Exhibit 10.23
EMPLOYMENT AGREEMENT BETWEEN
HIGH PLAINS GAS, LLC AND XXXXXXX X. XXXXXXX
This Employment Agreement (hereinafter the "Agreement"), executed effective
the 1st day of January, 2011 (hereinafter the "Effective Date"), is entered into
by and among High Plains Gas, LLC, a Wyoming limited liability company (the
"Employer") and Xxxxxxx X. Xxxxxxx (the "Employee"). The Employer and the
Employee may individually be referred to as a "Party", and collectively as the
"Parties".
WHEREAS, the Employer and the Employee are desirous of entering into this
Agreement wherein the Employee shall become employed on a full-time basis on
behalf of the Employer and any affiliates of the Employer at all locations which
may require the services of the Employee commencing effective January 1, 2011;
and
WHEREAS, the Employee is willing and able to accept employment with the Employer
on the terms and conditions set forth in this Employment Agreement during the
Term (as defined herein) of this Agreement.
NOW, THEREFORE, in consideration of the payment of the sum of one hundred
dollars ($100.00) by the Employer to the Employee at the time of the execution
of this Agreement, and of the mutual covenants contained herein and other valid
consideration, the sufficiency of which is acknowledged, the Parties hereto
agree as follows:
SECTION 1. EMPLOYMENT.
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1.1 TERM. The Employer agrees to employ the Employee, and the Employee
agrees to be employed by the Employer pursuant to this Agreement for a period
commencing on the 1st day of January, 2011 (such date hereinafter referred to as
the "Effective Date") and ending on the earlier of: (i) 12:00 a.m. (midnight)
the 31st day of December, 2011; or (ii) the termination of the Employee's
employment in accordance with Section 3 hereof (the "Term"). Unless either
Party elects to terminate this Agreement prior to the conclusion of its initial
Term or any renewal Term by providing the other Party notice of such election at
least sixty (60) calendar days prior to the expiration of the then current Term,
this Agreement shall automatically renew for successive one (1) year terms,
subject to early termination as provided for herein, upon the terms and
conditions provided within this Agreement, commencing on the day after the
expiration of the then current Term.
1.2 DUTIES. During the Term, the Employee shall serve as a full-time
employee engaged in business development, and shall perform such duties,
functions and responsibilities during the Term commensurate with the Employee's
position as reasonably directed by the Company's Board of Directors. The
Employee's principal place of employment shall be located
in Gillette, Wyoming provided that Employee shall travel and shall render
services at other locations, both as may reasonably be required to fulfill his
duties hereunder.
1.3 EXCLUSIVITY; OTHER EMPLOYMENT AND INVESTMENTS DURING TERM AND
DURING PERIOD OF NON-COMPETITION. Except as otherwise provided herein, during
the Term, the Employee shall devote his full business time and attention to the
business and affairs of the Employer, shall faithfully serve the Employer, and
shall in all material respects conform to and comply with the lawful and
reasonable directions and instructions given to him by the Company's President,
consistent with Section 1.2, herein. Nothing contained herein shall prevent the
Employee from being involved in charitable, civic, or other outside business
activities provided such activities do not pose a conflict of interest or
interfere with the performance of his duties to the Employer pursuant to this
Agreement.
Notwithstanding anything to the contrary contained herein, during the Term
and during the period of non-competition, the Employee's ownership of shares of
stock and Membership Interests/Membership Units or other form of ownership in
the businesses as identified on the attached SCHEDULE 1 to this Agreement, and
his ownership and investment in any other businesses or activities not
affiliated with the Employer, provided such businesses and activities are not a
"Restricted Enterprise" as defined within Section 4.2 shall not constitute a
breach of this Section 1.3 or any other terms and provisions of this Agreement
provided such ownership, investments, or involvement do not interfere with the
Employee's performance of his duties hereunder. The Parties agree the Employee
may become an investor, shareholder, member, or otherwise in other businesses
and investments during the Term and during the period of non-competition as
provided herein.
SECTION 2. COMPENSATION.
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2.1 SALARY. As compensation for the performance of the Employee's
services hereunder, during the Term, the Employer shall pay to the Employee a
salary at an annual rate of eighty thousand dollars ($80,000.00), payable in
accordance with the Employer's standard payroll policies (the "Base Salary").
2.2 BONUS. The Employer may, from time to time, in its sole
discretion, adopt a stock bonus plan or otherwise determine a bonus amount which
may be paid to the Employee. Nothing herein shall obligate the Employer to pay
a bonus to the Employee. Any compensation paid to the Employee under this
Agreement shall be subject to customary withholding for Federal, State, and
other employment taxes as required with respect to compensation paid by an
Employer to an Employee.
2.3 EMPLOYEE BENEFITS. During the Term, the Employee shall be eligible
to participate in such health and other group insurance and other employee
benefit plans and programs of the Employer as are in effect from time to time on
the same basis as other senior executives of the Company. Said health insurance
coverage and the insurance carrier shall be determined and selected by and at
the Employer's sole discretion and election. The Employer may terminate health
insurance coverage as it may determine in its sole discretion during the Term of
the Employee's employment. The Employee shall pay and contribute to any
insurance plans such sums as are required pursuant to the Plan documents.
2.4 VACATION AND TIME OFF. During the Term, the Employee shall be
entitled to certain paid time off, paid holidays, and vacation time in
accordance with the policies and procedures as adopted by the Employer and as
may be amended from time to time. Vacation time and other time off shall be
scheduled by mutual agreement with the Employer.
2.5 BUSINESS EXPENSES; MOVING EXPENSES. The Employer shall pay or
reimburse the Employee for all commercially reasonable out-of-pocket business
expenses the Employee incurs during the Term in performing his duties under this
Agreement upon presentation of documentation and in accordance with the expense
reimbursement policy of the Employer as approved by the Board of Directors of
the Company (the "Board") (or a committee thereof) and in effect from time to
time. Notwithstanding anything herein to the contrary or otherwise, except to
the extent any expense or reimbursement described in this Agreement does not
constitute a "deferral of compensation" within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended, and the regulations and guidance
thereunder ("Section 409A"), any expense or reimbursement described in this
Agreement shall be made in accordance with the policies and procedures as
adopted by the Employer from time to time.
SECTION 3. EMPLOYMENT TERMINATION.
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3.1 TERMINATION OF EMPLOYMENT. The Employer may terminate the
Employee's employment for any reason during the Term, and the Employee may
voluntarily terminate his employment for any reason during the Term, in each
case (other than a termination by the Employer for Cause) at any time upon not
less than thirty (30) days' notice to the other Party. The Employer may
immediately terminate the Employee for Cause (as defined herein). Upon the
termination of the Employee's employment with the Employer for any reason, the
Employee shall be entitled to any Base Salary earned but unpaid through the date
of termination, any unreimbursed expenses in accordance with Section 2.5 hereof
and, to the extent not theretofore paid or provided, any other amounts or
benefits required to be paid or provided under any plan, Annual Bonus or other
incentive compensation plan, program, policy, practice or other contract or
agreement of the Employer and its affiliated companies through the date of
termination of employment (collectively, the "Accrued Amounts"). All sums to be
paid for the Annual Bonus and any incentive compensation plan shall be paid to
the Employee on a pro-rated basis for the entire fiscal year based on the number
of days the Employee is employed by the Employer during such year.
3.2 CERTAIN TERMINATIONS.
(a) TERMINATION BY THE EMPLOYER OTHER THAN FOR CAUSE OR
DISABILITY; TERMINATION BY THE EMPLOYEE FOR GOOD REASON. If the Employee's
employment is terminated during the Term by the Employer other than for Cause or
Disability, or by the Employee for Good Reason, in addition to the Accrued
Amounts the Employee shall be entitled to a lump sum payment equal to three (3)
months of Base Salary at the rate in effect immediately prior to the date of
termination (such payment, the "Severance Payment"). The Employer's obligations
to make the Severance Payment shall be conditioned upon: (i) the Employee's
continued compliance with his obligations under Section 4 of this Agreement; and
(ii) the Employee's execution and delivery of a valid and enforceable general
release of claims (the "Release") in the form attached hereto as SCHEDULE 2. In
the event it is established by a court of competent
jurisdiction that the Employee has breached any of the covenants set forth in
Section 4 of this Agreement, the Employee will immediately return to the
Employer any portion of the Severance Payment that has been paid to the Employee
pursuant to this Section 3.2(a). Subject to the foregoing and Section 3.2(c),
the Severance Payment will be paid to the Employee on the regularly scheduled
payment dates for payroll during the three (3) month term following the
termination of the Employee's employment.
(b) DEFINITIONS. For purposes of this Section 3.2, the following
terms shall have the following meanings:
(1) "Cause" shall mean the Employee's (i) continuing failure,
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for more than ten (10) days after the Employer's written notice to the Employee
thereof, to perform such duties as are reasonably requested by the Employer;
(ii) failure to observe material policies generally applicable to officers or
employees of the Employer unless such failure is capable of being cured and is
cured within ten (10) calendar days of the Employee receiving written notice of
such failure; (iii) failure to reasonably cooperate with any internal
investigation of the Employer unless such failure is capable of being cured and
is cured within ten (10) calendar days of the Employee receiving written notice
of such failure; (iv) commission of any act of fraud, theft or financial
dishonesty with respect to the Employer or indictment for or conviction or plea
of guilty or nolo contendre to any felony; (v) material violation of the
provisions of this Agreement unless such violation is capable of being cured and
is cured within ten (10) calendar days of the Employee receiving written notice
of such violation; (vi) chronic absenteeism (unless caused by a Disability);
(vii) habitual use of alcohol or controlled substance that impairs the
Employee's ability to perform his duties hereunder; (viii) the loss or
restriction of the Employee's Driver's License or ability to provide services
for any reason on behalf of the Employer at the locations in which services are
provided; (ix) the inability of the Employer to obtain liability insurance
covering the Employee's services at regular rates, including but not limited to
the loss of his Driver's License and any other insurance policies providing
coverage for the services provided by the Employer; (x) the conduct of the
Employee which is detrimental to the services being provided by the Employer,
violates ethical standards, or Federal, State, or local laws, or adversely
affects the reputation of the Employer; (xi) any representation or warranty made
by the Employee which ceases to be true or was not true when made, or the breach
of any provision of this Agreement by the Employee; or (xii) the Employee's
performance of services for other individuals or entities in violation of this
Agreement and any other agreements existing with the Employer, its affiliates,
and its successors and assigns.
(2) "Disability" shall mean the Employee is entitled to
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receive long-term disability benefits under the long-term disability plan of the
Employer in which Employee participates, or, if there is no such plan, the
Employee's inability, as determined by a physician, due to physical or mental
ill health, to perform the essential functions of the Employee's job, with or
without a reasonable accommodation, for ninety (90) calendar days during any 365
day period irrespective of whether such days are consecutive, subject to all
other laws, rules, and regulations.
(3) "Good Reason" shall mean: (i) a material and adverse
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change in the Employee's duties or responsibilities; (ii) a reduction in the
Employee's Base Salary; or (iii)
a material breach by the Employer of this Agreement that, if curable, is not
cured within fifteen (15) calendar days after written notice from the Employee.
(c) SECTION 409A. If the Employee is a "Specified Employee" for
purposes of Section 409A of the Code, and the regulations thereunder, to the
extent required to comply with Section 409A of the Code, any Severance Payment
required to be made pursuant to Section 3.2(a) which is subject to Section 409A
of the Code shall not be made until one (1) day after the day which is six (6)
months from the date of termination. For purposes of this Agreement, the
Employee's employment with the Employer shall be considered to have terminated
when the Employee incurs a "separation from service" with the Employer within
the meaning of Section 409A(a)(2)(A)(i) of the Code, and applicable
administrative guidance issued thereunder.
3.3 EXCLUSIVE REMEDY. The foregoing payment upon termination of the
Employee's employment shall constitute the exclusive severance payment due the
Employee upon a termination of his employment under this Employment Agreement.
3.4 RESIGNATION FROM ALL POSITIONS. Upon the termination of the
Employee's employment with the Employer for any reason, the Employee shall be
deemed to have resigned, as of the date of such termination, from all positions
he then holds with the Employer as an Officer, Director, Employee and Member of
the Board (and any committee thereof) (as applicable) and the Board of Directors
(and any committee thereof) of any of the Employer's affiliates.
3.5 COOPERATION. Following the termination of the Employee's
employment with the Employer for any reason, the Employee agrees to reasonably
cooperate with the Employer upon reasonable request of the Board and to be
reasonably available to the Employer with respect to matters arising out of the
Employee's services to the Employer and its subsidiaries. The Employer shall
pay the Employee a per diem fee of not less than sixty dollars and ten cents
dollars ($60.10) per hour for any such services, and shall promptly reimburse
the Employee for expenses reasonably incurred in connection with such matters.
SECTION 4. UNAUTHORIZED DISCLOSURE; NON-COMPETITION; NON-SOLICITATION;
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INTERFERENCE WITH BUSINESS RELATIONSHIPS; PROPRIETARY RIGHTS.
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The Employer and the Employee shall, concurrently with the execution of
this Agreement, enter into a Non-Competition and Confidentiality Agreement
wherein the Employee shall be bound by the terms of such instrument for which
separate consideration has been paid. Said Non-Competition and Confidentiality
Agreement is attached hereto and marked as SCHEDULE 3. The Employee shall be
bound by the terms of such Non-Competition and Confidentiality Agreement during
the Term of this Agreement, during his employment, and thereafter. The Employee
agrees his employment and during the Restricted Period (as defined herein) be
restricted in accordance with the terms of this Agreement and the
Non-Competition and Confidentiality Agreement. For purposes of this Section 4,
the obligations regarding unauthorized disclosure, non-competition,
non-solicitation, interference with business relationships, and proprietary
rights shall be applicable to the Employer, its affiliates, subsidiaries,
including but not limited to High Plains Gas, LLC, and its
successors-in-interest.
4.1 UNAUTHORIZED DISCLOSURE. The Employee agrees and understands that
in the Employee's position with the Employer, the Employee will be exposed to
and will receive information relating to the confidential affairs of the
Employer and its affiliates, including, without limitation, technical
information, intellectual property, business and marketing plans, strategies,
customer information, software, other information concerning the products,
promotions, development, financing, expansion plans, business policies and
practices of the Employer and its affiliates and other forms of information
considered by the Employer and its affiliates to be confidential or in the
nature of trade secrets (including, without limitation, ideas, research and
development, know-how, formulas, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information and
business and marketing plans and proposals) (collectively, the "Confidential
Information"). Notwithstanding the foregoing, Confidential Information shall
not include information that is now in or hereafter enters the public domain
without a breach of this Agreement.
The Employee agrees that at all times during the Employee's employment with
the Employer and thereafter, the Employee shall not disclose such Confidential
Information, either directly or indirectly, to any individual, corporation,
partnership, limited liability company, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof (each a "Person") other than in connection with the
Employee's employment with the Employer without the prior written consent of the
Employer, and shall not use or attempt to use any such information in any manner
other than in connection with his employment with the Employer, unless required
by law to disclose such information, in which case the Employee shall provide
the Employer with written notice of such requirement as far in advance of such
anticipated disclosure as possible. This confidentiality covenant has no
temporal, geographical or territorial restriction. Upon termination of the
Employee's employment with the Employer, the Employee shall promptly supply to
the Employer all property, computers, electronic information or other media,
keys, notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical
data and any other tangible product or document which has been produced by,
received by or otherwise submitted to the Employee during the Employee's
employment with the Employer, and any copies thereof in his (or capable of being
reduced to his) possession. The requirement regarding non-disclosure of
information shall exist during the Term of the Employee's employment and
indefinitely following his termination for any reason.
4.2 NON-COMPETITION. By and in consideration of the Employer's
entering into this Agreement and the payments to be made and the benefits to be
provided hereunder, and in further consideration of the Employee's exposure to
the Confidential Information of the Employer and its affiliates, the Employee
agrees that the Employee shall not, during the Term of the Employee's employment
with the Employer (whether during the Term or thereafter) and, except as
otherwise provided herein, (the "Restricted Period"), directly or indirectly,
own, manage, operate, join, control, be employed by, or participate in the
ownership, management, operation or control of, or be connected in any manner
with, including, without limitation, holding any position as a stockholder,
Director, Officer, consultant, independent contractor, employee, partner, or
investor in any Restricted Enterprise (as defined herein) in which the Employer
was engaged during the twenty-four (24) months preceding the date of
termination; and provided further, that in no event shall ownership of one
percent (1%) or less of the
outstanding securities of any class of any issuer whose securities are
registered under the Securities Exchange Act of 1934, as amended, standing
alone, which business or enterprise provides goods or services which would
otherwise be a Restricted Enterprise (as defined herein) be prohibited by this
Section 4.2 so long as the Employee does not have, or exercise, any rights to
manage, become employed by, provide consulting services, or operate the business
as such issuer other than the rights as a stockholder or member thereof.
For purposes of this Section 4.2, "Restricted Enterprise" shall mean any
business or enterprise conducted in any geographic area serviced by the Employer
which materially competes with High Plains Gas, LLC, High Plains Gas, Inc., and
any other affiliates or subsidiaries' business of the acquisition, exploration
for, production, and transportation of minerals, including but not limited to
oil, gas, coalbed methane gas, and other minerals of any type or nature except
as otherwise permitted during the Term, during any period of non-competition,
and as provided pursuant to Section 1.3. At the commencement of the Term of
this Agreement, the geographic areas which are serviced by the Employer shall
include those areas identified on the attached SCHEDULE 4, hereto. Such
geographic area may be expanded during the Term of this Agreement and thereafter
shall include all geographic areas serviced by the Employer on the date of the
termination of the Employee's employment.
Nothing herein shall prohibit the Employee from owning any interest in the
businesses and investments as identified within the attached SCHEDULE 1 of this
Agreement, any other businesses in which he may become an investor or owner
during the Term and during the period of non-competition, and any businesses
which are not a "Restricted Enterprise". In the event the Employee becomes an
investor or owner of a business which is not at the time of his initial
investment or ownership a "Restricted Enterprise", and High Plains Gas, LLC,
High Plains Gas, Inc., or any of its subsidiaries thereafter engage in a similar
business activity, such business of the Employee shall not thereafter become a
"Restricted Enterprise", and he may continue to own and invest in such
businesses. During the Restricted Period, upon request of the Employer, the
Employee shall notify the Employer of the Employee's then-current employment
status.
4.3 NON-SOLICITATION OF EMPLOYEES. During the Restricted Period and
for a period of thirty-six (36) months following the termination of the
Employee's employment for any reason, the Employee shall not directly or
indirectly induce or solicit (or assist any Person to induce or solicit) for
employment any person who is, or within twenty-four (24) months prior to the
date of such solicitation, was an employee of the Employer, High Plains Gas,
LLC, or any of its affiliates.
4.4 INTERFERENCE WITH BUSINESS RELATIONSHIPS. During the Restricted
Period and for thirty-six (36) months following the termination of the
Employee's employment for any reason, the Employee shall not directly or
indirectly induce or solicit (or assist any Person to induce or solicit) any
customer, supplier, or client of the Employer or its subsidiaries to terminate
its relationship or otherwise cease doing business in whole or in part with the
Employer or its subsidiaries, or knowingly directly or indirectly interfere with
(or assist any Person to interfere with) any material relationship between the
Employer or its subsidiaries and any of its or their customers or clients so as
to cause harm to the Employer or its affiliates. For purposes hereof, the term
"Customer" means any individual, person or entity which was or is a customer of
High
Plains Gas, LLC, High Plains Gas, Inc., or its affiliates, and any of its
successors and assigns within two (2) years prior to the date of the termination
of this Agreement. For purposes of hereof, "Supplier" shall mean any
individual, Person, or entity which was or is a supplier of any product or
service to High Plains Gas, LLC, High Plains Gas, Inc., or its affiliates, and
any successors and assigns within two (2) years prior to the date of the
termination of this Agreement.
4.5 EXTENSION OF RESTRICTED PERIOD. The Restricted Period and any Term
following the termination of the Employee's employment for which restrictions
are applicable shall be tolled for any period during which the Employee is found
by a court of competent jurisdiction to have been in breach of any of Sections
4.2, 4.3, or 4.4 hereof.
4.6 PROPRIETARY RIGHTS. The Employee shall disclose promptly to the
Employer any and all inventions, discoveries, and improvements (whether or not
patentable or registrable under copyright or similar Statutes), and all
patentable or copyrightable works, initiated, conceived, discovered, reduced to
practice, or made by him, either alone or in conjunction with others, during the
Employee's employment with the Employer and related to the business or
activities of the Employer and its affiliates (the "Developments"). Except to
the extent any rights in any Developments constitute a work made for hire under
the U.S. Copyright Act, 17 U.S.C. Sec. 101 et seq. that are owned by the
Employer and/or its applicable affiliate, the Employee assigns all of his right,
title and interest in all Developments (including all intellectual property
rights therein) to the Employer or its nominee without further compensation,
including all rights or benefits therefor, including without limitation the
right to xxx and recover for past and future infringement. The Employee
acknowledges that any rights in any Developments constituting a work made for
hire under the U.S. Copyright Act, 17 U.S.C Sec. 101 et seq. are owned upon
creation by the Employer and/or its applicable affiliate as the Employee's
employer.
Whenever requested to do so by the Employer, the Employee shall execute any
and all applications, assignments or other instruments which the Employer shall
deem necessary to apply for and obtain trademarks, patents or copyrights of the
United States or any foreign country or otherwise protect the interests of the
Employer and its affiliates therein. These obligations shall continue beyond
the end of the Employee's employment with the Employer with respect to
inventions, discoveries, improvements or copyrightable works initiated,
conceived or made by the Employee while employed by the Employer, and shall be
binding upon the Employee's employers, assigns, executors, administrators and
other legal representatives.
In connection with his execution of this Agreement, the Employee has
informed the Employer in writing of any interest in any inventions or
intellectual property rights that he holds as of the date hereof as set forth on
SCHEDULE 5 hereto (the "Existing Inventions"). Notwithstanding anything to the
contrary herein, the Developments shall not include any Existing Inventions. If
the Employer is unable for any reason, after reasonable effort, to obtain the
Employee's signature on any document needed in connection with the actions
described in this Section 4.6, the Employee hereby irrevocably designates and
appoints the Employer and its duly authorized officers and agents as the
Employee's agent and attorney in fact to act for and on the Employee's behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of this Section 4.6 with the same legal
force and effect as if executed by the Employee.
4.7 CONFIDENTIALITY OF AGREEMENT. Other than with respect to
information required to be disclosed by applicable law, industry regulating
agencies and stock exchanges, the Parties hereto agree not to disclose the terms
of this Agreement to any Person, provided the Employee may disclose this
Agreement and/or any of its terms to the Employee's immediate family, financial
advisors, accountants, and attorneys so long as the Employee instructs every
such Person to whom the Employee makes such disclosure not to disclose the terms
of this Agreement further.
4.8 REMEDIES. The Employee agrees that any breach of the terms of this
Section 4 may result in irreparable injury and damage to the Employer, High
Plains Gas, LLC, High Plains Gas, Inc., its affiliates, and
successors-in-interest for which the Employer, High Plains Gas, LLC, High Plains
Gas, Inc., its affiliates, and successors-in-interest may have no adequate
remedy at law; the Employee therefore also agrees that in the event of said
breach or any threat of breach, the Employer shall be entitled to an immediate
injunction and restraining order to prevent such breach and/or threatened breach
and/or continued breach by the Employee and/or any and all Persons acting for
and/or with the Employee, without having to prove damages, in addition to any
other remedies to which the Employer may be entitled at law or in equity,
including, without limitation, the obligation of the Employee to return any
Severance Payment made by the Employer to the Employee. The terms of this
Paragraph shall not prevent the Employer from pursuing any other available
remedies for any breach or threatened breach hereof, including, without
limitation, the recovery of damages from the Employee. The Employee and the
Employer further agree that the provisions of the covenants contained in this
Section 4 are reasonable and necessary to protect the businesses of the Employer
and its affiliates because of the Employee's access to Confidential Information
and his material participation in the operation of such businesses.
SECTION 5. REPRESENTATION.
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The Employee and the Employer each represents and warrants that: (i) he or
it is not subject to any contract, arrangement, policy or understanding, or to
any Statute, governmental rule or regulation, that in any way limits his or its
ability to enter into and fully perform his or its obligations under this
Employment Agreement; and (ii) he or it is otherwise able to enter into and
fully perform his or its obligations under this Agreement.
SECTION 6. NON-DISPARAGEMENT.
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From and after the Effective Date and following termination of the
Employee's employment with the Employer, the Employee agrees not to make any
statement (other than statements made in connection with carrying out his
responsibilities for the Employer and its affiliates) that is intended to become
public, or that should reasonably be expected to become public, and that
criticizes, ridicules, disparages, reflects adversely or encourages any adverse
action against the Employer or any of its affiliates, or is otherwise derogatory
of the Employer, High Plains Gas, LLC or any of its subsidiaries, affiliates,
employees, officers, directors or
stockholders. The provisions of this Section shall not apply to the extent the
Employee is testifying truthfully under oath pursuant to any lawful court order
or subpoena, or is otherwise responding to or providing disclosures required by
law.
SECTION 7. WITHHOLDING.
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The Employer may withhold from any amounts payable to the Employee under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation. The Employee shall
be solely responsible for the payment of all taxes relating to the payment or
provision of any amounts or benefits hereunder.
SECTION 8. MISCELLANEOUS.
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8.1 INDEMNIFICATION. The Employer shall indemnify the Employee to the
fullest extent provided under the Employer's By-Laws and the laws of the State
of Wyoming.
8.2 AMENDMENTS AND WAIVERS. This Agreement and any of the provisions hereof
may be amended, waived (either generally or in a particular instance and either
retroactively or prospectively), modified or supplemented, in whole or in part,
only by written agreement signed by the Parties hereto; provided, that, the
observance of any provision of this Agreement may be waived in writing by the
Party that will lose the benefit of such provision as a result of such waiver.
The waiver by any Party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing waiver of such
breach or as a waiver of any other or subsequent breach, except as otherwise
explicitly provided for in such waiver. Except as otherwise expressly provided
herein, no failure on the part of any Party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in
respect hereof at law or in equity, shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such Party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
8.3 NOTICES. Any notice, request, instruction or other document or
communication to be given hereunder shall be in writing and shall be deemed to
have been duly given: (i) if mailed, three (3) calendar days following the
mailing of such notice in any general or branch office of the United States
Postal Service, enclosed in a registered or certified postage-paid envelope;
(ii) if sent by facsimile transmission, when so sent and receipt acknowledged by
an appropriate facsimile receipt; or (iii) if sent by other means (including
e-mail), when actually received by the Party to which such notice has been
directed, in each case at the respective addresses or numbers set forth below or
such other address or number as such Party may have fixed by notice; provided,
however, that in the event of delivery under clauses (ii) or (iii) (otherwise
than by receipted hand delivery), such notice shall be promptly followed by
notice pursuant to clause (i):
TO HIGH PLAINS GAS, LLC TO EMPLOYEE
High Plains Gas, LLC Xxxxxxx X. Xxxxxxx
P.O. Box 1564 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxx, XX 00000
WITH COPIES (WHICH SHALL NOT
--------------------------------
CONSTITUTE NOTICE) TO:
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J. Xxxx Xxxxx
Law Firm of J. Xxxx Xxxxx, P.C.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Phone: 000.000.0000
Facsimile: 307.686.3721
xxxxxxxx@xxx.xxx
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Any Party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
8.4 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights and obligations of the Parties hereto shall be
governed by the laws of the State of Wyoming without giving effect to the
conflicts of law principles thereof.
8.5 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement, including those contained in Section 4 hereof, will
be interpreted in such manner as to be effective and valid under applicable law
but the invalidity or unenforceability of any provision or portion of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision or
portion of any provision, in any other jurisdiction. In addition, should a
court determine that any provision or portion of any provision of this
Agreement, including those contained in Section 4 hereof, is not reasonable or
valid, either in period of time, geographical area, or otherwise, the Parties
hereto agree that such provision should be interpreted and enforced to the
maximum extent which such court deems reasonable or valid.
8.6 ENTIRE AGREEMENT. This Agreement and all attached related agreements
constitutes the entire agreement between the Parties hereto, and supersedes all
prior representations, agreements and understandings, both written and oral,
between the Parties hereto with respect to the subject matter hereof.
8.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
8.8 ASSIGNMENT AND SUCCESSORS. The rights and obligations of the Employer
and its Affiliates under this Agreement may be assigned by it to an individual,
Affiliate, Company, Corporation, limited liability company, limited liability
partnership, or other business entity. Such rights of the Employer and its
Affiliates under this Agreement may be assigned pursuant to a reorganization of
the Employer or its Affiliates, and to a transferee (whether by merger, sale of
all or substantially all of its assets, sale of securities of the Employer and
its Affiliates, or
otherwise) of the Business. The Employee and his Affiliates' rights and
obligations hereunder may not be assigned to or assumed by any other Person. No
other persons shall have any right, benefit or obligation hereunder.
8.9 GENERAL INTERPRETIVE PRINCIPLES. The name assigned this Agreement
and headings of the Sections, Paragraphs, Subparagraphs, clauses and subclauses
of this Agreement are for convenience of reference, only, and shall not in any
way affect the meaning or interpretation of any of the provisions hereof. Words
of inclusion shall not be construed as terms of limitation herein, so that
references to "include," "includes" and "including" shall not be limiting and
shall be regarded as references to non-exclusive and non-characterizing
illustrations.
8.10 SECTION 409A COMPLIANCE. This Agreement is intended to comply
with Section 409A of the Code (to the extent applicable) and, to the extent it
would not adversely impact the Employer, the Employer agrees to interpret, apply
and administer this Agreement in the least restrictive manner necessary to
comply with such requirements and without resulting in any diminution in the
value of payments or benefits to the Employee.
8.11 DEFINITION OF "DAY". As used within this Agreement, the term
"Day" or the term "Days" shall mean calendar days.
8.12 JURISDICTION FOR DISPUTES; REMEDIES. Any action to enforce the
terms and conditions of this Agreement shall be brought and venue and
jurisdiction shall lie with the District Court of the Sixth Judicial District
located in Gillette, Xxxxxxxx County, Wyoming which shall have exclusive
jurisdiction over the Parties and the subject matter of any litigation with
regard to this Agreement.
Should either Party be required to file an action to enforce this
Agreement, the prevailing Party shall be entitled to his or its reasonable
attorneys' fees and costs, including such fees and costs incurred prior to
litigation, during litigation, and upon any appeal from the non-prevailing
Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
HIGH PLAINS GAS, LLC EMPLOYEE
_____________________________________ ___________________________________
By: Xxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board Date Signed:________________________
Date Signed: ___________________________
STATE OF WYOMING )
)SEC.
COUNTY OF XXXXXXXX )
Sworn, acknowledged, and signed to before me by Xxxx X. Xxxxxxxxx, Chairman
of the Board of High Plains Gas, LLC, known to me (or satisfactorily proven) to
be the person named in the foregoing document, and who acknowledge that he
freely and voluntarily executed the same for the purposes stated therein, this
_______ day of February, 2011.
WITNESS my hand and official seal.
________________________________
Notary Public
My Commission expires:
STATE OF WYOMING )
)SEC.
COUNTY OF XXXXXXXX )
Sworn, acknowledged, and signed to before me by Xxxxxxx X. Xxxxxxx, known
to me (or satisfactorily proven) to be the person named in the foregoing
document, and who acknowledges that he freely and voluntarily executed the same
for the purposes stated therein, this _______ day of February, 2011.
WITNESS my hand and official seal.
________________________________
Notary Public
My Commission expires:
