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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and
between INLAND RESOURCES INC. (hereinafter referred to as "Employer") and
XXXXXXX X. XXXXXXX (hereinafter referred to as "Employee").
WHEREAS, Employer desires to continue the employment of Employee as its
Vice President, Secretary and Treasurer and Employee desires to continue such
employment; and
WHEREAS, Employer and Employee have previously entered into an
Employment Agreement dated May 1, 1997, as amended (the "Original Employment
Agreement"), and Employer and Employee desire to mutually terminate the Original
Employment Agreement in connection with the execution of this Agreement; and
WHEREAS, Employer has granted options and warrants (collectively the
"Existing Options/Warrants") to Employee exercisable for 112,240 shares of
common stock, par value $.001 per share (the "Common Stock"), of Employer, and
Employer and Employee desire to mutually terminate the Existing Options/Warrants
in connection with this Agreement, and grant new options to Employee as provided
herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Employer and Employee agree as
follows:
1. TERMINATION OF ORIGINAL EMPLOYMENT AGREEMENT. Employer and
Employee hereby agree that the Original Employment Agreement is terminated
effective the date hereof.
2. TERMINATION OF EXISTING OPTIONS/WARRANTS. Employer and
Employee hereby agree that the Existing Options/Warrants are terminated
effective the date hereof.
3. AGREEMENT TO GRANT OPTIONS. Employer hereby grants to
Employee, effective the date of execution of this Agreement, an option to
purchase 292,000 shares of Common Stock exercisable at the closing sale price of
the Common Stock on the date of execution of this Agreement. The number of
option shares granted herein shall be increased or decreased to the same extent
that the outstanding shares of Common Stock of Employer are increased or
decreased by any stock split occurring after the effective date of this
Agreement. Such options shall vest over a period of five years, as provided for
herein. On each of the first four anniversary dates of
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the effective date of this Agreement, ten percent (10%) of such options shall be
vested and, on the fifth anniversary of the date of execution of this Agreement,
the remaining sixty percent (60%) shall vest. All options granted hereunder will
be exercisable for a period of five years after the last options are vested,
regardless whether Employer subsequently voluntarily leaves the employment of
Employer or is terminated with or without "Cause" (as hereinafter defined).
Options will vest on each such anniversary date if Employee continues to be
employed by Employer on such anniversary date. All non-vested options will vest
immediately upon a "Change of Control" (as hereinafter defined). Employer will
concurrently with execution of this Agreement prepare an Option Agreement
incorporating these terms and such other standard terms as have been contained
in prior options or warrants granted to Employee.
4. EMPLOYMENT. Employer hereby employs Employee to serve as Vice
President, Secretary and Treasurer of Employer and otherwise at the direction of
the Board of Directors.
5. DUTIES. During his employment, Employee shall devote all of
his working time, energies and skills to the management of Employer's business.
Employee agrees to serve Employer diligently and to the best of his ability.
Employee shall render services consistent with those of a person in his position
and shall perform all duties incident to such office and all such further
similar duties that may, from time to time, be assigned to him by Employer.
Employee's duties include finding further business opportunities for Employer
and Employee agrees to bring to Employer for acceptance or rejection all
business opportunities located by or made available to Employee.
6. COMPENSATION. Employee's compensation for services performed
under this Agreement shall be as follows:
(a) Base Salary. Employer shall pay Employee a base salary
("Base Salary") of One Hundred Thirty Thousand and No/100 Dollars
($130,000.00) per year, commencing effective October 1, 1999. In
addition, the Board of Directors of Employer shall, in good faith,
consider granting increases in such salary based upon such factors as
Employee's performance and the growth and/or profitability of Employer,
but it shall have no obligation to grant any such increases in
compensation. Such Base Salary shall be payable in equal monthly
installments, or at such other times and in such installments as may be
agreed upon between Employer and Employee. All payments shall be
subject to the deduction of payroll taxes and similar assessments as
required by law.
(b) Bonus. In addition to the Base Salary, Employee shall be
eligible to receive bonus compensation in such amounts and at such
times as the Board of Directors of Employer shall, from time to time,
determine.
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(c) Retention Bonus. In addition to the Base Salary and any
bonus paid to Employee under Section 6(b) hereof, Employer shall pay
Employee a retention bonus of $50,000 upon execution of this Agreement,
and an additional retention bonus of $50,000 over the next five
quarters, payable $10,000 on each of January 1, 2000, April 1, 2000,
July 1, 2000, October 1, 2000 and January 1, 2001. If Employee's
employment is terminated by the Company for any reason (i.e., with
"Cause" or without "Cause"), the unpaid portion of the retention bonus
shall be payable immediately upon the date of termination. However, if
Employee voluntarily leaves the employment of Employer prior to payment
of all of the installments of the retention bonus, any unpaid
installments shall be forfeited by Employee.
(d) Performance Bonus. In addition to the Base Salary and the
bonuses payable pursuant to Sections 6(b) and (c) hereof, Employer
shall pay to Employee a performance bonus of $125,000, as follows: (A)
one-third shall vest on each of the three years ending December 31,
2000, December 31, 2001 and December 31, 2002 provided (i) Employee
continues to be employed by Employer on such date and (ii) Employer has
met the financial performance targets for each of such years; such
performance targets to be determined by the Board of Directors (and
approved by Trust Company of the West) at a later date and attached to
this Agreement as Schedule "A" and (B) shall be payable equally, if
vested, on December 31, 2003, December 31, 2004 and December 31, 2005.
Upon a "Change of Control", any unvested portion of the performance
bonus shall be deemed to be immediately vested and shall be paid to
Employee immediately if Employee is terminated within ninety days of
such Change of Control. If Employee voluntarily leaves the employment
of Employer, Employee shall forfeit any unpaid vested installments.
7. EXPENSES AND BENEFITS. Employee is authorized to incur
reasonable expenses in connection with the business of Employer, including
expenses for entertainment, travel and similar matters. Employer will reimburse
Employee for such expenses upon presentation by Employee of such accounts and
records as Employer shall, from time to time, require. Employer also agrees to
provide Employee with the following benefits:
(a) Employee Benefit Plans. Employee shall be entitled to
participate in employee benefit plans or programs of Employer, if any,
to the extent that his position, tenure, salary, age, health and other
qualifications make him eligible to participate, subject to the rules
and regulations applicable thereto. Such additional benefits shall
include, subject to the approval of the Board of Directors, full
medical, dental and disability income insurance.
(b) Other. Such items and benefits as Employer shall, from
time to time, consider necessary or appropriate to assist Employee in
the performance of his duties.
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(c) Vacations. Employee shall be entitled (in addition to the
usual public holidays) to a paid vacation for a period in each calendar
year not exceeding three (3) weeks, to be taken at such times as may be
approved by Employer.
8. TERM. The term of this Agreement shall be for one (1) year,
beginning from the effective date hereof and from month to month thereafter
unless terminated by either party on thirty (30) days' notice.
9. DISABILITY. In the event that Employee becomes Permanently
Disabled (as hereafter defined) during the term of this Agreement and while
engaged in the scope of his employment by Employer, Employee shall continue in
the employ of Employer but his compensation hereunder shall be reduced to
one-half (1/2) of the Base Salary then in effect, as set forth in Section 6(a)
hereof, commencing upon the determination of Employee's Permanent Disability and
continuing thereafter until the first to occur of (a) twelve (12) months or (b)
the death of Employee or (c) the expiration of the term of this Agreement; and
during such period of time, Employee shall not be entitled to payment of
expenses or benefits specified in Section 7 hereof (except for reimbursement of
expenses incurred by Employee prior to becoming Permanently Disabled), except
that Employer shall continue to provide Employee with the insurance benefits
specified in Section 7(a) hereof. In addition, any compensation payable to
Employee by Employer shall be reduced by any amount which Employee is eligible
to receive from workers compensation, social security or disability insurance
provided by Employer. If Employee becomes Permanently Disabled while not engaged
in the scope of his employment by Employer, such disability may be cause for
termination for "Cause" under Section 10 hereof.
(a) Definition of Disability. For purposes of this Agreement,
the terms "Permanent Disability" or "Permanently Disabled" shall mean
three (3) months of substantially continuous disability. Disability
shall be deemed "substantially continuous" if, as a practical matter,
Employee, by reason of his mental or physical health, is unable to
sustain reasonably long periods of substantial performance of his
duties. Frequent long illnesses, though different from the preceding
illness and though separated by relatively short periods of
performance, shall be deemed to be "substantially continuous".
Disability shall be determined in good faith by the Board of Directors
whose decision shall be final and binding upon Employee. Employee
hereby consents to medical examinations by such physicians and medical
consultants as Employer shall, from time to time, require.
10. TERMINATION BY EMPLOYER. Employer shall have the right to
terminate Employee's employment as hereinafter provided.
(a) Termination by Employer for Cause. The Board of Directors
shall have the
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right to terminate Employee's employment under this Agreement for
Cause, in which event no compensation under Sections 6(a), (b) or (d)
shall be paid or other benefits furnished to Employee after termination
for Cause. Termination for Cause shall be effective immediately upon
notice sent or given to Employee.
(i) Definition of Cause. For purposes of this
Agreement, the term "Cause" shall mean and be strictly limited
to: (1) conviction of a crime constituting a felony under
state or federal law; (2) determination by the Board of
Directors that Employee has committed any act of dishonesty
against Employer; (3) gross negligence by Employee in carrying
out his duties; (4) breach of this Agreement by Employee; (5)
gross misconduct by Employee, such as intoxication on the job,
use of drugs on the job for non-medical purposes or other
misconduct which has a substantial adverse effect on the
business of Employer; or (6) Employee becoming Permanently
Disabled while not engaged in the scope of his employment by
Employer.
(b) Termination by Employer without Cause. The Board of
Directors shall have the right to terminate Employee's employment under
this Agreement without Cause at any time, by giving written notice of
termination to Employee. In such event, Employer will immediately pay
an amount that is the remaining unpaid amount, if any, set forth in
Sec. 6(c) and the amount vested under Sec. 6(d) above.
11. CHANGE OF CONTROL. For purposes of this Agreement, a "Change
of Control" shall mean: (i) the issuance of shares of capital stock of Employer
or the granting of options or other derivative securities representing on a
combined basis more than 50% of the outstanding capital stock following such
issuance and grant, or the issuance of shares of capital stock by Employer or
the granting of options or other derivative securities to a person who, when
added to shares acquired by such person in the market or from other stockholders
of Employer, would result in such person owning more than 50% of the outstanding
capital stock (assuming for this purpose, exercise of such options or other
derivative securities) of Employer; or(ii) the sale or other disposition by
Employer of substantially all of the assets of Employer.
12. GENERAL PROVISIONS.
(a) Notices. Any notices to be given hereunder by either party
to the other may be effected by personal delivery, in writing or by
mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses set forth below, but each party may change his or its address
by written notice in accordance with this Section 12(a). Notices
delivered personally shall be deemed communicated as of the actual
receipt; mailed
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notices shall be deemed communicated as of three (3) days after
mailing.
If to Employee:
Inland Resources Inc.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Employer:
Board of Directors
Inland Resources Inc.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(b) Partial Invalidity. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions shall, nevertheless, continue
in full force without being impaired or invalidated in any way.
(c) Law Governing Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Washington.
(d) Attorneys' Fees and Costs. If any action at law or in
equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
(e) Assignment. This Agreement shall inure to the benefit of
and bind the parties hereto and their respective legal representatives,
successors and assigns.
(f) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto
with respect to the employment of Employee by Employer and contain all
of the covenants and agreements between the parties with respect to
such employment. Each party to this Agreement acknowledges that no
representations, inducements, or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and no other agreement, statement or promise
not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effected only if it is in
writing signed by the party to be charged.
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IN WITNESS WHEREOF, the parties have executed this Agreement on October
21, 1999, but to be effective the 1st day of October, 1999.
EMPLOYER:
INLAND RESOURCES INC.
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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SCHEDULE "A"
FINANCIAL PERFORMANCE TARGETS
THE FINANCIAL PERFORMANCE TARGET, TO BE SATISFIED FOR THE INITIAL ONE
YEAR VESTING PERIOD ENDING DECEMBER 31, 2000 IS TOTAL EARNINGS BEFORE INTEREST,
TAXES, DEPRECIATION AND AMORTIZATION, DETERMINED UTILIZING GENERALLY ACCEPTED
ACCOUNTING PRINCIPALS, CONSISTENTLY APPLIED, OF AT LEAST $17.3 MILLION. THE
FINANCIAL PERFORMANCE TARGETS FOR THE ONE YEAR VESTING PERIODS ENDING DECEMBER
31, 2001 AND DECEMBER 31, 2002 WILL BE ESTABLISHED BY AMENDMENT TO THIS SCHEDULE
A.
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