Exhibit 10.7
2001 EMPLOYMENT AGREEMENT
THIS 2001 EMPLOYMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made effective as of June __, 2001, by and between WESTERN GAS
RESOURCES, INC., a Delaware corporation, (hereinafter referred to as the
"Corporation"), and (hereinafter referred to as the "Employee").
WITNESSETH:
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WHEREAS, the Corporation, its subsidiaries and affiliates (the "Western
Companies") acquire, design, construct and operate natural gas gathering and
processing facilities, market, store and transport natural gas, natural gas
liquids and sulphur, market electrical power and explore for, develop, and
produce oil and gas.
WHEREAS, employee has substantial experience in the Corporation's
business and is currently the Corporation's __________________.
WHEREAS, prior hereto, the Corporation and the Employee have entered
into that certain Employment Agreement, dated _________________________, which
shall be terminated upon execution of this Agreement and further, shall be
replaced in its entirety by this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. Employment. Corporation hereby employs the Employee and the
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Employee hereby accepts such employment with the Corporation upon the terms and
conditions hereinafter set forth. The Employee's employment shall continue until
it is terminated in accordance with the provisions of paragraph 12 hereof.
2. Powers, Duties and Responsibilities.
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(a) Employee shall devote his full time, attention and effort to the
business of the Western Companies during the Corporation's normal
business hours and during such other times as are reasonably necessary
for the proper performance of his responsibilities hereunder.
(b) Employee's primary duties shall be to act as _____________.
Employee shall have such powers, duties and responsibilities, and shall
perform such other functions in connection with the business of the
Companies, as may be assigned from time to time by the Corporation. At
all times during Employee's employment under this Agreement (including
employment following a Change of Control of the Corporation as
hereinafter described), Employee shall be employed in the Corporation's
offices in Denver, Colorado.
3. Compensation and Bonus. For all of the services rendered by
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Employee pursuant to this Agreement, the Corporation shall pay the Employee his
or her current annual base salary. In no event shall Employee's current annual
base salary be decreased, but it may, from time to time be increased at the
discretion of Employer during the term of this Agreement (hereinafter referred
to as "Compensation"), payable in accordance with the Corporation"s normal pay
practices during the term of Employee's employment. In addition, the Corporation
may pay Employee a bonus, as may be determined pursuant to any bonus plan
applicable to the Employee for such year, if any, approved by the Corporation's
Board of Directors from time-to-time in its sole and absolute discretion.
Employee
may provide a written election to have any bonus due in December of any year
paid in January of the following year.
4. Officer Insurance Coverage -- Costs of Defense. During the term of
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Employee's employment and for two (2) years thereafter, to the extent the
Corporation maintains an insurance policy or policies providing directors' and
officers' liability insurance, Employee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Corporation officer. Such coverage shall provide to
Employee officer liability insurance coverage to cover any claims that may be
made arising from his past, present, or future activities on behalf of the
Western Companies, in the same manner as such insurance is provided to the other
officers of the Corporation, provided that such insurance coverage is available
to the Corporation at a reasonable cost. Employee hereby represents that to his
knowledge no investigation, claim, or litigation is currently pending or
threatened against him at this time relating to or arising out of his activities
as an employee of any Western Company.
5. Cooperation With Respect to Investigations, Claims or Litigation.
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During the term of Employee's employment and at all times thereafter, should a
Western Company become involved in any investigation, claim, or litigation
relating to or arising out of Employee's past, present, or future duties with a
Western Company or with respect to any matters which the Employee has knowledge,
Employee agrees to fully, and in good faith, cooperate with the Corporation with
respect to such investigation, claim, or litigation. The Corporation shall
reimburse Employee for any and all expenses (including attorneys' fees) and, if
requested by Employee shall (within two business days of such request) advance
such expenses to Employee, which are incurred by Employee in connection with any
action for (i) indemnification or advance payment of expenses by the Corporation
under this Agreement or any other agreement or Corporation Bylaw now or
hereafter in effect relating to claims and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the Corporation,
regardless of whether Employee ultimately in determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
6. Indemnification Agreement. Exhibit "A", attached hereto and
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incorporated herein by reference is an Indemnification Agreement by and between
the Corporation and the Employee. The Corporation and the Employee each agree to
execute and deliver such Indemnification Agreement concurrently with the
execution and delivery of this Agreement. To the extent any provision set forth
in the Indemnification Agreement is in conflict with any provision set forth in
this Agreement, the provision set forth in the Indemnification Agreement shall
govern.
7. Employee Benefits. During the term of employment, Employee shall be
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eligible to participate in the employee benefit plans provided by the
Corporation in which the Employee participates as of the date hereof, as such
plans may be changed from time to time, in accordance with the provisions of
such plans, including, but not limited to, the Corporation's qualified
retirement plans, the Corporation's Stock Option Plan(s), and the Corporation's
loan plan to acquire stock. The Employee hereby agrees and acknowledges that
nothing in this Agreement guarantees him the right to any grant of stock options
under any Stock Option Plan, or loan under any loan plan and that the Board of
Directors, in its sole and absolute discretion, in accordance with the terms of
such plans, as they may be modified from time to time, determines whether and
when any stock options are granted or loans extended.
8. Confidential Information. Employee acknowledges that pursuant to the
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employment hereunder, Employee occupies a position of trust and confidence.
Accordingly, in order to facilitate the performance of this Agreement and the
activities contemplated by this Agreement, the Western Companies may disclose to
Employee or Employee may develop or obtain certain proprietary or confidential
information of the Western Companies. During Employee's employment hereunder and
for a period of one (1) year thereafter (which may be increased to two (2) years
thereafter pursuant to Section 14(a)(ii) or (v) hereof), Employee hereby agrees
not to use or to disclose to any person, other
than in the discharge of his duties under this Agreement, any "proprietary or
confidential" information of the Western Companies, including, but not limited
to, any information concerning the business operations, business strategies, or
internal structure of the Western Companies; the customers or clients of the
Western Companies; any acquisition strategies of the Western Companies; the gas
and other products' marketing or transportation strategies of the Western
Companies, its subsidiaries or affiliates; the terms of any gas gathering,
processing, marketing, or transportation contracts entered into by the Western
Companies; past, present or future research done by the Western Companies
respecting the business or operations of the Western Companies, or customers or
clients or potential customers or clients of the Western Companies; personnel
data of the Western Companies, product or process knowledge; the Employee's work
performed for, or relating to or for, any customer or client of any Western
Company or the gas or other product pricing for any customer or client of any
Western Company; any method or procedure relating or pertaining to projects
developed by any Western Company or contemplated by any Western Company to be
developed; or any gas gathering, processing, drilling, marketing, transportation
project which any Western Company is developing; or any plans or strategy
related to the foregoing which is not generally available or disclosed to the
public.
If the Employee violates this agreement of confidentiality, the Corporation
shall, in addition to any other remedy provided by law, be permitted to pursue
an action for injunctive relief, monetary damages, or both. The Employee
acknowledges that all such information constitutes confidential and/or
proprietary information of the Western Companies and agrees that such
information shall be kept confidential; such information shall be used solely
for the purpose of performing the obligations hereunder or activities
contemplated by this Agreement; and that he shall not otherwise disclose or make
use of such information, except in response to a court order.
9. Non-Solicitation. During Employee's employment hereunder and for a
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period of three years thereafter, Employee shall not engage in any of the
following:
(i) Hire, offer to hire (or participate in the hiring or offer to hire
of) any officer or employee of any Western Company; or
(ii) directly or indirectly, solicit, divert or take away or attempt to
solicit, divert or take away any business any Western Company has
enjoyed or solicited prior to the date hereof or at any time during
Employee's term of employment with the Corporation.
This provision, however, shall not be construed to require the Employee to
violate any law forbidding anti-competitive practices or any law regarding
anti-trust.
In addition, nothing contained herein shall prevent Employee from hiring
any officer or employee of any Western Company as a result of a general
solicitation in a publicly available publication. In the event Employee violates
this non-solicitation provision, the Western Company shall, in addition to any
other remedy provided by law, be permitted to pursue an action for injunctive
relief, monetary damages, or both.
10. Ownership of Documents. All information, drawings, documents and
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materials whether in writing, on computer disks, computer hard drive, on
magnetic tape or otherwise prepared by the Employee in connection with his
employment, or which Employee obtains in the course of or as result of his
employment by the Corporation shall be the sole and exclusive property of the
Corporation and will be delivered to the Corporation by the Employee on the
earlier of a demand by the Corporation or promptly after termination of his
employment hereunder, together with all written, computer, magnetic tape or
other evidence of the information, drawings, document and materials, if any,
furnished by any Western Company to the Employee in connection with the
Employee's employment.
11. Agreement Not To Compete. The parties hereto recognize that the
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Employee is retained by the Corporation as part of a professional, management
and executive staff of the Corporation whose
duties include the formulation and execution of management policy. Therefore,
except in the event of termination which would entitle Employee to payments
pursuant to paragraphs 14 (a) (ii), or 14 (a) (v) in which case the terms of
this provision shall not apply, the Employee hereby agrees that during the term
of his employment hereunder and for a period of one (1) year after the
termination of employment, he shall not act or engage in material competition
with the activities of or plans of any Western Company as they exist up to the
time of the Employee's termination of employment. Material competition by the
Employee shall mean that the Employee is involved in any business or investment
activity, in any capacity including but not limited to an employee, consultant,
advisor, agent, shareholder, independent contractor, investor, partner, member,
owner or otherwise, which activity directly competes with or has a material
adverse economic effect on any of the business activities or business plans of
any Western Company. Examples of such material competition include, but shall
not be limited to an activity involving the gathering and processing business
within 25 miles of one of the Western Companies' existing or planned gathering,
processing or generation facilities; an activity involving the storage or hub
business for natural gas or natural gas liquids within 100 miles of an existing
or planned storage facility of any Western Company; and/or an activity involving
the purchase of oil or gas leases, the farming-in of such leases or any similar
arrangement, within five (5) miles of the boundaries of an existing oil or gas
lease of any Western Company. In the event the Employee violates this agreement
not to compete, the Corporation shall, in addition to any other remedies
provided by law, be permitted to pursue an action for injunctive relief
(preliminary or permanent), monetary damages, or both.
12. Termination of Employment. Employee's employment pursuant to this
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Agreement shall terminate upon the first to occur of the following events:
(a) The Employee's death.
(b) The Employee's disability as that term is defined pursuant to the
Corporation's disability insurance plan covering its officers.
(c) The Employee's written election to terminate employment, to be
effective ninety (90) days thereafter unless an earlier effective
date is specified by the Corporation.
(d) The Corporation's written election to terminate Employee's
employment without "cause."
(e) The Corporation's written election to terminate the Employee's
employment "for cause."
(f) In the event of a Change of Control (as hereinafter defined),
Employee's employment is terminated without cause or upon the
expiration of six (6) months following a Change of Control,
whichever is earlier.
For purposes of this Agreement, the Corporation may elect to terminate
Employee's employment "for cause" if: (i) Employee shall have committed a
felony, fraud, theft or embezzlement involving the assets of any Western
Company; (ii) Employee violates or causes any Western Company to violate, in a
material respect, any statute, law, ordinance, rule or regulation relating to
such Western Company, which violation results in a material adverse effect to
the Corporation's business or financial condition; (iii) Employee engages in any
activity which is outside the scope of the Employee's authority and detrimental
to any Western Company's business; (iv) Employee fails to comply with the
provisions of this Agreement and Employee has either (x) not diligently
commenced to correct such detrimental activity; or (y) failed to comply after
ten (10) days' written notice from the Corporation, which notice provides a
detailed description thereof; or (v) Employee intentionally fails or refuses to
perform his obligations or responsibilities hereunder, or to carry out any
reasonable and lawful direction of the Corporation with respect to such
obligations or responsibilities.
13. Employee's Rights and Obligations Upon Death or Disability. If the
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Employee's employment is terminated as a result of death or disability, then the
Employee shall be entitled to the following in full satisfaction of all of his
rights under this Agreement or at law:
(i) Employee's Right to Compensation and Benefits. Employee shall be
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entitled to the pro-rata share of Compensation and employee benefits,
if any, which have been earned but not paid through the date of
Employee's death or disability. Employee shall only be entitled to
such additional bonus, if any, which has been previously authorized by
the Board of Directors, but has not been paid as of the date of
Employee's death or disability.
(ii) Employee's Obligations. Notwithstanding such termination of
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employment, if the Employee is terminated as a result of disability,
Employee shall remain bound by the provisions of paragraphs 5, 8, 9,
10 and 11 hereof.
14. Employee's Rights and Obligations Upon Termination of Employment By
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the Corporation Without Cause. If Employee's employment is terminated by the
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Corporation without cause pursuant to Section 12(d) herein, then Employee shall
be entitled to the following in full satisfaction of his rights under this
Agreement or at law:
(a) Severance Pay.
(i) Employee shall be entitled to severance pay in an amount equal
to the annual Compensation. Such severance pay will be payable
in accordance with the Corporation's normal pay practices over
the 12 months following such termination of employment.
(ii) Notwithstanding anything else contained herein, in the event of
a Change of Control of the Corporation (as hereinafter defined)
or after the sale of substantially all the assets of the
Corporation, upon the earlier of a) Employee's employment is
terminated without cause after a Change of Control of the
Corporation or b) upon the expiration of six (6) months
following said Change of Control, then the Employee shall be
entitled to severance pay equal to two (2) times the annual
Compensation of Employee. Severance pay pursuant to this
paragraph shall be paid to the Employee either a) over a 24-
month period or b) in a one-time lump sum payment, at
Employee's option. If the Employee elects payment over a 24
month period, then monthly installments shall commence on the
first day of the calendar month following the date of
termination of employment or the first day of the calendar
month following the expiration of six (6) months after a Change
of Control. If the Employee elects payment in a one-time lump
sum payment, then said payment shall be made within thirty (30)
days of the date of termination of employment or within thirty
(30) days after the expiration of the six (6) months after a
Change of Control. In the event that the Employee is entitled
to the severance pay pursuant to this sub-section, the
obligation of the Employee not to use or to disclose any
"proprietary or confidential information" set forth in Section
8 hereof shall apply for two (2) years following such Change of
Control of the Corporation or such sale of substantially all
the assets of the Corporation.
(iii) The severance pay provisions of this Section 14(a) (ii) are not
additive and in no event shall the Employee be entitled to
receive severance pay greater than two (2) times the annual
Compensation.
(iv) Notwithstanding anything else contained herein, in the event of
a Change of Control of the Corporation (as hereinafter defined)
or after the sale of substantially all the assets of the
Corporation, upon the earlier of a) Employee's employment is
terminated without cause after a Change of Control of the
Corporation or b) upon the expiration of six (6) months
following said Change of Control, then Employee shall receive
either of the following for unvested stock options previously
granted to Employee:
A) in the event of a Change of Control in which the
Corporation is acquired in a cash purchase, then Employee
shall receive a lump sum payment constituting the positive
difference between the exercise price of unvested stock
options previously granted to Employee and the transaction
price of common stock; or
B) in the event of a Change of Control in which the
Corporation is acquired in a stock purchase, then Employee's
stock options which have not vested prior to termination
without cause shall be converted to an amount of unqualified
vested options of the acquiring corporation's stock at the
original xxxxx xxxxx to Employee based upon the conversion
rate of the acquiring corporation's stock on the acquisition
date.
(v) Notwithstanding anything else contained herein, in the event
Employee's employment is terminated without cause within sixty
(60) days prior to the release of a press release regarding a
Change of Control of the Corporation, then the Employee shall
be entitled to severance pay equal to two (2) times the annual
Compensation of Employee. Severance pay pursuant to this
paragraph shall be payable to the Employee either a) over a 24
month period or b) in a one-time lump sum payment, at
Employee's option. If the Employee elects payment over a 24-
month period, then monthly installments shall commence on the
first day of the calendar month following Employee's election
for payment. If the Employee elects payment in a one-time lump
sum payment, then said payment shall be made within thirty (30)
days of the date of Employee's election for payment. In
addition, for any unvested stock options previously granted to
Employee, Employee shall be entitled to either payment or
conversion of such unvested stock options as described in
paragraph 14 (a) (iv). In the event that the Employee is
entitled to the severance pay pursuant to this sub-section, the
obligation of the Employee not to use or to disclose any
"proprietary or confidential information" set forth in Section
8 hereof shall apply for two (2) years following the, earlier
of such termination or such Change of Control of the
Corporation.
(vi) For purposes of this Agreement, "Change of Control of the
Corporation" means the acquisition by any person or persons
acting in concert (including corporations, partnerships,
associations or unincorporated organizations), of legal
ownership or beneficial ownership (within the meaning of Rule
13d-3, promulgated by the Securities and Exchange Commission
and now in effect under the Securities Exchange Act of 1934 (s
amended), of a number of voting shares of capital stock of the
Corporation greater than the number of voting shares of capital
stock of the Corporation which are then owned, both legally and
beneficially (as defined above), by Xxxxx X. Xxxx, Xxxx X.
Xxxxxxxxx, Xxxxxx X. Xxxxxxxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxxxx,
their immediate families and the companies through which they
and their immediate families hold ownership in the Corporation
("the Founders"). None of the Founders shall be counted among
those persons acting in concert to acquire ownership unless
such Founder, acting in concert with an acquiring person or
group (an "Acquiring Group Founder"), votes against the other
Founders in an election for the Board of Directors or the
modification of the Corporation's certificate of incorporation
or by-laws or in the vote to accept or reject a plan of merger,
sale of substantially all of the assets of the Corporation or
similar proposal. The shares of an Acquiring Group Founder
shall be counted in the acquiring group's shares and shall not
be counted in the shares of the Founders who are not Acquiring
Group
Founders.
(b) Employee's Right to Compensation and Benefits. Employee shall
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be entitled to the pro-rata share of Compensation and
employee benefits, if any, which have been earned but not
paid through the date of termination of employment. Employee
shall only be entitled to such additional bonus, if any,
which has been previously authorized by the Board of
Directors, but has not been paid as of the date of
termination of employment.
(c) Payment of Excise Taxes. The Corporation shall be responsible
for the payment of any and all excise taxes including any
increase in income taxes resulting from such payment, which
may result or be assessed to the Employee in connection with
payments, whether in cash, stock or benefits received by the
Employee under this paragraph 14 of this Agreement. In
addition, the Corporation shall defend, indemnify, save and
hold the Employee harmless from any and all claims for excise
taxes which are due or may become due or which arise or
result from any dispute with a Federal, state or local taxing
authority in connection with this paragraph 14.
(d) Employee's Obligations. Notwithstanding such termination of
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employment, Employee shall remain bound by the provisions of
paragraphs 5, 8, 9, 10 and 11 hereof.
15. Employee's Rights and Obligations Upon Termination of Employment by
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the Corporation With Cause. If Employee's employment is terminated by the
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Corporation with cause pursuant to paragraph 12(e) herein, then the Employee
shall be entitled to the following in full satisfaction of all of his rights
under this Agreement or at law:
(i) Severance Pay. Employee shall not be entitled to any severance
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pay.
(ii) Employee's Right to Compensation and Benefits. Employee shall
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only be entitled to the pro-rata share of Compensation and employee
benefits, if any, earned but not paid through the date of termination
of employment. Employee shall only be entitled to such additional
bonus, if any, which has been previously authorized by the Board of
Directors, but has not been paid as of the date of termination of
employment.
(iii) Employee's Obligations. Notwithstanding such termination of
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employment, Employee shall remain bound by the provisions of
paragraphs 5, 8, 9, 10 and11 hereof.
16. Employee's Rights and Obligations Upon Termination of Employment By
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Employee. If Employee's employment is terminated by the Employee pursuant to
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paragraph 12(c) herein, then the Employee shall be entitled to the following in
full satisfaction of all of his rights under this Agreement or at law:
(i) Severance Pay. Employee shall be entitled to no severance pay.
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(ii) Employee's Rights to Compensation and Benefits. Employee shall
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be entitled to the pro-rata share of Compensation and Employee
Benefits, if any, which have been earned but not paid through the
effective date of such termination of employment. Employee shall only
be entitled to such additional bonus, if any, which has been
previously authorized by the Board of Directors, but has not been paid
as of the date of termination of employment.
(iii) Employee's Obligations. Notwithstanding such termination of
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employment, Employee shall remain bound by the provisions of
paragraphs 5, 8, 9, 10 and 11 hereof.
17. Benefit. This Agreement shall inure to the benefit of and be binding
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upon the Corporation, its successors and assigns, including, but not limited to
(i) any entity which may acquire all or substantially all of the Corporation's
assets and business, (ii) any entity with or into which the Corporation may be
consolidated or merged, or (iii) any entity that is the successor corporation in
a share exchange, and the Employee, his heirs, guardians and personal and legal
representatives. The Employee and the Corporation also agree that each Western
Company shall be deemed to be a third-party beneficiary to this Agreement.
18. Notices. All notices and communications hereunder shall be in writing
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and shall be deemed given when sent postage prepaid by registered or certified
mail, return receipt requested, and, if intended for the Corporation, shall be
addressed to it, to the attention of its President, at:
Western Gas Resources, Inc.
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
or at such other address which the Corporation shall have given notice to the
Employee in the manner herein provided, and if intended for the Employee, shall
be addressed to him at his last known residence, or at such other address at
which the Employee shall have given notice to the Corporation in the manner
provided herein:
19. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Colorado.
20. Severability. In the event one or more of the provisions contained in
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this Agreement, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or any other application or modification
thereof, shall not in any way be affected or impaired. The parties further agree
that any such invalid, illegal or unenforceable provision or restriction shall
be deemed modified so that it shall be enforced to the greatest extent
permissible under law, and to the extent that any court of competent
jurisdiction determines any provision or restriction herein to be overly broad,
or unenforceable, such court is hereby empowered and authorized to limit such
provisions or restriction so that it is enforceable for the longest duration of
time, within the largest geographical area and with the broadest scope.
21. Miscellaneous.
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a) Counterparts. This Agreement may be executed in more than one
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copy, each copy of which shall serve as an original for all purposes,
but all copies shall constitute but one and the same Agreement.
(b) Assignment. Except as provided in paragraph 17, this Agreement is
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personal to each of the parties hereto, and neither party may assign
nor delegate any of such party's rights or obligations hereunder
without first obtaining the written consent of the other party.
(c) Headings. All headings set forth in this Agreement are intended
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for convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions
hereof.
(d) Gender, Plurals and Pronouns. Throughout this Agreement, the
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masculine gender shall include the feminine and neuter, and the
singular shall include the plural and vice versa, wherever the context
and facts require such construction.
(e) Binding Arbitration, Attorney's Fees and Expenses. Except for
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disputes arising or resulting from the provisions contained in
paragraph 14 of this Agreement, if any dispute
arises between the parties to this Agreement (but not as to whether
the Corporation is obligated to provide legal representation to the
Employee pursuant to Section 4 hereof), then both parties shall submit
the dispute to binding arbitration. Both parties agree to be bound by
the decision of such arbitration. The obligation to submit to binding
arbitration shall not prevent either party from seeking a court order
or an injunction enforcing the term of this Agreement. In the event of
any binding arbitration between the parties, or any litigation to
enforce any provision (except for disputes arising or resulting from
the provision contained in paragraph 14) of this Agreement or any
right of either party, the unsuccessful party to such arbitration or
litigation shall pay the successful party all costs and expenses,
including reasonable attorneys' fees, incurred. In the event a dispute
arises or results from the provisions of paragraph 14 of this
Agreement, then both parties shall submit the dispute to binding
arbitration under the foregoing provisions, except that all costs and
expenses, including reasonable attorneys' fees, incurred shall be
solely borne by the Corporation.
(f) Waiver of Breach. The waiver by any party hereto of any
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provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by any party.
(g) Entire Agreement. Except for the Indemnification Agreement,
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this Agreement contains all agreements, understandings, and
arrangements between the parties hereto and no other exists. Except
for the Indemnification Agreement, all previous agreements,
understandings, and arrangements between the parties relating to
employment are terminated by this Agreement. This Agreement may be
amended, waived, changed, modified, extended or rescinded only by a
writing signed by the party against whom such amendment, waiver,
change, modification, extension or rescission is sought.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date
first written above.
WESTERN GAS RESOURCES, INC.
By: ________________________________
Xxxxx X. Xxxxxx, President & CEO
EMPLOYEE
____________________________________
EXHIBIT "A"
2001 INDEMNIFICATION AGREEMENT
THIS 2001 INDEMNIFICATION AGREEMENT (this "Agreement"), effective as of
June 14, 2001, between Western Gas Resources, Inc., a Delaware corporation (the
"Company"), and _________________ (the "lndemnitee").
WHEREAS, it is essential to the Company to retain and attract as
officers the most capable persons available;
WHEREAS, Indemnitee is an officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against officers of public
companies in today's environment;
WHEREAS, the Bylaws of the Company require tile Company to indemnify
and advance expenses to its officers to the full extent permitted by law and the
Indemnitee has been serving and continues to serve as an officer of the Company
in part in reliance on such Bylaws;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner and Indemnitee's reliance on the aforesaid
Bylaws, and in part to provide Indemnitee with specific contractual assurance
that the protection promised by such Bylaws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of such
Bylaws, or any change in the composition of the Company's Board of Directors or
acquisition transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent (whether partial or complete) permitted by law
and as set forth in this Agreement, and, to the extent insurance is maintained,
for the continued coverage of Indemnitee under the Company's directors' and
officers' liability insurance policies;
WHEREAS, prior hereto, the Company and the Indemnitee had entered into
an indemnification agreement that the parties desire to restate;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, another enterprise,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions:
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(a) Change in Control: shall be deemed to have occurred if (i) any
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"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d3
under said Act), directly or indirectly, of securities of the
Company representing 20% or more of the total voting power
represented by the Company's then outstanding
Voting Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of
the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company of (in
one transaction or a series of transactions) all or substantially
all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or
------
proceeding, or any inquiry or investigation, whether instituted
by the Company or any other party, that Indemnitee in good faith,
believes might lead to the institution of any such action, suit
or proceeding, whether civil, criminal, administrative,
investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses
---------
and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to the fact
--------------------
that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
(e) Independent Legal Counsel: an attorney or firm of attorneys,
--------------------------
selected in accordance with the provisions of Section 3, who
shall not have otherwise performed services for the Company or
Indemnitee within the last five years (other than with respect to
matters concerning the rights of Indemnitee under this Agreement,
or of other indemnitees under similar indemnity agreements).
(f) Potential Change in Control: shall be deemed to have occurred if
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(i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control; (ii)
any person (including the Company) publicly announces an
intention to take or to consider taking actions which if
consummated would constitute a Change in Control; (iii) any
person, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company, who is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 9.5% or more of the combined voting power of
the Company's then outstanding Voting Securities, increases his
beneficial ownership of such securities by five percentage points
(5%) or more over the percentage so owned by such person; or (iv)
the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential
Change in Control has occurred.
(g) Reviewing Party: any appropriate person or body consisting of a
----------------
member or members of the Company's Board of Directors or any
other person or body appointed by the Board who is not a party to
the particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
(h) Voting Securities: any securities of the Company which vote
-------------------
generally in the election of directors.
2. Basic Indemnification Arrangement.
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(a) In the event Indemnitee was, is or becomes a party to or witness
or other participant in, or is threatened to be made a party to
or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company shall
indemnify Indemnitee to the fullest extent permitted by law as
soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and
all Expenses, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties or amounts paid in
settlement) of such Claim. If so requested by Indemnitee, the
Company shall advance (within two business days of such request)
any and all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, the obligations of the Company
under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion,
in any case in which the Independent Legal Counsel referred to in
Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law.
(c) Notwithstanding the foregoing, the obligation of the Company to
make an Expense Advance pursuant to Section 2(a) shall be subject
to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted
to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court, of competent jurisdiction
to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing
Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any Expense Advance
until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted
or lapsed).
(d) If there has not been a Change in Control, the Reviewing Party
shall be selected by the Board of Directors, and if there has
been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in
Control), the Reviewing Party shall be the Independent Legal
Counsel referred to in Section 3 hereof.
(e) If there has been no determination by the Reviewing Party or if
the Reviewing Party determines that Indemnitee. substantively
would not be permitted to be indemnified in whole or in part
under applicable law, Indemnitee shall have the right to commence
litigation in any court in the States of Colorado or Delaware
having subject matter jurisdiction thereof and in which venue is
proper seeking an initial determination by the
court or challenging any such determination by the Reviewing
Party or any aspect thereof, including the legal or factual bases
therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the
Company and Indemnitee.
(f) Notwithstanding anything else contained herein, in no event shall
Indemnitee be entitled to indemnification under this Agreement
for any Claims that relate to liability: (i) under Section 16(b)
of the Securities Exchange Act of 1934, as amended; (ii) under
federal or state securities laws for "xxxxxxx xxxxxxx"; (iii)
conduct finally adjudged as constituting active or deliberate
dishonesty or willful fraud or illegality; (iv) conduct finally
adjudged as producing an, unlawful personal benefit to
Indemnitee; or (v) prior to a Change of Control, under any Claim
initiated by the Indemnitee unless the Board of Directors of the
Company shall have authorized or consented to such Claim.
3. Change in Control. The Company agrees that if there is a Change in
------------------
Control of the Company (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were
directors immediately prior to such Change in Control) then with respect to
all matters thereafter arising concerning the rights of Indemnitee to
indemnity payments and Expense Advances under this Agreement or any other
agreement or Company Bylaw now or hereafter in effect relating to Claims
for Indemnifiable Events, the Company shall seek legal advice only from
Independent Legal Counsel selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld). Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under applicable law. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and
to fully indemnify such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
4. Establishment of Trust.
-----------------------
(a) In the event of a Potential Change in Control, the Company shall:
(i) upon written request by Indemnitee, create a trust for the
benefit of Indemnitee, with the trustee chosen by Indemnitee;
(ii) from time to time upon written request of Indemnitee, fund
such trust in an amount sufficient to satisfy any and all
Expenses reasonably anticipated at the time of each such request
to be incurred in connection with investigating, preparing for
and defending any Claim relating to an Indemnifiable Event, and
any and all judgments, fines, penalties and settlement amounts of
any and all Claims relating to an Indemnifiable Event from time
to time actually paid or claimed, reasonably anticipated or
proposed to be paid.
(b) Notwithstanding anything else contained herein, in no event shall
the Company be required to deposit more than Five Hundred
Thousand Dollars ($500,000) in any trust created hereunder in
excess of amounts deposited in respect of reasonably anticipated
Expenses.
(c) The amount or amounts to be deposited in the trust pursuant to
the foregoing funding obligation shall be determined by the
Reviewing Party, in any case in which the Independent Legal
Counsel referred to above is involved.
(d) The terms of the trust shall provide that upon a Change in
Control (i) the trust shall not be revoked or the principal
thereof invaded, without the written consent of the Indemnitee,
(ii) the trustee shall advance, within two business days of a
request by the Indemnitee, any and all Expenses to the Indemnitee
(and the Indemnitee hereby agrees to reimburse the trust under
the circumstances under which the Indemnitee would be
required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the trust shall continue to be funded by the Company
in accordance with the funding obligation set forth herein, (iv) the
trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this
Agreement or otherwise, and (v) all unexpended funds in such trust
shall revert to the Company upon a final determination by the
Reviewing Party or a court of competent jurisdiction, as the case may
be, that Indemnitee has been fully indemnified under the terms of this
Agreement.
5. Indemnification for Additional Expenses. The Company shall indemnify
----------------------------------------
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee, shall (within two business days of such request)
advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Company Bylaw now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity. Etc. If Indemnitee is entitled under any provision of
------------------
this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this Agreement, to
the extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an Indemnifiable
Event or in defense of any issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
7. Burden of Proof. In connection with any determination by the Reviewing
----------------
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement, the termination of any
----------------
claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief.
9. Nonexclusivity, Etc, The rights of the Indemnitee hereunder shall be in
--------------------
addition to any other rights Indemnitee may have under the Company's Bylaws or
the Delaware General Corporation Law or otherwise. To the extent that a change
in the Delaware General Corporation Law (whether by statute or judicial
decision) permits greater indemnification by agreement than would be afforded
currently under the Company's Bylaws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an insurance
--------------------
policy or policies providing directors' and officers' liability insurance,
Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be brought and no cause of
----------------------
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee's spouse, heirs, executors or personal or legal representatives after
the expiration of two years from the date of accrual of such cause of action,
and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such two-
year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
12. Amendments. Etc. No supplement, modification or amendment of this Agreement
----------------
shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
13. Subrogation. In the event of payment under this Agreement, the Company
------------
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
14. No Duplication of Payments. The Company shall not be liable under this
---------------------------
Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
15. Binding Effect. Etc. This Agreement shall be binding upon and inure to the
--------------------
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business,
and/or assets of the Company, spouses, heirs, executors and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or director of the Company or of any
other enterprise at the Company's request.
16. Severability. The provisions of this Agreement shall be severable in the
-------------
event that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) is held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired and shall remain enforceable
to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by and construed and
--------------
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
June 14, 2001
WESTERN GAS RESOURCES, INC. INDEMNITEE
By: ____________________________________ ___________________________
Xxxxx X. Xxxxxx, President
