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EXHIBIT 99.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of January 1, 2000
(the "Effective Date"), is made by and between OCEAN ENERGY, INC., a Texas
corporation ("Company"), and XXXXX X. XXXXXX, an individual who resides in
Houston, Texas ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by Company and serves as
Chairman of the Board of Directors of Company (the "Board of Directors"); and
WHEREAS, Company and Executive entered into an Employment Agreement
dated March 27, 1998, which has been previously amended in certain respects and
is currently in effect (the "Employment Agreement"); and
WHEREAS, Company and Executive desire to enter into an agreement that
replaces the Employment Agreement and that reflects their desire for Executive
to serve as Vice Chairman of the Board of Directors while employed by the
Company on and after the Effective Date;
NOW THEREFORE, the parties, in consideration of the mutual promises,
covenants and obligations contained herein, do hereby agree as follows:
1. EFFECT OF AGREEMENT. Effective as of the Effective Date, this
Agreement supersedes and replaces the Employment Agreement in its entirety and
the Employment Agreement shall be null and void and of no further force and
effect.
2. RESIGNATIONS. Executive has resigned (a) as Chairman of the Board of
Directors effective as of December 31, 1999, (b) as a member of the Executive
Management Committee and its Chairman, effective as of December 31, 1999, (c) as
a member of any other committee of Company on which Executive serves, effective
as of December 31, 1999, and (d) from any other office, trusteeship or position
that Executive holds with Company (other than as a director or employee of
Company) or any subsidiary or division of Company or any employee benefit plan
(other than as a participant or beneficiary of any employee benefit plan)
relating to Company, in each case effective as of December 31, 1999.
3. VICE CHAIRMAN. Effective as of the Effective Date, the Board of
Directors has elected Executive to serve as Vice Chairman of the Board of
Directors. As Vice Chairman, Executive shall have such powers and duties as
designated in Company's bylaws and as from time to time may be assigned to him
by the Chief Executive Officer of Company (the "CEO"), including, but not
limited to, advising the CEO on strategy development, equity/debt structuring,
strategic combinations, as well as acquisitions and divestitures. The
designation of Vice Chairman shall continue through the remainder of the Term of
this Agreement pursuant to Paragraph 6.
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4. DIRECTORSHIP. Executive shall serve the remainder of his current term
as a director of Company. Any renomination of Executive for a subsequent term as
a director of Company shall be considered in the same manner as other directors
of Company.
5. COMPENSATION AND BENEFITS. During the Term of this Agreement, Company
shall provide to Executive the following compensation and benefits:
(A) BASE SALARY. Company shall pay to Executive a base salary of
$8,333.33 per month ($100,000 annual rate) in accordance with Company's
standard policy regarding payment of compensation to executives, but no
less frequently than monthly.
(B) ANNUAL BONUS. For each year during the Term of this
Agreement, Executive shall be eligible to receive an annual bonus in
such amount, if any, as may be determined in the sole discretion of the
Board of Directors.
(C) STOCK OPTION GRANTS. Executive shall be eligible to receive
such grants of options to purchase common stock of the Company ("Stock")
as may be determined in the sole discretion of the Board of Directors.
(D) COMPANY BENEFIT PLANS. Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, which are now, or may
hereafter be, available to other executive employees of Company. Such
benefits, plans and programs shall include, without limitation, any
thrift plan, employee stock ownership plan, health insurance or health
care plan, life insurance, disability insurance, vacation and sick leave
plan, and the like that may be maintained by Company. Company shall not,
however, by reason of this Paragraph be obligated to institute,
maintain, or refrain from changing, amending, or discontinuing, any such
benefit plan or program, so long as such changes are similarly
applicable to executive employees generally.
(E) OTHER BENEFITS. Company shall continue to provide Executive
with such other benefits as are appropriate for his position,including,
without limitation, automobile expenses, an office, secretarial
assistance, convenient parking, and existing social/business club
membership fees, dues and assessments.
(F) BUSINESS AND ENTERTAINMENT EXPENSES. Company will reimburse
Executive for, or pay on behalf of Executive, reasonable and appropriate
expenses incurred and properly accounted for by Executive for Company
business related purposes, including dues and fees to industry and
professional organizations, costs of entertainment and business
development.
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Executive acknowledges and hereby agrees that the compensation payable pursuant
to this Paragraph is for his employment under this Agreement and that he shall
receive no separate fees or other compensation or benefits with respect to his
services as a director or any other offices of Company.
6. TERM AND TERMINATION OF AGREEMENT. Company agrees to employ Executive
and Executive agrees to be employed by Company pursuant to this Agreement for a
term of beginning on the Effective Date and ending on the second anniversary of
the Effective Date (the "Term"), subject to earlier termination as provided
below. Notwithstanding the foregoing, the parties hereto may terminate
Executive's employment prior to the end of such Term pursuant to Paragraphs (a)
or (b) below. Further, with the consent of Company, Executive may continue to be
employed by Company following the Term of this Agreement; provided, however,
that any such employment shall be as an "at-will" employee of Company, unless
another employment agreement is mutually agreed upon.
(a) Company shall have the right to terminate Executive's
employment under this Agreement at any time for any of the following
reasons:
(i) Upon Executive's death;
(ii) Upon Executive's becoming incapacitated by accident,
sickness or other circumstance which renders him mentally or
physically incapable of performing the duties and services
required of him hereunder on a full-time basis with reasonable
accommodation for a period of at least 120 consecutive days or
for a period of 180 business days during any twelve-month period;
(iii) For cause, which for purposes of this Agreement
shall mean a finding by the Board of Directors of Executive's
gross negligence or wilful misconduct in the rendering of
services required of him pursuant to this Agreement or
Executive's final conviction of a felony or of a misdemeanor
involving moral turpitude, excluding misdemeanor convictions
relating to the operation of a motor vehicle;
(iv) For Executive's material breach of any material
provision of this Agreement, which, if correctable, remains
uncorrected for 30 days following written notice of such breach
to Executive by Company; or
(v) For any other reason whatsoever in the sole discretion
of the Board of Directors.
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(b) Executive shall have the right to terminate his employment
under this Agreement at any time for any of the following reasons:
(i) For Company's material breach of any material
provision of this Agreement, which, if correctable, remains
uncorrected for 30 days following written notice of such breach
to Company by Executive; or
(ii) For any other reason whatsoever in the sole
discretion of Executive.
(c) If Company or Executive desires to terminate Executive's
employment hereunder at any time prior to the expiration of the Term of
this Agreement, it or he shall do so by giving written notice to the
other party that it or he has elected to terminate Executive's
employment hereunder and stating the effective date and reason for such
termination; provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder.
(d) In the event that Executive's employment is terminated by
Companyas provided in (a) above prior to the expiration of the Term of
this Agreement, then, upon such termination, the compensation and
benefits payable pursuant to Paragraph 5 shall terminate
contemporaneously with the termination of such employment, except that
if such termination shall be pursuant to (a)(i), (a)(ii) or (a)(v),
Company shall pay to Executive within fifteen days following the date of
such termination a lump sum cash payment in an amount equal to the sum
of (I) Executive's Base Salary for the remainder of the Term of this
Agreement and (II) the economic value of participation in Company's
benefit plans (based on an annual salary rate of $100,000) for the
remainder of the Term of this Agreement.
(e) In the event that Executive's employment is terminated by
Executive as provided in (b) above prior to the expiration of the Term
of this Agreement, then, upon such termination, the compensation and
benefits payable pursuant to Paragraph 5 shall terminate
contemporaneously with the termination of such employment, except that
if such termination shall be pursuant to (b)(i), Company shall pay to
Executive within fifteen days following the date of such termination a
lump sum cash payment in an amount equal to the sum of (I) Executive's
Base Salary for the remainder of the Term of this Agreement and (II) the
economic value of participation in Company's benefit plans (based on an
annual salary rate of $100,000) for the remainder of the Term of this
Agreement.
(f) Upon the expiration of the two year Term of this Agreement,
and upon the date of any earlier termination of Executive's employment
pursuant to 6(a)(i), 6(a)(ii), 6(a)(v) or 6(b)(i) above, Executive's
outstanding restricted stock
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grants shall no longer contain any restrictions, and Executive's
outstanding stock options shall be deemed fully vested and exercisable
on such date and shall continue to be fully exercisable for the
remaining term of each option grant. OEI and Executive shall on such
date enter into appropriate amendments to each option grant to provide
for the vesting and extension of exercisability, which shall include
Executive's acknowledgement and agreement that the acceleration of the
vesting and exercisability of such outstanding stock options may cause
any such options intended to be incentive stock options ("ISO's"),
within the meaning of Section 422(b) of the Internal Revenue Code of
1986, as amended, to be treated as options that do not constitute ISO's.
This Paragraph 6(f) shall not be applicable if Executive's employment is
terminated prior to the end of the two year Term pursuant to 6(a)(iii),
6(a)(iv) or 6(b)(ii).
7. PROTECTION OF INFORMATION. Executive acknowledges that Company's
business is highly competitive and that Company's methods, strategies, books,
records, and documents, Company's technical information concerning its products,
equipment, services, and processes, procurement procedures and pricing
techniques, and the names of and other information (such as credit and financial
data) concerning Company's customers, business affiliates, affairs, and
operations all comprise confidential business information and/or trade secrets
("Confidential Information") of Company which are valuable, special, and unique
assets of Company which Company uses in its business to obtain a competitive
advantage over its competitors which do not know or use this information.
Executive further acknowledges that protection of Company's Confidential
Information against unauthorized disclosure and use is of critical importance to
Company in maintaining its competitive position. Accordingly, Executive hereby
agrees that, notwithstanding any other provisions of this Agreement other than
those contained in the following sentences, he will not at any time during the
Term of this Agreement and for an additional period of twenty-four months
thereafter make any unauthorized disclosure of any Confidential Information of
Company or make any unauthorized use thereof. However, Executive's obligations
under this paragraph shall not extend to:
(a) Information which is or becomes a part of the public domain
or is available to the public by publication or otherwise without
disclosure by Executive;
(b) Information which was within Executive's knowledge or in his
possession prior to his initial employment by Company;
(c) Information which, either prior or subsequent to Company's
disclosure to Executive, was disclosed to Executive, without an
obligation of confidentiality, by a third party who did not acquire such
information, directly or indirectly from Executive, Company, or from any
third party who is under an obligation of confidentiality; or
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(d) Any disclosure of Confidential Information by Executive which
is required by law, including deposition or trial testimony by Executive
pursuant to subpoena. If Executive is requested or required (by oral
questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand, or similar process) to disclose
any Confidential Information, Executive will promptly notify Company of
such request or requirements so that Company may seek an appropriate
protective order or waive compliance with the provisions of this
Agreement.
Executive acknowledges and agrees that money damages would not be sufficient
remedy for any breach of this Paragraph concerning Confidential Information by
Executive, and Company shall be entitled to seek specific performance and
injunctive relief as remedies for such breach or threatened breach, as well as
reasonable and necessary attorneys' fees, experts' fees, and costs incurred in
the connection with such breach or threatened breach. Such remedies shall not be
deemed the exclusive remedies for such a breach by Executive but shall be in
addition to all remedies available at law or in equity to Company, including the
recovery of damages from Executive. For purposes of this Paragraph, Company
shall be construed to include any parent, subsidiary, or other affiliate of
Company.
8. OWNERSHIP BY COMPANY. Company shall, without further remuneration to
Executive, own, be entitled to possession of, and have the right to use,
publish, and disclose any results, reports, product, or data developed by
Executive during the course of his employment hereunder, but identification of
Executive with such results, reports, or data shall not be made without
Executive's express consent.
9. NONCOMPETITION PROVISIONS. As part of the consideration for the
compensation and benefits to be paid to Executive pursuant to Paragraph 5
hereunder and as part of the consideration for the option vesting and
exercisability pursuant to Paragraph 6(e) hereunder; to protect the trade
secrets and confidential information of Company and its affiliates that have
been and will in the future be disclosed or entrusted to Executive, the business
good will of Company and its affiliates that has been and will in the future be
developed in Executive, or the business opportunities that have been and will in
the future be disclosed or entrusted to Executive by Company and its affiliates;
and as an additional incentive for Company to enter into this Agreement, Company
and Executive agree to the noncompetition obligations hereunder. Executive shall
not, directly or indirectly for Executive or for others, in any geographic area
or market where Company or any of its affiliates are conducting any business as
of the Effective Date or have during the previous twelve months conducted such
business:
(a) engage in any business competitive with the business
conducted by Company;
(b) render advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or indirectly,
in any business
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competitive with the business conducted by Company with respect to such
competitive business; or
(c) induce any employee of Company or any of its affiliates to
terminate his or her employment with Company or such affiliates, or hire
or assist in the hiring of any such employee by any person, association,
or entity not affiliated with Company.
These noncompetition obligations shall apply during the Term of this Agreement.
Executive understands that the restrictions set forth in this Paragraph may
limit Executive's ability to engage in certain businesses anywhere in the world
during the period provided for above, but acknowledges that Executive will
receive sufficiently high remuneration under this Agreement to justify such
restriction. Executive acknowledges that money damages would not be sufficient
remedy for any breach of this Paragraph by Executive, and Company shall be
entitled to enforce the provisions of this Paragraph by terminating any payments
then owing to Executive under this Agreement and/or to specific performance and
injunctive relief as remedies for such breach or any threatened breach;
provided, however, that payments then owing to Executive may not be terminated
unless the Board of Directors determines that such breach by Executive has
directly resulted or could reasonably be expected to result in a material
adverse economic impact on Company's business. Such remedies shall not be deemed
the exclusive remedies for a breach of this Paragraph, but shall be in addition
to all remedies available at law or in equity to Company, including without
limitation, the recovery of damages from Executive and Executive's agents
involved in such breach and remedies available to Company pursuant to other
agreements with Executive. It is expressly understood and agreed that Company
and Executive consider the restrictions contained in this Paragraph to be
reasonable and necessary to protect the proprietary information of Company.
Nevertheless, if any of the aforesaid restrictions are found by a court having
jurisdiction to be unreasonable, or overly broad as to geographic area or time,
or otherwise unenforceable, the parties intend for the restrictions therein set
forth to be modified by such court so as to be reasonable and enforceable and,
as so modified by the court, to be fully enforced.
10. RELEASE. As part of the consideration for the compensation and
benefits to be paid to Executive pursuant to Paragraph 5 and as an additional
incentive for Company to enter into this Agreement, Executive hereby agrees to
execute a release, at the time and in the form established by Company, releasing
Company, its shareholders, partners, officers, directors, employees and agents
from any and all claims and from any and all causes of action of any kind or
character, including but not limited to all claims or causes of action arising
out of Executive's employment with Company or his separation therefrom, other
than claims or causes of action arising out of the provisions of this Agreement.
11. WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and all other normal employee deductions made
with respect to Company's employees generally.
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12. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States,
registered or certified mail, return receipt requested, postage prepaid, if
addressed as follows:
If to Company, to: Ocean Energy, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Chairman of the Board
If to Executive, to: Xx. Xxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000
or such other addresses as either party may furnish to the other in writing, in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
14. GOVERNING LAW. This Agreement is entered into under and shall be
governed for all purposes by the laws of the State of Texas.
15. NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or at any prior or
subsequent time.
16. SEVERABILITY. If a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the invalidity
or unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
17. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of Company and any successor of Company, by merger or otherwise.
Further, this Agreement shall be binding and inure to the benefit of Executive,
his spouse, and his estate. If Executive shall die prior to full payment of
amounts due pursuant to this Agreement, such amounts shall be payable pursuant
to the terms of this Agreement to his spouse, if then living, or if his spouse
is not then living, to his estate. Except as provided in the preceding
sentences, this Agreement and the rights and obligations of the parties
hereunder are personal, and neither this Agreement nor any right, benefit, or
obligation
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of either party hereto shall be subject to voluntary or involuntary assignment,
alienation, or transfer, whether by operation of law or otherwise, without
the prior written consent of the other party.
18. ENTIRE AGREEMENT. Except as provided in the written benefit plans
and programs referenced in Paragraph 5, this Agreement represents the entire
agreement between the parties hereto with respect to the matters covered herein
and may not be changed, altered, or modified in any respect except by an
instrument in writing signed by both the parties hereto.
IN WITNESS WHEREOF, Company has caused this Agreement to be duly
executed by one of its officers thereunto duly authorized and Executive has
executed this Agreement, this 29th day of December, 1999, to be effective as of
the Effective Date.
OCEAN ENERGY, INC.
BY: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
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