Exhibit 10.13
EMPLOYMENT AGREEMENT
This Agreement entered into as of the 30th day of September, 1999 (the
"Effective Date"), by and between Remington Oil and Gas Corporation (the
"Company") and [Name] (the "Executive").
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company in the capacities and for the term and
compensation and subject to the terms and conditions hereinafter set forth,
and
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is essential and in the best interest of the Company and its
stockholders to retain the services of the Executive especially in the event
of a threat or occurrence of a Change of Control and to ensure his continued
dedication and efforts in such event without undue concern for his personal
financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company particularly in the event of a threat or an occurrence of a Change in
Control, the Company desires to enter into this Agreement with the Executive
to provide the Executive with certain benefits during the term of his
employment before and after a Change of Control and to provide the Executive
with the Gross-Up Payment (as hereinafter defined).
NOW, THEREFORE, in consideration of the respective agreements of the parties
contained herein, it is agreed as follows:
1. TERM OF AGREEMENT. The Employment Term shall commence on the Effective
Date and shall expire on the second anniversary of the Effective Date;
provided, however, that on each anniversary of the Effective Date, the
Employment Term shall be extended an additional one (1) year from such
anniversary at the mutual written agreement of the Company and the Executive.
2. EMPLOYMENT.
2.1 Subject to the provisions of Section 4 hereof, the Company agrees to
continue to employ the Executive and the Executive agrees to remain in the
employ of the Company during the Employment Term. During the Employment Term,
the Executive shall be employed as [Title] of the Company or in such other
senior executive capacity as may be mutually agreed to in writing by the
parties. The Executive shall perform the duties, undertake the
responsibilities and exercise the authority customarily performed, undertaken
and exercised by persons situated in a similar executive capacity. He shall
also promote, by entertainment or otherwise, the business of the Company.
2.2 During the Employment Term, excluding periods of vacation and sick leave
to which the Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and affairs
of the Company to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder. The Executive may (1) serve on
corporate, civil or charitable boards or committees, (2) manage personal
investments, and (3) deliver lectures and teach at educational institutions
or events so long as such activities do not significantly interfere with the
performance of the Executive's duties hereunder. It is expressly understood
and agreed that to the extent that any such activities have been conducted by
the Executive prior to the Effective Date, the continued conduct of such
activities (or the conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to interfere
with the performance of the Executive's responsibilities to the Company.
3. COMPENSATION
3.1 Base Salary. During the Employment Term, the Company agrees to pay or
cause to be paid to the Executive an annual base salary of $[ ],
and as may be increased from time to time at the discretion of the Board or
its designee, the Compensation Committee of the Board (the "Compensation
Committee"), (hereinafter referred to as the "Base Salary"). Such Base Salary
shall be payable in accordance with the Company's customary practices
applicable to its executives.
3.2 Bonus. In addition to the Base Salary, the Executive shall be entitled
to an annual performance bonus (the "Bonus"). The amount of the Bonus shall
be targeted at 20% of the Base Salary (the "Targeted Bonus"), provided,
however, that the amount of the Bonus may be increased or decreased at the
discretion of the Board or the Compensation Committee. Each Bonus shall be
paid no later than the end of the third month of the fiscal year next
following the fiscal year for which the Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Bonus.
3.3 Benefits. During the Employment Term, the Executive shall be entitled
to participate in all employee, executive or key-employee benefit or
incentive compensation plans maintained or established by the Company for the
purpose of providing compensation and/or benefits to employees, executives or
key employees, generally, including without limitation, all pension,
retirement, profit sharing, savings, stock option, deferred compensation,
restricted stock grants, medical, hospitalization, dental, disability, life
or travel accident insurance plans. Unless otherwise provided herein, the
compensation and benefits hereunder and the Executive's participation in such
plans, practices and programs shall be on the same basis and terms as
applicable to the other eligible participants in the particular plan,
practice or program. No additional compensation provided under any such plans
shall be deemed to modify or otherwise affect the terms of this Agreement or
any of the Executive's entitlements hereunder.
3.4 Vacation and Sick Leave. During the Employment Term, at such reasonable
times as the Board shall in its discretion permit, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement, provided that: (1) the
Executive shall be entitled to four (4) weeks of annual paid vacation; such
vacation to be taken in accordance with the policies of the Company in regard
to vacation, and (2) the Executive shall be entitled to sick leave (without
loss of pay) in accordance with the Company's policies in effect from time to
time.
3.5 Fringe Benefits, Perquisites and Expenses. During the Employment Term,
the Executive shall be entitled to all fringe benefits and perquisites
generally made available by the Company to its executives. The Executive
shall be entitled to receive prompt reimbursement of all expenses reasonably
incurred by him in connection with the performance of his duties hereunder or
for promoting, pursuing or otherwise furthering the business or interest of
the Company.
4. TERMINATION
4.1 During the Employment Term, the Executive's employment hereunder may be
terminated under the following circumstances:
(1) Cause. The Company may terminate the Executive's employment for "Cause"
by written notice to the Executive ("Notice of Termination"), which
termination shall be effective upon the date of sending of such notice (the
"Termination Date"), if the Executive, as determined by at least two-thirds
(2/3rds) of the Board, not including the Executive who will not be entitled
to vote on the issue in the event he is a member of the Board, (a) shall have
been convicted of a felony or entered a plea of nolo contendere to a felony
charge, (b) shall have been involved in any act of material fraud, theft, or
other material misconduct detrimental to the best interests of the Company,
(c) shall have engaged in gross negligence or willful misconduct with respect
to his duties to the Company and as a result caused material harm to the
Company, (d) shall have engaged in competitive behavior against the Company,
misappropriated or aided in misappropriating a material opportunity of the
Company, secured or attempted to secure a personal benefit not fully
disclosed to and approved by a majority of the Board in connection with any
transaction of or on behalf of the Company, or (e) shall have failed to
substantially perform his duties as set forth herein.
(2) Disability. The Company may terminate the Executive's employment after
having established the Executive's disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs
the Executive's ability to substantially perform his duties under this
Agreement, which continues for a period of at least one hundred eighty (180)
continuous days. The Executive shall be entitled to the base compensation and
benefits provided under this Agreement for any period during the Employment
term and prior to the establishment of the Executive's Disability during
which the Executive is unable to work due to a physical or mental infirmity.
Notwithstanding anything contained in this Agreement to the contrary, until
the Termination Date specified in the Notice of Termination (as each term is
hereinafter defined) relating to the Executive's disability, the Executive
shall be entitled to return to his position with the Company as set forth in
this Agreement in which event no Disability of the Executive will be deemed
to have occurred.
(3) Death. In the event of the death of the Executive during the term of
his employment hereunder, his employment shall terminate on the date of the
death of the Executive.
(4) Good Reason. The Executive may terminate his employment for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean the
occurrence within twelve (12) months after a Change in Control of any of the
following events or conditions described in Subsections (a) through (d)
hereof: (a) any change in the Executive's title, position, duties or
responsibilities that results in the Executive not having duties and
responsibilities substantially equivalent to or greater than those the
Executive had immediately prior to such change, (b) the assignment to the
Executive of any duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with his status, title, position or
responsibilities, (c) any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions, except in
connection with the termination of his employment for Disability, Cause, as
a result of his death or by the Executive other than for Good Reason, or (d)
a reduction in the Executive's Base Salary, Bonus or any failure to pay the
Executive any compensation or benefits to which he is entitled within ten
(10) days of the date due.
4.2 Upon termination of the Executive's employment during the Employment
Term, the Executive shall be entitled to the following benefits:
(1) If the Executive's employment with the Company is terminated (a) by the
Company for Cause or Disability, (b) by reason of the Executive's death, or
(c) by the Executive other than for Good Reason, the Company shall pay the
Executive, or to the beneficiary designated by the Executive by written
notice to the Company, or failing such designation, to his estate all amounts
earned or accrued through the Termination Date, including Base Salary,
reimbursement for reasonable and necessary expenses incurred by the Executive
on behalf of the Company during the period ending on the Termination Date,
and all unpaid accumulated and accrued benefits due under any benefit plan or
program in which the Executive was a participant in accordance with the terms
and conditions of such plan or program ("Accrued Compensation"). In addition
to the foregoing, if the Executive's employment is terminated by the Company
for Disability or by reason of the Executive's death, the Company shall pay
the Executive or his beneficiaries an amount equal to his target Bonus
multiplied by a fraction, the numerator of which is the number of days in
such fiscal year through the Termination Date and the denominator of which is
365 ("Pro Rata Bonus"). The Executive's entitlement to any other
compensation or benefits shall be determined in accordance with the Company's
employee benefit plan, including stock option plans, and other applicable
programs and practices then in effect.
(2) If the Executive's employment is terminated by the Company prior to a
change of control for reasons other than Cause, Disability, or by reason of
the Executive's death, the Executive will be entitled to the following: (a)
the Company shall pay the Executive all Accrued Compensation and a Pro Rata
Bonus, (b) the Company shall pay the Executive as severance pay and in lieu
of any further compensation for periods subsequent to the Termination Date,
in a single payment, an amount in cash equal to one (1) times the sum of the
Executive's then current Base Salary, (c) the Company shall provide the
Executive twelve (12) months of out placement services at the Company's sole
expense, (d) for a term of one (1) year following the Termination Date, or
until the Executive gains new employment with substantially similar benefits,
the Company, at its expense, shall provide the Executive and his immediate
family the highest level of health benefits, including, without limitation,
medical, dental, disability, and life insurance, provided the Executive and
his immediate family at any time within six (6) months of the Termination
Date, and (e) all stock options granted the Executive will be immediately
vested in accordance with any stock option agreements between the Executive
and the Company currently in effect at the Termination Date.
(3) If the Executive's employment is terminated by the Company within twelve
(12) months after a change of control for reasons other than Cause,
Disability, by reason of the Executive's death; or if the Executive
terminates his employment with the Company for Good Reason, the Executive
will be entitled to the following: (a) the Company shall pay the Executive
all Accrued Compensation and a Pro Rata Bonus, (b) the Company shall pay the
Executive as severance pay and in lieu of any further compensation for
periods subsequent to the Termination Date, in a single payment, an amount in
cash equal to two (2) times the sum of (i) the Executive's then current Base
Salary and (ii) the Targeted Bonus (not subject to reduction), (c) the
Company shall provide the Executive twelve (12) months of out placement
services at the Company's sole expense, (d) for a term of two (2) years
following the Termination Date, or until the Executive gains new employment
with substantially similar benefits, the Company, at its expense, shall
provide the Executive and his immediate family the highest level of health
benefits, including, without limitation, medical, dental, disability, and
life insurance, provided the Executive and his immediate family at any time
within six (6) months of the Termination Date, and (e) all stock options
granted the Executive will be immediately vested in accordance with any stock
option agreements between the Executive and the Company currently in effect
at the Termination Date.
4.3 The amounts provided for in Sections 4.2(1), 4.2(2) and 4.3(3) of this
Agreement shall be paid within five (5) days after the Executive's
Termination Date.
4.4 The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided the Executive in any subsequent employment
except as provided in Section 4.2(2)(d).
4.5 The severance pay and benefits provided for in Sections 4.2(1) and
4.2(2) of this Agreement shall be in lieu of any other severance pay to which
the Executive may be entitled under any Company severance plan, program or
arrangement.
4.6 As used in this Agreement, the term "Change of Control" shall have the
same meaning as ascribed to it in the Company's 1997 Stock Option Plan
(Exhibit A) or as amended from time to time.
5. EXCISE TAX PAYMENTS
5.1 In the event that any payment or benefit (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") to the
Executive or for his benefit paid or payable pursuant to the terms of this
Agreement or otherwise arising out of his employment with the Company, or a
change of ownership or effective control of the Company or of a substantial
portion of its assets (a "Payment" or "Payments"), would be subject to excise
tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest or penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive will be entitled to
receive an additional payment (the "Gross-Up Payment") in an amount such that
after payment by the Executive of all applicable taxes, interest and
penalties (other than interest and penalties due to the Executive's failure
to timely file a tax return or pay taxes shown on his return) including any
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
5.2 The Company shall bear any expense necessary in determining whether a
Gross-Up Payment is required pursuant to this Agreement. The Gross-Up
Payment, if any, shall be paid by the Company to the Executive within five
days of the Company's receipt of a determination from any accounting firm
satisfactory to the Executive that such Gross-Up Payment is required.
6. CONFIDENTIAL INFORMATION.
6.1 Confidentiality. The Executive acknowledges and agrees that he will
not, without the prior written consent of the Company, at any time during the
Employment Term or for a period of three (3) years thereafter, except as may
be required by any competent legal authority, use or disclose to any person,
firm or other legal authority, any confidential records, secrets or
information related to the Company or any of its subsidiaries. The Executive
acknowledges and agrees that all information and secrets of the Company
and/or its subsidiaries that he has acquired or may acquire, were received,
or will be received in confidence and as a fiduciary of the Company. The
Executive will exercise utmost diligence to protect and guard such
information and secrets.
6.2 Covenant Against Competition. During the term of this Agreement and
only prior to a change of control and for a period of one (1) year after the
termination of this Agreement, the Executive shall not have any interest in
or be engaged by any business or enterprise that is in the business of
exploring for, developing, or producing hydrocarbons in specific areas where
the Company has interests at the time of termination of this Agreement.
Company interest shall be deemed an area within a two (2) mile radius from
the current owned acreage or active prospect area. For purposes of this
Section, the Executive shall be deemed to have an "interest in or be engaged
by a business or enterprise" if the Executive acts (a) individually, (b) as a
partner, officer, director, shareholder, employee, associate, agent or owner
of an entity, or (c) as an advisor, consultant, leader or other person
related, directly or indirectly, to any business or entity that is engaging
in, or is planning to engage in, exploring for, developing, or producing
hydrocarbons in specific areas where the Company has interests (the
"Prohibited Activity"). Ownership of less than five percent (5%) of the
outstanding capital stock of a publicly traded entity that engages in any
Prohibited Activity shall not be in violation of this Section.
6.3 Non-Solicitation. The Executive further agrees that during employment
by the Company and for a period of one (1) year after termination of
employment prior to a change of control, except when acting on behalf of the
Company, the Executive will not, directly or indirectly, in any manner or
capacity induce any person, who at any time during the Executive's employment
was an employee of the Company, to discontinue his or her employment in the
Company or to interfere with the business of the Company.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the Company, its successors and assigns and the
Company shall require any successor or assign 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 if no such succession or assignment had
taken place. The term "Company" as used herein shall include such successors
and assigns. The term "successors and assigns" as used herein shall mean a
corporation or other entity acquiring all or substantially all the assets and
the business of the Company (including this Agreement) whether by operation
of law or otherwise. Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of
descent or distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
8. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in this Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each
party to the other, provided, that all notices to the Company shall be
directed to the Board with a copy to the Secretary of the Company.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of
its subsidiaries and for which the Executive may qualify, nor shall anything
herein limit or reduce such rights as the Executive may have under any other
agreements with the Company or its subsidiaries. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any
plan or program of the Company or any of its subsidiaries shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
10. SETTLEMENT OF CLAIMS. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including without
limitation, any set-off, counterclaim, defense, recoupment, or other right
which the Company may have against the Executive or others.
11. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
13. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. WAIVER OF DEFAULT. Any waiver by either party of a breach of any
provision in this Agreement shall not operate as or be construed as a waiver
of any subsequent breach thereof.
15. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes
any and all prior agreements and understandings with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the Effective Date.
Remington Oil and Gas Corporation
By:
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Title:
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Executive:
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[Name]
EXHIBIT A
A "Change in Control" shall mean any of the following events:
(i) a merger or consolidation to which the Company is a party if the
individuals and entities who were stockholders of the Company immediately
prior to the effective date of such merger or consolidation have beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) of less than 50%
of the total combined voting power for election of directors of the surviving
corporation following the effective date of such merger or consolidation;
(ii) the acquisition or holding of direct or indirect beneficial
ownership (as defined under Rule 13d-3 of the Exchange Act) of securities of
the Company representing in the aggregate 30% or more of the total combined
voting power of the Company's then issued and outstanding voting securities
by any person, entity or group of associated persons or entities acting in
concert, other than S-Sixteen Holding Company, any employee benefit plan of
the Company or of any subsidiary of the Company, or any entity holding such
securities for or pursuant to the terms of any such plan, beginning from and
after such time as S-Sixteen Holding Company shall no longer have direct or
indirect beneficial ownership (as so defined) of securities of the Company
representing in the aggregate a larger percentage of the total combined
voting power of the Company's then issued and outstanding securities than
that held by any other person, entity or group;
(iii) the sale of all or substantially all of the assets of the
Company to any person or entity that is not a wholly owned subsidiary of the
Company; or
(iv) the approval by the stockholders of the Company of any plan or
proposal for the liquidation of the Company or its material subsidiaries,
other than into the Company.
