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EXHIBIT 10.39
XXXXXXX XXXXX
DECEMBER 1990
RESTATED EMPLOYMENT AGREEMENT
This Agreement made this 5th day of December, 1990, by and between
Apache Corporation, a Delaware corporation with its principal office at 0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000 (hereinafter called the
"Company") and Xxxxxxx Xxxxx (hereinafter called the "Executive").
WITNESSETH:
WHEREAS, the Executive is a founder of the company and is presently
Chairman of the Board of Directors and Chief Executive Officer of the Company
and has served the Company continuously for more than 35 years since its
formation as its principal executive; and
WHEREAS, the leadership of the Executive has constituted a major
factor in the growth and development of the Company and the Company desires
Executive's continued leadership so that the progress of the Company will be
assured; and
WHEREAS, the Company desires to employ, retain and make secure for
itself the experience, abilities and services of the Executive for the period
herein set forth and to prevent any other competitive business from securing
the services of said Executive and utilizing his experience, background and
know-how; and
WHEREAS, the Company and the Executive entered into an employment
agreement dated December 3, 1975, which was amended by the terms of an
agreement dated May 1, 1988; and
WHEREAS, the parties desire to restate the terms and conditions of
employment of the Executive and to this Agreement; and
WHEREAS, all of the terms, conditions and undertakings of this
Agreement and the execution of this Agreement were duly fixed, stated,
approved, authorized and directed for and on behalf of the Company;
NOW THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
1. Executive Employment Period--Duties--Effective Date. The
Company agrees to and does hereby, employ the Executive to act in an executive
capacity and to perform such duties, commensurate with any such executive
position, as shall be assigned by the Board of Directors. Such period, being
hereinafter called the "Executive Employment Period," commenced on
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December 3, 1975, and shall continue until terminated by the Board of Directors
or as otherwise provided in this Agreement.
2. Advisory Employment Term and Duties. The Company agrees to,
and does hereby, employ the Executive and he agrees to serve the Company, for
the period commencing with the termination of the Executive Employment Period
and continuing for life (hereinafter called the "Advisory Employment Term"), as
an advisor and consultant to the Company with such duties of an advisory or
consultative nature as may reasonably be requested by its Board of Directors.
3. Compensation. The company shall pay to the Executive, and the
Executive shall accept from the Company for his services during the Executive
Employment Period, compensation at a per annum rate of not less than $450,000
payable in semi-monthly installments, all in accordance with normal pay
practices of the Company, and for his services during the Advisory Employment
Term, compensation at an annual rate equal to 50% of the annual rate of
compensation being paid to Executive during and under the Executive Employment
Period immediately preceding the commencement of the Advisory Employment Term.
4. Expenses--Advisory Employment Term. During the Advisory
Employment Term, the company will reimburse the Executive for any and all
proper expenses of any kind incident to the rendition of the advisory and
consultative services to be rendered hereunder.
5. Services. The Executive agrees to devote his full time and
efforts during the Executive Employment Period to the business of the Company
and its subsidiaries and to serve as Chairman and Chief Executive Officer of
the Company, if elected as such. The Executive shall perform his duties
faithfully, diligently, and to the best of this ability during the Executive
Employment Period and the Advisory Employment Term.
6. Right to Terminate. The Executive shall have the right, at
his option, to terminate the Executive Employment Period specified herein by
giving at least 120 days prior written notice to the Company in the event that
he is not elected as the Chief Executive Officer thereof. In the event of
termination of the Executive Employment Period as hereinbefore provided, the
Advisory Employment Term described herein shall commence on the first day of
the month following the date when the Executive Employment Period shall so
terminate and the Executive shall thereupon begin rendering advisory and
consultative services to the Company as provided for herein and shall thereupon
receive the compensation provided for herein for such services.
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7. Restrictive Covenant. The Executive agrees that so long as
this Agreement is in full force and effect, he will not, directly or
indirectly, either as principal, agent, stockholder, or in any other capacity,
engage in or have a financial interest in, any business which is competitive to
the business of the Company and its subsidiaries, except that nothing contained
herein shall preclude the Executive from purchasing or owning stock in any such
business, providing that his holdings do not exceed one percent of the issued
and outstanding capital stock. For the purposes hereof, a business will be
deemed competitive if it involves the production, manufacture or distribution
of any product similar to those produced, manufactured or distributed by the
company or any of its subsidiaries, or the rendering of any services similar to
those offered or rendered by the Company or any of its subsidiaries to members
of the public. The Executive expressly agrees that upon a breach or violation
of the foregoing provision of this Agreement, the Company in addition to all
other remedies shall be entitled, as a matter of right, to injunctive relief in
any court of competent jurisdiction.
8. Secret Processes. The Executive will not divulge, furnish or
make accessible to anyone (otherwise than in the regular course of the business
of the Company or any of its subsidiaries) any knowledge or information with
respect to confidential or secret processes, formula, machinery, plans, devices
or material of the Company or any of its subsidiaries, with respect to any
confidential or secret engineering, development or research work of the Company
or any of its subsidiaries, or with respect to any other confidential or secret
aspect of the business of the Company or any of its subsidiaries
9. Death. In the event of the death of the Executive the Company
shall pay to his surviving spouse an amount equal to two years' compensation
calculated on the basis of the compensation payable to the Executive under this
Agreement at the date of his death. Such payments shall be made in equal
monthly installments over a period of five years from the date of the death of
the Executive. If the Executive has no surviving spouse, then such amount
shall be paid to the Executive's estate in a lump sum. If the Executive's
spouse survives him but dies before all of the aforementioned monthly payments
have been made, then the balance of such payments shall be paid to such
spouse's estate in a lump sum.
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10. Annuity. The Company has obtained and shall maintain a
20-year certain annuity payable to Executive on a monthly basis commencing on
May 1, 1988. Executive shall have the right to designate a successor
beneficiary for the annuity.
11. Disability. In the event that during the Executive Employment
Period the Executive shall be disabled from rendering services hereunder to the
Company for three consecutive months, the Board of Directors of the Company may
terminate the Executive Employment Period after 60 days' written notice, and in
such event, the Advisory Employment Term shall begin on the first day following
such 60 day period. In such event, said Executive shall commence rendering
advisory and consultative services as herein provided and shall receive the
compensation herein provided for services to be rendered hereunder during the
Advisory Employment Term.
12. Benefits. During the Executive Employment Period, the
Executive shall receive such benefits and perquisites as are extended to other
executives of the Company, and as offered, amended or terminated by the Board
of Directors of the Company from time to time. During the Advisory Employment
Term, the Company shall provide health, dental and vision insurance for the
Executive and his spouse and eligible dependents to the same extent, and
offering the same benefits, as the Company provides its executives, except that
the insurance shall be supplemental and secondary to the benefits, if any,
available to the Executive or his spouse under Medicare, Medicaid, or any other
form of public insurance or benefit plan available to the Executive without
payment of premiums.
13. Successors. etc., of the Company. This Agreement shall inure
to the benefit of and be binding upon the Company, its successors, and assigns,
including without limitation any person, partnership or corporation which may
acquire all or substantially all of the Company's assets and business, or with
or into which the Company may be consolidated or merged, and this provision
shall apply in the event of any subsequent merger, consolidation or transfer,
and the Executive, his heirs, assigns, executors and person representatives.
14. Entire Agreement. The parties hereto agree that this
Agreement contains the entire understanding and agreement between the parties
and cannot be amended, modified or supplemented in any respect, except by a
subsequent written agreement entered into by both parties hereto.
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15. Replacement. This Agreement replaces and supersedes the
agreement dated December 3, 1975, between the Company and the Executive
regarding employment, the amendment to that agreement dated May 1, 1988, and
all other agreements between the parties regarding employment or compensation.
16. Notices. All notices hereunder shall be deemed effective when
delivered in person or 24 hours after deposit thereof in the mails, by
registered mail, addressed or delivered to, in the case of:
Company: Apache Corporation
Suite 1900
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President--Human Resources
Executive: Xxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
17. Applicable Law. This Agreement, and all amendments shall be
governed in all respects by the laws of the state of Colorado, without regard
to the conflict of law provisions thereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officers and Executive has hereunto set his
hand and seal, all as of the day and year first above written.
ATTEST: APACHE CORPORATION
/s/ X. X. Xxxxxxxxxxxx By: /s/ C. Xxxxxx Xxxxxxx
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Secretary Vice President
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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