AGREEMENT
AMENDED AND RESTATED AGREEMENT, restated as of December 31, 1992 (the
"Agreement") between XXXX-XxXXX CORPORATION, a Delaware corporation having its
executive offices at Oklahoma City, Oklahoma (the "Company"), and X. X. Xxxxxx
residing in Oklahoma City, Oklahoma (the "Executive"). Unless otherwise
indicated, terms used herein are defined in Schedule A.
WHEREAS, the Executive is currently employed by the Company and/or its
Subsidiaries pursuant to an amended and restated agreement, restated as of
February 1, 1988 (the "Existing Agreement"); and
WHEREAS, the Executive and the Company's Board of Directors believe that
such Existing Agreement, which is a three-year self-renewing employment
agreement, should be amended and restated as of December 31, 1992; and
WHEREAS, the Company's Board of Directors has determined that it wishes
to continue the employment of the Executive and that it is appropriate to
reinforce the continued attention and dedication of the Executive to his
assigned duties without distraction in potentially disturbing circumstances
arising from the possibility of a Change of Control of the Company; and
WHEREAS, the Company and the Executive now wish to amend and restate the
Existing Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the Company and the Executive agree as follows:
1. Employment: The Company agrees to continue to employ the Executive
and he agrees to continue to serve the Company and its Subsidiaries, upon the
terms and conditions stated herein, for the term of employment commencing on the
date hereof and ending on January 31, 1996, unless prior to a Change of Control
such employment is involuntarily terminated hereunder for Reason or as a result
of the Executive's death or disability. The Company further agrees that if a
Change of Control occurs either before, on or after January 31, 1996, and the
Executive is employed by the Company immediately prior to such Change of
Control, the Company will not, prior to the third anniversary of the Change of
Control, terminate the Executive's employment with the Company except for Cause
or as a result of the Executive's death or Disability. Following a Change of
Control any involuntary termination of the Executive's employment hereunder for
any reason other than death shall be communicated by a Notice of Termination.
The Executive will be employed in an executive capacity and will perform the
duties of Vice President and Managing Director, Exploration, United Kingdom
Exploration Division or such other duties as may be assigned to him from time to
time by the Company.
The Executive shall devote substantially all of his business
time, attention, skill and efforts to the business of the Company and its
Subsidiaries while employed hereunder and shall perform the duties of his
position and any other duties assigned to him by the Company to the best of his
ability.
2. Compensation: As compensation for his services, the Company agrees to
pay the Executive, so long as he shall be employed hereunder, a salary
determined from time to time by the Company, but at a rate not less than
$158,760 per annum, payable either biweekly or in equal semimonthly installments
on the fifteenth and last day of the month, provided that if at any time while
the Executive is employed hereunder he should receive an increase in the annual
base salary being paid him by the Company, the above specified minimum salary
rate shall thereupon increase by a corresponding amount. The Executive shall
also be eligible for participation in any employee benefit plans and
compensation programs available to salaried employees or employees generally of
the Company or any Subsidiary that employs the Executive.
3. Noncompetition: The Executive agrees that at any time while employed
hereunder he will not engage in any activity competitive with any business
carried on by the Company or its Subsidiaries and Affiliates, without obtaining
the specific prior written consent of the Company. He, however, shall be free
without the consent of the Company to purchase stocks or other securities of any
corporation listed on a national securities exchange or included in a published
"over the counter" list.
4. Compensation During Illness: If while employed hereunder the
Executive shall become unable to perform his duties hereunder due to illness or
other incapacity, compensation during such period shall be provided in
accordance with the sick leave policy for salaried employees or employees
generally of the Company or any Subsidiary that employs the Executive, or if
applicable, under an income protection insurance plan for salaried employees and
employees generally of the Company or any Subsidiary that employs the Executive.
Subject to the other terms of this Agreement, no other compensation shall be
provided during the period of such illness or incapacity.
5. Death: In the event of the Executive's death while employed
hereunder, his spouse, or personal representative if such spouse shall have
died, shall be entitled to receive his salary at the rate then in effect through
the date of his death plus one additional pay period as provided under the
Company's pay policy, as well as any amounts previously earned and not paid for
the periods of service prior to his date of death.
6. Successors: Nothing in this Agreement shall prevent the consolidation
of the Company with, or its merger into, any other corporation or the sale by
the Company of all or substantially all of its properties or assets, or the
assignment by the Company of this Agreement in connection with any of the above
mentioned actions; provided that the Company will require any successor (whether
direct or indirect, by merger, consolidation or otherwise) to all or
substantially all of the properties or assets of the Company, by agreement in
form and substance satisfactory to the Executive, 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 has taken place.
This Agreement shall not be assignable by the Executive or by the Company or its
successors except as provided herein.
7. Retirement: Notwithstanding the Executive's agreement herein to serve
for the term of his employment under this Agreement, the Executive may retire
under a retirement plan available to salaried employees or employees generally
of the Company or any Subsidiary that employs the Executive when entitled to do
so, except that he may elect early retirement under any such plan only upon
giving the Company (or a Subsidiary employing the Executive) six months' written
notice; and upon his retirement his term of employment hereunder shall
terminate. Nothwithstanding the foregoing, following a Change of Control, (i)
the Executive may elect early retirement under a retirement plan available to
salaried employees or employees generally of the Company or any Subsidiary that
employs the Executive upon giving the Company (or a Subsidiary employing the
Executive) two days' written notice; and (ii) any retirement under such plan
that is coincident with or subsequent to an involuntary termination of the
Executive's employment for any reason other than Cause, death or Disability will
not preclude payments under this Agreement to which the Executive is entitled in
respect of such termination.
8. Acceleration and Vesting of Stock Plans, Stock Options and SAR's
Following a Change of Control: In the event a Change of Control of the Company
shall have occurred while the Executive is employed hereunder, then,
notwithstanding the terms and conditions of any benefit plan or compensation
program of the Company or any Subsidiary that employs the Executive including
but not limited to any purchase plan, stock bonus plan, stock incentive plan,
stock option plan, employee stock ownership plan or similar plan or program
(excluding any plan qualified under Section 401(a) of the Code), the Company
agrees (i) to accelerate, vest, and make immediately exercisable in full (to the
extent not already provided for under the terms of such applicable plans or
programs) all unexercisable installments of all options to acquire securities of
the Company and any accompanying stock appreciation rights, which are
Beneficially Owned by the Executive on the date of such Change of Control, and
(ii) to waive any applicable restrictions, including resale restrictions or
rights of repurchase, relating to or imposed on securities granted by the
Company to the Executive pursuant to such plans or programs which securities are
Beneficially Owned by the Executive on such date.
9. Mitigation: If at any time the Executive's employment hereunder shall
be terminated for any reason, then all payments and benefits to which the
Executive is entitled under this Agreement shall be made and provided without
offset, deduction or mitigation on account of income the Executive could or may
receive from other employment or otherwise; provided, however, that if the
Executive is involuntarily terminated for any reason other than Reason prior to
a Change of Control, then, until the term of this Agreement ends, the amount
payable under this Agreement shall be reduced by any compensation actually
received by the Executive from comparable employment (as to position,
compensation and responsibility) with any person or entity that is engaged in a
business that is competitive with the Company or its Subsidiaries and
Affiliates.
10. Legal Expenses: The Company shall pay (at least monthly) all costs
and expenses, including reasonable attorneys' fees and disbursements, which the
Executive may incur in connection with any litigation, arbitration or similar
proceeding, whether instituted by the Company or the Executive, with respect to
the interpretation or enforcement of any provision under this Agreement.
11. Accommodations and Travel Expenses: The Company agrees that while
the Executive is employed hereunder, he shall be furnished office space and
accommodations suitable to the character of his position and adequate for the
performance of his duties. Reasonable traveling expenses incurred by him in
traveling on business of the Company and its Subsidiaries will be reimbursed in
accordance with the established traveling expense policy of the Company or any
Subsidiary that employs the Executive.
12. Notices: Any notices required under the terms of this Agreement
shall be effective when mailed, postage prepaid, by certified mail, address:
If to Xxxx-XxXxx: X. X. Xxxxxx, Xx.
Vice President and General Counsel
Xxxx-XxXxx Corporation
Xxxx-XxXxx Center
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to the Executive: X. X. Xxxxxx
Xxxx-XxXxx Corporation
Xxxx-XxXxx Center
Xxxxxxxx Xxxx, Xxxxxxxx 00000
13. Entire Agreement: This Agreement comprises the entire agreement
between the Company and its Subsidiaries and the Executive and shall supersede
any and all previous contracts, agreements or understandings between the Company
and its Subsidiaries and the Executive with respect to the subject matter
hereof. This Agreement may not be modified except by written agreement between
the parties. Any inconsistency between Sections 8, 9, 10, 13, 14, 15 and 16 of
this Agreement and any other provisions of this Agreement shall be resolved in
favor of such Sections.
14. Arbitration: Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Oklahoma City, Oklahoma, or, at the option of the Executive, in the county where
the Executive resides, in accordance with the Rules of the American Arbitration
Association then in effect; provided, however, that if the Executive institutes
an action relating to this Agreement the Executive may, at his option, bring
such action in an Oklahoma court of competent jurisdiction. Judgment may be
entered on the arbitrator's award in any such court having jurisdiction.
15. Separability: Any provision of this Agreement which is held to be
unenforceable or invalid in any respect in any jurisdiction shall be ineffective
in such jurisdiction to the extent that it is unenforceable or invalid without
affecting the remaining provisions hereof, which shall continue in full force
and effect. The enforceability or invalidity of a provision of this Agreement in
one jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
16. Section and Other Headings: The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement on the 31st day of March, 1993.
XXXX-XxXXX CORPORATION
By______________________________
X. X. XxXxxxxxx
Chairman of the Board and
Chief Executive Officer
_____________________
X. X. Xxxxxx
Schedule A
CERTAIN DEFINITIONS
As used in this Agreement, and unless the context requires a different
meaning, the following terms have the meanings indicated:
"Affiliate" has the meaning set forth in Rule 12b-2 of the General Rules
and Regulations promulgated under the Securities Exchange Act of 1934, as
amended.
"Beneficial Owner" has the meaning set forth in Rules 13d-3 and 13d-5 of
the General Rules and Regulations promulgated under the Securities Exchange Act
of 1934, as amended.
"Cause" means willful and gross misconduct on the part of the Executive
that has a materially adverse effect on the Company and its Subsidiaries, taken
as a whole, or the conviction of the Executive of a felony under United States
federal, state or local criminal law, as determined in good faith by a written
resolution duly adopted by the affirmative vote of not less than 2/3 of all of
the directors who are not employees, officers, or otherwise Affiliates of the
Company.
"Change of Control" means any one of the following: (a) a change in any
two year period in a majority of the members of the Board of Directors of the
Company resulting from the election of directors who were not directors at the
beginning of such period (other than the election of directors to fill vacancies
created by death or Disability, or the election of a director to replace a
director who by virtue of his age is not eligible for election under the By-laws
of the Company as in effect on the date of this Agreement); (b) any Person or
Group, together with its Affiliates, becomes the Beneficial Owner, directly or
indirectly, of 25% or more of the Company's then outstanding Common Stock or 25%
or more of the voting power of the Company's then outstanding securities
entitled to vote generally for the election of the Company's directors; (c) the
approval by the Company's stockholders of (i) the merger or consolidation of the
Company with any other corporation (other than a merger or consolidation of the
Company and a wholly-owned subsidiary in which the holders of the Company's
Common Stock immediately prior to such merger or consolidation have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger or consolidation), (ii) the sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all, of the assets of the Company or (iii) the liquidation or
dissolution of the Company; or (d) a majority of the members of the Board of
Directors in office immediately prior to a proposed transaction determined by
written resolution that such proposed transaction, if taken, will be deemed a
Change of Control and such proposed transaction is effected.
"Code" means the Internal Revenue Code of 1986, as amended.
"Date of Termination" means (i) if the Executive's employment is
terminated under this Agreement due to Disability, thirty days after Notice of
Termination is given to the Executive (provided the Executive shall not have
returned to the performance of the Executive's duties on a full-time basis
during such thirty-day period) or (ii) if the Executive's employment is
involuntarily terminated under this Agreement for any other reason, the date on
which a Notice of Termination is given; provided, however, that if within thirty
days after any Notice of Termination is given to the Executive, the Executive
notifies the Company or the Subsidiary that employs the Executive that a dispute
exists concerning the termination, the Date of Termination shall be the date the
dispute is finally determined, whether by mutual agreement by the parties or
upon final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected).
"Disability" means that (i) a person has been totally incapacitated by
bodily injury or physical or mental disease so as to be prevented thereby from
engaging in a comparable occupation or employment for remuneration or profit,
(ii) such person will be subject to such total incapacity for a period of at
least eighteen consecutive months and (iii) such person is disabled for purposes
of any and all of the plans or programs of the Company or any Subsidiary that
employs the Executive under which benefits, compensation or awards are
contingent upon a finding of disability. The determination with respect to
whether the Executive is suffering from a Disability will be determined by a
mutually acceptable physician or, if there is no physician mutually acceptable
to the Company and the Executive, by a physician selected by the Xxxx of the
University of Oklahoma Medical School.
"Group" has the meaning set forth in Rule 13d-5 of the General Rules and
Regulations promulgated under the Securities Exchange Act of 1934, as amended.
"Notice of Termination" means a written notice which shall indicate
those specific provisions in this Agreement relied upon and which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
"Person" means any individual, firm, corporation, group (as such term is
used in Rule 13d of the General Rules and Regulations promulgated under the
Securities Exchange Act of 1934, as amended) or other entity.
"Reason" means (a) action by the Executive involving willful
malfeasance, (b) failure to act by the Executive involving material nonfeasance
having a material adverse effect on the Company or the Subsidiary that employs
the Executive, (c) the Executive being convicted of a felony under United States
federal, state, or local criminal law, or (d) the material breach of any
provision of this Agreement by the Executive.
"Subsidiary" with respect to the Company has the meaning set forth in
Rule 12b-2 of the General Rules and Regulations promulgated under the Securities
Exchange Act of 1934, as amended.
