EMPLOYMENT AGREEMENT (As Amended and Restated Effective January 1, 2009)
Exhibit 99.2
(As
Amended and Restated
Effective
January 1, 2009)
WHEREAS,
Xxxxxxxx Resources, Inc. (the “Company”), a Nevada corporation with its
principal offices in Frisco, Texas, entered into an Employment Agreement with
Xxxxxx X. Xxxxx (“Employee”) with an original effective date of June 1, 2002;
and
WHEREAS,
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
requires that all non-qualified deferred compensation arrangements be amended no
later than January 1, 2009, in order to comply with the requirements thereof;
and
WHEREAS,
in connection with this Agreement, the Company has complied with the
requirements of Section 409A of the Code during the period commencing on January
1, 2005, through the effective date of this amended and restated Agreement;
and
WHEREAS,
the Company and the Employee desire to amend the Agreement as required by
Section 409A of the Code;
NOW,
THEREFORE, the Company and the Employee hereby agree as follows:
1. Employment. The
Company hereby agrees to employ Employee, and Employee hereby agrees to render
his exclusive service to the Company, in his current capacity of Senior Vice
President and Chief Financial Officer of the Company, with such duties as may be
assigned to him from time to time by the Board of Directors.
2. Term of
Agreement. This Agreement was originally effective commencing
on June 1, 2002 (the effective date of this Agreement). This
Agreement shall, as of its first anniversary, and on each annual anniversary
thereof, be extended automatically, without further action by the Employee or
the Company, for an additional one (1) year, so that there shall, as of June 1
of each year, be three (3) years remaining in the term of this Agreement (the
"Employment Period"), subject to earlier termination as hereinafter
provided. The effective date of this amended and restated Agreement
is January 1, 2009.
3. Place of
Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Frisco, Texas.
4. Base
Compensation. Employee shall be compensated by the Company at
a minimum base rate of $30,916.66 per month, payable semimonthly on the
fifteenth and final days of each month during the period of Employee's
employment under this Agreement, subject to such increases and additional
payments as may be determined from time to time by the Board of Directors of the
Company in its sole discretion. Employee shall also be entitled to
participate in any Company discretionary bonus plan. Such
compensation shall be in addition to any group insurance, pension, profit
sharing, and other employee benefits, which are extended from time to time to
Employee in the discretion of the Board of Directors of the Company and for
which Employee is eligible. Subject to such rules and procedures as
are from time to time specified by the Company, the Company shall also reimburse
Employee for all reasonable expenses incurred by him on behalf of the
Company.
5. Performance of
Services. Employee shall devote his full working time to the
business of the Company. Employee shall be excused from performing
any services for the Company hereunder during periods of temporary incapacity
and during vacations conforming to the Company's standard vacation policy,
without thereby in any way affecting the compensation to which he is entitled
hereunder.
6. Continuing
Obligations. In order to induce the Company to enter into this
Agreement, the Employee hereby agrees that all documents, records, techniques,
business secrets and other information which have come into his possession from
time to time during his employment by the Company or which may come into his
possession during his employment hereunder, shall be deemed to be confidential
and proprietary to the Company and the Employee further agrees to retain in
confidence any confidential information known to him concerning the Company and
it's subsidiaries and their respective businesses so long as such information is
not publicly disclosed. In the event of a breach or threatened breach
by the Employee of the provisions of this paragraph 6, the Company shall, in
addition to any other available remedies, be entitled to an injunction
restraining Employee from disclosing, in whole or in part, any such information
or from rendering any services to any person, firm or corporation to whom any of
such information may have been disclosed or is threatened to be
disclosed.
7. Property of
Company. All data, drawings, and other records and written
material prepared or compiled by Employee or furnished to Employee while in the
employ of the Company shall be the sole and exclusive property of the Company,
and none of such data, drawings or other records, or copies thereof, shall be
retained by Employee upon termination of his
employment. Notwithstanding the foregoing, Employee shall be under no
obligation to return public information.
8. Surviving
Provisions. The provisions of paragraphs 6 and 7 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
9. Death or
Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment
Period. If the Company determines in good faith that the Disability
of the Employee has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Employee written
notice of its intention to terminate the Employee's employment. In
such event, the Employee's employment with the Company shall terminate effective
on the 30th day after receipt of such notice by the Employee (the "Disability
Effective Date"), provided that, within the 30 days after such receipt, the
Employee shall not have returned to full-time performance of the Employee's
duties. For purposes of this Agreement, "Disability" shall mean the
absence of the Employee from the Employee's duties with the Company on a
full-time basis for 150 consecutive business days as a result of incapacity due
to mental or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the Employee
or the Employee's legal representative.
10.
Termination for Good
Reason. The Employee's employment may be terminated by the
Employee for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean:
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(a)
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the
assignment to the Employee of any duties inconsistent in any respect with
the Employee's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
paragraph 1. of this Agreement;
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(b)
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any
purported termination by the Company of the Employee's employment
otherwise than as expressly permitted by this
Agreement;
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(c)
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any
failure by the Company to comply with and satisfy paragraph 20(a) of this
Agreement,
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(d)
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the
Company's requiring the Employee to reside in or be based at any office or
location other than as provided in paragraph 3 of this Agreement,
or
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(e)
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following
a Change in Control, the Company's requiring the Employee to travel on
Company business to a substantially greater extent than during any period
prior to the Change in Control.
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Any good
faith determination of "Good Reason" made by the Employee shall be
conclusive.
11.
Termination for
Cause. It is agreed and understood that the Company cannot
terminate the employment of the Employee under this Agreement except for Cause,
which shall mean:
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(a)
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Should
Employee for reasons other than illness or injury absent himself from his
duties without the consent of the Company (which consent shall not be
unreasonably withheld) for more than twenty (20) consecutive
days;
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(b)
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Should
Employee be convicted of a felony involving moral
turpitude;
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(c)
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Should
Employee during the period of his employment by the Company engage in any
activity that would in the opinion of the Board of Directors of the
Company constitute a material conflict of interest with the
Company; provided that termination for Cause based on this
subparagraph (c) shall not be effective unless the Employee shall have
received written notice from the Board of Directors of the Company of such
activity (which notice shall also include a demand for the Employee to
cease the activity giving rise to the conflict of interest) fifteen (15)
days prior to his termination and the Employee has failed after receipt of
such notice to cease all activities creating the conflict of
interest; or
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(d)
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Should
Employee be grossly negligent in the performance of his duties hereunder,
or materially in breach of his duties and obligations under this
Agreement; provided that termination for Cause based on this
subparagraph (d) shall not be effective unless the Employee shall have
received written notice from the Board of Directors of the Company (which
notice shall include a description of the reasons and circumstances giving
rise to such notice) fifteen (15) days prior to his termination and the
Employee has failed after receipt of such notice to satisfactorily
discharge the performance of his duties hereunder or to comply with the
terms of this Agreement, as the case may
be.
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The
Company may terminate Employee's employment for Cause under this Agreement
without advance notice, except as otherwise specifically provided for in
subparagraphs (c) and (d) above. Termination shall not affect any of
the Company's other rights and remedies.
12.
Obligations of the Company
upon Separation from Service.
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(a)
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Good Reason or
Involuntary Termination Other Than for Cause. If, during
the Employment Period, the Company shall terminate the Employee's
employment other than for Cause or the Employee shall terminate employment
for Good Reason, the Company shall pay to the Employee the aggregate of
the following amounts, subject to the provisions of paragraph 16
hereof:
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(1)
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in
a lump sum in cash within 30 days after the date of termination, (A) the
Employee's annual base salary through the date of termination to the
extent not theretofore paid, (B) the product of the annual bonus paid or
payable, including any bonus or portion thereof which has been earned but
deferred (and annualized for any fiscal year consisting of less than
twelve full months or during which the Employee was employed for less than
twelve full months), for the most recently completed fiscal year during
the Employment Period (the “Fiscal Year Bonus”), if any, and a fraction,
the numerator of which is the number of days in the current fiscal year
through the date of termination, and the denominator of which is 365, and
(C) any compensation previously deferred by the Employee (together with
any accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (A), (B) and (C) shall be hereinafter referred to as
the "Accrued
Obligations"); and
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(2)
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in
a lump sum in cash within 30 days after the date of termination, (A) an
amount equal to 1.5 times the sum of the Employee's annual base salary and
the Fiscal Year Bonus; and (B) an amount equal to the total cost of COBRA
continuation coverage for eighteen (18) months under the Company’s group
medical and dental plan for benefits equal to those which would have been
provided to them in accordance with the plans if the Employee's employment
had not been terminated. In addition, the Company shall also pay to
Employee an amount equal to the aggregate of the federal income and
employment taxes that the Employee pays on such payment described in (B),
together with an additional amount equal to the federal income and
employment taxes imposed on the Employee due to such tax gross-up
bonus. The Company shall assign to the Employee ownership of
any life insurance policies owned by the Company insuring the Employee's
life.
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(b)
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Death. If
the Employee's employment is terminated by reason of the Employee's death
during the Employment Period, the Company shall pay to the Employee’s
legal representatives the sum of (1) the Accrued Obligations, and (2) an
amount equal to six months’ annualized total compensation. Such
amounts shall be paid in a lump sum in cash within 30 days of the date of
termination.
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(c)
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Disability. If
the Employee's employment is terminated by reason of the Employee's
Disability during the Employment Period, this Agreement shall terminate
without further obligations to the Employee, other than for payment of
Accrued Obligations. Subject to paragraph 16 hereof, Accrued
Obligations shall be paid to the Employee at the times set forth in
sub-paragraph (a)(1) above. In addition, the Company shall
assign to the Employee ownership of any life insurance policies owned by
the Company insuring the Employee's
life.
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(d)
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Cause or Voluntary
Termination Other than for Good Reason. If the
Employee's employment shall be terminated for Cause during the Employment
Period, or if the Employee voluntarily terminates his employment other
than for Good Reason, this Agreement shall terminate without further
obligations to the Employee other than the obligation to pay to the
Employee his annual base salary through the date of termination (in a lump
sum in cash within 30 days of the date of termination) and the amount of
any compensation previously deferred by the
Employee.
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13.
Change in
Control. For the purposes of this Agreement, a "Change in
Control" shall mean, in accordance with Treasury Regulation Section
1.409A-3(i)(5), the happening of any of the events described in subparagraphs
(a) through (d) below:
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(a)
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any
one Person, or more than one Person acting as a group, acquires ownership
of stock of the Company that, together with stock held by such Person or
group, constitutes more than 50% of either the total fair market value or
total voting power of the stock of the Company;
or
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(b)
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any
one Person, or more than one Person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such Person or Persons) ownership of stock of the Company
possessing 50% or more of the total voting power of the stock of the
Company; or
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(c)
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a
majority of members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of
the members of the Board prior to the date of the appointment or election;
or
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(d)
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any
one Person, or more than one Person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such Person or Persons) assets from the Company that have a
total gross fair market value equal to more than 50% of all of the assets
of the Company immediately prior to such acquisition or
acquisitions.
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provided,
however, that there is no Change in Control under paragraph 13(d) hereof when
there is a transfer of assets to (i) a shareholder of the Company immediately
before the transfer; (ii) an entity, 50% or more of the total value or voting
power of which is owned, directly or indirectly, by the Company; (iii) a person,
or more than one person acting as a group, that owns, directly or indirectly,
50% or more of the total value or voting power of all of the outstanding stock
of the Company; or (iv) an entity, at least 50% of the total value or
voting power of which is owned, directly or indirectly, by a person
described in (iii) hereof.
14.
Termination of Employment
Following a Change in Control. Following a Change in Control,
if the Employee’s employment is terminated for any reason other than Cause,
death or Disability, or if the Employee voluntarily terminates his employment
either within a period of six (6) months following the Change in Control or for
Good Reason, then the Company shall pay to the Employee (a) the amounts set
forth in sub-paragraph 12(a)(1) (in accordance with the terms of paragraph
12(a)(1)), (b) an amount equal to 2.99 times the sum of the Employee's annual
base salary and the highest annual bonus paid to the Employee during his tenure
with the Company; and (c) an amount equal to the total cost of COBRA
continuation coverage for eighteen (18) months under the Company’s group medical
and dental plan for benefits equal to those which would have been provided to
them in accordance with the plans if the Employee's employment had not been
terminated In addition, the Company shall pay to the Employee an
amount equal to the aggregate of the federal income and employment taxes that
the Employee pays on such payment described in (c) hereof, together with an
additional amount equal to the federal income and employment taxes imposed on
the Employee due to such tax gross-up bonus. On the date that is six
months and one day following the date of termination, the Company shall assign
to the Employee ownership of any life insurance policies owned by the Company
insuring the Employee's life. The provisions of this paragraph 14 are
subject to the provisions of paragraph 16.
15. Certain Additional Payments
by the Company.
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(a)
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Anything
in this Agreement to the contrary notwithstanding and except as set forth
below, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee (whether
paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, but determined without regard to any
additional payments required under this paragraph 15) (a "Payment") would
be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Employee
of all taxes (including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
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(b)
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Subject
to the provisions of paragraph 15(c), all determinations required to be
made under this paragraph 15, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be
made by Ernst & Young LLP or such other certified public accounting
firm as may be designated by the Employee (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and the
Employee within 15 business days of the receipt of notice from the
Employee that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm
is serving as accountant or auditor for the individual, entity or group
effecting the Change in Control, the Employee shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this paragraph 15 shall be
paid by the Company to the Employee within five days of the receipt of the
Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the
Employee. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies
pursuant to paragraph 15(c) and the Employee thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit of the
Employee.
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(c)
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The
Employee shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Employee is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Employee shall not pay such claim
prior to the expiration of the 30-day period following the date on which
it gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is
due). If the Company notifies the Employee in writing prior to
the expiration of such period that it desires to contest such claim, the
Employee shall:
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(1)
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give
the Company any information reasonably requested by the Company relating
to such claim,
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(2)
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take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the
Company,
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(3)
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cooperate
with the Company in good faith in order effectively to contest such claim,
and
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(4)
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permit
the Company to participate in any proceedings relating to such
claim;
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provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Employee harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of costs
and expenses. Without limitation of the foregoing provisions of
this paragraph 15(c), the Company shall control all proceedings taken
in connection with such contest and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim and may, at its sole option,
either direct the Employee to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company
directs the Employee to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the Employee, on an interest-free basis
and shall indemnify and hold the Employee harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
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(d)
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If,
after the receipt by the Employee of an amount advanced by the Company
pursuant to paragraph 15(c), the Employee becomes entitled to receive any
refund with respect to such claim, the Employee shall (subject to the
Company's complying with the requirements of paragraph 15(c)) promptly pay
to the Company the amount of such refund (together with any interest paid
or credited thereon after taxes applicable thereto). If, after
the receipt by the Employee of an amount advanced by the Company pursuant
to paragraph 15(c), a determination is made that the Employee shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Employee in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount
of Gross-Up Payment required to be
paid.
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(e)
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Notwithstanding
anything in this paragraph 15 to the contrary, unless an earlier payment
date is specified above, the Company shall, in accordance with Treasury
Regulation Section 1.409A-3(i)(1)(v), pay Employee or pay on the
Employee’s behalf) all amounts to which the Employee is entitled
under this paragraph 15 no later than the end of the second calendar year
following the calendar year in which the Excise Tax is remitted to the
Internal Revenue Service (or in the case of costs and expenses payable
under paragraph 15(d) where it is determined that no Excise Tax is owed by
the Employee, no later than the end of the second calendar year following
the calendar year in which there is a final and non-appealable settlement
or other resolution of the
contest).
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16.
Compliance with Section 409A
of the Internal Revenue Code. This Agreement will be
interpreted, applied and to the minimum extent necessary, unilaterally amended
by the Company, so that the Agreement does not fail to meet, and is operated in
accordance with, the requirements of, Section 409A of the Code. The
following provisions of this paragraph 16 shall apply notwithstanding any
contrary provision of paragraphs 12 or 14 of this Agreement:
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(a)
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Separation from
Service. For purposes of this Agreement, all references
to “termination of employment” shall mean a Separation from
Service. Separation from Service means a termination of
employment in accordance with the Company’s policies and procedures;
provided, however, that the Company and the Employee reasonably anticipate
that no further services will be performed after the termination date or
that the level of bona fide services the Employee will perform after such
date (whether as an employee or as an independent contractor) would
permanently decrease to no more than twenty percent (20%) of the average
level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month
period.
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(b)
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Specified
Employee. If, upon termination of employment, the
Employee is a “specified Employee” (as such term is defined and determined
under Section 409A(a)(2)(B)(i):
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(1)
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any
compensation required to be paid (in cash or by delivery of life insurance
policies) to the Employee pursuant to sub-paragraphs 12(a)(1)(B) and (C)
and 12(c) will be deferred and paid to the Employee on the first business
day after the six-month anniversary of his termination of employment, and
all cash amounts which are required to be deferred shall be credited with
interest at the short-term applicable federal rate in effect at the date
of termination of employment; and
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(2)
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if
the Employee’s termination of employment follows a Change in Control, any
cash payment required to be paid to the Employee pursuant to
sub-paragraphs 12(a)(1)(B) and (C) and paragraph 14 (other than
sub-paragraph (a) thereof) will, instead of being paid to the Employee, be
paid by the Company to a national bank as trustee of a grantor (“rabbi”)
trust (the “Trust”) for the benefit of the Employee (on the same schedule
as specified in such paragraphs for payments made directly to the
Employee) and invested in U.S. Treasury securities. Such lump
sum payment to the Trust, together with any earnings on such payment while
being held by the Trust, will be distributed (less applicable deductions
and withholdings) by the trustee to the Employee on the first business day
after the six month anniversary of the Employee’s termination of
employment.
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17. Payment of Certain Costs of
Employee. If a dispute arises regarding the interpretation or
enforcement of this Agreement, all legal fees and expenses incurred by the
Employee in seeking to obtain or enforce any right or benefit provided for in
this Agreement or in otherwise pursuing his claim will be paid by the Company,
to the extent permitted by law. The Company further agrees to pay
prejudgment interest on any money judgment obtained by the Employee calculated
at the JPMorgan Chase Bank N.A. prime interest rate in effect from time to time
from the date that payment(s) to him should have been made under this
Agreement. All such expenses and interest shall be reimbursed or paid
by the end of the calendar year following the calendar year in which the
Employee incurs such expense.
18.
Indemnification; Directors
and Officers Insurance. The Company shall (a) during the
Employment Period and thereafter without limitation of time, indemnify and
advance expenses to the Employee to the fullest extent permitted by the laws of
the State of Nevada from time to time in effect and (b) during the Employment
Period, acquire and maintain directors and offices liability insurance covering
the Employee (and to the extent the Company desires, other directors and
officers of the Company and its affiliated companies) to the extent it is
available at commercially reasonable rates as determined by the
Board; provided, however, that in no event shall the Employee be
entitled to indemnification or advancement of expenses under this paragraph 18
with respect to any proceeding, or matter therein, brought or made by the
Employee against the Company other than one initiated by the Employee to enforce
the Employee's advancement of expenses as provided in this paragraph 18 shall
not be deemed exclusive of any other rights to which the Employee may at any
time be entitled under applicable law, the certificate of incorporation or
bylaws of the Company, any agreement, a vote of stockholders, a resolution of
the Board, or otherwise. The provisions of this paragraph 18 shall
continue in effect notwithstanding termination of the Employee's employment
hereunder for any reason, including, without limitation, Employee's voluntary
termination. In furtherance thereof, and not by way of limitation,
the Company shall reimburse Employee for all reasonable legal fees and expenses
incurred by Employee in connection with Employee's obtaining and enforcing any
right or benefit provided by this Agreement. The reimbursement of
such legal fees and expenses shall be made within 30 days after Employee's
request for payment accompanied by evidence of the fees and expenses
incurred. For a period of ten (10) years after the termination, for
any reason, of Employee's employment with the Company, the Company shall
indemnify, hold harmless and defend Employee, to the fullest extent permitted by
applicable law, from and against any loss, cost or expense related to or arising
out of any action or claim with respect to (i) the Company or its affiliated
companies or (11) any action taken or omitted by the Employee (INCLUDING, BUT
NOT LIMITED TO, MATTERS THAT CONSTITUTE NEGLIGENCE OF THE EMPLOYEE) for or on
behalf of the Company or its affiliated companies, whether, in either case, such
action or claim, or the facts and circumstances giving rise thereto, occurred or
accrued before or after such termination of employment.
19.
Mitigation. The
Employee is not required to mitigate the amount of any payments to be made by
the Company pursuant to this Agreement by seeking other employment or
otherwise.
20.
Successors.
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(a)
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Except
as may otherwise be provided under any other written agreement between the
Company and the Employee with respect to the terms of Employee's
employment in the event of a Change in Control of the Company, the Company
will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Employee, 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 succession had taken
place. Failure of the Company to obtain such agreement prior to
the effectiveness of any such succession shall be a breach of this
Agreement. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined, any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for
in this paragraph 20 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of
law.
|
|
(b)
|
This
Agreement shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and
legatees.
|
21.
No Inconsistent
Obligations. Employee represents and warrants that he has not
previously assumed any obligations inconsistent with those of this
Agreement.
22.
Modification. This
Agreement shall be in addition to all previous agreements, written or oral,
relating to Employee's employment by the Company, and shall not be changed
orally, but only by a written instrument to which the Company and the Employee
are both parties.
23.
Binding
Effect. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, and shall also bind and inure to the
benefit of any successor of the Company by merger or consolidation or any
assignee of all or substantially all of its properties.
24.
Bankruptcy. Notwithstanding
anything in this Agreement to the contrary, the insolvency or adjudication of
bankruptcy of the Company, whether voluntary or involuntary, shall terminate
this Agreement and the rights and obligations of Company and Employee hereunder
shall be of no further force or effect.
25.
Law
Governing. This Agreement made, accepted and delivered in
Collin County, Texas, is performable in Collin County, Texas, and it shall be
construed and enforced according to the laws of the State of
Texas. Venue shall lie in Collin County, Texas for the purpose of
resolving and enforcing any dispute which may arise under this Agreement and the
parties agree that they will submit themselves to the jurisdiction of the
competent State or Federal Court situated in Collin County, Texas.
26.
Invalid
Provision. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be impaired thereby.
27.
Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the
Employee:
Xx.
Xxxxxx X. Xxxxx
0000
Xxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
If to the
Company:
Xxxxxxxx
Resources, Inc.
0000 Xxxx
xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxx 00000
or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
EXECUTED
this 22nd day of December, 2008, to be effective the 1st day of January,
2009.
XXXXXXXX
RESOURCES, INC.
|
By:
|
/s/ M. XXX XXXXXXX |
| Name: | M. Xxx Xxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
EMPLOYEE:
|
By:
|
/s/ XXXXXX X. XXXXX | ||
| Xxxxxx X. Xxxxx |
