Exhibit 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
on April 1, 2005 (the "Effective Date") by and between Xxxxx Xxxxx ("Employee")
and GulfWest Energy Inc. (the "Company").
WHEREAS, the Company desires to employ Employee as Senior Vice
President of Land/Business Development, and Employee desires to be employed by
the Company in said capacity; and
WHEREAS, each party desires to set forth in writing the terms and
conditions of their understandings and agreements.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the Company hereby agrees to employ Employee and
Employee hereby accepts such employment upon the terms and conditions set forth
in this Agreement:
ARTICLE 1
EMPLOYMENT; RESPONSIBILITIES; COMPENSATION
Section 1.1 Employment. Subject to Article 3, the Company hereby agrees to
employ Employee and Employee hereby agrees to be employed by the Company, in
accordance with this Agreement, for the period commencing as of the Effective
Date and ending on the second anniversary of the Effective Date ("Initial
Term"); provided, however, that beginning on the day immediately preceding the
second anniversary of this Agreement and on the day immediately preceding each
anniversary of this Agreement thereafter, the Initial Term shall automatically
be extended one additional year unless either party gives written notice to the
other party between 90 and 120 days prior to the next anniversary of this
Agreement that it or he, as applicable, does not wish to extend this Agreement.
Employee's continued employment after the expiration of the Initial Term shall
be in accordance with and governed by this Agreement, unless modified by the
parties to this Agreement in writing.
Section 1.2 Responsibilities; Loyalty.
(a) Subject to the terms of this Agreement, Employee is employed in the
position of Senior Vice President of Operations, and shall perform the functions
and responsibilities of that position. Additional or different duties may be
assigned by the Company. Employee's position, job descriptions, duties and
responsibilities may be modified from time to time in the sole discretion of the
Company.
(b) Employee shall devote the whole of Employee's professional time,
attention and energies to the performance of Employee's work responsibilities
and shall not, either directly or indirectly, alone or in partnership, consult
with, advise, work for or have any interest in any other business or pursuit
during Employee's employment under this Agreement. During the term of Employee's
employment with the Company, it shall not be a violation of this Agreement for
Employee to (i) serve on corporate, civic or charitable boards or committees;
(ii) deliver lectures or fulfill speaking engagements; and (iii) subject to
Section 2.3, manage personal investments, in each case, so long as such
activities do not materially interfere with the performance of Employee's
responsibilities as an employee of the Company in accordance with this
Agreement. Employee further agrees to comply with all policies of the Company in
effect from time to time, and to comply with all laws, rules and regulations,
including those applicable to the Company
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Section 1.3 Compensation. As consideration for the services and covenants
described in this Agreement, the Company agrees to compensate Employee in the
following manner:
(a) The Company will pay Employee a base salary of $185,000 per year ("Base
Salary").
(b) Employee shall be entitled to employment benefits including holidays,
leaves of absence, health insurance, dental insurance, 401(k) plan
participation, etc., if any, available to employees of the Company generally, in
accordance with any policies, procedures or benefit plans adopted by the Company
from time to time during the existence of this Agreement. In addition, Employee
shall be entitled to vacation in accordance with the Company's vacation policy
as adopted from time to time. Employee's rights or those of Employee's
dependents under any such benefits policies or plans shall be governed solely by
the terms of such policies or plans. The Company reserves to itself, or its
designated administrators, exclusive authority and discretion to determine all
issues of eligibility, interpretation and administration of each such benefit
plan or policy. The Company's employment benefits, and policies related thereto,
are subject to termination, modification or limitation at the Company's sole
discretion.
(c) Employee shall be eligible to receive, for each full calendar year in
which Employee is employed by the Company hereunder, a bonus of 0% to 70% of
Base Salary established by the Board of Directors of the Company or a duly
authorized committee thereof (the "Board") in its sole discretion
("Discretionary Bonus").
(d) Payment of all compensation to Employee shall be made in accordance
with the terms of this Agreement, applicable state or federal law, and
applicable Company policies in effect from time to time, including normal
payroll practices, and shall be subject to all applicable withholdings and
taxes.
Section 1.4 Business Expenses. The Company shall reimburse Employee for all
business expenses that are reasonable and necessary and incurred by Employee
while performing his duties under this Agreement, upon presentation of expense
statements, receipts and/or vouchers or such other information and documentation
as the Company may reasonably require.
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ARTICLE 2
CONFIDENTIAL INFORMATION; POST-EMPLOYMENT
OBLIGATIONS; COMPANY PROPERTY
Section 2.1 Company Property. All written materials, records, data and
other documents prepared or possessed by Employee during Employee's employment
by the Company are the Company's property. All information, ideas, concepts,
improvements, discoveries and inventions that are conceived, made, developed or
acquired by Employee individually or in conjunction with others during
Employee's employment (whether during business hours and whether on Company's
premises or otherwise) that relate to Company business, products or services are
the Company's sole and exclusive property. All memoranda, notes, records, files,
correspondence, drawings, manuals, models, specifications, computer programs,
maps and all other documents, data or materials of any type embodying such
information, ideas, concepts, improvements, discoveries and inventions are
Company property. At the termination of Employee's employment with the Company
for any reason, Employee shall return all of the Company's documents, data or
other Company property to the Company.
Section 2.2 Confidential Information; Non-Disclosure.
(a) Employee acknowledges that the business of the Company is highly
competitive and that the Company will provide Employee with access to
Confidential Information relating to the business of the Company. Employee
acknowledges that this Confidential Information constitutes a valuable,
special and unique asset used by the Company in its business to obtain a
competitive advantage over competitors. Employee further acknowledges that
protection of such Confidential Information against unauthorized disclosure
and use is of critical importance to the Company in maintaining its
competitive position. Employee agrees that Employee will not, at any time
during or after Employee's employment with the Company, make any
unauthorized disclosure of any Confidential Information of the Company, or
make any use thereof, except in the carrying out of Employee's employment
responsibilities to the Company. Employee also agrees to preserve and
protect the confidentiality of third party Confidential Information to the
same extent, and on the same basis, as the Company's Confidential
Information.
(b) For purposes hereof, "Confidential Information" includes business
operations and methods, existing and proposed investments and investment
strategies, seismic, well-log and other geologic and oil and gas operating
and exploratory data, financial performance, compensation arrangements and
amounts (whether relating to the Company or to any of its employees),
contractual relationships, business partners and relationships (including
customers and suppliers), marketing strategies and other confidential
information that is regularly used in the operation, technology and
business dealings of the Company, regardless of the medium in which any of
the foregoing information is contained, so long as such information is
actually confidential and proprietary to the Company.
Section 2.3 Non-Competition Obligations.
(a) Employee acknowledges and agrees that as an employee and
representative of the Company, Employee will be responsible for building
and maintaining business relationships and goodwill with current and future
operating partners, investors, partners and prospects on a personal level.
Employee acknowledges and agrees that this responsibility creates a special
relationship of trust and confidence between the Company, Employee and
these persons or entities. Employee also acknowledges that this creates a
high risk and opportunity for Employee to misappropriate these
relationships and the goodwill existing between the Company and such
persons. Employee acknowledges and agrees that it is fair and reasonable
for the Company to take steps to protect itself from the risk of such
misappropriation.
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(b) Employee acknowledges and agrees that, in exchange for his
agreement in Section 2.3(c) below, he will receive substantial, valuable
consideration from the Company immediately upon the execution of this
Agreement, including, (i) Confidential Information and access to
Confidential Information, (ii) compensation and other benefits and (c)
access to the Company's prospects.
(c) During the Non-Compete Term and provided that the Company has made
all severance payments provided for herein, Employee will not, directly or
indirectly, provide the same or substantially the same services that he
provides to the Company or any of its subsidiaries to any Business
Enterprise in the Market Area (as defined below). This includes working as
an agent, consultant, employee, officer, director, consultant, partner or
independent contractor or being a shareholder, member, joint venturer or
equity owner in, any such Business Enterprise.
(d) For purposes of hereof:
(i) "Business Enterprise" means any corporation, partnership,
limited liability company, sole proprietorship, joint venture or other
business association or entity engaged in the business of exploring
for, developing, operating or acquiring oil and gas properties;
(ii) "Market Area" means any hydrocarbon producing geologic
basins in which a material amount of oil, gas or other mineral
properties are owned, or otherwise held for the benefit of, the
Company; and
(iii) "Non-Compete Term" means the period from the date of
Employee's employment to the date ending: (A) except as contemplated
by (B) or (C), 12 months following the date of termination of
Employee's employment by the Company without Cause or by the Employee
for Good Reason, (B) 24 months following the date of termination of
Employee's employment with the Company (I) by the Company for Cause,
or (II) if Employee gives notice of his desire to accept the extension
of such period under Section 3.2 and Employee's employment has been
terminated by the Company without Cause or by Employee for Good
Reason, and (C) 12 months, if Employee's employment is terminated by
the Company without Cause or Employee terminates his employment for
Good Reason within 12 months following a Change of Control.
Section 2.4 Non-Solicitation of Employees. During the Non-Compete Term,
Employee will not, either directly or indirectly, call on, solicit or induce any
other employee or officer of the Company or its affiliates with whom Employee
had contact with, knowledge of, or association with in the course of employment
with the Company to terminate his employment, and will not assist any other
person or entity in such a solicitation; provided, however, that with respect to
any employee or officer whose employment was terminated by the Company or its
affiliates, the foregoing restriction shall only apply for the six month period
commencing the date of such termination.
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Section 2.5 Acknowledgement. Employee acknowledges that the Confidential
Information provided to Employee pursuant to this Agreement, and the Company's
need to protect its goodwill, gives rise to the Company's interest in these
restrictive covenants, and that any limitations as to time, geographic scope and
scope of activity to be restrained defined herein are reasonable and do not
impose a greater restraint than is necessary to protect the goodwill or other
business interest of the Company. Employee further agrees that if, at some later
date, a court of competent jurisdiction determines that certain covenants do not
meet the criteria set forth in Tex. Bus. & Com. Code ss. 15.50(2), those
covenants shall be reformed by the court, pursuant to Tex. Bus. & Com. Code ss.
15.51(c), to the least extent necessary to make them enforceable. Employee
acknowledges and recognizes that the enforcement of any of the provisions in
this Agreement by the Company will not interfere with Employee's ability to
pursue a proper livelihood.
Section 2.6 Early Resolution Conference. The parties are entering into this
Agreement with the express understanding that this Agreement is clear and fully
enforceable as written. If Employee ever decides later to contend that any
restriction on activities imposed by this Agreement no longer is enforceable as
written or does not apply to an activity in which Employee intends to engage,
Employee first will notify the Company in writing and meet with a company
representative at least 14 days before engaging in any activity that foreseeably
could fall within the questioned restriction to discuss resolution of such
claims.
Section 2.7 Equitable Other Relief. Employee understands and agrees that,
if Employee breaches this Agreement, the Company will suffer immediate and
irreparable harm which cannot be accurately calculated in monetary damages.
Consequently, the Company shall be entitled to immediate injunctive relief,
either by temporary or permanent injunction, to prevent such violation. This
injunctive relief shall be in addition to any other legal or equitable relief to
which the Company would be entitled. If a bond is required to be posted for the
Company to secure an injunction or other equitable remedy, threatened or actual,
Employee agrees that the bond need not be more than a nominal sum. The Company
shall be entitled to recover its attorneys' fees and costs from Employee should
Employee breach this Agreement. In addition, in the event of an alleged breach
or violation of this Agreement, the time periods set forth above will be tolled
until such breach or violation has been cured.
ARTICLE 3
TERMINATION OF EMPLOYMENT
Section 3.1 Termination of Employment.
(a) Employee's employment with Company shall be terminated (i)
immediately upon the death of Employee without further action by the
Company, (ii) upon Employee's Permanent Disability without further action
by the Company, (iii) by the Company for Cause, (iv) by Employee for Good
Reason, (v) by the Company without Cause or by Employee without Good Reason
provided that the terminating party must give at least 30 days' advance
written notice of such termination.
(b) For purposes hereof:
(i) "Permanent Disability" shall mean Employee's physical or
mental incapacity to perform his usual duties with such condition
likely to remain continuously and permanently as determined by the
Board.
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(ii) "Good Reason" shall mean (A) a material breach by the
Company of any provision of this Agreement that remains uncorrected
for 10 days following written notice of such breach by Employee to the
Company identifying the provision of this Agreement that Employee
determined has been breached; (B) assignment by the Board to Employee
of any duties that materially and adversely alter the nature or status
of Employee's position, job descriptions, duties, title or
responsibilities from those of a Senior Vice President of
Land/Business Development, or eligibility for Company compensation
plans; (C) requirement by the Company for Employee to relocate
anywhere other than the greater Houston, Texas metropolitan area,
except for required travel on Company business to an extent
substantially consistent with Employee's obligations under this
Agreement; (D) reduction in Employee's Base Salary in effect at the
relevant time; or (E) exclusion of the Employee from eligibility for
the Company's bonus plan as described above.
(iii) "Cause" shall include (A) continued failure by Employee to
perform substantially Employee's duties and responsibilities (other
than a failure resulting from Permanent Disability) that remains
uncorrected for ten days after receipt of appropriate written notice
from the Board; (B) engagement by Employee in willful, reckless or
grossly negligent misconduct that is materially injurious to Company
or any of its affiliates, monetarily or otherwise; (C) except as
provided by (D), the charging of Employee with a crime involving moral
turpitude or a felony, provided that if the criminal charge is
dismissed with prejudice or if Employee is acquitted at trial or on
appeal, Employee will be deemed to have been terminated without Cause;
(D) the charging of Employee with an act of criminal fraud,
misappropriation or personal dishonesty, provided that if the criminal
charge is subsequently dismissed with prejudice or the Employee is
acquitted at trial or on appeal then the Employee will be deemed to
have been terminated without Cause; or (E) a material breach by
Employee of any provision of this Agreement that remains uncorrected
for 10 days following written notice of such breach by the Company to
Employee identifying the provision of this Agreement that Company
determined has been breached.
(c) If Employee's employment is terminated under any of the foregoing
circumstances, all future compensation to which Employee is otherwise
entitled and all future benefits for which Employee is eligible, other than
that already earned but which is unpaid, shall cease and terminate as of
the date of termination, except as specifically provided in this Section 3.
Employee, or his estate in the case of Employee's death, shall be entitled
to pro rata Base Salary through the date of such termination. Any other
payments or benefits by or on behalf of Company are limited to those which
may be payable pursuant to the terms of Company's employee benefit plans or
required by any applicable federal, state or local law.
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Section 3.2 Severance.
(a)
(i) If Employee's employment is terminated by the Company without
Cause or by Employee for Good Reason, and subject to Employee's
compliance with the conditions set forth in Section 3.3, Employee
shall, subject to the provisions of this Section 3.2, be entitled to a
severance payment consisting of (A) a cash amount equal to the greater
of (I) two times the sum of the current calendar year's Base Salary
and the prior year's Discretionary Bonus, and (II) $500,000 and (B)
health insurance benefits for two years from the termination date. If
no Discretionary Bonus was paid for the year before the year in which
termination occurs, Employee shall be entitled to the greater of (A)
the amount of the Discretionary Bonus most recently paid to Employee
and (B) the Employee's target bonus (as set by the Board) for the
calendar year in which the termination occurs.
(ii) If the severance payment is to be made as result of
termination by the Company without Cause or by Employee for Good
Reason within 90 days before or 12 months after a Change of Control,
payment of the entire cash severance amount will be made in a lump sum
on the earlier of (i) the date on which the Change of Control occurs
and (ii) Employee's effective date of termination. If the Company
otherwise terminates Employee without Cause or Employee terminates his
employment for Good Reason, Employee shall receive half of the cash
severance amount in a lump sum within 15 days of termination. Employee
shall not be entitled to the remainder of the cash severance payment,
or the second year of health insurance benefits, unless Employee gives
notice to the Company within 30 days of the conclusion of the 12 month
period following his termination date that he agrees to comply with
Section 2.3(c) and Section 2.4 for an additional 12 month period and,
in consideration therefor, desires to receive the remainder of the
severance payment and an extension of health insurance benefits, in
which event Employee shall be entitled to health insurance benefits
for an additional year and the remainder of the cash severance
payment, payable monthly over the second 12 month period following the
date of Employee's termination.
(iii) Employee shall not be under any duty or obligation to seek
or accept other employment following a termination of employment
pursuant to which a severance payment under this Section 3.2 is
payable and the amounts due Employee pursuant to this Section 3.2
shall not be reduced or suspended if Employee accepts subsequent
employment or earns any amounts as a self-employed individual.
(b) If Employee's employment is terminated because of death or
Permanent Disability, Employee's family members covered by the Company
group health plan shall be reimbursed for group health plan continuation
coverage they elect to receive under the Consolidated Omnibus Budget
Reconciliation Act (COBRA) for up to 18 months, provided a member of
Employee's family provides timely notice to the health plan administrator
of Employee's death or Permanent Disability.
(c) Additional Payments.
(i) Anything in this Agreement to the contrary notwithstanding,
if it is determined that any payment, award, benefit or distribution
(or any acceleration of any payment, award, benefit or distribution)
by the Company or any entity which effectuates a change in control (or
other change in ownership) to or for the benefit of Employee would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code") ("Excess Parachute
Payments"), or any interest or penalties are incurred by Employee with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then the Company shall pay to Employee an
additional payment (a "Gross-Up Payment") in an amount equal to such
Excise Tax.
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(ii) Subject to clause (i), all determinations required to be
made under this Section, including whether and when a Gross-Up Payment
is required, the amount of such Gross-Up Payment and the assumptions
to be used in arriving at such determinations, shall be made by a
public accounting firm that is selected by the Board (the "Accounting
Firm") which shall provide detailed supporting calculations both to
the Company and Employee within 15 business days of the receipt of
notice from the Company or Employee that there has been a Excess
Parachute Payment, or such earlier time as is requested by the Company
or Employee (collectively, the "Determination"). All fees and expenses
of the Accounting Firm shall be borne solely by the Company and the
Company shall enter into any agreement requested by the Accounting
Firm in connection with the performance of the services hereunder. The
Gross-Up Payment under this Section with respect to any Excess
Parachute Payments made to Employee shall be made no later than 30
days following such Excess Parachute Payment.
(iii) As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the Determination, it is
possible that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment") or Gross-Up Payments
will be made by the Company which should not have been made
("Overpayment"), consistent with the calculations required to be made
hereunder. If Employee thereafter is required to make payment of any
Excise Tax or additional Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any
such Underpayment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) shall be promptly paid by the
Company to or for the benefit of Employee. If the amount of the
Gross-Up Payment exceeds the amount necessary to reimburse Employee
for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made and any such Overpayment (together
with interest at the rate provided in Section 1274(b)(2) of the Code)
shall be promptly paid by Employee to or for the benefit of the
Company. Employee shall cooperate, to the extent his expenses are
reimbursed by the Company, with any reasonable requests by the Company
in connection with any contest or disputes with the Internal Revenue
Service in connection with the Excise Tax.
(d) For purposes hereof: "Change of Control" means such time as
Oaktree Parties "beneficially own" (as defined under the Securities
Exchange Act of 1934, as amended) less than 10% of the Company's Common
Stock; "Oaktree Party" means each of Oaktree Capital Management, LLC, OCM
Principal Opportunities Fund III, L.P., OCM Principal Opportunities Fund
IIIA, L.P., OCM GW Holdings, LLC and any of their respective Permitted
Transferees; and "Permitted Transferee" means as to any person or entity,
(i) any general partner or managing member of such person or entity or (ii)
any partnership, limited partnership, limited liability company,
corporation or other entity organized, formed or incorporated and managed
or controlled by such person or entity, its general partner or managing
member as a vehicle for purposes of making investments; in each case so
long as such Permitted Transferee is an affiliate of Oaktree Capital
Management LLC.
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Section 3.3 Conditions for Severance.
(a) The severance payment payable to Employee pursuant to Section 3.2
shall be in consideration of Employee's continuing obligations hereunder
after such termination, including Employee's obligations under Article 2.
(b) As a condition to the receipt of any severance payment, Employee
agrees to execute and deliver a severance and release agreement, including
a waiver of all claims except for any claims relating to benefits due under
the plans described in Section 1.3(b) and any future amount which may be
payable as a deferred bonus. The severance and release agreement shall be
in a form reasonably acceptable to the Board; provided that such release
shall not provide for a release of Employee's right to indemnification
under the Company's organizational documents or directors and officers
insurance against third party claims. If Employee fails to execute and
deliver such release, Employee agrees that he shall not be entitled to
receive the severance payment described in Section 3.2.
(c) As a condition to the receipt of any severance payment, Employee
agrees that any and all claims and any and all causes of action of any kind
or character, including all claims and causes of action arising out of
Employee's employment with the Company, the termination of such employment,
any claims or demands against the Company based upon Employee's employment
for any monies other than those specified in Section 3.2, and the actions
by the officers, directors, employees and agents of Company shall be
resolved through a dispute resolution process as provided in Section 4.11;
provided, however, that any determination as to whether and as of what date
Employee has suffered a Permanent Disability are delegated to the Board and
any objection by Employee with any such determination shall be limited to
whether the Board reached such decision in good faith.
(d) Except as expressly provided herein, Employee shall not be
entitled to any other severance payment.
Section 3.4 Transition Period. Upon termination of this Agreement, and for
90 consecutive calendar days thereafter (the "Transition Period"), Employee
agrees to make himself available to assist the Company with transition projects
assigned to him by the Board. Employee will be paid at a reasonable, agreed upon
hourly rate for any work performed for the Company during the Transition Period.
Section 3.5 Continuing Obligations of Employee. Termination of the
employment relationship does not terminate those obligations of Employee imposed
by Articles 2 and Sections 3.4 through 3.5, which are continuing obligations.
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ARTICLE 4
MISCELLANEOUS
Section 4.1 Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed by certified mail (return
receipt requested) or sent by overnight delivery service, or electronic mail, or
facsimile transmission (with electronic confirmation of successful transmission)
to the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice, in order of preference of the
recipient:
To the Company:
GulfWest Energy Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention:
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Employee:
Xxxxx Xxxxx
00000 Xxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile:
Notice so given shall, in the case of mail, be deemed to be given and received
on the fifth calendar day after posting, in the case overnight delivery service,
on the date of actual delivery and, in the case of facsimile transmission, telex
or personal delivery, on the date of actual transmission or, as the case may be,
personal delivery. Any such notice or communication shall be delivered by hand
or by courier or sent certified or registered mail, return receipt requested,
postage prepaid, addressed as above (or to such other address as such party may
designate in a notice duly delivered as described above), and the third business
day after the actual date of mailing (or, if earlier, the actual date of
receipt) shall constitute the time at which notice was given.
Section 4.2 Severability and Reformation. If any one or more of the terms,
provisions, covenants or restrictions of this Agreement shall be determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions shall remain in
full force and effect, and the invalid, void or unenforceable provisions shall
be deemed severable. Moreover, if any one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it shall be reformed by
limiting and reducing it to the minimum extent necessary, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
Section 4.3 Assignment. This Agreement shall be binding upon and inure to
the benefit of the heirs and legal representatives of Employee and the permitted
assigns and successors of the Company, but neither this Agreement nor any rights
or obligations hereunder shall be assignable or otherwise subject to
hypothecation by Employee (except by will or by operation of the laws of
intestate succession) or by the Company, except that the Company may assign this
Agreement to any successor (whether by merger, purchase or otherwise), if such
successor expressly agrees to assume the obligations of the Company hereunder.
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Section 4.4 Amendment. This Agreement may be amended only by writing signed
by Employee and by a duly authorized representative of the Company (other than
Employee).
Section 4.5 Assistance in Litigation. Employee shall reasonably cooperate
with the Company in the defense or prosecution of any claims or actions now in
existence or that may be brought in the future against or on behalf of the
Company that relate to events or occurrences that transpired while Employee was
employed by the Company. Employee's cooperation in connection with such claims
or actions shall include being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually
convenient times. Employee also shall cooperate fully with the Company in
connection with any investigation or review by any federal, state or local
regulatory authority as any such investigation or review relates, to events or
occurrences that transpired while Employee was employed by the Company. The
Company will pay Employee an agreed upon reasonably hourly rate for Employee's
cooperation pursuant to this Section.
Section 4.6 Beneficiaries; References. Employee shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Employee's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Employee's death or a judicial
determination of his incompetence, reference in this Agreement to Employee shall
be deemed, where appropriate, to refer to his beneficiary, estate or other legal
representative. Any reference to the masculine gender in this Agreement shall
include, where appropriate, the feminine.
Section 4.7 Use of Name; Likeness and Biography. The Company may use,
publish and broadcast, and to authorize others to do so, the name, approved
likeness and approved biographical material of Employee to advertise, publicize
and promote the business of the Company and its affiliates, but not for the
purposes of direct endorsement without Employee's consent. This right shall
terminate upon the termination of this Agreement. An "approved likeness" and
"approved biographical material" shall be, respectively, any photograph or other
depiction of Employee, or any biographical information or life story concerning
the professional career of Employee.
Section 4.8 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT
REFERENCE TO RULES RELATING TO CONFLICTS OF LAW.
Section 4.9 Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes in all respects any prior or other agreement or
understanding, written or oral, between the Company or any affiliate of the
Company and Employee with respect to such subject matter.
Section 4.10 Counterparts; No Electronic Signatures. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original.
For purposes of determining whether a party has signed this Agreement or any
document contemplated hereby or any amendment or waiver hereof, only a
handwritten signature on a paper document or a facsimile transmission of a
handwritten original signature will constitute a signature, notwithstanding any
law relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
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Section 4.11 Arbitration. Other than as provided in Article 3, the parties
agree that any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by arbitration administered
by the American Arbitration Association ("AAA") under its Commercial Arbitration
Rules. All disputes shall be resolved by one arbitrator within 120 days of the
date arbitration is initiated. The arbitrator will have the authority to award
the same remedies, damages and costs that a court could award, and will have the
additional authority to award those remedies set forth in Article 3. The
arbitrator shall issue a reasoned award explaining the decision, the reasons for
the decision and any damages awarded, including those set forth in Article 3,
where the arbitrator finds Employee violated Article 3. The arbitrator's
decision will be final and binding. The judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration proceedings, any record of the same, and the award shall be
considered Confidential Information under this Agreement. This provision can be
enforced under the Federal Arbitration Act.
Section 4.12 Non-Waiver. The failure by either party to insist upon the
performance of any one or more terms, covenants or conditions of this Agreement
shall not be construed as a waiver or relinquishment of any right granted
hereunder or of any future performance of any such term, covenant or condition,
and the obligation of either party with respect hereto shall continue in full
force and effect, unless such waiver shall be in writing signed by the Company
(other than Employee) and Employee.
Section 4.13 Announcement. The Company may make public announcements
concerning the execution of this Agreement and the terms contained herein, at
the Company's discretion.
Section 4.14 Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed in accordance to its fair meaning and not
strictly for or against the Company or Employee. The words "include,"
"includes," and "including" will be deemed to be followed by "without
limitation."
Section 4.15 Right to Insure. The Company shall have the right to secure,
in its own name or otherwise, and at its own expense, life, health, accident or
other insurance covering Employee, and Employee shall have no right, title or
interest in and to such insurance. Employee shall assist the Company in
procuring such insurance by submitting to examinations and by signing such
applications and other instruments as may be required by the insurance carriers
to which application is made for any such insurance.
Section 4.16 No Inconsistent Obligations. Employee represents and warrants
that to his knowledge he has no obligations, legal, in contract or otherwise,
inconsistent with the terms of this Agreement or with his undertaking employment
with the Company to perform the duties described herein. Employee will not
disclose to the Company, or use or induce the Company to use, any confidential,
proprietary or trade secret information of others. Employee represents and
warrants that to his knowledge he has returned all property and confidential
information belonging to all prior employers, if he is obligated to do so.
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Section 4.17 Voluntary Agreement. Each party to this Agreement has read and
fully understands the terms and provisions hereof, has reviewed this Agreement
with legal counsel, has executed this Agreement based upon such party's own
judgment and advice of counsel, and knowingly, voluntarily, and without duress,
agrees to all of the terms set forth in this Agreement. The parties have
participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption or burden of
proof will arise favoring or disfavoring any party because of authorship of any
provision of this Agreement. Except as expressly set forth in this Agreement,
neither the parties nor their affiliates, advisors and/or their attorneys have
made any representation or warranty, express or implied, at law or in equity
with respect of the subject matter contained herein. Without limiting the
generality of the previous sentence, the Company, its affiliates, advisors
and/or attorneys have made no representation or warranty to Employee concerning
the state or federal tax consequences to Employee regarding the transactions
contemplated by this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above:
GULFWEST ENERGY INC.
By:/s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
/s/ Xxxxx Xxxxx
---------------------------------------------
Xxxxx Xxxxx
Signature Page to Price Employment Agreement
