SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is effective as of the 20th day of April, 2012 (the “Effective Date”) by and between Xxxxxxx Xxxxxxx “Will” Gray II, a resident of the State of Texas (“Executive”), and cross border resources, inc., a Nevada corporation having its principal office at 00000 XX Xxx 000 Xxxxx, Xxxxx 000, San Antonio, Texas, 78258 (the “Company”).
WHEREAS, the Company and Executive entered into an employment agreement dated as of the 31st day of January, 2011 and an Amendment to Employment Agreement as of the 6th day of March, 2012 (collectively, the “Employment Agreement”); and
WHEREAS, the Company and Executive have agreed to amend the terms of the Employment Agreement by this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the parties, it is hereby agreed as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used in this Amendment shall have the meanings set forth in the Employment Agreement.
2. Interpretation. To the extent that the terms and conditions of this Amendment conflict with the terms and conditions of the Employment Agreement, the terms and conditions of this Amendment shall control.
3. Amended Sections of the Employment Agreement.
3.01. Section 5.3 of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
5.3 Termination After Corporate Transaction If during the Initial Term of this Agreement a Corporate Transaction (as hereafter defined) occurs, then Executive will be entitled to a severance payment as if he had been terminated without Cause. The severance payment shall be payable in four equal installments with the payments due on or before the following dates: (i) ten (10) days after the Corporate Transaction, (ii) the last day of the second quarter of the Company’s fiscal year, (iii) the last day of the third quarter of the Company’s fiscal year, and (iv) the last day of the fourth quarter of the Company’s fiscal year. Executive’s right to the foregoing payment shall not be in addition to any payment Executive may be entitled to but in lieu of such payment.
(a) For the purpose of this Agreement, a “Corporate Transaction” means the occurrence of any of the following:
(1) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”).
(2) The individuals who, as of the date hereof, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors. Any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered a member of the Incumbent Board as of the date hereof, but any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Incumbent Board will not be deemed a member of the Incumbent Board as of the date hereof.
(3) The consummation of a reorganization, merger, or consolidation of the Company (a “Business Combination”), unless following such Business Combination, all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the surviving company’s outstanding shares of common stock or the combined voting power.
(4) The approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.
(5) A sale, disposition or liquidation of at least 50% of the Company’s assets.
3.02 Section 5.7 of the Employment Agreement is hereby deleted in its entirety and replaced with the following:
Executive's entitlement to the benefits provided in Section 5 are contingent on Executive countersigning and delivering to the Company and not revoking a Separation Agreement and Mutual Release, the form of which is attached hereto as Exhibit A, on or prior to the date upon which amounts are payable to Executive pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
CROSS BORDER RESOURCES, INC. | ||
By: | /s/Xxxx Xxxxxxxxxx | |
Xxxx Xxxxxxxxxx | ||
Director and Chair of the Compensation Committee | ||
EXECUTIVE | ||
/s/ Xxxxxxx Xxxxxxx Xxxx XX | ||
XXXXXXX XXXXXXX “WILL” GRAY II |
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EXHIBIT A
SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS SEPARATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is entered into this ___ day of April, 2012, by and between _______________ ("Executive") and CROSS BORDER RESOURCES, INC. (the "Company") (collectively referred to as the "Parties") to resolve all issues related to or arising out of Executive’s former employment with Company and Executive’s termination of employment on the Termination Date. This Agreement is delivered in connection with that certain Agreement dated April __, 2012, by and between Red Mountain Resources, Inc. and the Company and becomes effective on the Change of Officer Date as defined therein which shall be no later than May 31, 2012. In consideration of the mutual covenants contained herein, the sufficiency of which the Parties acknowledge, the Parties agree as follows:
2. Transition Period. For the period that begins on the Notice Date and ends on the Termination Date (the "Transition Period"), Executive shall continue to perform, in good-faith and with his/her best efforts, his/her employment responsibilities (as described in the Executive’s Employment Agreement dated January 31, 2011 as amended on March 6, 2012 and April 20, 2012) (the "Employment Agreement") for the Company during normal work hours. The Company will pay Executive, subject to normal tax and other payroll withholdings, Executive’s regular salary during the Transition Period pursuant to the regularly scheduled payroll practice of the Company. Notwithstanding any provision in this Agreement to the contrary, the Company reserves the right to accelerate Executive’s Termination Date if such Executive does not perform, in good-faith and with his/her best efforts, his/her employment responsibilities during normal work hours.
3. Payments on Termination Date. The Company will pay Executive, subject to normal tax and other payroll withholdings (a) Executive’s earned, but unpaid regular salary through the Termination Date, and (b) Executive’s earned, but unused vacation time through the Termination Date. The Company shall pay Executive the amounts described in (a) and (b) above in the pay check immediately following his/her Termination Date. The Company will extend Executive’s current Company group medical, dental and vision benefit coverage, if any, through the Termination Date. The continuation of coverage during the Transition Period shall not count toward satisfying the health care continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA").
4. Severance Benefit. In consideration for the agreements and releases by Executive set forth below, Company agrees that during the sixty (60) day period following the later of (a) the end of the Transition Period, or (b) the end of the Revocation Period (defined in Paragraph 21 of this Agreement) with no revocation of this Agreement by Executive, the Company shall pay Executive an amount in accordance with the Employment Agreement ("Severance Benefit"). Executive acknowledges and agrees that, but for his/her execution of this Agreement, he/she would not be entitled to the Severance Benefit described above. In the event of death of the Executive prior to receipt of all amounts due hereunder or under the Employment Agreement, any remaining Severance Benefit shall be paid to the estate of the Executive.
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5. Termination of Benefits. Executive acknowledges that Company has explained Executive’s right under COBRA and understands that he/she has sixty (60) days from his/her Termination Date to notify the Company and formally elect COBRA continuation coverage. Executive acknowledges and agrees that he/she is solely responsible to pay all costs of any COBRA continuation coverage which he/she may elect. Executive further acknowledges that his/her participation in and entitlement to any and all other compensation, fringe benefits, Executive benefit plans (either Executive welfare benefit plans or Executive benefit pension plans) cease on his/her Termination Date.
(1) forever releases and discharges the Company and its respective officers, directors, stockholders, agents, employees, subsidiaries, affiliates, successors and assigns (collectively, the "Released Persons") from any and all claims, actions, causes of actions and demands of Executive, known or unknown, that Executive may have against the Released Persons, and any other claims that may arise in connection with Executive's capacity as an employee, officer, director or stockholder of the Company (whether directly or derivatively through the Company), including, without limitation, all damages, obligations, liabilities, costs and expenses incurred or otherwise suffered by Executive in connection therewith; specifically excluding, however, any claims for breach of any representation, warranty, obligation or covenant by the Company contained in this Agreement; and
(2) covenants and agrees not to xxx or bring, or cause or permit to be commenced, any action or legal proceeding against the Company or any of such Released Persons in connection with any claim, action, cause of action or demand released by Executive herein.
(I) Without limiting the foregoing terms, this Agreement specifically includes and extinguishes all known or unknown claims, suits, actions, causes of action, demands or charges for age, sex, gender, pregnancy, sexual orientation, race, color, national origin, disability discrimination, or discrimination on any other basis, retaliation, "whistle-blowing," any and all wage claims, breach of contract, wrongful discharge, detrimental reliance, retaliatory discharge, infliction of emotional distress claims, any other tort claims, and any and all claims, suits, actions, causes of action, demands or charges arising from any alleged violation by or on behalf of the Released Persons, of any federal, state or local constitution, statute, regulation, ordinance, order, public policy or common law.
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(II) Nothing in this Agreement precludes Executive from asserting any claim he/she may have pursuant to the Texas Workers’ Compensation Act, nor shall this Agreement preclude Executive from asserting any claim to enforce the terms of this Agreement or for a breach of this Agreement.
This release is not intended to encompass claims for workers' compensation or unemployment benefits. Nor is this release intended to prevent Executive from filing a statutory claim concerning employment with the Company or the termination thereof with the federal Equal Employment Opportunity Commission ("EEOC"), or similar state agencies. However, if Executive does so, or if any such claim is prosecuted in his/her name before any court or administrative agency, Executive waives and agrees not to take any award of money or other damages from such suit.
Further, this release does not limit or proscribe Executive’s non-waivable right to participate as a witness or cooperate in any investigation by the EEOC or other agency, apply to any claim arising out of conduct occurring after the date this Agreement is signed, apply to any claim to enforce the terms of this Agreement or apply to any claim to challenge the validity of this Agreement under the Older Workers’ Benefit Protection Act.
(1) forever releases and discharges Executive, his/her heirs and personal representatives, from any and all claims, actions, causes of action and demands of the Company, its officers, directors, and other stockholders, known or unknown, arising out of or in any way relating to any claims heretofore made by such persons against Executive, and any other claims that may arise in connection with Executive's capacity as an employee, officer or stockholder of the Company (whether directly or indirectly), including without limitation all damages, costs and expenses incurred or otherwise suffered by the Company, its officers, directors, and other stockholders in connection therewith, specifically excluding, however, any claim for breach of any representation, warranty, obligation or covenant of Executive contained in this Agreement and any claims, actions, causes of actions and demands arising from any deliberately dishonest, malicious or fraudulent act or omission or any willful violation of law by Executive; and
(2) covenants and agrees not to xxx or bring, or cause or permit to be commenced, any action or legal proceeding, against Executive, his/her heirs or personal representatives in connection with any claim, action, cause of action or demand released by such persons herein.
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7. Indemnification and Insurance.
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13. Applicable Law. This Agreement shall be governed by, construed, and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the laws of the State of Texas without giving effect to that State’s principles regarding conflict of laws.
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(a) Executive is advised to consult with an attorney prior to signing this Agreement.
(b) Executive is advised to completely read this Agreement and fully understand its meaning.
(c) Executive has up to forty-five (45) days within which to consider whether he/she should sign this Agreement. Executive may sign this Agreement at any time during this 45-day period. However, the offer contained in this Agreement will expire if it is not accepted within 45 days after Executive receives it.
(d) If Executive signs the Agreement, he/she shall have seven (7) days thereafter to revoke the Agreement. To revoke the Agreement, Executive must deliver written notice of the revocation to Company, so that it is received before the seven (7) day revocation period expires.
(e) In signing this Agreement, Executive has had the full opportunity to investigate all matters pertaining to Executive’s claims and fully understands its terms and contents, including the rights and obligations hereunder.
(f) In signing this Agreement, Executive is not releasing or waiving any federal age discrimination claims based on conduct or events that occur after the Agreement is signed.
(g) Executive is entering into this Agreement knowingly and voluntarily.
(h) Executive’s only consideration for signing this Agreement is described herein, and no other promises or representations of any kind have been made by any person or entity to cause Executive to sign this Agreement.
READ CAREFULLY.
THIS DOCUMENT CONTAINS A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
[NAME OF EXECUTIVE] | CROSS BORDER RESOURCES, INC. | |||
By: | ||||
Its: | ||||
PRINT YOUR NAME | ||||
Date Signed by Executive | Date Signed by Company | |||
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