EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), is made and entered into as
of October 1, 2006 (the "EFFECTIVE DATE"), by and between EV Management, LLC, a
Delaware limited liability company (hereafter "COMPANY") and Xxxxxxx X. Xxxxxx
(hereafter "EXECUTIVE"). The Company and Executive may sometimes hereafter be
referred to singularly as a "PARTY" or collectively as the "PARTIES."
WITNESSETH:
WHEREAS, the Company desires to continue to secure the employment services
of Executive subject to the terms and conditions hereafter set forth; and
WHEREAS, the Executive is willing to enter into this Agreement upon the
terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of Executive's employment with the
Company, and the premises and mutual covenants contained herein, the Parties
hereto agree as follows:
1. EMPLOYMENT. During the Employment Period (as defined in Section 4
hereof), the Company shall employ Executive, and Executive shall serve as,
Senior Vice President and Chief Financial Officer of the Company. Executive's
principal place of employment shall be at the main business offices of the
Company in Houston, Texas.
2. COMPENSATION.
(a) BASE SALARY. The Company shall pay to Executive during the
Employment Period a minimum base salary of $200,000 per year, as adjusted
pursuant to the subsequent provisions of this paragraph (the "BASE SALARY"). The
Base Salary shall be payable in accordance with the Company's normal payroll
schedule and procedures for its executives. Nothing contained herein shall
preclude the payment of any other compensation to Executive at any time as
determined by the Company.
(b) ANNUAL BONUS. In addition to the Base Salary in Section 2(a), for
each annual period based on each fiscal year of the Company during the
Employment Period (as defined in Section 4) (each such annual period being
referred to as a "BONUS PERIOD"), Executive shall be entitled to a bonus equal
to a percentage of Executive's Base Salary paid during each such one (1) year
period (referred to herein as the "ANNUAL BONUS"), such percentage to be
established by the Compensation Committee of the Company (the "COMPENSATION
COMMITTEE") in it sole discretion,; provided, however, Executive shall be
entitled to the Annual Bonus only if Executive has met the performance criteria
set by the Compensation Committee for the applicable period. Notwithstanding the
above, for calendar year 2006 only, Executive shall be entitled to a minimum
Annual Bonus of $200,000, net of applicable withholdings, payable within
_______________
Initials
_______________
Initials
sixty (60) days after December 31, 2006, unless Executive is terminated for
Cause (as defined in Section 6(d)) prior to December 31, 2006, in which event
Executive shall not be entitled to any amount of Annual Bonus.
In the event that the Employment Period ends before the end of the Bonus
Period, Executive shall be entitled to a prorata portion of the Annual Bonus for
that year (based on the number of days in which Executive was employed during
the year divided by 365) as determined based on satisfaction of the performance
criteria for that period on a prorata basis, unless Executive was terminated for
Cause (as defined in Section 6(d)), in which event Executive shall not be
entitled to any Annual Bonus for that year. The Parties acknowledges that the
amount and performance criteria for Executive's Annual Bonus to be earned for
each Bonus Period shall be set on or before the beginning of the applicable
Bonus Period. If Executive successfully meets the performance criteria
established by the Compensation Committee to its satisfaction, Company shall pay
Executive the earned Annual Bonus amount within the earlier of: (i) sixty days
(60) days after the end of the Bonus Period or (ii) sixty days (60) after the
end of the Employment Period, as applicable.
(c) EQUITY COMPENSATION. Executive shall be eligible from time to time
to receive grants of equity incentive compensation, as commensurate with
Executive's employment position, and as determined by the Compensation Committee
the Board of Directors, as follows:
EV Management LLC Long-Term Incentive Plan. Executive shall be
eligible to receive an award of units under the EV Management
LLC Long-Term Incentive Plan (the "LTIP"), in the same manner
as other eligible management employees, as follows:
a. A minimum of 7,500 units granted on December 31,
2006; and
b. A minimum of 7,500 units granted on December 31,
2007;
provided, however, that Executive then is, and continuously
from the Effective Date has been, an employee of the Company
and there has been no termination of employment for any
reason, voluntary or involuntary.
The Compensation Committee shall determine, in its sole
discretion, all applicable terms, conditions and restrictions
that apply to such units, including applicable vesting of the
units. The terms and conditions of such units shall be set
forth in the unit award agreement, and shall be consistent
with the terms of the LTIP which is incorporated herein by
reference.
3. DUTIES AND RESPONSIBILITIES OF EXECUTIVE. During the Employment Period,
Executive shall devote substantially all of his full working time to the
business of the Company and perform the duties and responsibilities assigned to
Executive under the Company's limited liability company agreement or policies
adopted by the Board of Directors, or as assigned by the
_______________
Initials
_______________
Initials
2
Compensation Committee, the Chief Executive Officer, the President or the Board
of Directors of the Company, to the best of Executive's ability and with
reasonable diligence. In determining Executive's duties and responsibilities,
Executive shall not be assigned duties and responsibilities that are
inappropriate for Executive's position. This Section 3 shall not be construed as
preventing Executive from (a) engaging in reasonable volunteer services for
charitable, educational or civic organizations, or (b) investing personal assets
in such a manner that will not require a material amount of the Executive's time
or services in the operations of the businesses in which such investments are
made; provided, however, no such other activity shall conflict with Executive's
loyalties and duties to the Company. Executive shall at all times use best
efforts to comply in good faith with United States laws applicable to
Executive's actions on behalf of the Company and its Affiliates (as defined in
Section 6(d)). Executive understands and agrees that Executive may be required
to travel from time to time for purposes of the Company's business.
4. TERM OF EMPLOYMENT. Executive's initial term of employment with the
Company under this Agreement shall be for the period from the Effective Date
through December 31, 2007 (the "INITIAL TERM OF EMPLOYMENT"). Thereafter, the
Employment Period hereunder shall be automatically extended repetitively for an
additional one (1) year period on January 1, 2008, and each one-year anniversary
thereof, unless Notice of Termination (pursuant to Section 8) is given by either
the Company or Executive to the other Party at least sixty (60) days prior to
the end of the Initial Term of Employment or any one-year extension thereof, as
applicable, that the Agreement will not be renewed for a successive one-year
period after the end of the current one-year period. The Company and Executive
shall each have the right to give Notice of Termination at will, with or without
cause, at any time subject, however, to the terms and conditions of this
Agreement regarding the rights and duties of the Parties upon termination of
employment. The Initial Term of Employment, and any one-year extension of
employment hereunder, shall each be referred to herein as a "TERM OF
EMPLOYMENT." The period from the Effective Date through the date of Executive's
termination of employment with the Company and all Affiliates, for whatever
reason, shall be referred to herein as the "EMPLOYMENT PERIOD."
5. BENEFITS. Subject to the terms and conditions of this Agreement, during
the Employment Period, Executive shall be entitled to all of the following:
(a) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall pay or
reimburse Executive for all reasonable travel, entertainment and other business
expenses paid or incurred by Executive in the performance of duties hereunder.
The Company shall also provide Executive with suitable office space, including
staff support and paid parking. In addition, the Company shall pay the
membership dues and fees for Executive to be a member of The Downtown Club at
Houston Center, or another comparable club as agreed to by Executive and the
Company.
(b) OTHER EMPLOYEE BENEFITS. Executive shall be entitled to participate
in any pension, retirement, 401(k), profit-sharing, and other employee benefits
plans or programs of the Company to the same extent as available to other
officers of the Company under the terms of such plans or programs. Executive
shall also be entitled to participate in any group insurance,
_______________
Initials
_______________
Initials
3
hospitalization, medical, dental, health, life, accident, disability and other
employee benefits plans or programs of the Company to the extent available to
other officers of the Company under the terms of such plans or programs.
(c) VACATION AND HOLIDAYS. Executive shall be entitled to four weeks of
paid vacation per calendar year, as accrued in accordance with the Company's
vacation benefit policy, including for the initial calendar year of employment
hereunder based on the number of whole months of employment during such initial
year. Executive shall also be entitled to all paid holidays and sick time
provided by the Company for its officers under the Company's holiday and sick
time policy as then effective.
6. RIGHTS AND PAYMENTS UPON TERMINATION. The Executive's right to
compensation and benefits for periods after the date on which Executive's
employment terminates with the Company and all Affiliates (the "TERMINATION
DATE"), shall be determined in accordance with this Section 6, as follows:
(a) MINIMUM PAYMENTS. Executive shall be entitled to the following
minimum payments under this Section 6(a), in addition to any other payments or
benefits to which Executive is entitled to receive under the terms of any
employee benefit plan or program or Section 6(b):
(1) unpaid salary for the full month in which the Termination Date
occurred; provided, however, if Executive is terminated for
Cause (as defined in Section 6(d)), Executive shall only be
entitled to receive accrued but unpaid salary through the
Termination Date;
(2) unpaid vacation days for that year which have accrued through
the Termination Date; and
(3) reimbursement of reasonable business expenses that were
incurred but unpaid as of the Termination Date.
Such salary and accrued vacation days shall be paid to Executive within
five (5) business days following the Termination Date in a cash lump sum less
applicable withholdings. Business expenses shall be reimbursed in accordance
with the Company's normal procedures.
(b) OTHER SEVERANCE PAYMENTS. In the event that during the Term of
Employment (i) Executive's employment is involuntarily terminated by the Company
(except due to a "No Severance Benefits Event" (as defined in Section 6(d))), or
(ii) Executive's employment is terminated due to "Disability" or "Retirement"
(as such terms are defined in Section 6(d)), then in any such event under clause
(i) or (ii), the following severance benefits shall be provided to Executive or,
in the event of death before receiving all such benefits, to Executive's
"Designated Beneficiary" (as defined in Section 6(d)) following death:
_______________
Initials
_______________
Initials
4
(1) The Company shall pay as additional compensation (the
"ADDITIONAL PAYMENT"), an amount equal to 104 weeks of Base Salary
in effect as of the Termination Date. The Company shall make the
Additional Payment to Executive in a cash lump sum not later than
sixty (60) calendar days following the Termination Date.
(2) COBRA Coverage. The Company shall maintain continued group
health plan coverage following the Termination Date under all plans
subject to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") (as codified in Code Section 4980B and
Part 6 of Subtitle B of Title I of ERISA) for Executive and
Executive's eligible spouse and dependents for the maximum period
for which such qualified beneficiaries are eligible to receive COBRA
coverage. However, Executive (and Executive's spouse and dependents)
shall not be required to pay more for such COBRA coverage than is
charged by the Company to its officers who are then in active
service for the Company and its affiliates and receiving coverage
under such plan and, therefore, the Company shall be responsible for
the difference between the amount charged hereunder and the full
COBRA premiums. In all other respects, Executive (and Executive's
spouse and dependents) shall be treated the same as other COBRA
qualified beneficiaries under the terms of such plans and the
provisions of COBRA. In the event of any change to a group health
plan following the Termination Date, Executive and Executive's
spouse and dependents, as applicable, shall be treated consistently
with the then-current officers of the Company and its affiliates
with respect to the terms and conditions of coverage and other
substantive provisions of the plan. Executive and Executive's spouse
hereby agree to acquire and maintain any and all coverage that
either or both of them are entitled to at any time during their
lives under the Medicare program or any similar program of the
United States or any agency thereof. Executive and Executive's
spouse further agree to pay any required premiums for Medicare
coverage from their personal funds.
For purposes of clarity, in the event that (i) Executive voluntarily
resigns or otherwise voluntarily terminates employment, except due to Disability
or Retirement (as such terms are defined in Section 6(d)), or (ii) Executive's
employment is terminated for Cause, then, in either such event under clause (i)
or (ii), the Company shall have no obligation to provide the severance benefits
described in paragraphs (1) and (2) (above) of this Section 6(b), except to
offer COBRA coverage (as required by COBRA law) but not at the discounted rate
described in paragraph (2). Executive shall still be entitled to the severance
benefits provided under Section 6(a). The severance payments provided under this
Agreement shall supersede and replace any severance payments under any severance
pay plan that the Company or any Affiliate maintains for officers or employees
generally, as determined by the Company.
(c) RELEASE AGREEMENT. Notwithstanding any provision of this Agreement
to the contrary, in order to receive the severance benefits payable under
Section 6(b), the Executive must first execute an appropriate release agreement
(on a form provided by the Company)
_______________
Initials
_______________
Initials
5
whereby the Executive agrees to release and waive, in return for such severance
benefits, any claims that Executive may have against the Company including,
without limitation, for unlawful discrimination (e.g., Title VII of the Civil
Rights Act); provided, however, such release agreement shall not release any
claim or cause of action by or on behalf of the Executive for (a) any payment or
benefit that may be due or payable under this Agreement or any employee benefit
plan prior to the receipt thereof, (b) non-payment of salary or benefits to
which Executive is entitled from the Company as of the Termination Date, or (c)
a breach of this Agreement by the Company.
(d) DEFINITIONS.
(1) "AFFILIATE" means EV Energy Partners, L.P., EnerVest
Management Partners, Ltd. and any entity, in whatever form, of
which the Company, EV Energy Partners, L.P or EnerVest
Management Partners, Ltd. has any ownership interest or
ownership or management control, as determined by the
Compensation Committee.
(2) "CAUSE" means any of the following: (A) the Executive's
conviction by a court of competent jurisdiction as to which no
further appeal can be taken of a felony or entering the plea
of nolo contendere to such crime by the Executive; (B) the
commission by the Executive of a demonstrable act of fraud, or
a misappropriation of funds or property, of or upon the
Company or any Affiliate; (C) the engagement by the Executive,
without the written approval of the Board of Directors of the
Company (the "BOARD") or Compensation Committee, in any
material activity which directly competes with the business of
the Company or any Affiliate, or which would directly result
in a material injury to the business or reputation of the
Company or any Affiliate; or (D) (i) the material breach by
Executive of any provision of this Agreement, or (ii) the
repeated nonperformance of Executive's duties to the Company
or any Affiliate (other than by reason of Executive's illness
or incapacity), but only under clauses (C), (D) (i) or (D)
(ii) after Notice from the Board or Compensation Committee of
such breach or nonperformance (which Notice specifically
identifies the manner and sets forth specific facts,
circumstances and examples of which the Board or Compensation
Committee believes that Executive has breached this Agreement
or not substantially performed duties hereunder) and
Executive's continued failure to cure such breach or
nonperformance within the time period set by the Board or
Compensation Committee but in no event more than 30 calendar
days after Executive's receipt of such Notice.
_______________
Initials
_______________
Initials
6
(3) "CODE" means the Internal Revenue Code of 1986, as amended, or
its successor. References herein to any Section of the Code
shall include any successor provisions of the Code.
(4) "DESIGNATED BENEFICIARY" means the Executive's surviving
spouse, if any. If there is no such surviving spouse at the
time of Executive's death, then the Designated Beneficiary
hereunder shall be Executive's estate.
(5) "DISABILITY" shall mean that Executive is entitled to receive
long-term disability ("LTD") income benefits under the LTD
plan or policy maintained by the Company that covers
Executive. If, for any reason, Executive is not covered under
such LTD plan or policy, then "Disability" shall mean a
"permanent and total disability" as defined in Section
22(e)(3) of the Code and Treasury regulations thereunder.
Evidence of such Disability shall be certified by a physician
acceptable to both the Company and Executive. In the event
that the Parties are not able to agree on the choice of a
physician, each shall select one physician who, in turn, shall
select a third physician to render such certification. All
costs relating to the determination of whether Executive has
incurred a Disability shall be paid by the Company. Executive
agrees to submit to any examinations that are reasonably
required by the attending physician or other healthcare
service providers to determine whether Executive has a
Disability.
(6) "DISPUTE" means any dispute, disagreement, claim, or
controversy arising in connection with or relating to the
Agreement or employment of Executive, or the validity,
interpretation, performance, breach, or termination of the
Agreement.
(7) "NO SEVERANCE BENEFITS EVENT" means termination of Executive's
employment for Cause (as defined above) or due to death.
(8) "RETIREMENT" means the termination of Executive's employment
for normal retirement at or after attaining age sixty-five
(65), provided that, on the date of retirement, Executive has
accrued at least five years of active service as an employee
with the Company or its Affiliates.
7. CHANGE IN CONTROL.
(a) TERMINATION FROM EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. In the
event Executive employment terminates with the Company and all Affiliates as a
result of a Qualifying Termination (as defined in Section 7(e) below) within the
12-month period
_______________
Initials
_______________
Initials
7
immediately following the Effective Date of a Change in Control (as defined in
subsection (d) below), the Executive shall be entitled (1) to receive payment of
the compensation and benefits as set forth in Section 6, and (2) to become 100%
fully vested in all unvested shares or units of equity compensation granted
under Section 2(e) as of the Effective Date of the Change in Control.
(b) NO ADDITIONAL COMPENSATION PAID UPON A SUBSEQUENT CHANGE IN
CONTROL. In the event compensation is paid or benefits are provided under this
Agreement by reason of a Change in Control, then in such event no additional
compensation shall be payable or benefits provided under this Agreement by
reason of a subsequent Change in Control during the term of this Agreement.
(c) DEFINITION OF CHANGE IN CONTROL. "Change in Control" shall mean the
occurrence of any of following
events:
(1) a corporation, person, or group acting in concert (other than
the Company, or any savings, pension, or other benefit plan
for the benefit of employees of the Company, or the
subsidiaries thereof) (a "PERSON") as described in Section
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), other than the current beneficial owners
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of and equity interest in the profits and losses
of EnerVest Management Partners, Ltd., a Texas limited
partnership, acquires, directly or indirectly, beneficial
ownership (within the meaning of such Rule 13d-3) of more than
50% of the equity interests in the Company then entitled to
vote generally in the election of the Board of Directors; or
(2) the withdrawal, removal or resignation of the Company as the
general partner of EV Energy GP. L.P., a Delaware limited
partnership, or the withdrawal, removal or resignation of EV
Energy GP, L.P. as the general partner of EV Energy Partners,
L.P., a Delaware limited partnership.
(3) the effective date of a merger, consolidation, or
reorganization plan that is adopted by the Board of Directors
of the Company involving the Company in which the Company is
not the surviving entity, or a sale of all or substantially
all of the assets of the Company. For purposes of this
Agreement, a sale of all or substantially all of the assets of
the Company shall be deemed to occur if any Person, or group
acting in concert, acquires (or during the consecutive 365
calendar day period ending on the date of the most recent
acquisition by such Person, has acquired) gross assets of the
Company that have an aggregate fair market value equal to
fifty-one percent (51%) of the fair market value of all of the
gross
_______________
Initials
_______________
Initials
8
assets of the Company immediately prior to such acquisition or
acquisitions; or
(4) any other transactions or series of related transactions
occurring which have substantially the same effect as the
transactions specified in any of the preceding clauses of this
Section 7(c).
(d) DEFINITION OF EFFECTIVE DATE OF A CHANGE IN CONTROL. For purposes
of this Agreement, "Effective Date of a Change in Control" shall mean the
effective date of the first to occur of any of the events set forth in
Section 7(c).
(e) "QUALIFYING TERMINATION OF EMPLOYMENT." For purposes of Section 7,
a "Qualifying Termination of Employment" shall mean the termination of the
Executive's employment with the Company within the 12-month period
immediately following the Effective Date of a Change in Control, unless
such termination is as a result of:
(1) the Executive's death;
(2) the Executive's Disability (as defined in Section 6(d)); or
(3) the Executive's involuntary termination by the Company for
Cause (as defined in Section 6(d)).
8. NOTICE OF TERMINATION. Any termination by the Company or the Executive
shall be communicated by Notice of Termination to the other Party hereto. For
purposes of this Agreement, the term "NOTICE OF TERMINATION" means a written
notice which indicates the specific termination provision of this Agreement
relied upon and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
9. NO MITIGATION. Subject to Section 6(b)(2), Executive shall not be
required to mitigate the amount of any payment or other benefits provided under
this Agreement by seeking other employment or in any other manner.
10. RESTRICTIVE COVENANTS. As an inducement to the Company to enter into
this Agreement, Executive represents to, and covenants with or in favor of, the
Company that Executive will comply with all of the restrictive covenants in
Sections 11 through 15, as a condition to the Company's obligation to provide
any benefits to Executive under this Agreement.
_______________
Initials
_______________
Initials
9
11. TRADE SECRETS.
(a) ACCESS TO TRADE SECRETS. As of the Effective Date and on an ongoing
basis, the Company agrees to give Executive access to Trade Secrets which the
Executive did not have access to, or knowledge of, before the Effective Date.
(b) ACCESS TO SPECIALIZED TRAINING. As of the Effective Date and on an
ongoing basis, the Company has provided, and agrees to provide on an ongoing
basis, Executive with Specialized Training which the Executive does not have
access to, or knowledge of, before the Effective Date.
(c) AGREEMENT NOT TO USE OR DISCLOSE TRADE SECRETS. In exchange for the
Company's promises to provide Executive with access to Trade Secrets and
Specialized Training and the other consideration and benefits provided to
Executive under this Agreement, Executive agrees, during the Employment Period,
or at any time thereafter, not to disclose to anyone, including, without
limitation, any person, firm, corporation or other entity, or publish or use for
any purpose, any Trade Secrets and Specialized Training, except as required in
the ordinary course of the Company's business or as authorized by the Board.
(d) DEFINITIONS. The following terms, when used in this Agreement, are
defined below:
(1) "SPECIALIZED TRAINING" includes the training the Company
provides to Executive that is unique to its business and
enhances Executive's ability to perform Executive's job duties
effectively. Specialized Training includes, without
limitation, sales methods/techniques training; operation
methods training; engineering and scientific training; and
computer and systems training.
(2) "TRADE SECRETS" means any and all information and materials
(in any form or medium) that are proprietary to the Company or
a Affiliate, or are treated as confidential by the Company or
Affiliate as part of, or relating to, all or any portion of
its or their business, including information and materials
about the products and services offered, or the needs of
customers served, by the Company or Affiliate; compilations of
information, records and specifications, properties,
processes, programs, and systems of the Company or Affiliate;
research of or for the Company or Affiliate; and methods of
doing business of the Company or Affiliate. Trade Secrets
include, without limitation, all of the Company's or
Affiliate's technical and business information, whether
patentable or not, which is of a confidential, trade secret or
proprietary
_______________
Initials
_______________
Initials
10
character, and which is either developed by the Executive
alone, with others or by others; lists of customers; identity
of customers; contract terms; bidding information and
strategies; pricing methods or information; computer software;
computer software methods and documentation; hardware; the
Company's or Affiliate's methods of operation; the procedures,
forms and techniques used in servicing accounts; and other
documents, information or data that the Company requires to be
maintained in confidence for the Company's business success.
12. DUTY TO RETURN COMPANY DOCUMENTS AND PROPERTY. Upon termination of the
Employment Period, Executive shall immediately return and deliver to the Company
any and all papers, books, records, documents, memoranda and manuals, e-mail,
electronic or magnetic recordings or data, including all copies thereof,
belonging to the Company or relating to its business, in Executive's possession,
whether prepared by Executive or others. If at any time after the Employment
Period, Executive determines that Executive has any Trade Secrets in Executive's
possession or control, Executive shall immediately return them to the Company,
including all copies thereof.
13. BEST EFFORTS AND DISCLOSURE. Executive agrees that, while employed
with the Company, Executive shall devote substantially all of his full working
time to the Company's business, and Executive shall use best efforts to promote
its success. Further, Executive shall promptly disclose to the Company all
ideas, inventions, computer programs, and discoveries, whether or not patentable
or copyrightable, which Executive may conceive or make, alone or with others,
during the Employment Period, whether or not during working hours, and which
directly or indirectly:
(a) relate to a matter within the scope, field, duties or
responsibility of Executive's employment with the Company; or
(b) are based on any knowledge of the actual or anticipated business
or interests of the Company; or
(c) are aided by the use of time, materials, facilities or
information of the Company.
Executive assigns to the Company, without further compensation, any and
all rights, titles and interest in all such ideas, inventions, computer programs
and discoveries in all countries of the world. Executive recognizes that all
ideas, inventions, computer programs and discoveries of the type described
above, conceived or made by Executive alone or with others within 12 months
after the Termination Date (voluntary or otherwise), are likely to have been
conceived in significant part either while employed by the Company or as a
direct result of knowledge Executive had of proprietary information or Trade
Secrets. Accordingly, Executive agrees that such ideas, inventions or
discoveries shall be presumed to have been conceived during the Employment
Period, unless and until the contrary is clearly established by the Executive.
_______________
Initials
_______________
Initials
11
14. INVENTIONS AND OTHER WORKS. Any and all writings, computer software,
inventions, improvements, processes, procedures and/or techniques which
Executive may make, conceive, discover, or develop, either solely or jointly
with any other person or persons, at any time during the Employment Period,
whether at the request or upon the suggestion of the Company or otherwise, which
relate to or are useful in connection with any business now or hereafter carried
on or contemplated by the Company, including developments or expansions of its
present fields of operations, shall be the sole and exclusive property of the
Company. Executive agrees to take any and all actions necessary or appropriate
so that the Company can prepare and present applications for copyright or
Letters Patent therefor, and secure such copyright or Letters Patent wherever
possible, as well as reissue renewals, and extensions thereof, and obtain the
record title to such copyright or patents. Executive shall not be entitled to
any additional or special compensation or reimbursement regarding any such
writings, computer software, inventions, improvements, processes, procedures and
techniques. Executive acknowledges that the Company from time to time may have
agreements with other persons or entities which impose obligations or
restrictions on the Company regarding inventions made during the course of work
thereunder or regarding the confidential nature of such work. Executive agrees
to be bound by all such obligations and restrictions, and to take all action
necessary to discharge the obligations of the Company.
15. Non-Solicitation Restriction. During the Employment Period and for a period
of twelve (12) months after the end of the Employment Period, the Employee will
not, whether for his own account or for the account of any other Person (other
than the Company or its affiliates), intentionally solicit, endeavor to entice
away from the Company or its affiliates, or otherwise interfere with the
relationship of the Company or its affiliates with any person who is employed by
the company or its affiliates (including any independent consultants).
16. TOLLING. If Executive violates any of the restrictions contained in
Sections 11 through 15, then notwithstanding any provision hereof to the
contrary, the restrictive period will be suspended and will not run in favor of
Executive from the time of the commencement of any such violation, unless and
until such time when the Executive cures the violation to the reasonable
satisfaction of the Board or Compensation Committee.
17. REFORMATION. If a court or arbitrator rules that any time period or
the geographic area specified in any restrictive covenant in Sections 11 through
15 is unenforceable, then the time period will be reduced by the number of
months, or the geographic area will be reduced by the elimination of such
unenforceable portion, or both, so that the restrictions may be enforced in the
geographic area and for the time to the full extent permitted by law.
18. NO PREVIOUS RESTRICTIVE AGREEMENTS. Executive represents that, except
as disclosed in writing to the Company as of the Effective Date, Executive is
not bound by the terms of any agreement with any previous employer or other
third party to (a) refrain from using or disclosing any confidential or
proprietary information in the course of Executive's employment by the Company
or (b) refrain from competing, directly or indirectly, with the business of such
previous employer or any other person or entity. Executive further represents
that Executive's performance under this Agreement and work duties for the
Company do not,
_______________
Initials
_______________
Initials
12
and will not, breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by Executive in confidence or in trust
prior to Executive's employment with the Company, and Executive will not
disclose to the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer or
others.
19. CONFLICTS OF INTEREST. In keeping with Executive's fiduciary duties to
Company, Executive hereby agrees that Executive shall not become involved in a
conflict of interest, or upon discovery thereof, allow such a conflict to
continue at any time during the Employment Period. In this respect, Executive
agrees to fully comply with the conflict of interest agreement entered into by
Executive as an employee, officer or director of the Company. In the instance of
a violation of the conflict of interest agreement to which Executive is a party,
it may be necessary for Board to terminate Executive's employment for Cause (as
defined in Section 6(d)).
20. REMEDIES. Executive acknowledges that the restrictions contained in
Sections 11 through 19 of this Agreement, in view of the nature of the Company's
business, are reasonable and necessary to protect the Company's legitimate
business interests, and that any violation of this Agreement would result in
irreparable injury to the Company. Notwithstanding the arbitration provisions in
Section 27, in the event of a breach or a threatened breach by Executive of any
provision of Sections 11 through 19 of this Agreement, the Company shall be
entitled to a temporary restraining order and injunctive relief restraining
Executive from the commission of any breach Nothing contained in this Agreement
shall be construed as prohibiting the Company from pursuing any other remedies
available to it for any such breach or threatened breach, including, without
limitation, the recovery of money damages, attorneys' fees, and costs. These
covenants and agreements shall each be construed as independent of any other
provisions in this Agreement, and the existence of any claim or cause of action
by Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
such covenants and agreements.
21. WITHHOLDINGS; RIGHT OF OFFSET. The Company may withhold and deduct
from any benefits and payments made or to be made pursuant to this Agreement (a)
all federal, state, local and other taxes as may be required pursuant to any law
or governmental regulation or ruling, (b) all other normal employee deductions
made with respect to Company's employees generally, and (c) any advances made to
Executive and owed to Company.
22. NONALIENATION. The right to receive payments under this Agreement
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge or encumbrance by Executive, dependents or beneficiaries of
Executive, or to any other person who is or may become entitled to receive such
payments hereunder. The right to receive payments hereunder shall not be subject
to or liable for the debts, contracts, liabilities, engagements or torts of any
person who is or may become entitled to receive such payments, nor may the same
be subject to attachment or seizure by any creditor of such person under any
circumstances, and any such attempted attachment or seizure shall be void and of
no force and effect.
23. INCOMPETENT OR MINOR PAYEES. Should the Company, Board or the
Compensation Committee determine, in its discretion, that any person to whom any
payment is
_______________
Initials
_______________
Initials
13
payable under this Agreement has been determined to be legally incompetent or is
a minor, any payment due hereunder, notwithstanding any other provision of this
Agreement to the contrary, may be made in any one or more of the following ways:
(a) directly to such minor or person; (b) to the legal guardian or other duly
appointed personal representative of the person or estate of such minor or
person; or (c) to such adult or adults as have, in the good faith knowledge of
the Company, Board or Compensation Committee, assumed custody and support of
such minor or person; and any payment so made shall constitute full and complete
discharge of any liability under this Agreement in respect to the amount paid.
24. SEVERABILITY. It is the desire of the Parties hereto that this
Agreement be enforced to the maximum extent permitted by law, and should any
provision contained herein be held unenforceable by a court of competent
jurisdiction or arbitrator (pursuant to Section 27), the parties hereby agree
and consent that such provision shall be reformed to create a valid and
enforceable provision to the maximum extent permitted by law; provided, however,
if such provision cannot be reformed, it shall be deemed ineffective and deleted
herefrom without affecting any other provision of this Agreement. This Agreement
should be construed by limiting and reducing it only to the minimum extent
necessary to be enforceable under then applicable law.
25. TITLE AND HEADINGS; CONSTRUCTION. Titles and headings to Sections
hereof are for the purpose of reference only and shall in no way limit, define
or otherwise affect the provisions hereof. The words "herein", "hereof",
"hereunder" and other compounds of the word "here" shall refer to the entire
Agreement and not to any particular provision.
26. GOVERNING LAW; JURISDICTION. All matters or issues relating to the
interpretation, construction, validity, and enforcement of this Agreement shall
be governed by the laws of the State of Texas, without giving effect to any
choice-of-law principle that would cause the application of the laws of any
jurisdiction other than Texas. Jurisdiction and venue of any action or
proceeding relating to this Agreement or any Dispute (to the extent arbitration
is not required under Section 29) shall be exclusively in Houston, Texas.
27. MANDATORY ARBITRATION. Except as provided in subsection (h) of this
Section 27, any Dispute (as defined in Section 6(d)) must be resolved by binding
arbitration in accordance with the Federal Arbitration Act and the Employment
Arbitration Rules and Mediation Procedures of the American Arbitration
Association as then effective (the "Arbitration Rules"), subject to this Section
27 as follows:
(a) Party may begin arbitration by filing a demand for arbitration in
accordance with the Arbitration Rules and concurrently notifying the other Party
of that demand. If the Parties are unable to agree upon a panel of three
arbitrators within ten days after the demand for arbitration was filed (and do
not agree to an extension of that ten-day period), either Party may request the
Houston, Texas office of the American Arbitration Association ("AAA") to appoint
the arbitrator or arbitrators necessary to complete the panel in accordance with
the Arbitration Rules. Each arbitrator so appointed shall be deemed accepted by
the Parties as part of the panel. The Parties, by mutual consent, may agree to a
single arbitrator instead of a panel of
_______________
Initials
_______________
Initials
14
three arbitrators and, in such event, references herein to "panel" shall refer
to the single appointed arbitrator.
(b) The arbitration shall be conducted in the Houston, Texas
metropolitan area at a place and time agreed upon by the Parties with the panel,
or if the Parties cannot agree, as designated by the panel. The panel may,
however, call and conduct hearings and meetings at such other places as the
Parties may agree or as the panel may, on the motion of one Party, determine to
be necessary to obtain significant testimony or evidence.
(c) The panel may authorize any and all forms of discovery upon a
Party's showing of need that the requested discovery is likely to lead to
material evidence needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(d) The arbitration shall be subject to the Federal Arbitration Act and
conducted in accordance with the Arbitration Rules to the extent that they do
not conflict with this Section 27. The Parties and the panel may, however, agree
to vary to provisions of this Section 27 or the matters otherwise governed by
the Arbitration Rules.
(e) The arbitration hearing shall be held within 60 days after the
appointment of the panel. The panel's final decision or award shall be made
within 30 days after the hearing. That final decision or award shall be made by
unanimous or majority vote or consent of the arbitrators constituting the panel,
and shall be deemed issued at the place of arbitration. The panel's final
decision or award shall be based on this Agreement and applicable law.
(f) The panel's final decision or award may include injunctive relief
in response to any actual or impending breach of this Agreement or any other
actual or impending action or omission of a Party under or in connection with
this Agreement.
(g) The panel's final decision or award shall be final and binding upon
the Parties, and judgment upon that decision or award may be entered in any
court having jurisdiction. The Parties waive any right to apply or appeal to any
court for relief from the preceding sentence or from any decision of the panel
that is made before the final decision or award.
(h) Nothing in this Section 27 limits the right of either Party to
apply to a court having jurisdiction to (i) enforce the agreement to arbitrate
in accordance with this Section 27, (ii) seek provisional or temporary
injunctive relief, in response to an actual or impending breach of the Agreement
or otherwise so as to avoid an irreparable damage or maintain the status quo,
until a final arbitration decision or award is rendered or the Dispute is
otherwise resolved, or (iii) challenge or vacate any final arbitration decision
or award that does not comply with this Section 27. In addition, nothing in this
Section 27 prohibits the Parties from resolving any Dispute (in whole or in
part) by agreement. This Section 27 shall also not preclude the Parties at any
time from mutually agreeing to pursue non-binding mediation of the Dispute.
_______________
Initials
_______________
Initials
15
(i) The panel may proceed to an award notwithstanding the failure of
any Party to participate in such proceedings. The prevailing Party in the
arbitration proceeding may be entitled to an award of reasonable attorneys' fees
incurred in connection with the arbitration in such amount, if any, as
determined by the panel in its discretion. The costs of the arbitration shall be
borne equally by the Parties unless otherwise determined by the panel in its
award.
(j) The panel shall be empowered to impose sanctions and to take such
other actions as it deems necessary to the same extent a judge could impose
sanctions or take such other actions pursuant to the Federal Rules of Civil
Procedure and applicable law. Each party agrees to keep all Disputes and
arbitration proceedings strictly confidential except for disclosure of
information required by applicable law which cannot be waived.
28. BINDING EFFECT: THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto, and to their
respective heirs, executors, beneficiaries, personal representatives, successors
and permitted assigns hereunder, but otherwise this Agreement shall not be for
the benefit of any third parties.
29. ENTIRE AGREEMENT; AMENDMENT AND TERMINATION. This Agreement contains
the entire agreement of the Parties hereto with respect to the matters covered
herein; moreover, this Agreement supersedes all prior and contemporaneous
agreements and understandings, oral or written, between the Parties concerning
the subject matter hereof. This Agreement may be amended, waived or terminated
only by a written instrument that is identified as an amendment, waiver or
termination hereto and that is executed on behalf of both Parties.
30. SURVIVAL OF CERTAIN PROVISIONS. Wherever appropriate to the intention
of the Parties, the respective rights and obligations of the Parties hereunder
shall survive any termination or expiration of this Agreement.
31. WAIVER OF BREACH. No waiver by either Party hereto of a breach of any
provision of this Agreement by any other Party, or of compliance with any
condition or provision of this Agreement to be performed by such other Party,
will operate or be construed as a waiver of any subsequent breach by such other
Party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either Party hereto to take any action by reason
of any breach will not deprive such Party of the right to take action at any
time while such breach continues.
32. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company and its Affiliates (and its and their successors),
as well as upon any person or entity acquiring, whether by merger,
consolidation, purchase of assets, dissolution or otherwise, all or
substantially all of the equity units, business and/or assets of the Company (or
its successor) regardless of whether the Company is the surviving or resulting
corporation. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, dissolution or otherwise) to all
or substantially all of the equity units, business or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
_______________
Initials
_______________
Initials
16
succession had occurred; provided, however, no such assumption shall relieve the
Company of any of its duties or obligations hereunder unless otherwise agreed,
in writing, by Executive.
This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representative, executors, administrators,
successors, and heirs. In the event of the death of Executive while any amount
is payable hereunder, all such amounts shall be paid to the Designated
Beneficiary (as defined in Section 6(d)).
33. NOTICE. Each notice or other communication required or permitted under
this Agreement shall be in writing and transmitted, delivered, or sent by
personal delivery, prepaid courier or messenger service (whether overnight or
same-day), or prepaid certified United States mail (with return receipt
requested), addressed (in any case) to the other Party at the address for that
Party set forth below that Party's signature on this Agreement, or at such other
address as the recipient has designated by Notice to the other Party.
Each notice or communication so transmitted, delivered, or sent (a) in
person, by courier or messenger service, or by certified United States mail
shall be deemed given, received, and effective on the date delivered to or
refused by the intended recipient (with the return receipt, or the equivalent
record of the courier or messenger, being deemed conclusive evidence of delivery
or refusal), or (b) by telecopy or facsimile shall be deemed given, received,
and effective on the date of actual receipt (with the confirmation of
transmission being deemed conclusive evidence of receipt, except where the
intended recipient has promptly notified the other Party that the transmission
is illegible). Nevertheless, if the date of delivery or transmission is not a
business day, or if the delivery or transmission is after 5:00 p.m. on a
business day, the notice or other communication shall be deemed given, received,
and effective on the next business day.
34. EXECUTIVE ACKNOWLEDGMENT. Executive acknowledges (a) being
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, (b) having read this Agreement and understands its
terms and conditions, (c) having been given an ample opportunity to discuss this
Agreement with Executive's personal legal counsel prior to execution, and (d) no
strict rules of construction shall apply for or against the drafter or any other
Party. Executive hereby represents that Executive is free to enter into this
Agreement including, without limitation, that Executive is not subject to any
covenant not to compete that would conflict with any duties under this
Agreement.
35. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both parties.
[Signature page follows.]
_______________
Initials
_______________
Initials
17
IN WITNESS WHEREOF, Executive has executed and Company has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative, to be effective as of the Effective Date.
WITNESS: EXECUTIVE:
Signature:________________________ Signature:________________________________
Name:_____________________________ Name: Xxxxxxx X. Xxxxxx
Date:_____________________________ Date:_____________________________________
Address for Notices:
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
ATTEST: COMPANY:
By:_______________________________ By:_______________________________________
Title:____________________________ Its:______________________________________
Name:_____________________________ Name:_____________________________________
Date:_____________________________ Date:_____________________________________
Address for Notices:
EV Management, LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention:________________________________
_______________
Initials
_______________
Initials
18
