FORM OF CHANGE IN CONTROL AGREEMENT
EXHIBIT
99.1
CONFIDENTIAL
EXECUTIVE—EXECUTION
COPY
FORM
OF CHANGE IN CONTROL AGREEMENT
THIS
CHANGE IN CONTROL AGREEMENT (the “Agreement”) is made and entered into as of
_______________, 2008, by and between Aurora Oil & Gas Corporation, a Utah
corporation (“AOG” or the “Company”), and _______________ (the
“Executive”).
RECITALS
The
Company has commenced a process of evaluating its strategic alternatives and
the
Board of Directors of the Company recognizes that the possibility of a Change
in
Control may exist. The Company believes that it is in its best interest to
assure that it will have the continued dedication of its key executives and
that
it is imperative to diminish the inevitable distraction of key executives and
employees by virtue of the personal uncertainties and risks created by a pending
or threatened Change in Control and to encourage key executives full attention
and dedication to the Company currently, and to provide the key executives
with
compensation and benefits arrangements upon a Change in Control which are
competitive with those of other corporations in the industry in which the
Company’s principal business activity is conducted.
Executive
is a senior executive of the Company who has been employed as a key member
of
its senior management group and who possesses substantial knowledge and
experience with respect to the business and operations of the
Company.
NOW,
THEREFORE, to assure the Company that it will have the continued undivided
attention and services of the Executive and the availability of his advice
and
counsel notwithstanding the possibility or occurrence of a Change in Control
of
the Company, and to induce the Executive to remain in the employ of the Company,
and for other good and valuable consideration, the Company and the Executive
agree as follows:
1. Retention
of Executive.
Executive confirms his present intention to remain in the employ of the Company
through the term of this Agreement. Except as may be otherwise provided under
any other written agreement between Executive and the Company, the employment
of
Executive by the Company is “at will” and may be terminated, with or without
cause, by the Company at any time during the term of this Agreement, subject
to
the Company’s obligation to provide the benefits hereinafter specified. No
benefits shall be payable hereunder unless there shall have been a Change in
Control of the Company, as defined in Section 2.
2. Certain
Defined Terms.
(a) “Cause”
is
defined in Section 3(i) hereof.
(b) “Change
in Control”
means
the occurrence of any of the following events (but only if with respect to
the
Executive, such event would constitute a change in the ownership or effective
control of the Company or in the ownership of a substantial portion of the
assets of the Company, as defined under Section 409A of the Code):
(i) Change
in Stock Ownership.
Any one
person, or more than one person acting as a group, acquires ownership of stock
of the Company that, together with stock held by such person or group, for
the
first time constitutes more than 50% of the total fair market value or total
voting power of the stock of the Company. An increase in the percentage of
stock
owned by any one person, or persons acting as a group, as a result of a
transaction in which the Company acquires its stock in exchange for property
will be treated as an acquisition of stock for purposes of this Section 2(b).
(ii) Change
in Effective Control.
Either
of the following occurs:
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(A)
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Any
one person, or more than one person acting as a group, acquires (or
has
acquired during the 12-month period ending on the date of the most
recent
acquisition by such person or persons) ownership of stock of the
Company
and thereby possesses for the first time 30% or more of the total
voting
power of the stock of the Company;
or
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(B)
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A
majority of the members of the Company’s Board of Directors is replaced
during any 12-month period by directors whose appointment or election
is
not endorsed by a majority of the members of the Board of Directors
before
the date of the appointment or election;
or
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(iii) Change
in Asset Ownership.
Any one
person, or more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition
by
such person or persons) assets from the Company that have a total gross fair
market value equal to or more than 40% of the total gross fair market value
of
all of the assets of the Company (without regard to any liabilities associated
with such assets) immediately before such acquisition or acquisitions. However,
a Change in Control shall not occur under this subparagraph (iii) if assets
are
transferred to:
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(A)
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a
shareholder of the Company (immediately before the asset transfer)
in
exchange for or with respect to its
stock;
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(B)
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an
entity, 50% or more of the total value or voting power of which is
owned,
directly or indirectly, by the
Company;
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(C)
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a
person, or more than one person acting as a group, that owns, directly
or
indirectly, 50% or more of the total value or voting power of all
outstanding stock of the Company;
or
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(D)
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an
entity, at least 50% of the total value or voting power of which
is owned,
directly or indirectly, by a person described in subparagraph (C)
above;
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Except
as otherwise provided in this Section 2(b), status under subparagraphs
(A), (B), (C), and (D) above is determined immediately after the
transfer
of assets.
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For
purposes of this Section 2(b), persons will be considered to be acting as a
group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock or assets, or similar business
transaction with the Company. If a person, including an entity shareholder,
owns
stock in both corporations (including the Company) that enter into a merger,
consolidation, purchase or acquisition of stock or assets, or similar
transaction, such shareholder is considered to be acting as a group with other
shareholders only with respect to the extent of ownership in that corporation
before the transaction giving rise to the change and not with respect to the
ownership interest in the other corporation. However, persons will not be
considered to be acting as a group solely because they purchase or own stock
of
the same corporation at the same time, or as a result of the same public
offering. In addition, persons will not be considered to be acting as a group
solely because they purchase assets of the same corporation at the same
time.
(c) “Disability”
shall mean a determination by a physician acceptable to Executive and the
Company by reason of physical or mental impairment for an aggregate of one
hundred eighty (180) days (whether business or non-business days and whether
or
not consecutive) during any period of twelve consecutive months to such an
extent that Executive is unable to substantially perform his duties of
employment with the Company on a full-time basis..
3. Termination
Following Change in Control.
If any
of the events constituting a Change in Control of the Company shall have
occurred, Executive shall be entitled to the benefits provided in Subsection
4(c) below upon the subsequent termination of his employment unless such
termination is:
(a) because
of Executive’s death or Disability;
(b) by
the
Company for Cause; or
(c) by
Executive other than for Good Reason.
(i) Cause.
Termination of Executive’s employment for “Cause” shall mean termination
upon:
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(A)
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Conviction
of a felony in the conduct of Executive’s official duties or the failure
of the Executive to contest prosecution of a
felony.
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(B)
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Disclosure
to unauthorized persons of Company information which is believed
by the
Board of Directors of the Company to be confidential which is demonstrably
and materially adverse to the
Company;
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(C)
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Willfully
engaging in illegal conduct or gross misconduct which is materially
and
demonstrably injurious to the
Company;
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(D)
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Willful
and continued failure to perform substantially Executive’s duties with the
Company (other than for Disability or Good Reason) after a written
demand
for substantial performance is delivered by the Board or the Chief
Executive Officer which specifically identifies the manner in which
the
Board or the Chief Executive Officer believes that Executive has
not
substantially performed his duties and, if the failure is one that
can be
cured, the Executive does not comply within thirty (30) days after
receipt
of such demand.
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For
purposes of this Section 3(i), no act, or failure to act, on the Executive’s
part shall be considered “willful” unless done, or omitted to be done, by the
Executive in bad faith and without reasonable belief that such action or
omission was in the best interest of the Company. Notwithstanding the foregoing,
the Executive 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 adopted
by
the affirmative vote of not less than three-quarters of the entire membership
of
the Board of Directors at a meeting of the Board of Directors called and held
for that purpose (after reasonable notice to the Executive and an opportunity
for the Executive, together with his counsel, to be heard before the Board
of
Directors) finding that in the good faith opinion of the Board of Directors
that
the Executive is guilty of the conduct set forth above in clauses (A), (B),
or
(C) of this Section 3(i) and specifying thereof in detail.
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(ii) Good
Reason.
Executive shall be entitled to terminate his employment for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean, without Executive’s
express written consent, the occurrence on or after a Change in Control of
the
Company of any of the following circumstances:
(A) Involuntary
reduction in Executive’s base salary, as in effect immediately prior to a Change
in Control, unless such reduction occurs on a proportional basis simultaneously
with a Company-wide reduction in senior management salaries;
(B) The
assignment to the Executive of any duties inconsistent with those performed
by
the Executive immediately prior to the Change in Control or a substantial
alteration in the nature or status of the Executive’s responsibilities which
renders the Executive’s position to be of less dignity, responsibility or
scope;
(C) Involuntary
relocation of Executive to another office located more than thirty-five (35)
miles from Executive’s office location at the time the Change in Control
occurs;
(D) Any
other
material breach by the Company of its obligations contained in this
Agreement;
(E) Failure
to obtain an assumption of the Company’s obligations under this Agreement by any
successor to the Company, regardless of whether such entity becomes a successor
to the Company as a result of a merger, consolidation, reorganization, sale
of
assets or other transaction; or
(F) Termination
of employment by the Company which is not effected pursuant to a Notice of
Termination satisfying the requirements of this Agreement;
provided,
however, that “Good Reason” shall not be deemed to exist unless:
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(1)
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the
Executive has provided notice to the Company of the existence of
one or
more of the conditions listed in (A) through (F) above within 90
days
after the initial occurrence of such condition or conditions;
and
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(2)
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such
condition or conditions have not been cured by the Company within
30 days
after receipt of such notice.
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(iii) Executive’s
right to terminate his employment pursuant to Subsection (ii) shall not be
affected by his Disability. Executive’s continued employment shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
(iv) Any
proposed termination of Executive’s employment by the Company or by Executive
shall be communicated by written Notice of Termination to the other party.
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,
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment under the provisions
so indicated and shall specify a “Date of Termination.” Any termination of
employment by the Company which is not effected pursuant to a Notice of
Termination satisfying the requirements of this Agreement shall be a material
breach by the Company.
4. Compensation
Upon Termination.
Upon
the
termination of Executive’s employment following a Change in Control, he shall be
entitled to the following benefits:
(a) Termination
for Disability, Death or Retirement.
Upon
Executive’s death or Disability, Executive shall receive his full base salary
through the Executive’s Date of Termination, along with any other benefits
provided to Executive in any benefit plan of the Company.
(b) Termination
For Cause or by Executive Other Than For Good Reason.
If
Executive’s employment is terminated for Cause or Executive terminates
Executive’s employment other than for Good Reason, the Company shall pay
Executive his full base salary through the Date of Termination, plus all other
amounts to which he is entitled under any compensation plan of the Company
at
the time of his termination (including vacation) and the Company shall have
no
further obligations to Executive under this Agreement.
(c) Termination
Other Than For Cause or by Executive For Good Reason.
If
Executive’s employment is terminated other than for Cause or if Executive
terminates his employment for Good Reason and such termination occurs within
two
years of any Change in Control of the Company, then
Executive shall be entitled to the benefits provided below:
(i) Executive
shall be paid his full base salary through the Date of Termination, plus all
other amounts to which he is entitled under any compensation plan of the
Company, to the extent that such payments come due within the thirty (30) day
period following his Date of Termination.
(ii) In
lieu
of any further salary payments, bonuses or other compensation to be paid to
Executive for periods subsequent to his Date of Termination, the Company shall
pay to Executive as executive termination compensation a lump sum payment in
an
amount equal to ________________ his annual base salary at the rate in effect
at
the time the Notice of Termination is given or immediately preceding a Change
in
Control, whichever is higher. This payment shall be made one hundred eighty
(180) days after the date of the Notice of Termination.
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(iii) For
a
period of two (2) years after the Date of Termination, the Company shall provide
Executive, on the same terms and conditions as active employees, with coverage
under the Company’s medical and dental plans; provided, however, that after one
year Executive’s right to participate will be pursuant to COBRA coverage with
the Company paying the costs of COBRA premiums. During such two-year period,
Executive shall be responsible for paying the normal employee share of the
applicable premiums for coverage under the employee benefit plans.
(iv) In
the
event that Executive’s participation in any such welfare plan, program, or
arrangement is barred, or any such plan, program, or arrangement is discontinued
or the benefits thereunder materially reduced, the Company shall arrange to
provide Executive with benefits substantially similar to those which Executive
was entitled to receive under such plans, programs, and arrangements immediately
prior to the Date of Termination.
(d) At
the
time that any payments are made under this Agreement, the Company shall provide
Executive with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations including, without
limitation, any opinions or other advice such Company has received from Tax
Counsel, its auditor, or other advisors or consultants (and any such opinions
or
advice which are in writing shall be attached to the statement).
5. Conditional
Reduction.
(a) Notwithstanding
anything in Section 4 to
the
contrary,
in
the
event that it shall be determined (as hereafter provided), but
for
the application of this Section 5, that
any
payment or distribution by the Company to or for Executive’s benefit, whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement, policy,
plan, program or arrangement, including without limitation any stock option,
performance share, performance unit, restricted stock, stock appreciation right
or similar right, or the lapse or termination of any restriction on, or the
vesting or exercisability of, any of the foregoing (individually and
collectively, a “Payment”), would be subject to the excise tax imposed by
Section 4999 of the Internal
Revenue Code of 1986, as amended from time to time
(“Code”), or any successor provision thereto, by reason of being considered
“contingent on a change in ownership or control” of the Company, within the
meaning of Section 280G of the Code (or any successor provision thereto), or
to
any similar tax imposed by state or local law, or to any interest or penalties
with respect to such taxes (such tax or taxes, together with any such interest
and penalties, being hereafter collectively referred to as the “Excise Tax”),
then:
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(i) if
the
difference of (x) the amount of the Payment, less (y) the amount of
the Excise Tax, if any, imposed upon the Payment (such net amount referred
to
herein as “After-Tax Payment Amount”) would be greater by reducing the amount of
the lump-sum severance payment otherwise payable to Executive to the minimum
extent necessary (but in no event to less than zero) so that no portion of
the
Payment, after such reduction, constitutes an Excess Parachute Payment (as
defined in Section 280G(b) of the Code, or any successor provision thereto),
then the lump-sum severance payment shall be so reduced (the amount of such
reduction shall be referred to as the “Excess Amount”); and
(ii) If
the
After-Tax Payment Amount would be greater without the reduction referred to
in
Subsection 5(a)(i) above, then there shall be no reduction in the lump-sum
severance payment by application of this Section 5.
(b) All
determinations required to be made under this Section 5, including the After-Tax
Payment Amount, whether an Excise Tax is payable by Executive and the amount
of
such Excise Tax and whether a reduction in the amount of the lump-sum
severance payment
is to be
made and the amount of such reduction, if any, shall be made (i) by Xxxxxx,
Xxxxxxxx & Xxxxxxxxx (or its successor) (the “Accounting Firm”), regardless
of any services that the Accounting Firm has performed or may be performing
for
the
Company,
or (ii)
if Xxxxxx, Xxxxxxxx & Xxxxxxxxx (or its successor) is serving as accountant
or auditor for the individual, entity or group effecting a Change in Control,
or
cannot (because of limitations under applicable law or otherwise) make the
determinations required to be made under this Section 5, then by another
recognized accounting firm selected by Executive and reasonably acceptable
to
the Company (which accounting firm shall then be the “Accounting Firm”
hereunder). The Company, or Executive if he selects the Accounting Firm, shall
direct the Accounting Firm to submit its determination and detailed supporting
calculations to both the Company and Executive within 30 calendar days after
Executive’s termination of employment, if applicable, and any such other time or
times as may be requested by the Company or Executive. Any
determination by the Accounting Firm as to whether any reduction in the amount
of the lump-sum severance payment is required pursuant to this Section 5 shall
be binding upon Executive and the Company. The federal, state and local income
or other tax returns filed by Executive and the Company shall be prepared and
filed on a basis consistent with such determinations and calculations. The
Company shall pay the lump-sum severance payment, as reduced or not reduced
pursuant to the final determination of the Accounting Firm, to you no later
than
the later of (x) the time otherwise required hereunder or (y) five
business days after receipt of such determination.
If the
Accounting Firm determines that no Excise Tax is payable by Executive, it shall,
at the same time as it makes such determination, furnish the Company and
Executive an opinion that Executive have substantial authority not to report
any
Excise Tax on Executive’s federal, state or local income or other tax return.
(c) As
a
result of the uncertainty in the application of Section 4999 of the Code (or
any
successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any determination
by
the Accounting Firm hereunder, it is possible that pursuant to a final
determination of a court or an Internal Revenue Service proceeding which has
been finally and conclusively resolved, that an Excess Parachute Payment was
received by Executive which would have been intended to be reduced by the Excess
Amount pursuant to Subsection 5(a)(i) above, then the Excess Amount shall be
deemed an overpayment and Executive shall repay the Excess Amount to the Company
on demand (but no less than ten days after Executive receives written
demand).
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(d) The
Company and Executive shall each provide the Accounting Firm access to and
copies of any books, records and documents in the possession of the Company
or
Executive, as the case may be, reasonably requested by the Accounting Firm,
and
otherwise cooperate with the Accounting Firm in connection with the preparation
and issuance of the determinations and calculations contemplated by Subsection
5(b). Any determination by the Accounting Firm as to the calculation or amount
of any payment or reduction shall be binding upon the Company and
Executive.
(e) The
fees
and expenses of the Accounting Firm for its services in connection with the
determinations and calculations contemplated by Subsection 5(b) shall be borne
by the Company.
6. Outplacement
and Employment Search Services.
If
a
Change in Control of the Company occurs and within the specified period
thereafter Executive’s employment with the Company is terminated whether by
Executive for Good Reason or by the Company without Cause, the Company shall
provide Executive, at the Company’s expense, which shall not exceed 25% of
Executive’s base compensation in effect as of the effective time, outplacement
and employment search services with a firm selected by Executive.
7. No
Mitigation Obligation.
The
Company hereby acknowledges that it will be difficult and may be impossible
for
the Executive to find reasonably comparable employment following the termination
date. Accordingly, the payment of the severance compensation by the Company
to
the Executive in accordance with the terms of this Agreement is hereby
acknowledged by the Company to be reasonable, and the Executive will not be
required to mitigate the amount of any payment provided for in this Agreement
by
seeking other employment or otherwise, nor will any profits, income, earnings
or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or
otherwise.
8. Legal
Fees and Expenses.
It
is the
intent of the Company that the Executive not be required to incur legal fees
and
the related expenses associated with the interpretation, enforcement or defense
of Executive’s rights under this Agreement by litigation or otherwise because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Executive hereunder. Accordingly, if it should
appear to the Executive that the Company has failed to comply with any of its
obligations under this Agreement or in the event that the Company or any other
person takes or threatens to take any action to declare this Agreement void
or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Executive any or all of the benefits
provided or intended to be provided to the Executive hereunder, the Company
irrevocably authorizes the Executive from time to time to retain counsel of
Executive’s choice, at the expense of the Company as hereafter provided, to
advise and represent the Executive in connection with any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any litigation or other legal action, whether by or against the Company
or
any director, officer, shareholder or other person affiliated with the Company,
in any jurisdiction.
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9. Continuing
Obligations.
(a) The
Executive hereby agrees that all documents, records, techniques, business
secrets and other information which have come into his possession from time
to
time during his employment with the Company shall be deemed to be confidential
and proprietary to the Company and, except for personal documents and records
of
the Executive, shall be returned to the Company. The Executive further agrees
to
retain in confidence any confidential information known to him concerning the
Company and its subsidiaries and their respective businesses so long as such
information is not publicly disclosed, except that Executive may disclose any
such information required to be disclosed in the normal course of his employment
with the Company or pursuant to any court order or other legal
process.
(b) If
a
Change in Control of the Company occurs and within the specified period
thereafter Executive’s employment with the Company is terminated either by
Executive for Good Reason or by the Company without Cause, then the Company
shall, to the fullest extent permitted by law, honor all of the Company’s
obligations to indemnify and hold Executive harmless (whether pursuant to the
Company’s Amended and Restated Certificate of Incorporation, By-Laws, individual
indemnity agreements, applicable laws or otherwise), including any obligations
to advance funds against any cost or expenses (including advancing attorneys’
fees and expenses in advance of the final disposition of any claim, suit,
proceeding or investigation to Executive to the fullest extent permitted by
law), judgments, fines, losses, claims, damages, liabilities and amounts paid
in
settlement in connection with any actual or threatened claim, action, suit,
proceeding or investigative, whether civil, criminal, administrative or
investigative, arising out of, relating to or in connection with any action
or
omission occurring or alleged to have occurred relating to or in connection
with
any action or omission in connection with Executive’s employment with the
Company. In addition, the Company shall continue to provide directors and
officers liability coverage for Executive’s benefit in the same maximum amount,
and on substantially the same terms and conditions, as the policy currently
in
effect with respect to the Company’s directors and officers, for a period of at
least six years.
10. Term.
This
Agreement will be effective and binding as of the date first above written
immediately upon its execution, but, anything in this Agreement to the contrary
notwithstanding, this Agreement will not be operative unless and until a Change
in Control occurs. Upon the occurrence of a Change in Control at any time during
the Term (as defined below), without further action, this Agreement shall become
immediately operative and may not be terminated during the two-year period
commencing on the effective date of the Change in Control. For purposes of
this
Agreement, “Term” means the period commencing as of the date first above written
and expiring as of the later of (i) the first anniversary of the date first
above written or (ii) the second anniversary of the first occurrence of a Change
in Control; provided, however, that (A) commencing on the first anniversary
of
the date first above written and each anniversary date thereafter, the Term
of
this Agreement will automatically be extended for an additional one year unless,
not later than 180 days preceding each such anniversary date, the Company or
the
Executive shall have given notice that the Company or the Executive, as the
case
may be, does not wish to have the Term extended and (B) if, prior to a Change
in
Control, the Executive ceases for any reason to be an employee of the Company
and any subsidiary, thereupon without further action the Term shall be deemed
to
have expired and this Agreement will immediately terminate and be of no further
effect. For purposes of this Section 10, the Executive shall not be deemed
to
have ceased to be an employee of the Company and any subsidiary by reason of
the
transfer of Executive’s employment between the Company and any subsidiary, or
among any subsidiaries.
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11. Successors;
Binding Agreement.
(a) The
Company will require any successor in a Change in Control to expressly assume
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. Failure of the Company to obtain such assumption and agreement prior
to
the effectiveness of any such succession shall be a material breach of this
Agreement and shall entitle Executive to compensation from the Company in the
same amount and on the same terms as Executive would be entitled to hereunder
if
he terminated his employment for Good Reason following a Change in Control
of
the Company, except that for purposes of implementing the foregoing, the date
on
which any such succession becomes effective shall be deemed his Date of
Termination.
(b) This
Agreement shall inure to the benefit of and be enforceable by Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Unless otherwise provided herein, if
Executive should die while any amount would still be payable to him hereunder,
all such amounts shall be paid in accordance with the terms of this Agreement
to
his devisee, legatee or other designee or, if there is no such designee, to
his
estate.
12. Notice.
For the
purpose of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by overnight mail through a reputable overnight carrier
or by United States certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notice to the Company shall be directed to the
attention of the Chief Executive Officer with a copy to the General Counsel
of
the Company, or to such other address as either party may have furnished to
the
other in writing, except that notice of change of address shall be effective
only upon receipt.
13. Amendments;
Waiver.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by
Executive and the Chairman of the Board of Directors or the Chairman’s designee.
No provision of this Agreement may be modified, waived, or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by
Executive and such officer as may be specifically designated by the Board of
Directors of the Company. 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 provisions or conditions at the same or at any prior or
subsequent time.
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14. Other
Plans, etc.
If the
terms of this Agreement are inconsistent with the provisions of any other plan,
program, policy, contract or arrangement of the Company, to the extent such
plan, program, policy, contract or arrangement may be amended by the Company,
the terms of this Agreement will be deemed to so amend such plan, program,
policy, contract or arrangement, and the terms of this Agreement will
govern.
15. Entire
Agreement.
No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter of this Agreement have been made by either party
which is not expressly set forth in this Agreement.
16. Governing
Law and Venue.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Michigan without regard to conflict
of
law provisions. Any dispute under this Agreement shall be resolved in the state
court in Grand Traverse County, Michigan or, if in the federal courts, in
federal court in the Western District of Michigan, in Grand Rapids,
Michigan.
17. Validity.
The
invalidity or unenforceability of any provision 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.
18. Pronouns.
Pronouns
stated in either the masculine, feminine or neuter gender shall include the
masculine, feminine or neuter.
19. 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
instrument.
19. Prior
Agreement.
This
Agreement supersedes and terminates any and all prior Executive termination
benefits agreements by and among Company and the Executive.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first above set forth, thereby mutually and
voluntarily agreeing that this Agreement supersedes and replaces any prior
similar agreements for such termination benefits.
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AURORA
OIL & GAS CORPORATION
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By:
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Its:
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“EXECUTIVE”
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By:
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