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EXHIBIT 10.48
STOCK ACQUISITION LOAN AGREEMENT
This Stock Acquisition Loan Agreement ("Agreement") is made and entered in
to as of June 15, 1995, between Xxxxxx & Xxxxxxx Petroleum Company, a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxxxxx (the "Executive").
RECITALS:
A. WHEREAS, the Board of Directors of Company (the "Board") deem it to be
in the best interest of the Company for the officers of the Company and its
Subsidiaries to accumulate and maintain significant stock ownership in the
Company;
B. WHEREAS, Executive is an officer of Company or one of its Subsidiaries
and an employee of a Subsidiary of Company, and is desirous of accumulating
ownership of additional shares of the Company's common stock ("Shares"); and
C. WHEREAS, the Board desires to provide Executive the means to acquire
Company's common stock;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Loan. In consideration of Executive's continued employment with any
Subsidiary of Company and other value received, Company agrees, from and after
the date hereof until the earlier to occur of (a) Executive's termination of
employment with any Subsidiary of the Company, or (b) June 22, 1995, to make
advances up to, but not in excess of $125,418 (the "Advances"), to Executive
for the purchase of Shares. In consideration of the Advances and other value
received, Executive promises to pay to Company the aggregate amount of all
Advances, together with interest thereon at a rate per annum equal to 7.0625%,
calculated on the basis of actual days elapsed, but computed as if each
calendar year consisted of 365 or 366 days, as the case may be, as provided
herein.
2. Use of Advances. The Advances shall be used by Executive exclusively to
purchase Shares not later than June 22, 1995. Advances shall be made only upon
Executive's delivery to Company of written evidence satisfactory to Company of
Executive's purchase of Shares.
3. Repayment of Loan. Advances shall be due and payable in three (3) equal
installments on each of June 15, 1996, 1997 and 1998 (each a "Payment Date"),
together with all interest then accrued but unpaid; provided, however,
Advances, together with all interest then accrued but unpaid shall be
immediately due and payable upon the termination of Executive's employment
prior to a Change in Control (as hereinafter defined) for a reason other than a
reason set forth in clause (c) of this paragraph; and provided further,
however, that amounts due under this Agreement on a Payment Date shall be
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automatically forgiven by Company, without further obligation or liability
therefor by Executive, (a) in the event a Change in Control has occurred prior
to such Payment Date; (b) if Executive is then employed by Company or any
Subsidiary of Company (the "Employer"); or (c) if not employed by Employer on
such Payment Date and Executive's employment was terminated:
(i) as the result of Executive's death;
(ii) by Employer:
(A) as a result of Executive's absence from his
employment duties on a full time basis (1)
for 180 consecutive calendar days due to
Executive's incapacity arising from
physical or mental impairment or illness;
and (2) following Company's written notice
of termination of employment (whether
before or after the end of such 180 day
period); or
(B) for any reason other than for Cause; or
(iii) by Employee (1) for Good Reason; or (2) if his
health should become impaired to an extent that
makes the continued performance of his employment
duties hazardous to his physical or mental health or
his life.
4. Certain Definitions. As used in this Agreement, each of the
following terms or phrases has the meaning stated:
(a) "Acquiring Person" means any Person other than
Company, any of Company's Subsidiaries, any employee
benefit plan of Company or of a Subsidiary of
Company or of a corporation owned directly or
indirectly by the stockholders of Company in
substantially the same proportions as their
ownership of stock of Company, or any trustee or
other fiduciary holding securities under an employee
benefit plan of Company or of a Subsidiary of
Company or of a corporation owned directly or
indirectly by the stockholders of Company in
substantially the same proportions as their
ownership of stock of Company.
(b) "Across-the-Board Salary Reduction" shall mean a
reduction in the Base Salary that is a part of, and
is at a rate consistent with, a reduction in the
base salaries paid to all executive officers of the
Company or its Subsidiaries.
(c) "Affiliate" means, with respect to any Person, any
other Person that directly or indirectly controls,
is controlled by, or is under common control with
the Person in question. As used in this definition
of
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"Affiliate," the term "control" means the possession,
directly or indirectly, of the power to direct or
cause the direction of the management and policies
of a Person, whether through ownership of Voting
Securities, by contract, or otherwise.
(d) "Base Salary" shall mean compensation paid by
Company to Executive for Executive's services in a
specified amount per annum. The Base Salary shall be
payable in substantially equal bi-monthly
installments. The Compensation Committee of the
Board may review the Base Salary periodically and
may grant such increases, or effect such reductions,
in the Base Salary as the Compensation Committee
considers appropriate in accordance with such
compensation guidelines and policies as it may
establish from time to time.
(e) "Cause" shall mean (i) Executive's continued failure
to substantially perform his duties and
responsibilities (other than any such failure
resulting from Executive's incapacity due to
physical or mental impairment or illness) after
written demand for substantial performance is
delivered by [IN THE CASE OF THE CHIEF EXECUTIVE
OFFICER: the Board] [IN THE CASE OF THE OTHER
EXECUTIVE OFFICERS: the Board or the Chief Executive
Officer] specifically identifying the manner in
which [IN THE CASE OF THE CHIEF EXECUTIVE OFFICER:
the Board] [IN THE CASE OF THE OTHER EXECUTIVE
OFFICERS: the Board or the Chief Executive Officer,
as the case may be,] believes Executive has not
substantially performed such duties and
responsibilities; (ii) Executive's engaging in
misconduct that is materially injurious to the
Company or an Affiliate of the Company, monetarily
or otherwise; or (iii) disclosure of Nonpublic
Information as further defined. For purposes of
clause (ii) of this paragraph, an act, or failure to
act, on Executive's part shall be considered
"misconduct" if done, or omitted, by Executive not
in good faith and without reasonable belief that
such act, or failure to act, was in the best
interests of the Company.
(f) "Change in Control" shall have the meaning given
that term in Section 1.6 of Company's Long-term
Incentive Plan dated February 19, 1991, as amended
from time to time.
(g) "Excessive Salary Reduction" shall mean (i) a
reduction in the Base Salary that is not an
Across-the-Board Salary Reduction and that, when
combined with the net effect of all prior increases
and reductions in the Base Salary (other than prior
reductions that were Across-the-Board Salary
Reductions), results in the Base Salary being less
than 80% of the highest Base Salary to which
Executive
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has ever been subject; or (ii) a reduction in the
Base Salary (whether or not an Across-the-Board
Salary Reduction) that, when combined with the net
effect of all prior increases and reductions in the
Base Salary (whether or not Across-the-Board Salary
Reductions), results in the Base Salary being less
than 65% of the highest Base Salary to which
Executive has ever been subject.
(h) "Good Reason" shall mean the occurrence, subsequent
to the date hereof, of (i) a material reduction in
Executive's authorities, powers, functions, duties
or responsibilities; (ii) an Excessive Salary
Reduction; or (iii) a material failure by Company or
its Subsidiaries to comply with any written
agreement among Executive and Company or its
Subsidiary.
(j) "Incumbent Board" means all individuals who, as of
the date hereof, constitute the board of directors
of Company and any other individual who becomes a
director of Company after that date and whose
election or appointment by the board of directors or
nomination for election by Company's stockholders
was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board.
(k) "Nonpublic Information" means various information
regarding the Company and its business, operations
and affairs which Executive, in connection with his
employment with the Company, has received, and will
continue to receive, and which is not publicly
available other than as a result of disclosure by
Executive in violation of any written agreement
between Executive and Company or any of its
Subsidiaries, is referred to herein as "Nonpublic
Information."
(l) "Person" means any person or entity of any nature
whatsoever, specifically including an individual, a
firm, a company, a corporation, a partnership, a
trust or other entity. A Person, together with that
Person's Affiliates and Associates (as those terms
are defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended ("Exchange Act")),
and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate
or other group (whether or not formally organized),
or otherwise acting jointly or in concert or in a
coordinated or consciously parallel manner (whether
or not pursuant to any express agreement), for the
purpose of acquiring, holding voting or disposing of
securities of Company with such Person, shall be
deemed a single "Person."
(m) "Subsidiary" means any corporation or other entity
of which a majority of the voting power of the
Voting Securities is owned, directly or indirectly,
by such Person.
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(n) "Voting Securities" means any securities or equity
interests that vote generally in the election of
directors, in the admission of general partners, or
in the selection of any other similar governing
body.
5. Miscellaneous.
(a) Usury Savings Clause. Regardless of any provision
contained herein, Company shall never be entitled to
receive, collect, or apply, as interest, any amount
in excess of the maximum rate permitted by law
("Highest Lawful Rate"), and, in the event the
Company ever receives, collects, or applies as
interest, any such excess, such amount which would
be excessive interest shall be deemed a partial
prepayment of advances and treated hereunder as
such; and, if all Advances have been paid or
forgiven in full, any remaining excess shall
forthwith be paid to Executive. In determining
whether or not the interest paid or payable, under
any specific contingency, exceeds the Highest Lawful
Rate, Executive and the Company shall, to the
maximum extent permitted under applicable law, (a)
treat all Advances as but a single extension of
credit, (b) characterize any nonprincipal payment as
an expense, fee, or premium rather than an interest,
(c) exclude voluntary prepayments and the effects
thereof, and (d) spread the total amount of interest
throughout the entire contemplated term hereof;
provided that if all Advances have been paid or
forgiven in full prior to the end of the full
contemplated term hereof, and if the interest
received for the actual period of existence thereof
exceeds the Highest Lawful Rate, the Company shall
refund to Executive the amount of such excess, and,
in such event, the Company shall not be subject to
any penalties provided by any law for contracting
for, charging, taking, reserving, or receiving
interest in excess of the Highest Lawful Rate.
(b) Successors. This Agreement shall be binding upon,
and inure to the benefit of Company and Executive
and their respective successors, assigns, personal
and legal representatives, executors,
administrators, heirs, distributees, devisees, and
legatees, as applicable.
(c) Notices. For purposes of this Agreement, notices and
all other communications provided for in the
Agreement shall be in writing and shall be deemed to
have been duly given when (i) delivered personally;
(ii) sent by telecopy or similar electronic device
and confirmed; (iii) delivered by overnight mail; or
(iv) sent by registered or certified mail, postage
prepaid, addressed as follows:
If to Executive:
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(marked "Personal and Confidential")
Xxxxx X. Xxxxxxxxx
000 X. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Company:
Xxxxxx & Xxxxxxx Petroleum Company
000 X. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President, and
General Counsel
or to such other address as any party may have
furnished to the other in writing in accordance
herewith, except that notices of change of address
shall be effective only upon receipt.
(d) Waivers. No provision of this Agreement may be
modified, waived, or discharged unless such waiver,
modification, or discharge is agreed to in writing
signed by Executive and Company. No waiver by either
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.
(e) Governing Law. THIS AGREEMENT IS BEING MADE AND
EXECUTED IN, AND IS INTENDED TO BE PERFORMED, IN THE
STATE OF TEXAS, AND SHALL BE GOVERNED, CONSTRUED,
INTERPRETED, AND ENFORCED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS.
(f) Attorney Fees. All legal fees and costs incurred by
Executive in connection with resolution of any
dispute or controversy under or in connection with
this Agreement shall be reimbursed promptly by
Company to the Executive upon presentation by
Executive to Company, after the dispute or
controversy is resolved in favor of Executive.
(g) Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not
affect the validity or enforceability of any other
provision of this Agreement, which shall remain in
full force and effect.
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(h) Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed
to be an original, but all of which together will
constitute one and the same agreement.
(i) Offset. Without limiting any remedy available to the
Company at law or in equity for breach by Executive
of this Agreement, Company may offset any amounts
owed, or benefits payable, by Company to Executive
under any other agreement or benefit plans against
amounts due and payable from Executive to Company
under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXXX & XXXXXXX PETROLEUM COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxx
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SCHEDULE I
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxx
Xxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
X.X. Xxxxxx
Xxxx X. Xxxxxxx
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