EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (“Agreement”) is entered into effective as of June 1, 2011 (the
“Effective Date”), by and between Endeavour International Corporation, a Nevada corporation (the
“Company”), and Xxxxxxx X. Xxxxxxxx (“Employee”).
WHEREAS, Employee and the Company were parties to that certain Amended and Restated Employment
Agreement effective as of May 29, 2008 (the “Existing Agreement”), which expires pursuant to its
terms on May 31, 2011; and
WHEREAS, the Company and Employee desire to enter into this Agreement to replace and supersede
the Existing Agreement in its entirety, effective as of the Effective Date;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and
agreements contained herein, and for other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Effect of Agreement. Effective as of the Effective Date, this Agreement supersedes
and replaces any pre-existing employment agreements between the Company and Employee, including the
Existing Agreement.
2. Employment. The Company hereby employs Employee, and Employee will hereby continue
his employment by the Company, on the terms and conditions set forth in this Agreement.
3. Term of Employment. Unless sooner terminated pursuant to other provisions hereof,
the Company agrees to employ Employee for the period beginning on the Effective Date and ending on
the third anniversary of the Effective Date. On the third anniversary of the Effective Date, and
on each anniversary of the Effective Date thereafter, if Employee’s employment under this Agreement
has not terminated pursuant to other provisions hereof, then such term of employment shall be
extended automatically for an additional one-year period unless on or before the date that is 60
days prior to the first day of any such extension period either party gives written notice to the
other that no such automatic extension shall occur. For purposes of this Agreement, the three-year
period described in the first sentence of this Section 3 and any one-year extension period
described in the second sentence of this Section 3 shall be referred to as the “Term.”
4. Employee’s Duties. During the Term, Employee shall serve as Chairman, Chief
Executive Officer and President, with such duties and responsibilities as may from time to time be
assigned to him by the board of directors of the Company (the “Board”), provided that such duties
are consistent with the customary duties of such position. During the Term, Employee shall serve
as a member and Chairman of the Board. Employee agrees to devote all of his business time, skill
and attention to the business and affairs of the Company and to use reasonable best efforts to
perform faithfully and efficiently his duties and responsibilities. Employee shall not, either
directly or indirectly, enter into any business or employment with or for any person, firm,
association or corporation other than the Company during the Term; provided, however,
that Employee shall not be prohibited from making financial investments in any other company
or business, or, with notice to the Board, from serving on the board of
directors of any other
company if such service does not materially interfere with the performance of his duties or
responsibilities hereunder. Employee shall at all times observe and comply with all lawful
directions and instructions of the Board.
5. Base Compensation. For services rendered by Employee under this Agreement, the
Company shall pay to Employee a base salary of $800,000 per annum (“Base Compensation”). The Base
Compensation is payable in accordance with the Company’s customary pay periods and subject to
customary withholdings. The amount of Base Compensation shall be reviewed by the Board on an
annual basis as of the close of each fiscal year of the Company and may be increased as the Board
may deem appropriate. In the event the Board (or, if established, the compensation committee
thereof) deems it appropriate to increase Employee’s annual base salary, said increased amount
shall thereafter be the “Base Compensation.” Employee’s Base Compensation, as increased from time
to time, may not thereafter be decreased unless agreed to by Employee. Nothing contained herein
shall prevent the Board from causing the Company to pay additional compensation to Employee in the
form of bonuses or otherwise during the Term.
6. Bonus. With respect to each full fiscal year during the Term, the Board in its
sole discretion may grant Employee a discretionary bonus (“Bonus”). The target bonus for each year
shall be equal to the Base Compensation; however, the Board may grant a maximum Bonus of up to 200%
of the Base Compensation payable in the form and in accordance with the Company’s customary pay
periods for its annual bonuses for its executives and subject to customary withholdings.
7. Additional Benefits. In addition to the Base Compensation provided for in Section
5 herein, Employee shall be entitled to the following:
(a) Expenses. The Company shall, in accordance with any rules and policies
that it may establish from time to time for executive officers, reimburse Employee for
business expenses reasonably incurred in the performance of his duties. It is understood
that Employee is authorized to incur reasonable business expenses for promoting the
business of the Company, including reasonable expenditures for travel, lodging, meals and
client or business associate entertainment. Request for reimbursement for such expenses
must be accompanied by appropriate documentation. Any such reimbursement for such expenses
shall be made by the Company upon or as soon as practicable following receipt of supporting
documentation reasonably satisfactory to the Company (but in any event not later than the
close of Employee’s taxable year following the taxable year in which the expense is
incurred by Employee). In no event shall any reimbursement be made to Employee for such
expenses incurred after the date that is one year after the date of Employee’s termination
of employment with the Company.
(b) Vacation. Employee shall be entitled to five (5) weeks of vacation per
year, without any loss of compensation or benefits. Employee shall not be entitled to
compensation for, or to carry forward, any unused vacation time.
(c) General Benefits. Employee shall be entitled to participate in the
various employee benefit plans or programs, if any, provided to the officers of the Company
in
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general, including but not limited to, health, dental, disability and life insurance
plans, subject to the eligibility requirements with respect to each of such benefit plans
or programs, and such other benefits or perquisites as may be approved by the Board during
the Term. Nothing in this paragraph shall be deemed to prohibit the Company from making
any changes in any of the plans, programs or benefits described in this Section 7, provided
the change similarly affects all executive officers of the Company similarly situated.
(d) Corporate Change. Upon the occurrence of a “Corporate Change” as
hereinafter defined, Employee shall be considered as immediately and totally vested in any
and all restricted stock, stock options or other similar awards previously made to Employee
by the Company or its subsidiaries under a “Long Term Incentive Plan” or other grant duly
adopted by the Board or the Compensation Committee thereof (such restricted stock, stock
options or similar awards are hereinafter collectively referred to as “Options”). For
purposes of this Agreement, a “Corporate Change” shall mean:
(i) a merger of the Company with another entity, a consolidation involving
the Company, or the sale of all or substantially all of the assets of the Company
to another entity if, in any such case, (1) the holders of equity securities of the
Company immediately prior to such transaction or event do not beneficially own
immediately after such transaction or event equity securities of the resulting
entity entitled to 50% or more of the votes then eligible to be cast in the
election of directors generally (or comparable governing body) of the resulting
entity in substantially the same proportions that they owned the equity securities
of the Company immediately prior to such transaction or event or (2) the persons
who were members of the Board immediately prior to such transaction or event shall
not constitute at least a majority of the board of directors of the resulting
entity immediately after such transaction or event;
(ii) the dissolution or liquidation of the Company;
(iii) when any person or entity, including a “group” as contemplated by
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, acquires or
gains ownership or control (including, without limitation, power to vote) of 30% or
more of the combined voting power of the outstanding securities of the Company;
(iv) individuals who, as of the day immediately preceding the Effective Date,
constitute members of the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to such date whose
election, or nomination for election by the Company’s stockholders, was approved by
a vote of at least a majority of the directors then comprising the Incumbent Board
shall be considered for purposes of this definition as though such individual was a
member of the Incumbent Board, but excluding, for these purposes, any such
individual whose initial assumption of office as a director occurs as a result of
an actual or threatened election contest with respect to the election or removal of
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directors or other actual or threatened solicitation of proxies or consents by or
on behalf of any individual, entity or group other than the Board; or
(v) any other event that a majority of the Board, in its sole discretion,
shall determine constitutes a Corporate Change hereunder.
For purposes of the preceding sentence, (A) “resulting entity” in the context of a
transaction or event that is a merger, consolidation or sale of all or substantially all
assets shall mean the surviving entity (or acquiring entity in the case of an asset sale)
unless the surviving entity (or acquiring entity in the case of an asset sale) is a
subsidiary of another entity and the holders of common stock of the Company receive capital
stock of such other entity in such transaction or event, in which event the resulting
entity shall be such other entity, and (B) subsequent to the consummation of a merger or
consolidation that does not constitute a Corporate Change, the term “Company” shall refer
to the resulting entity and the term “Board” shall refer to the board of directors (or
comparable governing body) of the resulting entity.
8. Confidential Information. Employee, during the Term, will have access to and
become familiar with confidential information, secrets and proprietary information concerning the
business and affairs of the Company, its controlled subsidiaries and other controlled entities,
including client and customer information, information concerning their products, patent rights and
know-how, and other technical information, business strategies and pricing information, and other
confidential and/or proprietary information (collectively, “Confidential Information”).
Confidential Information shall not include (i) any information that is or becomes generally
available to the public other than as a result of Employee’s improper or unauthorized disclosure of
such information in violation of this Agreement or (ii) was within Employee’s possession prior to
its affiliation with the Company or its controlled subsidiaries or other controlled entities
(including his affiliation with Endeavour International Operating Company, f/k/a NSNV, Inc. prior
to its acquisition by the Company). As to such Confidential Information, Employee agrees as
follows:
(a) During the Term or at any time following the termination of the employment
relationship, Employee will not, directly or indirectly, without the prior written consent
of the Company (1) disclose or permit the disclosure of any such Confidential Information,
or (2) use, reproduce or distribute, or make or permit any use, reproduction or
distribution of, directly or indirectly, any such
Confidential Information, except for any disclosure, use, reproduction or distribution
that is required in the course of his employment with the Company, its controlled
subsidiaries or other controlled entities.
(b) If, during the Term or at any time following the termination of the employment
relationship, Employee is requested or required (by oral question or request for
information or documents, in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process) to disclose any Confidential Information,
Employee agrees to notify the Company immediately in writing of the request or requirement
so that the Company may seek an appropriate protective order or waive compliance with the
provisions of this Section. If, in the absence of a protective order or
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the receipt of a
waiver under this Agreement, Employee is, on the advice of counsel, compelled to disclose
any Confidential Information to any tribunal or else stand liable for contempt, Employee
may disclose such Confidential Information to the tribunal; provided, however, that
Employee shall use his commercially reasonable best efforts to obtain a court order or
other assurance that confidential treatment will be accorded to such Confidential
Information.
(c) Upon termination of employment of Employee, for whatever reason, Employee shall
surrender to the Company any and all documents, manuals, correspondence, reports, records
and similar items then or thereafter coming into the possession of Employee which contain
any Confidential Information of the Company or its controlled subsidiaries or other
controlled entities.
(d) Employee recognizes and acknowledges that the obligations of Employee contained in
Section 8 of this Agreement are reasonable and necessary to protect the legitimate business
interests of the Company, and that any breach or violation of any of the provisions of such
Section is likely to result in irreparable injury to the Company for which the Company
would have no adequate remedy at law. Employee agrees that if Employee shall breach or
violate Section 8 of this Agreement, the Company shall be entitled, if it so elects, to
institute and prosecute proceedings at law or in equity, including, but not limited to, a
proceeding seeking injunctive relief, to obtain damages with respect to such breach or
violation, to enforce the specific performance of Section 8 of this Agreement by Employee,
or to enjoin Employee from engaging in any activity in violation of Section 8 of this
Agreement. Employee acknowledges that in the event of any such breach or violation, the
Company shall be entitled to preliminary and permanent injunctive relief, without the
necessity of proving actual damages or posting a bond, and to an equitable accounting of
all earnings, profits, and other benefits arising from any such breach or violation, which
rights shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. Employee agrees that in the event of any such violation, an
action may be commenced for preliminary or permanent injunctive relief and other equitable
relief in any federal or state court of competent jurisdiction sitting in Xxxxxx County,
Texas, or in any other court of competent jurisdiction. Employee waives, to the fullest
extent
permitted by law, any objection that Employee may now or hereafter have to such
jurisdiction or to the laying of the venue of any such suit, action, or proceeding brought
in such a court and any claim that such suit, action or proceeding has been brought in an
inconvenient forum. Employee agrees that effective service of process may be made upon
Employee under the notice provisions contained in Section 12 of this Agreement. Employee
further agrees that the existence of any claim or cause of action against the Company,
whether predicated upon a breach or violation by the Company of this Agreement or any other
contract or agreement between Employee and the Company, shall not constitute or be asserted
as a defense to the enforcement by the Company of the provisions of this Section relating
to the Company’s right to injunctive or other equitable relief for Employee’s breach or
violation of Section 8 of this Agreement.
9. Termination. This Agreement may be terminated prior to the end of the Term as set
forth below:
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(a) Resignation (other than for Good Reason). Employee may resign, including
by reason of retirement, his position at any time by providing written notice of
resignation to the Company in accordance with Section 12 hereof. In the event of such
resignation, except in the case of resignation for Good Reason (as defined below), Employee
shall not be entitled to further compensation pursuant to this Agreement other than the
payment of any unpaid Base Compensation or Bonus accrued hereunder as of the date of
Employee’s resignation.
(b) Death. If Employee’s employment is terminated due to his death, the
Company shall have no obligations to Employee or his legal representatives with respect to
this Agreement other than the payment of any unpaid Base Compensation or Bonus previously
accrued hereunder, except that Employee shall be considered as immediately and totally
vested in any and all outstanding option and restricted stock grants previously granted to
Employee by the Company or its subsidiaries.
(c) Discharge.
(i) The Company may terminate Employee’s employment for any reason whatsoever,
including in the event of Employee’s Misconduct or Disability (both as defined
below), upon written notice thereof delivered to Employee in accordance with
Section 9(f) (in the case of a termination in the event of Employee’s Misconduct or
Disability) and Section 12 hereof. In the event that Employee’s employment is
terminated during the Term by the Company for any reason other than his Misconduct
or Disability (both as defined below), then (A) the Company shall pay in lump sum
in cash to Employee, within fifteen (15) days following the date of termination, an
amount equal to the product of (i) Employee’s Base Compensation as in effect
immediately prior to Employee’s termination, multiplied by (ii) three, (B) for
three years following the date of
termination, the Company, at its cost, shall provide or arrange to provide
Employee (and, as applicable, Employee’s dependents) with accident and group health
insurance benefits substantially similar to those which Employee (and Employee’s
dependents) were receiving immediately prior to Employee’s termination (if any);
however, the welfare benefits otherwise receivable by Employee pursuant to this
clause (B) shall be reduced to the extent comparable welfare benefits are actually
received by Employee (and/or Employee’s dependents) during such period under any
other employer’s welfare plan(s) or program(s), with Employee being obligated to
promptly disclose to the Company any such comparable welfare benefits, (C) in
addition to the aforementioned compensation and benefits, the Company shall pay in
lump sum in cash to Employee within fifteen (15) days following the date of
termination an amount equal to the product of (i) Employee’s average Bonus paid by
the Company during the most recent two (2) years immediately prior to the date of
termination, multiplied by (ii) three, and (D) Employee shall be considered as
immediately and totally vested in any and all Options previously granted to
Employee by the Company or its subsidiaries. The group health benefits described
in clause (B) of the preceding sentence shall be provided through an arrangement
that satisfies the requirements of Sections 105 and 106 of the Internal Revenue
Code of 1986, as
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amended (the “Code”), such that the benefits or reimbursements
under such arrangement are not includible in Employee’s income. The Company may
satisfy the requirement of the preceding sentence by providing such benefits
through an arrangement that requires the Company to impute income to Employee,
provided that the Company will pay a tax gross-up payment to Employee with respect
to such imputed income for each taxable year for which Employee has such imputed
income, and such tax gross-up payment shall be made during the month of January
following each taxable year to which such imputed income relates (subject to the
requirements of Section 9(k) of this Agreement). Notwithstanding the foregoing, if
the provision of the benefits described in clause (B) of this Section 9(c)(i)
cannot be provided in the manner described above without penalty, tax or other
adverse impact on the Company, then the Company and Employee shall negotiate in
good faith to determine an alternative manner in which the Company may provide a
substantially equivalent benefit to Employee without such adverse impact on the
Company.
(ii) In the event Employee is terminated because of Misconduct, the Company
shall have no obligations pursuant to this Agreement after the Date of Termination
(as defined below) other than the payment of any unpaid Base Compensation or Bonus
accrued through the Date of Termination. As used herein, “Misconduct” means (A)
the continued failure by Employee to substantially perform his duties with the
Company (other than any such failure resulting from Employee’s incapacity due to
physical or mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination by
Employee for Good Reason), after a written demand for substantial performance
is delivered to Employee by the Board, which demand specifically identifies the
manner in which the Board believes that Employee has not substantially performed
his duties, and Employee fails to cure such failure within ten (10) days after
receipt of such demand, (B) the engaging by Employee in conduct which is
demonstrably and materially injurious to the Company, monetarily or otherwise
(other than such conduct resulting from Employee’s incapacity due to physical or
mental illness or any such actual or anticipated conduct after the issuance of a
Notice of Termination by Employee for Good Reason), (C) Employee’s conviction for
the commission of a felony or (D) action by Employee toward the Company involving
dishonesty. Anything contained in this Agreement to the contrary notwithstanding,
the Board shall have the sole power and authority to terminate the employment of
Employee on behalf of the Company
(d) Disability. If Employee shall have been absent from the full-time
performance of Employee’s duties with the Company for ninety (90) consecutive calendar days
as a result of Employee’s incapacity due to physical or mental illness, Employee’s
employment may be terminated by the Company for “Disability” and Employee shall not be
entitled to further compensation pursuant to this Agreement, except that Employee shall be
considered as immediately and totally vested in any and all outstanding option and
restricted stock grants previously granted to Employee by the Company or its subsidiaries.
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(e) Resignation for Good Reason. Employee shall be entitled to terminate his
employment for Good Reason as defined herein. If Employee terminates his employment for
Good Reason he shall be entitled to the compensation and benefits provided in Section
9(c)(i) hereof. “Good Reason” shall mean the occurrence of any of the following
circumstances without Employee’s express written consent unless such breach or
circumstances are, to the extent curable, cured within fifteen (15) days of receipt of the
Notice of Termination given in respect hereof:
(i) the material breach of any of the Company’s obligations under this
Agreement;
(ii) the continued assignment to Employee of any duties inconsistent with the
office of Chairman, Chief Executive Officer and President;
(iii) the failure by the Company to pay to Employee any portion of Employee’s
compensation;
(iv) the failure by the Company to continue to provide Employee with benefits
substantially similar to those enjoyed by other executive officers who have entered
into similar employment agreements
with the Company under any of the Company’s medical, health, accident, and/or
disability plans in which Employee was participating immediately prior to such
time;
(v) a change in the location of Employee’s principal place of employment by
the Company by more than 50 miles from the Company’s headquarters in Houston,
Texas; or
(vi) the failure of the Company to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated in Section
14 hereof.
In addition, the occurrence of a Corporate Change, shall constitute “Good
Reason” hereunder, but only if Employee terminates his employment within ninety
(90) days following the effective date of such Corporate Change.
(f) Notice of Termination. Any purported termination of Employee’s employment
by the Company under Sections 9(c)(ii) or 9(d), or by Employee under Section 9(e), shall be
communicated by written Notice of Termination to the other party hereto in accordance with
Section 12 hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a
notice which, if by the Company and is for Misconduct or Disability, shall set forth in
reasonable detail the reason for such termination of Employee’s employment, or in the case
of resignation by Employee for Good Reason, said notice must specify in reasonable detail
the basis for such resignation. A Notice of Termination given by Employee pursuant to
Section 9(e) shall be effective even if given after the receipt by Employee of notice that
the Board has set a meeting to consider terminating Employee for Misconduct. Any purported
termination for which a Notice of Termination is required which is not effected pursuant to
this Section 9(f) shall not be effective.
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(g) Date of Termination. “Date of Termination” shall mean the date specified
in the Notice of Termination, provided that the Date of Termination shall be at least 15
days following the date the Notice of Termination is given. Notwithstanding the foregoing,
in the event Employee is terminated for Misconduct, the Company may refuse to allow
Employee access to the Company’s offices (other than to allow Employee to collect his
personal belongings under the Company’s supervision) prior to the Date of Termination.
Notwithstanding anything herein to the contrary, for purposes of this Section 9,
“termination of employment” shall mean Employee’s “separation from service” as defined in
Treasury Regulation Section 1.409A-1(h), including the default presumptions thereof.
(h) Mitigation. Employee shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise, nor
(except as set forth in Section 9(c)(i)(B)) shall the amount of any
payment provided for in this Agreement be reduced by any compensation earned or
benefits received by Employee as a result of employment by another employer.
(i) Parachute Payments. Notwithstanding anything to the contrary in this
Agreement, if Employee is a “disqualified individual” (as defined in Section 280G(c) of the
Code), and the payments and benefits provided for in this Agreement, together with any
other payments and benefits which Employee has the right to receive from the Company or any
of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2)
of the Code), then the payments and benefits provided for in this Agreement shall be either
(i) reduced (but not below zero) so that the present value of such total amounts and
benefits received by Employee from the Company and its affiliates will be one dollar
($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of
the Code) and so that no portion of such amounts and benefits received by Employee shall be
subject to the excise tax imposed by Section 4999 of the Code or (ii) paid in full,
whichever produces the better net after-tax position to Employee (taking into account any
applicable excise tax under Section 4999 of the Code and any other applicable taxes). The
reduction of payments and benefits hereunder, if applicable, shall be made by reducing,
first, payments or benefits to be paid in cash hereunder in the order in which such payment
or benefit would be paid or provided (beginning with such payment or benefit that would be
made last in time and continuing, to the extent necessary, through to such payment or
benefit that would be made first in time) and, then, reducing any benefit to be provided
in-kind hereunder in a similar order. The determination as to whether any such reduction
in the amount of the payments and benefits provided hereunder is necessary shall be made by
the Company in good faith. If a reduced payment or benefit is made or provided and through
error or otherwise that payment or benefit, when aggregated with other payments and
benefits from the Company (or its affiliates) used in determining if a “parachute payment”
exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then
Employee shall immediately repay such excess to the Company upon notification that an
overpayment has been made. Nothing in this Section 9(i) shall require the Company to be
responsible for, or have any liability or obligation with respect to, Employee’s excise tax
liabilities under Section 4999 of the Code.
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(j) Resignation from Board. In the event Employee’s employment by the Company
is terminated for any reason (other than Employee’s death), Employee shall immediately
resign as a member of the Board and the board of directors of any of the Company’s
subsidiaries. Nothing herein shall be deemed to limit the power of the shareholders of the
Company to at any time remove any director, including, without limitation, Employee, in
accordance with applicable law. All payments to Employee pursuant to this Agreement shall
be conditioned upon Employee’s compliance with his obligations under this Section 9(j).
(k) Section 409A of the Code. Notwithstanding any provision of this Section 9
to the contrary, if all or any portion of the benefits provided in this Section 9 is
determined to be “nonqualified deferred compensation” subject to
Section 409A of the Code, and the Company determines that Employee is a “specified
employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other
guidance issued thereunder, then such benefits (or portion thereof) shall be paid on the
first day of the seventh month following Employee’s termination of employment or as soon as
administratively practicable thereafter. If any provision of this Agreement does not
satisfy the requirements of Section 409A of the Code, then such provision shall
nevertheless be applied in a manner consistent with those requirements. Any payments or
reimbursements of any expenses provided for under this Agreement shall be made in
accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv).
10. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Employee’s continuing or future participation in any benefit, bonus, incentive, or other plan or
program provided by the Company or any of its affiliated companies and for which Employee may
qualify, nor shall anything herein limit or otherwise adversely affect such rights as Employee may
have under any Options with the Company or any of its affiliated companies.
11. Assignability. The obligations of Employee hereunder are personal and may not be
assigned or delegated by him or transferred in any manner whatsoever, nor are such obligations
subject to involuntary alienation, assignment or transfer. The Company shall have the right to
assign this Agreement and to delegate all rights, duties and obligations hereunder, either in whole
or in part, to any parent, affiliate, successor or subsidiary organization or company of the
Company, so long as the obligations of the Company under this Agreement remain the obligations of
the Company.
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 United States registered mail, return receipt requested, postage prepaid,
addressed to the Company at its principal office address, directed to the attention of the Board
with a copy to the Secretary of the Company, and to Employee at Employee’s residence address on the
records of the Company or to such other address as either party may have furnished to the other in
writing in accordance herewith except that notice of change of address shall be effective only upon
receipt.
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13. 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.
14. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company 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.
As used herein, the term “Company” shall include any successor to its business and/or
assets as aforesaid which executes and delivers the Agreement provided for in this Section
14 or which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall inure to the benefit of
and be enforceable by Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If Employee should
die while any amounts would be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with the terms
of this Agreement to Employee’s devisee, legatee, or other designee or, if there be no such
designee, to Employee’s estate.
15. Withholding Taxes.
(a) Tax Withholding. The Company shall have the power and the right to deduct
or withhold from any benefits payable under this Agreement an amount sufficient to satisfy
federal, state, and local taxes, domestic or foreign, required by law or regulation to be
withheld.
(b) Share Withholding. With respect to tax withholding required upon any
taxable event arising as a result of any stock awards pursuant to this Agreement, Employee
may elect, to satisfy the withholding requirement, in whole or in part, by having the
Company withhold shares having a fair market value on the date the tax is to be determined
equal to the minimum statutory total tax which could be imposed on the transaction. All
such elections shall be made in writing, signed by Employee, and shall be subject to any
restrictions or limitations that the Company, in its discretion, deems appropriate. Any
fraction of a share required to satisfy such obligation shall be disregarded and Employee
shall instead pay the amount due in cash.
16. No Restraints. As an inducement to the Company to enter into this Agreement,
Employee represents and warrants that he is not a party to any other agreement or obligation for
personal services, and that there exist no impediments or restraints, contractual or otherwise, on
Employee’s powers right or ability to enter into this Agreement and to perform his duties and
obligations hereunder.
17. Miscellaneous. 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
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Employee and such officer of the Company as may be specifically authorized by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of, or in compliance
with, any condition or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. This Agreement is an integration of the parties’ agreement; no agreement or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made
by either party, except those which are set forth expressly in this Agreement. THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS.
18. 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 will constitute one and the same
instrument.
19. Arbitration. Either party may elect that any dispute or controversy arising under
or in connection with this Agreement be settled by arbitration in Houston, Texas in accordance with
the rules of the American Arbitration Association then in effect. If the parties cannot mutually
agree on an arbitrator, then the arbitration shall be conducted by a three arbitrator panel, with
each party selecting one arbitrator and the two arbitrators so selected selecting a third
arbitrator. The findings of the arbitrator(s) shall be final and binding, and judgment may be
entered thereon in any court having jurisdiction. The findings of the arbitrator(s) shall not be
subject to appeal to any court, except as otherwise provided by applicable law. The arbitrator(s)
may, in his or her (or their) own discretion, award legal fees and costs to the prevailing party.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on May 26, 2011,
effective for all purposes as of the Effective Date.
| ENDEAVOUR INTERNATIONAL CORPORATION | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx III | |||||
| Name: | ||||||
| Title: | Chairman — Compensation Committee | |||||
| EMPLOYEE: | ||||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||||
| Xxxxxxx X. Xxxxxxxx | ||||||
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