage under the Company’s
medical, life and disability plans, if any. If the Executive is accepted for coverage under such
plans, the Company will provide such coverage on the same terms as is customarily provided by the
Company to the plan participants as modified from time to time. The Executive is subject to all of
the terms and provisions of the Company’s benefit plans or policies.
4.5 Paid Time Off. The Executive shall be eligible for thirty (30) days of Paid Time Off
(“PTO”) each continuous year of employment during the term of this Agreement under the Company’s
PTO policy. Such PTO shall be calculated from the Executive’s original date of hire. No
additional compensation will be paid for failure to take PTO and no PTO may be carried forward
from one twelve (12) month period to another.
4.6 Membership Dues. The Company will reimburse the Executive for: (a) the monthly dues
necessary to maintain a full membership in a club in the Oklahoma City area selected by the
Executive in an amount not to exceed Seven Hundred Fifty Dollars ($750.00) per month; and (b) the
reasonable cost of any approved business entertainment at such club. All other costs, including,
without implied limitation, any initiation costs, initial membership costs, personal use and
business entertainment unrelated to the Company will be the sole obligation of
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the Executive and the Company will have no liability with respect to such amounts.
5. Term. The employment relationship evidenced by this Agreement is an
“at will” employment relationship and the Company reserves the right to terminate the Executive at
any time with or without cause. In the absence of termination as set forth in paragraph 6 below,
this Agreement will extend for a term commencing on the Effective Date, and ending on December 31,
2009 (the “Expiration Date”). Unless the Company provides thirty (30) days prior written notice of
non-extension to the Executive, on or before the Expiration Date, the term and the Expiration Date
will be automatically extended for one (1) additional year from the Expiration Date.
6. Termination. This Agreement will continue in effect until the expiration of the term stated
in paragraph 5 of this Agreement unless earlier terminated pursuant to this paragraph 6.
6.1 Termination by Company. The Company will have the following rights to terminate
Executive’s employment:
6.1.1 Termination without Cause. The Company may terminate Executive’s
employment without Cause at any time by the service of written notice of
termination to the Executive specifying an effective date of such termination not
sooner than ten (10) days after the date of such notice (the “Termination Date”).
In the event the Executive is terminated without Cause (other than a CC Termination
under paragraph 6.3 of this Agreement), the Executive will receive as termination
compensation a lump sum payment equal to twelve (12) months Base Salary (as in
effect on the Termination Date). If on the Termination Date, the Executive is a
“specified employee” as defined in regulations under Section 409A of the Code, such
payment will commence on the first payroll payment date which is more than six
months following the Termination Date. The right to the foregoing termination
compensation set forth above is subject to the Executive’s execution of the
Company’s severance agreement which will operate as a release of all legally
waivable claims against the Company. Such payment is further conditioned upon the
Executive’s compliance with all of the provisions of
this Agreement, including all post-employment obligations.
6.1.2 Termination for Cause. The Company may terminate the employment of the
Executive hereunder at any time for Cause (as hereinafter defined) (such a
termination being referred to in this Agreement as a “Termination For Cause”) by
giving the Executive written notice of such termination, which shall take effect
immediately upon the giving of such notice to the Executive. As used in this
Agreement, “Cause” means (A) the Executive’s material breach or threatened breach
of this Agreement; (B) the Executive fails to substantially perform the
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Executive’s duties hereunder; (C) the misappropriation or fraudulent conduct by the
Executive with respect to the assets or operations of the Company or any of its
subsidiaries or affiliated companies; (D) the Executive’s willful disregard of the
instructions of the Board or the Executive’s material neglect of duties or failure to act,
other than by reason of disability or death; (E) the Executive’s personal misconduct which
substantially injures the Company; or (F) the conviction of the Executive for, or a plea
of guilty or no contest to, a felony or any crime involving fraud, theft or dishonesty. In
the event Executive’s employment is terminated for Cause, the company will not have any
obligation to provide any further payments or benefits to the Executive after the
effective date of such termination.
6.2 Termination by Executive. The Executive may voluntarily terminate his employment with or
without Cause by the service of written notice of such termination to the Company specifying an
effective date of such termination thirty (30) days after the date of such notice. The Company may
in its sole discretion, elect to waive all or any part of the 30-day notice period with no further
obligations being owed to the Executive by the Company. In the event employment is terminated by
the Executive, neither the Company nor the Executive will have any further obligations hereunder,
except for any obligations which expressly survive termination of employment including Sections 7,
8, 9, 10, 11, 12 and 13.
6.3 Termination After Change in Control. If during the term of this Agreement there is a
“Change of Control” and within one (1) year thereafter there is a CC Termination (as hereafter
defined), then the Executive will be entitled to a severance payment (in addition to any other
rights and other amounts payable to the Executive under Section 6.7 or under Company plans in
which Executive is a participant) payable in a lump sum in cash within 10 days following the CC
Termination in an amount equal to the sum of the following: (a) two (2) times the Executive’s Base
Salary for the last 12 calendar months ending immediately prior to the CC Termination and bonus
paid during such 12 month period pursuant to Section 4.2 (based on the average of the last three
years’ annual bonuses or such lesser number of years as Executive may have been employed). If the
foregoing amount is not paid within ten (10) days after the CC Termination, the unpaid amount will
bear interest at the per annum rate of 12%. The right to the foregoing termination compensation
under clause (a) above is subject to the Executive’s execution of the Company’s severance
agreement which will operate as a release of all legally waivable claims against the Company. Such payment is further
conditioned upon the Executive’s compliance with all of the provisions of this Agreement,
including all post-employment obligations. Notwithstanding the foregoing, if at the time of a CC
Termination, the Executive is a “specified employee” as defined in regulations under Section 409A
of the Code, such payment will be made on the first day which is more than six months following
the CC Termination. In connection with
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any Change of Control, the Company shall obtain the assumption of this Agreement, without
limitation or reduction, by any successor to the Company or any parent corporation of the Company.
6.3.1 Change of Control. For the purpose of this Agreement, a “Change of Control”
means the occurrence of any of the following:
(a) The acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (a “Person”), other than Executive or his affiliates or Xxx X. Xxxx or his
affiliates (the “Exempt Persons”), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 40% or more of either (i) the then
outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”). For purposes of this paragraph
(a) the following acquisitions by a Person will not constitute a Change of Control: (i)
any acquisition directly from the Company; (ii) any acquisition by the Company; (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company; or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of
paragraph (c) of this paragraph 6.3.1.
(b) The individuals who, as of the date hereof, constitute the Board of Directors
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board of Directors. Any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s shareholders, is approved by a
vote of at least a majority of the directors then comprising the Incumbent Board will be
considered a member of the Incumbent Board as of the date hereof, but any such individual
whose initial assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Incumbent
Board will not be deemed a member of the Incumbent Board as of the date hereof.
(c) The consummation of a reorganization, merger, consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business
Combination”), unless following such Business Combination: (i) the individuals and
entities who were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
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than 60% of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such corporation resulting from such
Business Combination) other than one or more of the Exempt Persons beneficially owns,
directly or indirectly, 40% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such Business
Combination.
(d) The approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
6.3.2 CC Termination. The term “CC Termination” means any of the following: (a) the
Executive’s employment is terminated by the Company other than under paragraphs 6.1.2, 6.4
or 6.5; or (b) the Executive resigns as a result of a change in the Executive’s duties or
title, a reduction in the Executive’s then current Base Salary or a significant reduction
in the Executive’s then current benefits as provided in Section 4, a relocation of more
than 25 miles from the Executive’s then current place of employment being required by the
Board of Directors or a default by the Company under this Agreement.
6.4 Incapacity of Executive. If the Executive suffers from a physical or mental condition,
which in the reasonable judgment of the Company’s Board of Directors, prevents the Executive in
whole or in part from performing the duties specified herein for a period of sixteen (16)
consecutive weeks, the Executive’s employment may be terminated by the Company, in which event, the Company will pay Executive the equivalent
of six (6) months Base Salary in effect on the date of termination. If, on the termination date,
the Executive is a “specified employee” as defined in regulations under Section 409A of the Code,
such payment will commence on the first payroll payment date which is more
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than six months following the termination date. Notwithstanding the foregoing, the amount payable
hereunder will be reduced by any benefits payable under any disability plans provided by the
Company under paragraph 4.4 of this Agreement. The right to the compensation due under this
paragraph 6.4 is subject to the execution by the Executive or the Executive’s legal representative
of the Company’s severance agreement which will operate as a release of all legally waivable
claims against the Company. In applying this section, the Company will comply with any applicable
legal requirements, including the Americans with Disabilities Act.
6.5 Death of Executive. If the Executive dies during the term of this Agreement, Executive’s
employment will terminate without compensation to the Executive’s estate except: (a) the
obligation to continue the Base Salary payments under paragraph 4.1 of this Agreement for twelve
(12) months after the effective date of such termination.
6.6 Effect of Termination. The termination of Executive’s employment will terminate all
obligations of the Executive to render services on behalf of the Company. The Executive will
maintain the confidentiality of all information acquired by the Executive during the term of his
employment in accordance with paragraph 7 of this Agreement and the Executive shall comply with
all other post employment requirements including paragraphs 7, 8, 9, 10, 11, 12 and 13. Except as
otherwise provided in this paragraph 6, no accrued bonus, severance pay or other form of
compensation will be payable by the Company to the Executive by reason of the termination of his
employment. All keys, entry cards, credit cards, files, records, financial information, furniture,
furnishings, computers, equipment, supplies and other items relating to the Company will remain
the property of the Company. The Executive will have the right to retain and remove all personal
property and effects that are owned by the Executive and located in the offices of the Company.
All such personal items will be removed from such offices no later than ten (10) days after the
effective date of termination, and the Company is hereby authorized to discard any items remaining
and to reassign the Executive’s office space after such date. Prior to the effective date of
termination, the Executive will cooperate with the Company to provide for the orderly separation
of the Executive’s employment.
6.7 Equity Compensation Provisions. Notwithstanding any provision to the contrary in any
option agreement, restricted stock agreement, plan or other agreement relating to equity based
compensation, in the event of a termination under paragraph 6.3 of this Agreement, or in the event
of a termination under paragraph 6.1.1 of this Agreement if at the time of such termination Xxx X.
Xxxx is not the Chairman and Chief Executive Officer of the Company: (a) all units, stock options,
incentive stock options, performance shares, stock appreciation rights and restricted stock granted and held by
Executive immediately prior to such termination will immediately become 100%
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vested; and (b) the Executive’s right to exercise any previously unexercised options will
not terminate until the latest date on which such option would expire but for Executive’s
termination of employment. To the extent Company is unable to provide for one or both of
the foregoing rights the Company will provide in lieu thereof a lump-sum cash payment equal
to the difference between the total value of such units, stock options, incentive stock
options, performance shares, stock appreciation rights and shares of restricted stock (the
“Equity Compensation Rights”) with the foregoing rights as of the date of Executive’s
termination of employment and the total value of the Equity Compensation Rights without the
foregoing rights as of the date of the Executive’s termination of employment. The
foregoing amounts will be determined by the Board of Directors in good faith based on a
valuation performed by an independent consultant selected by the Board of Directors and the
cash payment, if any, will be paid in a lump sum in the case of a termination under Section
6.1.1, at the same time as the severance payment is otherwise due under such Section, and
in the case of a termination under Section 6.3, at the same time the payment is due under
such Section. The right to the foregoing termination compensation under clauses (a) and
(b) above is subject to the Executive’s execution of the Company’s severance agreement
which will operate as a release of all legally waivable claims against the Company. Such
payment is further conditioned upon the Executive’s compliance with all of the provisions
of this Agreement, including all post-employment obligations.
7. Confidentiality. The Executive recognizes that the nature of the
Executive’s services are such that the Executive will have access to information which constitutes
trade secrets, is of a confidential nature, is of great value to the Company or is the foundation
on which the business of the Company is predicated. The Executive agrees not to disclose to any
person other than the Company’s employees or the Company’s legal counsel or other parties
authorized by the Company to receive confidential information (“Confidential Information”) nor use
for any purpose, other than the performance of this Agreement, any Confidential Information.
Confidential Information includes data or material (regardless of form) which is: (a) a trade
secret; (b) provided, disclosed or delivered to Executive by the Company, any officer, director,
employee, agent, attorney, accountant, consultant, or other person or entity employed by the
Company in any capacity, any customer, borrower or business associate of the Company or any public
authority having jurisdiction over the Company of any business activity conducted by the Company;
or (c) produced, developed, obtained or prepared by or on behalf of Executive or the Company
(whether or not such information was developed in the performance of this Agreement) with respect
to the Company or any assets oil and gas prospects, business activities, officers, directors,
employees, borrowers or customers of the foregoing. However, Confidential Information will not
include any information, data or material which at the time of disclosure or use was generally
available to the public other than by a breach of this Agreement, was available to the party to whom disclosed on a
non-confidential basis by disclosure or access provided by the Company or a third party, or was
otherwise developed or obtained independently by the person to whom disclosed without a breach of
this
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Agreement. On request by the Company, the Company will be entitled to a copy of any Confidential
Information in the possession of the Executive. The provisions of this paragraph 7 will survive
the termination, expiration or cancellation of Executive’s employment for a period of one (1) year
after the date of termination. The Executive will deliver to the Company all originals and copies
of the documents or materials containing Confidential Information. For purposes of paragraphs 7,
8, and 9 of this Agreement, the Company expressly includes any of the Company’s subsidiaries or
affiliates.
8. Non-Solicitation. The Executive agrees that during the Non-Solicitation
Period (as hereafter defined), Executive will not directly, either personally or by or through his
agent, on behalf of himself or on behalf of any other individual, association or entity, (i) use
any of the Confidential Information for the purposes of calling on any established customer of the
Company or soliciting or inducing any of such customers to acquire, or providing to any of such
customers, any product or service provided by the Company or any affiliate or subsidiary of the
Company; (ii) solicit, influence or encourage any established customer of the Company to divert or
direct such customer’s business to the Executive or any person or entity by which or with which the
Executive is employed, associated, affiliated or otherwise related; or (iii) solicit, divert or
attempt to solicit or divert any entity which has been identified and contacted by the Company,
either directly or through such entity’s agent(s), with respect to a possible acquisition by the
Company. For the purposes hereof, the term “Non-Solicitation Period” shall mean a period of six
(6) months after Executive’s employment ceases for any reason.
9. Non-Interference.
The Executive agrees that during the Non-Interference Period (as
hereafter defined) he will not, directly or indirectly, either personally or by or through his
agent, on behalf of himself or on behalf of any other individual, association or entity, hire,
solicit or seek to hire any employee of the Company or any affiliate or subsidiary of the Company,
or any individual who was an employee of the Company or any affiliate or subsidiary of the Company
during the twelve-month period prior to the Termination Date, or in any other manner attempt,
directly or indirectly, to persuade any such employee to discontinue his or her status of
employment with the Company or any affiliate or subsidiary of the Company or to become employed in
a business or activities likely to be competitive with the business of the Company or any affiliate
or subsidiary of the Company. For the purposes hereof, the term “Non-Interference Period” shall
mean a period of six (6) months after Executive’s employment ceases for any reason.
10. Severability. It is the desire and intent of the parties hereto that the provisions of
this Agreement be enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such provision
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in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly
drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to
such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
11. Remedies. The Executive acknowledges and understands that the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be adequately compensated
for in damages by an action at law, and that the breach or threatened breach of the provisions of
this Agreement would cause the Company or any of its Subsidiaries irreparable harm. In the event
of a breach or threatened breach by the Executive of the provisions of this Agreement, the Company
or any of its subsidiaries or affiliates shall be entitled to an injunction restraining the
Executive from such breach. In addition to the foregoing and not in any way in limitation thereof,
or in limitation of any right or remedy otherwise available, if the Executive violates any
provision of Paragraphs 7, 8 or 9 hereof, any compensation or severance payments then or thereafter
due from the Company to the Executive shall be terminated forthwith and the Company’s obligation to
pay and the Executive’s right to receive such compensation as severance payments shall terminate
and be of no further force or effect, in each case without limiting or affecting the Executive’s
obligations under such Paragraphs 7, 8 and 9 or the Company’s or its subsidiaries’ or affiliates’
other rights and remedies available at law or equity. Nothing contained in this Agreement shall be
construed as prohibiting the Company or any of its subsidiaries or affiliates from pursuing, or
limiting the Company’s or any of its subsidiaries’ or affiliates’ ability to pursue, any other
remedies available for any breach or threatened breach of this Agreement by the Executive. The
provisions of Paragraph 13 of this Agreement relating to arbitration shall not be applicable to the
Company to the extent it seeks an injunction in any court to restrain the Executive from violating
Paragraphs 7, 8 or 9 hereof.
12. Proprietary Matters.
12.1 The Executive acknowledges and agrees that the Company owns all right, title and
interest (including patent rights, copyrights, trade secret rights, trademark rights and
all other intellectual and industrial property rights) relating to any and all inventions
(whether or not patentable), works of authorship, design, know-how, ideas and information
made or conceived or reduced to practice, in whole or in part, by the Executive during the
term of this Agreement which are useful in, or directly or indirectly related to, the
business of the Company or any Confidential Information (collectively, the “Proprietary
Rights”). The Executive further acknowledges and agrees that all such Proprietary Rights
are “works made for hire” of which the Company is the author. The Executive agrees to
promptly disclose and provide all Proprietary Rights to the Company; provided, in the event
the Proprietary Rights shall not be deemed to constitute “works made for hire,” or in
the event the Executive should, by operation of law or otherwise, be deemed to retain any
rights in the Proprietary Rights, the
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Executive agrees to assign to the Company, without further consideration, the Executive’s
entire right, title and interest in and to each and every such Proprietary Right.
12.2 The Executive hereby agrees to assist Company in obtaining and enforcing United
States and/or foreign letters patent and copyright registrations covering the Proprietary
Rights and further agrees that Executive’s obligation to assist Company shall continue
beyond the termination of Executive’s employment hereunder. If Company is unable because of
Executive’s mental or physical incapacity or for any other reason to secure Executive’s
signature to apply for or to pursue any application for any United States or foreign
letters patent or copyright registrations covering inventions assigned to Company, then
Executive hereby irrevocably designates and appoints Company and its duly authorized
officers and agents as Executive’s agent and attorney-in-fact to act for and on Executive’s
behalf to execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of letters patent or copyright registrations
thereon with the same legal force and effect as if executed by Executive. Executive hereby
waives and quitclaims to Company any and all claims of any nature whatsoever which
Executive now or hereafter may have for infringement of any patent or copyright resulting
from any such application for letters patent or copyright registrations assigned hereunder
to Company. Executive will further assist Company in every lawful way to enforce any
copyrights or patents obtained, including without limitation, testifying in any suit or
proceeding involving any of the copyrights or patents or executing any documents deemed
necessary by Company, all without further consideration except as contemplated by the
immediately following sentence but at the expense of Company. If Executive is called upon
to render such assistance after termination of Executive’s employment hereunder, then
Executive shall be entitled to a fair and reasonable per diem fee (which shall not be less
than Executive’s equivalent daily Base Salary) in addition to reimbursement of any expenses
incurred at the request of Company.
13. Arbitration. Any dispute between the parties out of or related to this Agreement or the
employment relationship, whether arising during the term of this Agreement or afterwards, and
involving a claim for money damages shall be subject to binding arbitration and resolved pursuant
to the rules of the American Arbitration Association. All arbitration shall be final and binding
and shall be governed by the Federal Arbitration Act and the arbitration decision shall be
enforceable in any court of competent jurisdiction. This obligation to arbitrate shall survive even
if this Agreement shall be alleged to be rescinded or terminated. The arbitration hearing shall be
convened in Oklahoma City, Oklahoma. The Company will pay the costs and expenses of the
arbitration including, without limitation, the fees for the arbitrators.
14. Miscellaneous. The parties further agree as follows:
14.1 Time. Time is of the essence of each provision of this Agreement.
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14.2 Notices. Any notice, payment, demand or communication required or permitted to be given
by any provision of this Agreement will be in writing and will be deemed to have been given when
received by personal delivery, by facsimile, by overnight courier, or by certified mail, postage
and charges prepaid, directed to the following address or to such other or additional addresses as
any party might designate by written notice to the other party:
| To the Company: | XxxxXxxxx Energy, Inc. | |||
| 0000 X.X. Xxxxxxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||
| Attn: Xxxx X. Xxxxxxx | ||||
| To the Executive: | Executive’s First Name M.I. Last Name | |||
| Address | ||||
| City, State Zip |
14.3 Assignment. Neither this Agreement nor any of the parties’ rights or obligations
hereunder can be transferred or assigned without the prior written consent of the other parties to
this Agreement.
14.4 Construction. If any provision of this Agreement or the application thereof to any
person or circumstances is determined, to any extent, to be invalid or unenforceable, the
remainder of this Agreement, or the application of such provision to persons or circumstances
other than those as to which the same is held invalid or unenforceable, will not be affected
thereby, and each term and provision of this Agreement will be valid and enforceable to the
fullest extent permitted by law. This Agreement is intended to be interpreted, construed and
enforced in accordance with the laws of the state of Oklahoma
14.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter herein contained, and no modification hereof will be
effective unless made by a supplemental written agreement executed by all of the parties hereto.
14.6 Binding Effect; Third Party Beneficiary; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective affiliates, officers,
employees, agents, successors and assigns (including, in the case of the Company or any of its
subsidiaries or affiliated companies, the successor to the business of the Company as a result of
the transfer of all or substantially all of the assets or capital stock of the Company or any of
its subsidiaries or affiliates); provided, that the Executive may not assign this Agreement or any
of his rights or interests herein, in whole or in part, to any other person or entity without the
prior written consent of the Company.
14.7 Supercession. This Agreement is the final, complete and exclusive expression of the
agreement between the Company and the Executive
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and supersedes and replaces in all respects any prior oral or written employment
agreements. On execution of this Agreement by the Company and the Executive, the
relationship between the Company and the Executive after the effective date of this
Agreement will be governed by the terms of this Agreement and not by any other agreements,
oral or otherwise.
14.8 Non-Contravention. Executive represents and warrants to the Company that the
execution and performance of this Agreement will not violate, constitute a default under,
or otherwise give rights to any third party, pursuant to the terms of any Agreement to
which Executive is a party.
14.9 Indemnity. EXECUTIVE AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS
DIRECTORS, OFFICERS AND EMPLOYEES AND AGENTS (THE “INDEMNIFIED PARTIES”) AGAINST ANY LOSS,
CLAIM, DAMAGE, LIABILITY OR EXPENSE, AS INCURRED, (“LOSS”) TO WHICH THE INDEMNIFIED PARTIES
MAY BECOME SUBJECT OR INCUR, INSOFAR AS SUCH LOSS ARISES OUT OF OR IS BASED UPON ANY
INACCURACY IN ANY REPRESENTATION OR WARRANTY GIVEN BY EXECUTIVE IN THIS AGREEMENT AND TO
REIMBURSE THE INDEMNIFIED PARTIES FOR ANY AND ALL EXPENSES (INCLUDING THE FEES AND
DISBURSEMENTS OF COUNSEL CHOSEN BY THE INDEMNIFIED PARTIES) AS SUCH EXPENSES ARE REASONABLY
INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH INVESTIGATING, DEFENDING, SETTLING,
COMPROMISING OR PAYING ANY SUCH LOSS.
14.10 Compliance with Section 409A of the Code. This Agreement is intended to comply
with Section 409A of the Code and shall be construed and interpreted in accordance with
such intent. To the extent any benefit paid under this Agreement shall be subject to
Section 409A of the Code, such benefit shall be paid in a manner that will comply with
Section 409A, including any IRS 409A Guidance. Any provision of this Agreement that would
cause the payment of any benefit to fail to satisfy Section 409A of the Code shall have no
force and effect until amended to comply with Section 409A (which amendment may be
retroactive to the extent permitted by the IRS 409A Guidance.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective the date first
above written.
[SIGNATURES ON FOLLOWING PAGE]
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| XXXXXXXXX ENERGY, INC. |
||||
| By: | ||||
| Xxx X. Xxxx | ||||
| Chief Executive Officer | ||||
| (the “Company”) |
||||
| By | ||||
| Executive’s First M.I. Last Name | ||||
| (the “Executive”) | ||||
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