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EXHIBIT 10.19
RESTATED SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") is between HarCor Energy, Inc. ("the
Company") and ____________________ (the "Employee").
WHEREAS, pursuant to the authority granted by the Board of Directors in a
resolution dated March 17, 1997, the Company and the said Employee entered into
a Severance Agreement dated April 9, 1997, and it is the intention of the
parties hereto that this Agreement will restate and extend the said Severance
Agreement, and
WHEREAS, the Company is considering business transactions that could result in
the sale, a change of control and/or ownership of the Company; and
WHEREAS, the Company recognizes that the sale, a change of control and/or
ownership could result in the loss of the Employee's job; and
WHEREAS, the Company recognizes that the continued employment of the Employee is
critical to the maximization of shareholders' value in any contemplated sale or
change of control transaction; and
WHEREAS, the Company wishes to continue the employment of the Employee with the
Company until any contemplated sale, change of control or ownership is effected.
Now, therefore, in consideration of the mutual covenants and agreements
hereinafter set forth, these parties agree to the following:
I. EMPLOYEE OBLIGATIONS
The Employee agrees to the following:
A. To remain employed by the Company in the Employee's current position
or any position assigned by the Company from April 9, 1997, until (a) December
31, 1998, or until (b) the Effective Date (as defined herein), whichever date
first occurs.
B. To devote all of the Employee's working time to the Company and to
give the Employee's best effort to the business affairs of the Company, and to
the performance of the duties of the Employee's assigned position, and as may be
further required, from April 9, 1997, until (a) December 31, 1998, or until (b)
the Effective Date, whichever date first occurs.
II. COMPANY OBLIGATIONS
The Company agrees to the following:
A. To pay a special one-time lump sum severance payment to the Employee
at Houston, Texas, within ten (10) days after the Effective Date, equal to 1.5
times Total Cash Compensation (as defined herein) paid to the Employee for the
tax year 1996, provided that:
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1. All Employee Obligations are met; and
2. The employment of the Employee either with the Company or any
successors resulting from a Change of Control shall be terminated for any
reason, including a voluntary termination in writing by the Employee, on
or after the Effective Date.
B. "Change of Control" is defined as the occurrence of one or more of the
following events where:
(1) the Company is not the surviving entity in any merger or other
business combination (or survives only as a subsidiary of an entity other
than a previously wholly-owned subsidiary of the Company),
(2) the Company sells, leases or exchanges or agrees to sell, lease or
exchange all or substantially all of its assets to any other person or
entity (other than a wholly-owned subsidiary of the Company),
(3) the adoption of any plan of liquidation or dissolution of the
Company,
(4) any person or entity, including a "group" as contemplated by Section
13(d)(3) of the 1934 Act, acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of the
outstanding shares of capital stock of the Company, or
(5) as a result of or in connection with any cash tender or exchange
offer, merger or other business combination, sales of assets or a
contested election for the board of directors, or any combination of the
foregoing transactions (a "Transaction"), a majority of the members of
the Board of Directors of the Company following such Transaction were not
a member of the Board of Directors before such Transaction.
C. "Total Cash Compensation" is defined as either (1) base salary
actually paid to the Employee for the Company's tax year 1996, and any bonus,
incentive and other cash payments paid the Employee, said amount being equal to
the aggregate compensation reported on the Employee's 1996 IRS Forms W-2 and
1099, or (2) in the event Employee had not been employed by the Company for the
entire duration of 1996, the Employee's final monthly base salary in 1996,
annualized (i.e., 1996 monthly base salary x 12).
D. "Effective Date" shall mean the first date on which a Change of
Control has occurred.
III. EMPLOYEE BENEFITS AFTER EFFECTIVE DATE
The Employee shall be entitled to full coverage and benefits as
currently exist under the Company's existing health and life insurance policies
for a period of six months after the Effective Date, or until such policies
contractually expire due to the dissolution of the Company, whichever occurs
first.
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IV. EMPLOYMENT TERMINATION
A. This Agreement does not constitute an offer, nor a guarantee, of
continued employment of the Employee by the Company.
B. If the Employee voluntarily terminates the Employee's employment
with the Company after April 9, 1997, and prior to the Effective Date, the
Company shall be relieved of any obligation under this Agreement.
C. If the Employee voluntary terminates the Employee's employment on or
after the Effective Date, or if the employment of the Employee either with the
Company or any successors resulting from a Change of Control is terminated by
the employer on or after the Effective Date, such Employee shall not be
disqualified from receiving the severance payment, if otherwise payable
hereunder, by subsequently accepting employment with the Company or any
successors resulting from a Change of Control.
D. The Company shall have the right to terminate the Employee's
employment at any time for cause, and if such an event occurs prior to the
Effective Date, the Company shall be immediately relieved of any obligations
under this Agreement. Cause shall be defined as but not limited to: (1) refusal
or failure to implement reasonable directives of the Company; (2) willful
misconduct or gross negligence in the performance of duties; (3) irresponsible
conduct which has an adverse impact on the Company's reputation and/or standing
in the community; (4) conviction of a crime involving moral turpitude to include
fraud, theft, or embezzlement; (5) conduct which is in violation of the
Employee's common law duty of loyalty to the Company; (6) fraudulent conduct in
connection with the business affairs of the Company; (7) willful or persistent
failure to attend to job duties; or (8) breach of any material terms or
provisions of this Agreement.
V. EMPLOYEE'S RELEASE
Following the Effective Date, Employee agrees, effective upon the
payment to the Employee of all amounts due hereunder, to release the Company,
its affiliates, any successors arising from a Change of Control, and their
directors, officers, employees and agents, individually and collectively, from
any and all claims, causes of action, rights, and demands which Employee has or
may have, of any kind or character, whether now known or unknown, including, but
not limited to, any claim for salary, compensation, bonuses, severance pay,
benefits, and expenses. This release will include but is not limited to all
known and unknown employment or termination related claims, damages, actions,
rights and causes of action claims arising from, attributable to, or related to,
Employee's employment and the termination of employment including, but not
limited to, any claims arising from or attributable to, any state or federal
statute, regulation or the common law (contract, tort or other), including any
alleged discriminatory employment practice. This release also applies to any
claims brought by any person or agency on behalf of the Employee under which
Employee may have any right or benefit. Employee agrees to execute a separate
release document confirming and incorporating the provisions of this paragraph,
if requested by the Company, in exchange for the payment to the Employee of all
amounts due hereunder.
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VI. TERM OF AGREEMENT
The term of this Agreement shall be from April 9, 1997, through
December 31, 1998. If no Change of Control occurs during this time period, this
Agreement is terminated. The Company may elect to extend and/or replace this
Agreement at any time but shall not be obligated to do so.
VII. CONFIDENTIALITY & PROPRIETARY INFORMATION
The Employee agrees that during and after employment by the Company,
they will not disclose to others, use, copy or permit to be copied, any secret
or confidential information or know-how of the Company, without written
permission by the Company.
Confidential information shall include but not be limited to trade
secrets, patents, copyrights, computer programs, plans and strategies, pricing
policy, financial data, technology, oil/gas reserve information, contracts or
agreements, well files, well logs, land files or lease information,
geologic-geophysical data or information, engineering drawings, graphs, charts,
maps, cross sections, correspondence, customer lists, and similar information
whose disclosure could have a detrimental effect on the Company. The Employee is
further prohibited and shall not commingle any aspect of Company business with
other businesses or personal interests of the Employee.
VIII. ASSIGNMENTS
This Agreement is personal in nature and neither party shall agree
without the consent of the other, to assign or transfer this Agreement or any
rights or obligations hereunder, provided that in the event of a Change of
Control, this Agreement shall be binding upon and inure to the benefit of any
successors resulting therefrom and such successors shall discharge and perform
all promises, covenants, duties and obligations of the Company set out herein.
IX. ENTIRE AGREEMENT
This Agreement supersedes any and all prior severance agreements
between the Employee and the Company.
X. GOVERNING LAW
This Agreement and the legal relations thus created between the parties
herein shall be governed by and construed under and in accordance with the laws
of the State of Texas.
XI. PAYMENTS
In the event of any default of payment of any amount due hereunder, the
amount due hereunder will bear interest at the highest legal rate for this type
of debt until paid in full. The prevailing party in any legal proceeding brought
to enforce this agreement shall be entitled to
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recover from the non-prevailing party all collection costs, costs of such
proceeding and reasonable attorneys' fees in addition to the amount due
hereunder and interest thereon.
XII. SEVERABILITY
In the event that a court of competent jurisdiction determines that any
portion of this Agreement is in violation of any statute or public policy, then
only the portions of this Agreement that violate such statute or public policy
shall be stricken. All portions of this Agreement which do not violate any
statue or public policy shall continue in full force and effect.
IN WITNESS WHEREOF, THE COMPANY AND THE EMPLOYEE HAVE EXECUTED THIS AGREEMENT AS
OF OCTOBER 31, 1997, RESTATED TO BE EFFECTIVE AS OF APRIL 9, 1997.
HARCOR ENERGY, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Vice President
Finance and Administration
EMPLOYEE
Name:
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