EXHIBIT 10.12
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of April 3, 1997, is made by and between
Domain Energy Corporation, a Delaware corporation hereinafter referred to as the
"Corporation", and Xxxxxxx X. Xxxxx, an employee of the Corporation or a
Subsidiary (as defined below) or Affiliate (as defined below) of the
Corporation, hereinafter referred to as "Optionee".
WHEREAS, the Corporation wishes to afford the Optionee the
opportunity to purchase shares of its Common Stock, par value $.01 per share
(the "Common Stock");
WHEREAS, the Corporation wishes to carry out the Plan (as
hereinafter defined), the terms of which are hereby incorporated by reference
and made a part of this Agreement; and
WHEREAS, the Committee (as hereinafter defined), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Corporation and its stockholders to grant the Option (as
hereinafter defined) provided for herein to the Optionee, and has advised the
Corporation thereof and instructed the undersigned officers to issue said
Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall
have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
SECTION 1.1 - AFFILIATE
"Affiliate" shall mean, with respect to the Corporation, any
corporation directly or indirectly controlling, controlled by, or under common
control with, the Corporation or any other entity designated by the Board of
Directors of the Corporation in which the Corporation or an Affiliate has an
interest.
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EXHIBIT 10.12
SECTION 1.2 - CAUSE
"Cause" shall mean, except as otherwise provided in an employment
agreement between the Corporation and the Optionee, (a) the commission of an act
of fraud or embezzlement or other willful misconduct against the Corporation or
its Affiliates (including the unauthorized disclosure of confidential or
proprietary information of the Corporation or any of its Subsidiaries which
results in material financial loss to the Corporation or any of its Affiliates),
(b) the commission by the Optionee of a felony, or (c) the willful failure to
render services to the Corporation or any of its Affiliates in accordance with
his employment which failure amounts to a material neglect of duties to the
Corporation or any of its Affiliates. A termination of Optionee by the
Corporation for Cause shall be made by delivery to Optionee of a resolution
adopted by the Board of Directors (after 30 days prior written notice to
Optionee and reasonable opportunity for Optionee to be heard before the Board
prior to such vote) finding that in the good faith business judgment of the
Board, Optionee was guilty of conduct set forth in any of clauses (a) through
(c) above and specifying the particulars thereof.
SECTION 1.3 - CHANGE OF CONTROL
"Change of Control" shall mean the occurrence of either (a) the
purchase or other acquisition by any person, entity or group (within the meaning
of section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, or
any comparable successor provisions) of persons or entities (a "Group"), other
than the FRC Entities, of (i) ownership of fifty percent (50%) or more of the
combined voting power of the Corporation's then outstanding voting securities
entitled to vote generally or (ii) all or substantially all of the direct and
indirect assets of the Corporation and its Subsidiaries or (b) any merger,
consolidation, reorganization or other business combination of the Corporation
with or into any other entity which results in a person, entity or Group other
than First Reserve or any of its Affiliates owning fifty percent (50%) or more
of the combined voting power of the surviving or resulting corporation's then
outstanding voting securities entitled to vote generally.
SECTION 1.4 - CLOSING DATE
"Closing Date" shall have the same meaning as in the Securityholders
Agreement.
SECTION 1.5 - COMMITTEE
"Committee" shall mean the Compensation Committee of the
Corporation.
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EXHIBIT 10.12
SECTION 1.6 - COMMON STOCK
"Common Stock" shall mean the Corporation's common stock, par value
$.01 per share.
SECTION 1.7 - EQUITY VALUE
"Equity Value" shall mean the sum of:
(i) all amounts actually received by Investors from time to
time on a cumulative basis through the date of determination of (A) cash
(x) through any cash dividend or other distribution on account of the
Investor Stock or (y) in connection with either (1) any disposition
(whether by way of redemption, repurchase, repayment, merger or otherwise)
of all or any part of the Investor Stock or of securities or other
non-cash property previously received by way of a dividend or other
distribution on account of the Investor Stock, but only to the extent
Investor Stock or other securities or non-cash property is so disposed and
excluding any disposition to one or more other Investors, (2) a
disposition of any or all of the assets of the Corporation or any of its
Subsidiaries, or (3) a recapitalization of the Corporation or its
Subsidiaries, or (B) securities or any other non-cash property (valued at
their fair market value) in connection with either (x) any disposition
(whether by sale, merger or otherwise) of all or any part of the Investor
Stock to a third party, but only to the extent Investor Stock is so
disposed and excluding any disposition to one or more other Investors, or
(y) any disposition of any or all of the assets of the Corporation or any
of its Subsidiaries (it being understood that for purposes of this clause
(i), the terms "disposition," "dispose," and "disposed" shall not include
the creation of a pledge, lien or other similar encumbrance unless and
until foreclosed upon); PROVIDED, that when determining the amount
actually received by Investors after delivery of a notice that the Option
will be terminated pursuant to Section 3.2(e), the amount actually
received will be deemed to include any amounts to be received by the
Investors pursuant to the transaction giving rise to the termination of
the Option (to the extent such amounts would otherwise qualify as amounts
received pursuant to clauses (A) and (B) above; plus, if applicable,
(ii) to the extent that a Public Offering has occurred and the
Equity Value is being determined prior to the fifth anniversary of the
Grant Date, an amount with respect to each unsold share of Common Stock
then owned by the Investors equal to the Trading Value thereof as of such
date.
SECTION 1.8 - FRC ENTITIES
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EXHIBIT 10.12
"FRC Entities" shall mean investment funds or other entities for
which First Reserve Corporation acts as a general and/or managing partner or in
respect of which First Reserve Corporation provides investment advice, either
directly or through entities controlled by it.
SECTION 1.9 - FIRST RESERVE OPTION
"First Reserve Option" shall mean the "Option" as defined in the
First Reserve Subscription Agreement.
SECTION 1.10 - FIRST RESERVE OPTION SHARES
"First Reserve Option Shares" shall mean the "Option Shares" as
defined in the First Reserve Subscription Agreement.
SECTION 1.11 - FIRST RESERVE OPTION SHARES INVESTMENT RETURN
"First Reserve Option Shares Investment Return" shall mean an amount
equal to (x) the Return Rate on (y) $8,000,000 plus all previously credited
First Reserve Option Shares Investment Return. The First Reserve Option Shares
Investment Return shall begin to accrue on December 31, 1996 and shall be
credited monthly in arrears on the last business day of each month commencing
January 31, 1997. The "Return Rate" equals an annual rate per annum equal to the
product of (i) 1 MINUS the Applicable Tax Rate multiplied by (ii) the lower of
(A) 8% and (B) the weighted average annual interest rate paid by the Corporation
under its principal credit facility during the fiscal quarter immediately
preceding the date on which the First Reserve Option Shares Investment Return is
being credited as "Investment." The "Applicable Tax Rate" equals the estimated
effective (i.e. actual average) federal income tax rate on gross taxable income
(expressed as a decimal) for the fiscal year immediately preceding the date on
which the First Reserve Option Shares is being credited as "Investment,"
PROVIDED that for any determination made prior to January 31, 1998, the
"Applicable Tax Rate" will equal the estimated effective federal income tax rate
on gross taxable income (expressed as a decimal) for 1997. The Return Rate shall
be determined in good faith by the Committee.
SECTION 1.12 - FIRST RESERVE SUBSCRIPTION AGREEMENT
"First Reserve Subscription Agreement" shall mean the Subscription
Agreement, dated as of December 31, 1996, between the Company and First Reserve
Fund VII, Limited Partnership, as amended, supplemented or otherwise modified
from time to time.
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EXHIBIT 10.12
SECTION 1.13 - GOOD REASON
"Good Reason" shall mean, except as otherwise provided in an
employment agreement between the Corporation and the Optionee, (i) any material
reduction by the Corporation of Optionee's authority, duties or responsibilities
(except in connection with the termination of Optionee's employment for Cause,
as a result of Permanent Disability, or as a result of Optionee's death or
Retirement) (ii) any reduction by the Corporation in Optionee's base salary, or
(iii) the Corporation's moving Optionee's place of employment outside the
Houston, Texas metropolitan area.
SECTION 1.14 - GRANT DATE
"Grant Date" shall mean February 21, 1997.
SECTION 1.15 - INVESTMENT
"Investment" shall mean $30 million invested by Investors in
Investor Stock on the Closing Date, plus the amount of any additional cash
invested by Investors in Investor Stock after the Closing Date. It is understood
and agreed that (i) the $8 million Subordinated Promissory Note purchased by the
FRC Entities from Domain Energy Guarantor Corporation, a Delaware corporation,
shall not constitute "Investment" and (ii) in the event that the First Reserve
Option is exercised, the "Investment" attributable thereto shall be deemed an
amount equal to all credited First Reserve Option Shares Investment Return and
no other "Investment" shall be deemed made in respect of the First Reserve
Option Shares.
SECTION 1.16 - INVESTMENT RETURN HURDLE
"Investment Return Hurdle" shall be deemed satisfied when the
Equity Value with respect to the Investor Stock is equal to or greater than, as
of the date of determination, the amount determined by increasing the Investment
at a compounded annual rate of 25% commencing on the date of any cash investment
by Investors (as to that portion of the Investment made on such date) through
and including such date of determination. By way of example, if the Investment
is $100 and no additional Investment is made, on the one year anniversary of the
Investment the Investment Return Hurdle will equal $125, and on the two year
anniversary of the Investment, the Investment Return Hurdle will equal $156.25.
SECTION 1.17 - INVESTORS
"Investors" shall mean the FRC Entities.
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EXHIBIT 10.12
SECTION 1.18 - INVESTOR STOCK
"Investor Stock" shall mean issued and outstanding shares of capital
stock of any class or series of the Corporation, so long as such shares were
originally acquired by Investors from the Corporation.
SECTION 1.19 - OPTION
"Option" shall mean the non-qualified option to purchase Common
Stock granted under this Agreement, and shall include the Time Option and the
Performance Option.
SECTION 1.20 - PERFORMANCE OPTION
"Performance Option" shall mean that portion of the Option with
respect to which the exercisability thereof is governed by Section 3.1(b)
hereof. It is understood that the Performance Options are not intended to be
stock options within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
SECTION 1.21 - PERMANENT DISABILITY
The Optionee shall be deemed to have a "Permanent Disability" if the
Optionee is unable to engage in the activities required by the Optionee's job by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
SECTION 1.22 - PLAN
"Plan" shall mean the 1996 Stock Purchase and Option Plan for Key
Employees of Domain Energy Corporation and Affiliates, as amended from time to
time.
SECTION 1.23 - PRONOUNS
The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.24 - PUBLIC OFFERING
"Public Offering" shall mean the sale of shares of Common Stock to
the public subsequent to the date hereof pursuant to a registration statement
under the Securities Act of
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EXHIBIT 10.12
1933, as amended, which has been declared effective by the Securities and
Exchange Commission (other than a registration on Form S-8 or other successor
form.)
SECTION 1.25 - RETIREMENT
"Retirement" shall mean the voluntary termination of employment by
the Optionee at age 62 or over (or such other age as may be approved by the
Board of Directors of the Corporation ) after having been employed by the
Corporation for at least three years after the date hereof.
SECTION 1.26 - SECRETARY
"Secretary" shall mean the Secretary of the Corporation.
SECTION 1.27 - SECURITYHOLDERS AGREEMENT
"Securityholders Agreement" shall mean the Securityholders Agreement
dated as of December 31, 1996 among the Corporation, the FRC Entities and the
individuals and trusts signatory thereto.
SECTION 1.28 - SUBSIDIARY
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Corporation if each of the corporations, or
group of commonly controlled corporations (other than the last corporation in
the unbroken chain), then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
SECTION 1.29 - TIME OPTION
"Time Option" shall mean that portion of the Option with respect to
which the exercisability thereof is governed by Section 3.1(a) hereof.
SECTION 1.30 - TRADING VALUE
"Trading Value" shall mean with respect to the Common Stock of the
Corporation, if on the date as of which Trading Value is being determined (A)
such class of capital stock is listed on a national securities exchange, the
last sale price, regular way, of such security on the principal national
securities exchange on which such security is at the time listed, or if there
have been no sales on any such exchange on any such day, the
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EXHIBIT 10.12
average of the last reported closing bid and lowest asked prices on such
exchange at the end of such day, or (B) if such class of capital stock is not so
listed, the average of the last reported closing bid and asked prices quoted on
the National Association of Securities Dealers Automated Quotations System or
(C) if such class of capital stock is not so quoted, the average of the last
reported closing bid and asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case of
clauses (A)-(C) averaged over a period of 20 days consisting of the day as of
which Trading Value is being determined and the latest 19 consecutive trading
days prior to such day.
ARTICLE II
GRANT OF OPTION
SECTION 2.1 - GRANT OF OPTION
For good and valuable consideration, on and as of the date hereof
the Corporation irrevocably grants to the Optionee an Option to purchase, from
time to time, any part or all of an aggregate number of shares of Common Stock
set forth on the signature page hereof, upon the terms and conditions set forth
in this Agreement.
SECTION 2.2 - EXERCISE PRICE
Subject to Section 2.4, (a) the exercise price of the shares of
Common Stock covered by the Time Option shall be $3,151.4354 per share, without
commission or other charge and the exercise price of the shares of Common Stock
covered by the Performance Option shall be $.01 per share, without commission or
other charge.
SECTION 2.3 - CONSIDERATION TO THE CORPORATION
In consideration of the granting of the Option by the Corporation,
the Optionee agrees to render faithful and efficient services to the Corporation
or a Subsidiary or Affiliate thereof, with such duties and responsibilities as
the Corporation shall from time to time prescribe or as may be set forth in an
employment agreement between the Corporation and the Optionee. Nothing in this
Agreement or in the Plan shall confer upon the Optionee any right to continue in
the employ of the Corporation or any Subsidiary or Affiliate thereof or shall
interfere with or restrict in any way the rights of the Corporation and its
Subsidiaries or Affiliates, which are hereby expressly reserved, to terminate
the employment of the Optionee at any time for any reason whatsoever, with or
without Cause, subject to the terms of any applicable written agreement between
or among the Optionee and the Corporation or any of
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EXHIBIT 10.12
its stockholders, including without limitation the Securityholders Agreement and
any employment agreement between the Optionee and the Corporation.
SECTION 2.4 - ADJUSTMENTS IN OPTION PURSUANT TO MERGER, CONSOLIDATION, ETC.
Subject to Section 9 of the Plan, in the event that the outstanding
shares of the Common Stock subject to the Option are, from time to time, changed
into or exchanged for a different number or kind of shares of the Corporation or
other securities of the Corporation or other entity by reason of a merger,
consolidation, recapitalization, Change of Control, reclassification, stock
split, stock dividend, combination of shares, or otherwise, the Committee shall
make an appropriate and equitable adjustment in the number and kind of shares
and/or the amount of consideration as to which or for which, as the case may be,
such Option, or portions thereof then unexercised, shall be exercisable. In the
event that the Corporation shall acquire Substantial Assets (as such term is
defined in the Securityholders Agreement) outside the oil and gas exploration
and production business and such acquisition has not been approved by the Chief
Executive Officer of the Corporation (either in his capacity as Chief Executive
Officer or as a director of the Corporation) if the Committee concludes that the
acquisition of such Substantial Assets is anticipated to have an adverse effect
on the ability of the Corporation to achieve the Investment Return Hurdle, then
the Committee shall make an appropriate and equitable adjustment to the
Investment Return Hurdle so that the Optionee is not adversely affected by such
acquisition of Substantial Assets. Any such adjustment made by the Committee
shall be final and binding upon the Optionee, the Corporation and all other
interested persons.
ARTICLE III
PERIOD OF EXERCISABILITY
SECTION 3.1 - COMMENCEMENT OF EXERCISABILITY
(a) That portion of the Option constituting the Time Option shall
become exercisable as to 20% of the shares of Common Stock subject to the Time
Option on the first anniversary of the Grant Date and shall thereafter become
exercisable as to an additional 20% of such shares upon each anniversary
thereafter. Notwithstanding the foregoing, the Time Option shall become
exercisable as to 100% of the shares of Common Stock subject to the Time Option
immediately upon (i) a Change of Control, (ii) the receipt of any notice that
the Time Option will be terminated pursuant to Section 3.2(e), or (iii)
termination of Optionee's employment for the reasons set forth in Section
3.1(c).
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EXHIBIT 10.12
(b) That portion of the Option constituting the Performance Option
shall become exercisable at any time following the second anniversary of the
Grant Date, when the Investment Return Hurdle is met. Notwithstanding the
foregoing, the Performance Option shall become exercisable as to 100% of the
shares of Common Stock subject to the Performance Option on the ninth
anniversary of the Grant Date.
(c) In the event Optionee's employment is terminated (i) by reason
of death, Permanent Disability (as defined below) or Retirement or (ii) by the
Corporation without Cause or by the Optionee for Good Reason, then the
Optionee's Time Option shall become fully exercisable, but if the Performance
Option is not exercisable as of the Optionee's termination of employment, it
shall be immediately cancelled.
SECTION 3.2 - EXPIRATION OF OPTION
Except as otherwise provided in the Securityholders Agreement
(including, without limitation, the Optionee's rights to put the Option to the
Corporation thereunder), the Option may not be exercised to any extent by the
Optionee after the first to occur of the following events:
(a) The tenth anniversary of the Grant Date; or
(b) The first anniversary of the date of the Optionee's termination
of employment by reason of death, Permanent Disability or Retirement; or
(c) The first business day which is 90 calendar days after
termination of employment of the Optionee by the Corporation without Cause
or by Optionee for Good Reason; or
(d) The date of an Optionee's termination of employment by the
Corporation with Cause or by Optionee without Good Reason; or
(e) If the Committee so determines pursuant to Section 9 of the
Plan, the effective date of either the merger or consolidation of the
Corporation into another Person (unless the consideration received by the
stockholders of the Corporation in such merger or consolidation consists
entirely of common stock of the surviving corporation), the exchange of
all or substantially all of the assets of the Corporation for the
securities of another corporation, a Change of Control, or the
recapitalization, reclassification, liquidation or dissolution of the
Corporation. At least ten (10) days prior to the effective date of any of
the events set forth in such Section 9 of the Plan, the Committee shall
give the Optionee notice of such event if the Option has then neither been
fully exercised nor become unexercisable under this Section 3.2.
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ARTICLE IV
EXERCISE OF OPTION
SECTION 4.1 - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only he may exercise the Option
or any portion thereof. After the death of the Optionee, any exercisable portion
of the Option may, prior to the time when the Option becomes unexercisable under
Section 3.2, be exercised by his personal representative or by any person
empowered to do so under the Optionee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 - PARTIAL EXERCISE AND PERIODS OF UNEXERCISABILITY
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time and from
time to time prior to the time when the Option or portion thereof becomes
unexercisable under Section 3.2; provided, however, that any partial exercise
shall be for whole shares of Common Stock only.
SECTION 4.3 - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or his office all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.2:
(a) Notice in writing signed by the Optionee or the other person
then entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, such notice complying with
all applicable rules established by the Committee;
(b) Payment for the shares with respect to which such Option or
portion thereof is exercised (i) by cash or check on the date of exercise
(such cash or check may be delivered on behalf of a Optionee by a stock
broker designated by the Corporation to whom the Optionee has submitted an
irrevocable notice of election, on forms approved by the Corporation, to
sell shares of Common Stock deliverable upon exercise of an Option), (ii)
through the delivery of shares of Common Stock having a Fair Market Value
(as defined in the Plan) equal to the full amount of the exercise price,
(iii) by the withholding by the Corporation from the shares of Common
Stock issuable upon any exercise of the Option that number of shares
having a Fair Market
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EXHIBIT 10.12
Value equal to such exercise price pursuant to a written election
delivered to the Committee prior to the date of exercise, or (iv) by a
combination of such methods;
(c) A written representation and agreement, in a form satisfactory
to the Committee, signed by the Optionee or other person then entitled to
exercise such Option or portion thereof, stating that the shares of stock
are being acquired for his own account, for investment and without any
present intention of distributing or reselling said shares or any of them
except as may be permitted under the Securities Act of 1933, as amended
(the "Act"), and then applicable rules and regulations thereunder, and
that the Optionee or other person then entitled to exercise such Option or
portion thereof will indemnify the Corporation against and hold it free
and harmless from any loss, damage, expense or liability resulting to the
Corporation if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above; provided,
however, that the Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to ensure the observance and
performance of such representation and agreement and to effect compliance
with the Act and any other federal or state securities laws or
regulations;
(d) Full payment to the Corporation of all amounts which, under
federal, state or local law, it is required to withhold upon exercise of
the Option, which payment shall be (i) by cash or check or (ii) by
electing, pursuant to a written notice delivered to the Committee prior to
the date of exercise, to have shares of Common Stock (having an aggregate
Fair Market Value on the date of exercise sufficient to satisfy the
applicable tax withholding requirements) withheld from the shares
deliverable upon such exercise;
(e) An executed Securityholders Agreement, or appropriate proof that
a Securityholders Agreement has been previously executed by the Optionee;
and
(f) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the
Option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in subsection (c) above
shall, however, not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
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EXHIBIT 10.12
SECTION 4.4 - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Corporation. Such shares
shall be fully paid and nonassessable. The Corporation shall not be required to
issue or deliver any certificate or certificates for shares of stock purchased
upon the exercise of the Option or portion thereof prior to fulfillment of all
of the following conditions:
(a) The obtaining of approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish
for reasons of administrative convenience.
SECTION 4.5 - RIGHTS AS STOCKHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a stockholder of the Corporation in respect of any shares
purchasable upon the exercise of the Option or any portion thereof unless and
until the Option has been exercised and the relevant shares purchased.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 - ADMINISTRATION
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the
Corporation and all other interested persons. No member of the Committee shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or the Option. In its absolute discretion,
the Board of Directors may at any time and from time to time exercise any and
all rights and duties of the Committee under the Plan and this Agreement.
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SECTION 5.2 - OPTION NOT TRANSFERABLE
Except as provided in the Securityholders Agreement, neither the
Option nor any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Optionee or his successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law, by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect;
provided, however, that this Section 5.2 shall not prevent transfers by will or
by the applicable laws of descent and distribution.
SECTION 5.3 - SHARES TO BE RESERVED
The Corporation shall at all times during the term of the Option
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
SECTION 5.4 - NOTICES
Any notice to be given under the terms of this Agreement to the
Corporation shall be addressed to the Corporation in care of its Secretary, and
any notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Corporation of
his status and address by written notice under this Section 5.4. Any notice
shall have been deemed duly given (i) when delivered by hand, (ii) two business
days after being mailed, certified or registered mail, return receipt requested,
with postage prepaid, (iii) when sent by telegram or telecopy (the receipt of
which is confirmed) or (iv) one business day after being sent by Express Mail,
Federal Express or other nationally recognized overnight courier service.
SECTION 5.5 - TITLES
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 - APPLICABILITY OF PLAN AND SECURITYHOLDERS AGREEMENT
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EXHIBIT 10.12
The Option and the shares of Common Stock issued to the Optionee
upon exercise of the Option shall be subject to all of the terms and provisions
of the Plan and the Securityholders Agreement, to the extent applicable to the
Option and such shares. In the event of any conflict between this Agreement and
the Plan, the terms of the Plan shall control. In the event of any conflict
between this Agreement or the Plan and the Securityholders Agreement, the terms
of the Securityholders Agreement shall control.
SECTION 5.7 - AMENDMENT
This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
SECTION 5.8 - GOVERNING LAW
THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE INTERPRETATION,
VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT REGARDLESS OF THE LAW
THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 5.9 - JURISDICTION
Any suit, action or proceeding against the Optionee with respect to
this Agreement, or any judgment entered by any court in respect of any thereof,
may be brought in any court of competent jurisdiction in the State of Delaware,
and the Optionee hereby submits to the non-exclusive jurisdiction of such courts
for the purpose of any such suit, action, proceeding or judgment. The Optionee
hereby irrevocably waives any objections which he may now or hereafter have to
the laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in the
State of Delaware, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Corporation with
respect to this Agreement may be brought in any court, domestic or foreign, or
before any similar domestic or foreign authority other than in a court of
competent jurisdiction in the State of Delaware, and the Optionee hereby
irrevocably waives any right which he may otherwise have had to bring such an
action in any other court, domestic or foreign, or before any similar domestic
or foreign authority. The Corporation hereby submits to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding.
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EXHIBIT 10.12
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
DOMAIN ENERGY CORPORATION
By: /S/XXXX X. XXXXXX
Xxxx X. Xxxxxx
Vice President and
Chief Financial Officer
OPTIONEE
/S/XXXXXXX X. XXXXX
Address: 00000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Optionee's Taxpayer Identification
Number:
Aggregate number of shares of Common Stock for which the Time Option granted
hereunder is exercisable (50% of total number of shares):
225
Aggregate number of shares of Common Stock for which the Performance Option
granted hereunder is exercisable (50% of
total number of shares):
225
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