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EXHIBIT 10.26
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including Exhibit A hereto, is
entered into between Queen Sand Resources, Inc., a Delaware corporation having
offices at 0000 Xxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Employer"), and V. Xx
Xxxxxx, an individual whose address is 912 Austin, Xxxxxx, Xxxxx 00000
("Employee"), to be effective as of June 1, 1997 (the "Effective Date").
WITNESSETH:
WHEREAS, Employer is desirous of employing Employee pursuant to the
terms and conditions and for the consideration set forth in this Agreement, and
Employee is desirous of entering the employ of Employer pursuant to such terms
and conditions and for such consideration.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer and Employee agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES.
1.1 Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, beginning as of the Effective Date and continuing until
the date set forth in Exhibit A to this Agreement (the "Term") subject to the
terms and conditions of this Agreement.
1.2 Employee initially shall be employed in the position set forth in
Exhibit A to this Agreement. Employer may subsequently assign Employee to a
different position or modify Employee's duties and responsibilities consistent
with the Employee's existing duties, responsibilities and level of authority.
Employer may assign this Agreement and Employee's employment to any of its
affiliates. Employee agrees to serve in the assigned position and to perform
diligently and to the best of Employee's abilities the duties and services
appertaining to such position as determined by Employer, as well as such
additional or different duties and services appropriate to such position which
Employee from time to time may be reasonably directed to perform by Employer.
Employee shall at all times comply with and be subject to such policies and
procedures as Employer may establish from time to time.
1.3 Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best efforts to the
business and affairs of Employer. Employee may not engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Employee's performance of Employee's duties hereunder, is contrary to the
interests of Employer, or requires any significant portion of Employee's
business time.
1.4 In connection with Employee's employment by Employer, Employer
shall endeavor to provide Employee access to such confidential information
pertaining to the business and services of Employer as is appropriate for
Employee's employment responsibilities. Employer also shall endeavor to provide
to Employee the opportunity to
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develop business relationships with those of Employer's clients and potential
clients that are appropriate for Employee's employment responsibilities.
1.5 Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Employer and to do no act which would injure Employer's
business, its interests, or its reputation. It is agreed that any direct or
indirect interest in, connection with, or benefit from any outside activities,
particularly commercial activities, which interest might in any way adversely
affect Employer or any of its affiliates, involves a possible conflict of
interest. In keeping with Employee's fiduciary duties to Employer, Employee
agrees that Employee shall not knowingly become involved in a conflict of
interest with Employer or its affiliates, or upon discovery thereof, allow such
a conflict to continue. Moreover, Employee agrees that Employee shall disclose
to Employer's Board of Directors any facts which might involve such a conflict
of interest.
1.6 Employer and Employee recognize that it is impossible to provide an
exhaustive list of actions or interests that constitute a conflict of interest.
Moreover, Employer and Employee recognize there are many borderline situations.
In some instances, full disclosure of facts by the Employee to Employer's Board
of Directors may be all that is necessary to enable Employer or its affiliates
to protect their interests. In others, if no improper motivation appears to
exist and the interests of Employer or its affiliates have not suffered, prompt
elimination of the outside interest will suffice. In still others, it may be
necessary for Employer to terminate the employment relationship. Employer and
Employee agree that Employer's determination as to whether a conflict of
interest exists shall be conclusive. Employer reserves the right to take such
action as, in its judgment, will end the conflict.
ARTICLE 2: COMPENSATION AND BENEFITS.
2.1 The Employee shall be entitled to receive the salary set forth in
Exhibit A to this Agreement and to participate in any other compensation and
benefit plans referred to on Exhibit A to this Agreement, which benefit plans
are implemented by the Company after the date hereof, in each case to the extent
determined by the Board (or a Compensation Committee thereof).
2.2 While employed by Employer (both during the Term and thereafter),
Employee shall be allowed to participate, on the same basis generally as other
employees of Employer, in all general employee benefit plans and programs,
including improvements or modifications of the same, which on the Effective Date
or thereafter are made available by Employer to all or substantially all of
Employer's employees. Such benefits, plans, and programs may, but are not
required to, include, without limitation, medical, health, and dental care, life
insurance, disability protection, pension plans, relocation, automobile
allowance and directors liability insurance. Nothing in this Agreement is to be
construed or interpreted to provide greater rights, participation, coverage, or
benefits under such benefit plans or programs than provided to similarly
situated employees pursuant to the terms and conditions of such benefit plans
and programs. Employee shall have the right to participate in an incentive
compensation plan for similarly situated employees to be adopted by Employer
(the "Plan"). The Plan shall provide for at least annual awards of cash,
performance shares or units, or other performance- or incentive-based
compensation, or any combination thereof, upon meeting the Employer's targeted
performance objectives for the award year.
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2.3 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
such incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally. Moreover,
unless specifically provided for in a written plan document adopted by the Board
of Directors of Employer, none of the benefits or arrangements described in this
Article 2 shall be secured or funded in any way, and each shall instead
constitute an unfunded and unsecured promise to pay money in the future
exclusively from the general assets of Employer.
2.4 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
2.5 The Employer shall reimburse the Employee for all reasonable,
ordinary and necessary expenses incurred by him in connection with his duties
upon production of receipts and an itemized account; provided, that, the
Employee shall obtain the prior approval of the Board for any expense greater
than $10,000.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM.
3.1 Notwithstanding any other provisions herein to the contrary,
Employer shall have the right to terminate Employee's employment under this
Agreement at any time prior to the expiration of the Term for any of the
following reasons:
(i) For cause upon the good faith determination by the
Employer's Board of Directors that cause exists for the termination of
the employment relationship. As used in this Section 3.1(i), the term
"cause" shall mean (a) Employee has willfully refused without proper
legal reason to perform a duty or responsibility required of Employee
under this Agreement which remains uncorrected for fifteen (15) days
following written notice to Employee by Employer of such breach; (b)
Employee has been convicted of a felony (which, through lapse of time
or otherwise, is not subject to appeal); (c) Employee's involvement in
a conflict of interest as referenced in Sections 1.5 and 1.6 for which
Employer makes a determination to terminate the employment of Employee;
(d) Employee has willfully engaged in conduct that Employee knows or
should know is materially injurious to Employer or any of its
affiliates; or (e) Employee's material breach of any material provision
of this Agreement or corporate code or policy which remains uncorrected
for thirty (30) days following written notice to Employee by Employer
of such breach. It is expressly acknowledged and agreed that the
decision as to whether cause exists for termination of the employment
relationship by Employer is delegated to the Board of Directors of
Employer for determination;
(ii) upon Employee's death; or
(iii) upon Employee's becoming incapacitated by accident,
sickness, or other circumstance which renders him mentally or
physically incapable of performing the duties and services required of
Employee for a period of 120 consecutive days, or for a period of 180
days, regardless of whether or not such days are consecutive, within a
12-month period.
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The termination of Employee's employment by Employer prior to the expiration of
the Term shall constitute a "Termination for Cause" if made pursuant to Section
3.1(i); the effect of such termination is specified in Section 3.4. The effect
of the employment relationship being terminated pursuant to Section 3.1(ii) as a
result of Employee's death is specified in Section 3.5. The effect of the
employment relationship being terminated pursuant to Section 3.1(iii) as a
result of the Employee becoming incapacitated is specified in Section 3.6.
3.2 Notwithstanding any other provisions of this Agreement except
Section 6.5, Employee shall have the right to terminate the employment
relationship under this Agreement at any time prior to the expiration of the
Term of employment for any other reason whatsoever, in the sole discretion of
Employee. The termination of Employee's employment by Employee prior to the
expiration of the Term shall constitute a "Voluntary Termination" if made
pursuant to Section 3.2; the effect of such termination is specified in Section
3.3.
3.3 Upon a Voluntary Termination, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination and Employee
shall be entitled to any individual bonuses or individual incentive compensation
earned but not yet paid at the date of such termination. Employee's rights under
this Section are Employee's sole and exclusive rights against Employer or its
affiliates, and Employer's sole and exclusive liability to Employee under this
Agreement, in contract, tort, or otherwise, for any Voluntary Termination.
Employee covenants not to xxx or lodge any claim, demand or cause of action
against Employer for any sums for Voluntary Termination other than those sums
specified in this Section.
3.4 Upon a Termination for Cause, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination and Employee
shall be entitled to any individual bonuses or individual incentive compensation
earned but not yet paid at the date of such termination. Employee's rights under
this Section are Employee's sole and exclusive rights against Employer or its
affiliates, and Employer's sole and exclusive liability to Employee under this
Agreement, in contract, tort, or otherwise, for any Termination for Cause.
Employee covenants not to xxx or lodge any claim, demand or cause of action
against Employer for any sums for Termination for Cause other than those sums
specified in this Section.
3.5 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination and
Employee's heirs, administrators, or legatees shall be entitled to any
individual bonuses or individual incentive compensation earned but not yet paid
to Employee at the date of such termination. The rights of Employee or his
heirs, administrators, or legatees under this Section are the sole and exclusive
rights of Employee, his heirs, administrators, and legatees against Employer or
its affiliates, and Employer's sole and exclusive liability to Employee under
this Agreement, in contract, tort, or otherwise, with respect to such
termination of the employment relationship.
3.6 Upon termination of the employment relationship as a result of
Employee's becoming incapacitated in the manner specified in Section 3.1(iii),
Employee shall be entitled to his pro rata salary through the date of such
termination and Employee shall be entitled to any individual bonuses or
individual incentive compensation earned but not yet paid to
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Employee at the date of such termination. The rights of Employee or his heirs,
administrators, or legatees under this Section are the sole and exclusive rights
of Employee, his heirs, administrators, and legatees against Employer or its
affiliates, and Employer's sole and exclusive liability to Employee under this
Agreement, in contract, tort, or otherwise, with respect to such termination of
the employment relationship.
3.7 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement which are continuing obligations,
including, without limitation, Employee's obligations under Articles 4 and 5.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS.
4.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to Employer's
business, products or services (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales
data, pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing and merchandising
techniques, prospective names, and marks) shall be disclosed to Employer and are
and shall be the sole and exclusive property of Employer. Moreover, all
drawings, memoranda, notes, records, files, correspondence, drawings, manuals,
models, specifications, computer programs, maps and all other writings or
materials of any type embodying any of such information, ideas, concepts,
improvements, discoveries, and inventions are and shall be the sole and
exclusive property of Employer.
4.2 Employee acknowledges that the business of Employer and its
affiliates is highly competitive and that their strategies, methods, books,
records, and documents, their technical information concerning their products,
equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer or its affiliates use in their business to
obtain a competitive advantage over their competitors. Employee further
acknowledges that protection of such confidential business information and trade
secrets against unauthorized disclosure and use is of critical importance to
Employer and its affiliates in maintaining their competitive position. Employee
hereby agrees that Employee will not, at any time during or after his employment
by Employer, make any unauthorized disclosure of any confidential business
information or trade secrets of Employer or its affiliates, or make any use
thereof, except in the carrying out of his or her employment responsibilities
hereunder. As a result of Employee's employment by Employer, Employee may also
from time to time have access to, or knowledge of, confidential business
information or trade secrets of third parties, such as customers, suppliers,
partners, joint venturers, and the like, of Employer and its affiliates.
Employee also agrees to preserve and protect the confidentiality of such third
party confidential information and trade secrets to the same extent, and on the
same basis, as Employer's confidential business information and trade secrets.
Employee acknowledges that money damages would not be sufficient remedy for any
breach of this Article 4 by Employee, and Employer shall be entitled to enforce
the provisions of this Article 4 by terminating any
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payments then owing to Employee 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 4, but shall be in addition to all remedies available at law or in
equity to Employer, including the recovery of damages from Employee and his
agents involved in such breach.
4.3 All written materials, records, and other documents made by, or
coming into the possession of, Employee during the period of Employee's
employment by Employer which contain or disclose confidential business
information or trade secrets of Employer or its affiliates shall be and remain
the property of Employer or its affiliates, as the case may be. Upon termination
of Employee's employment by Employer, for any reason, Employee promptly shall
deliver the same, and all copies thereof, to Employer.
4.4 If, during Employee's employment by Employer, Employee creates any
original work of authorship fixed in any tangible medium of expression which is
the subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Employer's business,
products, or services, whether such work is created solely by Employee or
jointly with others (whether during business hours or otherwise and whether on
Employer's premises or otherwise), Employee shall disclose such work to
Employer. Employer shall be deemed the author of such work if the work is
prepared by Employee in the scope of his employment; or, if the work is not
prepared by Employee within the scope of his employment but is specially ordered
by Employer as a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as a supplementary work, as
a compilation, or as an instructional text, then the work shall be considered to
be work made for hire and Employer shall be the author of the work. If such work
is neither prepared by the Employee within the scope of his employment nor a
work specially ordered and is deemed to be a work made for hire, then Employee
hereby agrees to assign, and by these presents does assign, to Employer all of
Employee's worldwide right, title, and interest in and to such work and all
rights of copyright therein.
4.5 Both during the period of Employee's employment by Employer and
thereafter, Employee shall assist Employer and its nominee, at any time, in the
protection of Employer's worldwide right, title, and interest in and to
information, ideas, concepts, improvements, discoveries, and inventions, and its
copyrighted works, including without limitation, the execution of all formal
assignment documents requested by Employer or its nominee and the execution of
all lawful oaths and applications for applications for patents and registration
of copyright in the United States and foreign countries.
ARTICLE 5: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS.
5.1 As part of the consideration for the compensation and benefits to
be paid to Employee hereunder, in keeping with Employee's duties as a fiduciary
and in order to protect Employer's interests in the confidential information of
Employer and the business relationships developed by Employee with the clients
and potential clients of Employer, and as an additional incentive for Employer
to enter into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 5. Employee agrees that during the period of
Employee's non-competition obligations hereunder, Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Employer or any of its affiliated companies are conducting any business as of
the date of
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termination of the employment relationship or have during the previous twelve
months conducted any business:
(i) engage in any business competitive with the business
conducted by Employer;
(ii) 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
Employer;
(iii) induce any employee of Employer or any of its
affiliates to terminate his or her employment with Employer or its
affiliates, or hire or assist in the hiring of any such employee by
person, association, or entity not affiliated with Employer.
These non-competition obligations shall be pursuant to the Termination and
Severance Provisions of Exhibit A.
5.2 Employee 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 Employee will receive sufficiently
high remuneration and other benefits under this Agreement to justify such
restriction. Employee acknowledges that money damages would not be sufficient
remedy for any breach of this Article 5 by Employee, and Employer shall be
entitled to enforce the provisions of this Article 5 by terminating any payments
then owing to Employee 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
5, but shall be in addition to all remedies available at law or in equity to
Employer, including, without limitation, the recovery of damages from Employee
and his agents involved in such breach.
5.3 It is expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Article 5 to be reasonable and
necessary to protect the proprietary information of Employer. 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 courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
ARTICLE 6: MISCELLANEOUS.
6.1 For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Employer.
6.2 Unless otherwise specified, whenever this Agreement requires or
permits any consent, approval, notice, request, or demand from one party to
another, that communication must be in writing (which may be by telecopy) to be
effective and is deemed to have been given (a) if by telecopy, when transmitted
to the appropriate telecopy number (and all communications sent by telecopy must
be confirmed promptly by telephone; but any requirement in this parenthetical
does not affect the date when the telecopy is deemed to have been delivered), or
(b) if by any other means, including by internationally acceptable
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courier or hand delivery, when actually delivered. Until changed by notice
pursuant to this Agreement, the addresses (and telecopy numbers) are:
If to Employer: Queen Sand Resources, Inc.
0000 Xxx Xxxx, Xxxxx 000, X.X.#00
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With copies to: Queen Sand Resources, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Boeing, Esq.
Facsimile: (000) 000-0000
If to Employee, to the address shown on the first page hereof.
Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
6.3 This Agreement shall be governed in all respects by the laws of the
State of Texas, excluding any conflict-of-law rule or principle that might refer
the construction of the Agreement to the laws of another State or country.
6.4 No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
6.5 If a dispute arises out of or related to this Agreement, other than
a dispute regarding Employee's obligations under Article 4 or Article 5, and if
the dispute cannot be settled through direct discussions, then Employer and
Employee agree to first endeavor to settle the dispute in an amicable manner by
mediation, before having recourse to any other proceeding or forum. Thereafter,
if either party to this Agreement brings legal action to enforce the terms of
this Agreement, the party who prevails in such legal action, whether plaintiff
or defendant, in addition to the remedy or relief obtained in such legal action
shall be entitled to recover its, his, or her expenses incurred in connection
with such legal action, including, without limitation, costs of Court and
attorneys fees.
6.6 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
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covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
6.7 This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under Agreement
hereof are personal and such rights, benefits, and obligations of Employee shall
not be voluntarily or involuntarily assigned, alienated, or transferred, whether
by operation of law or otherwise, without the prior written consent of Employer.
6.8 There exist other agreements between Employer and Employee relating
to the employment relationship between them, e.g., the agreement with respect to
Employer's policies booklet and agreements with respect to benefit plans. This
Agreement replaces and merges previous agreements and discussions pertaining to
the following subject matters covered herein: the nature of Employee's
employment relationship with Employer and the term and termination of such
relationship. This Agreement constitutes the entire agreement of the parties
with regard to such subject matters, and contains all of the covenants,
promises, representations, warranties, and agreements between the parties with
respect such subject matters. Each party to this Agreement acknowledges that no
representation, inducement, promise, or agreement, oral or written, has been
made by either party with respect to such subject matters, which is not embodied
herein, and that no agreement, statement, or promise relating to the employment
of Employee by Employer that is not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing and signed by each party whose rights hereunder are affected thereby,
provided that any such modification must be authorized or approved by the Board
of Directors of Employer.
* * * * *
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IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the date first stated above.
QUEEN SAND RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer
/s/ V. Xx Xxxxxx
----------------------------------
V. Xx Xxxxxx
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
The Employer and Employee agree that the Employee will be employed for
the term, title and initial salary amount as specified below. The Employee will
be entitled to other compensation and employee benefit plans and programs
implemented by the Company after the date hereof, which plans and programs may,
but are not required to, include those enumerated in the list immediately below.
I. TERM - Commencing on June 1, 1997 and ending on November 5, 1997
TITLE - Vice President, Engineering
INITIAL SALARY AMOUNT - $9,166.66 per month
REMUNERATION AND BENEFITS
- Bonuses
- Expense allowance
- Automobile
- Pension
- Key man and other life insurance
- Directors Liability Insurance
- Other (D&O liability insurance)
- Re-negotiation
- Relocation expenses
TERMINATION
SEVERANCE
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