EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
May 15, 2001, by and between Xxxxxx X. Xxxxx (the "Executive"), and Bellwether
Exploration Company, a Delaware corporation (the "Company"), and the effective
date of which shall be the date (the "Effective Date") on which the Effective
Time occurs, as such term is defined in the Agreement and Plan of Merger dated
as of January 24, 2001 between Xxxxx Energy Company and the Company (the "Merger
Agreement").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive as the Senior Vice
President - Corporate Finance and to perform services incident to such position
for the Company, and the Executive wishes to be so employed by the Company, all
upon the terms and conditions hereinafter set forth:
NOW THEREFORE, in consideration of the premises and mutual covenants
and obligations herein set forth and for other good and valuable consideration,
the receipt, sufficiency and adequacy of which is hereby acknowledged, accepted
and agreed to, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Employment and Term. The Company hereby employs the Executive to
serve as the Senior Vice President - Corporate Finance of the Company. The term
of this Agreement (the "Term of this Agreement") shall be effective as of the
Effective Date and shall terminate thirty-six (36) months from the date hereof
(the "Termination Date"), unless earlier terminated by either party hereto in
accordance with the provisions of Section 5 hereof; provided, however, that
beginning on the third anniversary date of the Effective Date and on each
anniversary date of the Effective Date thereafter, the Term of this Agreement
shall be automatically extended one additional year unless either party shall
give written notice to the other at least six months prior to such anniversary
of the Effective Date that the Term of this Agreement shall cease to be so
extended. During the term of this Agreement, the terms of employment shall be as
set forth herein unless modified by the Executive and the Company in accordance
with the provisions of Section 11 hereof. The Executive hereby agrees to accept
such employment and to perform the services specified herein, all upon the terms
and conditions hereinafter set forth.
2. Position and Responsibilities. The Executive shall serve as the
Senior Vice President - Corporate Finance of the Company and shall report to,
and be subject to the general direction and control of, the President and Chief
Financial Officer of the Company. The Executive shall have other obligations,
duties, authority and power to do all acts and things as are customarily done by
a person holding the same or equivalent position or performing duties similar to
those to be performed by executives in corporations of similar size to the
Company and shall perform such managerial duties and responsibilities for the
Company as may reasonably be assigned to him by the President and Chief
Financial Officer of the Company. Unless otherwise agreed to by the Executive,
the Executive shall be based at the Company's principal executive offices
located in the greater Houston, Texas metropolitan area.
3. Extent of Service. The Executive shall devote his full business
time and attention to the business of the Company.
4. Compensation.
(a) In consideration of the services to be rendered by the
Executive to the Company, the Company will pay the Executive a salary ("Salary")
of $250,000.00 per year during the Term of this Agreement. Such Salary will be
payable in conformity with the Company's prevailing practice for executives'
compensation as such practice shall be established or modified from time to
time. Salary payments shall be subject to all applicable federal and state
withholding, payroll and other taxes. From time to time during the Term of this
Agreement, the amount of the Executive's Salary may be increased by, and at the
sole discretion of, the Compensation Committee of the Company's Board of
Directors, which shall review the Executive's Salary no less regularly than
annually.
(b) The Company shall grant the Executive an option to
purchase 150,000 shares of common stock of the Company at an exercise price per
share equal to the closing price of a share of Company common stock on the
Effective Date. Such Option shall vest 33.4% on the Effective Date of this
Agreement and the remainder in two equal amounts on each of the first and second
anniversary dates of the Effective Date. The term of the Option shall be ten
years from the date of grant subject to the provisions of paragraph 5(f)(i)
hereof.
(c) Any cash and/or stock bonuses paid to the Executive
shall be based on performance and be at the sole discretion of the Compensation
Committee of the Company's Board of Directors; provided, however, in the event
such cash and/or stock bonuses shall be paid to the Executive, it shall be no
less than 50% of Executive's then existing current salary.
(d) During the term of this Agreement, the Company shall pay
or reimburse the Executive for all reasonable out-of-pocket expenses for travel,
meals, hotel accommodations, entertainment and the like incurred by him in
connection with the business of the Company upon submission by him of an
appropriate statement documenting such expenses as required by the Internal
Revenue Code of 1986, as amended (the "Code").
(e) The Executive shall be entitled to four (4) weeks of
paid vacation during each calendar year during the term of this Agreement.
Vacation shall accrue commencing on the first day of each calendar year or such
proportionate part of such year computed from the date first above written. The
Company shall pay the Executive for any accrued but unused portion of vacation
and any such unused portion of vacation shall not be carried forward to the next
year.
(f) During the term of this Agreement, the Executive shall
be entitled to participate in and to receive all rights and benefits under any
life, disability, medical and dental, health and accident and profit sharing or
deferred compensation plans and such other plan or plans as may be implemented
by the Company during the term of this Agreement. The Executive shall also be
entitled to participate in and to receive all rights and benefits under any plan
or program adopted by the Company for any other or group of other executive
employees of the Company, including without limitation, the rights and benefits
under the directors' and
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officers' liability insurance currently in place under the Company's insurance
program for the directors and officers of the Company.
(g) During the term of this agreement, the Executive shall
be entitled to receive a car allowance of $500.00 per month and one parking
space shall be provided to the Executive by the Company.
5. Termination.
(a) Termination by Company; Discharge for Cause. The Company
shall be entitled to terminate this Agreement and the Executive's employment
with the Company at any time and for whatever reason; or at any time for
"Cause" (as defined below) by written notice to the Executive. Termination of
the Executive's employment by the Company shall constitute a termination for
"Cause" if such termination is for one or more of the following reasons: (i) the
willful failure or refusal of the Executive to render services to the Company in
accordance with his obligations under this Agreement, including, without
limitation, the failure or refusal of the Executive to comply with the work
rules, policies, procedures, and directives as established by the Board of
Directors and consistent with this Agreement; such failure or refusal to be
uncured and continuing for a period of not less than fifteen (15) days after
notice outlining the situation is given by the Company to the Executive; (ii)
the commission by the Executive of an act of fraud or embezzlement; (iii) the
commission by the Executive of any other action with the intent to injure the
Company; (iv) the Executive having been convicted of a felony or a crime
involving moral turpitude; (v) the Executive having misappropriated the property
of the Company; (vi) the Executive having engaged in personal misconduct which
materially injures the Company; or (vii) the Executive having willfully violated
any law or regulation relating to the business of the company which results in
material injury to the Company. In the event of the Executive's termination by
the Company for Cause hereunder, the Executive shall be entitled to no severance
or other termination benefits except for any unpaid Salary accrued through the
date of termination. A termination of this Agreement by the Company without
Cause pursuant to this Section 5(a) shall entitle the Executive to the Severance
Payment and other benefits specified in Section 5(f) hereof.
(b) Death. If the Executive dies during the term of this
Agreement and while in the employ of the Company, this Agreement shall
automatically terminate and the Company shall have no further obligation to the
Executive or his estate except that the Company shall pay to the Executive's
estate that portion of his Salary and benefits accrued through the date of
death. All such payments to the Executive's estate shall be made in the same
manner and at the same time as the Executive's Salary.
(c) Disability. If during the term of this Agreement, the
Executive shall be prevented from performing his duties hereunder for a period
of 60 consecutive days by reason of disability, then the Company, on 30 days'
prior written notice to the Executive, may terminate this Agreement. For
purposes of this Agreement, the Executive shall be deemed to have become
disabled when the Board of Directors of the Company, upon verification by a
physician designated by the Company, shall have determined that the Executive
has become physically or mentally unable (excluding infrequent and temporary
absences due to ordinary illness) to
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perform the essential functions of his duties under this Agreement with
reasonable accommodation. In the event of a termination pursuant to this
paragraph (c), the Company shall be relieved of all its obligations under this
Agreement, except that the Company shall pay to the Executive or his estate in
the event of his subsequent death, that portion of the Executive's Salary and
benefits accrued through the date of such termination. All such payments to the
Executive or his estate shall be made in the same manner and at the same time as
his Salary would have been paid to him had he not become disabled.
(d) Termination for Good Reason. The Executive shall be
entitled to terminate this Agreement and his employment with the Company under
this Agreement at any time upon thirty (30) days written notice to the Company
for "Good Reason" (as defined below). The Executive's termination of employment
shall be for "Good Reason" if such termination is a result of any of the
following events:
(i) The Executive is assigned any responsibilities
or duties materially inconsistent with his position, duties, responsibilities
and status with the Company as in effect at the date of this Agreement or as may
be assigned to the Executive pursuant to Section 2 hereof; or his title or
offices as in effect at the date of this Agreement or as the Executive may be
appointed or elected to in accordance with Section 2 are changed; or the
Executive is required to report to or be directed by any person other than the
President and Chief Financial Officer of the Company;
(ii) there is a reduction in the Salary (as such
Salary shall have been increased from time to time) payable to the Executive
pursuant to Section 4(a) hereof;
(iii) failure by the Company or any successor to the
Company or its assets to continue to provide to the Executive any material
benefit, bonus, profit sharing, incentive, remuneration or compensation plan,
stock ownership or purchase plan, stock option plan, life insurance, disability
plan, pension plan or retirement plan in which the Executive was entitled to
participate in as at the date of this Agreement or subsequent thereto, or the
taking by the Company of any action that materially and adversely affects the
Executive's participation in or materially reduces his rights or benefits under
or pursuant to any such plan or the failure by the Company to increase or
improve such rights or benefits on a basis consistent with practices in effect
prior to the date of this Agreement or with practices implemented and subsequent
to the date of this Agreement with respect to the executive employees of the
Company generally, which ever is more favorable to the Executive, but excluding
such action that is required by law;
(iv) without Executive's consent, the Company
requires the executive to relocate to any city or community other than the
Houston, Texas metropolitan area, except for required travel on the Company's
business to an extent substantially consistent with the Executive's business
obligations under this Agreement; or
(v) there is any material breach by the Company of
any provision of this Agreement.
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Upon the Executive's termination of this Agreement for Good
Reason, the Executive shall be entitled to the Severance Payment and other
benefits specified in Section 5(f) hereof.
(e) Voluntary Termination. Notwithstanding anything to the
contrary herein, the Executive shall be entitled to voluntarily terminate this
Agreement and his employment with the Company at his discretion upon thirty (30)
days written notice to such effect. In such event, the Executive shall not be
entitled to any further compensation other than any unpaid Salary and benefits
accrued through the date of termination. At the Company's option, the Company
may pay to the Executive the salary and benefits that the Executive would have
received during such thirty (30) day period in lieu of requiring the Executive
to remain in the employment of the Company for such thirty (30) day period.
(f) Termination Benefits Upon Involuntary Termination or
Termination for Good Reason. In the event that (i) the Company terminates this
Agreement and the Executive's employment with the Company for any reason other
than for Cause (as defined in Section 5(a) hereof) or the death or disability
(as defined in Section 5(c) hereof) of the Executive, or (ii) the Executive
terminates this Agreement and his employment with the Company for Good Reason
(as set forth in Section 5(d) hereof), then the Company shall pay the Executive,
within thirty (30) days after the date of termination, an amount equal to (x)
two (2) times the Executive's highest annual Salary in existence at any time
during the last two (2) years of employment immediately preceding the date of
termination, plus (y) two (2) times the highest annual bonus paid to the
Executive during such two-year period, provided, however, in the event of
termination pursuant to this subsection (f) prior to the receipt by Executive of
a bonus, an annual bonus of $125,000.00 shall be imputed for purposes of
computing the Severance Payment defined in this subsection, minus applicable
withholding and authorized salary reductions, if any (the "Severance Payment").
In addition, following such termination, the Executive shall be entitled to the
following benefits (collectively, the "Additional Benefits");
(i) immediate vesting of any of the Executive's
outstanding options to purchase securities of the Company which were not vested
by their own terms on the date of termination and the extension of the
Executive's right to exercise all the Executive's options to purchase securities
of the Company for a period equal to the lesser of (A) one (1) year following
the date of termination or (B) the remaining term of the applicable option;
(ii) continued coverage, at the Executive's cost,
under the Company's group health plan for the applicable coverage period under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")
but only if Executive elects such COBRA continuation in accordance with the time
limits and in the applicable COBRA regulations; and
(iii) an amount, in cash, equal to the sum of (A) any
unreimbursed expenses incurred by the Executive in the performance of his duties
hereunder through the date of termination, plus (B) any accrued and unused
vacation time or other unpaid benefits as of the date of termination.
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Notwithstanding anything in this Agreement to the contrary, if
any payment to Executive in respect of a Company stock-based award would give
rise to a short-swing profit liability to Executive under Section 16(b) of the
Securities Exchange Act of 1934 (the "Exchange Act"), then both the payment and
the entitlement to payment thereof shall automatically be deferred until the
earliest date at which the payment of such benefit would not result in a
short-swing profit liability to Executive.
The parties agree that, because there can be no exact measure of
the damages which would occur to the Executive as a result of termination of
employment, such payments contemplated in this Section 5(f) shall be deemed to
constitute liquidated damages and not a penalty and the Company agrees that the
Executive shall not be required to mitigate his damages. The termination
compensation in this Section 5(f) shall be paid only if the Executive and the
Company each executes a termination agreement releasing all legally waivable
claims of each other arising from the Executive's employment.
(g) Termination and Benefits upon a Change in Control. In
the event of a Change in Control, as defined in this Section 5(g), then in lieu
of the Severance Payment contained in Section 5(f) hereof, if the Executive is
terminated without Cause or the Executive terminates his employment for Good
Reason within the twelve (12) month period immediately following a Change in
Control, the Company shall pay to the Executive a lump sum amount equal to: (x)
two (2) times the Executive's highest annual salary paid during the last two (2)
years immediately preceding the date of termination, plus (y) two (2) times the
highest annual bonus paid to the Executive while employed by the Company,
provided, however, in the event of a Change in Control of the Company prior to
the receipt by Executive of a bonus, a bonus of $125,000.00 shall be imputed for
the purposes of computing the Payment as defined in this paragraph, minus
applicable withholding and authorized salary reductions, if any (the "Payment").
In the event that the excise tax relating to "parachute payments" under Section
280G of the Code applies to the Payment, then the Company shall pay the
Executive an additional payment in an amount such that, after payment of federal
income taxes (but not the excise tax) on such additional payment, the Executive
retains an amount equal to the excise tax originally imposed on the Payment. The
Executive shall also be entitled to receive the Additional Benefits. "Change of
Control" means or shall be deemed to have occurred if and when: (i) any "person"
or "group" (as such terms are used in Section 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 50% of the total voting
power of the outstanding voting stock of the Company; (ii) the Company is merged
with or into or consolidated with another Person and, immediately after giving
effect to the merger or consolidation, (a) less than 50% of the total voting
power of the outstanding voting stock of the surviving or resulting Person is
then "beneficially owned" (within the meaning of Rule 13d-3 under the Exchange
Act) in the aggregate by the stockholders of the Company immediately prior to
such merger or consolidation, or (b) any "person: or "group" (as defined in
Section 13(d)(3) or 14(d)(2) of the Exchange Act) has become the direct or
indirect "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the total voting power of the voting stock of the surviving or
resulting Person; (iii) the Company sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of the Company assets (either
in one transaction or a series of related transactions); (iv) during any
consecutive two-year period,
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individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination by the Board of Directors for election by
the stockholders of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (v) the liquidation or dissolution
of the Company.
(h) Survival. Notwithstanding the termination of this
Agreement under this Section 5, the provisions of Sections 7 and 8 of this
Agreement, and all other provisions hereof which by their terms are to be
performed following the termination hereof shall survive such termination and be
continuing obligations.
6. Consent and Waiver by Third Parties. The Executive hereby
represents and warrants that he has obtained all necessary waivers and/or
consents from third parties as to enable him to accept employment with the
Company on the terms and conditions set forth herein and to execute and perform
this Agreement without being in conflict with any other agreement, obligations
or understanding with any such third party.
7. Confidential Information. The Executive acknowledges that in the
course of his employment with the Company, he has received and will receive
access to confidential information of a special and unique value concerning the
Company and its business, including, without limitation, trade secrets,
know-how, lists of customers, employee records, books and records relating to
operations, costs or providing service and equipment, operating and maintenance
costs, pricing criteria and other confidential information and knowledge
concerning the business of the Company and its affiliates (hereinafter
collectively referred to as "information") which the Company desires to protect.
The Executive acknowledges that such information is confidential and the
protection of such confidential information against unauthorized use or
disclosure is of critical importance to the Company. The Executive agrees that
the will not reveal such information to any one outside the Company. The
Executive further agrees that during the term of this Agreement and thereafter
he will not use or disclose such information. Upon termination of his employment
hereunder, the Executive shall surrender to the Company all papers, documents,
writings and other property produced by him or coming into his possession by or
through his employment hereunder and relating to the information referred to in
this Section 7, and the Executive agrees that all such materials will at all
times remain the property of the Company. The obligation of confidentiality,
non-use and non-disclosure of know-how set forth in this Section 7 shall not
extend to know-how (i) which was in the public domain prior to disclosure by the
disclosing party, (ii) which comes into the public domain other than through a
breach of this Agreement, (iii) which is disclosed to the Executive after the
termination of this Agreement by a third party having legitimate possession
thereof and the unrestricted right to make such disclosure, or (iv) which is
necessarily disclosed in the course of the Executive's performance of his duties
to the Company as contemplated in this Agreement. The agreements in this Section
7 shall survive the termination of this Agreement.
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8. No Solicitation. To support the agreements contained in Section
7 hereof, from the date hereof and for a period twelve (12) months after the
Executive's employment with the Company is terminated for any reason, the
Executive shall not, either directly or indirectly, through any person, firm,
association or corporation with which the Executive is now or may hereafter
become associated, (i) hire, employ, solicit or engage any then current employee
of the Company or its affiliates, or (ii) use in any competition, solicitation
or marketing effort any information as to which the Executive has a duty of
confidential treatment under paragraph 7 above, unless agreed to by the
Company.
9. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or three days from the date
mailed, postage prepaid, by certified mail, return receipt requested, or by
facsimile if addressed to the respective parties as follows:
If to the Executive: Xxxxxx X. Xxxxx
00 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
If to the Company: Bellwether Exploration Company
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx X. Manner, Chief Executive
Officer
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
10. Specific Performance. The Executive acknowledges that a remedy
at law for any breach or attempted breach of Section 7 or 8 of this Agreement
will be inadequate, agrees that the Company shall be entitled to specific
performance and injunctive and other equitable relief in case of any such a
breach or attempted breach, and further agrees to waive any requirement of the
securing or posting of any bond in connection with the obtaining of any such
injunctive or any other equitable relief.
11. Waivers and Modifications. This Agreement may be modified, and
the rights and remedies of any provision hereof may be waived, only in
accordance with this Section 11. No modification or waiver by the Company shall
be effective without the consent of at least a majority of the Compensation
Committee of the Board of Directors then in office at the time of such
modification or waiver. No waiver by either party of any breach by the other or
any provision hereof shall be deemed to be a waiver of any later or other breach
thereof or as a waiver of any other provision of this Agreement. This Agreement
sets forth all the terms of the understandings between the parties with
reference to the subject matter set forth herein and may be amended only by an
instrument in writing signed by both parties.
12. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Texas.
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13. Severability. In case of one or more of the provisions contained
in this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
14. Arbitration. In the event that a dispute or controversy should
arise between the Executive and the Company as to the meaning or application of
any provision, term or condition of this Agreement, such dispute or controversy
shall be settled by binding arbitration in Houston, Texas and for said purpose
each of the parties hereto hereby expressly consents to such arbitration in such
place. Such arbitration shall be conducted in accordance with the existing rules
and regulations of the American Arbitration Association governing commercial
transactions. The expense of the arbitrator shall be borne by the Company.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date and year first above written.
COMPANY:
BELLWETHER EXPLORATION COMPANY
By: /s/ Xxxxxxx X. Manner
-----------------------------------
Xxxxxxx X. Manner, Chairman of the
Board and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
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