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EXHIBIT 10(m)
EXECUTIVE CHANGE-IN-CONTROL
SEVERANCE AGREEMENT FOR
XXXXXXX X. XXXXXXX
Xxxxxxxx Energy & Development Corp.
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CONTENTS
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Article 1. Establishment, Term, and Purpose 1
Article 2. Definitions 2
Article 3. Severance Benefits 3
Article 4. Form and Timing of Severance Benefits 6
Article 5. Excise Tax Treatment 6
Article 6. Establishment of Trust 7
Article 7. The Company's Payment Obligation 8
Article 8. Legal Remedies 8
Article 9. Successors and Assignment 10
Article 10. Miscellaneous 10
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XXXXXXXX ENERGY & DEVELOPMENT CORP.
EXECUTIVE CHANGE-IN-CONTROL SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of ________,
1998, by and between Xxxxxxxx Energy & Development Corp. (hereinafter referred
to as the "Company") and Xxxxxxx X. Xxxxxxx (hereinafter referred to as the
"Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into change-in-control severance agreements with certain key
executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control arise, the Board
believes it is imperative that the Company and the Board should be able to rely
upon the Executive to continue in his position, and that the Company should be
able to receive and rely upon the Executive's advice, if requested, as to the
best interests of the Company and its shareholders without concern that the
Executive might be distracted by the personal uncertainties and risks created
by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in addition
to his regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management and the Board
as to whether such Change in Control would be in the best interests of the
Company and its shareholders, and to take such other actions as the Board might
determine to be appropriate; and
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control,
and to induce the Executive to remain in the employ of the Company, and for
other good and valuable consideration, the Company and the Executive agree as
follows:
ARTICLE 1. ESTABLISHMENT, TERM, AND PURPOSE
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full years. However, at the end of such three (3) year
period and, if extended, at the end of each additional year thereafter, the
term of this Agreement shall be extended automatically for one (1) additional
year, unless the Company delivers written notice six (6) months prior to the
end of such term, or extended term, to the Executive, that the Agreement will
not be extended. In such case, the Agreement will terminate at the end of the
term, or extended term, then in progress.
Notwithstanding the preceding, in the event a Change in Control occurs
during the original or any extended term, this Agreement will remain in effect
for a period of two (2) years after such Change in Control, and if within said
two (2) years the contingency factors occur which would entitle the Executive
to the Severance Benefits as provided herein, this Agreement shall remain in
effect until all obligations of the Company hereunder have been fulfilled, and
until all benefits required hereunder have been paid to the Executive.
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ARTICLE 2. DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized.
2.1 "ANNUAL BONUS" means the average of the actual annual bonus amounts
awarded to the Executive (regardless of when such award is paid or payable)
under the Company's annual bonus plan then in effect for the three (3) fiscal
years that have ended immediately prior to the fiscal year during which the
Executive's termination of employment occurs.
2.2 "BASE SALARY" means the greater of (1) the Executive's annual base
salary in effect immediately prior to the Change in Control, (2) the
Executive's annual base salary in effect immediately prior to the Executive's
termination of employment, or (3) the Executive's annual base salary in effect
sixty (60) days prior to the Executive's termination of employment.
2.3 "BENEFICIARY" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 10.2 herein.
2.4 "BOARD" means the Board of Directors of the Company.
2.5 "CAUSE" means (a) the Executive's willful and continued failure to
substantially perform his duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by the Executive of a
Notice of Termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive that specifically identifies the
manner in which the Company believes that the Executive has willfully failed to
substantially perform his duties, and after the Executive has failed to resume
substantial performance of his duties on a continuous basis within thirty (30)
calendar days of receiving such demand; (b) the Executive's willfully engaging
in conduct (other than conduct covered under (a) above) which is demonstrably
and materially injurious to the Company, monetarily or otherwise; or (c) the
Executive's having been convicted of a felony. For purposes of this
subparagraph, no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interests of the Company.
2.6 "CHANGE IN CONTROL" means (i) the Company shall not be the surviving
entity in any merger, consolidation, or other reorganization (or survives only
as a subsidiary of an entity other than a previously wholly owned subsidiary of
the Company); (ii) the Company sells, leases, or exchanges all or substantially
all of its assets to any other person or entity (other than a wholly owned
subsidiary of the Company); (iii) the Company is dissolved or liquidated; (iv)
any person or entity, including a "group" as contemplated by Section 13(d)(3)
of the Exchange Act, acquires or gains ownership or control (including, without
limitation, power to vote) of more than fifty percent (50%) of the outstanding
shares of the Company's voting stock (based upon voting power), other than as a
result of the death or incapacity of Xxxxxx X. Xxxxxxxx; or (v) as a result of
or in connection with a contested election of directors, the persons who were
directors of the Company before such election shall cease to constitute a
majority of the Board.
2.7 "CODE" means the United States Internal Revenue Code of 1986, as
amended, and any successors thereto.
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2.8 "COMPANY" means Xxxxxxxx Energy & Development Corp., a Texas
corporation, or any successor thereto as provided in Article 9 herein.
2.9 "DISABILITY" means complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at which the
Executive was employed when such disability commenced.
2.10 "EFFECTIVE DATE" means the date of this Agreement set forth above.
2.11 "EFFECTIVE DATE OF TERMINATION" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits hereunder.
2.12 "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
2.13 "NOTICE OF TERMINATION" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and
shall set 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.
2.14 "QUALIFYING TERMINATION" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.15 "RETENTION PERIOD" means the period of time beginning on the date of
a Change in Control and ending on the date two (2) years following the Change
in Control.
2.16 "SEVERANCE BENEFITS" means the payments and benefits provided for in
Section 3.3 herein.
2.17 "TRUST" means a grantor trust created pursuant to Article 6.
ARTICLE 3. SEVERANCE AND OTHER BENEFITS
3.1 RIGHT TO SEVERANCE AND OTHER BENEFITS. The Executive shall be entitled
to receive from the Company Severance Benefits, as described in Section 3.3
herein, if there has been a Change in Control and if a Qualifying Termination
has occurred. Unless otherwise provided under this Agreement or another
compensation plan, program, or written agreement, the Executive shall not be
entitled to receive Severance Benefits if he is terminated for Cause or his
employment with the Company ends due to death or Disability. Solely upon a
Change in Control, the Executive shall be entitled to the benefits provided in
Section 3.5 hereof.
3.2 QUALIFYING TERMINATION. The occurrence of any one or more of the
following events shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
(a) A termination of the Executive's employment during the Retention
Period for any reason whatsoever other than by the Company for
Cause or by reason of the Executive's death or Disability; or
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(b) An involuntary termination of the Executive's employment for
reasons other than by the Company for Cause or by reason of the
Executive's death or Disability (1) within six (6) months prior
to a Change in Control; or (2) prior to the date of a Change in
Control but the Executive reasonably demonstrates that such
termination (a) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates such Change in
Control; or (b) otherwise arose in connection with, or in
anticipation of, a Change in Control which has been threatened
or proposed and which actually occurs.
3.3 DESCRIPTION OF SEVERANCE BENEFITS. In the event the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2
herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to the Executive's unpaid base salary, accrued
vacation pay, and earned but not taken vacation pay through the
Effective Date of Termination.
(b) An amount equal to three (3) times the Executive's Base Salary.
(c) An amount equal to three (3) times the Executive's Annual Bonus.
(d) The Annual Bonus multiplied by a fraction, the numerator of
which is the number of full completed days in the bonus plan
year through the Effective Date of Termination, and the
denominator of which is three hundred sixty-five (365). This
payment will be in lieu of any other payment to be made to the
Executive under the annual bonus plan for the respective plan
year.
(e) A continuation of the welfare benefits of health care, life and
accidental death and dismemberment, and disability insurance
coverage for twenty-four (24) months after the Effective Date of
Termination. These benefits shall be provided to the Executive
at the same premium cost, and at the same coverage level, as in
effect as of the Executive's Effective Date of Termination.
However, in the event the premium cost and/or level of coverage
shall change for all employees of the Company, or for management
employees with respect to supplemental benefits, the cost and/or
coverage level, likewise, shall change for the Executive in a
corresponding manner.
(f) Solely for purposes of the Company's long-term incentive plans,
(i) the Executive shall be fully and immediately vested in all
of his outstanding awards under such plans, (ii) the Executive
shall be deemed to have terminated employment with the Company
by reason of retirement, and (iii) the committee or committees
administering such plans shall be deemed to have consented to
such retirement.
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(g) For purposes of the Company's nonqualified retirement plans and
retiree medical plans, benefits shall be calculated under the
assumption that the Executive's employment continued following
the Effective Date of Termination for three (3) full years
(i.e., three (3) additional years of age and service credits
shall be added); provided, however, that for purposes of
determining "final average pay" under such programs, the
Executive's actual pay history as of the Effective Date of
Termination shall be used.
(h) The aggregate benefits accrued by the Executive as of the
Effective Date of Termination under any savings and retirement
plans sponsored by the Company shall be distributed pursuant to
the terms of the applicable plan.
(i) Compensation which has been deferred under any deferred
compensation plans sponsored by the Company, together with all
interest that has been credited with respect to any such
deferred compensation balances, shall be distributed pursuant to
the terms of the applicable plan if elected by the Participant.
3.4 WAIVER OF BENEFITS UNDER COMPANY'S SEVERANCE BENEFIT PLAN.
Notwithstanding any provision to the contrary herein or in the Xxxxxxxx Energy
& Development Corp. Severance Benefit Plan, the Executive hereby knowingly,
voluntarily, and irrevocably waives any and all claims and rights he may have
to payments and benefits under such plan in the event he is entitled to
Severance Benefits hereunder.
3.5 BENEFITS CONTINGENT SOLELY UPON A CHANGE IN CONTROL. Upon the
occurrence of a Change in Control while the Executive is employed by the
Company (and without regard to whether a Qualifying Termination subsequently
occurs), for all purposes under the Company's long-term incentive plans (a) the
Executive shall be fully and immediately vested in all of his outstanding
awards under such plans, (b) the Executive shall be deemed to have terminated
employment with the Company by reason of retirement at the time of his
termination of employment with the Company regardless of the reason therefore,
and (iii) the committee or committees administering such plans shall be deemed
to have consented to such retirement. The Company hereby represents and
warrants to the Executive that on or before the Effective Date the Company has
obtained the necessary consents of the committee or committees administering
the Company's long-term incentive plans to the provisions of Section 3.3(f) and
this Section 3.5.
3.6 TERMINATION FOR DISABILITY. If an Executive's employment is terminated
due to Disability, following a Change in Control, or prior to a Change in
Control as described in Section 3.2(b) hereof, the Executive shall receive his
full base salary and accrued vacation through the Effective Date of
Termination, at which point in time the Executive's benefits shall be
determined in accordance with the Company's disability, retirement, insurance,
and other applicable plans and programs then in effect. In the event the
Executive's employment is terminated due to Disability, the Executive shall not
be entitled to the Severance Benefits described in Section 3.3 unless otherwise
provided under this Agreement.
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3.7 TERMINATION FOR DEATH. If the Executive's employment is terminated by
reason of his death following a Change in Control, or prior to a Change in
Control as described in Section 3.2(b) hereof, the Company shall pay the
Executive his full base salary and accrued vacation through the Effective Date
of Termination, plus all other amounts, to which the Executive is entitled
under the Company's retirement, survivor's benefits, insurance, and other
applicable compensation and benefit programs of the Company then in effect. In
the event the Executive's employment is terminated by reason of his death, the
Executive shall not be entitled to the Severance Benefits described in Section
3.3 unless otherwise provided under this Agreement.
3.8 TERMINATION FOR CAUSE. If the Executive's employment is terminated by
the Company for Cause following a Change in Control or prior to a Change in
Control as described in Section 3.2(b) hereof, the Company shall pay the
Executive his full base salary and accrued vacation through the Effective Date
of Termination, plus all other amounts to which the Executive is entitled under
any compensation and benefit plans of the Company, at the time such payments
are due, and the Company shall have no further obligations to the Executive
under this Agreement.
3.9 NOTICE OF TERMINATION. Any termination of employment by the Company or
by the Executive shall be communicated by a Notice of Termination.
ARTICLE 4. FORM AND TIMING OF SEVERANCE BENEFITS
4.1 FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits
described in Sections 3.3(a), (b), (c), and (d) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
Effective Date of Termination, but in no event beyond thirty (30) days from
such date.
4.2 WITHHOLDING OF TAXES. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be required
(including, without limitation, any United States federal taxes and any other
state, city, or local taxes).
ARTICLE 5. EXCISE TAX TREATMENT
5.1 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit under
this Agreement, or under any other agreement with, or plan of the Company (in
the aggregate, the "Total Payments"), if any of the Total Payments will be
subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Executive, in cash, an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax upon the
Total Payments and any federal, state and local income tax and Excise Tax upon
the Gross-Up Payment provided for by this Section 5.1 (including FICA and
FUTA), shall be equal to the Total Payments. Such payment shall be made by the
Company to the Executive as soon as practical following the Effective Date of
Termination, but in no event beyond thirty (30) days from such date.
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5.2 TAX COMPUTATION. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any payments or benefits received or to be received by the
Executive in connection with a Change in Control or the
Executive's termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement, or
agreement with the Company, or with any person (which shall have
the meaning set forth in Section 3(a)(9) of the Securities
Exchange Act of 1934, including a "group" as defined in Section
13(d) therein) whose actions result in a Change in Control or
any person affiliated with the Company or such persons) shall be
treated as "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute payments"
within the meaning of Section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel
as supported by the Company's independent auditors and
acceptable to the Executive, such other payments or benefits (in
whole or in part) do not constitute parachute payments, or
unless such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code in excess
of the base amount within the meaning of Section 280G(b)(3) of
the Code, or are otherwise not subject to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of: (i)
the total amount of the Total Payments; or (ii) the amount of
excess parachute payments within the meaning of Section
280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
5.3 SUBSEQUENT RECALCULATION. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Company.
ARTICLE 6. ESTABLISHMENT OF TRUST
As soon as practicable following the Effective Date, the Company shall
create a Trust (which shall be a grantor trust within the meaning of Sections
671-678 of the Code) for the benefit of the Executive and Beneficiaries, as
appropriate. The Trust shall have a Trustee as selected by the Company, and
shall have certain restrictions as to the Company's ability to amend the Trust
or cancel
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benefits provided thereunder. Any assets contained in the Trust shall, at all
times, be specifically subject to the claims of the Company's general creditors
in the event of bankruptcy or insolvency; such terms to be specifically defined
within the provisions of the Trust, along with the required procedure for
notifying the Trustee of any bankruptcy or insolvency.
At any time following the Effective Date, the Company may, but is not
obligated to, deposit assets in the Trust in an amount equal to or less than
the aggregate severance benefits which may become due to the Executive under
Sections 3.3(a), (b), (c), (d), and 5.1 of this Agreement.
Upon a Change in Control, the Company shall deposit assets in such Trust
in an amount equal to the estimated aggregate Severance Benefits which may
become due to the Executive under Sections 3.3(a), (b), (c), (d), 5.1, and 8.1
of this Agreement. Upon a Change in Control, the Company shall also deposit
assets in the Trust in an amount equal to any benefits due under the Company's
nonqualified retirement plans and deferred compensation plans less any amount
of such benefits currently funded under any trust established under such plans.
ARTICLE 7. THE COMPANY'S PAYMENT OBLIGATION
7.1 GENERAL. Subject to Section 7.3, the Company's obligation to make the
payments and the arrangements provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or
demand. Each and every payment made hereunder by the Company shall be final,
and the Company shall not seek to recover all or any part of such payment from
the Executive or from whomsoever may be entitled thereto, for any reasons
whatsoever.
7.2 MITIGATION. The Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements made under any
provision of this Agreement, and the obtaining of any such other employment
shall in no event effect any reduction of the Company's obligations to make the
payments and arrangements required to be made under this Agreement.
7.3. POOLING OF INTERESTS ACCOUNTING. Notwithstanding any other provision
of this Agreement to the contrary, in the event the consummation of a Change in
Control is contingent on using the pooling of interests accounting methodology,
the Company may make any modifications to this Agreement necessary to preserve
the use of pooling of interests accounting.
ARTICLE 8. LEGAL REMEDIES
8.1 PAYMENT OF LEGAL FEES. To the extent permitted by law, the Company
shall pay all legal fees, costs of mediation, arbitration or litigation,
prejudgment interest, and other expenses incurred in good faith by the
Executive as a result of the Company's refusal to provide the Severance
Benefits or other benefits to which the Executive becomes entitled under this
Agreement, or as a result of the Company's contesting the validity,
enforceability, or interpretation of this Agreement, or as a result of any
conflict (including conflicts related to the calculation of parachute payments)
between the parties pertaining to this Agreement, provided, however, that no
expenses shall be paid if the arbitration panel or court rules that the
Executive's claims are without merit.
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8.2 ALTERNATIVE DISPUTE RESOLUTION INCLUDING ARBITRATION. If a dispute
arises out of or related to this Agreement, the Company and the Executive agree
that they shall first seek to resolve any dispute by negotiation. If the
dispute has not been resolved within thirty (30) days after the date a party
hereto provides notice of the dispute to the other party, either party may
initiate mediation of the dispute by sending the other party a written request
that the dispute be mediated. The parties shall mediate the dispute before a
neutral, third party mediator (if a mutually agreeable mediator cannot be
identified, one shall be appointed by the American Arbitration Association)
selected by the mutual agreement of both parties within thirty (30) days after
the date of written request for mediation. If the dispute has not been resolved
within sixty (60) days after the original notice of a dispute or within thirty
(30) days after the date of the request for mediation, whichever is the later,
then either party may initiate arbitration proceedings and the dispute shall
then be resolved as follows:
(i) Except as provided in Section 8.2(ii), any and all claims,
demands, cause of action, disputes, controversies, and other
matters in question arising out of or relating to this
Agreement, any provision hereof, the alleged breach thereof, or
in any way relating to the subject matter of this Agreement,
involving the Company, the Executive, and/or their respective
representatives, even though some or all of such claims
allegedly are extracontractual in nature, whether such claims
sound in contract, tort, or otherwise, at law or in equity,
under state or federal law, whether provided by statute or the
common law, for damages or any other relief, shall be resolved
by binding arbitration pursuant to the Federal Arbitration Act
in accordance with the Commercial Arbitration Rules then in
effect with the American Arbitration Association. The
arbitration proceeding shall be conducted in Houston, Texas. The
arbitration may be initiated by either party by the providing to
the other a written notice of arbitration specifying the claims.
Within thirty (30) days of the notice of initiation of the
arbitration procedure, each party shall denominate one
arbitrator. The two arbitrators shall select a third arbitrator
failing agreement on which within thirty (30) days of the
original notice, the parties (or either or them) shall apply to
the Senior Active United States District Judge for the Southern
District of Texas, who shall appoint a third arbitrator. The
three (3) arbitrators, utilizing the Commercial Arbitration
Rules of the American Arbitration Association, shall by majority
vote within one hundred twenty (120) days of the selection of
the third arbitrator, resolve all disputes between the parties.
There shall be no transcript of the hearing before the
arbitrators. The arbitrators' decision shall be in writing, but
shall be as brief as possible. The arbitrators shall not assign
the reasons for their decision. The arbitrators' decision shall
be final and nonappealable to the maximum extent permitted by
law. Judgement upon any award rendered in any such arbitration
proceeding may be entered by any federal or state court having
jurisdiction. This agreement to arbitrate shall be enforceable
in either federal or state court. The enforcement of this
agreement to arbitrate and all procedural aspects of this
agreement to arbitrate, including but not limited to, the
construction and interpretation of this agreement to arbitrate,
the issues subject to arbitration (i.e., arbitrability), the
scope of the arbitrable issues, allegations of waiver, delay or
defenses to arbitrability, and the rules governing the conduct
of the arbitration, shall be governed by and construed pursuant
to the Federal Arbitration Act and shall be decided by the
arbitrators. In deciding the substance of any such claims, the
arbitrators shall apply the substantive laws of the State of
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Texas (excluding Texas choice-of-law principles that might call
for the application of some other State's law); provided,
however, it is expressly agreed that the arbitrators shall have
no authority to award treble, exemplary, or punitive damages
under any circumstances regardless of whether such damages may
be available under Texas law, the parties hereby waiving their
right, if any, to recover treble, exemplary, or punitive damages
in connection with any such claims. This agreement to arbitrate
is not applicable to disputes between or among the Company and
the Executive based upon or arising out of any other agreement,
benefit plan, or program heretofore or hereafter entered into
between the Executive and the Company or its affiliates.
Notwithstanding the preceding provisions of this Section 8.2(i),
the Company and the Executive may agree to use one arbitrator
rather than three arbitrators as provided above, and, in the
event of any such agreement, the one hundred twenty (120) day
period referred to in the sixth sentence of this Section 8.2(i)
shall begin on the date of the parties' selection of such one
arbitrator.
(ii) Notwithstanding the agreement to arbitrate contained in Section
8.2(i), in the event that either party wishes to seek a
temporary restraining order, a preliminary or temporary
injunction, or other injunctive relief in connection with any or
all such claims, demands, cause of action, disputes,
controversies, and other matters in question arising out of or
relating to this Agreement, any provision hereof, the alleged
breach thereof, or in any way relating to the subject matter of
this Agreement, involving the Company, the Executive, and/or
their respective representatives, even though some or all of
such claims allegedly are extracontractual in nature, whether
such claims sound in contract, tort, or otherwise, at law or in
equity, under state or federal law, whether provided by statute
or the common law, for damages or any other relief, each party
shall have the right to pursue such injunctive relief in court,
rather than by arbitration. The parties agree that such action
for a temporary restraining order, a preliminary or temporary
injunction, or other injunctive relief may be brought in the
State or federal courts residing in Houston, Texas, or in any
other forum in which jurisdiction is appropriate.
ARTICLE 9. SUCCESSORS AND ASSIGNMENT
9.1 SUCCESSORS TO THE COMPANY. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform the Company's obligations under this
Agreement in the same manner and to the same extent that the Company would be
required to perform them if no such succession had taken place. The date on
which any such succession becomes effective shall be deemed to be the date of
the Change in Control.
9.2 ASSIGNMENT BY THE EXECUTIVE. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If the Executive dies while any amount would still be payable to him
hereunder had he continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's Beneficiary. If the Executive has not named a Beneficiary, then such
amounts shall be paid to the
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Executive's devisee, legatee, or other designee, or if there is no such
designee, to the Executive's estate. Executive shall not have any right to
pledge, hypothecate, anticipate, or assign this Agreement or the rights
hereunder, except upon his death as described in this Section 9.2.
ARTICLE 10. MISCELLANEOUS
10.1 EMPLOYMENT STATUS. Except as may be provided under any other
agreement between the Executive and the Company, the employment of the
Executive by the Company is "at will," and may be terminated by either the
Executive or the Company at any time, subject to applicable law.
10.2 BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Company. The Executive may
make or change such designations at any time.
10.3 SEVERABILITY. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the
provisions hereof and shall have no force and effect.
10.4 MODIFICATION. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the
Company, or by the respective parties' legal representatives and successors.
10.5 APPLICABLE LAW. To the extent not preempted by the laws of the United
States, the laws of the state of Texas shall be the controlling law in all
matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this ____
day of _________________, 1998.
Xxxxxxxx Energy & Development Corp. Executive:
By:
--------------------------- ----------------------------
Xxxxxx X. Xxxxxxxx
Its: Chairman of the Board and
Chief Executive Officer
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