Common use of Certain Additional Agreements Clause in Contracts

Certain Additional Agreements. The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, which are valuable to the Company, that the Executive make the covenants contained in Sections 7, 8 and 9 of this Agreement. The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7, 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, and (iii) the time, scope, geographic area and other provisions of Sections 7, 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections 7, 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties.

Certain Additional Agreements. The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, 5 which are valuable to the Company, that the Executive make the covenants contained in Sections 7, 8 and 9 of this Agreement. The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7, 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, and (iii) the time, scope, geographic area and other provisions of Sections 7, 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections 7, 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties. 11. Specific Performance The Executive acknowledges that any breach or threatened breach of the covenants contained in Sections 7, 8, 9 and 10 of this Agreement will cause the Company material and irreparable damage, the exact amount of which will be difficult to ascertain and that the remedies at law for any such breach or threatened breach will be inadequate. Accordingly, the Executive agrees that the Company shall, in addition to all other available rights and remedies (including, but not limited to, seeking such damages as it can show it has sustained by reason of such breach), be entitled to specific performance and injunctive relief in respect of any breach or threatened breach of any of Sections 7, 8, 9 and 10 of this Agreement, without being required to post bond or other security and without having to prove the inadequacy of the available remedies at law or irreparable harm. 6 12. Termination (a) Except as set forth in Section 12(b), in the event of the termination of the Executive’s employment during the Employment Term the Executive shall be entitled to receive, and the Company shall pay the Executive (i) the Base Salary owing to the Executive hereunder through the date of termination, (ii) accrued vacation, and (iii) any business expenses which were properly reimbursable to the Executive pursuant to Section 4 hereof through the date of termination. Such amounts shall be paid to the Executive in a lump-sum not later than seventy-five (75) days after the date of termination. The Executive shall be entitled to no further payment upon such termination with the exception of the health insurance benefit described in paragraph 5. (b) In the event of the termination of the Executive’s employment during the Employment Term (i) by the Company without Cause (as defined below) or (ii) by the Executive for Good Reason (as defined below), and contingent upon Executive first executing the Separation Agreement that is attached hereto as Exhibit E and that Separation Agreement becoming fully effective pursuant to its terms, then the Executive shall be entitled to receive, and the Company shall pay the Executive, in addition to the amounts described in 12(a) above, (i) severance equal to the Executive’s annual Base Salary at the date of termination multiplied by two (2), and (ii) cash equal to the excess of the Market Value of securities underlying the vested options held by the Executive immediately prior to termination, less the exercise price of such options, multiplied by the number of shares underlying the corresponding options. Such amounts shall be paid to the Executive in a lump-sum not later than seventy-five (75) days after the date of termination, and shall be reduced by any amounts payable to the Executive under paragraphs 2(a), (b) and (d) of the Executive Severance and Non-Compete Agreement. For purposes of this Agreement, “Cause” shall mean: (i) failure to accomplish the goals established in the Company’s operating plans as determined by the Board of Directors;(ii) that the Executive shall have committed an intentional act of fraud, embezzlement or theft in connection with his duties with, or in the course of his employment with, the Company, or been convicted of a felony or other crime involving moral turpitude; (iii) intentional wrongful damage to or misappropriation of property of the Company; (iv) an intentional or grossly negligent refusal or failure to perform Executive’s duties, or to carry out the reasonable directions of the Company’s Board of Directors (other than on account of illness or other physical or mental disability), which refusal or failure is not remedied within the 10 calendar days after receipt by the Executive of written notice from the Company thereof, or insubordination; (v) a material breach of any of the provisions of this Agreement applicable to Executive, which breach is not remedied within the 7 10 calendar days after receipt by the Executive of written notice from the Company of such breach; and in any case any such act or failure to act shall be determined by the Board of Directors of the Company to have been materially harmful to the Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed “intentional” unless done, or omitted to be done, by the Executive not in good faith and without a reasonable belief that his action or omission was in the best interests of the Company, as determined by the Board of Directors of the Company in its sole but reasonable discretion; or For purposes of this Agreement, “Good Reason” shall mean a termination occurring within one hundred and twenty (120) days after the occurrence of any of the following events: (i) a significant and material adverse change in the nature or scope of Employee’s duties and responsibilities or other working conditions with Company including job classification change from that of an Executive, (ii) a failure by the Company to make timely payment to the Employee of any amounts to which he is entitled hereunder or to otherwise provide Employee with any of the benefits to which he is entitled hereunder on the terms provided herein or any other breach of the covenants contained herein, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Employee of Employee’s objection to such change, failure, reduction or breach, as the case may be; or (iii) the liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of a significant amount of the business and/or assets of the Company to another party, unless the successor or successors (by liquidation, dissolution, merger, consolidation, reorganization or otherwise) or other transferee or transferees to which all or substantially all of such business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company to Employee hereunder by an instrument in writing reasonably satisfactory in form and in substance to the Employee. (c) Notwithstanding the foregoing, if the Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code of 1986, as amended) and if Section 409A is applicable to any amounts payable hereunder, all such amounts that would have been paid to the Executive under this Section 12 during the 6 month period following the termination of his employment shall instead be paid in a lump sum on the first day of the 7th month after the month of such termination of employment. 8 (d) In the event that the Executive dies while employed as General Counsel, Secretary and this Agreement has not been terminated, the benefits under Section 12(b) will inure to the benefit of the Executive’s designated beneficiary or his estate. 13. Annual Medical Examination Executive agrees to make himself available for an annual physical examination at a location to be selected by the Board of Directors and at the expense of the Company and that such medical examination will be completed no later than April 30th of each year. 14. Miscellaneous All notices, demands, consents, requests, instructions and other communications to be given or delivered or permitted under or by reason of the provisions of this Agreement or in connection with the transactions contemplated hereby shall be in writing and shall be deemed to be delivered and received by the intended recipient as follows: (i) if personally delivered, on the business day of such delivery (as evidenced by the receipt of the personal delivery service), (ii) if mailed certified or registered mail return receipt requested, four (4) business days after being mailed, (iii) if delivered by overnight courier (with all charges having been prepaid), on the business day of such delivery (as evidenced by the receipt of the overnight courier service of recognized standing), or (iv) if delivered by facsimile transmission or email, on the business day of such delivery if sent by 5:00 p.m. in the time zone of the recipient, or if sent after that time, on the next succeeding business day (as evidenced by the printed confirmation of delivery generated by the sending party’s facsimile machine). If any notice, demand, consent, request, instruction or other communication cannot be delivered because of a changed address of which no notice was given (in accordance with this Section 14), or the refusal to accept same, the notice, demand, consent, request, instruction or other communication shall be deemed received on the second business day the notice is sent (as evidenced by a sworn affidavit of the sender). All such notices, demands, consents, requests, instructions and other communications will be sent to the following addresses or facsimile numbers as applicable: 9 If to the Company, to: U.S. Energy Corp. Attn: Xxxxxx Xxxxx Xxxxxxx, CFO 000 Xxxxx 0xx Xxxx Xxxxxxxx, XX 00000 (307) 856-9271 xxxxx@xxxxx.xxx with a copy to: Xxxxxxx X. Xxxxxxx, Esq. Xxxxxxxxx, Weinshienk & Xxxxx, P.C. 000 00xx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 (303) 592-8308 xxxxxxxx@xx-xxxxx.xxx If to the Executive, to: Xxxxxx X. Xxxxxxxxxx 000 Xxxxx 0xx Xxxx Xxxxxxxx, XX 00000 15. Amendment This Agreement may not be modified, amended, altered or supplemented, except by a written agreement executed by each of the parties hereto. 16. Entire Agreement This Agreement contains the entire understanding and agreement of the parties relating to the subject matter hereof and, except as otherwise stated herein, supersedes all prior and/or contemporaneous understandings and agreements of any kind and nature (whether written or oral) among the parties with respect to such subject matter, all of which are merged herein. 17. Waiver Any waiver by a party hereto of any breach of or failure to comply with any provision or condition of this Agreement by any other party hereto shall not be construed as, or constitute, a continuing waiver of such provision or condition, or a waiver of any 10 other breach of, or failure to comply with, any other provision or condition of this Agreement, any such waiver to be limited to the specific matter and instance for which it is given. No waiver of any such breach or failure or of any provision or condition of this Agreement shall be effective unless in a written instrument signed by the party granting the waiver and delivered to the other party hereto in the manner provided for hereunder in Section 14. No failure or delay by any party to enforce or exercise its rights hereunder shall be deemed a waiver hereof, nor shall any single or partial exercise of any such right or any abandonment or discontinuance of steps to enforce such rights, preclude any other or further exercise thereof or the exercise of any other right. 18. Governing Law; Jurisdiction This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming applicable to agreements made and to be performed in that state, without regard to any of its principles of conflicts of laws or other laws that would result in the application of the laws of another jurisdiction. Each of the parties unconditionally and irrevocably consents to the exclusive jurisdiction of the courts of the State of Wyoming and the federal district court for the District of Wyoming with respect to any suit, action or proceeding arising out of or relating to this Agreement, and each of the parties hereby unconditionally and irrevocably waives any objection to venue in any such court or to assert that any such court is an inconvenient forum, and agrees that service of any summons, complaint, notice or other process relating to such suit, action or other proceeding may be effected in the manner provided in Section 14 hereof. Each of the parties hereby unconditionally and irrevocably waives the right to a trial by jury in any such action, suit or other proceeding 19. Binding Effect, No Assignment, etc This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal xxxxxxxxxxxxxxx, xxxxx, xxxxxx, successors and permitted assigns. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any party hereto without the prior written consent of the other party, and any attempt to do so shall be void and of no force and effect, except (i) assignments and transfers by operation of law and (ii) that the Company may assign any or all of its respective rights, interests and obligations hereunder to any purchaser of a majority of the issued and outstanding capital stock of the Company or a substantial part of the assets of the Company. 20. Third Parties Nothing herein is intended or shall be construed to confer upon or give to any Person, other than the parties hereto (or persons set forth in Section 14), any rights, privileges or remedies under or by reason of this Agreement. 11 21. Headings The section headings contained in this Agreement are inserted for reference purposes only and shall not affect in any way the meaning, construction or interpretation of this Agreement. Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. References to the singular shall include the plural and vice versa. 22.