EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") between Xxxxxx Petroleum
Corporation (the "Company"), and XxXxxx X. Xxxxxx (the "Employee") is dated
as of January 14, 2000 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, Employee was previously employed by the Company prior to the
Effective Date;
WHEREAS, the Company is being restructured as of the Effective Date
(the "Restructuring");
WHEREAS, as a condition to the closing of the Restructuring, the
agreements governing the Restructuring require the Company to offer
Employee employment, and Employee to accept employment with the Company; on
the terms and conditions set forth herein;
WHEREAS, during the course of his employment with the Company,
Employee has had and will continue to have access to certain Confidential
Information (as hereinafter defined) relating to the business and
operations of the Company and its subsidiaries that is non-public,
confidential or proprietary in nature and is particularly useful in the Oil
Exploration and Production Business; and
WHEREAS, in view of the Company's need to be protected against
disclosures by Employee of Confidential Information, the Company and
Employee desire, among other things, to prohibit Employee from disclosing
or utilizing, outside the scope and term of his employment, any
Confidential Information and to restrict Employee's ability to compete with
the Company for a limited period of time.
NOW, THEREFORE, for and in consideration of the foregoing premises,
the Company's employment of Employee, and the Company's payment of wages,
salary and other compensation to Employee, the parties hereto agree as
follows:
ARTICLE I.
EMPLOYMENT CAPACITY AND TERM
1. PRIOR EMPLOYMENT AGREEMENT. Effective as of the Effective Date,
this Agreement supersedes any prior employment agreement between the
Company and Employee. Employee hereby releases the Company, from any
further liability to Employee arising from or relating to Employee's former
employment by the Company, whether known or unknown, liquidated or
contingent, contractual or imposed by law.
2. CAPACITY AND DUTIES OF EMPLOYEE. The Company hereby employs
Employee to render services on behalf of the Company as Chief Executive
Officer and Chief Operating Officer. As the Chief Executive Officer and
the Chief Operating Officer, Employee shall perform such duties as are
assigned to the individual(s) holding such title(s) by the Board of
Directors of the Company (the "Board"). Employee shall at all times report
directly to the Board or to the Board's designee and discharge his duties
under the direction, control and supervision of the Board or the Board's
designee. During the Employment Term (defined below), Employee may not be
given a lesser title and shall report only to the Board or to a party or
parties designated by the Board.
3. EMPLOYMENT TERM. The term of this Agreement (the "Employment
Term") shall commence on the Effective Date and shall continue for twenty-
seven (27) months and two (2) weeks thereafter, subject to any earlier
termination of Employee's status as an employee pursuant to this Agreement.
4. DEVOTION TO RESPONSIBILITIES.
Employee shall devote such time and attention to rendering
services on behalf of the Company as shall be necessary in order for him to
efficiently perform his duties under this Agreement; provided, however,
that nothing contained herein shall prohibit Employee from (a) serving as a
volunteer member of the board of directors, board of trustees or the like
of any for-profit or non-profit entity that does not compete with the
Company, or performing volunteer services of any type for any civic or
community entity, (b) investing his assets in such form or manner as shall
require no more than nominal services on the part of Employee in the
operation of the business of the entity in which such investment is made,
(c) serving in various capacities with, and attending meetings of, industry
or trade groups and associations; or (d) engaging in the Oil Exploration
and Production Business through Xxxxxx Petroleum Corporation II as
permitted by Article V, Section 3 of this Agreement.
5. LOCATION. Employee shall perform Employee's duties under this
Agreement at the Company's business office or elsewhere in the New Orleans,
Louisiana metropolitan area as directed by the Board. Employee shall not
be required to relocate Employee's residence more than 50 miles during the
Employment Term, but Employee shall be available for travel required by the
duties of Employee's position.
ARTICLE II.
COMPENSATION AND BENEFITS
1. SALARY. The Company shall pay Employee a salary ("Base Salary")
at the rate of TWO HUNDRED TWENTY-FIVE THOUSAND AND NO/100 ($225,000.00)
DOLLARS per calendar year, payable to Employee at such intervals as other
salaried employees of the Company are paid. The salary due during any
partial calendar year shall be prorated by multiplying the salary amount by
a fraction whose numerator is the number of days in such calendar year
which fall during the Employment Term and whose denominator is 365.
2. BONUS. In addition to the Base Salary, Employee shall be
eligible to receive an annual incentive bonus, the amount of which shall be
determined based upon the achievement of certain goals set forth on Exhibit
"A" to this Agreement (the "Incentive Bonus"). The Incentive Bonus shall
be payable, with respect to each fiscal year of the Company, not later than
90 days following the end of such fiscal year.
3. WARRANTS. On the Effective Date, as consideration for the
execution of this Agreement by Employee and other good and valuable
consideration, the Company shall grant Employee up to 33,700 Series A
Warrants, 101,100 Series B Warrants, 101,100 Series C Warrants and 101,100
Series D Warrants (each as defined in the Warrant Agreement), each warrant
entitling Employee to purchase one share of the Company's no par common
stock pursuant to the terms of the Company's Warrant Agreement dated the
date hereof. The actual number of warrants to be granted to Employee shall
be determined pursuant to the terms and provisions of the Company's Joint
Plan of Reorganization confirmed by order of the Bankruptcy Court on
December 29, 1999. Notwithstanding anything in this Agreement to the
contrary, the warrants granted Employee are fully vested as of the date of
this Agreement and are not subject to cancellation, modification or
amendment in any manner in the event of the termination of Employee's
status as an employee for any reason whatsoever prior to the expiration of
the Employment Term.
4. STOCK OPTIONS. If the Board of Directors of the Company adopts a
stock option plan for the benefit of executive officers and directors of
the Company while Employee is engaged by the Company, Employee shall be
entitled to participate in such plan on the same terms provided other
senior executive officers of the Company. Employee acknowledges that the
Board of Directors of the Company is not obligated to adopt such a plan at
any time during the Employment Term.
5. BENEFITS. In addition to the Base Salary and the Incentive
Bonus, the Company shall provide Employee with the following fringe
benefits and perquisites.
(a) Group medical, dental, disability and life insurance benefit
package, such benefits to be on the same terms provided other senior
executive officers of the Company;
(b) All other benefit programs on the same terms provided other
senior executive officers of the Company;
(c) Sick leave, such benefits to be on the same terms other
senior executives of the Company;
(d) Four weeks (I.E., twenty (20) business days) of annual paid
vacation; and
(e) Office space, office equipment, and such other facilities
and support services as are adequate for the performance of Employee's
duties hereunder.
6. D&O INSURANCE. The Company agrees to maintain directors and
officers liability insurance with coverage limits not less than the
coverage in effect immediately prior to the Effective Date ("D&O Policy")
and to designate the Employee as a named insured on all of the Company's
insurance policies.
7. EXPENSES. The Company shall reimburse Employee for reasonable
out-of-pocket expenses incurred from time to time on behalf of the Company
or any subsidiary in the performance of his duties under this Agreement,
upon the presentation of such supporting invoices, documents and forms as
the Company reasonably requests.
ARTICLE III.
TERMINATION OF EMPLOYMENT
1. DEATH. Employee's status as an employee shall terminate
immediately and automatically upon Employee's death during the Employment
Term.
2. DISABILITY. Employee's status as an employee may be terminated
for "Disability" as follows:
(a) Employee's status as an employee shall terminate if Employee
has a disability and the disability insurer has determined that Employee is
entitled to receive the maximum benefits under the Company's long-term
disability insurance policy in effect at the time. Any such termination
shall become effective on the first day on which Employee is eligible to
receive payments under such policy (or on the first day that he would be so
eligible, if he had applied timely for such payments).
(b) If the Company has no long-term disability plan in effect or
if the disability insurer determines that Employee is not entitled to
receive the maximum benefits and (i) Employee has been incapable because of
physical or mental illness from discharging his duties and responsibilities
on a full time basis under this Agreement for a period of 90 consecutive
calendar days and (ii) a duly qualified physician chosen by the Company and
acceptable to Employee or his legal representatives so certifies in
writing, the Board shall have the power to determine that Employee has
become disabled. If the Board makes such a determination, the Company
shall have the continuing right and option, during the period that such
disability continues, and by notice given in the manner provided in this
Agreement, to terminate Employee's status as an employee. Any such
termination shall become effective 10 calendar days after such notice of
termination is given, unless within such 10 calendar day period, Employee
becomes capable of rendering services of the character contemplated hereby
(and a physician chosen by the Company and acceptable to Employee or his
legal representatives so certifies in writing) and Employee in fact resumes
such services.
(c) The "Disability Effective Date" shall mean the date on which
termination of employment becomes effective due to Disability.
3. CAUSE. The Company may terminate Employee's status as an
employee for Cause. As used herein, termination by the Company of
Employee's status as an employee for "Cause" shall mean termination as a
result of (a) Employee's conviction for a felony or misdemeanor involving
fraud, dishonesty or moral turpitude, (b) Employee's willful or intentional
breach of this Agreement which results to the detriment of the Company, (c)
Employee's gross negligence which results to the detriment of the Company
or (d) Employee's violation of the rules and regulations of the Company, a
copy of which is attached as Exhibit "B," which violation is not remedied
within ten (10) calendar days after the Company provides notice to Employee
of the breach of such rules and regulations. Cause shall be determined in
good faith by a vote of a majority of the entire membership of the Board of
Directors of the Company at a meeting of the Board called and held for such
purpose (after reasonable notice to Employee and an opportunity for
Employee, together with counsel, to be heard before the Board).
4. GOOD REASON. Upon not less than 45 days prior written notice to
the Company, Employee may terminate his status as an employee for Good
Reason. As used herein, the term "Good Reason" shall mean the occurrence of
any of the following during the Employment Term:
(a) Assignment to Employee of any additional duties or
responsibilities inconsistent with Employee's current position without
Employee's consent;
(b) Reduction of Employee's Base Salary or benefits in violation
of this Agreement;
(c) Assignment of Employee to a principal place of business
which is fifty (50) miles or more from Employee's principal place of
business as of the Effective Date; or
(d) The Company's Failure to honor the terms and conditions of
this Agreement which is not cured within ten (10) calendar days after
Employee provides written notice to the Company of such failure.
Good Reason will NOT include the voluntary resignation of Employee for
any reason not set forth in this Article III, Section 4.
5. VOLUNTARY TERMINATION BY THE COMPANY. Upon not less than 45
calendar days prior written notice to Employee, the Company may terminate
Employee's status as an employee for other than death, Disability or Cause,
with or without reason.
6. VOLUNTARY TERMINATION BY EMPLOYEE. Upon not less than 45
calendar days prior written notice to the Company, Employee may terminate
Employee's status as an employee for other than Good Reason, with or
without reason.
7. NOTICE OF TERMINATION. Any termination under the terms of this
Agreement (other than termination upon the death of Employee), shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Article VI, Section 2 of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice that (a)
indicates the specific termination provision in this Agreement relied upon,
(b) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provisions so indicated, and (c) if the Date of
Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date. The failure by Employee or the
Company to set forth in the Notice of Termination any fact or circumstance
that contributes to a showing of Good Reason, Disability or Cause shall not
negate the effect of the notice nor waive any right of Employee or the
Company, respectively, hereunder or preclude Employee or the Company,
respectively, from asserting such fact or circumstance in enforcing
Employee's or the Company's rights hereunder.
8. DATE OF TERMINATION. "Date of Termination" means (a) if
Employee's employment is terminated by reason of his death or Disability,
the Date of Termination shall be the date of death of Employee or the
Disability Effective Date, as the case may be, (b) if Employee's employment
is terminated by the Company for Cause, ten (10) days following the notice
contemplated by Article III, Section 3 of this Agreement, (c) in all other
cases, the Date of Termination shall be 45 days after the delivery of the
Notice of Termination.
ARTICLE IV.
OBLIGATIONS UPON TERMINATION
1. GENERAL OBLIGATIONS. Upon the termination of Employee's status
as an employee of the Company pursuant to the terms of this Agreement, this
Agreement shall terminate without further obligations on the part of the
Company, Employee and/or Employee's legal representatives other than:
(a) those obligations and benefits set forth in the further
provisions of this Article IV;
(b) those obligations imposed by law on either the Company,
Employee and/or Employee's legal representatives;
(c) the return by Employee, or, in the case of Employee's death,
Employee's legal representatives, to the Company of any materials
containing Confidential Information; and
(d) the obligations of the Company under any employee benefit
plans of the Company which apply to Employee prior to the Date of
Termination.
2. TERMINATION BENEFITS. Upon termination pursuant to the terms of
this Agreement, Employee will be entitled to one or more of the following
benefits:
(a) TERMINATION BENEFIT A: accrued Base Salary as of the Date of
Termination (the "Accrued Salary Benefit");
(b) TERMINATION BENEFIT B: annual Base Salary for the remaining
months of the Employment Term (the "Remaining Salary Benefit"); and/or
(c) TERMINATION BENEFIT C: group medical, dental, disability and
life insurance benefits for Employee and/or Employee's family on the same
terms provided other senior executive officers of the Company for the
period commencing on the Date of Termination and ending on the later to
occur of (i) the 18 month anniversary of the Date of Termination or (ii)
the original expiration date of the Employment Term (the "Insurance
Benefit").
3. DEATH. If Employee's status as an employee is terminated by
reason of Employee's death, Employee's heirs and legatees shall receive the
Accrued Salary Benefit and the Remaining Salary Benefit in addition to any
other benefits due under Section 1 above.
4. DISABILITY. If Employee's status as an employee is terminated by
reason of Employee's Disability, Employee shall receive the Accrued Salary
Benefit and the Remaining Salary Benefit in addition to any other benefits
due under Section 1 above.
5. TERMINATION BY COMPANY FOR REASONS OTHER THAN DEATH, DISABILITY
OR CAUSE; TERMINATION BY EMPLOYEE FOR GOOD REASON. If the Company
terminates Employee's status as an employee for reasons other than death,
Disability or Cause, or Employee terminates his employment for Good Reason,
Employee shall receive the Accrued Salary Benefit, the Remaining Salary
Benefit, and the Insurance Benefit in addition to any other benefits due
under Section 1 above.
6. CAUSE. If Employee's status as an employee is terminated by the
Company for Cause, Employee shall receive the Accrued Salary Benefit in
addition to any other benefits due under Section 1 above PROVIDED, HOWEVER,
that if the Company terminates Employee for Cause after a Change of
Control, Employee shall also receive the Remaining Salary Benefit and the
Insurance Benefit. A "Change of Control" shall mean the occurrence of any
of the following situations: (i) any person or other legal entity (other
than the Company's shareholders as of the Effective Date) becomes the
beneficial owner of fifty percent (50%) or more of the securities of the
Company, (ii) the merger of the Company into another corporate entity or
the consolidation of the Company with one or more corporations or (iii)
the sale by the Company of all or substantially all of its operating
assets.
7. TERMINATION BY EMPLOYEE FOR REASONS OTHER THAN GOOD REASON. If
Employee's status as an employee is terminated by Employee for reasons
other than Good Reason, Employee shall receive the Accrued Salary Benefit
in addition to any other benefits due under Section 1 above.
8. EXCISE TAX REIMBURSEMENT. If the payment or provision of any
termination benefits pursuant to this Article IV results in the imposition
of an excise tax under 4999 of the United States Internal Revenue
Code, the amount of the affected benefit to be paid to Employee will be
grossed up to an amount such that the net amount received by Employee
following the imposition of such an excise tax is equal to the amount that
Employee would have received had no such excise tax been imposed.
ARTICLE V.
NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Confidential Information" means any data of any nature and
in any form (including information that is electronically transmitted or
stored on any form of magnetic or electronic storage media) relating to the
past, current or prospective business or operations of the Company, and its
subsidiaries, whether produced by the Company and its subsidiaries or any
of its consultants, agents or independent contractors or by Employee, and
whether or not marked confidential, including without limitation
information relating to the Company's, and its subsidiaries' products and
services, hydrocarbon reserves, seismic information, drilling prospects,
production rates, business plans, business acquisitions, processes, product
or service research and development methods or techniques, training methods
and other operational methods or techniques, quality assurance procedures
or standards, operating procedures, files, plans, specifications,
proposals, drawings, charts, graphs, support data, trade secrets, supplier
lists, supplier information, purchasing methods or practices, distribution
and selling activities, consultants' reports, marketing and engineering or
other technical studies, maintenance records, employment or personnel data,
marketing data, strategies or techniques, financial reports, budgets,
projections, cost analyses, price lists, formulae and analyses, employee
lists, customer records, customer lists, customer source lists, proprietary
computer software, and internal notes and memoranda relating to any of the
foregoing. "Confidential Information" shall not include any information
which, at the time of disclosure, was or becomes generally available to the
public other than as a result of a disclosure by Employee.
(b) "Oil Exploration and Production Business" shall mean the
exploration for, development of and the production of hydrocarbons, and all
activities reasonably and necessarily related thereto.
2. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Until such time as
twenty-seven (27) months and two (2) weeks shall have elapsed from the
Effective Date, the Employee shall hold in a fiduciary capacity for the
benefit of the Company all Confidential Information which shall have been
obtained by Employee during Employee's employment with the Company and
shall use such Confidential Information solely within the scope of his
employment with and for the exclusive benefit of the Company. For time set
forth in the preceding sentence, Employee also agrees (a) not to
communicate, divulge or make available to any person or entity (other than
the Company) any such Confidential Information, except upon the prior
written authorization of the Company or as may be required by law or legal
process, and (b) to deliver promptly to the Company any Confidential
Information in his possession, including any duplicates thereof and any
notes or other records Employee has prepared with respect thereto. If the
provisions of any applicable law or the order of any court (including a
subpoena or other demand for information purporting to be made under
authority of any statute, regulation or order) would require Employee to
disclose or otherwise make available any Confidential Information, Employee
shall give the Company prompt prior written notice of such required
disclosure and an opportunity to contest the requirement of such disclosure
or apply for a protective order with respect to such Confidential
Information by appropriate proceedings.
3. LIMITED COVENANT NOT TO COMPETE. From the date of termination of
Employee's employment hereunder by the Company for Cause or by the Employee
without Good Reason until twenty-seven months and two weeks shall have
elapsed from the Effective Date, Employee agrees that he will restrict his
activities in the Louisiana Parishes set forth in Exhibit "C" hereto
(collectively, the "Subject Areas"), as follows:
(a) Employee shall not, directly or indirectly, for himself or
others, own, manage, operate, control, be employed in an executive,
managerial or supervisory capacity by, or otherwise engage or participate
in or allow his skill, knowledge, experience or reputation to be used in
connection with, the ownership, management, operation or control of, any
company or other business enterprise engaged in the Oil Exploration and
Production Business within any of the Subject Areas; provided, however,
that nothing contained herein shall prohibit Employee from making passive
investments as long as Employee does not beneficially own more than 2% of
the equity interests of a business enterprise engaged in the Oil
Exploration and Production Business within any of the Subject Areas. For
purposes of this paragraph, "beneficially own" shall have the same meaning
ascribed to that term in Rule 13d-3 under the Exchange Act.
(b) Employee shall not call upon any customer of the Company or
its subsidiaries for the purpose of soliciting, diverting or enticing away
the business of such person or entity, or otherwise disrupting any
previously established relationship existing between such person or entity
and the Company or its subsidiaries;
(c) Employee shall not solicit any supplier, lessor, licensor,
potential acquiree or any other person who has a business relationship with
the Company or its subsidiaries, or who on the Date of Termination is
engaged in discussions or negotiations to enter into a business
relationship with the Company or its subsidiaries, to discontinue or reduce
the extent of such relationship with the Company or its subsidiaries; and
(d) Employee shall not solicit any current employee of the
Company or any of its subsidiaries for hire, whether as an employee or
independent contractor.
The Company acknowledges that Employee is the President and the sole
owner and director of Xxxxxx Petroleum Corporation II, a Louisiana
corporation, and that Xxxxxx Petroleum Corporation II is engaged in the Oil
Exploration and Production Business. The Company agrees that Employee's
continuing relationship with Xxxxxx Petroleum Corporation II (as owner,
President, and director) and the conduct by Xxxxxx Petroleum Corporation II
of Oil Exploration and Production Business outside of the Subject Areas
will not constitute a violation by Employee of this Agreement, including
but not limited to the provisions of Article I, Section 4 or Article V,
Section 3 of this Agreement. In addition, the Company agrees that the
conduct by Xxxxxx Petroleum Corporation II of Oil Exploration and
Production Business in the Subject Areas with respect to prospects
presented by Employee to Board and either (i) rejected by the Board or (ii)
not approved by the Board within 60 days, will not constitute a violation
by Employee of this Agreement, including but not limited to the provisions
of Article I, Section 4 or Article V, Section 3 of this Agreement.
4. INJUNCTIVE RELIEF; OTHER REMEDIES. Employee acknowledges that a
breach by Employee of Section 2 or 3 of this Article V would cause
immediate and irreparable harm to the Company for which an adequate
monetary remedy does not exist; hence, Employee agrees that, in the event
of a breach or threatened breach by Employee of the provisions of Sections
2 or 3 of this Article V during or after the Employment Term, the Company
shall be entitled to injunctive relief restraining Employee from such
violation without the necessity of proof of actual damage or the posting of
any bond, except as required by non-waivable, applicable law. Nothing
herein, however, shall be construed as prohibiting the Company from
pursuing any other remedy at law or in equity to which the Company may be
entitled under applicable law in the event of a breach or threatened breach
of this Agreement by Employee, including without limitation the recovery of
damages and/or costs and expenses, such as reasonable attorneys' fees,
incurred by the Company as a result of any such breach.
5. USE OF THE XXXXXX NAME. Upon the earlier to occur of (a) six (6)
months from the Effective Date or (b) the Date of Termination, Employee
will have the option to require by written request that the Company remove
and discontinue use of the name "Xxxxxx" from the Company's name and
registrations. Employee shall retain all rights to use the name "Xxxxxx"
in any existing or subsequent companies or organizations.
6. EMPLOYEE'S UNDERSTANDING OF THIS ARTICLE. Employee hereby
represents to the Company that he has read and understands, and agrees to
be bound by, the terms of this Article. Employee acknowledges that the
geographic scope and duration of the covenants contained in Article V
Section 3 and Exhibit "C" are the result of arm's-length bargaining.
ARTICLE VI.
MISCELLANEOUS
1. BINDING EFFECT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any of its successors or assigns.
(b) This Agreement is personal to Employee and shall not be
assignable by Employee without the prior written consent of the Company
(there being no obligation to give such consent) other than such rights or
benefits as are transferred by will or the laws of descent and
distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) all or substantially all of the assets or businesses of the
Company (i) to assume unconditionally and expressly this Agreement and (ii)
to agree to perform all of the obligations under this Agreement in the same
manner and to the same extent as would have been required of the Company
had no assignment or succession occurred, such assumption to be set forth
in a writing reasonably satisfactory to Employee. In the event of any such
assignment or succession, the term "Company" as used in this Agreement
shall refer also to such successor or assign.
2. NOTICES. All notices hereunder must be in writing and shall be
deemed to have given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid,
return receipt requested, (c) a nationally recognized overnight courier
service or (d) telecopy transmission with confirmation of receipt. All
such notices must be addressed as follows:
If to the Company, to:
Xxxxxx Petroleum Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Chairman of the Board
If to Employee, to:
XxXxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
or such other address as to which any party hereto may have notified the
other in writing.
3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws. The Company and Employee
each hereby irrevocably consent to the exclusive jurisdiction of the state
and federal courts sitting in Louisiana. Each party irrevocably waives any
objection he or it may have as to the venue of any such suit, action or
proceeding brought in such a court or that such a court is an inconvenient
forum.
4. WITHHOLDING. Subject to Article IV, Section, Employee agrees
that the Company has the right to withhold, from the amounts payable
pursuant to this Agreement, all amounts required to be withheld under
applicable income and/or employment tax laws, or as otherwise stated in
documents granting rights that are affected by this Agreement.
5. SEVERABILITY. If any term or provision of this Agreement
(including without limitation those contained in Exhibits "A" through "C"),
or the application thereof to any person or circumstance, shall at any time
or to any extent be invalid, illegal or unenforceable in any respect as
written, Employee and the Company intend for any court construing this
Agreement to modify or limit such provision temporally, spatially or
otherwise so as to render it valid and enforceable to the fullest extent
allowed by law. Any such provision that is not susceptible of such
reformation shall be ignored so as to not affect any other term or
provision hereof, and the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as
to which it is held invalid, illegal or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
6. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach thereof.
7. REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to
all of the rights and remedies provided for in this Agreement, the parties
shall have all other rights and remedies provided to them by applicable
law, rule or regulation.
8. INDEMNITY FOR LEGAL FEES. Should Employee prevail in any cause
of action, suit, arbitration or other legal proceeding, which proceeding
was initiated in whole or in part to enforce the provisions of this
Agreement, the Company shall indemnify Employee for all costs, including
reasonable attorneys' fees, incurred by Employee in connection with such
cause of action, suit, arbitration or other legal proceeding.
9. COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an
employee of the Company, or to change or diminish his status during the
Employment Term, subject to the rights of Employee to claim the benefits
conferred by this Agreement.
10. JURY TRIAL WAIVER. THE PARIES HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT.
11. SURVIVAL. The rights and obligations of the Company and Employee
contained in Article V of this Agreement shall survive the termination of
the Agreement. Following the Date of Termination, each party shall have
the right to enforce all rights, and shall be bound by all obligations, of
such party that are continuing rights and obligations under this Agreement.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Employee have caused this
Agreement to be executed as of the Effective Date.
XXXXXX PETROLEUM CORPORATION
By: /s/ Xxxxxx Xxx
--------------------------------
Name: Xxxxxx Xxx
Its: V.P. - Treasurer
EMPLOYEE:
/s/ XxXxxx X. Xxxxxx
------------------------------------
XxXxxx X. Xxxxxx
