EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into as of the
13th day of January, 1998, by and among TRITON EXPLORATION SERVICES, INC. (the
"Employer"), having a business address at 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, ___________________________ ("Employee"), having a
mailing address at __________________________________, and Triton Energy
Limited, a Cayman Islands company (the "Company"), to the limited extent
provided herein,
W I T N E S S E T H:
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WHEREAS, the Employer is a direct or indirect wholly owned subsidiary of
the Company;
WHEREAS, the Employer and the Company consider the establishment and
maintenance of a sound and vital management to be essential to protecting and
enhancing their best interests and the best interests of their respective
shareholders;
WHEREAS, the Employer and the Company recognize that, because the Company
is a publicly held company and as is the case with many such companies, the
possibility of a change in control may exist and that such possibility, and
the uncertainty and questions which it may raise among management, may result
in the departure or distraction of management personnel to the detriment of
the Employer and the Company and their respective shareholders;
WHEREAS, the Boards of Directors of the Employer and the Company have
determined that appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of members of the Employer's
management, including Employee, to their assigned duties without distraction
in the face of the potentially disturbing circumstances arising from the
possibility of a change in control of the Company;
WHEREAS, in order to induce Employee to remain in the employ of the
Employer and in the service of the Company as an officer, the Employer entered
into an Employment Agreement (the "Employment Agreement") as of January 1,
1997 with Employee that provides certain severance benefits to Employee in the
event Employee's employment is terminated subsequent to a change in control of
the Company under the circumstances described below and the Company is willing
to guarantee the performance of the Employer's obligations hereunder;
WHEREAS, the Employer, the Company and Employee wish to amend and restate
the Employment Agreement;
NOW, THEREFORE, in consideration of the mutual premises and conditions
contained herein, the parties hereto agree as follows:
1. TERM
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1.1 Contract Term. This Agreement shall commence on the date
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hereof, and shall continue until January 1, 1999; provided, however, that
commencing January 1, 1999 and each January 1 thereafter the term of this
Agreement shall automatically be extended for an additional year unless (i)
there has been no change in control of the Company and (ii) no fewer than
thirty (30) days prior to such January 1st date, the Employer shall have given
notice that it does not wish to extend this Agreement.
1.2 Consideration by Employee. In consideration of the
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Employer's entering into this Agreement, Employee hereby agrees that, for the
period commencing on the date hereof and extending through the termination
date of this Agreement, Employee will not voluntarily terminate employment
with the Employer, except in the event of (i) a change in control of the
Company as provided herein, (ii) a substantial change in Employee's position,
duties, compensation or benefits which would be deemed "Good Reason" for
Employee to terminate his employment in accordance with Section 3.3 if there
were a change in control of the Company, or (iii) the Employer's consenting to
such termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this
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Agreement unless there shall have been a change in control of the Company, as
set forth below, and (except as set forth in Section 4 hereof) Employee's
employment by the Employer (or any other direct or indirect subsidiary of the
Company) shall thereafter have been terminated within two (2) years of the
date of such change in control in accordance with Section 3 below. For
purposes of this Agreement, a "change in control of the Company" shall mean
the occurrence of any of the following events: (i) there shall be consummated
(x) any consolidation, amalgamation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to which
shares of the Company's Ordinary Shares would be converted into cash,
securities or other property, other than a consolidation, amalgamation or
merger of the Company in which the holders of the Company's Ordinary Shares
immediately prior to the consolidation, amalgamation or merger have the same
proportionate ownership of ordinary shares or common stock of the surviving
corporation immediately after the consolidation, amalgamation or merger, or
(y) any sale, lease, exchange or other transfer (excluding transfer by way of
pledge or hypothecation), in one transaction or a series of related
transactions, of all, or substantially all, of the assets of the Company, (ii)
the shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company, (iii) any "person" (as such term is
defined in Section 3(a)(9) or Section 13(d)(3) under the Securities Exchange
Act of 1934, as amended (the "1934 Act)) or any "group" (as such term is used
in Rule 13d-5 promulgated under the 1934 Act), other than the Company or any
successor of the Company or any subsidiary of the Company or any employee
benefit plan of the Company or any subsidiary (including such plan's trustee),
becomes, without the prior approval of the Board of Directors of the Company
(the "Board"), a beneficial owner for purposes of Rule 13d-3 promulgated under
the 1934 Act, directly or indirectly, of securities of the Company
representing 25.0% or more of the Company's then outstanding securities having
the right to vote in the election of Directors of the Company, or (iv) during
any period of two consecutive years, individuals who, at the beginning of such
period constituted the entire Board (the "Incumbent Directors"), cease for any
reason (other than death) to constitute a majority of the Directors of the
Company, unless the election, or the nomination for election, by the Company's
shareholders, of each new Director of the Company was approved by a vote of at
least two-thirds of the Incumbent Directors (so long as such new Director was
not nominated by a person who expressed an intent to effect a change in
control of the Company or engage in a proxy or other control contest) in which
case such new Director shall be considered an Incumbent Director.
3. TERMINATION OF EMPLOYMENT FOLLOWING CHANGE IN CONTROL. If a change
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in control of the Company shall have occurred, Employee shall be entitled to
the benefits provided in Section 4 hereof upon the subsequent termination of
his employment (except as set forth in Section 4.3-3), provided that such
termination (a) occurs within two (2) years following a change in control of
the Company and (b) is not (i) because of his death, "Disability" or
"Retirement" (as defined in Section 3.1 below), (ii) by the Employer for
"Cause" (as defined in Section 3.2 below), or (iii) by Employee other than for
"Good Reason" (as defined in Section 3.3 hereof).
3.1 Disability; Retirement
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3.1-1 If, as a result of Employee's incapacity due to physical
or mental illness, Employee shall have been absent from his duties with the
Employer on a full-time basis for 120 consecutive business days, and within
thirty (30) days after written notice of termination is given Employee shall
not have returned to the full-time performance of his duties, the Employer may
terminate this Agreement for "Disability."
3.1-2 Termination by the Employer or Employee of his
employment based on "Retirement" shall mean termination in accordance with the
Employer's retirement policy, including early retirement, generally applicable
to its salaried employees or in accordance with any retirement arrangement
established with Employee's consent with respect to him.
3.2 Cause. The Employer may terminate Employee's employment for
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"Cause." For the purposes of this Agreement, the Employer shall have "Cause"
to terminate Employee's employment hereunder upon (A) the willful and
continued failure by Employee to perform his duties with the Employer (other
than any such failure resulting from incapacity due to physical or mental
illness), after a demand for substantial performance is delivered to Employee
by the Board which specifically identifies the manner in which the Board
believes that he has not substantially performed his duties, or (B) the
willful engaging by Employee in gross misconduct materially and demonstrably
injurious to the Company. For purposes of this paragraph, an act, or failure
to act, on Employee's part shall not be considered "willful" if done, or
omitted to be done, by him (A) in good faith and (B) with reasonable belief
that his action or omission was not opposed to the best interests of the
Company. Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a copy of a resolution duly adopted by the affirmative vote of not less
than two-thirds (2/3d's) of the entire authorized membership of the Board at a
meeting of the Board called and held for the purpose (after reasonable notice
and an opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board he was guilty of
conduct set forth above in clauses (A) or (B) of the second sentence of this
paragraph and specifying the particulars thereof in detail.
3.3 Good Reason. Employee may terminate his employment for Good
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Reason. For purposes of this Agreement, "Good Reason" shall mean:
3.3-1 Without his express written consent, the assignment to
Employee of any duties inconsistent with his positions, duties,
responsibilities and status with the Employer and the Company immediately
prior to a change in control of the Company, or a change in his reporting
responsibilities, titles or offices with the Employer or the Company as in
effect immediately prior to a change in control of the Company, or any removal
of Employee from or any failure to re-elect Employee to any of such positions,
except in connection with the termination of his employment for Cause,
Disability or Retirement or as a result of his death or by Employee other than
for Good Reason;
3.3-2 A reduction by the Employer in Employee's base salary as
in effect on the date hereof or as the same may be increased from time to
time;
3.3-3 The Employer's requiring Employee to be based anywhere
other than the Employer's offices at which he was based immediately prior to a
change in control of the Company except for required travel on the Employer's
business to an extent substantially consistent with his present business
travel obligations, or, in the event Employee consents to any relocation, the
failure by the Employer to pay (or reimburse Employee) for all reasonable
moving expenses incurred by him relating to a change of his principal
residence in connection with such relocation and to indemnify Employee against
any loss (defined as the difference between the actual sale price of such
residence and the higher of (a) his aggregate investment in such residence or
(b) the fair market value of such residence as determined by a real estate
appraiser designated by Employee and reasonably satisfactory to the Employer)
realized on the sale of Employee's principal residence in connection with any
such change of residence;
3.3-4 The failure by the Employer or the Company to continue
in effect any benefit or compensation plan (including but not limited to any
stock option plans, convertible debenture plan, pension plan, life insurance
plan, health and accident plan or disability plan) in which Employee is
participating at the time of a change in control of the Company (or plans
providing substantially similar benefits), the taking of any action by the
Employer or the Company which would adversely affect Employee's participation
in or materially reduce his benefits under any of such plans or deprive him of
any material fringe benefit enjoyed by him at the time of the change in
control of the Company, or the failure by the Employer to provide Employee
with the number of paid vacation days to which he is then entitled on the
basis of years of service with the Employer in accordance with the Employer's
normal vacation policy in effect on the date hereof;
3.3-5 Any failure of the Employer or the Company to obtain the
assumption of and the agreement to perform this Agreement by any successor as
contemplated in Section 6 hereof; or
3.3-6 Any purported termination of Employee's employment which
is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 3.4 below (and, if applicable, Section 3.2 above); and
for purposes of this Agreement, no such purported termination shall be
effective.
3.4 Notice of Termination. Any termination by the Employer
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pursuant to Sections 3.1 and 3.2 above or by Employee pursuant to Section 3.3
above shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated. In the event that Employee
seeks to terminate his employment with the Employer pursuant to Section 3.3
above, he must communicate his written Notice of Termination to the Employer
within sixty (60) days of being notified of such action or actions by the
Employer or the Company which constitute Good Reason for termination.
3.5 Date of Termination. "Date of Termination" shall mean (i)
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if this Agreement is terminated for Disability, thirty (30) days after Notice
of Termination is given (provided that Employee shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period); (ii) if Employee's employment is terminated for Cause, the date on
which a Notice of Termination is given or the date on which there shall have
been delivered to Employee the resolution specified in Section 3.2, whichever
is later; (iii) if Employee's employment is terminated pursuant to Section 3.3
above, the date that is specified in the Notice of Termination; and (iv) if
Employee's employment is terminated for any other reason, the date on which a
Notice of Termination is given; provided that, if within thirty (30) days
after any Notice of Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of
a court of competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected).
4. COMPENSATION UPON TERMINATION OR DURING DISABILITY. If a change
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in control of the Company shall have occurred and (except as provided in
Section 4.3-3 hereof) the other conditions in the first paragraph of Section 3
are met, Employee shall be entitled to the following:
4.1 Disability. During any period that Employee fails to perform
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his duties hereunder as a result of incapacity due to physical or mental
illness, he shall continue to receive his full base salary at the rate then in
effect and any installments of deferred portions of awards under any
applicable incentive, bonus or other plans paid during such period until this
Agreement is terminated pursuant to Section 3 hereof. Thereafter, Employee's
benefits in respect of his disability shall be determined in accordance with
the Employer's Long-Term Disability Income Insurance Plan, or a substitute
plan, and any other plans providing for the disability of a participant then
in effect.
4.2 Termination for Cause. If Employee's employment shall be
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terminated for Cause, the Employer shall pay Employee his full base salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given and the Employer shall have no further obligations to
Employee to make any payments under this Agreement.
4.3 Termination Without Cause; Termination for Good Reason. If the
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Employer shall terminate Employee's employment other than pursuant to Sections
3.1 or 3.2 hereof or if Employee shall terminate his employment for Good
Reason, then the Employer shall pay to Employee as severance pay in a lump sum
in cash not later than the tenth (10th) day following the Date of Termination,
the following amounts:
4.3-1 Employee's full base salary through the Date of
Termination at the rate in effect at the time of Notice of Termination is
given;
4.3-2 In lieu of any further salary or bonus payments to
Employee for periods subsequent to the Date of Termination, an amount equal to
the product of (a) the sum of (i) the highest of Employee's annual base salary
in effect at any time from the three years prior to, through and including,
the Date of Termination plus (ii) the highest of the aggregate bonuses paid to
Employee during any fiscal year all or a part of which was included in the
foregoing three year period plus (iii) the highest of the aggregate
contributions made by the Employer on Employee's behalf in respect of
Employee's participation in any 401(k) plan or plans of the Employer during
any fiscal year all or a part of which was included in the foregoing three
year period multiplied by (b) the number three (3);
4.3-3 In lieu of ordinary shares of the Company ("Company
Shares") issuable upon exercise of options ("Options"), if any, granted to
Employee under the Company's stock option plans (which Options shall be
canceled upon the making of the payment referred to below), Employee shall
receive an amount in cash equal to the aggregate spread between the exercise
prices of all Options held by Employee whether or not then fully exercisable,
and the highest price per Company Share actually paid (including the fair
market value of any securities into which or for which a Company Share was
converted or exchangeable) in connection with any change in control of the
Company (such price being hereinafter referred to as "Termination Price") and
the Employer shall, if requested by Employee, purchase all Debentures (herein
so called) theretofore purchased by Employee under the Company's convertible
debenture plans, regardless of whether such Debentures are then convertible,
in cash in an amount equal to the aggregate spread between the conversion
price of the Debentures held by Employee and the Termination Price times the
number of Company Shares into which the Debentures are convertible (assuming
such Debentures were fully vested); provided that, notwithstanding the
foregoing, in the event of a change in control of the Company, Employee shall
have the right to require the Employer to make the payment in respect of such
Options in the amount, and purchase such Debentures for the purchase price,
described in this Section 4.3-3 notwithstanding Employee's continuing
employment with the Employer, which right shall be exercisable commencing
immediately prior to the change in control of the Company and shall terminate
190 days following the change in control of the Company, and any such payment
and purchase price shall be payable no later than the tenth (10th) day
following (i) the change in control of the Company or (ii) the date on which
Employee delivers notice of his exercise of such right, whichever comes later,
together with, if and to the extent triggered by the exercise of such right,
an amount set forth in Section 5; and
4.3-4 All relocation and indemnity payments as set forth in
Section 3.3-4 hereof, and all legal fees and expenses incurred by Employee as
a result of such termination (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement).
4.4 Benefit Plans. Unless Employee is terminated for Cause, the
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Employer shall maintain in full force and effect for the continued benefit of
Employee, for a two year period after the Date of Termination, all employee
benefit plans and programs or arrangements in which Employee was entitled to
participate immediately prior to the Date of Termination (at no greater cost
or expense to Employee than was the case immediately prior to the change in
control of the Company), including without limitation plans providing medical,
dental, life and disability insurance coverage, provided that Employee's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Employee's participation in any
such plan or program is not possible, the Employer shall arrange to provide
Employee, at the Employer's cost and expense, with benefits substantially
similar to those which Employee is entitled to receive under such plans and
programs. At the end of the period of coverage, Employee shall have the
option to have assigned to him at no cost and with no appointment of prepaid
premiums, any assignable insurance policy owned by the Employer or the Company
and relating specifically to him.
4.5 Additional Benefits. If the Employer shall terminate
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Employee's employment other than pursuant to Section 3.1 or 3.2 hereof or if
Employee shall terminate his employment for Good Reason, then in addition to
the benefits to which Employee is entitled under the retirement plans or
programs in which Employee participates or any successor plans or programs in
effect on the date of termination of his employment hereunder, the Employer
shall pay Employee, not later than the tenth (10th) day following the Date of
Termination, in cash an amount equal to the difference between (a) the
present value of the most valuable retirement pension to which Employee would
have been entitled under the terms of the retirement plans or programs in
which Employee participates (or any successor plans or programs in effect on
the Date of Termination hereunder) without regard to "vesting" thereunder, if
he would have accumulated three (3) additional years of continuous credited
service after the Date of Termination under such retirement plans or programs
and (b) the present value of the most valuable retirement pension which he is
actually entitled to receive pursuant to the provisions of said retirement
plans and programs. For purposes of this Section 4.5, "present value" shall
be determined using the same methods and assumptions (including compensation
increase assumptions during such additional three year period) utilized under
the Employer's retirement plans and programs immediately prior to the change
in control of the Company.
4.6 Automobiles. Upon Employee's termination for any reason,
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the Employer shall enable Employee to purchase the automobile, if any, which
the Employer or the Company was providing for Employee's use at the time
Notice of Termination was given at the wholesale value of such automobile at
such time.
4.7 Mitigation of Amounts Payable Hereunder. Employee shall not
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be required to mitigate the amount of any payment provided for in this Section
4 by seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Section 4 be reduced by any compensation earned
by Employee as the result of employment by another employer after the Date of
Termination, or otherwise.
5. EXCISE TAXES.
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5.1 In the event that any payment or benefit received or to be
received by Employee pursuant to the terms of this Agreement (the "Contract
Payments") or in connection with Employee's termination of employment or
contingent upon a change in control of the Company pursuant to any plan or
arrangement or other agreement with the Employer or the Company (or any
affiliate) ("Other Payments" and, together with the Contract Payments, the
"Payments"), would be subject to the excise tax (the "Excise Tax"), imposed by
Section 4999 of the Code, as determined as provided below, the Employer shall
pay to Employee, at the time specified in Section 5.2 below, an additional
amount (the "Gross-Up Payment") such that the net amount retained by Employee,
after deduction of the Excise Tax on Contract Payments and Other Payments and
any federal, state and local income or other tax and Excise Tax upon the
payment provided for by this Section 5.1, and any interest, penalties or
additions to tax payable by Employee with respect thereto, shall be equal to
the total present value of the Contract Payments and Other Payments at the
time such Payments are to be made. For purposes of determining whether any of
the Payments will be subject to the Excise Tax and the amounts of such Excise
Tax, (1) the total amount of the Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of Section 280G(b)(1) of the
Code shall be treated as subject to the Excise Tax, except to the extent that,
in the opinion of independent tax counsel selected by the Employer's
independent auditors and reasonably acceptable to Employee ("Tax Counsel"), a
Payment (in whole or in part) does not constitute a "parachute payment" within
the meaning of Section 280G(b)(2) of the Code, or such "excess parachute
payments" (in whole or in part) are not subject to the Excise Tax, (2) the
amount of the Payments that shall be treated as subject to the Excise Tax
shall be equal to the lesser of (A) the total amount of the Payments or (B)
the amount of "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value
of any noncash benefits or any deferred payment or benefit shall be determined
by Tax Counsel in accordance with the principles of Section 280G(d)(3) and (4)
of the Code. For purposes of determining the amount of the Gross-Up Payment,
Employee shall be deemed to pay federal income tax at the highest marginal
rates of federal income taxation applicable to individuals in the calendar
year in which the Gross-Up Payment is to be made and state and local income
taxes at the highest effective rates of taxation applicable to Employee in the
calendar year in which the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes that can be obtained from deduction of such
state and local taxes, taking into account any limitations applicable to
individuals subject to federal income tax at the highest marginal rates.
5.2 Gross-Up Payments provided for in Section 5.1 hereof shall
be made upon the earlier of (i) the payment to Employee of any Contract
Payment or Other Payment or (ii) the imposition upon Employee or payment by
Employee of any Excise Tax.
5.3 The Employee shall notify the Employer in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Employer of a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than 20 business days after the
Employee is informed in writing of such claim and shall apprise the Employer
of the nature of such claim and the date on which such claim is requested to
be paid. The Employee shall not pay such claim prior to expiration of the 30
day period following the date on which the Employee gives such notice to the
Employer (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Employer notifies the Employee in
writing prior to the expiration of such period that it desires to contest such
claim the Employee shall:
i) give the Employer any information reasonably requested by the
Employer relating to such claim;
ii) take such action in connection with contesting such claim as
the Employer shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Employer and reasonably satisfactory
to the Employee;
iii) cooperate with the Employer in good faith in order to
effectively contest such claim; and
iv) permit the Employer to participate in any proceedings
relating to such claim;
provided, however, that the Employer shall bear and pay directly all
costs and expenses (including, but not limited to, additional interest and
penalties and related legal, consulting or other similar fees) incurred in
connection with such contest, and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any Excise Tax or other tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses.
5.4 The Employer shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Employee to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Employer
shall reasonably determine; provided, however, that if the Employer directs
the Employee to pay such claim and xxx for a refund, the Employer shall
advance the amount of such payment to the Employee on a interest-free basis,
and shall indemnify and hold the Employee harmless, on an after-tax basis,
from any Excise Tax or other tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and provided, further, that if the
Employee is required to extend the statute of limitations to enable the
Employer to contest such claim, the Employee may limit this extension solely
to such contested amount. The Employer's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority. In addition, no position may be taken nor any final
resolution be agreed to by the Employer without the Employee's consent if such
position or resolution could reasonably be expected to adversely affect the
Employee (including any other tax position of the Employee unrelated to the
matters covered hereby).
5.5 As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Employer or
the Tax Counsel hereunder, it is possible that Gross-Up Payments which will
not have been made by the Employer should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder In the event
that the Employer exhausts its remedies and the Employee thereafter is
required to pay to the Internal Revenue Service an additional amount in
respect of any Excise Tax, the Employer or the Tax Counsel shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall
promptly be paid by the Employer to or for the benefit of the Employee.
5.6 If, after the receipt by Employee of the Gross-Up Payment or
an amount advanced by the Employer in connection with the contest of an Excise
Tax claim, the Employee becomes entitled to receive any refund with respect to
such claim, the Employee shall promptly pay to the Employer the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Employee of an amount
advanced by the Employer in connection with an Excise Tax claim, a
determination is made that Employee shall not be entitled to any refund with
respect to such claim and the Employer does not notify the Employee in writing
of its intent to contest the denial of such refund prior to the expiration of
30 days after such determination, such advance shall be forgiven and shall not
be required to be repaid.
6. SUCCESSORS; BINDING AGREEMENT.
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6.1 Successors of the Company. The Employer and the Company will
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require any successor (whether direct or indirect, by purchase, amalgamation,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Employer and/or the Company, by agreement in
form and substance satisfactory to Employee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer and the Company would be required to perform it if no such succession
had taken place. Failure of the Employer and the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach
of this Agreement and shall entitle Employee to compensation from the Employer
in the same amount and on the same terms as Employee would be entitled
hereunder if Employee terminated his employment for Good Reason, except that
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used
in this Agreement, the terms, "Employer" and "Company" shall include any
successor to the business and/or assets of the Employer and/or the Company as
aforesaid which executes and delivers the agreement provided for in this
Section 6 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
6.2 Employee's Heirs, etc. This Agreement shall inure to the
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benefit of and be enforceable by Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts would still be payable to
him hereunder as if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee, or other designee or, if there be no such
designee, to his estate.
7. NOTICE. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, or by overnight
courier service, addressed to the respective addresses set forth on the first
page of this Agreement, provided that all notices to the Employer shall be
directed to the attention of the Chief Executive Officer of the Employer with
a copy to the Secretary of the Employer, and all notices to the Company shall
be directed to c/o Triton Exploration Services, Inc., 0000 X. Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 attention: President, or to such
other address as any party may hereafter specify in writing in accordance
herewith, except that notices of change of address shall be effective only
upon receipt.
8. MISCELLANEOUS. No provisions of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed
to in writing signed by Employee, the Employer and the Company (in whose case
such signatory shall be such officer as may be specifically designated by the
Board (which shall in any event include the Company's Chief Executive
Officer)). No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. This Agreement
constitutes the entire agreement of the parties regarding the subject matter
hereof, and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof.
9. VALIDITY. The invalidity or unenforceability of any provisions of
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this Agreement shall not effect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
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and construed under the laws of the State of Texas. The Employer and the
Company hereby irrevocably submit to the jurisdiction of any Texas State or
Federal court sitting in the Northern District of Texas, and the jurisdiction
of any arbitration panel constituted pursuant to Section 12 hereof, over any
action, proceeding or arbitration arising out of or relating to this Agreement
and the Employer and the Company hereby irrevocably agree that all claims in
respect of such action or proceeding may be heard and determined in such Texas
State or Federal court or arbitration proceeding.
12. ARBITRATION. Any dispute or controversy arising under or in
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connection with this Agreement shall be settled exclusively by arbitration in
Dallas, Texas (in accordance with the rules of the American Arbitration
Association then in effect). Notwithstanding the pendency of any such dispute
or controversy, the Employer will continue to pay Employee his full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary and installments under incentive,
bonus or other plans) and continue Employee as a participant in all
compensation, benefit and insurance plans in which he was participating when
the notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with Section 3.5 hereof. Amounts paid under this
paragraph are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement. Judgment may be entered on the arbitrator's award in any court
having jurisdiction; provided, however, that Employee shall be entitled to
seek specific performance of his right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
13. CAPTIONS AND GENDER. The use of captions and Section headings
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herein is for the purposes of convenience only and shall not effect the
interpretation or substance of any provisions contained herein. Similarly,
the use of the masculine gender with respect to pronouns in this Agreement is
for purposes of convenience and includes either sex who may be a signatory.
14. LEGAL FEES. The Employer shall pay Employee, no less frequently
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than monthly, all legal fees and expenses reasonably incurred by Employee in
connection with this Agreement (including all such fees and expenses, if any,
incurred in contesting or disputing the nature of any such termination for
purposes of this Agreement or in seeking to obtain or enforce any right or
benefit provided by this Agreement, but excluding any legal fees and expenses
relating to a claim brought be Employee that a court has determined (in a
final, non-appealable judgment) to be brought in bad faith).
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date and year first above written.
TRITON EXPLORATION SERVICES, INC.
By: ___________________________________
JOINDER OF THE COMPANY
The Company hereby joins in this Agreement for the purpose of
guaranteeing, and the Company does hereby unconditionally guarantee, to
Employee the due and prompt performance by the Employer, or its successors and
assigns as provided herein (the "Obligor") of the Obligor's obligations
hereunder and covenanting, and the Company does hereby covenant, with Employee
to be bound by the agreements of the Company as set forth herein. In case of
the failure of the Obligor to punctually perform any obligation under this
Agreement, including the making of any payment hereunder, the Company hereby
agrees to cause any such obligation to be promptly performed when and as the
same shall be due. The Company hereby agrees that its obligations hereunder
shall be as if it were principal obligor and not merely surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any provision of this
Agreement, any failure to enforce the provisions of this Agreement, or any
waiver, modification or indulgence granted to the Obligor with respect
thereto, by the Employee, or any other circumstance which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Company hereby waives diligence, presentment, demand, any right to require a
proceeding first against the Obligor, and all demands whatsoever, and
covenants that its obligations under this Agreement will not be discharged
except by performance in full of the Obligor's obligations hereunder. The
agreements of the Company hereunder shall inure to the benefit of and be
enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
TRITON ENERGY LIMITED
By: ___________________________________
