EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into this 20th day of April, 2000
(the "Effective Date") by and among Xxxxxx Xxxxxx, Inc., a Kansas corporation
("KMI"), Kinder Xxxxxx X.X., Inc., a Delaware corporation ("KMGP"), and Xxxxx X.
Xxxxxxxxx, Xx. ("Employee").
WHEREAS, the parties acknowledge wherever KMI is used in this Agreement it
is intended to refer to both KMI and KMGP;
WHEREAS, the parties acknowledge Employee is an officer of
KMI and KMGP;
WHEREAS, the parties wish to provide for certain conditions
of employment as negotiated relating to continued employment;
WHEREAS, the parties negotiated certain terms to extend past employment,
including, without limitation, terms relating to a non-compete obligation;
WHEREAS, Employee agrees that ample consideration was provided to ensure
enforcement of certain provisions and the waiver of certain rights;
NOW THEREFORE, in consideration of the foregoing premises and the
following promises, the parties agree as follows:
1. Intent of the Parties. It is the intent of the parties that Employee's
rights under the Xxxxxx Xxxxxx Energy Partners, L.P. Executive Compensation Plan
shall be waived and forfeited upon execution of this Agreement.
2. Definitions.
(a) Termination for Cause. "Termination for Cause" shall mean
termination of Employee's employment by KMI because of (i)Employee's
conviction of a felony which in the reasonable, good faith opinion of the
Compensation Committee of the Board of Directors of Xxxxxx Xxxxxx, Inc.
would have an adverse impact on the reputation or business of KMI or any of
its affiliates; (ii) subject to the notice provision's set forth below in
this Section 2(a), Employee's willful refusal without proper legal cause to
perform his duties and responsibilities; (iii) Employee's willfully
engaging in conduct which Employee has reason to know is materially
injurious to KMI or any of its affiliates; or (iv) subject to the notice
and counseling provisions set forth below in this Section 2(a), failure to
meet clearly established and reasonable performance objectives or standards
established by KMI for Employee's job position. Such termination shall be
effected by notice thereof delivered by KMI to Employee and shall be
effective as of the date of such notice; provided, however, that if such
termination is pursuant to clause (ii) above and within seven (7) days
following the date of such notice Employee shall cease such refusal and
shall use his or her best efforts to perform such duties and
responsibilities, the termination shall not be effective; provided further,
that termination pursuant to clause (iv) above shall not become effective
unless Employee has been counseled about such unacceptable performance and
coached to improve performance for at least forty-five (45) days; and,
provided further, that KMI shall consult with Employee
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and provide an opportunity for Employee to be heard prior to effecting any
termination under this section, and KMI's failure to do so shall
constitute Involuntary Termination and not Termination for Cause.
(b) Change of Duties. A "Change of Duties" means;
(i) A significant reduction in the nature, scope of authority or
duties of Employee (without the written consent of Employee) from
those applicable to him on the Effective Date of this Agreement;
(ii) Any reduction in Employee's annual base salary, without the
consent of Employee, unless it is part of a program to reduce salaries
for all similarly situated employees;
(iii) Receipt of employee benefits (including but not limited to
medical, dental, life insurance, accidental death and dismemberment;
and long term disability plans) that are materially inconsistent with
and inferior to the employee benefits provided by KMI to employees
with comparable duties; or
(iv) A change in the location of Employee's principal place of
employment by KMI by more than 50 miles from the location where he was
principally employed on the Effective Date of this Agreement, without
Employee's consent.
(c) Pro-Rata Portion. "Pro-Rata Portion" is the amount determined by
the formula: the compensation payment received by Employee pursuant to
section 4(b) hereof, multiplied by the Pro-Rata Percentage. The Pro-Rata
Percentage is defined as: 1460 minus the number of calendar days from
Effective Date of this Agreement up to the date of a Non-Competition
Violation, as defined in Section 5(d) below, not to exceed 1460 days,
divided by 1460.
(d) Confidential Information. "Confidential Information" shall include
all information, the use of which by persons or entities other than KMI or
its employees, agents or representatives would be detrimental to KMI's
business interests, relating to (i) KMI's Customers, providers, suppliers,
and other business affiliates; (ii) KMI's policies, practices, operating
information, financial information, business plans, and market approaches;
and (iii) other information, techniques or approaches used by KMI and not
generally known or applied in KMI's industry. KMI believes that some or all
of this information constitutes trade secrets; however, the Confidential
Information covered in this Agreement need not satisfy the legal definition
or requirements of a "trade secret" to be protected from disclosure
hereunder. Confidential Information shall exclude any information that is
generally known in KMI's industry and information known to any future
employer of Employee and any information disclosed by KMI in public
filings, including, without limitation, filings with the Securities and
Exchange Commission and the Federal Energy Regulatory Commission.
(e) Customer. "Customer" shall include any person or entity to whom
during the Term of this Agreement, services are being sold by KMI, and any
person or
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entity with whom, during the Term of this Agreement, KMI has established a
strategic marketing alliance.
(f) He, him, himself, his. "He," "him," "himself" and "his" when used
herein shall be synonymous with "she," "her," "herself," and "her," as
applicable.
(g) Involuntary Termination. "Involuntary Termination" means (i)
termination of Employee's employment at the behest of KMI other than a
Termination for Cause; (ii) Employee's resignation on or before thirty (30)
days following receipt by Employee of a notice of a Change of Duties; or
(iii) a termination which under the terms of the last clause of Section
2(a) is not a Termination for Cause. "Involuntary Termination" does not
include (i) Termination for Cause; (ii) termination of Employee's
employment due to the death of Employee; (iii) termination of Employee's
employment due to Employee's disability under circumstances entitling him
to benefits under KMI's long term disability plan; (iv) or any change of
employer due to transfer of Employee's employment to a successor company
that is a wholly owned KMI subsidiary or affiliate and/or any change of
employer due to transfer of Employee's employment to a purchaser of or
successor to KMI.
(h) KMI. "KMI" means collectively Xxxxxx Xxxxxx, Inc., a Kansas
corporation, Kinder Xxxxxx X.X., Inc., their successors and assigns, and
their divisions and affiliates. For purposes of this Agreement, the term
"affiliates" shall have the same definition as the term "affiliated group"
in Section 1504(a) of the Internal Revenue Code of 1986, as amended from
time to time.
(i) Welfare Benefit Coverages. "Welfare Benefit Coverages" shall mean
the medical, dental, life insurance, long term disability and accidental
death and dismemberment coverages provided by KMI to its active employees.
3. Term of This Agreement. The term of this Agreement shall be four (4)
years from the Effective Date of this Agreement. It is expressly understood and
agreed that this Agreement shall terminate and be of no further force or effect
at the end of the initial four (4) year term.
4. KMI's Promises. In consideration of Employee's promises, KMI hereby
agrees as follows:
(a) Salary. Employee shall receive a base salary of two hundred
thousand dollars ($200,000) annually. Increases may occur at the behest of
the senior management of the Company if approved by the Compensation
Committee of the Board. Salary shall be continued only if Employee's
employment continues.
(b) Compensation Payment. In consideration of the obligations of
Employee set forth in Section 5(d) hereof and for waiving all rights under
the Xxxxxx Xxxxxx Energy Partners, L.P. Executive Compensation Plan, Xxxxxx
Xxxxxx, Inc. shall cause Kinder Xxxxxx X.X., Inc., on behalf of Xxxxxx
Xxxxxx Energy Partners, L.P., to
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pay Employee a lump sum payment of seven million, ten thousand dollars
($7,010,000.00) within three (3) days of execution of this Agreement. The
parties acknowledge that Employee and Xxxxxx Xxxxxx Energy Partners, L.P.
have executed a termination and settlement of the grant agreement
evidencing Employee's grant under the Xxxxxx Xxxxxx Energy Partners, L.P.
Executive Compensation Plan.
(c) Stock Options. Xxxxxx Xxxxxx, Inc. will provide Employee a grant
of 150,000 stock options priced at $33.125, the closing price of Xxxxxx
Xxxxxx, Inc.'s common stock on the New York Stock Exchange on April 20,
2000. The terms and conditions are specified in the Option Agreement
(Exhibit B).
(d) Bonus. Employee will be eligible for any applicable incentive
compensation plan of KMI or its predecessors, at the same level as other
senior officers.
(e) Directors and Officers Insurance. As long as Employee is an
officer or director of either Xxxxxx Xxxxxx, Inc. or any of its affiliates,
KMI will provide director and officer liability coverage to Employee on the
same terms as it provides to other officers and directors.
(f) Bridging. KMI will provide for bridging of service for eligible
employees in accordance with approved plan documents in effect on the
Effective Date of Employee's Involuntary Termination.
(g) Condition to Receipt of Benefits Listed in This Paragraph 4. As a
condition of receipt of any benefit listed in this Paragraph 4, Employee
shall execute Exhibit A, Exhibit B and be subject to all promises provided
in Section 5(d) of this Agreement. Exhibit A and Exhibit B shall be
executed upon execution of this Agreement.
5. Employee's Promises.
(a) Confidential Information. Employee shall not, while employed by
KMI or at any time thereafter, directly or indirectly, (i) use or apply any
Confidential Information for unauthorized purposes, alone or with any other
person or entity; or (ii) disclose or provide any Confidential Information
to any person or entity not authorized by KMI to receive such Confidential
Information.
(b) Non-Disparagement Agreement. Employee specifically agrees that he
will not in any way disparage KMI, its officers, directors, employees,
consultants, agents, or business operations or decisions; provided,
however, that Employee shall not be held in breach of this provision should
Employee testify pursuant to subpoena under oath and give testimony that
KMI considers to be disparaging.
(c) Non-Solicitation of KMI Employees. Employee agrees that, for the
term of the Agreement from the date of termination of employment hereunder,
he will not encourage, entice, or otherwise solicit any employee of KMI or
any of its affiliates or subsidiaries, or aid any third party to encourage,
entice or solicit any employee of KMI, to leave employment with KMI in
order to accept employment elsewhere. For purposes
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of this paragraph, "employment elsewhere" shall include any relationship
of employer/employee and any relationship of principal/independent
contractor.
(d) Non-Competition. Employee acknowledges that; 1) KMI and its
affiliates are engaged in the business (the "Business")of owning and/or
operating integrated natural gas assets, products and bulk terminals,
refined products, natural gas, natural gas liquids and carbon dioxide
pipelines, electricity generating assets and other midstream energy assets;
2) the Business is conducted throughout the United States; 3) his work for
KMI gives or gave him access to proprietary information and trade secrets
of and confidential information concerning KMI, and 4) the agreements and
covenants contained in this provision are essential to protect the Business
and the trade secrets, confidential and proprietary information and other
legitimate interests of KMI. Accordingly, Employee covenants and agrees as
follows:
(i) Employee agrees that for a period of four (4) years following
the Effective Date of this Agreement regardless of whether Employee
remains employed by KMI, Employee, other than on behalf of KMI, will
not engage in any conduct, line of business or activity which is the
same as or substantially similar to any conduct, activity or line of
business conducted by KMI or their affiliates in which Employee was or
is engaged in during his employment by KMI (each such line of business
or activity being an "Exclusive Activity"), in any geographic area in
which Company conducts such Exclusive Activities.
(ii) The parties stipulate and agree that the terms and covenants
contained in this provision are fair and reasonable in all respects,
including the time period and geographical coverage and that these
restrictions are designed for the reasonable protection of the
business of KMI. If, at the time of enforcement of any of these
provisions, a court holds that the restrictions stated herein are
unreasonable under the circumstances then existing, the parties hereto
agree that the maximum period, scope or geographical area reasonable
under such circumstances will be substituted for the stated period,
scope or area. In such event KMI and Employee hereby specifically
request a trial court presented with this Agreement for enforcement to
reform it as to time, geographic area or scope of activities
prohibited and to enforce this Agreement as reformed.
(iii) In the event KMI determines that Employee has violated the
provisions of this Section 5(d), KMI agrees to provide Employee
written notice of such violation. If Employee does not cease the
conduct prohibited by this Section 5(d) and cure the impact of such
conduct on KMI within 30 days after receipt of written notice from
KMI, a "Non-Competition Violation" shall be deemed to have occurred at
the end of such 30 day period, and the provisions of Section 7 shall
apply.
(iv) KMI hereby waives any rights under, and Employee shall not
be deemed to have violated, the provisions of this Section 5(d) with
respect to any conduct or activity of Employee if Employee gives KMI
30 days written
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notice prior to engaging in such conduct or activity, and KMI does not
object to such conduct or activity in writing within the 30 day period
following notice from Employee.
(e) Section 5 shall be enforceable only to the extent either Xxxxxxx
X. Xxxxxx or Xxxxxxx X. Xxxxxx serves as Chief Executive Officer of Xxxxxx
Xxxxxx, Inc. or its successor.
6. Effects of Termination. During the term of this Agreement, a
termination of Employee's employment for any of the following reasons shall
have the effects set forth below:
(a) Termination is for Cause. If the Employee's employment is
terminated by a Termination for Cause:
(i) subject to Section 7 below, Employee shall be entitled to
retain the all payments and benefits made under Sections 4(b) hereof;
(ii) Employee shall retain the stock options granted in
accordance with Section 4(c) hereof;
(iii) Employee shall not be eligible for severance payments under
KMI's severance policy; and
(iv) all benefits otherwise payable under Sections 4(a) and 4(d)
hereof shall cease.
(b) Termination for Change of Duties or Involuntary Termination. If
the Employee's employment is terminated by a Termination for Change of
Duties or an Involuntary Termination:
(i) subject to Section 7 below, Employee shall be entitled to
retain all payments and benefits made under Sections 4(b) hereof;
(ii) Employee shall retain the stock options granted in
accordance with Section 4(c) hereof;
(iii) Employee shall be eligible for severance consistent with
KMI's severance policy; and
(iv) all benefits otherwise payable under Sections 4(a) and 4(d)
hereof shall cease.
(c) Termination for Death, Disability ,Retirement or Resignation.
If the Employee's employment is terminated due to the death,
disability, retirement or resignation of Employee:
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(i) subject to Section 7 below, Employee shall be entitled
to retain all payments and benefits made under Sections 4(b)
hereof;
(ii) Employee shall retain the stock options granted in
accordance with Section 4(c) hereof; and
(iii) All other payments and benefits relating to Employee's
employment shall cease upon last day of employment other than
benefits which generally continue for all KMI employees after
termination of employment under the terms of KMI's benefit plans.
7. Violation of Non-Competition; Payment of Pro-Rata Portion. Within three
business days following a Non-Competition Violation which occurs during the term
of this Agreement,, Employee shall pay to KMI an amount in U.S. dollars equal to
the Pro-Rata Portion, calculated in accordance with Section 2(c) hereof.
8. Adequacy of Consideration. By executing this Agreement, KMI and Employee
acknowledges the receipt and sufficiency of the consideration provided by the
other in conjunction with executing this Agreement. Each acknowledges and
confirms to the other that the consideration provided by the other is good and
valuable consideration legally supportive of each party's respective rights,
duties and obligations hereunder. By executing this Agreement, KMI and Employee
shall be estopped from raising and hereby expressly waive any defense regarding
the receipt and/or legal sufficiency of the consideration provided by one to the
other with respect to this Agreement.
9. Nonassignability. This Agreement shall inure to the benefit of, and be
binding upon, Employee and Employee's personal or legal representatives,
employees, administrators, successors, heirs, distributees, devisees and
legatees, and KMI, its successors and assignees, provided, however, that neither
KMI nor Employee may assign any of Employee's or its rights or benefits
hereunder without the prior written consent of the other.
10. No Attachment. Except as required by law, the right to receive payments
under this Agreement shall not be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void ab initio and of no effect.
11. Arbitration. The parties agree that any dispute regarding the
interpretation or breach of any term of this Agreement shall be resolved through
arbitration pursuant to the guidelines set forth by the American Arbitration
Association and that any attempt by either party to bring a court action
concerning this Agreement shall be subject to dismissal for lack of jurisdiction
at the request of the other party. The arbitration and all related activities
shall occur in Houston, Texas. To the extent that either party should initiate
action to enforce this
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Agreement, the party prevailing in the action for breach shall be entitled to
recover its attorney fees and costs incurred in the prosecution or defense of
said action.
12. Headings. The headings of sections and paragraphs herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
13. Controlling Law. This Agreement shall be governed and construed in
accordance with the laws of Texas.
14. Entire Agreement. This document constitutes the entire agreement of the
parties on the subject matters addressed herein and may not be expanded or
except by express written agreement executed by both.
15. Counterparts. This Agreement may be executed in as many counterparts as
may be deemed necessary and convenient, and by the different parties on separate
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
16. Effective Date. The Effective Date of this Agreement shall be the date
provided at the top of this Agreement.
XXXXXX XXXXXX, INC. and KINDER XXXXXX X.X., INC.
By /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------------
Title: Vice President
Witness: /s/ Xxxxx Xxxxxx
---------------------------------------
EMPLOYEE
/s/ Xxxxx X. Xxxxxxxxx, Xx.
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
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In connection with the Employment Agreement (the "Agreement") dated April
20, 2000, by and among Xxxxx X. Xxxxxxxxx, Xx., Xxxxxx Xxxxxx, Inc. and Kinder
Xxxxxx X.X., Inc. (collectively ("KMI"), Employee for himself and his
representatives, heirs, and assigns, hereby releases and discharges KMI, any
parent, sister or subsidiary company, and any present or former shareholders,
officers, directors, employees, agents, representatives, legal representatives,
accountants, successors, and assigns, , Xxxxxxx Xxxxxx, and Xxxxxxx Xxxxxx, from
all claims, demands, and actions of any nature, known or unknown, in any manner
arising out of or involving any aspect of his rights under the Xxxxxx Xxxxxx
Energy Partners, L.P. Executive Compensation Plan and any agreement executed in
connection therewith. This release includes any and all claims concerning
attorney fees, costs, and any and all other expenses related to the claims
released herein. This release does not include claims for breach of the
Agreement, indemnification, coverage or defense under any applicable directors
and officers' insurance policy or vested employee benefits.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxxx, Xx.
----------------------------------------
Employee Signature
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XXXXXX XXXXXX, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
For the
1994 XXXXXX XXXXXX LONG TERM INCENTIVE PLAN
This Nonqualified Stock Option Agreement ("Option Agreement") is between
Xxxxxx Xxxxxx, Inc. (the "Company"), and Xxxxx X. Xxxxxxxxx, Xx. ("Optionee"),
who agree as follows:
Section 1. Introduction. The Company has heretofore adopted the Xxxxxx
Xxxxxx, Inc. (f/k/a KN Energy, Inc.) 1994 Xxxxxx Xxxxxx Long Term Incentive Plan
(the "Plan") for the purpose of providing eligible employees of the Company and
its Affiliates (as defined in the Plan) with incentive and reward opportunities
designed to enhance the profitable growth of the Company. The Company, acting
through the Committee (as defined in the Plan), has determined that its
interests will be advanced by the issuance to Optionee of a nonqualified stock
option under the Plan.
Section 2. Option. Subject to the terms and conditions contained herein,
the Company hereby irrevocably grants to Optionee the right and option
("Option") to purchase from the Company 150,000 shares of the Company's common
stock, $5.00 par value ("Stock"), at a price of $33.125 per share.
Section 3. Option Period. The Option, herein granted, may be exercised by
Optionee in whole or in part at any time during a ten year period (the "Option
Period") beginning on April 20, 2000 (the "Date of Grant").:
Section 4. Procedure for Exercise. The Committee or its designee shall
establish procedures for Exercise of the Option.
Section 5. Termination of Employment. If, for any reason other than Death,
Optionee ceases to be employed by the Company or its Affiliates, the Option may
be exercised to the extent Optionee would have been entitled to do so, but in no
event may the Option be exercised after the expiration of the Option Period.
Section 6. Death. In the event that Optionee's employment is terminated
because of Optionee's death, this Option may be exercised, at any time and from
time to time, within the Option Period after such Death, by (i) the guardian of
Optionee's estate, (ii) the executor or administrator of Optionee's estate, or
(iii) the person or persons to whom Optionee's rights under this Option
Agreement shall pass by will or the laws of descent and distribution, but in no
event may the Option be exercised after the expiration of the Option Period.
1
Section 7. Transferability. This Option shall not be transferable by
Optionee otherwise than by Optionee's will or by the laws of descent and
distribution. During the lifetime of Optionee, the Option shall be exercisable
only by Optionee or his guardian or authorized legal representative. Any heir or
legatee of Optionee shall take rights herein granted subject to the terms and
conditions hereof. No such transfer of this Option Agreement to heirs or
legatees of Optionee shall be effective to bind the Company unless the Company
shall have been furnished with written notice thereof and a copy of such
evidence as the Committee may deem necessary to establish the validity of the
transfer and the acceptance by the transferee or transferees of the terms and
conditions hereof.
Section 8. No Rights as Shareholder. Optionee shall have no rights as a
shareholder with respect to any shares of Stock covered by this Option Agreement
until the Option is exercised by written notice and accompanied by payment as
provided in Section 4 of this Option Agreement.
Section 9. Extraordinary Corporate Transactions. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issuance of Stock or other securities or subscription rights
thereto, or any issuance of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Stock or the rights thereof, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceedings, whether of a
similar character or otherwise.
Section 10. Changes in Capital Structure. If the outstanding shares of
Stock or other securities of the Company, or both, for which the Option is then
exercisable shall at any time be changed or exchanged by declaration of a stock
dividend, stock split or combination of shares, the number and kind of shares of
Stock or other securities subject to the Plan or subject to the Option, and the
exercise price, shall be appropriately and equitably adjusted so as to maintain
the proportionate number of shares or other securities without changing the
aggregate exercise price.
Section 11. Compliance With Securities Laws. Upon the acquisition of any
shares pursuant to the exercise of the Option herein granted, Optionee (or any
person acting under Section 7) will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Option Agreement.
Section 12. Compliance With Laws. Notwithstanding any of the other
provisions hereof, Optionee agrees that he or she will not exercise the Option
granted hereby, and that the Company will not be obligated to issue any shares
pursuant to this Option Agreement, if the exercise of the Option or the issuance
of such shares of Stock would constitute a violation by Optionee or by the
Company of any provision of any law or regulation of any governmental authority.
Section 13. Withholding of Tax. To the extent that the exercise of this
Option or the disposition of shares of Stock acquired by exercise of this Option
results in compensation income
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to Optionee for federal or state income tax purposes, Optionee shall pay to the
Company at the time of such exercise or disposition such amount of money as the
Company may require to meet its obligation under applicable tax laws or
regulations and, if Optionee fails to do so, the Company is authorized to
withhold from any cash remuneration then or thereafter payable to Optionee, any
tax required to be withheld by reason of such resulting compensation income or
Company may otherwise refuse to issue or transfer any shares otherwise required
to be issued or transferred pursuant to the terms hereof.
Section 14. No Right to Employment or Directorship. Optionee shall be
considered to be in the employment of the Company or its Affiliates or in
service on the Board so long as he or she remains an employee or director of the
Company or its Affiliates. Any questions as to whether and when there has been a
termination of such employment or service on the Board and the cause of such
termination shall be determined by the Committee, and its determination shall be
final. Nothing contained herein shall be construed as conferring upon Optionee
the right to continue in the employ of the Company or its Affiliates or to
continue service on the Board, nor shall anything contained herein be construed
or interpreted to limit the "employment at will" relationship between Optionee
and the Company or its Affiliates.
Section 15. Resolution of Disputes. As a condition of the granting of the
Option hereby, Optionee and Optionee's heirs, personal representatives and
successors agree that any dispute or disagreement which may arise hereunder
shall be determined by the Committee in its sole discretion and judgment, and
that any such determination and any interpretation by the Committee of the terms
of this Option Agreement shall be final and shall be binding and conclusive, for
all purposes, upon the Company, Optionee, and Optionee's heirs, personal
representatives and successors.
Section 16. Legends on Certificate. The certificates representing the
shares of Stock purchased by exercise of the Option will be stamped or otherwise
imprinted with legends in such form as the Company or its counsel may require
with respect to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stop-transfer instructions with
respect to such shares.
Section 17. Notices. Every notice hereunder shall be in writing and shall
be given by registered or certified mail or by any other method accepted by the
Company or the Company's designee. All notices of the exercise of any Option
hereunder shall be directed to Xxxxxx Xxxxxx, Inc., 0000 XxXxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Secretary, or to the Company's designee. Any
notice given by the Company to Optionee directed to Optionee at the address on
file with the Company shall be effective to bind Optionee and any other person
who shall acquire rights hereunder. The Company shall be under no obligation
whatsoever to advise Optionee of the existence, maturity or termination of any
of Optionee's rights hereunder and Optionee shall be deemed to have familiarized
himself or herself with all matters contained herein and in the Plan which may
affect any of Optionee's rights or privileges hereunder.
Section 18. Construction and Interpretation. Whenever the term "Optionee"
is used herein under circumstances applicable to any other person or persons to
whom this award, in
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accordance with the provisions of Section 7 hereof, may be transferred, the word
"Optionee" shall be deemed to include such person or persons.
Section 19. Agreement Subject to Plan. This Option Agreement is subject to
the Plan. The terms and provisions of the Plan (including any subsequent
amendments thereto) are hereby incorporated herein by reference thereto. In the
event of a conflict between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the Plan will
govern and prevail. All definitions of words and terms contained in the Plan
shall be applicable to this Option Agreement.
Section 20. Entire Agreement; Amendment. This Option Agreement and any
other agreements and instruments contemplated by this Option Agreement contain
the entire agreement of the parties, and this Option Agreement may be amended
only in writing signed by both parties.
Section 21. Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Option Agreement is illegal,
invalid or unenforceable, then such provision shall be modified automatically to
the extent necessary to make such provision fully enforceable. If such court
does not modify any such provision as contemplated herein, but instead declares
it to be wholly illegal, invalid or unenforceable, then such provision shall be
severed from this Option Agreement, and such declaration shall in no way affect
the legality, validity and enforceability of the other provisions of this Option
Agreement to which such declaration does not relate. In this event, this Option
Agreement shall be construed as if it did not contain the particular provision
held to be illegal, invalid or unenforceable, the rights and obligations of the
parties hereto shall be construed and enforced accordingly, and this Option
Agreement otherwise shall remain in full force and effect. If any provision of
this Option Agreement is capable of two constructions, one of which would render
the provision void and the other of which would render the provision valid, then
the provision shall have the construction which renders it valid.
Section 22. Binding Effect. This Option Agreement shall be binding upon
and inure to the benefit of any successors to the Company and all persons
lawfully claiming under Optionee as provided herein.
Section 23. Governing Law. This Option Agreement shall be interpreted and
construed in accordance with the laws of the State of Colorado and applicable
federal law.
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IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has been executed
as of the 20th day of April, 2000.
XXXXXX XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxxx
Vice President
OPTIONEE
/s/ Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx.
5
