CONSULTING AGREEMENT
Exhibit
10.1
This
consulting agreement (this "Agreement")
is
dated April 9, 2007, and is between Xxxx X. Xxxxxx ("Xxxxxx")
and
Unit Corporation (the "Corporation").
Xxxxxx
and the Corporation are collectively referred to as the "Parties."
WHEREAS,
on December 17, 2004, the Parties entered into a consulting agreement (the
"Original
Agreement");
WHEREAS,
on April 1, 2006, the Original Agreement expired according to its
terms;
WHEREAS,
on April 12, 2006, the Parties renewed the Agreement for a one year term
effective April 1, 2006;
WHEREAS,
the Parties desire to again enter into a consulting agreement under the
substantially same terms and conditions as the Original Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement, the Parties agree as follows:
1. Except
as
otherwise provided herein, this Agreement incorporates and adopts the terms
and
conditions of the Original Agreement attached hereto as Exhibit A.
2. This
Agreement is for a term of 1 year commencing as of April 1, 2007 unless it
is
sooner terminated by mutual written agreement of the parties. In the event
of
Xxxxxx’x death during the term of this Agreement, the obligations of the parties
under this Agreement will terminate.
3. In
the
event there is a conflict between the terms of this Agreement and that of
the
Original Agreement, the terms of this Agreement will govern.
IN
WITNESS WHEREOF,
each of
the parties has signed this Agreement, in the case of the Corporation by
its
duly authorized officer, as of the day and year set forth above.
| Unit Corporation | ||
|
/s/
Xxxx X. Xxxxxx
|
/s/ Xxxx X. Xxxxxx | |
| Xxxx X. Xxxxxx | Xxxx X. Xxxxxx, Senior Vice President |
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EXHIBIT
A
This
consulting agreement is dated December 17, 2004, and is between Xxxx X. Xxxxxx
("Xxxxxx")
and
Unit Corporation, a Delaware corporation (the "Corporation").
Xxxxxx
has elected to retire as an employee and Chief Executive Officer of the
Corporation effective April 1, 2005 and will cease to be an officer of the
Corporation as of that date.
The
board
of directors of the Corporation wishes to secure the services of Xxxxxx as
a
consultant to the Corporation and Xxxxxx is willing to act in that capacity
following his retirement.
The
Corporation and Xxxxxx wish to enter into this agreement to describe their
obligations to each other and the scope of Xxxxxx'x services to the Corporation
as an independent contractor and consultant to the Corporation after his
retirement.
The
parties therefore agree as follows:
1. Term
of Agreement.
This
agreement is for a term of 1 year starting on the date of Xxxxxx'x retirement
unless it is sooner terminated by mutual written agreement of the parties.
In
the event of Xxxxxx'x death during the term of this agreement, the obligations
of the parties under this agreement shall terminate.
The
parties, by mutual written agreement, may extend the term of this agreement
for
successive 1 year periods at any time before the termination of the then
existing term of this agreement.
2. Consulting
Fees.
In
consideration of Xxxxxx'x obligations under this agreement, the Corporation
shall pay Xxxxxx an annual consulting fee of $70,000, with payments to be
made
monthly in accordance with the Corporation's usual procedures. This compensation
shall be paid beginning as of Xxxxxx'x retirement date and ending on the
termination of this agreement.
During
the term of this agreement the Corporation shall make available to Xxxxxx
secretarial services and office space.
3. Consulting
Services.
3.1 Duration
and Scope.
During
the term of this agreement, Xxxxxx shall serve as a consultant to the
Corporation (including its subsidiaries, affiliates and joint venture partners).
Xxxxxx will provide the advice and counsel to the Corporation as reasonably
requested by the Chief Executive Officer of the Corporation. Unless otherwise
requested, Xxxxxx shall attend the weekly exploration meetings held by the
Corporation's subsidiary Unit Petroleum Company to assist in the decisions
normally made during those meetings.
3.2 Compliance
with Laws.
Xxxxxx
shall comply at his expense with all applicable provisions of workers'
compensation laws, unemployment compensation laws, federal social security
law,
the Fair Labor Standards Act, federal, state and local income tax laws, and
all
other applicable federal, state and local laws, regulations and codes applicable
to his status as an independent contractor.
3.3 Status.
As a
consultant to the Corporation, Xxxxxx shall act as an independent contractor.
Xxxxxx shall not have the status of an employee of the Corporation. Xxxxxx
shall
be solely responsible for and shall pay all such amounts of applicable federal
and state income and self employment taxes. Except as otherwise provided
in this
agreement, Xxxxxx shall not be eligible to participate in any employee benefit,
group insurance or compensation plans or programs maintained by the Corporation;
provided,
however,
that
any rights that Xxxxxx may have under these plans or programs because of
his
prior status as an employee and officer of the Corporation (or his status
as a
director of the Corporation) shall not be affected by this agreement. The
Corporation shall not provide Social Security, unemployment compensation,
disability insurance, workers ' compensation or similar coverage, or any
other
statutory employment benefit, to Xxxxxx.
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3.4 Reimbursement
of Reasonable Expenses.
On
presentment to the Corporation of appropriate documentation of his expenses,
the
Corporation shall reimburse Xxxxxx under guidelines similar to those applicable
to the Corporation's officers for reasonable expenses incurred by Xxxxxx
during
the performance of his consulting services.
4. Protection
of the Corporation's Interests.
4.1 Protection
of Trade Secrets.
For the
term of this agreement, Xxxxxx shall not, without the prior written consent
of
the Corporation, disclose or use for any purpose (except in the course of
his
consulting services with the Corporation and in furtherance of the Corporation's
business) confidential information or proprietary data of the Corporation,
its
subsidiaries, affiliates and joint venture partners, except as required by
applicable law or legal process. Xxxxxx agrees to deliver to the Corporation
at
the termination of this agreement, or at such other time as the Corporation
may
request, all memoranda, notes, plans, records, reports and other documents
(and
copies thereof) relating to the business of the Corporation, its subsidiaries,
affiliates and joint venture partners, that Xxxxxx may then possess or have
under his control.
4.2 Limitation
on Services Provided to Others.
During
the term of this agreement, Xxxxxx shall not, directly or
indirectly:
(a) Engage
in
any business or activity in which the Corporation or any subsidiary, affiliate
or joint venture partner of the Corporation is engaged (provided, however,
that
the purchase, sale and leasing of oil and gas mineral interests or participating
in the drilling of oil and gas xxxxx by Xxxxxx shall not be deemed to be
a
violation of this provision but nothing in this agreement will relieve Xxxxxx
of
any fiduciary duties he may owe to the Corporation); nor
(b) Be
employed by, render services of any kind to, advise or receive compensation
in
any form from, nor invest or participate in any manner or capacity in, any
entity or person that directly or indirectly engages in such business or
activity.
This
Subsection will not preclude investments in a corporation whose stock is
traded
on a public market and of which Xxxxxx owns less than a significant
interest.
4.3 Nonsolicitation.
During
the term of this agreement, Xxxxxx shall not, directly or
indirectly:
(a) Attempt
to cause any employee of the Corporation or any subsidiary, affiliate or
joint
venture partner to leave his or her employment; nor
(b) Knowingly
advise or provide information to any person in connection with an attempt
by
such person to cause any employee of the Corporation or any subsidiary,
affiliate or joint venture partner to leave his or her employment.
4.4 Modification
by Court.
If any
of the covenants contained in subsections 4.1, 4.2 and 4.3 above is determined
to be unenforceable because of the duration of the covenant or the area covered
by it, then the court or arbitrator making the determination shall have the
power to reduce the duration of the covenant or the area covered by it, and
the
covenants, in their reduced form, will be enforceable.
4.5 Different
Jurisdictions.
If any
of the covenants set forth in Subsections 4.1, 4.2 and 4.3 above is determined
to be wholly unenforceable by the courts or arbitrators of any domestic or
foreign jurisdiction, then the determination shall not bar or in any way
affect
the Corporation's right to relief in the courts or in arbitration proceedings
of
any other jurisdiction with respect to any breach of such covenants in such
other jurisdiction. Such covenants, as they relate to each jurisdiction,
shall
be severable into independent covenants and shall be governed by the laws
of the
jurisdiction where a breach occurs.
4.6 Purpose
of Covenants.
Xxxxxx
and the Corporation agree that the covenants in Subsections 4.1, 4.2 and
4.3
above are reasonable and necessary to protect the confidentiality of the
trade
secrets and other proprietary information concerning the business of the
Corporation and its subsidiaries, affiliates and joint venture partners that
was
acquired by Xxxxxx as an employee of the Corporation and during the course
of
his consulting services under this Agreement.
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4.7 Repayment
of Gains.
Xxxxxx
and the Corporation agree that the principal purpose of entering into this
agreement was to motivate Xxxxxx to contribute to the Corporation's success
and
to increase the Corporation's value. Xxxxxx and the Corporation also agree
that
any breach of the covenants set forth in Subsections 4.1, 4.2 and 4.3 above
would be contrary to the purpose of this agreement. In the event that Xxxxxx
takes any action contrary to any of the covenants set forth in Subsections
4.1,
4.2 and 4.3 above, Xxxxxx shall on demand pay the Corporation an amount equal
to
the total amount of all cash compensation paid to Xxxxxx under this agreement,
whether that cash compensation was paid before or after the time when Xxxxxx
takes the contrary action.
5. Miscellaneous
Provisions.
5.1 Waiver.
No
provisions of this agreement can be modified, waived or discharged unless
the
modification, waiver or discharge is agreed to in writing and signed by Xxxxxx
and the Corporation. No waiver by either party of any breach of, or of
compliance with, any condition or provision of this agreement by the other
party
shall be considered a waiver of any other condition or provision or of the
same
condition or provision at another time.
5.2 Assignment
and Successors; The Corporation.
The
Corporation shall require any successor (whether direct or indirect and whether
by purchase, lease, merger, consolidation, liquidation or otherwise) to all
or
substantially all of the Corporation's business and/or assets, by an agreement
in substance and form satisfactory to Xxxxxx, to assume this agreement and
to
perform this agreement in the same manner and to the same extent as the
Corporation would be required to perform it in the absence of a succession.
For
all purposes under this agreement, the term "Corporation" shall include any
successor to the Corporation's business and/or assets that executes and delivers
the assumption agreement described in this Subsection 5.2 or that becomes
bound
by this agreement by operation of law. The rights and benefits of Xxxxxx
under
this agreement may not be anticipated, assigned, alienated, or subject to
attachment, garnishment, levy, execution, or other legal or equitable process
except as required by law. Any attempt by Xxxxxx to anticipate, alienate,
assign, sell, transfer, pledge, encumber, or charge the same shall be void.
5.3 Arbitration.
Any
dispute or controversy arising under or in connection with this agreement
shall
be settled exclusively by arbitration in Tulsa, Oklahoma, in accordance with
the
rules of the American Arbitration Association then in effect. Judgment may
be
entered on the arbitrator's award in any court having jurisdiction. Within
30
days following the conclusion of any arbitration proceeding (notwithstanding
any
appeal), the Corporation shall pay all reasonable attorneys' fees and related
expenses incurred by Xxxxxx in connection with any such arbitration;
provided,
however,
that
the Corporation's reimbursement obligation under this sentence shall be limited
to $15,000 in the event that the Corporation is the prevailing party in the
action and $30,000 if Xxxxxx is the prevailing party in the action. For purposes
of the preceding sentence, if there is disagreement concerning who is the
prevailing party, then the parties shall request that the arbitrator hearing
the
dispute determine the point and the parties agree to be bound by the
arbitrator's determination.
5.4 Taxes.
All
payments made under this agreement shall be subject to any required withholding
of applicable taxes.
5.5 Whole
Agreement.
No
agreements, representations or understandings (whether oral or written and
whether express or implied) which are not expressly set forth in this agreement
have been made or entered into by either party with respect to the subject
matter hereof.
5.6 Choice
of Law.
The
validity, interpretation, construction and performance of this agreement
shall
be governed by the laws of the State of Oklahoma.
5.7 Severability.
The
invalidity or unenforceability of any provision or provisions of this agreement
shall not affect the validity or enforceability of any other provision, which
shall remain in full force and effect.
5.8 Delivery
of Notice.
Notices
and all other communications contemplated by this agreement shall be in writing
and shall be deemed to have been duly given when personally delivered or
when
mailed by certified mail, return receipt requested and postage prepaid. In
the
case of the Xxxxxx, mailed notices shall be addressed to him at the home
address
which he most recently communicated to the Corporation in writing. In the
case
of the Corporation, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
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IN
WITNESS WHEREOF, each
of
the parties has signed this agreement, in the case of the Corporation by
its
duly authorized officer, as of the day and year first above
written.
/s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx
Unit
Corporation
/s/
Xxxxx X. Xxxxxxxx
By:
Xxxxx
X. Xxxxxxxx
Its:
President
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