EXHIBIT (e)(21)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of
January, 2001 by and between DevX Energy, Inc., having its principal executive
offices at 00000 Xxxx Xxxx, Xxxxx 0000, Xxxxxx XX 00000-0000, and V. Xx Xxxxxx
having a mailing address at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxx, 00000.
WHEREAS:
a. The Employee has extensive knowledge of and experience in the
oil and gas industry in the United States and the geographic
areas in which the Company and subsidiaries carry on business.
b. The Employee is desirous of being employed by the Company and
the Company is desirous of employing the Employee upon the
terms herein provided.
c. The Company has determined that it is in its best interests to
provide the Employee with compensation and benefits under the
provisions of a contract of employment that will assure the
Company that it will have the full attention and dedication of
the Employee notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below), and that
will diminish the inevitable distraction of the Employee by
virtue of the personal uncertainties and risks created by the
absence of a contract of employment.
d. The Company wishes to protect the Employee from loss of
compensation and benefits if his continued employment with the
Company is no longer possible through no fault of the
Employee.
NOW, THEREFORE, in consideration of these premises and the
mutual covenants herein contained, the Company and the Employee hereby agree as
follows:
1. DEFINITIONS. The capitalized terms defined in this Section shall have
the meanings assigned to them in this Section whether the particular
term is used herein in the singular or in the plural.
1.1. "Affiliate" has the meaning set out in Rule 405 promulgated
under the Securities Act of 1933, as amended.
1.2. "Base Salary" has the meaning set in Schedule B as same may
be amended from time to time.
1.3. "Beneficial Ownership" has the meaning set out in Rule
13d-3 promulgated under the Securities Exchange Act of
1934, as amended.
1.4. "Bonus" has the meaning set out in paragraph B of Schedule
A
1.5. "Cause" means:
1.5.1. the willful and continued failure by the Employee
to substantially perform his duties with the
Company (other than any such failure resulting from
incapacity due to physical or mental illness),
where such failure has not been remedied within a
reasonable time after having received a written
demand for substantial performance from the Company
which specifically identified the manner in which
the Company believed that the Employee had not
substantially performed his duties, provided that
no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and
without reasonable belief that his action or
omission was not in the best interest of the
Company, or
1.5.2. a good faith determination by the Company that the
Employee is guilty of illegal substance abuse,
moral turpitude, fraud upon the Company or
embezzlement provided that no determination of
illegal substance abuse or moral turpitude may be
made against the Employee without giving the
Employee notice of the allegations against him in
reasonable detail and giving him an opportunity to
present, not less than 30 calendar days later,
such evidence or make such submissions in respect
thereof to the Company as the Employee deems
advisable.
1.5.3. the final, non-appealable felony conviction of the
Employee.
1.6. "Change of Control" means any of the following:
1.6.1. any consolidation or merger of the Company in which
the Company is not the continuing or surviving
corporation or pursuant to which shares of the
Company's common stock would be converted into
cash, securities or other property, other than a
merger of the Company in which the holders of the
Company's common stock immediately prior to the
merger have the same proportionate ownership of
common stock of the surviving corporation
immediately after the merger;
1.6.2. any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of
all or substantially all of the assets of the
Company;
1.6.3. any approval by the stockholders of the Company of
any plan or proposal for the liquidation or
dissolution of the Company;
1.6.4. the cessation of control (by virtue of their not
constituting a majority of directors) of the
Company's Board of Directors by the Continuing
Directors.
1.6.5. (A) the acquisition of beneficial ownership of an
aggregate of 15% of the voting power of the
Company's outstanding voting securities by any
person or group who Beneficially Owned less than
10% of the voting power of the Company's
outstanding voting securities on the Effective
Date, (B) the acquisition of Beneficial Ownership
of an additional 5% of the voting power of the
Company's outstanding voting securities by any
person or group who Beneficially Owned at least 10%
of the voting power of the Company's
outstanding voting securities on the Effective Date, or
(C) the execution by the Company and a stockholder of a
contract that by its terms grants such stockholder (in
its, hers or his capacity as a stockholder) or such
stockholder's Affiliate including, without limitation,
such stockholder's nominee to the Board of Directors (in
its, hers or his capacity as an Affiliate of such
stockholder), the right to veto or block decisions or
actions of the Board of Directors; provided, however, that
notwithstanding the foregoing, the events described in
items (A), (B) or (C) above shall not constitute a Change
in Control hereunder if the acquiring person or group is
(aa) a trustee or other fiduciary holding securities under
an employee benefit plan of the Company and acting in such
capacity, (bb) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
voting securities of the Company and, provided further,
that none of the following shall constitute a Change in
Control: (x) the right of the holders of any voting
securities of the Company to vote as a class on any matter
or (y) any vote required of disinterested or unaffiliated
directors or stockholders including, without limitation,
pursuant to Section 144 of the Delaware General
Corporation Law or Rule 16b-3 promulgated pursuant to the
Securities Exchange Act of 1934; or
1.6.6. subject to applicable law, in a Chapter 11 bankruptcy
proceeding, the appointment of a trustee or the conversion
of a case involving the Company to a case under Chapter 7;
and
1.6.7. notwithstanding anything in this Agreement to the
contrary, the transactions contemplated by the
Pre-Effective Amendment No. 1 to the Company's
Registration Statement on form S-2 filed with the
Securities & Exchange Commission on October 6, 2000 shall
not be considered a Change of Control hereunder.
1.7. "Continuing Directors" the individuals who were directors at
Effective Date or become directors thereafter but whose election
was approved by a vote of at least
two-thirds of the directors who were directors as of the Effective
Date or whose own election was previously so approved;
1.8. "Company" means DevX Energy, Inc. a company incorporated under the
laws of the state of Nevada.
1.9. "Company Group" means the Company, DevX Energy, Inc., a Delaware
corporation, DevX Operating Company, Corrida Resources, Inc., and
any other entity that directly or indirectly controls, is
controlled by, or is under common control with the Company or such
one or more of the foregoing as the context may require.
1.10. "Confidential Information" means all written, computer readable or
other tangible forms of information, documents, memoranda, or
other materials prepared by or on behalf of or pertaining to the
Company Group and the business, properties and assets thereof
including, without limitation, employee lists, production reports,
reserve reports, exploration targets, work-over programs, capital
expenditures, proposed or planned acquisitions or divestments,
performance reports, plans, studies, projections, methods,
designs, investigative or production techniques at any time used,
developed, investigated, made or sold by or on behalf of the
Company Group (whether or not by the Employee), before or during
the term of this Agreement, that are maintained as confidential by
the Company Group or any part thereof but does not include
information that is readily available to the public or that was
known to the Employee prior to the Effective Date (provided that
the onus to establish that the information was not Confidential
Information as defined in this Agreement shall be on the
Employee).
1.11. "Date of Termination" means the date on which the Company notifies
the Employee of such termination or the date on which the Employee
notifies the Company that he is voluntarily resigning as the case
may be, provided that if the Employee's employment is terminated
by reason of death, the Date of Termination shall be the date of
death of the Employee and provided further that if a Change of
Control occurs within 30 days of the date on which the Company
notifies the Employee that
his employment has been terminated and the Employee can reasonably
demonstrate that such termination arose in the contemplation of a
Change of Control, then the Date of Termination shall be deemed to
be the day following the Change of Control.
1.12. "Disability" means a condition of ill health or physical or mental
incapacity, that, in the good faith opinion of the Compensation
Committee of the Company's Board of Directors, and,
notwithstanding the reasonable accommodations made by the Company,
renders the Employee materially unable or unwilling to perform his
duties under this Agreement, for a period of not less than 120
days within any 12-month period irrespective of whether or not all
or any such 120 days are consecutive.
1.13. "Effective Date" means January 1, 2001.
1.14. "Employment Period" has the meaning specified therefore in Section
4.
1.15. "Employee" means V. Xx Xxxxxx.
1.16. "Good Reason" means any of the following:
1.16.1. Without his express written consent, the assignment to
the Employee of any duties materially inconsistent with
his positions, duties, responsibilities and status with
the Company as of the Effective Date, a substantial
reduction in his reporting responsibilities, titles or
offices as of the Effective Date as the same may be
increased from time to time, or any removal of the
Employee from or any failure to re-elect the Employee to
any of such positions, except as such removal or failure
arises in connection with the termination of his
employment for Cause, Disability or as a result of his
death or by the Employee other than for Good Reason;
1.16.2. A reduction by the Company in the Employee's Base Salary
as in effect at the time of the reduction where such
reduction is not in proportion to a simultaneous
reduction in the Base Salary of the Employee's peers;
1.16.3. The failure by the Company to continue in effect any
benefit or compensation plan (including but not limited
to any stock option plan, pension plan or, health and
accident plan) in which the Employee from time to time
participates (or plans providing substantially similar
benefits, and whether by or through the Company or
another member of the Company Group), the taking of any
action by the Company which would adversely affect the
Employee's participation in or materially reduce his
benefits under any of such plans or deprive him of any
material fringe benefit enjoyed by him, or the failure by
the Company to provide the Employee with the number of
paid vacation days to which he is then entitled on the
basis of years of service with the Company in accordance
with the Company's normal vacation policy in effect
immediately prior to the Effective Date except for such
changes in benefits that affect all of the Employee's
peers and do not result in a proportionately greater
reduction in the rights of or benefits to the Employee as
compared with the Employee's peers;
1.16.4. Any failure of the Company to obtain the assumption of,
or the agreement to perform, this Agreement by any
successor as contemplated in Section 14.1 hereof;
1.16.5. Any purported termination of the Employee's employment by
the Company which is not effected pursuant to Section
6.6.1 hereof;
1.16.6. Neither the decision nor the notification by the Company
that it does not intend to extend the Employment Period
shall be considered to be Good Reason provided that the
decision not to extend was taken in good faith.
1.17. "Notice of Termination" means a written notice which indicates the
specific termination provision in this Agreement relied upon, and,
to the extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of the Employee's employment under the provision so indicated.
1.18. "Option Plan" means the 1997 Incentive Equity Plan of the Company
as same may be amended or replaced from time to time.
1.19. "Target Bonus" has the meaning set out in Schedule B as same may
be amended from time to time.
2. EMPLOYMENT. Upon the terms and subject to the conditions contained in this
Agreement, the Employee agrees to provide full-time services for the
Company during the Employment Period. The Employee agrees to devote his
best efforts to the business of the Company, and shall perform his duties
in a diligent, trustworthy and business-like manner, all for the purpose of
advancing the business of the Company.
3. DUTIES. The Employee shall have the position and title of Vice President,
Asset Management and shall have the duties customarily attendant to that
position and as set more particularly set out in Schedule B hereto. During
the Employment Period, the Employee's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities
shall be at least commensurate in all material respects with the most
significant of those set forth in Schedule B. During the Employment Period,
and excluding any periods of vacation and sick leave to which the Employee
is entitled, the Employee agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to
the Employee hereunder, to use the Employee's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for the
Employee to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions, and (C) manage personal investments, so long as
such activities do not create a conflict of interest with the Company's
affairs or significantly interfere with the performance of the Employee's
responsibilities as an employee of the Company in accordance with this
Agreement.
4. EMPLOYMENT PERIOD. The employment of the Employee by the Company as
provided in Paragraph 2 shall be for the period commencing on January 1,
2001 through and ending on December 31, 2001 (the "EMPLOYMENT PERIOD")
unless earlier terminated pursuant to the provisions of Section 6.
5. SALARY AND BENEFITS. The salary and benefits of the Employee hereunder are
as set forth on Schedules A & B attached hereto.
6. TERMINATION OF EMPLOYMENT. Subject to the terms of this Agreement, the
Company may terminate the employment of the Employee prior to the
expiration of the Employment Period at any time as it deems appropriate.
6.1. Termination Without Cause. If, during the Employment Period, the
Employee's employment is terminated by the Company Without Cause, or
by the Employee for Good Reason, the Company shall have no further
obligation to make any payment or extend any benefit to the
Employee, except that Company shall pay the Employee, in a lump sum
in cash within 30 days after the Date of Termination, an amount
equal to the sum of:
6.1.1. eight (8) month's Base Salary at the rate in effect
immediately prior to the termination;
6.1.2. If, at the Date of Termination, no bonus has been declared
by the Board as payable to the Employee in respect of the
fiscal year in which termination occurs, the Target Bonus
established for the Employee with respect to the year in
which the termination occurs, prorated to the Date of
Termination;
6.1.3. Any accrued but unpaid salary and bonuses; and
6.1.4. The cash equivalent of unvested options as required by
Section 6.6.3 hereof.
6.2. Termination After a Change of Control. If, during the Employment
Period, the Employee's employment is terminated pursuant to Section
6.1 and the Date of Termination is within the twelve (12) month
period following a Change of Control, the Company shall pay to the
Employee, instead of the amounts provided in 6.1.1 and 6.1.2, an
amount that is equal to the sum of twelve (12) month's Base Salary,
at the rate in
effect immediately prior to the Date of Termination, plus the Target
Bonus established for the Employee with respect to the year in which
termination occurs.
6.3. Voluntary Resignation or Termination for Cause. If, during the
Employment Period, the Employee shall voluntarily terminate his
employment for other than Good Reason or if the Company shall
discharge the Employee for Cause, the Company shall have no further
obligation to make any payment or extend any benefit to the Employee
except that the Company shall pay the Employee accrued but unpaid
salary, bonuses and benefits payable pursuant to Section 5 hereof
through the Date of Termination.
6.4. Termination for Disability. If, during the Employment Period, the
Company terminates this Agreement for Disability, the Company shall
have no further obligation to make any payment or extend any benefit
to the Employee except that the Company shall pay to the Employee,
or his legal representative as the case may be, all accrued but
unpaid salary and bonuses, if any, provided that if at the Date of
Termination for Disability, no bonus has been declared by the Board
as payable to the Employee in respect of the fiscal year in which
such termination occurs, the Company shall pay the Target Bonus
established for the Employee with respect to such year, prorated to
the Date of Termination.
6.5. Death of the Employee. If the Employee dies prior to the end of
Employment Period, the Employee's employment and other obligations
under this Agreement shall automatically terminate and the Company
shall have no further obligation to make any payment or extend any
benefit to the Employee as of the end of the month in which the
Employee's death occurs; provided that the Company shall pay to the
Employee's estate, as soon as practicable, all accrued and unpaid
salary and bonuses, if any, provided further that, if no bonus has
been declared for the year in which death occurred, the Company
shall pay the Target Bonus established for the Employee in respect
of such year prorated to the Date of Termination.
6.6. General Termination Provisions.
6.6.1. Notice of Termination. Any termination by the Company or by
the Employee shall be communicated by Notice of Termination
to the other party thereto given in
accordance with Section 14.3 hereof. The failure by the
Employee or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Cause or Disability shall not render the Notice
of Termination ineffective or waive any right of the
Employee or the Company hereunder or preclude the Employee
or the Company from asserting such fact or circumstance in
enforcing the Employee's or the Company's rights hereunder.
6.6.2. Employee Benefits Payable on Termination. Except in the
case where the Employee's employment is terminated for
Cause or the Employee voluntarily terminates his employment
for other than Good Reason and, notwithstanding anything in
this Agreement to the contrary, the Company shall maintain
in full force and effect to the end of the period referred
to in Section 6.1.1 or 6.2, whichever is applicable, for
the continued benefit of the Employee and, if applicable,
the Employee's spouse and children, the employee benefits
set forth in Item G of Schedule A attached hereto that he
was entitled to receive immediately prior to the Date of
Termination (subject to the general terms and conditions
applicable at such time and from time to time of the plans
and programs under which he receives such benefits).
6.6.3. Stock Options. Except in the case where the Employee's
employment is terminated for Cause or the Employee
voluntarily terminates his employment for other than Good
Reason and notwithstanding anything in this Agreement to
the contrary, any unvested stock options previously issued
to the Employee shall become vested in the Employee, or his
estate as the case may be, immediately upon receipt of a
Notice of Termination provided that, if the Option Plan
under which the options were granted prohibits such
immediate vesting, the Company shall pay the cash
equivalent of the aggregate positive spread between the
exercise price of all such unvested options and the highest
closing price of the Company's common stock during the 10
trading days preceding the Termination Date.
6.6.4. Mitigation of Amounts Payable Hereunder. The Employee shall
not be required to mitigate the amount of any payment
provided for in this Section 6 by seeking other employment
or otherwise, nor shall the amount of any payment provided
for
in this Section 6 be reduced by any compensation earned by
the Employee as the result of employment by another
employer after the Date of Termination, or otherwise.
6.6.5. Complete Payment. The payments and other benefits to be
made or to be extended to the Employee under the provisions
of this Section 6 upon termination of the Employee's
employment shall be in complete satisfaction of any and all
payments that would otherwise be due to the Employee had he
remained employed by the Company during the remainder of
the Employment Period and the Company shall have no further
obligation to make any payment or extend any benefit to the
Employee under Sections 4, 5 and 6 of this Agreement or
otherwise upon or after such termination other than as
provided in this Section 6.
7. INDEMNITY. The Company shall indemnify, to the full extent authorized by
law, as same may be amended from time to time, the Employee and his heirs,
Employees, administrators and legal representatives, from any and all
suits, claims, actions, demands or proceedings of any kind to which the
Employee is named or in respect of which he may be or become liable by
reason of the fact that he is or was a director, officer or employee of
any member of the Company Group or by reason of the fact that he is or
was, at the Company's request, serving as the representative of the
Company or any member of the Company Group on any other corporation,
trust, joint venture or enterprise not part of the Company Group.
8. CONFIDENTIAL INFORMATION. The Employee recognizes and acknowledges that he
requires access to Confidential Information to perform his duties
hereunder and such information constitutes valuable, special and unique
property of the Company Group. The Company agrees to provide Confidential
Information immediately upon the execution of this Agreement and
thereafter at such time or times as are or may become required by the
needs the position of the Employee and his responsibilities within the
Company. The Employee agrees that he shall not at any time, either during
or subsequent to the term of this Agreement, disclose to others, use, copy
or permit to be copied, except in pursuance of his duties for and on
behalf of the Company, it successors, assigns or nominees, any
Confidential Information of any member of the Company Group (regardless of
whether developed by the Employee) without the prior written consent of
the Company, provided however, that this provision shall not prohibit the
Employee from disclosing Confidential Information in compliance with a
court order.
9. DELIVERY OF DOCUMENTS UPON TERMINATION. The Employee shall deliver to the
Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans,
customer lists, product compositions, and other documents and all copies
thereof, made, composed or received by the Employee, solely or jointly
with others, that are in the Employee's possession, custody, or control at
termination and that are related in any manner to the past, present, or
anticipated business or any member of the Company Group, except for items
owned by the Employee at the Effective Date. In this regard, the Employee
hereby grants and conveys to the Company all right, title and interest in
and to, including without limitation, the right to possess, print, copy,
and sell or otherwise dispose of, any reports, records, papers, summaries,
photographs, drawings or other documents, and writings, and copies,
abstracts or summaries thereof, that may be prepared by the Employee or
under his direction or that may come into his possession in any way during
the term of his employment with the Company that relate in any manner to
the past, present or anticipated business of any member of the Company
Group.
10. FURTHER ACTS. At the request of the Company (but without additional
compensation from the Company during his employment by the Company) the
Employee shall execute any and all papers and perform all lawful acts that
the Company may deem necessary or appropriate to further evidence or carry
out the transactions contemplated in this Agreement including, without
limitation, such acts as may be necessary for the preparation, filing,
prosecution, and maintenance of applications for United States letters
patent and foreign letters patent, or for United States and foreign
copyright, with respect to any inventions, works or other matters prepared
or authored by the Employee in the course of his employment.
11. NON COMPETITION. In consideration for being given continued access to
Confidential Information by the Company upon the execution of this
agreement the Employee acknowledges and agrees that:
11.1. He shall not directly or indirectly engage in the business of
acquiring oil and natural gas reserves and oil and natural gas
production and exploitation; or any other business
in which any member of the Company Group directly or indirectly
engages during the term of the Agreement. This provision shall
apply during the Employment Period and, for the eight month period
following the termination thereof, provided, however, that the
restriction in this Section 11 shall apply only to the reasonable
and limited geographic area in which any member of the Company
Group directly or indirectly has material operations as of the
Date of Termination or expiration of this Agreement whichever
comes first. For purposes of this Section 11, the Employee shall
be deemed to engage in a business if he directly or indirectly,
engages or invests in, owns, manages, operates, controls or
participates in the ownership, management, operation or control
of, is employed by, associated or in any manner connected with, or
renders services or advice to, any business engaged in acquiring
oil and natural gas reserves and oil and natural gas production
and exploitation; provided, however, that the Employee may invest
in the securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if (x) such
securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934 and (y) the Employee does not have
Beneficially Ownership of more than 5% of the outstanding capital
stock of such enterprise;
11.2. If a court of competent jurisdiction determines that the length of
time or any other restriction, or portion thereof, set forth in
this Section 11 is overly restrictive and unenforceable, the court
may reduce or modify such restrictions to those which it deems
reasonable and enforceable under the circumstances, and as so
reduced or modified, the parties hereto agree that the
restrictions of this Section 11 shall remain in full force and
effect. The Employee further agrees that if a court of competent
jurisdiction determines that any provision of this Section 11 is
invalid or against public policy, the remaining provisions of this
Section 11 and the remainder of this Agreement shall not be
affected thereby, and shall remain in full force and effect.
11.3. The geographic area in which the Company Group does business is
the continental United States in scope and that the restrictions
imposed by this Agreement are legitimate, reasonable and necessary
to protect the investment of the Company Group in its business and
the goodwill associated therewith. The Employee acknowledges that
the scope and duration of the restrictions contained herein are
reasonable in light
of the time that the Employee has been engaged in oil and gas
industry, his reputation therein and his relationship with the
suppliers, customers and clients of the Company Group. The
Employee further acknowledges that the restrictions contained
herein are not burdensome to the Employee in light of the
consideration paid therefor and the other opportunities that
remain open to the Employee. Moreover, the Employee acknowledges
that he has other means or opportunities available to him for the
pursuit of his profession or livelihood that will not be impaired
by the provisions of this Section 11.
12. REMEDIES. The Employee acknowledges that a remedy at law for any breach or
attempted breach of the Employee's obligations under Sections 8 through 11
hereof may be inadequate, agrees that the Company may be entitled to
specific performance and injunctive and other equitable remedies in case of
any such breach or attempted breach, and further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. The Company
shall have the right to offset against amounts to be paid to the Employee
pursuant to the terms hereof any amounts from time to time owing by the
Employee to the Company. The termination of the Agreement pursuant to
Section 4 [end of Employment Period], 6.3 [Cause] or 6.4 [disability]
hereof shall not be deemed to be a waiver by the Company of any breach by
the Employee of this Agreement or any other obligation owed the Company,
and notwithstanding such a termination the Employee shall be liable for all
damages attributable to such a breach.
13. DISPUTE RESOLUTION. Subject to the Company's right to seek injunctive
relief in court as provided in Section 12 hereof, any dispute, controversy
or claim arising out of or in relation to or connection to this Agreement,
including without limitation any dispute as to the construction, validity,
interpretation, enforceability or breach of this Agreement, shall be
exclusively and finally settled by arbitration, and any party may submit
such dispute, controversy or claim, including a claim for indemnification
under this Section 13, to arbitration.
13.1. Selection of Arbitrators. The arbitration shall be heard and
determined by one arbitrator, who shall be impartial and who shall
be selected by mutual agreement of the parties. If the parties
cannot agree on the sole arbitrator, then the appointing
authority for the implementation of such procedure shall be the
Senior United States District Judge for the Northern District of
Texas, who shall appoint an independent arbitrator who does not
have any financial interest in the dispute, controversy or claim.
If the Senior United States District Judge for the Northern
District of Texas refuses or fails to act as the appointing
authority within ninety (90) days after being requested to do so,
then the appointing authority shall be the Chief Employee Officer
of the American Arbitration Association, who shall appoint an
independent arbitrator who does not have any financial interest in
the dispute, controversy or claim. All decisions and awards by the
arbitration tribunal shall be made by majority vote.
13.2. Proceedings. Unless otherwise expressly agreed in writing by the
parties to the arbitration proceedings:
13.2.1. The arbitration proceedings shall be held in Dallas,
Texas, at a site chosen by mutual agreement of the
parties, or if the parties cannot reach agreement on a
location within thirty (30) days of the appointment of
the last arbitrator, then at a site chosen by the
arbitrators;
13.2.2. The arbitrators shall be and remain at all times wholly
independent and impartial;
13.2.3. The arbitration proceedings shall be conducted in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association, as amended from time to
time;
13.2.4. Any procedural issues not determined under the arbitral
rules selected pursuant to item 13.2.3 above shall be
determined by the law of the place of arbitration, other
than those laws which would refer the matter to another
jurisdiction;
13.2.5. The decision of the arbitrators shall be reduced to
writing; final and binding without the right of appeal;
the sole and exclusive remedy regarding any claims,
counterclaims, issues or accounting presented to the
arbitrators; made
and promptly paid in United States dollars free of any
deduction or offset, and any costs or fees incident to
enforcing the award shall, to the maximum extent
permitted by law, be charged against the party resisting
such enforcement;
13.2.6. The award shall include interest from the date of any
breach or violation of this Agreement, as determined by
the arbitral award, and from the date of the award until
paid in full, at the applicable Federal rate provided for
in Section 7872(f)(2)(A) of the Code; and
13.2.7. Judgment upon the award may be entered in any court
having jurisdiction over the person or the assets of the
party owing the judgment or application may be made to
such court for a judicial acceptance of the award and an
order of enforcement, as the case may be.
13.3. Acknowledgment Of Parties. Each party acknowledges that by
executing this Agreement he or it has voluntarily and knowingly
entered into an agreement to arbitrate under this Section.
14. MISCELLANEOUS PROVISIONS.
14.1. Successors 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, expressly to 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 and shall entitle the Employee to
compensation from the Company in the same amount and on the same
terms as the Employee would be entitled to under this Agreement
had the Employee terminated his employment for Good Reason, except
that for purposes of implementing the foregoing, the date on which
any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "COMPANY" shall mean the
Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 14.1 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
14.2. Employee's Heirs, etc. The Employee may not assign his rights or
delegate his duties or obligations hereunder without the written
consent of the Company. 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. If the Employee should die
while any amounts would still be payable to him hereunder as if he
had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to his designee or, if there be no such designee, to his
estate.
14.3. Notice. For the purposes of this Agreement, notices and all other
communications provide for in the Agreement 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 to the respective
addresses set forth on the first page of this Agreement, provided
that all notices to the Company shall be directed to the attention
of the Chief Employee Officer of the Company with a copy to the
Secretary of the Company, or to such other in writing in
accordance herewith, except that notices of change of address
shall be effective only upon receipt.
14.4. Amendment; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Employee and such
officer as may be specifically designated by the Board of
Directors of the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this Agreement.
14.5. Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such
holding shall not have the effect of invalidating or voiding the
remainder of this Agreement and the parties hereby agree that the
portion so held invalid, unenforceable or void shall, if possible,
be deemed amended or reduced in scope, or otherwise be stricken
from this Agreement to the extent required for the purposes of
validity and enforcement thereof.
14.6. Survival of the Employee's Obligations. Regardless of whether the
Employee's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Employee, with or without
Cause, the Employee's fiduciary obligations arising as a
consequence of his employment and, without limiting the generality
of the foregoing, the provisions of Sections 8 through 11 of this
Agreement shall survive the termination of this Agreement.
14.7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
14.8. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Texas.
14.9. Captions and Gender. The use of captions and Section headings
herein is for purposes of convenience only and shall not effect
the interpretation or substance of any provisions contained
herein. Similarly, the use of the masculine gender with respect to
pronouns in this Agreement is for purposes of convenience and
includes either sex who may be a signatory.
14.10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, both written and oral,
between the parties with respect to the subject matter hereof.
14.11. Employee Release. In consideration of the mutual covenants
contained herein, the Employee forever and unconditionally
releases and discharges the Company Group, and each member thereof
and their respective owners, directors, officers, employees,
assigns, representatives or agents from any and all claims,
demands, complaints, or causes of action of any nature relating to
or arising out of Employee's employment with any member of the
Company Group prior to the Effective Date hereof including any
claims arising under or relating to the contract of employment
dated December 15, 1997 (the "1997 Contract"). Such release
encompasses, but is not limited to any and all claims by Employee
under the Age Discrimination In Employment Act, severance amounts,
wages, salary, bonuses, stock options or other benefits of
employment payable under the 1997 Contract and whether or not in
the context of a change of control as well as any and all claims
under any U.S. federal, or state tort or common law, express or
implied contract or any U.S. federal, state, or local statutes but
does not encompass the obligations of the parties under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first set forth above.
DEVX ENERGY, INC. (EMPLOYEE)
By: /s/ XXXXXX X. XXXXXX /s/ V. XX XXXXXX
----------------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx Name: V. Xx Xxxxxx
Title: President & Chief Executive Officer
SCHEDULE A
SALARY AND BENEFITS
A. Base Salary. The Company shall pay the Employee during the Employment
Period the Base Salary as set out in Schedule B as same may be increased
from time to time. The Base Salary shall be paid by the Company in
accordance with its regular payroll practices. The Company may not reduce
the Employee's Base Salary at any time during the Employment Period.
B. Bonus. The Company may, in its sole discretion, pay to the Employee an
annual cash bonus (the "ANNUAL BONUS") of between 0% and 200% of the
Employee's Target Bonus as set out in Schedule B as same may be amended
from time to time. For greater certainty, it is expressly understood and
agreed that the Company may, in its absolute discretion, determine that
the Annual Bonus to be paid to the Employee in any particular fiscal year
may be zero or otherwise less than, equal to or in excess of the Target
Bonus established for such year. Any Annual Bonus that is declared but
not paid by the last business day of the third month following the fiscal
year end in respect of which the bonus was declared shall bear interest
thereafter until paid at the greater of the Prime Rate then in effect or
the highest rate then applicable under any lending agreement to which the
Company is then a party.
C. Annual Review. The Company shall review the Base Salary annually on or
before the start of each fiscal year during the Employment Period and may
amend same in accordance with this agreement as the Company deems
appropriate.
D. Stock Options. The Company, may in its sole discretion, grant the
Employee such stock options pursuant to the Company's 1997 Incentive
Equity Plan (the "PLAN"), as amended, as determined by the Company. All
such Stock Options shall be subject to the terms and conditions of the
Plan.
E. Payment and Reimbursement of Expenses. During the Employment Period, the
Company shall pay or reimburse the Employee for all reasonable travel and
other expenses incurred by the Employee in performing his obligations
under this Agreement in accordance with the policies and procedures of
the Company for its senior Employee officers, provided that the Employee
properly accounts therefor in accordance with the regular policies of the
Company.
F. Office Space. The Company shall, at its expense, provide an office for
the Employee at the headquarters of the Company. The Company shall
furnish and equip the Employee's office in accordance with the standards
commensurate with a position similar to that of the Employee in a
corporation of equivalent size located in the same area and engaged in
the same type of business as that of the Company.
G. Fringe Benefits and Perquisites. During the Employment Period, the
Employee shall be entitled to participate in or receive the Benefits as
set out in Schedule B and under any other plan or arrangement made
available by the Company to its Employee officers including, medical,
dental, disability insurance, 401K plans and other benefit plans as and
when established by the Company, subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Employee under any plan or arrangement
made available to the Employee shall be deemed to be in lieu of
compensation hereunder. Nothing herein shall obligate the Company to
establish any such plan or arrangement not expressly required in Schedule
B.
H. Tax. The Company may deduct and withhold from any compensation, benefits,
or amounts payable under this Agreement all federal, state, city, or
other taxes as may be required pursuant to any law or governmental
regulation or ruling.
Schedule B
to the Employment Agreement dated January 1, 2001
Between DevX Energy, Inc. (the Company")
and V. Xx Xxxxxx (the "Employee")
Base Salary: $125,000 per annum
Target Bonus: 15% of Base Salary
Duties and Responsibilities: as assigned from time to time by the Vice
President, Engineering
Reporting Relationships: to the Vice President, Engineering and in
his absence, the Chief Operating Officer or
his equivalent.
Benefits:
A. Vacation
During the Employment Period, the Employee shall be
entitled to paid vacation and such other paid
absences, whether for holidays, illness, personal
time, or any similar purposes, as determined by the
Company from time to time provided that the amount of
paid vacation shall not be less than three (3) weeks
(or fifteen (15) business days) during any 12 month
period.
B. Sick Leave During any period of illness, the Company shall
continue to pay the Base Salary to the Employee until
such time as the illness constitutes a Disability as
defined in the Agreement.
C. Vehicle
Allowance $450 per month.
