EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and
effective as of _________________, 1997 ("Effective Date"), by and between Beta
Oil & Gas, Inc. ( the "COMPANY") and Xxxxx Xxxxx ("Employee").
RECITALS
WHEREAS, COMPANY desires to benefit from Employee's expertise in
financing and operating oil and gas companies;
WHEREAS, Employee desires to accept such employment, subject to the
conditions and terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto hereby agree as follows:
AGREEMENT
1. Terms and Duties.
COMPANY hereby employs Employee as President of the Company as of the
date first set forth above and Employee agrees to enter into and remain in the
employ of COMPANY until this Agreement is terminated as provided hereinbelow.
Employee shall faithfully and diligently perform all professional duties and
acts as President, as may be required by the Board of Directors of the Company.
2. Exclusivity.
Employee agrees to perform Employee's services efficiently and to the
best of Employee's ability. Employee agrees throughout the term of this
Agreement to devote the majority of hisl time, energy and skill to the business
of the COMPANY and to the promotion of the best interests of the COMPANY. The
Company understands that nothing contained in this Agreement shall prohibit
Employee from continuing in his positions as the Chairman of the Board of Beta
Capital Group, Inc. and as a member of the Board of Directors of Xxxxx Oil &
Gas, Inc. The Employee understands that he must obtain the consent of the Board
of Directors of the Company to commit to any additional positions which would
require utilization of his business time.
3. Compensation.
Subject to the termination of this Agreement as provided herein,
COMPANY shall compensate Employee for his services hereunder at an annual salary
of $150,000 ("Salary") commencing October 1, 1997, payable in monthly
installments in accordance with the COMPANY's practices, less normal payroll
deductions. The Employee shall also be reimbursed for all expenses associated
with the maintenance and operation of Employee's car, up to $1,000 per month
plus gasoline expenses. In addition to the Salary as defined above, COMPANY
agrees to pay Employee a bonus, at times and in amounts determined by the Board
of Directors of the COMPANY. Employee shall be entitled to such other benefits
and salary increases as the Board of Directors may determine.
4. Disability of Employee.
Employee shall be considered disabled if, due to illness or injury,
either physical or mental, Employee is unable to perform Employee's customary
duties as an employee of COMPANY for more than thirty (30) days in the aggregate
out of a period of twelve (12) `consecutive months. The determination that
Employee is disabled shall be made by the Board of Directors of COMPANY, based
in part upon a physician's certification from a physician selected by the Board
of Directors of COMPANY and reasonably satisfactory to Employee. Employee agrees
to timely submit to any required medical or other examination.
If Employee is determined to be disabled, COMPANY shall have the option
of terminating this Agreement in its entirety upon fourteen (14) days written
notice, subject to the provisions of Section 6 below, to Employee stating the
date of termination, which date may be any time selected by COMPANY, but after
the date of the notice.
6. Termination and Liquidated Damages.
COMPANY shall have the right to terminate Employee "for cause" and
"without cause."
For purposes of this Agreement, the term "cause" shall be: (a) any
felonious conduct or material fraud by Employee in connection with the COMPANY;
(b) any embezzlement or misappropriation of funds or property of COMPANY by
Employee; (c) gross negligence by Employee; and (d) Employee's willful and
intentional misconduct in the performance of his material duties and
obligations, in each case after written notice to Employee specifying the cause
for termination, and, in the case of the causes described in (c) and (d) above,
the passage of not less than thirty (30) days after receipt of such notice,
during which time Employee shall have the right to respond to COMPANY's notice
and cure the breach or other event giving rise to the termination. In the event
that Employee is able to cure, this Agreement shall continue in full force and
effect. In the event of "for cause" termination, the COMPANY shall not have the
right to terminate or otherwise cancel any securities issued by the COMPANY to
the Employee.
COMPANY shall have the right to terminate Employee "without cause" upon
the payment of the "Severance Benefits." Severance Benefits shall mean, for
purposes of this Agreement, the payment of the following:
(a) options to acquire the common stock of the COMPANY in an amount
equal to 10% of the then issued and outstanding shares containing a five-year
term, piggyback registration rights and an exercise price equal to 60% of the
fair market value of the shares during the sixty-day period of time preceding
the termination notice, such amount not to exceed $3.00 per share; and
(b) a cash payment equal to two times the aggregate compensation
payable to the Employee during the remaining term of this Agreement;
(c) in the event of termination "without cause," all unvested
securities issued by the COMPANY to the Employee shall immediately vest and the
COMPANY shall not have the right to terminate or otherwise cancel any securities
issued by the COMPANY to the Employee.
7. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
8. Arbitration.
If a dispute or claim shall arise with respect to any of the terms or
provisions of this Agreement, or with respect to the performance by either of
the parties under this Agreement, then either party may, with notice as herein
provided, require that the dispute be submitted under the Commercial Arbitration
Rules of the American Arbitration Association.
9. Notices.
Any notice, request, demand, or other communication given pursuant to
the terms of this Agreement shall be deemed given upon delivery, if hand
delivered, or forty-eight (48) hours after deposit in the United States mail,
postage prepaid, and sent certified or registered mail, return receipt
requested, correctly addressed to the principal business address of the party to
which the communication is addressed.
10. Assignment.
Subject to all other provisions of this Agreement, any attempt to
assign or transfer this Agreement or any of the rights conferred hereby, by
judicial process or otherwise, to any person, firm, COMPANY, or corporation
without the prior written consent of the other party except for a transfer of
COMPANY's rights to a subsidiary or affiliate of COMPANY, shall be invalid, and
may, at the option of such other party, result in an incurable event of default
resulting in termination of this Agreement and all rights hereby conferred.
11. Choice of Law.
This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of California
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws.
12. Entire Agreement.
Except as provided herein, this Agreement, including exhibits, contains
the entire agreement of the parties, and supersedes all existing negotiations,
representations, or agreements and all other oral, written, or other
communications between them concerning the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings, oral
or written, between and among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein.
13. Severability.
If any provision of this Agreement is unenforceable, invalid, or
violates applicable law, such provision, or unenforceable portion of such
provision, shall be deemed stricken and shall not affect the enforceability of
any other provisions of this Agreement.
14. Captions.
The captions in this Agreement are inserted only as a matter of
convenience and for reference and shall not be deemed to define, limit, enlarge,
or describe the scope of this Agreement or the relationship of the parties, and
shall not affect this Agreement or the construction of any provisions herein.
15. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
16. Modification.
No change, modification, addition, or amendment to this Agreement shall
be valid unless in writing and signed by all parties hereto.
17. Attorneys' Fees.
Except as otherwise provided herein, if a dispute should arise between
the parties including, but not limited to arbitration, the prevailing party
shall be reimbursed by the nonprevailing party for all reasonable expenses
incurred in resolving such dispute, including reasonable attorneys' fees
exclusive of such amount of attorneys' fees as shall be a premium for result or
for risk of loss under a contingency fee arrangement.
18. Taxes.
Any income taxes required to be paid in connection with the payments
due hereunder, shall be borne by the party required to make such payment. Any
withholding taxes in the nature of a tax on income shall be deducted from
payments due, and the party required to withhold such tax shall furnish to the
party receiving such payment all documentation necessary to prove the proper
amount to withhold of such taxes and to prove payment to the tax authority of
such required withholding.
20. Not for the Benefit of Creditors or Third Parties.
The provisions of this Agreement are intended only for the regulation
of relations among the parties. This Agreement is not intended for the benefit
of creditors of the parties or other third parties and no rights are granted to
creditors of the parties or other third parties under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"COMPANY"
BETA OIL & GAS, INC.
By:/s/
Title:
"Employee"
/s/
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ADDENDUM
This Addendum is attached to and is a part of that certain EMPLOYMENT
AGREEMENT by and between BETA OIL & GAS, INC., a Nevada corporaation
("Company"), and XXXXX XXXXX, an individial ("Employee"), dated________,
1997, (the "Agreement").
1. Compensation. Notwithstanding anything to the contrary contained in
the Agreement, Employee and Company agree that section 6(b) of the Agreement
should read as follows:
(b) a cash payment equal to two times the aggregate annual compensation
payable to the Employee during the remaining term of this Agreement;
2. No Modification. Except as specifically amended, modified, and
supplemented by this Addendum, the terms and provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
"COMPANY"
BETA OIL & GAS, INC.
By:______________________________
Name: ___________________________
Title:_____________________________
By:______________________________
Name: ___________________________
Title:_____________________________
"Employee"
By: ______________________________
Name: ___________________________
By: ______________________________
Name: ___________________________
