RAMCO OPERATING COMPANY
EMPLOYMENT AGREEMENT
Xxxxx X. Xxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of December
1, 1997 (the "Effective Date"), by and between RAMCO OPERATING COMPANY, a
Delaware corporation (the "Company"), and XXXXX X. XXX, an individual (the
"Executive").
WHEREAS, the Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its shareholders
to assure that the Company will have the continued dedication of the Executive;
WHEREAS, the Board believes it is important to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened loss of employment, and to encourage the
Executive's full attention and dedication to the affairs of the Company during
the term of this Agreement and upon the occurrence of such event;
WHEREAS, the Board also believes the Company is best served by providing
the Executive with compensation arrangements which provide the Executive with
individual financial security and which are competitive with those of other
corporations; and
WHEREAS, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company, for the period commencing on the Effective Date and ending on
the earlier to occur of (a) the third anniversary of such date unless extended
as provided herein or (b) the first day of the month coinciding with or next
following the Executive's Normal Retirement Date (the "Employment Period");
PROVIDED, HOWEVER, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof is hereinafter referred to as the "Renewal Date"), the
Employment Period shall be automatically extended so as to terminate on the
earlier of (i) three years from such Renewal Date or (ii) the first day of the
month coinciding with or next following the Executive's Normal Retirement Date,
unless at least 60 days prior to the Renewal Date, the Company shall give notice
that the Employment Period shall not be so extended in which event this
Agreement shall continue for the remainder of its then current term and
terminate as provided herein.
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TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the Employment Period, (A) the Executive's position
(including status, offices, secretarial and administrative support, titles and
reporting requirements), authority, duties and responsibilities shall be that of
President and (B) unless the Executive consents to the contrary, the Executive's
services shall be performed at Tulsa, Oklahoma or any office or location less
than 25 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) COMPENSATION.
(i) BASE SALARY. During the Employment Period, the Executive
shall receive an annual base salary ("Base Salary") at least equal to $295,000.
Such Base Salary shall be payable monthly in cash. Base Salary shall be
computed prior to any reductions for (i) any deferrals of compensation made
pursuant to Sections 125 or 401(k) of the Code or pursuant to any other program
or arrangement provided by the Company and (ii) any withholding, income or
employment taxes. During the Employment Period, the Base Salary shall be
reviewed at least annually and shall be increased at any time and from time to
time as shall be determined by the Board. Any increase in Base Salary shall not
serve to limit or reduce any other obligation to the Executive under this
Agreement. Base Salary shall not be reduced after any such increase.
(ii) BONUS. In addition to Base Salary, the Executive may be
paid, for any fiscal year during the Employment Period, a bonus ("Bonus"),
either pursuant to the incentive compensation plan of the Company or otherwise
as may be determined by the Board.
(iii) INCENTIVE, SAVINGS AND RETIREMENT PLANS. In addition to
Base Salary and Bonus, the Executive shall be entitled to participate during
the Employment Period in all
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incentive, savings and retirement plans, practices, supplemental retirement
plan policies and programs applicable to other key management employees of
the Company and its subsidiaries. Such plans, practices, policies and
programs, in the aggregate, shall provide the Executive with compensation,
benefits and reward opportunities at least as favorable as the most favorable
of such compensation, benefits and reward opportunities provided by the
Company to other key management employees of the Company and its subsidiaries.
(iv) WELFARE BENEFIT PLANS. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its subsidiaries
(including, without limitation, any medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), at least as favorable as the most
favorable of such plans, practices, policies and programs provided by the
Company and its subsidiaries to other key management employees of the Company
and its subsidiaries.
(v) EXPENSES. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the policies, practices and
procedures of the Company and its subsidiaries provided to other key
management employees of the Company and its subsidiaries.
(vi) FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to fringe benefits, including use of an automobile
and payment of related expenses, in accordance with the most favorable plans,
practices, programs and policies of the Company and its subsidiaries provided to
other key management employees of the Company and its subsidiaries.
(vii) OFFICE AND SUPPORT STAFF. During the Employment Period,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance,
at least equal to the most favorable of the foregoing provided to other key
management employees of the Company and its subsidiaries.
(viii) VACATION. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its subsidiaries provided to
other key management employees of the Company and its subsidiaries.
(ix) EFFECT OF INCREASES. Any increase in Base Salary, Bonus or
any other benefit or perquisite described in the foregoing Sections (i)-(viii)
shall in no way diminish any obligation of the Company under the Agreement.
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3. TERMINATION.
(a) DEATH OR DISABILITY. This Agreement shall terminate
automatically upon the Executive's death. If the Company determines in good
faith that the Disability of the Executive has occurred (pursuant to the
definition of "Disability" set forth below), it will give to the Executive
written notice of its intention to terminate the Executive's employment. In
such event, the Executive's employment with the Company shall terminate
effective on the 30th day after the date of such notice (the "Disability
Effective Date"), provided that, within such time period, the Executive shall
not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means disability (either physical or
mental) which (i) materially and adversely affects Executive's ability to
perform the duties required of his office, and (ii) at least 26 weeks after
its commencement, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or
the Executive's legal representative (such agreement as to acceptability not
to be withheld unreasonably).
(b) CAUSE. The Company may terminate the Executive's employment for
"Cause." For purposes of this Agreement, termination of the Executive's
employment by the Company for Cause shall mean termination for one of the
following reasons: (i) the conviction of the Executive of a felony by a federal
or state court of competent jurisdiction; (ii) an act or acts of dishonesty
taken by the Executive and intended to result in substantial personal enrichment
of the Executive at the expense of the Company; or (iii) the Executive's
"willful" failure to follow a direct, reasonable and lawful written order from
the Board, within the reasonable scope of the Executive's duties, which failure
is not cured within 30 days. Further, for purposes of this Section (b):
(1) No act or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's action or omission
was in the best interest of the Company.
(2) The Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4ths) of the entire membership of the Board (excluding
Executive if Executive is then a member of the Board) at a meeting of the Board
called and held for such purpose (after reasonable notice to the Executive and
an opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth in clauses (i), (ii) or (iii) above
and specifying the particulars thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2(a) of this Agreement, or any other
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action by the Company which results in a diminution in such position,
compensation, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 2(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be based at
any office or location other than that described in Section 2(a)(i)(B) hereof,
except for periodic travel reasonably required in the performance of the
Executive's responsibilities;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 3(c), any good faith determination of "Good
Reason" made by the Executive shall be conclusive unless such determination is
rejected by unanimous vote of the Board (excluding Executive if Executive is
then a member of the Board), in which event Executive may refer the
determination of "Good Reason" to binding arbitration by and between the Company
and the Executive conducted pursuant to the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") by a single arbitrator appointed by the
AAA. The decision of the arbitrator in such matter shall be final, unappealable
and binding upon the Company and the Executive.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause
or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provisions in this
Agreement relied upon, (ii) 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 and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than 15 days after the giving
of such notice). The failure by the Executive to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing his rights
hereunder.
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(e) DATE OF TERMINATION. "Date of Termination" means the date of
receipt of the Notice of Termination by either the Company or the Executive as
the case may be or any later date specified therein; PROVIDED, HOWEVER, that if
the Executive's employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated by reason of
the Executive's death, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this Agreement, other
than those obligations accrued or earned and vested (if applicable) by the
Executive as of the Date of Termination, including, for this purpose (i) the
Executive's annual full Base Salary through the Date of Termination at the rate
in effect on the Date of Termination, (ii) the product of the Bonus (defined in
Section 2(b)(ii)) paid to the Executive for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365, (iii)
the amount equal to the Executive's current Base Salary (for twelve (12)
months), (iv) the amount equal to the Bonus paid to the Executive for the last
full fiscal year (if any) ending during the Employment Period or, if higher, the
Bonus paid to the Executive for any full fiscal year during the Employment
Period (as applicable, the "Recent Bonus"), and (v) any compensation previously
deferred by the Executive (together with any accrued interest thereon) and not
yet paid by the Company and any accrued vacation pay not yet paid by the Company
(such amounts specified in clauses (i), (ii), (iii), (iv) and (v) are
hereinafter referred to as "Accrued Obligations"). All such Accrued Obligations
shall be paid to the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination. Anything in this
Agreement to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the most favorable benefits
provided by the Company and any of its subsidiaries to surviving families of
other key management employees of the Company and such subsidiaries under such
plans, programs, practices and policies relating to family death benefits, if
any, in accordance with the most favorable plans, programs, practices and
policies of the Company and its subsidiaries provided to other key management
employees of the Company and its subsidiaries and their families.
(b) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability, this Agreement shall terminate without
further obligations to the Executive, other than those obligations accrued or
earned and vested (if applicable) by the Executive as of the Date of
Termination, including for this purpose, all Accrued Obligations. All such
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled after the effective date of the
Disability to receive disability and other benefits at least equal to the most
favorable of those provided by the Company and its subsidiaries to disabled key
management employees and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, in accordance
with the most favorable plans, programs,
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practices and policies of the Company and its subsidiaries provided to other
key management employees of the Company and its subsidiaries and their
families.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
the Base Salary accrued through the Date of Termination plus the vested amount
of any compensation previously deferred by the Executive. If the Executive
terminates employment other than for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than those obligations
accrued or earned and vested (if applicable) by the Executive through the Date
of Termination, including for this purpose, all Accrued Obligations. All such
Accrued Obligations to which the Executive shall be entitled shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of Termination.
(d) GOOD REASON; TERMINATION OTHER THAN FOR CAUSE OR DISABILITY. If,
during the Employment Period, the Company shall terminate the Executive's
employment other than for Cause, Disability, or death or if the Executive shall
terminate his employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. to the extent not theretofore paid, the Executive's
Base Salary through the Date of Termination; and
B. the product of (i) the Executive's Recent Bonus and
(ii) a fraction, the numerator of which is the number of days in the current
fiscal year through the Date of Termination and the denominator of which is 365;
and
C. the product obtained by multiplying three (3) times the
current Base Salary; and
D. in the case of compensation previously deferred by the
Executive, all vested amounts previously deferred and not yet paid by the
Company, and any accrued vacation pay not yet paid by the Company; and
(ii) for the remainder of the Employment Period, or such longer
period as any plan, program, practice or policy may provide, the Company shall
continue benefits to the Executive and/or the Executive's family at least equal
to those which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 2(b)(iv) of this Agreement
if the Executive's employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable plans,
practices, programs or policies of the Company and its subsidiaries provided to
other key management employees and their families and for purposes of
eligibility for retiree benefits pursuant to such plans, practices, programs
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and policies, the Executive shall be considered to have remained employed
until the end of the Employment Period and to have retired on the last day of
such period.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company or any of its subsidiaries and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any stock option or other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of the
Company or any of its subsidiaries at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program.
6. ACCELERATION OF VESTING. In the event that the Company has any type
of plan, program or arrangement which include, by example, not by limitation,
stock option plans, restricted stock award plans, phantom stock plans and
supplemental retirement income plans (the "Other Plans") and the Executive is
not 100% vested in his benefits in the Other Plans at the time of his
termination of employment, and the Executive would otherwise be entitled to the
payment of benefits pursuant to the terms of this Agreement, then, the Executive
shall be deemed to be 100% vested and non-forfeitable in his benefits in the
Other Plans; provided, no acceleration of vesting shall occur in the Other Plans
if such act would result in the disqualification of or otherwise adversely
affect the tax qualified status of such Other Plans or the participants in such
Other Plans. Further, in the event that the Company is unable to accelerate
vesting in the Other Plans because such acceleration would adversely effect the
tax status of any of the Other Plans or the participants in such Other Plans,
then, the Company shall pay to the Executive the amount equal to the benefits
which have been lost due to the inability to accelerate vesting in the Other
Plans; and such additional amounts shall be paid at the same time in the same
manner as benefits would otherwise be paid pursuant to the terms of this
Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. The Company
agrees to pay, to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to Section 8 of this
Agreement), plus in each case interest at the applicable Federal rate provided
for in Section 7872(f)(2) of the Code.
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8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) No payments made pursuant to this Agreement are contingent upon a
change in control as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"). Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, including, by example and not by way of limitation,
acceleration by the Company of the date of vesting or payment or rate of payment
under any plan, program or arrangement of the Company (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all income and excise taxes with respect to the Payment (including
any interest or penalties imposed with respect to such taxes), and specifically
including any Excise Tax imposed on the Gross-Up Payment, the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed on the
Payment.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall be made by Ernst &
Young, L.L.P. (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment which
would be subject to the Excise Tax, or such earlier time as is requested by the
Company. The initial Gross-Up Payment, if any, as determined pursuant to this
Section 8(b), shall be paid to the Executive within five days of the receipt of
the Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with an
opinion that he has substantial authority not to report any Excise Tax on his
federal income tax return. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive knows of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
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such claim prior to the expiration of the 30-day period following the date on
which he gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 8(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income
tax, including interest or penalties with respect thereto, imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
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(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 8(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 8(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 8(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of thirty days
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
9. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its subsidiaries, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its subsidiaries and which
shall not be or become public knowledge (other than by acts by the Executive or
his representatives in violation of this Agreement). After termination of the
Executive's employment with the Company, the Executive shall not, without the
prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
10. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) 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 assume
expressly 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 in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
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11. INDEMNIFICATION AND INSURANCE. The Executive shall be indemnified and
held harmless by the Company during the term of this Agreement and following any
termination of this Agreement for any reason whatsoever in the same manner as
would any other key management employee of the Company with respect to acts or
omissions occurring prior to (a) the termination of this Agreement or (b) the
termination of employment of the Executive. In addition, during the term of
this Agreement and for a period of five years following the termination of this
Agreement for any reason whatsoever, the Executive shall be covered by a Company
held Directors and Officers liability insurance policy covering acts or
omissions occurring prior to (a) the termination of this Agreement or (b) the
termination of employment of the Executive. Provided, in no event will the
obligation of the Company to indemnify the Executive or provide Directors and
Officers insurance to the Executive under this Section be less than the
obligation and insurance coverage which the Company had to the Executive
immediately prior to the occurrence of the Executive's Date of Termination.
12. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Oklahoma, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO THE EXECUTIVE: At his last known address evidenced on the Company's
payroll records
IF TO THE COMPANY: RAMCO Operating Company
One Xxxxxx Place, Suite 130
0000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx XX, Chairman
WITH A COPY TO: McAfee & Xxxx A Professional Corporation
00xx Xxxxx, Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: C. Xxxxx Xxxxxxx, Esq.
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance with any
provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(f) This Agreement contains the entire understanding of the Company
and the Executive with respect to the subject matter hereof.
(g) The Executive and the Company acknowledge that the employment of
the Executive by the Company is "at will," and, prior to the Effective Date, may
be terminated by either the Executive or the Company at any time. Upon a
termination of the Executive's employment or upon the Executive's ceasing to be
an officer of the Company, in each case, prior to the Effective Date, there
shall be no further rights under this Agreement.
13. NO TRUST. No action under this Agreement by the Company or its Board
of Directors shall be construed as creating a trust, escrow or other secured or
segregated fund, in favor of the Executive or his beneficiary. The status of
the Executive and his beneficiary with respect to any liabilities assumed by the
Company hereunder shall be solely those of unsecured creditors of the Company.
Any asset acquired or held by the Company in connection with liabilities assumed
by it hereunder, shall not be deemed to be held under any trust, escrow or other
secured or segregated fund for the benefit of the Executive or his beneficiary
or to be security for the performance of the obligations of the Company, but
shall be, and remain a general, unpledged, unrestricted asset of the Company at
all times subject to the claims of general creditors of the Company.
14. NO ASSIGNABILITY. Neither the Executive nor his beneficiary, nor any
other person shall acquire any right to or interest in any payments payable
under this Agreement, otherwise than by actual payment in accordance with the
provisions of this Agreement, or have any power to transfer, assign, anticipate,
pledge, mortgage or otherwise encumber, alienate or transfer any rights
hereunder in advance of any of the payments to be made pursuant to this
Agreement or any portion thereof which is expressly declared to be nonassignable
and nontransferable. No right or benefit hereunder shall in any manner be
liable for or subject to the debts, contracts, liabilities, or torts of the
person entitled to such benefit.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
/s/ Xxxxx X. Xxx
--------------------------------------
Xxxxx X. Xxx
"EXECUTIVE"
RAMCO OPERATING COMPANY
By /s/ Xxxxxxx X. Xxxxxx XX
------------------------------------
Xxxxxxx X. Xxxxxx XX, Chairman
"COMPANY"
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