EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective as of
February 26, 2004 (the "Effective Date"), by and between Continental Southern
Resources, Inc., a Nevada corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx
("Employee").
WHEREAS, the Company wishes to employ Employee and Employee wishes to
be employed by the Company; and
WHEREAS, the Company and Employee desire to enter into an agreement
reflecting the terms of the employment relationship, including the termination
thereof;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Effect of Agreement. Effective as of the Effective Date, this
Agreement supersedes and replaces any pre-existing employment agreements between
the Company and the Employee.
2. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment by the Company, on the terms and conditions set forth in this
Agreement.
3. Term of Employment. Subject to the provisions for earlier
termination provided in this Agreement, the term of this Agreement (the "Term")
shall be three (3) years commencing on the Effective Date.
4. Employee's Duties. During the Term of this Agreement, Employee shall
serve as Co-Chief Executive Officer, with such duties and responsibilities as
may from time to time be assigned to him by the board of directors of the
Company (the "Board"), provided that such duties are consistent with the
customary duties of such position. During the term of this Agreement, Employee
shall also serve as a member of the Board. Employee agrees to devote all of his
business time, skill and attention to the business and affairs of the Company
and to use reasonable best efforts to perform faithfully and efficiently his
duties and responsibilities. Employee shall not, either directly or indirectly,
enter into any business or employment with or for any person, firm, association
or corporation other than the Company during the Term of this Agreement;
provided, however, that Employee shall not be prohibited from making financial
investments in any other company or business, or, with notice to the Board, from
serving on the board of directors of any other company if such service does not
materially interfere with the performance of his duties or responsibilities
hereunder. Employee shall at all times observe and comply with all lawful
directions and instructions of the Board.
5. Compensation.
(a) Inducement Stock. As inducement to the Employee to enter into
this Agreement, the Company will issue 500,000 shares ("Inducement
Stock") of Company restricted common stock ("Restricted Stock") to the
Employee as of the Effective Date.
The Inducement Stock grants shall be evidenced by the forms of
Inducement Stock Agreement attached hereto as Exhibits "A" and "B."
(b) Base Compensation. Beginning on January 1, 2005, for services
rendered by Employee under this Agreement, the Company shall pay to
Employee a base salary of $500,000 per annum ("Base Compensation").
Subject to the availability of stock under the Company's 2004 Incentive
Plan or any similar plan then in effect (the "Incentive Plan"), the
Employee may make an annual election to take between 0% and 100% of his
Base Compensation in the form of Restricted Stock (the "Salary Stock"),
provided that he notifies the Company of his decision prior to the
first pay period of each applicable year. For purposes hereof, the
Salary Stock shall be valued at Fair Market Value, as that term is
defined in the Incentive Plan and issued pursuant to the form of
Restricted Stock Agreement attached hereto as Exhibit "B". Should
insufficient shares be available under the Incentive Plan to grant the
full amount of the Salary Stock, the remaining Base Compensation shall
be paid in cash. The Base Compensation is payable in accordance with
the Company's customary pay periods and subject to customary
withholdings, including share withholdings as described in Section
15(b) hereof. Issuance of the Salary Stock shall be accomplished in a
manner to provide the most favorable accounting treatment for the
Company. The amount of Base Compensation shall be reviewed by the Board
on an annual basis as of the close of each fiscal year of the Company
and may be increased as the Board may deem appropriate. In the event
the Board (or, if established, the compensation committee thereof)
deems it appropriate to increase Employee's annual base salary, said
increased amount shall thereafter be the "Base Compensation."
Employee's Base Compensation, as increased from time to time, may not
thereafter be decreased unless agreed to by Employee. Nothing contained
herein shall prevent the Board from paying additional compensation to
Employee in the form of bonuses or otherwise during the Term of this
Agreement.
6. Bonus. With respect to each full fiscal year during the Employment
Term, the Board in its sole discretion may grant the Employee a discretionary
bonus ("Bonus"). The target bonus for each year shall be equal to the Base
Compensation; however, the Board may grant a maximum Bonus of up to 200% of the
Base Compensation payable in the form and in accordance with the Company's
customary pay periods for its annual bonuses for its executives and subject to
customary withholdings.
7. Additional Benefits. In addition to the Base Compensation provided
for in Section 5 herein, Employee shall be entitled to the following:
(a) Expenses. The Company shall, in accordance with any rules and
policies that it may establish from time to time for executive
officers, reimburse Employee for business expenses reasonably incurred
in the performance of his duties. It is understood that Employee is
authorized to incur reasonable business expenses for promoting the
business of the Company, including reasonable expenditures for travel,
lodging, meals and client or business associate entertainment. Request
for reimbursement for such expenses must be accompanied by appropriate
documentation.
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(b) Vacation. Employee shall be entitled to five (5) weeks of
vacation per year, without any loss of compensation or benefits.
Employee shall not be entitled to compensation for, or to carry
forward, any unused vacation time.
(c) General Benefits. Employee shall be entitled to participate
in the various employee benefit plans or programs, if any, provided to
the officers of the Company in general, including but not limited to,
health, dental, disability and life insurance plans, subject to the
eligibility requirements with respect to each of such benefit plans or
programs, and such other benefits or perquisites as may be approved by
the Board during the Term of this Agreement. Nothing in this paragraph
shall be deemed to prohibit the Company from making any changes in any
of the plans, programs or benefits described in this Section 7,
provided the change similarly affects all executive officers of the
Company similarly situated.
(d) Corporate Change. Upon the occurrence of a "Corporate Change"
as hereinafter defined, Employee shall be considered as immediately and
totally vested in any and all Restricted Stock, stock options or other
similar awards previously made to Employee by the Company or its
subsidiaries under a "Long Term Incentive Plan" or other grant duly
adopted by the Board or the Compensation Committee thereof (such
Restricted Stock, options or similar awards are hereinafter
collectively referred to as "Options"). For purposes of this Agreement,
a "Corporate Change" shall occur if (i) the Company (A) shall not be
the surviving entity in any merger, consolidation or other
reorganization (or survives only as a subsidiary of an entity other
than a previously wholly-owned subsidiary of the Company) or (B) is to
be dissolved and liquidated, and as a result of or in connection with
such transaction, the persons who were directors of the Company before
such transaction shall cease to constitute a majority of the Board, or
(ii) any person or entity, including a "group" as contemplated by
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
acquires or gains ownership or control (including, without limitation,
power to vote) of 30% or more of the outstanding shares of the
Company's voting stock (based upon voting power), and as a result of or
in connection with such transaction, the persons who were directors of
the Company before such transaction shall cease to constitute a
majority of the Board, or (iii) the Company sells all or substantially
all of the assets of the Company to any other person or entity (other
than a wholly-owned subsidiary of the Company) in a transaction that
requires shareholder approval pursuant to applicable corporate law; or
(iv) during a period of two consecutive calendar years, individuals who
at the beginning of such period constitute the Board, and any new
director(s) whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least a
majority of the directors then still in office, who either were
directors at the beginning of the two (2) year period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board; or (v) any other event
that a majority of the Board, in its sole discretion, shall determine
constitutes a Corporate Change hereunder.
8. Confidential Information. Employee, during the Term, will have
access to and become familiar with confidential information, secrets and
proprietary information concerning the business and affairs of the Company, its
controlled subsidiaries and other controlled entities,
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including client and customer information, information concerning their
products, patent rights and know-how, and other technical information, business
strategies and pricing information, and other confidential and/or proprietary
information (collectively, "Confidential Information"). Confidential Information
shall not include (i) any information that is or becomes generally available to
the public other than as a result of Employee's improper or unauthorized
disclosure of such information in violation of this Agreement or (ii) was within
Employee's possession prior to its affiliation with the Company or its
controlled subsidiaries or other controlled entities (including his affiliation
with Endeavour International Operating Company, f/k/a NSNV, Inc. prior to its
acquisition by the Company). As to such Confidential Information, Employee
agrees as follows:
(a) During the term of this Agreement or at any time following
the termination of this Agreement, Employee will not, directly or
indirectly, without the prior written consent of the Company (1)
disclose or permit the disclosure of any such Confidential Information,
or (2) use, reproduce or distribute, or make or permit any use,
reproduction or distribution of, directly or indirectly, any such
Confidential Information, except for any disclosure, use, reproduction
or distribution that is required in the course of his employment with
the Company, its controlled subsidiaries or other controlled entities.
(b) If, during the term of this Agreement or at any time
following the termination of this Agreement, Employee is requested or
required (by oral question or request for information or documents, in
any legal proceeding, interrogatory, subpoena, civil investigative
demand, or similar process) to disclose any Confidential Information,
Employee agrees to notify the Company immediately in writing of the
request or requirement so that the Company may seek an appropriate
protection order or waive compliance with the provisions of this
Section. If, in the absence of a protective order or the receipt of a
waiver under this Agreement, Employee is, on the advice of counsel,
compelled to disclose any Confidential Information to any tribunal or
else stand liable for contempt, Employee may disclose such Confidential
Information to the tribunal; provided, however, that Employee shall use
his commercially reasonable best efforts to obtain a court order or
other assurance that confidential treatment will be accorded to such
Confidential Information.
(c) Upon termination of employment of Employee, for whatever
reason, Employee shall surrender to the Company any and all documents,
manuals, correspondence, reports, records and similar items then or
thereafter coming into the possession of Employee which contain any
Confidential Information of the Company or its controlled subsidiaries
or other controlled entities.
(d) Employee recognizes and acknowledges that the obligations of
Employee contained in Section 8 of this Agreement are reasonable and
necessary to protect the legitimate business interests of the Company,
and that any breach or violation of any of the provisions of such
Section is likely to result in irreparable injury to the Company for
which the Company would have no adequate remedy at law. Employee agrees
that if Employee shall breach or violate Section 8 of this Agreement,
the Company shall be entitled, if it so elects, to institute and
prosecute proceedings at law or in equity,
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including, but not limited to, a proceeding seeking injunctive
relief, to obtain damages with respect to such breach or violation, to
enforce the specific performance of Section 8 this Agreement by
Employee, or to enjoin Employee from engaging in any activity in
violation of Section 8 of this Agreement. Employee acknowledges that in
the event of any such breach or violation, the Company shall be
entitled to preliminary and permanent injunctive relief, without the
necessity of proving actual damages or posting a bond, and to an
equitable accounting of all earnings, profits, and other benefits
arising from any such breach or violation, which rights shall be
cumulative and in addition to any other rights or remedies to which the
Company may be entitled. Employee agrees that in the event of any such
violation, an action may be commenced for preliminary or permanent
injunctive relief and other equitable relief in any federal or state
court of competent jurisdiction sitting in Xxxxxx County, Texas, or in
any other court of competent jurisdiction. Employee waives, to the
fullest extent permitted by law, any objection that Employee may now or
hereafter have to such jurisdiction or to the laying of the venue of
any such suit, action, or proceeding brought in such a court and any
claim that such suit, action or proceeding has been brought in an
inconvenient forum. Employee agrees that effective service of process
may be made upon Employee under the notice provisions contained in
Section 12 of this Agreement. Employee further agrees that the
existence of any claim or cause of action against the Company, whether
predicated upon a breach or violation by the Company of this Agreement
or any other contract or agreement between Employee and the Company,
shall not constitute or be asserted as a defense to the enforcement by
the Company to the provisions of this Section relating to the Company's
right to injunctive or other equitable relief for Employee's breach or
violation of Section 8 of this Agreement.
9. Termination. This Agreement may be terminated prior to the end of
its Term as set forth below:
(a) Resignation (other than for Good Reason). Employee may
resign, including by reason of retirement, his position at any time by
providing written notice of resignation to the Company in accordance
with Section 12 hereof. In the event of such resignation, except in the
case of resignation for Good Reason (as defined below), this Agreement
shall terminate and Employee shall not be entitled to further
compensation pursuant to this Agreement other than the payment of any
unpaid Base Compensation or Bonus accrued hereunder as of the date of
Employee's resignation.
(b) Death. If Employee's employment is terminated due to his
death, this Agreement shall terminate and the Company shall have no
obligations to Employee or his legal representatives with respect to
this Agreement other than the payment of any unpaid Base Compensation
or Bonus previously accrued hereunder.
(c) Discharge.
(i) The Company may terminate Employee's employment only in
the event of Employee's Misconduct or Disability (both as defined
below) upon written notice thereof delivered to Employee in
accordance with Section 9(f) and Section 12 hereof. In the event
that Employee's employment is terminated during
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the Term by the Company for any reason other than his Misconduct
or Disability (both as defined below), then (A) the Company
shall pay in lump sum in cash to Employee, within fifteen (15)
days following the date of termination, an amount equal to the
product of (i) Employee's Base Compensation as in effect
immediately prior to Employee's termination (in the event a
Corporate Change occurs prior to January 1, 2005, the Base
Compensation shall be $500,000), multiplied by (ii) three, (B)
for three years following the date of termination, the Company,
at its cost, shall provide or arrange to provide Employee (and,
as applicable, Employee's dependents) with accident and group
health insurance benefits substantially similar to those which
Employee (and Employee's dependents) were receiving immediately
prior to Employee's termination (if any); however, the welfare
benefits otherwise receivable by Employee pursuant to this clause
(B) shall be reduced to the extent comparable welfare benefits
are actually received by Employee (and/or Employee's dependents)
during such period under any other employer's welfare plan(s) or
program(s), with Employee being obligated to promptly disclose to
the Company any such comparable welfare benefits, (C) in addition
to the aforementioned compensation and benefits, the Company
shall pay in lump sum in cash to Employee within fifteen (15)
days following the date of termination an amount equal to the
product of (i) Employee's average Bonus paid by the Company
during the most recent two (2) years immediately prior to the
date of termination (in the event that the date of termination is
on or before December 31, 2004 and no Bonus has been paid with
respect to the fiscal year ending December 31, 2004 as of the
date of termination, the Bonus shall be equal to the Base
Compensation for purposes of this section and in the event that
the date of termination is after December 31, 2004 and on or
before December 31, 2005 and no Bonus has been paid with respect
to the fiscal year ending December 31, 2005, the Bonus with
respect to the fiscal year ending December 31, 2005 shall be
equal to the Base Compensation for purposes of this section),
multiplied by (ii) three and (D) Employee shall be considered as
immediately and totally vested in any and all Options previously
made to Employee by Company or its subsidiaries.
(ii) In the event Employee is terminated because of
Misconduct, the Company shall have no obligations pursuant to
this Agreement after the Date of Termination other than the
payment of any unpaid Base Compensation or Bonus accrued through
the Date of Termination. As used herein, "Misconduct" means (A)
the continued failure by Employee to substantially perform his
duties with the Company (other than any such failure resulting
from Employee's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a
Notice of Termination by Employee for Good Reason), after a
written demand for substantial performance is delivered to
Employee by the Board, which demand specifically identifies the
manner in which the Board believes that Employee has not
substantially performed his duties, and the Employee fails to
cure such failure within ten (10) days after receipt of such
demand, (B) the engaging by Employee in conduct which is
demonstrably and materially injurious to the Company, monetarily
or otherwise (other than such conduct resulting from Employee's
incapacity due to physical or mental illness or
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any such actual or anticipated conduct after the issuance of
a Notice of Termination by Employee for Good Reason), (C)
Employee's conviction for the commission of a felony or (D)
action by Employee toward the Company involving dishonesty.
Anything contained in this Agreement to the contrary
notwithstanding, the Board shall have the sole power and
authority to terminate the employment of Employee on behalf of
the Company
(d) Disability. If Employee shall have been absent from the
full-time performance of Employee's duties with the Company for ninety
(90) consecutive calendar days as a result of Employee's incapacity due
to physical or mental illness, Employee's employment may be terminated
by the Company for "Disability" and Employee shall not be entitled to
further compensation pursuant to this Agreement, except that Employee
shall be considered as immediately and totally vested in any and all
Options and restricted stock grants previously granted to Employee by
Company or its subsidiaries.
(e) Resignation for Good Reason. Employee shall be entitled to
terminate his employment for Good Reason as defined herein. If Employee
terminates his employment for Good Reason he shall be entitled to the
compensation and benefits provided in Paragraph 9(c)(i) hereof. "Good
Reason" shall mean the occurrence of any of the following circumstances
without Employee's express written consent unless such breach or
circumstances are fully corrected prior to the Date of Termination
specified in the Notice of Termination given in respect hereof:
(i) the material breach of any of the Company's obligations
under this Agreement without Employee's express written consent;
(ii) the continued assignment to Employee of any duties
inconsistent with the office of Co-Chief Executive Officer not
remedied within fifteen (15) days after the Company receives
written notice of same from Employee;
(iii) the failure by the Company to pay to Employee any
portion of Employee's compensation and such failure is not
remedied within fifteen (15) days after the Company receives
written notice of same from Employee;
(iv) the failure by the Company to continue to provide
Employee with benefits substantially similar to those enjoyed by
other executive officers who have entered into similar employment
agreements with Employer under any of the Company's medical,
health, accident, and/or disability plans in which Employee was
participating immediately prior to such time;
(v) a change in the location of Employee's principal place
of employment by the Company by more than 50 miles from the
location where he was principally employed immediately prior to
the date of such change; or
(vi) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 14 hereof.
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In addition, the occurrence of a Corporate Change,
shall constitute "Good Reason" hereunder, but only if Employee
terminates his employment within ninety (90) days following
the effective date of such Corporate Change.
(f) Notice of Termination. Any purported termination of
Employee's employment by the Company under Sections 9(c)(ii) or 9(d),
or by Employee under Section 9(e), shall be communicated by written
Notice of Termination to the other party hereto in accordance with
Section 12 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which, if by the Company and is for
Misconduct or Disability, shall set forth in reasonable detail the
reason for such termination of Employee's employment, or in the case of
resignation by Employee for Good Reason, said notice must specify in
reasonable detail the basis for such resignation. A Notice of
Termination given by Employee pursuant to Section 9(e) shall be
effective even if given after the receipt by Employee of notice that
the Board has set a meeting to consider terminating Employee for
Misconduct. Any purported termination for which a Notice of Termination
is required which is not effected pursuant to this Section 9(f) shall
not be effective.
(g) Date of Termination. "Date of Termination" shall mean the
date specified in the Notice of Termination, provided that the Date of
Termination shall be at least 15 days following the date the Notice of
Termination is given. Notwithstanding the foregoing, in the event
Employee is terminated for Misconduct, the Company may refuse to allow
Employee access to the Company's offices (other than to allow Employee
to collect his personal belongings under the Company's supervision)
prior to the Date of Termination.
(h) Mitigation. Employee shall not be required to mitigate the
amount of any payment provided for in this Section 9 by seeking other
employment or otherwise, nor (except as set forth in Section
9(c)(i)(B)) shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned or benefits received by
Employee as a result of employment by another employer, except that any
severance amounts payable to Employee pursuant to the Company's
severance plan or policy for employees in general shall reduce the
amount otherwise payable pursuant to Sections 9(c)(i) or 9(e).
(i) Excess Parachute Payments. Notwithstanding anything in this
Agreement to the contrary, to the extent that any payment or benefit
received or to be received by Employee hereunder in connection with the
termination of Employee's employment would, as determined by tax
counsel selected by the Company, constitute an "Excess Parachute
Payment" (as defined in Section 280G of the Internal Revenue Code), the
Company shall fully "gross-up" such payment so that Employee is in the
same "net" after-tax position he would have been if such payment and
gross-up payments had not constituted Excess Parachute Payments.
(j) Resignation from Board. In the event Employee's employment by
the Company is terminated for any reason (other than Employee's death),
Employee shall immediately resign as a member of the Board and the
board of directors of any of the
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Company's subsidiaries he may be a member of upon the written
request of the Chairman of the Board. Nothing herein shall be deemed to
limit the power of the shareholders of the Company to at any time
remove any director, including, without limitation, Employee, in
accordance with applicable law. All payments to Employees pursuant to
this Agreement shall be conditioned upon Employee's compliance with his
obligations under this Section 9(j).
10. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Employee's continuing or future participation in any benefit, bonus,
incentive, or other plan or program provided by the Company or any of its
affiliated companies and for which Employee may qualify, nor shall anything
herein limit or otherwise adversely affect such rights as Employee may have
under any Options with the Company or any of its affiliated companies.
11. Assignability. The obligations of Employee hereunder are personal
and may not be assigned or delegated by him or transferred in any manner
whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder, either
in whole or in part, to any parent, affiliate, successor or subsidiary
organization or company of the Company, so long as the obligations of the
Company under this Agreement remain the obligations of the Company.
12. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
Company at its principal office address, directed to the attention of the Board
with a copy to the Secretary of the Company, and to Employee at Employee's
residence address on the records of the Company or to such other address as
either party may have furnished to the other in writing in accordance herewith
except that notice of change of address shall be effective only upon receipt.
13. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Successors; Binding Agreement.
(a) 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 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 and shall entitle Employee to
compensation from the Company in the same amount and on the same terms
as he would be entitled to hereunder if he terminated his employment
for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective
shall be deemed the Date of Termination. As used herein, the term
"Company" shall include any successor to its
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business and/or assets as aforesaid which executes and delivers
the Agreement provided for in this Section 14 or which otherwise
becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall
inure to the benefit of and be enforceable by Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee should die while any
amounts would be payable to him hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Employee's devisee,
legatee, or other designee or, if there be no such designee, to
Employee's estate.
15. Withholding Taxes.
(a) Tax Withholding. The Company shall have the power and the
right to deduct or withhold from any benefits payable under this
Agreement an amount sufficient to satisfy federal, state, and local
taxes, domestic or foreign, required by law or regulation to be
withheld.
(b) Share Withholding. With respect to tax withholding required
upon the upon the lapse of restrictions on the Inducement Stock and the
Salary Stock, or upon any other taxable event arising as a result of
any stock awards pursuant to this Agreement, Employee may elect, to
satisfy the withholding requirement, in whole or in part, by having the
Company withhold shares having a Fair Market Value on the date the tax
is to be determined equal to the minimum statutory total tax which
could be imposed on the transaction. All such elections shall be made
in writing, signed by the Employee, and shall be subject to any
restrictions or limitations that the Company, in its discretion, deems
appropriate. Any fraction of a share required to satisfy such
obligation shall be disregarded and the Employee shall instead pay the
amount due in cash.
16. No Restraints. As an inducement to the Company to enter into this
Agreement, Employee represents and warrants that he is not a party to any other
agreement or obligation for personal services, and that there exist no
impediments or restraints, contractual or otherwise, on Employee's powers right
or ability to enter into this Agreement and to perform his duties and
obligations hereunder.
17. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement is an integration of the parties'
agreement; no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party, except those which are set forth expressly in this Agreement. THE
VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
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18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. Arbitration. Either party may elect that any dispute or controversy
arising under or in connection with this Agreement be settled by arbitration in
Houston, Texas in accordance with the rules of the American Arbitration
Association then in effect. If the parties cannot mutually agree on an
arbitrator, then the arbitration shall be conducted by a three arbitrator panel,
with each party selecting one arbitrator and the two arbitrators so selected
selecting a third arbitrator. The findings of the arbitrator(s) shall be final
and binding, and judgment may be entered thereon in any court having
jurisdiction. The findings of the arbitrator(s) shall not be subject to appeal
to any court, except as otherwise provided by applicable law. The arbitrator(s)
may, in his or her (or their) own discretion, award legal fees and costs to the
prevailing party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on
February 26, 2004 effective for all purposes as provided above.
CONTINENTAL SOUTHERN RESOURCES, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: President
---------------------------------
EMPLOYEE:
/s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
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