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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated as of August 19,
1996 by and between Coho Energy, Inc., a Texas corporation (the "Company"), and
Xxxx Xxxxx X'Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been providing services to the Company and
the Company has been compensating the Executive; and
WHEREAS, the Company and the Executive have entered into an Executive
Severance Agreement and hereby desire to terminate such agreement and to
continue the employ of the Executive by the Company upon the terms and
conditions and in the capacities set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive hereby agree as follows:
1. EMPLOYMENT AND TERM OF EMPLOYMENT. Subject to the terms and
conditions of this Agreement, the Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Company as Senior Vice
President for a term beginning on the date hereof (the "Effective Date") and
ending on the third anniversary of such date (the "Term of Employment"). On the
second anniversary date hereof and on each annual anniversary of such date
thereafter (such date and each annual anniversary thereafter being referred to
herein as a "Renewal Date"), the Term of Employment shall be automatically
extended so as to terminate two years from such Renewal Date, unless, not less
than 30 days prior to such Renewal Date, written notice is given by either the
Company or the Executive that the Term of Employment shall not be so extended.
In no event, however, will this Agreement extend beyond the Executive's normal
retirement date pursuant to any Company employee benefit plan in which he may
be a participant.
2. SCOPE OF EMPLOYMENT. During the Term of Employment, the Executive
agrees to (i) serve as Senior Vice President of the Company and will perform
the duties and functions as are normal and customary to such position and that
are consistent with the responsibilities contained in the Company's bylaws and
(ii) hold such other corporate offices to which the board of directors of the
Company shall appoint her and perform such other duties not inconsistent with
her position as are assigned to her, from time to time, by the Chief Executive
Officer of the Company, which shall have direct supervision over the Executive.
Executive also agrees to serve, if elected, as an officer or director of any
subsidiary or affiliate of the Company. During the Term of Employment,
Executive shall devote her full business time, attention, skill and efforts to
the faithful performance of her duties hereunder. The foregoing shall not be
construed to prevent the Executive from making investments in businesses or
enterprises so long as such investments do not require any services on the part
of the Executive in the operation of such business or enterprises.
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3. COMPENSATION. During the Term of Employment, in consideration of
the Executive's services hereunder, including, without limitation, service as
an officer, director or member of any committee of the board of directors of
the Company or of any subsidiary or affiliate thereof, and in consideration of
the Executive's covenants regarding confidentiality in Section 5 hereof and
noncompetition in Section 6 hereof, the Executive shall receive a salary at the
rate of $161,500 per year (payable at such regular intervals as other employees
of the Company are compensated in accordance with the Company's employment
practices), which amount shall be subject to review annually by the board of
directors of the Company and may be adjusted at its discretion, provided that
such salary may not be reduced. In addition, the Executive shall be entitled to
participate in such bonus, incentive compensation or other programs as are
created by the board of directors of the Company from time to time. For
purposes of Section 7(c)(i) or 7(d)(i) hereof, "annual rate of total
compensation" shall mean the sum of (i) the annual rate of salary set forth
above, as the same may be increased from time to time as provided above, and
(ii) the most recent annual bonus (whether in cash or securities) awarded the
Executive; provided, however, for purposes of Section 7(d)(i), it shall be the
greater of (A) the most recent annual bonus (whether in cash or securities)
awarded the Executive and (B) the last annual bonus (whether in cash or
securities) awarded the Executive prior to the Change of Control.
4. ADDITIONAL COMPENSATION AND BENEFITS. As additional compensation
for the Executive's services under this Agreement, the Executive's covenants
regarding confidentiality in Section 5 hereof and noncompetition in Section 6
hereof, during the Term of Employment, the Company agrees to provide the
Executive with the non-cash benefits being provided to her on the date of this
Agreement (or the equivalent of such benefits) and, without duplication, any
other non-cash benefits provided by the Company to its other officers and key
employees as they may exist from time to time. Such benefits shall include
leave or vacation time, medical and dental insurance, life insurance,
retirement and disability benefits as may hereafter be provided by the Company
in accordance with its policies as well as any stock option plan or similar
employee benefit program for which key executives are or shall become eligible.
The Company shall reimburse the Executive for reasonable and necessary expenses
incurred by the Executive in furtherance of the Company's business, provided
that such expenses are incurred in accordance with the Company's policies and
upon presentation of documentation in accordance with expense reimbursement
policies of the Company as they may exist from time to time, and submission to
the Company of adequate documentation in accordance with federal income tax
regulations and administrative pronouncements.
5. CONFIDENTIALITY AND OTHER MATTERS.
(a) Confidentiality. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all maps, data, reports, including results of
exploration, drilling, drill cores, cuttings, and other samples, and other
information relating to the business of the Company (such information being
collectively referred to herein as the "Confidential Information"). During the
Term of Employment and after termination of the Executive's employment
hereunder, the Executive agrees: (i) to take all such precautions as may be
reasonably necessary to prevent the disclosure to any third party of any of the
Confidential Information; (ii) not to use for the Executive's own benefit any
of
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the Confidential Information; and (iii) not to aid any other person or entity
in the use of the Confidential Information in competition with the Company.
Notwithstanding any provision contained herein to the contrary, the term
"Confidential Information" shall not be deemed to include any general
knowledge, skills or experience acquired by the Executive or any knowledge or
information known to the public in general. The Executive further agrees that
upon termination of her employment for any reason, she will surrender to the
Company all Confidential Information, and any copies thereof, produced by her
or coming into her possession and agrees that all such materials, and copies
thereof, are at all times the property of the Company. The Executive further
agrees that she shall not otherwise knowingly act or conduct herself (i) to the
material detriment of the Company, its subsidiaries or affiliates, or (ii) in a
manner which is inimical or contrary to the interests thereof.
(b) Discoveries and Inventions. If the Executive, in the course of her
employment with the Company, makes any discovery, improvement, or invention
which pertains directly to the business of the Company, its subsidiaries or
affiliates at the time of cessation of her employment, such discovery,
improvement, or invention shall be the exclusive property of the Company. The
Executive shall execute and deliver to the Company, without further
compensation, any and all documents which the Company deems necessary or
appropriate to more fully and more perfectly evidence the Company's ownership
thereof.
(c) Notification of Discoveries. The Executive hereby assigns to the
Company all her right, title and interest in and to any and all inventions,
discoveries, developments, improvements, techniques, designs, data and all
other work products, whether tangible or intangible, which Executive conceives,
reduces to practice or otherwise creates in the course of her employment and in
which the law recognizes any protectable interest. The Executive agrees to
perform all acts necessary to enable the Company to learn of and to protect the
right it receives hereunder, including, but not limited to, making full and
immediate disclosure to the Company.
(d) Definitions; Remedies. For purposes of this Section 5, the
"Company" shall be defined as the Company and its affiliated companies
including (without limitation) its successors and assigns and its subsidiaries
and each of their respective successors and assigns. In the event of a breach
or threatened breach by the Executive of the provisions of this Section 5, the
Company shall be entitled to an injunction restraining the Executive from
violating such provisions without the necessity of posting a bond therefor.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies available to it at law or in equity. Except as specifically set
forth herein, the parties agree that the provisions of this Section 5 shall
survive the earlier termination of the Executive's employment with the Company,
as the continuation of this covenant is necessary for the protection of the
Company.
6. NONCOMPETITION.
(a) Noncompetition Activities. The Executive acknowledges that the
nature of the employment under this Agreement is such as will bring the
Executive in personal contact with patrons or customers of the Company and will
enable her to acquire valuable information as to the
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nature and character of the business of the Company, thereby enabling her, by
engaging in a competing business in her own behalf, or for another, to take
advantage of such knowledge and thereby gain an unfair advantage. Accordingly,
the Executive covenants and agrees that she will not, without the prior written
consent of the Company during the Term of Employment and for the period of one
(1) year thereafter, engage directly or indirectly for herself, or as an agent,
representative, officer, director or employee of others, in the exploration for
hydrocarbons in areas covered by plays or prospects on which the Executive
worked or of which the Executive had knowledge at the time of the cessation of
the Executive's employment hereunder.
(b) Scope. In the event that the provisions of this Section 6 should
ever be deemed to exceed the time, geographic or activity related limitations
permitted by applicable law, then such provisions shall be reformed to the
maximum time, geographic or activity related limitations permitted by
applicable law. In the event of a breach or threatened breach by Executive of
the provisions of this Section 6, the Company shall be entitled to an
injunction restraining the Executive from violating such provisions without the
necessity of posting a bond therefor. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it at law
or in equity. Except as specifically set forth herein, the parties agree that
this Section 6 shall remain in effect for its full term notwithstanding the
earlier termination of the Executive's employment with the Company, as the
continuation of this covenant is necessary for the protection of the Company.
For purposes of this Section 6, the "Company" shall be defined as the Company
and its affiliated companies including (without limitation) its successors and
assigns and its subsidiaries and each of their respective successors and
assigns.
7. TERMINATION.
(a) Termination by Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause (defined below) and without notice.
If the Company terminates the Executive's employment with Cause, the Executive
shall only be entitled to receive (i) accrued but unpaid compensation pursuant
to Section 3 of this Agreement, and (ii) those benefits under Section 4 which
are required under the Employee Income Retirement Security Act of 1974, as
amended ("ERISA"), or other laws. As used in this Agreement, "Cause" shall mean
(i) any material failure of the Executive after written notice to perform her
duties specified in Section 2 of this Agreement when such failure shall have
continued for 30 days after receipt of such notice, (ii) commission of fraud by
the Executive against the Company, its affiliates or customers, (iii) a
material breach by the Executive of Sections 5 or 6 of this Agreement, or (iv)
conviction of the Executive of a felony offense or a crime involving moral
turpitude. If the Company terminates the Executive's employment for Cause, the
Term of Employment shall end upon such termination.
(b) Death or Disability. In the event of the Executive's death or of
the Executive's sickness or disability of a permanent nature rendering the
Executive unable to perform her duties hereunder for a period of six
consecutive months during the Term of Employment, the Company shall pay to the
Executive or the estate of the Executive, as applicable, in the year of death
or disability or the year thereafter compensation which would otherwise be
payable to the Executive pursuant to Section 3 hereof up to the end of the
sixth month after her death or the expiration of the
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six consecutive month period referred to above during which she was unable to
perform her duties hereunder. The Term of Employment shall end upon the
Executive's death or the expiration of such six consecutive month period.
(c) Termination by Company Without Cause or by the Executive with Good
Reason. If (x) a Change of Control (as hereinafter defined) has not occurred
and (y) either the Company terminates the Executive's employment without Cause
or the Executive terminates her employment for Good Reason (as hereinafter
defined), the Company shall:
(i) pay to the Executive, within 30 days after the date
of such termination in, a lump sum cash payment equal to two times the
Executive's then current annual rate of total compensation;
(ii) pay the Executive any accrued but unpaid
compensation as of the date of the termination of employment; and
(iii) continue until the first anniversary of the
termination of the Executive's employment, or such longer period as any
plan, program or policy or ERISA or other laws may provide, benefits
to the Executive as set forth in Section 7(f) below.
As used in this Agreement, "Good Reason" shall mean: (A) the failure by the
Company to elect or re-elect or to appoint or re-appoint the Executive to the
office of Senior Vice President of the Company without Cause; (B) a material
change by the Company of the Executive's function, duties or responsibilities
that would cause the Executive's position with the Company to become of less
dignity, responsibility, importance or scope from the position and attributes
thereof described in Section 2 above; or (C) any other material breach of this
Agreement by the Company.
(d) Termination Following a Change of Control. If, within three years
of a Change of Control, either the Company terminates the Executive's
employment without Cause or the Executive terminates her employment for Good
Reason, the Company shall:
(i) pay to the Executive, within 30 days after the date of
such termination in, a lump sum cash payment equal to 2.99 times the
Executive's then current annual rate of total compensation;
(ii) pay the Executive any accrued but unpaid compensation as
of the date of the termination of employment; and
(iii) continue until the third anniversary of the termination
of the Executive's employment, or such longer period as any plan, program or
policy or ERISA or other laws may provide, benefits to the Executive as set
forth in Section 7(f) below.
(e) Change of Control. As used in this Agreement, a "Change of
Control" shall mean:
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(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) (a "Person") of beneficial ownership of 20% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Voting Securities"); provided, however
that for purposes of this subsection (i), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the Company,
(B) any acquisition by the Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A), (B) and
(C) of subsection (iii) hereof; or
(ii) Individuals, who, as of the date hereof, constitute the
Board of Directors of the Company (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual was a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Corporate Transaction") in each case, unless,
following such Corporate Transaction, (A) (1) all or substantially all of the
persons who were the beneficial owners of the Outstanding Common Stock
immediately prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 60 percent of the then outstanding shares of common stock
of the corporation resulting from such Corporate Transaction, and (2) all or
substantially all of the persons who were the beneficial owners of the
Outstanding Voting Securities immediately prior to such Corporate Transaction
beneficially own, directly or indirectly, more than 60 percent of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership of the Outstanding Common
Stock and the Outstanding Voting Securities immediately prior to such Corporate
Transaction, as the case may be, (B) no Person (excluding (1) any corporation
resulting from such Corporate Transaction or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Corporate
Transaction and (2) any Person approved by the Incumbent Board) beneficially
owns, directly or indirectly, 40 percent or more of the then outstanding shares
of common stock of the corporation resulting from such Corporate Transaction or
the combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to such
Corporate Transaction and (C) at least a majority of the members of the board
of directors of the corporation resulting from such Corporate
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Transaction were members of the Incumbent Board at the time of the execution of
the initial agreement or of the action of the Board providing for such
Corporate Transaction.
(f) Insurance and Other Special Benefits. To the extent Executive is
eligible thereunder, for a period of 12 months following termination pursuant
to Section 7(c), or for a period of 36 months following termination pursuant to
Section 7(d) hereof, Executive shall continue to be provided life insurance,
disability and long term disability policies provided to the Executive on the
date hereof or such successor policies in effect at the time of Executive's
termination, and shall also continue to be covered for the applicable period by
each other insurance, disability, health or other benefit program, plan or
policy by which she was covered at the time of the Executive's termination. In
the event Executive is ineligible to continue to be so covered under the terms
of any such life insurance, disability, long-term disability, insurance, health
or other benefit program, plan or policy, the Company shall provide to
Executive through other sources such benefits, including such additional
benefits, as may be necessary to make the benefits applicable to Executive
substantially equivalent to those in effect immediately prior to such
termination, provided that if during such period Executive should enter into
the employ of another company or firm which provides to Executive substantially
similar benefit coverage, Executive's participation in the comparable benefits
provided by the Company, either directly or through such other sources, shall
cease. Nothing contained in this paragraph shall be deemed to require or permit
termination or restriction of any of Executive's coverage under any plan or
program of the Company or any of its subsidiaries or any successor plan or
program thereto to which Executive is entitled under the terms of such plan or
program, whether at the end of the aforementioned 12- or 36-month period, as
the case may be, or at any other time.
(g) Limitation on Payments. If any amount or benefit payable under
this Agreement is subject to the excise tax imposed under Section 4999 of the
Code, the Executive shall receive the maximum amount permitted without the
imposition of an excise tax under Section 4999 of the Code. In making a
determination as to whether a payment or other benefit payable under this
Agreement would cause an excise tax to be imposed under Section 4999 all
payments or benefits under this Agreement shall be consolidated with the
benefits provided by all other arrangements, programs, plans, agreements or
understandings of any kind between the Company and the Executive if they are of
a type that would be included in determining what tax, if any, is due under
Section 4999. In the event it is determined that any such excise tax would be
due, the Executive shall have the right to elect to reduce any one or more of
the agreements, plans, programs, arrangements or understandings in any way that
she determines and if any one agreement, plan, program, arrangement or
understanding has more than one benefit, she may choose between benefits in
order to reach the required reduction overall. The determinations required to
be made under this provision shall be made by the Company's auditors and such
determinations shall be final and binding on the Company and the Executive
except in the case of manifest error. Should the Company's auditors fail or
refuse to make any determination required by this provision then another
accounting firm shall be selected by the mutual agreement of the Company and
the Executive, and if they fail to reach an agreement, the Company shall select
one accounting firm and the Executive shall select a second accounting firm;
those two accounting firms shall select the accounting firm which shall make
the determination required of the Company's auditors above.
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8. EXPENSES. The Company shall promptly pay or reimburse Executive for
all costs and expenses, including, without limitation, court costs and
attorneys' fees, incurred by Executive as a result of any claim, action or
proceeding (including, without limitation, a claim, action or proceeding by
Executive against the Company) arising out of, or challenging the validity or
enforceability of, this Agreement or any provision hereof.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Texas. Venue and jurisdiction
of any action relating to this Agreement shall lie in Dallas County, Texas.
10. NOTICE. Any notice, payment, demand or communication required or
permitted to be given by this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered personally or if
sent by registered or certified mail, return receipt requested, postage
prepaid, addressed to such party at its address set forth below such party's
signature to this Agreement or to such other address as shall have been
furnished in writing by such party for whom the communication is intended. Any
such notice shall be deemed to be given on the date so delivered.
11. SEVERABILITY. In the event any provisions hereof shall be modified
or held ineffective by any court, such adjudication shall not invalidate or
render ineffective the balance of the provisions hereof.
12. ENTIRE AGREEMENT. This Agreement constitutes the sole agreement
between the parties with respect to the employment of the Executive by the
Company and supersedes any and all other agreements, oral or written, between
the parties. This Agreement may not be modified or amended except by a writing
signed by the parties.
13. WAIVER. Any waiver or breach of any of the terms of this Agreement
shall not operate as a waiver of any other breach of such terms or conditions,
or any other terms or conditions, nor shall any failure to enforce any
provisions hereof operate as a waiver of such provision or any other provision
hereof.
14. ASSIGNMENT. This Agreement is a personal employment contract and
the rights and interests of the Executive hereunder may not be sold,
transferred, assigned or pledged. Subject to Section 7(d) hereof, the Company
may assign its rights under this Agreement to (i) any entity into or with which
the Company is merged or consolidated or to which the Company transfers all or
substantially all of its assets or (ii) any entity, which at the time of such
assignment, controls, is under common control with, or is controlled by the
Company.
15. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Executive and her heirs, executors, administrators and legal
representatives. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors and assigns.
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16. SECTION HEADINGS. The section headings in this Agreement have been
inserted for convenience and shall not be used for interpretive purposes or to
otherwise construe this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above and intend that this Agreement have the effect
of a sealed instrument.
COHO ENERGY, INC.
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
By:
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Name:
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Title:
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XXXX XXXXX X'XXXXXX
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