EXHIBIT 10.5
THREE FORKS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT (XXXXXXX X. XXXXXXX)
This AGREEMENT (the "Agreement") is made as of the 12th day of February, 2013.
The "Effective Date" shall be considered to be the date that Employee actually
and physica11y begins his employment with the Corporation, expected to be on or
before the 1st day of March, 2013.
BETWEEN:
THREE FORKS, INC.
with its registered office at
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000 XXX
(hereinafter called the "Corporation") PARTY OF THE FIRST PART
AND:
XXXXXXX X. XXXXXXX
0000 X. 000xx Xxx
Xxxxxxxxxxx, Xxxxxxxx, 00000 XXX
(hereinafter called "Employee") PARTY OF THE SECOND PART
WHEREAS the Corporation is incorporated under the laws of the State of Colorado
and carries on business as an oil and gas exploration and production company;
AND WHEREAS the Corporation wishes to employ the Employee as its President and
Chief Operating Officer and to act as a Director, and additionally as its Chief
Executive Officer and President of its wholly owned subsidiary, TFI Operating
Company, Inc., and the Employee has agreed to such employment as the President
and Chief Operating Officer of the Corporation, and to employment as Chief
Executive Officer and President of its wholly owned operating company, and to
act as a Director of both business entities, on the terms and subject to the
conditions herein set forth;
AND WHEREAS the parties wish to formally record the terms of employment of the
Employee and his responsibilities, remuneration and other benefits;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
mutual covenants herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by both parties, the parties
hereby covenant and agree with each other as follows:
1.0 EMPLOYMENT
1.1 The Corporation agrees to employ and to continue to employ the
Employee and the Employee agrees to serve the Corporation in the
capacity of President and Chief Operating Officer ("COO") and as a
Director, during the term of this Agreement.
1.2 Subject to all necessary regulatory approvals, the employment of the
Employee under this Agreement shall commence on the Effective Date and
continue until terminated as hereinafter provided.
1.3 The Employee shall report to and be directly responsible to the Chief
Executive Officer of the Corporation (the "CEO"). The Employee shall
perform, observe and conform to such duties and instructions as from
time to time are reasonably assigned or communicated to him by the CEO
and which are reasonably consistent with the employment and status of
the Employee as President and COO of the Corporation, and shall make
such reports to the CEO as may be necessary to fully and properly
inform it of the matters of business of the Corporation for which the
Employee is responsible as well as such additional reports as the CEO
may from time to time reasonably request.
1.4 The Employee understands that it is the Corporation's intention to
take the Corporation public in a short period of time, and it is the
Employee's and the Corporation's intention that the Employee will
assume the position of President, COO and a Director of any new
business entity created as a result of the public offering. Any new
employment agreement that might result from this expected event shall
contain terms and conditions materially and essentially the same as
contained in this Agreement, with the new business entity.
1.5 CORRUPT PRACTICES. Employee agrees and covenants that he has not, and
will not make, in the performance of this Agreement, any payment, loan
or gift or promise or offer of payment, loan or gift ofany money or
anything of value, directly or indirectly:
(i) to or for the use or benefit of any official employee of any
government or agency or instrumentality of any such government;
(ii) to any political party or official or candidate thereof;
(iii)to any other person if Corporation or Employee knows or has
reason to know that any part of such payment. loan or gift will
be directly or indirectly given or paid to any such governmental
official or employee or political party or candidate or official
thereof; or
(iv) to any other person or any entity, the payment of which would
violate the laws of the State of Colorado, the United States, or
any country where the Corporation is seeking to or doing
business.
Corporation will make its counsel available to Employee to advise on
the laws of the respective states and countries relating to this
subject.
Corporation also agrees and covenants that it will not require
Employee to engage in, on behalf of Corporation, any of the
aforementioned activities or practices.
2.0 COMPENSATION
2.01 SALARY: The Corporation agrees to pay the Employee and the Employee
agrees to accept as remuneration for his services hereunder a salary
in the amount of USD $17,500 (Seventeen thousand
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five hundred United States Dollars) per month payable as per the
Corporation's monthly pay schedule while this Agreement remains in
force, exclusive of any other benefits referred to herein. The amount
of any subsequent salaiy will be reassessed by the Board of Directors
annually on the anniversary of the Effective Date based on the
performance of the Employee.
2.02 INITIAL STOCK OPTIONS: Upon the Effective Date of this Agreement, the
Employee will be awarded 2,250,000 (Two million two hundred fifty
thousand) non-qualified stock options of Three Forks, Inc. (the
"Initial Stock Options"). The Initial Stock Options will have 1) a
$1/share option strike price, 2) ear term, 3) a cashless exercise
option for Employee, 4) an exercise loan option for Employee wherein
the Corporation will loan the Employee the money to exercise options
at a 3% interest rate and up to year loan term (term length to be at
the sole discretion of the Employee) with no prepayment penalty, and
5) a tag along sales option for the Employee should the CEO or other
Board of Directors elect to sale stock prior to a public stock
offering.
2.03 PERFORMANCE SHARES: The Corporation agrees to set up an incentive
share plan for the benefit of the Employee whereby the Employee shall
have the right to earn up to 500,000 common shares of the Corporation
based upon meeting or exceeding some reasonably measurable
quantitative milestones to be mutually agreed upon by the Employee,
CEO and Corporation's Board of Directors following the completion of
the Employee's first year of employment with the Corporation. For
clarity, these 500,000 incentive shares will be distributed in
increments tied to the production and reserve growth of the
Corporation. For example, when the Corporation's net production first
averages 1,000 BOEPD for one calendar quarter, the Employee will
receive 100,000 shares, and so on for ever increasing production
plateaus. The shares shall be distributed in addition to any company
wide incentive compensation plan established to incentivize
Corporation employees.
2.04 BENEFITS AND INSURANCE COVERAGE: The Corporation is required to
acquire Directors and Officers insurance normal to the business of the
Corporation concurrent with the employment of Employee and to invoke
employee family group medical, vision and dental plans, employee life
insurance, employee long-term disability insurance, employee 401 K
plan, and other insurance and benefits programs consistent with oil
and gas industry practices in the Denver area for the benefit of
Employee (and other employees) starting no later than January 1, 2014.
2.05 ADDITIONAL STOCK OPTIONS: The Employee shall be entitled to
participate in any and all incentive programs, including, without
limiting the generality of the foregoing, share option plans, share
purchase plans, share and/or cash bonus plans and/or financial
assistance plans, in accordance with and on terms and conditions
determined by the applicable provisions of such plans as established
by the Corporation from time to time or by the Board in its sole
discretion. The Employee acknowledges that his participation in these
plans or programs will be to such extent and in such amounts as the
Board in its sole discretion may decide from time to time, except for
the Additional Stock Options that the Corporation hereby agrees to
allocate to him as the COO. The Corporation will allocate not less
than l 0% of the Corporation's share option pool, typically 10% of
shares outstanding, to the COO based on performance criteria/goals set
by the Board, pursuant to the provisions of this Agreement and the
Corporation' s Share Option Plan, once it is in existence.
2.06 Any amounts to which the Employee may be entitled under any such plan
or program as described in Sections 2.2, 2.3 and 2.5 above shall not,
for the purposes of this Agreement, be treated as salaiy.
2.07 The Employee agrees that the Corporation may substitute, reduce,
modify, or if necessary, eliminate the incentive programs described in
2.5 at any time, after prior consultation with Employee. Any and all
stock option shares or share awards as described in Section 2.5 which
have not vested at the time of the incentive program change will vest
immediately, and will become the property of
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the Employee. All such plans or programs shall be governed by the
policies of the various regulatory bodies which have jurisdiction over
the affairs of the Corporation.
2.08 All transactions in the shares assigned and vested in the Employee are
to be subject to the applicable stock exchange regulations and
securities acts pertaining to xxxxxxx xxxxxxx.
2.09 In the event this Agreement is terminated by the Employee, all shares
not vested in the Employee at the time of the termination, shall
return to the Corporation. All shares already vested will remain the
property of Employee. This paragraph does not apply to termination of
the Agreement by the Corporation or in the event of a change of
control, whereupon all shares and options assigned to the Employee
shall vest immediately at the time of termination of this Agreement.
2.10 VACATION: The Employee shall initially be entitled to 24 (twenty four)
days vacation, without reduction in salary, in each calendar year, to
be taken at such time or times as shall be convenient to him and to
the Corporation acting reasonably, for which purpose the Employee
shall obtain approval from the CEO. Holidays for each calendar year
will be agreed upon annually. The Corporation acknowledges that the
Employee has no fixed requirements with respect to his working hours
so long as the Employee meets his employment obligations as the
President and COO; however, it is agreed that personal time away from
the office will be focused on Wednesday and Friday afternoons for
purposes of scheduling internal and external meetings.
2.11 EXPENSES: The Employee shall be reimbursed by the Corporation on a
monthly basis for all out of pocket expenses actually, necessarily and
properly incurred by him in the discharge of his duties for the
Corporation. The Employee agrees that such reimbursements shall be due
only after he has rendered an itemized expense account, together with
receipts where applicable, showing all monies actually expended on
behalf of the Corporation and such other infom1ation as may reasonably
be required and requested by the Corporation. The Corporation agrees
to provide Employee with a computer (with necessary software), a cell
phone and all other equipment required for the purposes of conducting
business. In the case of air travel, any journey of three (3) hours
total duration or less is to be taken in economy class and on journeys
greater than three (3) hours total duration may be taken in Business
Class or equivalent.
2.12 VEHICLE: The Corporation will not provide Employee with a company
vehicle, but agrees to reimburse Employee for miles driven in personal
vehicle for company business or for rental vehicle expenses when
appropriate.
3.0 TERM AND TERMINATION
3.01 EFFECTIVE DATE - This Agreement will take effect on the Effective Date
and will continue in full force and effect until the earlier of:
(a) expiration of a three year period from the date of this Agreement;
and
(b) date of termination as otherwise provided for hereunder and
pursuant to this Section 3.
3.02 TERMINATION BY CORPORATION FOR CAUSE - Notwithstanding any other
provision of this Agreement, the Corporation may, at any time, give
written notice to the Employee of its intention to terminate this
Agreement if the Employee's acts or omissions would constitute Cause
as defined below and at such time this Agreement shall be terminated.
Upon such termination, any remuneration payable hereunder shall be
proportioned to the date of such termination and shall be paid on the
date of such termination together
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with any other amounts then due and owing to the Employee including.
without limitation, any bonuses (proportioned to the date of
termination) and expenses. In addition, any stock options or other
stock awards as described in Sections 2.2, 2.3, and 2.5 above then
held by the Employee that have vested as of the date of the notice
shalt be governed, with respect to their term and exercisability, by
the terms of this Agreement or the stock option plan of the
Corporation and the stock option agreement under which such stock
options were granted; provided that any stock options then held by the
Employee that have not vested as of the date of the notice shall be
deemed to have expired and cancelled.
"Cause", for purposes of this Agreement shall arise, in respect to the
Employee, because of the Employee's (i) theft, embezzlement, fraud,
obtaining funds or property under false pretences, with respect to the
property of the Corporation or its employees or the Corporation's
customers or suppliers; or (ii) guilty plea or any conviction of the
Employee of any indictable offence or of a summary conviction offence
under applicable criminal laws.
3.03 If the Employee should die during the period of his employment
hereunder, termination of his employment shall be deemed to have been
effected by the Corporation and the provisions of Section 3.02 shall
apply and any payment to be made to the Employee pursuant to this
Agreement shall be paid to the legal representatives of the Employee.
3.04 If Employee should become incapacitated by accident, sickness or other
circumstance which renders him mentally or physically incapable of
performing the duties and services required of him hereunder on a
full-time basis for a period of at least 90 consecutive days,
termination of his employment shall be deemed to have been effected by
the Corporation and the provisions of Section 3.2 shall apply and any
payment to be made to the Employee pursuant to this Agreement shall be
paid to the legal representatives of the Employee.
3.05 Any termination by the Corporation pursuant to Sections 3.2, 3.3 and
3.4 shall be communicated by written notice of termination to the
Employee or to Employee's legal representative, if necessary. For
purposes of this Agreement, a "notice of termination" shall mean a
notice which shall indicate the specific termination provision of this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
the Employee's employment. For the purposes of this Agreement, no such
purported termination shall be effective without such notice.
3.06 On the date of termination of the employment of the Employee pursuant
to Section 3.2, 3.3 or 3.4 the Corporation's obligation hereunder in
respect of all compensation referred to herein shall terminate.
3.07 TERMINATION BY EITHER PARTY WITHOUT CAUSE: Notwithstanding any other
provision of this agreement, the Employee or the Corporation may give
30-day written notice of the intention to terminate this Agreement
without cause and this Agreement shall be terminated 30 days from such
notice. In the event of a termination of this Agreement by the
Corporation in accordance with this Section, all Employee Stock
Options shall become immediately vested and fully released to the
Employee on the date of termination of this Agreement. In the event of
a termination of this Agreement by the Employee in accordance with
this Section, any Employee Stock Options not vested to the Employee,
as at the date of delivery of notice of termination by the Employee to
the Company, shall be cancelled.
4.0 CHANGE IN CONTROL
4.0l In a Change of Control (see definition below) event, the Corporation
shall treat this Agreement as terminated by Corporation without cause
in which event Corporation shall be obligated to provide the Employee
with a severance payment in lieu of notice. Such severance payment
shall be
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payable on the fifth day following the date on which Corporation
notifies the Employee of his termination and shall consist of the
following amounts:
(i) the Employee's full salary through to the date of termination
specified in the notice of termination at the rate in effect at
the time notice of termination was given, plus an amount equal to
the amount, if any, of any awards previously made to the Employee
which have not been paid; plus
(ii) in lieu of further salary and benefits for periods subsequent to
the date of termination, an amount which shall be equal to the
salary and benefits which would otherwise have been payable to or
paid on behalf of the Employee for the twelve (12) month period
following the date of termination; plus
(iii)any remaining or outstanding stock grants, options or awards as
described in Sections 2.2, 2.3 and 2.5 above shall fully vest,
with a cashless option provision provided to the Employee for
option exercising purposes.
Additionally, any common shares owned by the Employee and subject to
vesting will be immediately released from escrow to the Employee.
Termination of this Agreement in accordance with this Section shall
relieve the Corporation from any and all obligation, liability or
claim by the Employee, exclusive of monies owing to the Employee
pursuant to this Section.
For purposes of this Agreement, the term "Change in Control" shall
mean (1) any merger, consolidation, or reorganization in which
Corporation is not the surviving entity (or survives only as a
subsidiary of an entity), (2) any sale, tease, exchange, or other
transfer of (or agreement to sell, lease, exchange, or otherwise
transfer) all or substantially all of the assets of Corporation to any
other person or entity (in one transaction or a series of related
transactions), (3) dissolution or liquidation of Corporation, (4) a
new individual or party, or group of individuals or parties acting
jointly or in concert coming to own of record or beneficially, or
coming to control or exercise direction over, for the first time, 50%
or more of the then issued and outstanding voting shares of the
Corporation, (5) as a result of or in connection with a contested
election of directors, the persons who were directors of Corporation
before such election cease to constitute a majority of the Board of
Directors, (6) a unilateral requirement that Employee permanently
relocate to any place more than 25 miles away from the Corporation's
Denver, Colorado office to perfom1 required work duties, or (7) a
material reduction in Employee's duties, title, compensation or
benefits in effect as of the date of the Change of Control, or
position of responsibility as set forth in this Agreement; provided,
however, that the term "Change in Control" shall not include any
reorganization, merger, consolidation, sale, lease, exchange, or
similar transaction involving solely the Corporation and one or more
previously wholly owned subsidiaries of the Corporation.
4.02 Subject to all applicable regulations governing the Corporation's
common shares, if any "person", or any person and any "associate" of
such person, begins a tender or exchange offer, circulates a proxy to
shareholders or takes other steps to effect a takeover of the control
of Corporation (a "Take Over") all common stock shares and incentive
stock options to purchase common shares of the Corporation owned by
the Employee shall vest immediately on the commencement of such Take
Over subject to Exchange escrow and vesting requirements.
4.03 For purposes of this Agreement takeover of control shall be evidenced
by the acquisition by any person, or by any person and its associates,
whether directly or indirectly, of common shares of the
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Corporation that, when added to all other common shares at the time
held by such person and its affiliates, totals for the first time more
than 50% of the outstanding common shares of the Corporation.
5.0 DUTIES OF THE EMPLOYEE
5.01 During the term of this Agreement, the Employee shall devote his working
time, attention and energies to the business of the Corporation and
undertake such tasks as are ordinarily undertaken by a person in a similar
position at a similar company to the Corporation. Without the prior consent
of the Board, the Employee shall not, during the term of this Agreement.
directly or indirectly engage in any business which is in direct
competition with that of the Corporation or its associates or affiliates or
accept employment with any other company, firm or individual, whether a
competitor or otherwise, or take any other action inconsistent with the
fiduciary relationship of a President and COO to his corporation.
5.02 Notwithstanding the above, the Employee may serve, with or without
compensation, on the boards of such companies or corporations, Crown
corporations or on such industry associations or on such government or
other public boards or committees (domestic or international) as the
Employee may determine, subject to the approval of the Board, such approval
not to be unreasonably withheld, provided that the objectives of such
boards or committees are not, in the opinion of the Board, similar to the
interests of the Corporation and may devote such reasonable amount of his
time (including time during business hours) to the affairs of such boards
or committees as the Employee, in consultation with the Board, may
determine as reasonable.
5.03 In the event that the Corporation becomes involved in any legal action
relating to events which occur during the Employee's employment under this
Agreement and about which the Employee has knowledge, the Employee will
cooperate with the Corporation to the fullest extent possible in the
preparation, prosecution, or defense of the Corporation's case.
6.0 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
6.01 The Employee agrees that during engagement under this Agreement and
for one (1) year after termination of such engagement assuming the
Corporation has met and fulfilled all of its obligations under this
Agreement, the Employee will not. without express written consent of
the Corporation, divulge or use confidential business information or
trade secrets obtained by the Employee in the course of engagement
with the Corporation, directly or indirectly, for the Employee's own
benefit or for the benefit of any other person, firm, business,
corporation, or entity, except in accordance with this Agreement or
with the written permission of the Corporation.
7.0 NON-HIRING
7.01 The Employee agrees that during engagement under this Agreement and
for a period of one ( l ) year after the termination of such
engagement assuming the Corporation has met or fulfilled all of its
obligations under this Agreement, he will not, without the express
written consent of the Corporation, personally or on behalf of any
other person, business, corporation, or entity, directly or
indirectly, make any effort to induce any employee of the Corporation
to leave his or her employment with the Corporation.
8.0 RETURN OF DOCUMENTS
8.0l The Employee acknowledges that all originals and copies of records,
reports, documents, lists, memoranda, notes, and other documentation
related to the business of the Corporation or containing any business
information of the Corporation (whether developed or prepared by the
Corporation or others) shall be the sole and exclusive property of the
Corporation and shall be returned to the
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Corporation upon the termination of engagement under this Agreement
for any reason whatsoever or upon the written request of the
Corporation. The Employee shall not take with him any documents or
data of any kind or any reproductions in whole or in part of such
documents or of the information contained in such documents.
9.0 BUSINESS OPPORTUNITIES
9.01 The Employee agrees to communicate to the Corporation all business
opportunities, inventions and improvements in the nature of the
business of the Corporation which, while his employment continues, he
may conceive, make or discover, become aware of, directly or
indirectly, or have presented to him in any manner, that relate in any
way to the type of business of the Corporation, either as it is now or
as it may develop, and such business opportunities, inventions and
improvements shall become the exclusive property of the Corporation
without any obligation on the part of the Corporation to make any
payment therefore in addition to the salary and benefits described
herein to the Employee. Notwithstanding the above requirement for
fully divulging business opportunities to the Corporation, it is
hereby agreed that if the Corporation elects not to pursue a business
opportunity for whatever reason and Employee wishes to pursue such
opportunity, Board permission for Employee to pursue such opportunity
shall not be unreasonably withheld.
9.02 The Employee hereby advises the Corporation that he has a non-compete
commitment with his prior employer which could prevent him from
participating in oil and gas competitive operations in an area
surrounding Section 33, T4N, R68W, Weld County, Colorado and in an
area surrounding the Credo North prospect in Xxxxxxxxx County, Texas,
for a period of one year commencing on December 31, 2012.
10.0 SUCCESSORS OR ASSIGNS
10.01The rights and obligations of the Corporation under this Agreement
shall inure to the benefit of and be binding upon the successors or
assigns of the Corporation.
11.0 MISCELLANEOUS
11.01This Agreement and the employment of the Employee shall be governed,
interpreted, construed and enforced according to the laws of the State
of Colorado.
11.02The nondisclosure, non-solicitation and non-hiring covenants of this
Agreement contained in Sections 6.0 and 7.0 are severable, and if any
clause or clauses are found to be unenforceable as written, the
Agreement and its remaining covenants shall not fail but shalt be
construed and enforced as stated in the Agreement. The parties agree
that no covenant of this Agreement shall be invalidated because of
over-breadth insofar as the parties acknowledge that the scope of the
covenants contained herein is reasonable and necessary to protect the
Corporation and are not unduly restrictive of the Employee. Should a
court determine not to enforce any covenant of this Agreement due to
over-breadth, then the parties agree that said covenant shall be
enforced to the extent reasonable, with the court to make any
necessary revisions to said covenant to permit its enforcement,
whether such revisions be in time, territory, or scope of prohibited
activities.
11.03This Agreement and the completion of the obligation of the parties
contained herein, including but not limited to the granting of Stock
Options or other stock awards, is subject to the approval of any other
regulatory body having jurisdiction. The Stock Options and awards will
be issued only in compliance with all applicable securities laws.
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11.04This Agreement shall inure to the benefit of and be enforceable by
the Employee's legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the
Employee should die while any amounts are still payable to him
hereunder, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to such legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees or, if there be no such designee,
to his estate.
11.05This Agreement represents the entire Agreement between the Employee
and the Corporation concerning the subject matter hereof and
supersedes any previous oral or written communications,
representations, understandings or agreements with the Corporation or
any officer or agent thereof.
11.06Any notice, acceptance or other document required or permitted
hereunder shall be considered and deemed to have been duly given if
delivered by hand or mailed by postage (Special Delivery) prepaid and
addressed as follows:
To the Employee:
Xxxxxxx X. Xxxxxxx
0000 X. 000xx Xxx
Xxxxxxxxxxx, Xxxxxxxx 00000
To the Corporation:
Three Forks, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: CEO
or to such other address as any party may specify in writing to the
other and shall be deemed to have been received, if delivered, on the
date of delivery and if mailed as aforesaid, then on the second
business day following the date of mailing thereof provided that if
there shall be, at the time of mailing or within two business days
thereof, a strike, slowdown or other labour dispute which might affect
delivery of notice by the mails then the notice shall only be
effective if actually delivered.
11.07The waiver by the Employee or by the Corporation of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the Corporation or by the Employee.
11.08 Time shall be of the essence of this Agreement.
11.09This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together
will constitute one and the same Agreement.
The obligations of each party under this Agreement. other than the
obligations to make payments of money and provide other benefits and
perquisites (including but not limited to the vesting of stock options
or stock awards) to Employee as provided in this Agreement, shall be
excused or suspended while such party is prevented or hindered from
complying therewith, in whole or in part, by Force Majeure. In the
event Force Majeure causes a suspension of the obligations of any
party as aforesaid, such party shall give notice thereof as soon as
reasonably possible to the other party stating the date and extent of
such
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suspension, whether in whole or in part, and the nature of the Force
Majeure. Any party whose obligations have been suspended as aforesaid
shall take all reasonable steps to remove the Force Majeure situation
and shall resume the performances of such obligations as soon as
reasonably possible after the removal of the Force Majeure and shall
so notify the other party.
11.l0Corporation shall indemnify, defend, and hold harmless Employee, his
heirs, assigns and personal representatives, from and against any and
all loss, cost, damage, liability or expense, relating to, resulting
from or arising out of Employee's performance of services hereunder,
except to the extent that such loss, cost, damage, liability or
expense results from the gross negligence or willful misconduct of
Employee. Notwithstanding Employee's right to receive his salary,
benefits and out of pocket expenses while performing his duties for
the Corporation, Employee shall indemnify, defend, and hold harmless
Corporation, its subsidiaries, associates, and affiliates, and their
respective officers, directors and executives, from and against any
and all loss, costs, damage, liability or expense, sustained by
Employee, resulting from or arising out of Corporation's performance
hereunder, except to the extent that such loss, cost, damage,
liability or expenses results from the gross negligence or willful
misconduct of Corporation. Neither Corporation nor Employee shall be
liable to the other for any of its incidental or consequential damages
(including without limitation, lost profits). Neither of them shall
assert any such claim against the other or its subsidiaries or
affiliates, or their respective directors or employees, or its heirs,
assigns or personal representatives.
12.0 ENFORCEMENT
12.01Both the Employee and the Corporation recognize and agree that in the
event of a breach or threatened breach of the nondisclosure,
non-competition, or non-hiring covenants of this Agreement,
irreparable harm might result to the Corporation and its business.
Therefore, the parties agree that if the Corporation has met and
fulfilled all of its obligations under this Agreement and in such
event of breach or threatened breach, the Corporation shall be
entitled to an injunction to restrain actual or potential violation of
the nondisclosure, non-solicitation, and non-hiring covenants of this
Agreement in addition to all other remedies, damages, or legal relief
available to the Corporation.
12.02The Employee represents and admits that his or her considerable
business talents, past experience, and proven capabilities are such
that the Employee can obtain employment in some other business and
that enforcement of this Agreement by way of injunction is not
intended to and will not prevent the Employee from earning a
livelihood. For enforcement purposes, the non-disclosure, non-
solicitation, and non-hiring covenants of this Agreement shall be
construed as obligation independent of any other obligations between
the parties, and the existence of any claim or cause of action by the
Employee against the Corporation shall not constitute a defense to the
enforcement by the Corporation by way of injunction of the
nondisclosure, non-solicitation, and non-hiring covenants of this
Agreement. This clause is relevant and enforceable only if and when
Corporation has met and fulfilled all of its obligations under this
Agreement.
13.0 AGREEMENT VOLUNTARY AND EQUITABLE
13.0lThe Corporation and the Employee further acknowledge and declare that
they each have carefully considered and understand the terms of
employment contained in this Agreement including, but without limiting
the generality of the foregoing, the Employee's rights upon
termination and the restrictions on the Employee after termination,
and acknowledge and agree that the said terms of employment and rights
and restrictions upon termination are mutually fair and equitable, and
that they executed this Agreement voluntarily and of their own free
will.
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IN WITNESS WHEREOF the Corporation has caused this Agreement to be executed by
its duly authorized officers on its behalf and the Employee has hereunto
executed this Agreement as of the day and year first above written.
THREE FORKS, INC.
Per: /s/ Xxxxxx Xxxxxxx
------------------------------
Authorized Signatory
Xxxxxx Xxxxxxx CEO
------------------------------
Name
SIGNED AND DELIVERED )
BY XXXXXXX X. XXXXXXX IN THE PRESENCE OF: )
)
/s/ W. Xxxxxx Xxxxxxx )
-------------------------------- )
Name )
)
000 Xxxxxxxx Xxxx ) /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- ) ------------------------
Address ) Xxxxxxx X. Xxxxxxx
)
Xxxxxxxxxx, XX 00000 )
-------------------------------- )
City )
)
Chairman )
-------------------------------- )
Occupation )
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