EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
June 1, 1997 by and between ▇▇▇▇▇▇▇▇▇▇▇ Enterra, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., an individual currently residing in
Sugar Land, Texas ("▇▇▇▇▇").
WHEREAS, the Board of Directors of the Company (the "Board") has made
▇▇▇▇▇ an offer of employment to serve as President and Chief Executive Officer
of the Company, on terms and conditions and for the consideration hereinafter
set forth, in addition to serving as a director of the Company;
WHEREAS, ▇▇▇▇▇ has accepted the Board's offer of employment as President
and Chief Executive Officer and has agreed to serve as a director of the
Company; and
WHEREAS, the parties wish to memorialize the terms and conditions of
▇▇▇▇▇' employment;
NOW, THEREFORE, for and in consideration of the premises and the
respective covenants and agreements of the parties herein contained, the Company
and ▇▇▇▇▇ hereby agree as follows:
ARTICLE 1
EMPLOYMENT
The Company hereby agrees to employ ▇▇▇▇▇, and ▇▇▇▇▇ hereby agrees to
serve the Company, on the terms and conditions set forth herein.
ARTICLE 2
TERM
The term of this Agreement shall commence as of June 1, 1997 (the
"Effective Date") and shall continue through May 31, 2002 (the "Term"), unless
sooner terminated as hereinafter provided.
ARTICLE 3
POSITION AND DUTIES
3.1 ▇▇▇▇▇ shall serve as a director of the Company, in the class of
directors whose terms shall expire at the 1998 Annual Stockholders' Meeting and
initially shall be employed as President and Chief Executive Officer. ▇▇▇▇▇
shall have such responsibilities, duties and authority reasonably accorded to
and expected of a President and Chief Executive Officer and as may from time to
time be prescribed by the Board or pursuant to the Company's bylaws. The parties
expressly agree that the Board is under no obligation to reelect ▇▇▇▇▇ as
President
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and Chief Executive Officer at any time in the future, nor is the Board required
to nominate ▇▇▇▇▇ for reelection as a director upon the expiration of his
current term. ▇▇▇▇▇ agrees to resign as President and Chief Executive Officer,
as a director, or both, at any time after the date hereof, if requested to do so
by a majority of the members of the Board. The provisions of Section 6 (a) of
this Agreement shall apply with respect to any such resignation, unless such
resignation is for Cause.
3.2 During the Term, and excluding any periods of vacation and sick
leave to which ▇▇▇▇▇ is entitled, ▇▇▇▇▇ shall devote such time and efforts to
the business and affairs of the Company as shall be necessary for him to
discharge the duties and responsibilities assigned to ▇▇▇▇▇. During the
Employment Period it shall not be a violation of this Agreement for ▇▇▇▇▇ to (A)
serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do not significantly
interfere with the performance of ▇▇▇▇▇' responsibilities as an employee of the
Company in accordance with this Agreement.
ARTICLE 4
COMPENSATION AND RELATED MATTERS
4.1 SIGN-ON BENEFITS.
(a) On the Effective Date, ▇▇▇▇▇ will receive a sign-on bonus of
$71,250 cash.
(b) On the Effective Date, Bate will receive 65,041 shares of the
Company's Common Stock, such shares to be granted pursuant to the Company's
Restricted Stock Incentive Plan (the "Restricted Plan") and to be subject to
restrictions on ownership in accordance with the terms of the Restricted Plan.
The ownership restrictions on such shares will terminate 25 percent per year,
beginning one year after the Effective Date, assuming ▇▇▇▇▇ is still employed by
the Company on the appropriate date, unless otherwise provided herein.
(c) ▇▇▇▇▇ will receive on the date hereof an option to purchase
150,000 shares of the Company's Common Stock, such option to be granted pursuant
to the Company's 1991 Stock Option Plan (the "Option Plan"). The option will
vest 20 percent per year, beginning one year after the grant date and will be
exercisable as provided by the Option Plan for ten years after the grant date.
4.2 SALARY. The Company shall pay to ▇▇▇▇▇ an annual base salary of
$500,000, or such higher rate as may from time to time be determined in the sole
discretion of the Board, provided that the Compensation and Stock Plans
Committee of the Board (the "Compensation Committee") and the Board shall review
▇▇▇▇▇' base salary on an annual basis. ▇▇▇▇▇' base salary shall be paid in
substantially equal semi-monthly installments.
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4.3 INCENTIVE COMPENSATION.
(a) ▇▇▇▇▇ shall be eligible to receive an annual bonus, in cash,
stock, or a combination of both, equal to up to 100% of his base salary
calculated in accordance with the executive bonus plan then in effect and as
recommended by the Compensation Committee and approved by the Board; PROVIDED,
HOWEVER, that ▇▇▇▇▇ will receive for 1997 a bonus equal to not less than 50
percent of his base salary, prorated for the number of months of his employment
by the Company during 1997.
(b) ▇▇▇▇▇ shall be eligible to participate in the Company's
incentive stockbased plans offered to executive officers of the Company,
including the Option Plan and the Restricted Plan.
4.4 BENEFITS.
(a) ▇▇▇▇▇ shall be eligible to participate in the Company's 401(k)
Savings Plan and the Company's Supplemental Savings Plan, as, and to the extent
such plans are, in effect from time to time during the Term.
(b) ▇▇▇▇▇ and ▇▇▇▇▇' eligible dependents shall be entitled to
participate and shall receive all benefits under the Company's welfare benefit
plans, including, without limitation, medical, prescription, dental, disability,
salary continuance, group life, accidental death and travel accident insurance
plans and programs, as, and to the extent such plans and programs are, in effect
from time to time during the Term, provided that ▇▇▇▇▇ shall pay any premiums or
other amounts required to be paid for such benefits.
4.5 VACATION. ▇▇▇▇▇ shall be entitled to four weeks paid vacation during
each year of the Term. ▇▇▇▇▇ shall also be entitled to all paid holidays and
personal time given by the Company to its employees.
4.6 CAR ALLOWANCE. The Company shall pay ▇▇▇▇▇ a car allowance of $1,000
per month or such other rate as may from time to time be determined in the sole
discretion of the Board.
ARTICLE 5
TERMINATION OF EMPLOYMENT
5. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. ▇▇▇▇▇' employment shall terminate
automatically upon ▇▇▇▇▇' death during the Term. If the Company determines in
good faith that the Disability of ▇▇▇▇▇ has occurred during the Term (pursuant
to the definition of Disability set forth below), it may give to ▇▇▇▇▇ written
notice in accordance with Section 8.4 of this Agreement of its intention to
terminate ▇▇▇▇▇' employment. In such event, ▇▇▇▇▇'
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employment with the Company shall terminate effective 30 days after receipt of
such notice by ▇▇▇▇▇ (the "Disability Effective Date"), provided that within the
30-day period after such receipt, ▇▇▇▇▇ shall not have returned to full-time
performance of ▇▇▇▇▇' duties. For purposes of this Agreement, "Disability" shall
mean the absence of ▇▇▇▇▇ from ▇▇▇▇▇' duties with the Company on a full-time
basis for 180 calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to ▇▇▇▇▇ or ▇▇▇▇▇' legal
representative.
(b) CAUSE. The Company may terminate ▇▇▇▇▇' employment during the
Term for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the material willful misconduct or gross negligence of
▇▇▇▇▇ in the performance of his duties to the Company and its affiliates (other
than any such misconduct or negligence resulting from his incapacity due to
physical or mental illness), in either such instances so as to cause substantial
financial harm to the Company or one or more of its affiliates;
(ii) the commission by ▇▇▇▇▇ of fraud, misappropriation or
embezzlement in the performance of his duties hereunder; or
(iii) the conviction of ▇▇▇▇▇ of a felony that has a
substantial adverse effect on the Company or one or more of its affiliates.
All conclusions and determinations required for purposes of
determining "Cause" under this provision shall be made by the Board in good
faith after the Board gives ▇▇▇▇▇ written notice of the alleged act or failure
constituting Cause for termination and after ▇▇▇▇▇ is given an opportunity,
together with counsel, to be heard by the Board.
(c) GOOD REASON. ▇▇▇▇▇' employment may be terminated by ▇▇▇▇▇ during
the Term for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment to ▇▇▇▇▇ of any duties inconsistent in any
respect with ▇▇▇▇▇' position as President and Chief Executive Officer or his
authority, duties or responsibilities hereunder, or any other action by the
Company which results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by ▇▇▇▇▇; or
(ii) any purported termination by the Company of ▇▇▇▇▇'
employment otherwise than as expressly permitted by this Agreement.
(d) NOTICE OF TERMINATION. Any termination during the Term by the
Company for Cause, or by ▇▇▇▇▇ for Good Reason, shall be communicated by Notice
of
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Termination to the other party hereto given in accordance with Section 8.4
hereof. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
▇▇▇▇▇' employment under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than 30 days after
the giving of such notice). The failure by ▇▇▇▇▇ or the Company to set forth in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of ▇▇▇▇▇ or the
Company, respectively, from asserting such fact or circumstance in enforcing
▇▇▇▇▇' or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if ▇▇▇▇▇' employment is terminated by the Company for
Cause, or by ▇▇▇▇▇ for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be;
(ii) if ▇▇▇▇▇' employment is terminated by the Company other
than for Cause, death or Disability, the Date of Termination shall be the date
on which the Company notifies ▇▇▇▇▇ of such termination; and
(iii) if ▇▇▇▇▇' employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of ▇▇▇▇▇ or the
Disability Effective Date, as the case may be.
ARTICLE 6
COMPANY'S OBLIGATION UPON TERMINATION
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If,
during the Term, the Company shall terminate ▇▇▇▇▇' employment other than for
Cause, death or Disability, or ▇▇▇▇▇ shall terminate employment for Good Reason:
(i) The Company shall pay to ▇▇▇▇▇ in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) ▇▇▇▇▇' Annual Base Salary through the
Date of Termination to the extent not theretofore paid and (2) any compensation
previously deferred by ▇▇▇▇▇ (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts
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described in clauses (1) and (2) shall be hereinafter referred to as the
"Accrued Obligations"), and
B. the amount equal to the product of (1) three times
(2) the sum of (x) ▇▇▇▇▇' annual base salary and (y) bonus paid to ▇▇▇▇▇ for the
prior fiscal year.
(ii) For three years after ▇▇▇▇▇' Date of Termination, the
Company shall continue benefits to ▇▇▇▇▇ and/or ▇▇▇▇▇' family equal to those
which would have been provided to them in accordance with the Company's employee
welfare benefits plan (except for disability plans) as if ▇▇▇▇▇' employment had
not been terminated; provided, however, that with respect to any of such plans
requiring an employee contribution, ▇▇▇▇▇ shall continue to pay the monthly
employee contribution for same, and provided further, that if ▇▇▇▇▇ becomes
reemployed by another employer and is eligible to receive medical or other
welfare benefits under another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility;
(iii) For three years after ▇▇▇▇▇' Date of Termination, the
Company shall provide ▇▇▇▇▇ with life insurance as if his employment has not
been terminated;
(iv) With respect to all options to purchase Common Stock held
by ▇▇▇▇▇ pursuant to a Company stock option plan on or prior to the Date of
Termination, irrespective of whether such options are then exercisable, ▇▇▇▇▇
shall have the right, during the 60-day period after the Date of Termination, to
elect to surrender all or part of such options in exchange for a cash payment by
the Company to ▇▇▇▇▇ in an amount equal the number of shares of Common Stock
subject to ▇▇▇▇▇' option(s) multiplied by the difference between (x) and (y)
where (y) equals the purchase price per share covered by the option and (x)
equals the highest reported sale price of a share of Common Stock in any
transaction reported on the New York Stock Exchange during the 60-day period
prior to and including ▇▇▇▇▇' Date of Termination (the "Surrender Price"); and
with respect to any SARs held by ▇▇▇▇▇ granted under the Company's Stock
Appreciation Rights Plan on or prior to the Date of Termination, irrespective of
whether such SARs are then exercisable, ▇▇▇▇▇ shall have the right, during the
60-day period after the Date of Termination, to elect to surrender all or part
of such SARs in exchange for a cash payment by the Company to ▇▇▇▇▇ in an amount
equal to the number of SARs held by ▇▇▇▇▇ multiplied by the difference between
(a) and (b) where (b) equals the fair market value of such SARs on the date on
which such SARs were awarded and (a) equals the Surrender Price. Such cash
payments shall be made within 30 days after the date of ▇▇▇▇▇' election;
provided, however, that if ▇▇▇▇▇' Date of Termination is within six months after
the date of grant of a particular option or SAR held by ▇▇▇▇▇ and ▇▇▇▇▇ is
subject to Section 16(b) of the Securities Exchange Act of 1934, as amended, any
cash payments related thereto shall be made on the date which is six months and
one day after the date of grant of such option or SAR. Notwithstanding the
foregoing, if any right granted pursuant to the foregoing would make a Change of
Control transaction (as defined in Section
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8.1 below) ineligible for pooling of interests accounting treatment under ▇▇▇
▇▇. ▇▇ that but for this Section 6(a)(iv) would otherwise be eligible for such
accounting treatment, ▇▇▇▇▇ shall receive shares of Common Stock with a fair
market value equal to the cash that would otherwise be payable hereunder in
substitution for the cash, provided that any such shares of Common Stock so
granted to ▇▇▇▇▇ shall be registered under the Securities Act of 1933, as
amended; any options or SARs outstanding as of the Date of Termination and not
then exercisable shall become fully exercisable as of ▇▇▇▇▇' Date of
Termination, and to the extent ▇▇▇▇▇ does not elect to surrender same for a cash
payment (or the equivalent number of shares of Common Stock) as provided above,
such options and SARs shall remain exercisable for seven months after ▇▇▇▇▇'
Date of Termination or until the stated expiration of the stated term thereof,
whichever is shorter; restrictions applicable to any shares of Common Stock
granted to ▇▇▇▇▇ under the Company's Restricted Stock Incentive Plan shall
lapse, as of the date of ▇▇▇▇▇' Date of Termination;
(v) The Company shall pay ▇▇▇▇▇ a lump sum in cash within 30
days after ▇▇▇▇▇' Date of Termination equal to three times ▇▇▇▇▇' annual car
allowance; and
(vi) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to ▇▇▇▇▇ any other amounts or benefits
required to be paid or provided or which ▇▇▇▇▇ is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) DEATH. If ▇▇▇▇▇' employment is terminated by reason of ▇▇▇▇▇'
death during the Term, this Agreement shall terminate without further
obligations to ▇▇▇▇▇' legal representatives under this Agreement, other than for
payment of Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to ▇▇▇▇▇' estate or beneficiaries,
as applicable, in a lump sum in cash within 30 days after the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 6(b) shall include, without limitation, and
▇▇▇▇▇' estate and/or beneficiaries shall be entitled to receive, benefits at
least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of ▇▇▇▇▇' peer executives
of the Company and such affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, in effect immediately
preceding the Date of Termination.
(c) DISABILITY. If ▇▇▇▇▇' employment is terminated by reason of
▇▇▇▇▇' Disability during the Term, this Agreement shall terminate without
further obligations to ▇▇▇▇▇, other than for payment of Accrued Obligations and
the timely payment or provision of Other Benefits. Accrued Obligations shall be
paid to ▇▇▇▇▇ in a lump sum in cash within 30 days after the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 6(c) shall include, without limitation, and
▇▇▇▇▇ shall be entitled after the Disability Effective Date to receive,
disability and other benefits at
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least equal to the most favorable benefits generally provided by the Company and
its affiliated companies to ▇▇▇▇▇' disabled peer executives and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, in effect generally on the Date of Termination.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If ▇▇▇▇▇' employment is
terminated for Cause during the Term, this Agreement shall terminate without
further obligations to ▇▇▇▇▇, other than the obligation to pay to ▇▇▇▇▇ (x) his
annual base salary through the Date of Termination, (y) the amount of any
compensation previously deferred by ▇▇▇▇▇, and (z) Other Benefits, in each case
to the extent theretofore unpaid. If ▇▇▇▇▇ voluntarily terminates employment
during the Term, excluding a termination for Good Reason, this Agreement shall
terminate without further obligations to ▇▇▇▇▇, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In such case,
all Accrued Obligations shall be paid to ▇▇▇▇▇ in a lump sum in cash within 30
days after the Date of Termination.
ARTICLE 7
NON-COMPETITION OBLIGATIONS
7.1 As part of the consideration for the compensation and benefits to be
paid to ▇▇▇▇▇ hereunder, in keeping with ▇▇▇▇▇' duties as a fiduciary and in
order to protect ▇▇▇▇▇' interests in the confidential information of the Company
and the business relationships developed by ▇▇▇▇▇ with the clients and potential
clients of the Company, and as an additional incentive for the Company to enter
into this Agreement, the Company and ▇▇▇▇▇ agree to the non-competition
provisions of this Article 7. ▇▇▇▇▇ agrees that during the period of ▇▇▇▇▇'
non-competition obligations hereunder, ▇▇▇▇▇ will not, directly or indirectly
for ▇▇▇▇▇ or for others, in any geographic area or market where the Company or
any of its affiliates are conducting any business as of the Date of Termination
or have during the previous 12 months conducted any business:
(a) engage in any business competitive with the business conducted
by the Company or its affiliates;
(b) render advice or services to, or otherwise assist, any other
person, association or entity who is engaged, directly or indirectly, in any
business competitive with the business conducted by the Company or its
affiliates;
(c) induce any employee of the Company or any of its affiliates to
terminate his or her employment with the Company or its affiliates, or solicit
the employment of any such employee by person, association or entity not
affiliated with the Company.
These non-competition obligations shall extend until the latter of (i) the
expiration of the Term and (ii) one year after termination of the employment
relationship.
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7.2 ▇▇▇▇▇ understands that the foregoing restrictions may limit his
ability to engage in certain businesses anywhere in the world during the period
provided for above, but acknowledges that ▇▇▇▇▇ will receive sufficiently high
remuneration and other benefits (e.g., the right to receive compensation under
Article 6 for the remainder of the Term in certain circumstances) under this
Agreement to justify such restrictions. ▇▇▇▇▇ acknowledges that money damages
would not be sufficient remedy for any breach of this Article 7 by ▇▇▇▇▇, and
the Company shall be entitled to enforce the provisions of this Article 7 by
terminating any payments then owing to ▇▇▇▇▇ under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article 7, but shall be in addition to all remedies available
at law or in equity to the Company, including, without limitation, the recovery
of damages from ▇▇▇▇▇ or his or her agents involved in such breach.
7.3 It is expressly understood and agreed that the Company and ▇▇▇▇▇
consider the restrictions contained in this Article 7 to be reasonable and
necessary to protect the proprietary information of the Company. Nevertheless,
if any of the aforesaid restrictions are found by a court having jurisdiction to
be unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such court so as to be reasonable and enforceable and, as so
modified by the court, to be enforced.
ARTICLE 8
MISCELLANEOUS
8.1 "Change of Control" shall mean:
(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") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20 percent 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");
provided, however that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control:
(A) any acquisition directly from the Company,
(B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company, or
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(D) any acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and (C) of subsection (a) of
this Section 8.1; or
(b) Individuals, who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual was a member of the Incumbent Board, but excluding, for this purpose,
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 Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Corporate Transaction") in each case, unless, following such
Corporate Transaction, (i) all or substantially all of 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 Corporate Transaction beneficially own, directly or indirectly, more
than 60 percent 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 Corporate Transaction (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 Corporate Transaction, of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities, as the case
may be, (ii) no Person (excluding any corporation resulting from such Corporate
Transaction or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Corporate Transaction) beneficially owns,
directly or indirectly, 20 percent or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction 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 Corporate Transaction and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Corporate Transaction 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 Corporate Transaction; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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8.2 CHANGE OF CONTROL AGREEMENT. ▇▇▇▇▇ is a party to a Change of Control
Agreement (the "COC Agreement") with the Company regarding compensation and
severance arrangements in the event of a change in control (as defined therein)
of the Company. In the event of any termination of ▇▇▇▇▇' employment to which
the COC Agreement would apply, ▇▇▇▇▇ shall be entitled to all the benefits
provided under either this Agreement or the COC Agreement, whichever one in its
entirety he shall choose, but not under both, and when ▇▇▇▇▇ has elected which
agreement shall apply, the other agreement shall be superseded in its entirety
and shall be of no further force and effect, and neither party shall have any
obligation to the other thereunder.
8.3 SUCCESSORS; BINDING AGREEMENT. The Company will require any successors
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance reasonably satisfactory to ▇▇▇▇▇, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
entitle ▇▇▇▇▇ to compensation from the Company in the same amount and on the
same terms as if he had terminated his employment pursuant to Section 6(a),
except that for purposes of implementing the foregoing, the date on which each
such succession become effective shall be the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 8.2 or which otherwise becomes bound
by all of the terms and provisions of this Agreement by operation of law. This
Agreement and all rights of ▇▇▇▇▇ hereunder shall inure to the benefit of and be
enforceable by ▇▇▇▇▇' personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If ▇▇▇▇▇
should die while any amounts would still be payable to him hereunder if he
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to ▇▇▇▇▇' designated
beneficiaries set forth in a written beneficiary designation filed with the
Company or, if there be no such designated beneficiary, to ▇▇▇▇▇' estate.
8.4 NOTICES. For purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
If to ▇▇▇▇▇ to: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.5 APPLICABLE LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas without regard to the conflict of law principles thereof.
8.6 WAIVER. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing, signed by ▇▇▇▇▇ and such officer of the Company as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same time or
any prior or subsequent time.
8.7 VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not effect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
8.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8.9 ENTIRE AGREEMENT. This Agreement, together with any exhibits hereto,
constitutes, the entire agreement of the parties with regard to the subject
matter hereof, and contains all the covenants, promises, representations,
warranties and agreements between the parties with respect to the employment of
▇▇▇▇▇ by the Company. Each party to this Agreement acknowledges that no
representation, inducement, promise or agreement, oral or written, has been made
by either party or by anyone acting on behalf of either party which is not
embodied herein, and that no agreement, statement or promise relating to the
employment of ▇▇▇▇▇ by the Company, which is not contained in this Agreement, or
any exhibits hereto, shall be valid or binding. Any modification or amendment of
this Agreement will be effective only if it is in writing and signed by each of
the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
▇▇▇▇▇▇▇▇▇▇▇ ENTERRA, INC.
By:______________________
______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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