BASIN EXPLORATION, INC.
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
AGREEMENT by and between BASIN EXPLORATION, INC. a Delaware
corporation (the "Company") and XXXX X. XXXXXXXX (the "Officer"), dated as of
August 1, 1997.
The Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication of
the Officer, notwithstanding the possibility, threat or occurrence of a
Change of Control (as defined below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the Officer by virtue of
the personal uncertainties and risks created by a pending or threatened
Change of Control and to encourage the Officer's full attention and
dedication to the Company currently and in the event of any threatened or
pending Change of Control, and to provide the Officer with compensation and
benefits arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Officer will be satisfied and
which are competitive with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused the Company to enter
into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. CERTAIN DEFINITIONS.
(a) The "Effective Date" shall mean the first date
during the Change of Control Period (as defined in Section 1(b)) on which a
Change of Control (as defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and
if the Officer's employment with the Company is terminated prior to the date
on which the Change of Control occurs, and if it is reasonably demonstrated
by the Officer that such termination of employment (i) was at the request of
a third party who has taken steps reasonably calculated to effect a Change of
Control or (ii) otherwise arose in connection with or anticipation of a
Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination
of employment. For purposes of this Agreement, the Committee (as described
below) may clarify the date as of which a Change of Control shall be deemed
to have occurred.
(b) The "Change of Control Period" shall mean the
period commencing on the date hereof and ending on the third anniversary of
the date hereof; provided, however, that commencing on the date one year
after the date hereof, and on each annual anniversary of such date (such date
and each annual anniversary thereof shall be hereinafter referred to as the
"Renewal Date"), unless previously terminated, the Change of Control Period
shall be automatically extended so as to terminate three years from such
Renewal Date, unless at least 60 days prior to the Renewal Date (and prior to
the Effective Date) the Company shall give notice to the Officer that the
Change of Control Period shall not be so extended.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a
"Change of Control" shall mean:
(a) Any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or Mr. Xxxxxxx
Xxxxx, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the 1934 Act), directly or indirectly, of more than thirty-three and
one-third percent (33-1/3%) of the then outstanding voting stock of the
Company; or
(b) Individuals who, as of the date hereof,
constitute the Board (and any new director whose election by the Board or
whose nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors as of the date hereof or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority thereof; or
(c) The stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 51% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets; provided, however, that if the merger, plan of liquidation or sale of
substantially all assets is not consummated following such stockholder
approval and the transaction is abandoned, then the Change of Control shall
be deemed not to have occurred.
3. EMPLOYMENT PERIOD. The Company hereby agrees to continue
the Officer in its employ, and the Officer hereby agrees to remain in the
employ of the Company subject to the terms and conditions of this Agreement,
for the period commencing on the Effective Date and ending on the third
anniversary of such date (the "Employment Period").
4. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(a) During the Employment Period, (A) the
Officer's position (including status, offices, titles and
reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the 120-day
period immediately preceding the Effective Date and (B) the
2
Officer's services shall be performed at the location where
the Officer was employed 120 days immediately preceding the
Effective Date or any office or location less than 30 miles
from such location.
(b) During the Employment Period, and excluding
any periods of vacation and sick leave to which the Officer
is entitled, the Officer agrees to devote reasonable
attention and time during normal business hours to the
business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the
Officer hereunder, to use the Officer's reasonable best
efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not
be a violation of this Agreement for the Officer to (A)
serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C)
manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Officer's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood
and agreed that to the extent that any such activities have
been conducted by the Officer prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent
to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Officer's
responsibilities to the Company.
(b) COMPENSATION.
(a) BASE SALARY. During the Employment
Period, the Officer shall receive an annual base salary
("Annual Base Salary"), which shall be paid at a monthly
rate, at least equal to 12 times the highest monthly base
salary paid or payable, including any base salary which has
been earned but deferred, to the Officer by the Company and
its affiliated companies in respect of the 12-month period
immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base
Salary shall be reviewed no more than 12 months after the
last salary increase awarded to the Officer prior to the
Effective Date and thereafter at least annually. Any
increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Officer under this
Agreement. Annual Base Salary shall not be reduced after
any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base
Salary as so increased. As used in this Agreement, the term
"affiliated companies" shall
3
include any company controlled by, controlling or under
common control with the Company.
(b) ANNUAL BONUS. In addition to Annual
Base Salary, the Officer shall be awarded, for each fiscal
year ending during the Employment Period, an annual bonus
(the "Annual Bonus") in cash at least equal to the average
of the Officer's bonuses over the last three fiscal years,
or such lesser number of years as the Officer may have been
employed by the Company, prior to the Effective Date
(annualized in the event that the Officer was not employed
by the Company for an entire fiscal year) (the "Recent
Annual Bonus"). Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year
next following the fiscal year for which the Annual Bonus
is awarded, unless the Officer shall elect to defer the
receipt of such Annual Bonus.
(c) INCENTIVE, SAVINGS AND RETIREMENT
PLANS. During the Employment Period, the Officer shall be
entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs
applicable generally to other peer executives of the
Company and its affiliated companies but in no event shall
such plans, practices, policies and programs provide the
Officer with incentive opportunities (measured with respect
to both regular and special incentive opportunities to the
extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities,
in each case, less favorable, in the aggregate, than the
most favorable of those provided by the Company and its
affiliated companies for the Officer under such plans,
practices, policies and programs as in effect at any time
during the 120-day period immediately preceding the
Effective Date or if more favorable to the Officer, those
provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated
companies.
(d) WELFARE BENEFIT PLANS. During the
Employment Period, the Officer and/or the Officer's family,
as the case may be, shall be eligible for participation in
and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company
and its affiliated companies (including, without
limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental
death and travel accident insurance plans and programs) to
the extent applicable generally to other peer executives of
the Company
4
and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide the Officer
with benefits which are less favorable, in the aggregate,
than the most favorable of such plans, practices, policies
and programs in effect for the Officer at any time during
the 120-day period immediately preceding the Effective Date
or, if more favorable to the Officer, those provided
generally at any time after the Effective Date to other
peer executives of the Company and its affiliated
companies.
(e) EXPENSES. During the Employment
Period, the Officer shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the
Officer in accordance with the most favorable policies,
practices, and procedures of the Company and its affiliated
companies in effect for the Officer at any time during the
120-day period immediately preceding the Effective Date or,
if more favorable to the Officer, as in effect generally at
any time thereafter with respect to other peer executives
of the Company and its affiliated companies.
(f) FRINGE BENEFITS. During the Employment
Period, the Officer shall be entitled to fringe benefits,
including, without limitation, in accordance with the most
favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the
Officer at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Officer, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its
affiliated companies.
(g) VACATION. During the Employment
Period, the Officer shall be entitled to paid vacation in
accordance with the most favorable plans, policies,
programs and practices of the Company and its affiliated
companies as in effect for the Officer at any time during
the 120-day period immediately preceding the Effective Date
or, if more favorable to the Officer, as in effect
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
5. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Officer's employment
shall terminate automatically upon the Officer's death during the Employment
Period. If the Company determines in good faith that the Disability of the
Officer has occurred during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Officer written
5
notice in accordance with Section 12(b) of this Agreement of its intention to
terminate the Officer's employment. In such event, the Officer's employment
with the Company shall terminate effective on the 30th day after receipt of
such notice by the Officer (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, the Officer shall not have returned to
full-time performance of the Officer's duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Officer from the
Officer's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness
which is determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Officer or the Officer's legal
representative.
(b) CAUSE. The Company may terminate the
Officer's employment during the Employment Period for Cause. For purposes of
this Agreement, "Cause" shall mean:
(a) the Officer's gross violation of the
terms of this Agreement, if such violation has not been
substantially cured within thirty (30) days following written
notice to the Officer from the Company of such violation setting
forth with specificity the nature of the violation or, if cure
cannot reasonably be effected within such 30-day period, if the
Officer does not commence such cure within such 30-day period and
thereafter pursue such cure continuously and with due diligence
until cure has been effected;
(b) the Officer's willful dishonesty
towards, fraud upon, felony crime against, deliberate material
injury or material bad faith action with respect to, or deliberate
or attempted injury to the Company; or
(c) the Officer's conviction for any
felony crime (whether in connection with the Company's affairs or
otherwise).
(c) GOOD REASON; WINDOW PERIOD. The Officer's
employment may be terminated (i) during the Employment Period by the Officer
for Good Reason or (ii) during the Window Period by the Officer without any
reason. For purposes of this Agreement, "Window Period" shall mean the 30-day
period immediately following the Effective Date. For purposes of this
Agreement, any termination by the Officer during the Window Period shall be
deemed a termination by the Officer for Good Reason and, in addition, "Good
Reason" shall mean:
(a) the assignment to the Officer by the
Company following the Effective Date of any duties inconsistent
with, or a substantial alteration in the nature or status of, the
Officer's responsibilities as in effect during the 120-day period
prior to the Effective Date, including a change in the Officer's
title or the level of supervisor to whom the Officer is required
to report;
6
(b) a failure by the Company to comply
with any of the provisions of Section 4(b) of this Agreement other
than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Officer;
(c) a relocation of the Company's
principal offices to a location outside a 00-xxxx xxxxxx xx
Xxxxxx, Xxxxxxxx, or the Officer's relocation to any place other
than the offices of the Company located in Denver, Colorado or
within 30 miles of Denver, Colorado, except for reasonably
required travel by the Officer on the Company's business to an
extent substantially consistent with the Officer's business travel
obligations immediately preceding the Effective Date;
(d) any material breach by the Company of
any provision of this Agreement, if such material breach has not
been cured within thirty (30) days following written notice by the
Officer to the Company of such breach setting forth with
specificity the nature of the breach;
(e) any failure by the Company to obtain
the assumption and performance of this Agreement by any successor
(by merger, consolidation or otherwise) or assign of the Company;
or
(f) the voluntary termination by Xxxxxxx
X. Xxxxx of his employment as Chief Executive Officer of the
Company or the termination of his employment as Chief Executive
Officer in the event of a Change of Control; provided that such
termination shall constitute Good Reason only for a period of 120
days from the date of termination of Xx. Xxxxx'x employment as
Chief Executive Officer.
For purposes of this Section 5(c), any good faith determination of "Good
Reason" made by the Officer shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the
Company for Cause, or by the Officer for Good Reason, shall be communicated
by Notice of Termination to the other party hereto given in accordance with
Section 12(b) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Officer's employment under
the provision so indicated and (iii) if the Date of Termination (as
7
defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than 30 days after the
giving of such notice). The failure by the Officer or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes
to a showing of Good Reason or Cause shall not waive any right of the Officer
or the Company, respectively, hereunder or preclude the Officer or the
Company, respectively, from asserting such fact or circumstance in enforcing
the Officer's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means
(i) if the Officer's employment is terminated by the Company for Cause, or by
the Officer for Good Reason, the date of receipt of the Notice of Termination
or any later date specified therein, as the case may be, (ii) if the
Officer's employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the Company
notifies the Officer of such termination, (iii) if the Officer's employment
is terminated by reason of Disability, the Date of Termination shall be the
Disability Effective Date, and (iv) if the Officer's employment is terminated
by reason of his death, the Date of Termination shall be the last day of the
month during which his death occurs.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR
DISABILITY. If, during the Employment Period, the Company shall terminate the
Officer's employment other than for Cause or Disability or the Officer shall
terminate employment for Good Reason, the parties acknowledge that the
Officer will sustain actual damages, the amount of which is indefinite,
uncertain and difficult of exact ascertainment because of the uncertainties
of successfully relocating and seeking a comparable position. In order to
avoid dispute as to the amount of such damages and the mutual expense and
inconvenience such dispute would entail, the Company and the Officer have
agreed hereby that the Company shall pay to the Officer compensation as
provided below. It is hereby agreed that in the event of such termination by
the Company, the Officer shall receive such amounts as herein provided, not
as a penalty, but as the Officer's agreed compensation and sole damages for
the termination of this Agreement, in lieu of the Officer's proof of his
actual damages on that account. If, during the Employment Period, the Company
shall terminate the Officer's employment other than for Cause or Disability
or the Officer shall terminate employment for Good Reason, the Company shall
pay to the Officer in a lump sum in cash within 5 days after the Date of
Termination the aggregate of the following amounts:
(a) the sum of (1) the Officer's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the higher of (I) the
Recent Annual Bonus and (II) the Annual Bonus paid or payable,
including any bonus or portion thereof which has been earned but
deferred (and annualized for any fiscal year consisting of less
than 12 full months or during which the Officer was employed for
less than 12 full months), for the most recently completed fiscal
year during the Employment Period, if any (such higher amount
being referred to
8
as the "Highest Annual Bonus") and (y) a fraction, the numerator
of which is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is 365 and
(3) any compensation previously deferred by the Officer (together
with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid (the
sum of the amounts described in clauses (1), (2), and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
(b) the amount equal to the product of (1) three
and (2) the sum of (x) the Officer's Annual Base Salary and (y)
the Highest Annual Bonus.
To the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Officer any other amounts or benefits
required to be paid or provided or which the Officer is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits").
In addition, any options to purchase shares of the Company's
common stock shall immediately vest and become exercisable as of the Date of
Termination and, notwithstanding anything to the contrary in the Officer's
option agreements with the Company, the options shall be exercisable for a
period of 12 months after the Date of Termination (but in no event beyond the
expiration date applicable to such options). Any restrictions on restricted
stock grants and performance share grants shall also be eliminated.
(b) DEATH. If the Officer's employment is terminated
by reason of the Officer's death during the Employment Period, this Agreement
shall terminate without further obligations to the Officer's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Officer's estate or beneficiary, as
applicable, in a lump sum in cash within 5 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(b) shall include, without limitation, and the
Officer's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of peer executives of
the Company and such affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, as in effect with
respect to other peer executives and their beneficiaries at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Officer's estate and/or the Officer's beneficiaries, as in
effect on the date of the Officer's death with respect to other peer
executives of the Company and its affiliated companies and their
beneficiaries.
(c) DISABILITY. If the Officer's employment is
terminated by reason of the Officer's Disability during the Employment
Period, this Agreement shall terminate without
9
further obligations to the Officer, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Officer in a lump sum in cash within 5 days
of the Date of Termination. With respect to the provision of Other Benefits,
the term Other Benefits as utilized in this Section 6(c) shall include, and
the Officer shall be entitled after the Disability Effective Date to receive,
disability and other benefits at least equal to the most favorable of those
generally provided by the Company and its affiliated companies to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Officer and/or the Officer's family, as in effect at any
time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the
Officer's employment shall be terminated for Cause during the Employment
Period, this Agreement shall terminate without further obligations to the
Officer other than the obligation to pay to the Officer (x) his Annual Base
Salary through the Date of Termination, (y) the amount of any compensation
previously deferred by the Officer, and (z) Other Benefits, in each case to
the extent theretofore unpaid. If the Officer voluntarily terminates
employment during the Employment Period, excluding a termination for Good
Reason, this Agreement shall terminate without further obligations to the
Officer, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be
paid to the Officer in a lump sum in cash within 5 days of the Date of
Termination.
7. NON-EXCLUSIVITY OF RIGHTS. Except as provided in
Sections 6(a)(ii), 6(b) and 6(c), nothing in this Agreement shall prevent or
limit the Officer's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which the Officer may qualify, nor, subject to Section 12(f), shall
anything herein limit or otherwise affect such rights as the Officer may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Officer is
otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
8. FULL SETTLEMENT. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may
have against the Officer or others. In no event shall the Officer be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Officer under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not the
Officer obtains other employment. The Company agrees to pay as incurred, to
the full extent permitted by law, all legal fees and expenses which the
Officer may reasonably incur as a result of any contest (regardless of the
outcome thereof but not in the case of fees incurred with
10
respect to a claim brought in bad faith) by the Company, the Officer or
others of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Officer about the amount of any
payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
9. LIMITATION ON AMOUNT OF PAYMENT.
(a) LIMITATION. Notwithstanding anything else in this
Agreement, solely in the event of a termination by the Company without Cause
or a termination by the Officer for Good Reason, and except as provided in
subsection (i) below, the aggregate of the payments of benefits to which the
Officer will be entitled under Section 6(a) will be reduced to the extent
necessary so that the Officer will not be liable for the federal excise tax
levied on certain "excess parachute payments" under section 4999 of the
Internal Revenue Code.
(i) The limitation of Section 9(a) will not apply
if the difference between (w) the present value of all payments to
which the Officer is entitled under paragraph 6(a) determined
without regard to Section 9(a) less (x) the present value of all
federal, state and other income and excise taxes for which the
Officer is liable as a result of such payments exceeds the
difference between (y) the present value of all payments to which
the Officer is entitled under Section 6(a) calculated as if the
limitation of Section 9(a) applies less (z) the present value of
all federal, state and other income and excise taxes for which the
Officer is liable as a result of such reduced payments. Present
values will be determined using the interest rate specified in
section 280G of the Internal Revenue Code and will be the present
values as of the date on which the Officer's employment terminates
(unless it is necessary to use a different date in order to avoid
adverse consequences under section 280G).
(b) DETERMINATION BY OFFICER. Whether payments to the
Officer are to be reduced pursuant to Section 9(a), and the extent to which
they are to be so reduced, will be determined by the Officer. The Officer
may, at the expense of the Company, hire an accounting firm, law firm or
employment consulting firm selected by the Officer to assist him in such
determination. If a reduction is made pursuant to Section 9(a), the Officer
will have the right to determine which payments and benefits will be reduced.
(c) ADDITIONAL BENEFIT. The Officer shall receive the
benefit of any change made by the Company in the calculation or entitlement
of severance compensation following a Change of Control for any other officer
of the Company, such as an agreement by the Company to "gross up" the
compensation paid to an officer by paying the excise tax imposed by Section
280G of the Internal Revenue Code .
10. CONFIDENTIAL INFORMATION. The Officer shall not,
during his employment by the Company or at any time thereafter, directly or
indirectly use, divulge, furnish or make accessible to anyone other than the
Company, its directors or officers (otherwise than in the
11
regular course of the business of the Company), any knowledge or information
regarding any confidential or secret activities, prospects, technical data,
analysis and interpretations, projects, plans, reports, investor or
co-venturer names or lists, financial or marketing information or documentary
material relating to the existing, planned or contemplated business or
activities of the Company. The Officer, upon leaving the employ of the
Company, shall not take with him or retain any books, records, data, reports,
letters, memoranda, notes or other writings or documents whatsoever, or
copies thereof, which reflect or deal with any secret, proprietary or
confidential information or material relating to the business or activities
of the Company. The obligations of the Officer under this Section 10 shall
not apply to (i) information which at the time of disclosure is readily
available to the public; (ii) information which is or becomes available to
the general public other than through acts or omissions attributable to the
Officer; or (iii) information obtained from a third party who is lawfully in
possession of the same other than through breach of a confidentiality or
nonuse obligation owed to the Company or others with respect to that
information.
11. SUCCESSORS.
(a) This Agreement is personal to the Officer
and, without the prior written consent of the Company, shall not be
assignable by the Officer otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Officer's legal representatives.
(b) This Agreement shall inure to the benefit
of and be binding upon the Company and its successors and assigns.
(c) The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no
such succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by operation of law, or otherwise.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, without reference to principles of conflict of laws. The captions
of this Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
12
(b) NOTICES. All notices and other
communications hereunder shall be in writing and shall be given by hand
delivery to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Officer:
Xxxx X. Xxxxxxxx
000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Company:
Basin Exploration, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel or President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) SEVERABILITY. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) WITHHOLDINGS. The Company may withhold
from any amounts payable under this Agreement the minimum amounts of any such
Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) MODIFICATIONS. The Officer's or the
Company's failure to insist upon strict compliance with any provision of this
Agreement or the failure to assert any right the Officer or the Company may
have hereunder, including, without limitation, the right of the Officer to
terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this
Agreement, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) ACKNOWLEDGMENT OF EMPLOYMENT AT WILL. The
Officer and the Company acknowledge that, except as may otherwise be provided
under any other written agreement between the Officer and the Company, the
employment of the Officer by the Company is "at will" and, subject to Section
1(a) hereof, prior to the Effective Date, the Officer's employment and/or
this Agreement may be terminated by either the Officer or the Company at any
time prior to the Effective Date, in which case the Officer shall have no
further rights under this Agreement. From and after the Effective Date, this
Agreement shall supersede any other agreement between the parties with
respect to the subject matter hereof.
13
IN WITNESS WHEREOF, the Officer has hereunto set the
Officer's hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed in its name
on its behalf, all as of the day and year first above written.
------------------------------
Xxxx X. Xxxxxxxx
BASIN EXPLORATION, INC.
By:
---------------------------
Xxxxxxx X. Xxxxx, President
14
