EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between BOIS D'ARC
ENERGY, LLC, a Nevada limited liability company (the "Company") with principal
offices in Houston, Texas, and XXXX X. XXXXXXX ("Employee").
1. Employment. The Company hereby agrees to employ Employee, and
Employee hereby agrees to render his service to the Company, in the capacity of
President of the Company, with such duties as may be assigned to him from time
to time by the Board of Managers or Board of Directors of the Company (the
"Board").
2. Term of Agreement. This Agreement shall be effective commencing on
July 16, 2004 (the effective date of this Agreement) and shall have a term of
three (3) years. This Agreement shall, as of its first anniversary, and on each
annual anniversary thereof, be extended automatically, without further action by
the Employee or the Company, for an additional one (1) year, so that there
shall, as of July 16 of each year, be three (3) years remaining in the term of
this Agreement (the "Employment Period"), subject to earlier termination as
hereinafter provided. This Agreement shall terminate upon the liquidation or
dissolution of the Company, and if the liquidation or dissolution is pursuant to
Section 17.7 of the Operating Agreement of the Company, then the parties shall
have no further obligations to each other, including, without limitation,
pursuant to Paragraph 14 of this Agreement (other than payment to the Employee
of accrued base salary through the date of termination, and as set forth in
Paragraph 8 of this Agreement).
3. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's base of operations
shall be located in Houston, Texas; provided if Employee is located away from
the base of operations, the Company shall reimburse Employee for the reasonable
cost of such remote office and the travel back to the base of operations.
4. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $30,000.00 per month, payable semi-monthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board in its sole discretion. Employee shall
also be entitled to participate in any Company discretionary bonus plan. Such
compensation shall be in addition to any group insurance, pension, profit
sharing, and other employee benefits, which are extended from time to time to
Employee (and Employee's spouse) in the discretion of the Board and for which
Employee is eligible. Subject to such rules and procedures as are from time to
time specified by the Company, the Company shall also reimburse Employee for all
reasonable expenses incurred by him on behalf of the Company.
5. Performance of Services. Employee shall devote substantially all of
his working time to the business of the Company; provided, however, Employee
shall be allowed to participate in non-operated working interest ownership in
oil and gas exploration and production
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activities onshore in the United States and in the state waters of the State of
Texas and shall be excused from performing any services for the Company
hereunder during periods of temporary incapacity and during vacations conforming
to the Company's standard vacation policy, without thereby in any way affecting
the compensation to which he is entitled hereunder.
6. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
come into his possession during his employment hereunder, shall be deemed to be
confidential and proprietary to the Company and the Employee further agrees to
retain in confidence any confidential information known to him concerning the
Company and it's subsidiaries and their respective businesses so long as such
information is not publicly disclosed. In the event of a breach or threatened
breach by the Employee of the provisions of this Paragraph 6, the Company shall,
in addition to any other available remedies, be entitled to an injunction
restraining Employee from disclosing, in whole or in part, any such information
or from rendering any services to any person, firm or corporation to whom any of
such information may have been disclosed or is threatened to be disclosed.
7. Property of Company. All data, drawings, and other records and
written material prepared or compiled by Employee or furnished to Employee while
in the employ of the Company shall be the sole and exclusive property of the
Company, and none of such data, drawings or other records, or copies thereof,
shall be retained by Employee upon termination of his employment.
Notwithstanding the foregoing, Employee shall be under no obligation to return
public information.
8. Surviving Provisions. The provisions of Paragraphs 6 and 7 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
9. Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
Company determines in good faith that the Disability of the Employee has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Employee written notice of its intention to
terminate the Employee's employment. In such event, the Employee's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Employee (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Employee shall not have returned to
full-time performance of the Employee's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Employee from the Employee's duties
with the Company on a full-time basis for 150 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative.
10. Termination for Good Reason. The Employee's employment may be
terminated by the Employee for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean:
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(a) the assignment to the Employee of any duties inconsistent in
any respect with the Employee's position (including status,
offices, titles and reporting requirements), authority, duties
or responsibilities as contemplated by Paragraph 1 of this
Agreement;
(b) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this
Agreement;
(c) any failure by the Company to comply with and satisfy
Paragraph 19(a) of this Agreement,
(d) the Company's requiring the Employee to reside in or be based
at any office or location other than as provided in Paragraph
3 of this Agreement, or
(e) following a Change in Control, the Company's requiring the
Employee to travel on Company business to a substantially
greater extent than during any period prior to the Change in
Control.
Any good faith determination of "Good Reason" made by the Employee
shall be conclusive.
11. Termination for Cause. It is agreed and understood that the Company
cannot terminate the employment of the Employee under this Agreement except for
Cause, which shall mean:
(a) Should Employee for reasons other than illness or injury
absent himself from his duties without the consent of the
Company (which consent shall not be unreasonably withheld) for
more than twenty (20) consecutive business days;
(b) Should Employee be convicted of a felony involving moral
turpitude;
(c) Should Employee during the period of his employment by the
Company engage in any activity that would in the opinion of
the Board constitute a material conflict of interest with the
Company's oil and gas activities in the Gulf of Mexico;
provided that termination for Cause based on this subparagraph
(c) shall not be effective unless the Employee shall have
received written notice from the Board of such activity (which
notice shall also include a demand for the Employee to cease
the activity giving rise to the conflict of interest) thirty
(30) days prior to his termination and the Employee has failed
after receipt of such notice to cease or commence efforts to
cease all activities creating the conflict of interest; or
(d) Should Employee be grossly negligent in the performance of his
duties hereunder, or materially in breach of his duties and
obligations under this Agreement; provided that termination
for Cause based on this subparagraph (d) shall not be
effective unless the Employee shall have received written
notice from the Board (which notice shall include a
description of the
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reasons and circumstances giving rise to such notice) thirty
(30) days prior to his termination and the Employee has failed
after receipt of such notice to satisfactorily discharge the
performance of his duties hereunder or to comply with the
terms of this Agreement, as the case may be.
The Company may terminate Employee's employment for Cause under this Agreement
without advance notice, except as otherwise specifically provided for in
subparagraphs (c) and (d) above. Termination shall not affect any of the
Company's other rights and remedies.
12. Obligations of the Company upon Termination.
(a) Good Reason or Involuntary Termination Other Than for Cause.
If, during the Employment Period, the Company shall terminate
the Employee's employment other than for Cause or the Employee
shall terminate employment for Good Reason, the Company shall
pay to the Employee in a lump sum in cash within 30 days after
the date of termination the aggregate of the following
amounts:
(1) the sum of (A) the Employee's annual base salary through
the date of termination to the extent not theretofore
paid, (B) the product of the annual bonus paid or
payable, including any bonus or portion thereof which
has been earned but deferred (and annualized for any
fiscal year consisting of less than twelve full months
or during which the Employee was employed for less than
twelve full months), for the most recently completed
fiscal year during the Employment Period (the "Fiscal
Year Bonus"), if any, and a fraction, the numerator of
which is the number of days in the current fiscal year
through the date of termination, and the denominator of
which is 365, and (C) any compensation previously
deferred by the Employee (together with any accrued
interest or earnings thereon) and any accrued vacation
pay, in each case to the extent not theretofore paid
(the sum of the amounts described in clauses (A), (B)
and (C) shall be hereinafter referred to as the "Accrued
Obligations"); and
(2) an amount equal to 1.5 times the sum of the Employee's
annual base salary and the Fiscal Year Bonus; and for
eighteen (18) months after the Employee's date of
termination, the Company shall continue group medical
benefits to the Employee and/or the Employee's family at
least equal to those which would have been provided to
them in accordance with the plans if the Employee's
employment had not been terminated; provided, however,
that if the Employee becomes re-employed with another
employer and is eligible to receive group medical
benefits under another employer-provided plan, the
medical benefits described herein shall be secondary to
those provided under such other plan during such
applicable period of eligibility.
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All options to purchase shares or units in the Company
("Company Equity") and restricted shares or units of
Company Equity shall vest in Employee's account upon the
effective date of Employee's termination under this
Paragraph. The Company will use reasonable efforts to
obtain the release of the Employee's Company Equity from
any trading restrictions other than (i) restrictions
imposed by contractual obligations with third parties or
(ii) restrictions under state or federal securities
laws; provided, however, that in no event will the
Company be required to register any unregistered shares
under the Securities Act.
In addition, the Company shall, at its sole expense as
incurred, provide the Employee with outplacement
services, the scope and provider of which shall be
selected by the Employee in his sole discretion, and the
Company shall assign to the Employee ownership of any
life insurance policies owned by the Company insuring
the Employee's life.
(b) Death. If the Employee's employment is terminated by
reason of the Employee's death during the Employment
Period, the Company shall pay to the Employee's legal
representatives the sum of (1) the Accrued Obligations,
and (2) an amount equal to six months' annualized total
compensation. Such amounts shall be paid in a lump sum
in cash within 30 days of the date of termination.
(c) Disability. If the Employee's employment is terminated
by reason of the Employee's Disability during the
Employment Period, this Agreement shall terminate
without further obligations to the Employee, other than
for payment of Accrued Obligations. During the term of
this Agreement, the Company shall provide, at the
Company's expense, disability insurance for Employee
equal to sixty percent (60%) of Employee's Base
Compensation until Employee attains the age of
sixty-five (65) years. Accrued Obligations shall be paid
to the Employee in a lump sum in cash within 30 days of
the date of termination. In addition, the Company shall
assign to the Employee ownership of any life insurance
policies owned by the Company insuring the Employee's
life.
(d) Cause or Voluntary Termination Other than for Good
Reason. If the Employee's employment shall be terminated
for Cause during the Employment Period, or if the
Employee voluntarily terminates his employment other
than for Good Reason, this Agreement shall terminate
without further obligations to the Employee other than
the obligation to pay to the Employee his annual base
salary through the date of termination and the amount of
any compensation previously deferred by the Employee.
Such amounts shall be paid to the Employee in a lump sum
in cash within 30 days of the date of termination. If
the Employee voluntarily terminates his employment other
than for Good Reason on or after attaining the age of
sixty-one (61), all options to purchase Company Equity
and restricted shares
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or units of Company Equity shall vest in Employee's account
upon the effective date of Employee's termination.
13. Change in Control. For the purposes of this Agreement, a "Change in
Control" shall mean:
(a) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board cease for
any reason to constitute a majority thereof (unless the
election, or nomination for election by holders of the Company
Equity, of such member of the Board was approved by a vote of
at least two-thirds (2/3) of the members of the Board then
still in office who either were members of the Board at the
beginning of such period or whose election or nomination for
election was previously so approved);
(b) a person, other than an "Excluded Person" as defined herein,
including a "group" as defined in Paragraph 13(d)(3) of the
Securities Exchange Act of 1934, becomes the beneficial owner
of shares of any class of the Company Equity having 25% or
more of the total number of votes that may be cast for the
election of members of the Board ; or
(c) consummation of a merger or other business combination of the
Company with or into another corporation pursuant to which the
Company does not survive or survives only as a subsidiary of
another entity, the sale or other disposition of all or
substantially all of the assets of the Company to another
person or entity, or any combination of the foregoing;
provided, however, that a Change in Control will not include (A) any Financing
Transaction (as defined in the Operating Agreement of the Company dated as of
July 16, 2004) and any transaction entered into in connection therewith, (B) any
reorganization, merger, consolidation, sale, lease, exchange or similar
transaction which involves solely the Company and one or more entities
wholly-owned, directly or indirectly, by the Company immediately prior to such
event, or (C) the consummation of any transaction or series of integrated
transactions immediately following which the record holders of the voting
Company Equity immediately prior to such transaction or series of transactions
continue to hold 50% or more of the voting securities of (i) any entity that
owns, directly or indirectly, the Company Equity, (ii) any entity with which the
Company has merged, or (iii) any entity that owns an entity with which the
Company has merged. For purposes hereof, (i) an "Excluded Person" shall mean an
original member of the Company or their affiliates, and (ii) a person will be
deemed to be the beneficial owner of any voting securities of the Company which
it would be considered to beneficially own under Securities and Exchange
Commission Rule 13d-3 (or any similar or superseding statute or rule from time
to time in effect).
14. Termination of Employment Following a Change of Control. Following a
Change of Control, if the Employee's employment is terminated for any reason
other than Cause, death or Disability, or if the Employee voluntarily terminates
his employment (a) within a period of six (6) months following the Change of
Control, or (b) for Good Reason, then the Company shall pay to the Employee the
Accrued Obligations and an amount equal to 2.99 times the sum
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of the Employee's annual base salary and the highest annual bonus paid to the
Employee during the Employee's tenure with the Company; and for eighteen (18)
months after the Employee's date of termination, the Company shall continue
group medical benefits to the Employee and/or the Employee's family at least
equal to those which would have been provided to them in accordance with the
plans if the Employee's employment had not been terminated; provided, however,
that if the Employee becomes re-employed with another employer and is eligible
to receive group medical benefits under another employer provided plan, the
medical benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility. In addition, the
Company shall, at its sole expense as incurred, provide the Employee with
outplacement services, the scope and provider of which shall be selected by the
Employee in his sole discretion, and the Company shall assign to the Employee
ownership of any life insurance policies owned by the Company insuring the
Employee's life
15. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined
that any payment or distribution by the Company to or for the
benefit of the Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any
additional payments required under this Paragraph 15) (a
"Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are
incurred by the Employee with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any interest
or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, the Employee retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Paragraph 15(c), all
determinations required to be made under this Paragraph 15,
including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
Ernst & Young LLP or such other certified public accounting
firm as may be designated by the Employee (the "Accounting
Firm") which shall provide detailed supporting calculations
both to the Company and the Employee within 15 business days
of the receipt of notice from the Employee that there has been
a Payment, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group
effecting the Change in Control, the Employee shall appoint
another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All
fees and expenses of the
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Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Paragraph 15
shall be paid by the Company to the Employee within five days
of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the
Company and the Employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies
pursuant to Paragraph 15(c) and the Employee thereafter is
required to make a payment of any Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Employee.
(c) The Employee shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than ten business days after the Employee is informed in
writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is
requested to be paid. The Employee shall not pay such claim
prior to the expiration of the 30-day period following the
date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies
the Employee in writing prior to the expiration of such period
that it desires to contest such claim, the Employee shall:
(1) give the Company any information reasonably requested by
the Company relating to such claim,
(2) take such action in connection with contesting such
claim as the Company shall reasonably request in writing
from time to time, including, without limitation,
accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in order
effectively to contest such claim, and
(4) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and
shall indemnify and hold the Employee
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harmless, on an after-tax basis, for any Excise Tax or income
tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of
costs and expenses. Without limitation of the foregoing
provisions of this Paragraph 15(c), the Company shall control
all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Employee to pay the tax
claimed and xxx for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Employee to pay such
claim and xxx for a refund, the Company shall advance the
amount of such payment to the Employee, on an interest-free
basis and shall indemnify and hold the Employee harmless, on
an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that
any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with
respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by
the Company pursuant to Paragraph 15(c), the Employee becomes
entitled to receive any refund with respect to such claim, the
Employee shall (subject to the Company's complying with the
requirements of Paragraph 15(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after
the receipt by the Employee of an amount advanced by the
Company pursuant to Paragraph 15(c), a determination is made
that the Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify the
Employee in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
16. Payment of Certain Costs of Employee. If a dispute arises regarding
the interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in seeking to obtain or enforce any right or benefit
provided for in this Agreement or in otherwise pursuing his claim will be paid
by the Company, to the extent permitted by law. The Company further agrees to
pay prejudgment interest on any money judgment obtained by
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the Employee calculated at the First National Bank of Chicago N.A. prime
interest rate in effect from time to time from the date that payment(s) to him
should have been made under this Agreement.
17. Indemnification; Directors, Managers and Officers Insurance. The
Company shall (a) during the Employment Period and thereafter without limitation
of time, indemnify and advance expenses to the Employee to the fullest extent
permitted by the laws of the State of Nevada from time to time in effect and (b)
during the Employment Period, acquire and maintain directors, managers and
officers liability insurance covering the Employee (and to the extent the
Company desires, other directors, managers and officers of the Company and its
affiliated companies) to the extent it is available at commercially reasonable
rates as determined by the Board ; provided, however, that in no event shall the
Employee be entitled to indemnification or advancement of expenses under this
Paragraph 17 with respect to any proceeding, or matter therein, brought or made
by the Employee against the Company other than one initiated by the Employee to
enforce the Employee's advancement of expenses as provided in this Paragraph 17
shall not be deemed exclusive of any other rights to which the Employee may at
any time be entitled under applicable law, the articles of incorporation or
bylaws of the Company, any agreement, a vote of security holders, a resolution
of the Board , or otherwise. The provisions of this Paragraph 17 shall continue
in effect notwithstanding termination of the Employee's employment hereunder for
any reason, including, without limitation, Employee's voluntary termination. In
furtherance thereof, and not by way of limitation, the Company shall reimburse
Employee for all reasonable legal fees and expenses incurred by Employee in
connection with Employee's obtaining and enforcing any right or benefit provided
by this Agreement. The reimbursement of such legal fees and expenses shall be
made within 30 days after Employee's request for payment accompanied by evidence
of the fees and expenses incurred. For a period of ten (10) years after the
termination, for any reason, of Employee's employment with the Company, the
Company shall indemnify, hold harmless and defend Employee, to the fullest
extent permitted by applicable law, from and against any loss, cost or expense
related to or arising out of any action or claim with respect to (i) the Company
or its affiliated companies or (ii) any action taken or omitted by the Employee
(INCLUDING, BUT NOT LIMITED TO, MATTERS THAT CONSTITUTE NEGLIGENCE OF THE
EMPLOYEE) for or on behalf of the Company or its affiliated companies, whether,
in either case, such action or claim, or the facts and circumstances giving rise
thereto, occurred or accrued before or after such termination of employment.
18. Mitigation. The Employee is not required to mitigate the amount of
any payments to be made by the Company pursuant to this Agreement by seeking
other employment or otherwise.
19. Successors.
(a) Except as may otherwise be provided under any other written
agreement between the Company and the Employee with respect to
the terms of Employee's employment in the event of a Change of
Control of the Company, the Company will require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement
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in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement. Notwithstanding the foregoing, upon a conversion of
the Company to a "C" corporation pursuant to the Plan of
Conversion attached as Exhibit B to the Operating Agreement of
the Company, the converted corporation shall by operation of
law assume this Agreement with no further action on the part
of the Company or the Employee. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined, any
successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this
Paragraph 19 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
20. No Inconsistent Obligations. Employee represents and warrants that
he has not previously assumed any obligations inconsistent with those of this
Agreement except as otherwise permitted pursuant to Paragraph 5 above.
21. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
22. Binding Effect. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, and shall also bind and inure to the
benefit of any successor of the Company by merger or consolidation or any
assignee of all or substantially all of its properties.
23. Bankruptcy. Notwithstanding anything in this Agreement to the
contrary, the insolvency or adjudication of bankruptcy of the Company, whether
voluntary or involuntary, shall terminate this Agreement and the rights and
obligations of Company and Employee hereunder shall be of no further force or
effect.
24. Law Governing. This Agreement made, accepted and delivered in Xxxxxx
County, Texas, is performable in Xxxxxx County, Texas, and it shall be construed
and enforced according to the laws of the State of Texas. Venue shall lie in
Xxxxxx County, Texas for the purpose of resolving and enforcing any dispute
which may arise under this Agreement and the parties agree that they will submit
themselves to the jurisdiction of the competent State or Federal Court situated
in Xxxxxx County, Texas.
25. Invalid Provision. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and
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enforceability of the remaining provisions contained herein shall not in any way
be impaired thereby.
26. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
IF TO THE EMPLOYEE:
XXXX X. XXXXXXX
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
IF TO THE COMPANY:
BOIS D'ARC ENERGY, LLC
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxxx Resources, Inc.
Attention: Chief Financial Officer
0000 Xxxx xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
[Signature page follows.]
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EXECUTED and effective as of the 16th day of July, 2004.
BOIS D'ARC ENERGY, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
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