CONSULTING AGREEMENT
Exhibit
10.2
This
consulting agreement ("Agreement") is dated June 1, 2009, and is between Xxxx X.
Xxxxxx ("Xxxxxx") and Unit Corporation, a Delaware corporation (the
"Corporation"). Xxxxxx and the Corporation may be referred to
individually as "Party" and collectively as "Parties."
WHEREAS,
on December 17, 2004, the Parties entered into a consulting agreement ("Original
Agreement");
WHEREAS,
on April 1, 2006, the Original Agreement expired according to its
terms;
WHEREAS,
on April 12, 2006, the Parties renewed the Original Agreement for a one year
term effective April 1, 2006;
WHEREAS,
on April 9, 2007, the Parties entered into a Consulting Agreement for a one year
term effective April 1, 2007;
WHEREAS,
on March 26, 2008, the Parties renewed the Consulting Agreement for a one year
term effective April 1, 2008;
WHEREAS,
the Parties desire to again enter into a consulting agreement under the
substantially same terms and conditions as the Original Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement, the Parties agree as follows:
1. Except as
otherwise provided herein, this Agreement incorporates and adopts the terms and
conditions of the Original Agreement attached hereto as Exhibit A.
2. This
Agreement is for a term of 1 year commencing as of April 1, 2009 unless it is
sooner terminated by mutual written agreement of the Parties. In the event of
Xxxxxx'x death during the term of this Agreement, the obligations of the Parties
under this Agreement shall terminate.
3. In
the event there is a conflict between the terms of this Agreement and that of
the Original Agreement, the terms of this Agreement will govern.
IN
WITNESS WHEREOF, each of the Parties has signed this Agreement, in the case of
the Corporation by its duly authorized officer, as of the day and year first set
forth above.
UNIT CORPORATION
/s/ Xxxx X.
Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X.
Xxxxxx Xxxx
X. Xxxxxx, Senior Vice President
This
consulting agreement is dated December 17, 2004, and is between Xxxx X. Xxxxxx
("Xxxxxx") and Unit
Corporation, a Delaware corporation (the "Corporation").
Xxxxxx
has elected to retire as an employee and Chief Executive Officer of the
Corporation effective April 1, 2005 and will cease to be an officer of the
Corporation as of that date.
The board
of directors of the Corporation wishes to secure the services of Xxxxxx as a
consultant to the Corporation and Xxxxxx is willing to act in that capacity
following his retirement.
The
Corporation and Xxxxxx wish to enter into this agreement to describe their
obligations to each other and the scope of Xxxxxx'x services to the Corporation
as an independent contractor and consultant to the Corporation after his
retirement.
The
parties therefore agree as follows:
1. Term
of Agreement.
This
agreement is for a term of 1 year starting on the date of Xxxxxx'x retirement
unless it is sooner terminated by mutual written agreement of the
parties. In the event of Xxxxxx'x death during the term of this
agreement, the obligations of the parties under this agreement shall
terminate.
The
parties, by mutual written agreement, may extend the term of this agreement for
successive 1 year periods at any time before the termination of the then
existing term of this agreement.
2. Consulting
Fees.
In
consideration of Xxxxxx'x obligations under this agreement, the Corporation
shall pay Xxxxxx an annual consulting fee of $70,000, with payments to be made
monthly in accordance with the Corporation's usual procedures. This
compensation shall be paid beginning as of Xxxxxx'x retirement date and ending
on the termination of this agreement.
During
the term of this agreement the Corporation shall make available to Xxxxxx
secretarial services and office space.
3. Consulting
Services.
3.1 Duration and
Scope. During the term of this agreement, Xxxxxx shall serve
as a consultant to the Corporation (including its subsidiaries, affiliates and
joint venture partners). Xxxxxx will provide the advice and counsel
to the Corporation as reasonably requested by the Chief Executive Officer of the
Corporation. Unless otherwise requested, Xxxxxx shall attend the
weekly exploration meetings held by the Corporation's subsidiary Unit Petroleum
Company to assist in the decisions normally made during those
meetings.
3.2 Compliance with
Laws. Xxxxxx shall comply at his expense with all applicable
provisions of workers' compensation laws, unemployment compensation laws,
federal social security law, the Fair Labor Standards Act, federal, state and
local income tax laws, and all other applicable federal, state and local laws,
regulations and codes applicable to his status as an independent
contractor.
3.3 Status. As
a consultant to the Corporation, Xxxxxx shall act as an independent
contractor. Xxxxxx shall not have the status of an employee of the
Corporation. Xxxxxx shall be solely responsible for and shall pay all
such amounts of applicable federal and state income and self employment
taxes. Except as otherwise provided in this agreement, Xxxxxx shall
not be eligible to participate in any employee benefit, group insurance or
compensation plans or programs maintained by the Corporation; provided, however, that any
rights that Xxxxxx may have under these plans or programs because of his prior
status as an employee and officer of the Corporation (or his status as a
director of the Corporation) shall not be affected by this
Exhibit
"A" to Consulting Agreement
Page
1
agreement. The
Corporation shall not provide Social Security, unemployment compensation,
disability insurance, workers ' compensation or similar coverage, or any other
statutory employment benefit, to Xxxxxx.
3.4 Reimbursement of Reasonable
Expenses. On presentment to the Corporation of appropriate
documentation of his expenses, the Corporation shall reimburse Xxxxxx under
guidelines similar to those applicable to the Corporation's officers for
reasonable expenses incurred by Xxxxxx during the performance of his consulting
services.
4. Protection
of the Corporation's Interests.
4.1 Protection of Trade
Secrets. For the term of this agreement, Xxxxxx shall not,
without the prior written consent of the Corporation, disclose or use for any
purpose (except in the course of his consulting services with the Corporation
and in furtherance of the Corporation's business) confidential information or
proprietary data of the Corporation, its subsidiaries, affiliates and joint
venture partners, except as required by applicable law or legal
process. Xxxxxx agrees to deliver to the Corporation at the
termination of this agreement, or at such other time as the Corporation may
request, all memoranda, notes, plans, records, reports and other documents (and
copies thereof) relating to the business of the Corporation, its subsidiaries,
affiliates and joint venture partners, that Xxxxxx may then possess or have
under his control.
4.2 Limitation on Services
Provided to Others. During the term of this agreement, Xxxxxx
shall not, directly or indirectly:
(a) Engage
in any business or activity in which the Corporation or any subsidiary,
affiliate or joint venture partner of the Corporation is engaged (provided,
however, that the purchase, sale and leasing of oil and gas mineral interests or
participating in the drilling of oil and gas xxxxx by Xxxxxx shall not be deemed
to be a violation of this provision but nothing in this agreement will relieve
Xxxxxx of any fiduciary duties he may owe to the Corporation); nor
(b) Be
employed by, render services of any kind to, advise or receive compensation in
any form from, nor invest or participate in any manner or capacity in, any
entity or person that directly or indirectly engages in such business or
activity.
This
Subsection will not preclude investments in a corporation whose stock is traded
on a public market and of which Xxxxxx owns less than a significant
interest.
4.3 Nonsolicitation. During
the term of this agreement, Xxxxxx shall not, directly or
indirectly:
(a) Attempt
to cause any employee of the Corporation or any subsidiary, affiliate or joint
venture partner to leave his or her employment; nor
(b) Knowingly
advise or provide information to any person in connection with an attempt by
such person to cause any employee of the Corporation or any subsidiary,
affiliate or joint venture partner to leave his or her employment.
4.4 Modification by
Court. If any of the covenants contained in subsections 4.1,
4.2 and 4.3 above is determined to be unenforceable because of the duration of
the covenant or the area covered by it, then the court or arbitrator making the
determination shall have the power to reduce the duration of the covenant or the
area covered by it, and the covenants, in their reduced form, will be
enforceable.
4.5 Different
Jurisdictions. If any of the covenants set forth in
Subsections 4.1, 4.2 and 4.3 above is determined to be wholly unenforceable by
the courts or arbitrators of any domestic or foreign jurisdiction, then the
determination shall not bar or in any way affect the Corporation's right to
relief in the courts or in arbitration proceedings of any other jurisdiction
with respect to any breach of such covenants in such other
jurisdiction. Such covenants, as they relate to each jurisdiction,
shall be severable into independent covenants and shall be governed by the laws
of the jurisdiction where a breach occurs.
4.6 Purpose of
Covenants. Xxxxxx and the Corporation agree that the covenants
in Subsections 4.1, 4.2 and 4.3 above are reasonable and necessary to protect
the confidentiality of the trade secrets and other
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"A" to Consulting Agreement
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2
proprietary
information concerning the business of the Corporation and its subsidiaries,
affiliates and joint venture partners that was acquired by Xxxxxx as an employee
of the Corporation and during the course of his consulting services under this
Agreement.
4.7 Repayment of
Gains. Xxxxxx and the Corporation agree that the principal
purpose of entering into this agreement was to motivate Xxxxxx to contribute to
the Corporation's success and to increase the Corporation's
value. Xxxxxx and the Corporation also agree that any breach of the
covenants set forth in Subsections 4.1, 4.2 and 4.3 above would be contrary to
the purpose of this agreement. In the event that Xxxxxx takes any
action contrary to any of the covenants set forth in Subsections 4.1, 4.2 and
4.3 above, Xxxxxx shall on demand pay the Corporation an amount equal to the
total amount of all cash compensation paid to Xxxxxx under this agreement,
whether that cash compensation was paid before or after the time when Xxxxxx
takes the contrary action.
5. Miscellaneous
Provisions.
5.1 Waiver. No
provisions of this agreement can be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by Xxxxxx
and the Corporation. No waiver by either party of any breach of, or
of compliance with, any condition or provision of this agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
5.2 Assignment and Successors;
The Corporation. The Corporation shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Corporation's business and/or assets, by an agreement in substance and form
satisfactory to Xxxxxx, to assume this agreement and to perform this agreement
in the same manner and to the same extent as the Corporation would be required
to perform it in the absence of a succession. For all purposes under
this agreement, the term "Corporation" shall include any successor to the
Corporation's business and/or assets that executes and delivers the assumption
agreement described in this Subsection 5.2 or that becomes bound by this
agreement by operation of law. The rights and benefits of Xxxxxx
under this agreement may not be anticipated, assigned, alienated, or subject to
attachment, garnishment, levy, execution, or other legal or equitable process
except as required by law. Any attempt by Xxxxxx to anticipate, alienate,
assign, sell, transfer, pledge, encumber, or charge the same shall be
void.
5.3 Arbitration. Any
dispute or controversy arising under or in connection with this agreement shall
be settled exclusively by arbitration in Tulsa, Oklahoma, in accordance with the
rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any
court having jurisdiction. Within 30 days following the conclusion of
any arbitration proceeding (notwithstanding any appeal), the Corporation shall
pay all reasonable attorneys' fees and related expenses incurred by Xxxxxx in
connection with any such arbitration; provided, however, that the
Corporation's reimbursement obligation under this sentence shall be limited to
$15,000 in the event that the Corporation is the prevailing party in the action
and $30,000 if Xxxxxx is the prevailing party in the action. For
purposes of the preceding sentence, if there is disagreement concerning who is
the prevailing party, then the parties shall request that the arbitrator hearing
the dispute determine the point and the parties agree to be bound by the
arbitrator's determination.
5.4 Taxes. All
payments made under this agreement shall be subject to any required withholding
of applicable taxes.
5.5 Whole
Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this agreement have been made or entered into by either party with
respect to the subject matter hereof.
5.6 Choice of
Law. The validity, interpretation, construction and
performance of this agreement shall be governed by the laws of the State of
Oklahoma.
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"A" to Consulting Agreement
Page
3
5.7 Severability. The
invalidity or unenforceability of any provision or provisions of this agreement
shall not affect the validity or enforceability of any other provision, which
shall remain in full force and effect.
5.8 Delivery of
Notice. Notices and all other communications contemplated by
this agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by certified mail, return receipt
requested and postage prepaid. In the case of the Xxxxxx, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Corporation in writing. In the case of the
Corporation, mailed notices shall be addressed to its corporate headquarters,
and all notices shall be directed to the attention of its
Secretary.
IN WITNESS WHEREOF, each of
the parties has signed this agreement, in the case of the Corporation by its
duly authorized officer, as of the day and year first above
written.
/s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx
Unit
Corporation
/s/
Xxxxx X. Xxxxxxxx
By: Xxxxx
X. Xxxxxxxx
Its: President
Exhibit
"A" to Consulting Agreement
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4
