Exhibit 10.1
CONFORMED COPY
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EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement"), by and among CORVETTEPORSCHE
CORP., a Delaware Corporation ("New Parent"), XXXXXXXX PETROLEUM COMPANY, a
Delaware corporation (the "Company"), and XXXXX X. XXXXX (the "Executive"), is
dated as of the 18th day of November, 2001, and is to be effective as of the
date of the consummation of the transactions (collectively, the "Merger")
contemplated by the Agreement and Plan of Merger (the "Merger Agreement") dated
as of November 18, 2001, by and among the Company, New Parent, Porsche Merger
Corp., a Delaware corporation and direct wholly owned subsidiary of New Parent,
Corvette Merger Corp., a Delaware corporation and direct wholly owned subsidiary
of New Parent, and Conoco Inc. ("Conoco") as of the same time as the
consummation of the Merger (the "Agreement Effective Date"). In the event that
the Merger is not consummated, this Agreement shall be void AB INITIO and shall
be of no further force and effect.
As the Executive will provide valuable additional services between
the signing of the Merger Agreement and the consummation of the Merger; the
Executive has brought about a strategically significant transaction between the
Company and Conoco that the Board of Directors of Xxxxxxxx Petroleum Company
(the "Board") believes is significantly in the interest of shareholders; and the
terms and conditions of the Executive's continuing relationship with the Company
will be substantially modified following the Merger,
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period.
----------------- As of the Agreement Effective Date, the
Company hereby agrees to continue to employ the Executive, and the Executive
hereby agrees to accept employment with the Company, in accordance with, and
subject to, the terms and provisions of this Agreement, for the period (the
"Employment Period") commencing on the Agreement Effective Date and ending on
the third anniversary of the Agreement Effective Date; PROVIDED, HOWEVER, that,
commencing on the date one year after the Agreement Effective Date, and on each
annual anniversary of such date (such date and each annual anniversary thereof,
the "Renewal Date"), unless previously terminated, the Employment Period shall
be automatically extended so as to terminate three years from such Renewal Date,
unless, at least 60 days prior to the Renewal Date, either party shall give
written notice to the other that the Employment Period shall not be so extended;
and PROVIDED, FURTHER, that no such extension shall extend the Employment Period
beyond the end of the month in which the Executive attains age 65 (the
"Retirement Date").
2. Terms of Employment.
-------------------
(a) Position and Duties.
-------------------
(i) Position and Duties.
------------------- During the Employment Period, (i) the
Executive shall serve as Chief Executive Officer and President of the
Company, with general responsibility for the management of the Company as
provided in the Company's by-laws, reporting directly to the Board of
Directors of New Parent (the "New Parent Board"), (ii) the Executive's
services shall be performed at the Company's headquarters in the Houston,
Texas metropolitan area and (iii) the Executive shall be a member of the
New Parent Board. Without limiting the generality of the foregoing, the
Executive shall have all the customary duties and responsibilities of a
chief executive officer and president, and all of the Company's executive
officers shall report directly to him or indirectly to him through another
such executive officer who reports to him. While Xxxxxx Xxxxxx (the
"Chairman") is serving as Chairman of the New Parent Board (the "Initial
Employment Period"), the Executive shall work with the Chairman on external
stakeholder relations (community, state, federal and foreign governments),
business development (growth) initiatives, and the creation of an
outstanding and cohesive New Parent Board. Furthermore, while the Chairman
is Chairman of the New Parent Board, Executive and the Chairman shall
jointly recommend to the New Parent Board the long-range strategic plan for
the Company, major acquisitions and divestitures, and major changes to the
Company's capital structure, and with respect to all other matters, the
Executive shall, in consultation with the Chairman, arrange the agenda for
meetings of the New Parent Board, and shall report to the New Parent Board
and arrange for other executives and advisors to report to the New Parent
Board. If during the Employment Period, the Chairman ceases for any reason
to serve as the Chairman of the New Parent Board, the Executive shall
immediately assume that position in addition to his other positions as set
forth above. The duties and responsibilities of the Executive may not be
terminated or diminished other than pursuant to the affirmative vote of the
Required Board Majority. During the period commencing on the Agreement
Effective Date and ending on the later of (i) October 1, 2004 and (ii) the
second anniversary of the Agreement Effective Date, the "Required Board
Majority" means at least two-thirds of the members of the New Parent Board,
and thereafter the "Required Board Majority" means such vote of the New
Parent Board as may be required by the by-laws of the Company as in effect
from time to time, but in no event less than a majority of the New Parent
Board.
(ii) Responsibilities.
---------------- During the Employment Period, excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive 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
Executive hereunder, to use the Executive'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
Executive 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 significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance
with this Agreement. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the Executive prior
to the Agreement Effective Date, the continued conduct of such activities
(or the conduct of activities similar in nature and scope thereto)
subsequent to the Agreement Effective Date shall not thereafter be deemed
to interfere with the performance of the Executive's responsibilities to
the Company.
(b) Compensation.
------------ During the Initial Employment Period, Executive's
compensation and benefits shall be, both in the aggregate and with respect to
each element of compensation and benefits, the same as the Chairman. However,
with respect to employee
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benefit plans, programs and practices that were in effect prior to the Agreement
Effective Date for individuals who were salaried United States Company employees
(including senior executives) prior to the Agreement Effective Date (the
"Company Prior Arrangements"), participation by Executive in such programs after
the Agreement Effective Date, even if such arrangements provide lesser benefits
than those analogous arrangements provided the Chairman, shall satisfy any
requirement in this Agreement that Executive participate in, or be covered by,
such an arrangement, but only if (i) the analogous arrangements provided to the
Chairman were in effect prior to the Agreement Effective Date ("Conoco Prior
Arrangements"), (ii) to the extent either of the Company Prior Arrangements or
Conoco Prior Arrangements are modified, both are similarly modified and (iii)
each of such arrangements continue to cover the applicable Company or Conoco
United States salaried employees (including senior executives) generally in the
same manner as immediately prior to the Agreement Effective Date.
Notwithstanding any other provision of this Agreement, neither the compensation
and benefits set forth in Annex B of the Employment Agreement dated as of
November 18, 2001 by and among New Parent, Conoco and the Chairman nor the
options to purchase shares of the Company's common stock and the restricted
shares of the Company's common stock granted to the Executive on November 17,
2001 (the "Special Grants") shall be taken into account in determining the
comparability of the compensation and benefits of the Executive and the
Chairman.
(i) Base Salary.
----------- Commencing on the Agreement Effective Date, during
the Employment Period, the Executive shall receive an annual base salary of
not less than his annual base salary as in effect immediately prior to the
Agreement Effective Date ("Annual Base Salary"), which shall be paid in
accordance with the Company's regular payroll practices. Commencing on the
January 1 following the Agreement Effective Date, and thereafter during the
Employment Period, the Annual Base Salary shall be reviewed at least
annually and shall be increased at any time and from time to time as shall
be substantially consistent with competitive industry practice, but in no
event less than increases consistent with increases in base salary
generally awarded in the ordinary course of business to the Chairman,
taking into account the Executive's unique position with the Company and in
no event shall Annual Base Salary be less than that applicable to the
Chairman. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. Annual
Base Salary shall not be reduced after any such increase, and the term
"Annual Base Salary," as utilized in this Agreement, shall refer to Annual
Base Salary as so increased.
(ii) Annual Bonus.
------------ In addition to Annual Base Salary, the Executive
shall be awarded, for each fiscal year or portion thereof during the
Employment Period, an Annual Bonus opportunity (the "Annual Bonus") in an
amount substantially consistent with competitive industry practice,
prorated for any period consisting of less than 12 full months. The Annual
Bonus shall not be less than the annual bonus paid to the Chairman for the
same fiscal year or portion thereof.
(iii) Incentive, Savings and Retirement Plans.
--------------------------------------- During the Employment
Period, the Executive shall be entitled to participate in all incentive,
savings and retirement plans that are tax-qualified under Section 401(a) of
the Internal Revenue Code of 1986, as amended ("Code"), and in all plans
that are supplemental to any such tax-qualified plans, in each case to the
extent that such plans are applicable generally to other executives of
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the Company, but in no event shall such plans provide the Executive with
incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities
that are, in each case, less favorable to the Executive, in the aggregate,
than the most favorable plans of the Company. As used in this Agreement,
the term "most favorable" shall, when used with reference to any plans,
practices, policies or programs of the Company, be deemed to refer to the
plans, practices, policies or programs of the Company, as in effect at any
time during the Employment Period and provided generally to the Chairman
during the Initial Employment Period, or to other executives of the
Company, that are most favorable to the Executive.
(iv) Welfare Benefit Plans.
--------------------- During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under all
welfare benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription, dental,
vision, disability, salary continuance, group life and supplemental group
life, accidental death and travel accident insurance plans and programs) to
the extent applicable generally to other executives of the Company, but in
no event shall such plans, practices, policies and programs provide the
Executive with benefits that are less favorable, in the aggregate, than the
most favorable such plans, practices, policies and programs of the Company.
(v) Expenses.
-------- During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company.
(vi) Fringe Benefits and Perquisites.
------------------------------- During the Employment Period,
the Executive shall be entitled to fringe benefits and perquisites in
accordance with the most favorable plans, practices, programs and policies
of the Company.
(vii) Office and Support Staff.
------------------------ During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments at least equal to the most favorable of
the foregoing provided to the Executive by the Company at any time during
the Employment Period, and to secretarial and other assistance to the
extent needed to fulfill his corporate responsibilities at least equal to
the most favorable of the foregoing provided to the Executive by the
Company at any time during the Employment Period.
(viii) Vacation.
-------- During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company.
(ix) Long-Term Incentive Compensation.
-------------------------------- In addition to Base Salary,
Annual Bonus and other elements of compensation described in Section 2(b)
or otherwise in this Agreement, during the Employment Period, the Executive
periodically shall be awarded incentive compensation awards, which may
consist of, among other things, stock options, stock appreciation rights,
restricted stock, stock units or performance awards, having in
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the aggregate target values consistent with each of (A) the Executive's
position and (B) competitive industry practice. During the Initial
Employment Period, such incentive compensation awards shall be
substantially the same, both in amount, exercise, strike or base price (if
applicable) and other terms and conditions, as those awarded to the
Chairman.
(x) Financial and Tax Planning.
-------------------------- During the Employment Period, the
Executive shall be entitled to reimbursement of (A) reasonable expenses
incurred with respect to preparation of his personal income tax returns and
(B) reasonable costs of financial counseling (in either case, including a
complete gross up for any taxes incurred by the Executive as a result of
such reimbursement). During the Initial Employment Period, such
reimbursement shall be substantially the same, both in scope and other
terms and conditions, as those made available to the Chairman.
(xi) Life Insurance.
-------------- During the Employment Period, the Company shall
provide the Executive with term life insurance in an amount equal to the
Executive's Annual Base Salary multiplied by four, which insurance may be
provided through one or more group policies and/or the purchase of an
individual policy, as well as a complete gross up for any taxes incurred by
the Executive as a result of such insurance coverage. The Executive agrees
to submit to physical examinations as reasonably requested by the Company
for purposes of obtaining such insurance. During the Initial Employment
Period, such coverage shall be substantially the same, both in scope and
other terms and conditions, as made available to the Chairman.
(xii) Home Sales Assistance.
--------------------- In connection with the Executive's
relocation to Houston, Texas, the Company shall provide the Executive with
the "Home Sales Assistance" benefits described in Article V, Section 2(a),
(b) and (c) of the Work Force Stabilization Plan as if the Executive had
suffered a "Layoff" (as defined in such plan).
Notwithstanding the foregoing provisions of this Section 2(b), prior to a Change
of Control, the Company may reduce or modify amounts and benefits described in
this Section 2(b) to the extent that such changes are applicable to all of the
Company's senior executives, including, during the Initial Employment Period,
the Chairman.
3. Termination of Employment.
-------------------------
(a) Death or Disability.
------------------- The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Required Board Majority determines in good faith that a Disability (as defined
below) of the Executive has occurred during the Employment Period, it may give
to the Executive written notice in accordance with Section 11(d) of this
Agreement of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the later of (i) the date the Executive would otherwise be placed on permanent
disability status under the Company's disability programs for United States
salaried employees and (ii) the 30th day after receipt of such notice by the
Executive, provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties (such
later date being the "Disability Effective Date"). For purposes of this
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Agreement, "Disability" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness or
injury which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause.
----- The Company, acting pursuant to a resolution adopted by
the Required Board Majority, may terminate the Executive's employment during the
Employment Period with or without Cause. For purposes of this Agreement, "Cause"
shall mean the Company's termination pursuant to a resolution adopted by the
Required Board Majority of the Executive's employment for any of the following:
(i) the Executive's final conviction of a felony crime against the Company
involving moral turpitude or (ii) the Executive's deliberate and intentional
continuing failure to substantially perform his duties and responsibilities
hereunder (except by reason of the Executive's incapacity due to physical or
mental illness or injury) for a period of 45 days after the Required Board
Majority has delivered to the Executive a written demand for substantial
performance hereunder which specifically identifies the bases for the Required
Board Majority's determination that the Executive has not substantially
performed his duties and responsibilities hereunder (that 45-day period being
the "Grace Period"); provided, that for purposes of this clause (ii), the
Company shall not have Cause to terminate the Executive's employment unless (A)
at a meeting of the New Parent Board called and held following the Grace Period
in the city in which the Company's principal executive offices are located, of
which the Executive was given not less than 10 days' prior written notice and at
which the Executive was afforded the opportunity to be represented by counsel,
to appear and to be heard, the Required Board Majority shall adopt a written
resolution that (1) sets forth the Required Board Majority's determination that
the failure of the Executive to substantially perform his duties and
responsibilities hereunder has (except by reason of his incapacity due to
physical or mental illness or injury) continued past the Grace Period and (2)
specifically identifies the bases for that determination, and (B) the Company,
at the written direction of the Required Board Majority, shall deliver to the
Executive a Notice of Termination for Cause to which a copy of that resolution,
certified as being true and correct by the secretary or any assistant secretary
of the Company, is attached.
(c) Good Reason.
----------- The Executive's employment may be terminated during
the Employment Period by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2 of this Agreement, or any other action by the
Company which results in a diminution in such position, authority, duties
or responsibilities (whether or not occurring solely as a result of the
Company ceasing to be a publicly traded entity or becoming a subsidiary of
a publicly traded entity), excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith that is
remedied by the Company promptly after receipt of notice thereof given by
the Executive;
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(ii) any failure by the Company to comply with any of the provisions
of this Agreement not specifically addressed in parts (iii) through (vi)
below, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith that is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any office
outside the Houston, Texas metropolitan area;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
(v) the failure of the Company to appoint and continue the Executive
as Chairman of the New Parent Board as required by Section 2(a)(i); or
(vi) any failure by the Company to comply with and satisfy the
requirements of Section 10 of this Agreement; provided that (A) the
successor described in Section 10(c) has received, at least 10 days prior
to the Date of Termination (as defined in subparagraph (f) below), written
notice from the Company or the Executive of the requirements of such
provision, and (B) such failure to be in compliance with and satisfy the
requirements of Section 10 continues as of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive's employment with the Company is terminated
within one year prior to the date on which the Change of Control occurs, unless
it is reasonably demonstrated by the Company that such termination of employment
(x) was not at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control and (y) otherwise did not arise in
connection with or anticipation of the Change of Control, then any such
termination shall be deemed for Good Reason.
(d) Other Termination by the Executive.
---------------------------------- The Executive's employment
(and status as a member of the New Parent Board) may be terminated voluntarily
by the Executive at any time during the Employment Period and, if other than (i)
at a time when the Executive is eligible to terminate his employment for Good
Reason or (ii) by retirement on or after the Retirement Date ("Retirement"), is
referred to herein as an "Other Termination by the Executive." The Executive
agrees not to cause termination of employment to occur within six months
following a Change of Control, except by reason of a Retirement, for Good Reason
or Disability.
(e) Notice of Termination.
--------------------- Any termination shall be communicated by
Notice of Termination to the other party hereto given in accordance with Section
11(d) of this Agreement. The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of the Executive or
the Company hereunder or preclude the Executive or the Company from asserting
such fact or circumstance in enforcing the Executive's or the Company's rights
hereunder.
(f) Date of Termination.
------------------- For purposes of this Agreement, the term
"Date of Termination" means (i) if the Executive's employment is terminated by
the Company for Cause,
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by the Executive for Good Reason, or as an Other Termination by the Executive,
the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies the Executive of such termination, (iii)
if the Executive's employment is terminated by reason of death or Disability,
the Date of Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be and (iv) if the Executive's
employment is terminated at the expiration of the Employment Period as provided
in Section 4(e), then the last day of the Employment Period.
4. Obligations of the Company upon Termination.
-------------------------------------------
(a) Good Reason; Other than for Cause or Death or Disability.
-------------------------------------------------------- If,
during the Employment Period, (x) the Company shall terminate the Executive's
employment other than for Cause or death or Disability or (y) the Executive
shall terminate employment for Good Reason:
(i) the Company shall pay or provide to or in respect of the Executive
the following amounts and benefits:
A. in a lump sum in cash, within 10 days after the Date of
Termination, an amount equal to the sum of (1) the Executive's Annual
Base Salary through the Date of Termination and (2) any compensation
for unused vacation time for which the Executive is eligible in
accordance with the most favorable plans, policies, programs and
practices of the Company, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued Obligation");
B. in a lump sum in cash, within 10 days after the Date of
Termination, an amount equal to the product of (x) the Annual Bonus
paid or awarded by the Company to or for the benefit of the Executive
in respect of the fiscal year immediately preceding the Date of
Termination and (y) 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;
C. in a lump sum in cash, undiscounted, within 10 days after the
Date of Termination, an amount equal to the amount of Annual Base
Salary that would have been paid to the Executive pursuant to this
Agreement for the period (the "Remaining Employment Period") beginning
on the Date of Termination and ending on the date that is three years
after the Date of Termination (the "Final Expiration Date") if the
Executive's employment had not been terminated plus the Annual Bonus
that would have been paid or awarded to or for the benefit of the
Executive during the Remaining Employment Period if the Executive's
employment had not been terminated and if the amount of the Annual
Bonus for each fiscal year or portion thereof during such period were
equal to the average of the two highest Annual Bonuses paid or awarded
to or for the benefit of the Executive in respect of the three full
fiscal years preceding the Date of Termination;
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D. in a lump sum in cash, undiscounted, within 30 days after the
Date of Termination, an amount equal to the economic equivalent of the
benefits the Executive (and his dependents or beneficiaries) would
have received or become entitled to under Section 2(b)(iii) of this
Agreement for the Remaining Employment Period if the Executive's
employment had not been terminated;
E. effective as of the Date of Termination, (1) if the Executive
has not received a grant of stock options in respect of any calendar
year during the Employment Period or the Remaining Employment Period,
for each such calendar year, a stock option grant covering the same
number of shares and on the same terms and conditions as the average
of the prior stock option grants to the Executive for the three full
fiscal years preceding the Date of Termination (excluding for this
purpose the Special Grants), prorated in the case of any period of
less than a full fiscal year, and (2) if the Executive has not
received a grant of restricted stock and/or restricted stock units
and/or other similar equity-based awards in respect of any calendar
year during the Employment Period or the Remaining Employment Period,
for each such calendar year, a grant covering the same number of
shares and on the same terms and conditions as the average of the
prior grants of such awards to the Executive for the three full fiscal
years preceding the Date of Termination (excluding for this purpose
the Special Grants), prorated in the case of any period of less than a
full fiscal year; provided that any awards required by (1) or (2)
shall be prorated based on the length of the Remaining Employment
Period as compared to the customary terms of such awards for purposes
of a recipient becoming entitled to full vesting in such award; and
F. effective as of the Date of Termination, (1) immediate vesting
and exercisability of, and termination of any restrictions on sale or
transfer (other than any such restriction arising by operation of law)
with respect to, each and every stock option, restricted stock award,
restricted stock unit award and other equity-based award and
performance award that is outstanding as of the Date of Termination
(including, without limitation, each of the foregoing granted pursuant
to Section 4(a)(i)(E)) (each, a "Compensatory Award"), (2) the
extension of the term during which each and every Compensatory Award
may be exercised by the Executive until the earlier of (x) the first
anniversary of the Date of Termination or (y) the date upon which the
right to exercise any Compensatory Award would have expired if the
Executive had continued to be employed by the Company under the terms
of this Agreement until the Final Expiration Date and (3) if a Change
of Control precedes or occurs within one year following the Date of
Termination, at the sole election of the Executive, in exchange for
any or all Compensatory Awards that are either denominated in or
payable in Common Stock (as defined in Section 9 hereof), an amount in
cash equal to the excess of (x) the Highest Price Per Share over (y)
the exercise or purchase price, if any, of such Compensatory Awards.
As used herein, the term "Highest Price Per Share" shall mean the
highest price per share that can be determined to have been paid or
agreed to be paid for any share of Common Stock by a Covered Person
(as defined below) at any time during the six-month period immediately
preceding
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any Change of Control. As used herein, the term "Covered Person" shall
mean any Person other than an Exempt Person (in each case as defined
in Section 9 hereof) who (I) is the Beneficial Owner (as defined in
Section 9 hereof) of 20% or more of the outstanding shares of Common
Stock or 20% or more of the combined voting power of the outstanding
Voting Stock (as defined in Section 9 hereof) of the Company at any
time during the Employment Period, (II) is a Person who has any
material involvement in proposing or effectuating the Change of
Control (as defined in Section 9 hereof), (III) is an assignee of or
has otherwise succeeded to any shares of Common Stock or Voting Stock
of the Company which were at any time during the Employment Period
"beneficially owned" (as defined in Section 9 hereof) by any Person
identified in clause (I) or (II) of this definition, if such
assignment or succession shall have occurred in the course of a
privately negotiated transaction rather than an open market
transaction, or (IV) is described in Section 3(c)(vi) hereof. For
purposes of determining whether a Person is a Covered Person, the
number of shares of Common Stock or Voting Stock of the Company deemed
to be outstanding shall include shares of which the Person is deemed
the Beneficial Owner, but shall not include any other shares which may
be issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options. In
determining the Highest Price Per Share, the price paid or agreed to
be paid by a Covered Person will be appropriately adjusted to take
into account (W) distributions paid or payable in stock, (X)
subdivisions of outstanding stock, (Y) combinations of shares of stock
into a smaller number of shares and (Z) similar events.
(ii) for the period extending until the later of (A) the third
anniversary of the Date of Termination or (B) the date the Executive
attains age 70, or such longer period as any plan, program, practice or
policy may provide (the "Benefit Continuation Period"), the Company shall
continue benefits to the Executive and/or the Executive's family at least
equal to those which would have been provided to them in accordance with
the most favorable plans, programs, practices and policies described in
Sections 2(b)(iv) of this Agreement if the Executive's employment had not
been terminated, provided that the obligation of the Company to provide
these benefits shall cease upon the Executive's refusal to serve as a
member of the New Parent Board. For purposes of determining eligibility of
the Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have remained
employed until the Final Expiration Date and to have retired on such date;
(iii) for the Remaining Employment Period, to the extent not
previously paid or provided, the Company shall timely pay or provide to the
Executive and/or the Executive's family any other amounts or benefits
required to be paid or provided, or which the Executive and/or the
Executive's family is eligible to receive as of the Date of Termination,
pursuant to this Agreement and under any plan, program, policy or practice
or contract or agreement of the Company as in effect and applicable
generally to other executives and their families on the Agreement Effective
Date or, if more favorable to the Executive, as in effect generally
thereafter and on or prior to the Date of Termination with respect to other
executives of the Company and their families (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits"); and
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(iv) unless otherwise provided herein, until the Executive (or any
family member or family entity assignee of the Executive) no longer holds
any stock options granted by the Company to the Executive, the Company will
provide to the Executive at no cost to the Executive (including a complete
gross up for any taxes incurred by the Executive as a result of receiving
such benefits), the benefits described in Sections 2(b)(x), but in no event
beyond the date of death of the Executive.
(b) Death or Disability.
------------------- If the Executive's employment is terminated
by reason of the Executive's death or Disability during the Employment Period
(regardless of whether a Change of Control has occurred), this Agreement shall
terminate without further obligations to the Executive under this Agreement,
other than the payment of Accrued Obligations, which shall be paid to the
Executive, or the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days after the Date of Termination, and the provision of
the Other Benefits.
(c) Cause.
----- If the Executive's employment shall be terminated for
Cause during the Employment Period, this Agreement shall terminate without
further obligations to the Executive under this Agreement, other than the
payment of the Accrued Obligations. In such case, all Accrued Obligations shall
be paid to the Executive in a lump sum in cash within 30 days after the Date of
Termination.
(d) Other Termination by the Executive.
---------------------------------- If an Other Termination by
the Executive occurs during the Employment Period, this Agreement shall
terminate without further obligations to the Executive under this Agreement,
other than the payment of Accrued Obligations and the provision of the Other
Benefits. In such case, all Accrued Obligations shall be paid to the Executive
in a lump sum in cash within 30 days after the Date of Termination.
(e) Expiration of Employment Period.
------------------------------- Notwithstanding any other
provision of this Agreement, if the Executive remains employed until the
expiration of the Employment Period, upon any termination of employment at or
after such expiration, (i) the Executive shall be entitled to payment of the
Accrued Obligation as described in Section 4(a)(i)(A) as though the termination
of employment was a termination by the Executive with Good Reason and (ii) each
and every Compensatory Award, as defined in Section 4(a)(i)(F)(1), shall be
immediately vested and exercisable, and any restrictions on sale or transfer
(other than any such restrictions arising by operation of law) with respect to
such awards shall lapse. It is contemplated by the parties that the Executive
shall serve as a member of the New Parent Board during the Benefit Continuation
Period.
5. Non-Exclusivity of Rights.
------------------------- Except as provided in Section 4 of
this Agreement, nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of, or any contract or agreement with, the Company
at or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement. Notwithstanding
the foregoing, (a) if the Executive receives payments
-11-
and benefits pursuant to Section 4(a) of this Agreement, the Executive shall not
be entitled to any severance pay or benefits under any severance, plan, program
or policy of the Company and its affiliates, unless otherwise provided therein
in a specific reference to this Agreement and (b) in no event shall the
Executive be entitled to receive any benefits under the Xxxxxxxx Petroleum
Company Executive Severance Plan.
6. Full Settlement; Resolution of Disputes.
---------------------------------------
(a) The Company's obligation to make payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set off, counterclaim, recoupment, defense, mitigation or other
claim, right or action which the Company may have against the Executive or
others. The Company agrees to pay promptly as incurred, to the fullest extent
permitted by law, all legal fees and expenses that the Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, the Executive or others as to the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any such payment pursuant to this Agreement) plus, in each case, interest on
any delayed payment at the annual percentage rate which is three percentage
points above the interest rate shown as the Prime Rate in the Money Rates column
in the then most recently published edition of THE WALL STREET JOURNAL
(Southwest Edition), or, if such rate is not then so published on at least a
weekly basis, the interest rate announced by Chase Bank Texas, N.A. (or its
successor), from time to time, as its "Base Rate" (or prime lending rate), from
the date those amounts were required to have been paid or reimbursed to the
Executive until those amounts are finally and fully paid or reimbursed;
provided, however, that in no event shall the amount of interest contracted for,
charged or received hereunder exceed the maximum non-usurious amount of interest
allowed by applicable law.
(b) If there shall be any dispute between the Company and the
Executive concerning (i) in the event of any termination of the Executive's
employment by the Company, whether such termination was for Cause or Disability,
(ii) in the event of any termination of employment by the Executive, whether
Good Reason existed, (iii) whether termination occurred after expiration of the
Employment Period or in contemplation of or following a Change of Control or
(iv) the compensation or benefits to be provided in respect of any termination
of the Executive's employment with the Company, then, unless and until there is
a final, nonappealable judgment by a court of competent jurisdiction declaring
that such termination was for Cause or Disability or that the determination by
the Executive of the existence of Good Reason was improper or that the
termination did not occur in contemplation of or following a Change of Control
or after expiration of the Employment Period, or that the Executive or the
Executive's beneficiary or estate claimed improper benefits upon termination,
the Company shall pay all amounts, and provide all benefits, to the Executive
and/or the Executive's family or other beneficiaries, as the case may be, that
the Company would be required to pay or provide pursuant to the applicable
provisions of Section 4 hereof as though such termination were by the Company
without Cause or in contemplation of or following a Change of Control or by the
Executive with Good Reason or after expiration of the Employment Period, or the
benefits that the Executive or the Executive's beneficiary or estate claimed
were properly payable hereunder.
-12-
7. Certain Additional Payments by the Company.
------------------------------------------
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any Payment
would be subject to the Excise Tax, then the Executive shall be entitled to
receive an additional payment (the "Gross-Up Payment") in an amount such that,
after payment by the Executive of all taxes (and any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
and employment taxes (and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. The Company's obligation to make Gross-Up Payments under this Section
7 shall not be conditioned upon the Executive's termination of employment.
(b) Subject to the provisions of Section 7(c), all determinations
required to be made under this Section 7, including whether and when a Gross-Up
Payment is required, 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 nationally recognized certified public accounting firm as may
be designated by the Executive (the "Accounting Firm"). The Accounting Firm
shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the Executive
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 Merger (as defined in
the Merger Agreement) or the Change of Control, the Executive may 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). The Accounting Firm shall not determine that no
Excise Tax is payable by the Executive unless it delivers to the Executive a
written opinion (the "Accounting Opinion") that failure to report the Excise Tax
on the Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 7, shall be paid by the Company to the
Executive within 5 days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding upon the Company and
the Executive. 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 that will not have been made by
the Company should have been made (the "Underpayment"), consistent with the
calculations required to be made hereunder. In the event the Company exhausts
its remedies pursuant to Section 7(c) and the Executive 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 Executive.
(c) The Executive 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 30 days after the Executive actually receives
notice 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; PROVIDED,
HOWEVER, that the failure of the Executive to notify the Company of such claim
(or to
-13-
\provide any required information with respect thereto) shall not affect any
rights granted to the Executive under this Section 7 except to the extent that
the Company is materially prejudiced in the defense of such claim as a direct
result of such failure. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which the Executive 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
Executive in writing prior to the expiration of such period that the Company
desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) 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 selected by the Company and reasonably acceptable to
the Executive;
(iii) cooperate with the Company in good faith in order effectively to
contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim;
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 Executive harmless, on an
after-tax basis, for any Excise Tax or income or employment tax (including
interest and penalties) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions of this
Section 7(c), the Company shall control all proceedings taken in connection with
such contest, and, at its sole discretion, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the
applicable taxing authority in respect of such claim and may, at its sole
discretion, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive 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
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties) imposed with respect
to such advance or with respect to any imputed income in connection with such
advance; and PROVIDED, FURTHER, that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive 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 the Gross-Up Payment would be payable
hereunder, and the Executive 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.
-14-
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 7(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 7(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 Executive
of an amount advanced by the Company pursuant to Section 7(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive 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.
(e) Notwithstanding any other provision of this Section 7, the
Company may, in its sole discretion, withhold and pay over to the Internal
Revenue Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of the Gross-Up Payment, and the Executive hereby
consents to such withholding.
(f) Definitions.
----------- The following terms shall have the following
meanings for purposes of this Section 7.
(i) "Excise Tax" shall mean the excise tax imposed by Section 4999
of the Code, together with any interest or penalties imposed with respect
to such excise tax.
(ii) A "Payment" shall mean any payment or distribution in the
nature of compensation (within the meaning of Section 280G(b)(2) of the
Code) to or for the benefit of the Executive, whether paid or payable
pursuant to this Agreement or otherwise.
-15-
8. Confidential Information.
------------------------ The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement) (referred to herein as "Confidential Information"). After termination
of the Executive's employment with the Company, the Executive shall not, without
the prior written consent of the Company or as may otherwise be required by law
or legal process, communicate or divulge any such information, knowledge or data
to anyone other than the Company and those designated by it. In no event shall
an asserted violation of the provisions of this Section 8 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement. Also, within 14 days after the termination of Executive's
employment for any reason, the Executive shall return to Company all documents
and other tangible items containing Company information which are in the
Executive's possession, custody or control.
9. Change of Control.
-----------------
As used in this Agreement, the terms set forth below shall have the
following respective meanings:
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in effect
on the date of this Agreement.
"Associate" shall mean, with reference to any Person, (a) any
corporation, firm, partnership, association, unincorporated organization or
other entity (other than New Parent or a subsidiary of New Parent) of which such
Person is an officer or general partner (or officer or general partner of a
general partner) or is, directly or indirectly, the Beneficial Owner of 10% or
more of any class of equity securities, (b) any trust or other estate in which
such Person has a substantial beneficial interest or as to which such Person
serves as trustee or in a similar fiduciary capacity and (c) any relative or
spouse of such Person, or any relative of such spouse, who has the same home as
such Person.
"Beneficial Owner" shall mean, with reference to any securities, any
Person if:
(a) such Person or any of such Person's Affiliates and Associates,
directly or indirectly, is the "beneficial owner" of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement) such securities or otherwise has the right
to vote or dispose of such securities, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided, however,
that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially
own," any security under this subsection (a) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding: (i) arises solely from a revocable proxy or
consent given in response to a public (I.E., not including a solicitation
exempted by Rule 14a-2(b)(2) of the General Rules and Regulations under the
Exchange Act) proxy or consent solicitation made pursuant to, and in accordance
with, the applicable provisions
-16-
of the General Rules and Regulations under the Exchange Act and (ii) is not then
reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report);
(b) such Person or any of such Person's Affiliates and Associates,
directly or indirectly, has the right or obligation to acquire such securities
(whether such right or obligation is exercisable or effective immediately or
only after the passage of time or the occurrence of an event) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, other rights, warrants or
options, or otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to "beneficially own," (i) securities tendered pursuant
to a tender or exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange or (ii) securities issuable upon exercise of Exempt Rights;
or
(c) such Person or any of such Person's Affiliates or Associates (i)
has any agreement, arrangement or understanding (whether or not in writing) with
any other Person (or any Affiliate or Associate thereof) that beneficially owns
such securities for the purpose of acquiring, holding, voting (except as set
forth in the proviso to subsection (a) of this definition) or disposing of such
securities or (ii) is a member of a group (as that term is used in Rule 13d-5(b)
of the General Rules and Regulations under the Exchange Act) that includes any
other Person that beneficially owns such securities;
provided, however, that nothing in this definition shall cause a Person engaged
in business as an underwriter of securities to be the Beneficial Owner of, or to
"beneficially own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of 40 days
after the date of such acquisition. For purposes hereof, "voting" a security
shall include voting, granting a proxy, consenting or making a request or demand
relating to corporate action (including, without limitation, a demand for a
stockholder list, to call a stockholder meeting or to inspect corporate books
and records) or otherwise giving an authorization (within the meaning of Section
14(a) of the Exchange Act) in respect of such security.
The terms "beneficially own" and "beneficially owning" shall have
meanings that are correlative to this definition of the term "Beneficial Owner."
"Change of Control" shall mean the first to occur of any of the
following occurring after the Agreement Effective Date (it being understood and
agreed that for purposes of this Agreement, neither the Merger, nor approval by
the shareholders of the Company or Conoco thereof, shall constitute a "Change of
Control" under this Agreement):
(a) any Person (other than an Exempt Person) shall become the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding or 20% or more of the combined voting power of the Voting
Stock of New Parent then outstanding; provided, however, that no Change of
Control shall be deemed to occur for purposes of this subsection (a) if
such Person shall become a Beneficial Owner of 20% or more of the shares
of Common Stock or 20% or more of the combined voting power of the Voting
Stock of New Parent solely as a result of (i) an Exempt Transaction or
(ii) an acquisition by a Person pursuant to a reorganization, merger or
consolidation, if, following such
-17-
reorganization, merger or consolidation, the conditions described in
clauses (i), (ii) and (iii) of subsection (c) of this definition are
satisfied;
(b) individuals who, immediately following the consummation of the
Merger, constitute the New Parent Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the New Parent Board;
provided, however, that any individual becoming a director thereafter
whose election, or nomination for election by New Parent's shareholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; provided, further, that
there shall be excluded, for this purpose, any such individual whose
initial assumption of office occurs as a result of any actual or
threatened election contest that is subject to the provisions of Rule
14a-11 of the General Rules and Regulations under the Exchange Act;
(c) the shareholders of New Parent shall approve a reorganization,
merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than 70% of the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of
the then outstanding Voting Stock of such corporation beneficially owned,
directly or indirectly, by all or substantially all of the Persons who
were the Beneficial Owners of the outstanding Common Stock immediately
prior to such reorganization, merger or consolidation in substantially the
same proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the outstanding Common Stock,
(ii) no Person (excluding any Exempt Person or any Person beneficially
owning, immediately prior to such reorganization, merger or consolidation,
directly or indirectly, 20% or more of the Common Stock then outstanding
or 20% or more of the combined voting power of the Voting Stock of New
Parent then outstanding) beneficially owns, directly or indirectly, 20% or
more of the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or the
combined voting power of the then outstanding Voting Stock of such
corporation and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement or initial action by the New Parent
Board providing for such reorganization, merger or consolidation; or
(d) the shareholders of New Parent shall approve (i) a complete
liquidation or dissolution of New Parent unless such liquidation or
dissolution is approved as part of a plan of liquidation and dissolution
involving a sale or disposition of all or substantially all of the assets
of New Parent to a corporation with respect to which, following such sale
or other disposition, all of the requirements of clauses (ii)(A), (B) and
(C) of this subsection (d) are satisfied, or (ii) the sale or other
disposition of all or substantially all of the assets of New Parent, other
than to a corporation, with respect to which, following such sale or other
disposition, (A) more than 70% of the then outstanding shares of common
stock of such corporation and the combined voting power of the Voting
Stock of such corporation is then beneficially owned, directly or
indirectly, by all or substantially all of the Persons who were the
Beneficial Owners of the outstanding Common Stock immediately prior to
such sale or other disposition in substantially the same proportion as
-18-
their ownership, immediately prior to such sale or other disposition, of
the outstanding Common Stock, (B) no Person (excluding any Exempt Person
and any Person beneficially owning, immediately prior to such sale or
other disposition, directly or indirectly, 20% or more of the Common Stock
then outstanding or 20% or more of the combined voting power of the Voting
Stock of New Parent then outstanding) beneficially owns, directly or
indirectly, 20% or more of the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding
Voting Stock of such corporation and (C) at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement or
initial action of the New Parent Board providing for such sale or other
disposition of assets of New Parent.
"Common Stock" shall mean the common stock, par value $.01 per
share, of New Parent.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exempt Person" shall mean any of New Parent, any subsidiary of New
Parent, any employee benefit plan of New Parent or any subsidiary of New Parent,
and any Person organized, appointed or established by New Parent for or pursuant
to the terms of any such plan.
"Exempt Rights" shall mean any rights to purchase shares of Common
Stock or other Voting Stock of New Parent if at the time of the issuance thereof
such rights are not separable from such Common Stock or other Voting Stock
(i.e., are not transferable otherwise than in connection with a transfer of the
underlying Common Stock or other Voting Stock), except upon the occurrence of a
contingency, whether such rights exist as of the Agreement Effective Date or are
thereafter issued by New Parent as a dividend on shares of Common Stock or other
Voting Securities or otherwise.
"Exempt Transaction" shall mean an increase in the percentage of the
outstanding shares of Common Stock or the percentage of the combined voting
power of the outstanding Voting Stock of New Parent beneficially owned by any
Person solely as a result of a reduction in the number of shares of Common Stock
then outstanding due to the repurchase of Common Stock or Voting Stock by New
Parent, unless and until such time as (a) such Person or any Affiliate or
Associate of such Person shall purchase or otherwise become the Beneficial Owner
of additional shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock or additional Voting Stock representing 1% or
more of the combined voting power of the then outstanding Voting Stock, or (b)
any other Person (or Persons) who is (or collectively are) the Beneficial Owner
of shares of Common Stock constituting 1% or more of the then outstanding shares
of Common Stock or Voting Stock representing 1% or more of the combined voting
power of the then outstanding Voting Stock shall become an Affiliate or
Associate of such Person.
"Person" shall mean any individual, firm, corporation, partnership,
association, trust, unincorporated organization or other entity.
-19-
"Voting Stock" shall mean, with respect to a corporation, all
securities of such corporation of any class or series that are entitled to vote
generally in the election of directors of such corporation (excluding any class
or series that would be entitled so to vote by reason of the occurrence of any
contingency, so long as such contingency has not occurred).
10. Successors.
----------
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of, and be enforceable by, the Executive's heirs,
executors and other legal representatives.
(b) This Agreement shall inure to the benefit of, and be binding
upon, the Company and may only be assigned to a successor described in Section
10(c).
(c) As of the Agreement Effective Date, New Parent shall be
substituted for the Company as the obligor under this Agreement, and each
reference to the Company with respect to periods on or after the Agreement
Effective Date shall be replaced with a reference to New Parent, and each
reference to the Company with respect to periods prior to the Agreement
Effective Date shall mean Xxxxxxxx Petroleum Company, except where the context
requires otherwise. 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 to assume
expressly 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. 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 assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, without reference to principles of conflict
of laws that would require the application of the laws of any other state or
jurisdiction.
(b) The Executive acknowledges that the Company currently has and
may in the future institute comprehensive security programs associated with the
Executive and his position with the Company. The Executive further acknowledges
that such programs are instituted by the Company to protect the Company's
interest in the Executive's continued performance of his responsibilities as
Chief Executive Officer of the Company. To that end, the Executive agrees to
comply with such programs and, to the extent practicable, to cause members of
his family to comply with such programs if such individuals are covered thereby.
The Executive further acknowledges that the Company has a substantial interest
in the health of the Executive and agrees to comply with preventive medical
policies and programs established by the Company. Such policies currently
include a requirement that the Executive annually obtain a complete physical
examination at the Xxxxx Xxxxxxx Medical Center (or another facility of similar
stature at the election of the Executive).
-20-
(c) This Agreement may not be amended or modified otherwise than by
a written agreement executed by the parties hereto or their respective
successors and heirs, executors and other legal representatives.
(d) All notices and other communications hereunder shall be in
writing and shall be given, if by the Executive to the Company, by telecopy or
facsimile transmission at the telecommunications number set forth below and, if
by either the Company or the Executive, either by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
-------------------
At the most recent address on file for the Executive in the records
of the Company.
If to the Company:
-----------------
Xxxxxxxx Petroleum Company
18 Xxxxxxxx Building
Fourth & Xxxxxx
18th Floor
Bartlesville, Oklahoma 74004
or, as applicable:
CorvettePorsche Corp.
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(e) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(f) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(g) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
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(h) The provisions of this Agreement shall govern in the event of a
conflict or inconsistency with respect to any other agreement concerning
Executive's employment relationship with the Company, including the provisions
of any benefit plan, program or practice.
(i) This Agreement shall be effective as of the Agreement Effective
Date.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from the Company, the Board and the New Parent
Board, respectively, the Company and New Parent each have caused these presents
to be executed in its name on its behalf.
XXXXXXXX PETROLEUM COMPANY
By: /s/ J. Xxxxx Xxxxxxxxx
---------------------------------
J. Xxxxx Xxxxxxxxx, Esq.
CORVETTEPORSCHE CORP.
By: /s/ J. Xxxxx Xxxxxxxxx
---------------------------------
J. Xxxxx Xxxxxxxxx, Esq.
/s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
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ANNEX A
CERTAIN DEFINITIONS
Accounting Firm is defined in Section 7(b).
Accounting Opinion is defined in Section 7(b).
Accrued Obligation is defined in Section 4(a)(i)(A).
Affiliate is defined in Section 9.
Agreement Effective Date is defined in the Preamble.
Annual Base Salary is defined in Section 2(b)(i).
Annual Bonus is defined in Section 2(b)(ii).
Associate is defined in Section 9.
Base Rate is defined in Section 6(a).
Beneficial Owner is defined in Section 9.
Benefit Continuation Period is defined in Section 4(a)(ii).
Board is defined in Section 2(a).
Cause is defined in Section 3(b).
Change of Control is defined in Section 9.
Chairman is defined in Section 2(a).
Chief Executive Officer or CEO is defined in Section 2(a).
Code is defined in Section 2(b)(iii).
Common Stock is defined in Section 9.
Company is defined in the Preamble and in Section 10(c).
Company Prior Arrangements is defined in Section 2(b).
Compensatory Award is defined in Section 4(a)(i)(F).
Confidential Information is defined in Section 8.
Conoco is defined in the Preamble.
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Conoco Prior Arrangements is defined in Section 2(b).
Covered Person is defined in Section 4(a)(i)(F).
Date of Termination is defined in Section 3(f).
Disability is defined in Section 3(a).
Disability Effective Date is defined in Section 3(a).
Employment Period is defined in Section 1.
Exchange Act is defined in Section 9.
Excise Tax is defined in Section 7(f).
Executive is defined in the Preamble.
Exempt Person is defined in Section 9.
Exempt Rights is defined in Section 9.
Exempt Transaction is defined in Section 9.
Final Expiration Date is defined in Section 4(a)(i)(C).
Good Reason is defined in Section 3(c).
Grace Period is defined in Section 3(b).
Gross-Up Payment is defined in Section 7(a).
Highest Price Per Share is defined in Section 4(a)(i)(F).
Home Sales Assistance is defined in Section 2(b)(xii).
Incumbent Board is defined in Section 9.
Initial Employment Period is defined in Section 2(a)(i)
Layoff is defined in Section 2(b)(xii).
Merger is defined in the Preamble.
Merger Agreement is defined in the Preamble.
Most Favorable is defined in Section 2(b)(iii).
New Parent is defined in the Preamble.
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New Parent Board is defined in Section 2(a)(i).
Other Benefits is defined in Section 4(a)(iii).
Other Termination by the Executive is defined in Section 3(d).
Payment is defined in Section 7(f).
Person is defined in Section 9.
Remaining Employment Period is defined in Section 4(a)(i)(C).
Renewal Date is defined in Section 1.
Required Board Majority is defined in Section 2(a)(i).
Retirement is defined in Section 3(d).
Retirement Date is defined in Section 1.
Special Grants is defined in Section 2(b).
Underpayment is defined in Section 7(b).
Voting is defined in Section 9.
Voting Stock is defined in Section 9.
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