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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made as of May 1, 1992,
by ▇▇▇▇▇▇▇ Oil & Gas, L.P., a Delaware limited partnership (the "Company") and
▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee");
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, subject to and upon the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties, intending to be legally bound, agree as follows:
1. Defined Terms. All capitalized terms used but not defined
herein shall have the meanings assigned to them in the Agreement of Limited
Partnership of the Company.
2. Employment and Duties. Subject to the terms hereof, the
Company agrees to employ Employee to render full-time services to the Company
as Chief Executive Officer of the Company. Employee shall have such duties as
are customarily associated with such position, together with such other duties
as may be assigned to Employee from time to time by the Management Committee of
the Company. Employee agrees to devote his full time and attention to the
performance and fulfillment of such duties, functions and responsibilities as
is necessary to discharge such duties, functions and responsibilities, except
for service for civic, charitable or non-profit organizations and other non-
competitive endeavors not interfering with his duties hereunder.
3. Base Compensation. The Company shall pay Employee for his
services under this Agreement a base annual salary of $138,000 (before Federal
and state withholdings), payable semi-monthly or in such other installments as
shall be consistent with the Company's general payroll practices. Employee
shall be eligible for increases in his base annual salary at least annually, on
the anniversary of the effective date of this Agreement. The amount of such
increases, if any, shall be determined by the Management Committee.
4. Fringe Benefits. During the term hereof Employee shall be
entitled to participate in any benefit programs applicable to all employees or
to executive employees of the Company on the same basis as such benefits are
customarily made available by the Company from time to time, including without
limitation all employee retirement, insurance, vacation, sick leave, long-term
disability and other benefit programs, as such plans may be modified, amended
or terminated from time to time. In addition, Employee shall receive a
Petroleum Club membership at the expense of the Company at all times during the
term of this Agreement.
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5. Business Expenses. Employee shall be reimbursed by the
Company for expenses reasonably paid or incurred by him in connection with the
performance of his duties hereunder upon presentation of expense statements,
receipts or vouchers or such other supporting information reasonably evidencing
such expenses.
6. Term. The term of Employee's employment by the Company
hereunder shall be for a period of five (5) years commencing on the date of
this Agreement.
7. Termination. The Employee's employment with the Company shall
terminate upon the first to occur of (i) expiration of the term hereof, (ii)
the death of Employee, (iii) disability of Employee (as more fully discussed
below), (iv) termination of Employee for Cause (as defined below), (v)
termination by Employee for Good Reason (as defined below), or (vi) the written
consent of all parties to this Agreement.
8. Death of Employee. The employment of Employee hereunder shall
cease on the date of his death. The Company will purchase life insurance on
the life of Employee in an amount mutually agreeable to the Company and
Employee, the benefits of which will be payable to Employee's beneficiary (as
defined below). Employee's "beneficiary" is the person or persons (who may be
designated concurrently, successively or contingently) designated by Employee
in his last effective writing filed with the Company prior to his death, or if
Employee shall have failed to make an effective designation, Employee's
beneficiary is his spouse, if living at the time of each payment, and otherwise
his surviving children. Employee shall assist the Company in procuring such
insurance by submitting to such examinations and by signing such applications
and other instruments as may be reasonable and as may be required by the
insurance carriers to which application is made for any such insurance.
Employee represents that, to the best of his knowledge, he is currently
insurable at standard premium rates for life insurance policies.
9. Disability of Employee. If, as a result of the Employee's
incapacity due to physical or mental illness, Employee shall have been absent
from his duties hereunder on a full-time basis for the entire period of six
consecutive months, and within thirty (30) days after written notice of
termination is given (which may occur before or after the end of such six-month
period) shall not have returned to the performance of his duties hereunder on a
full-time basis, employment of Employee hereunder shall cease.
The Company shall purchase disability insurance to cover such a
contingency with coverage and benefits mutually agreeable to the Company and
Employee. Employee shall assist the Company in procuring such insurance by
submitting to such examinations and by signing such applications and other
instruments as may be reasonable and as may be required by the insurance
carriers to
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which application is made for any such insurance. Employee represents that, to
the best of his knowledge, he is currently insurable at standard premium rates
for life insurance policies. During any period prior to termination during
which the Employee fails to perform his duties hereunder as a result of
incapacity due to physical or mental illness ("disability period"), the
Employee shall continue to receive his full salary at the rate then in effect
for such period until his employment terminates pursuant to this Paragraph 9.
If employment of Employee hereunder terminates because of Employee's
incapacity, Employee (or, in the event of his legal incapacity, a
court-appointed guardian for his benefit) shall receive those benefits payable
under the disability policy or policies (purchased in compliance with the
foregoing provisions) in effect at such time.
10. Termination for Cause. The Company may terminate the Employee's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Employee's employment hereunder upon (A)
the willful and continued failure by the Employee to substantially perform his
duties hereunder (other than any such failure resulting from the Employee's
incapacity due to physical or mental illness or infirmity), after demand for
substantial performance is delivered by the Company that specifically
identifies the manner in which the Company believes the Employee has not
substantially performed his duties or (B) the willful engaging by the Employee
in misconduct which is materially injurious to the Company, monetarily or
otherwise. For purposes of this paragraph, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in or not opposed to the best interest of the Company.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for Cause without (i) reasonable notice to the Employee setting
forth the reasons for the Company's intention to terminate for Cause, (ii) an
opportunity for the Employee, together with his counsel, to be heard before the
Management Committee, including at least one Management Committee member
elected by ▇▇▇▇▇▇▇, and (iii) delivery to the Employee of a Notice of
Termination as defined in Paragraph 12 hereof from the Management Committee,
including at least one Management Committee member elected by ▇▇▇▇▇▇▇, finding
that in the good faith opinion of such Management Committee the Employee was
guilty of conduct set forth above in clause (A) or (B) of the preceding
sentence, and specifying the particulars thereof in detail.
11. Termination by the Employee. The Employee may terminate his
employment hereunder (i) for Good Reason or (ii) if his health should become
impaired to an extent that makes his continued performance of his duties
hereunder hazardous to his physical or
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mental health or his life, provided that the Employee shall have furnished the
Company with a written statement from a qualified doctor to such effect and,
provided further, that, at the Company's request, the Employee shall submit to
an examination by a qualified doctor selected by the Company and such doctor
shall have concurred in the conclusion of the Employee's doctor.
For purposes of this Agreement, "Good Reason" shall mean (A) a change
in control of General Atlantic at any time during the six (6) months
immediately preceding termination of employment by the Employee, (B) a failure
by the Company to comply with any material provision of this Agreement which
has not been cured within thirty (30) working days after notice of such
noncompliance has been given by the Employee to the Company, or (C) any
purported termination of the Employee's employment which is not effected
pursuant to a valid Notice of Termination satisfying the requirements of
Paragraph 11 hereof (and for purposes of this Agreement no such purported
termination shall be effective).
For purposes of this Agreement, a "change in control of General
Atlantic" shall be deemed to have occurred if (Y) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than any person who on the date hereof is
an owner, partner, director or officer of General Atlantic, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of General Atlantic representing more than 50% of
the combined voting power of General Atlantic's then outstanding securities or
ownership interests (except where any such increase in a person's beneficial
ownership results from a redemption or purchase by General Atlantic of its
securities or ownership interests) or (Z) during the term of this Agreement,
individuals who constitute the General Atlantic Representatives on the
Management Committee are other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇, unless the
election of each such Representative has been approved in advance by a majority
of the ▇▇▇▇▇▇▇ Representatives.
An election by the Employee to terminate for Good Reason shall not be
deemed a voluntary termination of employment by Employee for the purpose of
this Agreement or any plan or practice of the Company.
12. Notice of Termination. Any termination of the Employee's
employment by the Company or by the Employee pursuant to Paragraphs 9, 10 or 11
shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provisions in this
Agreement relied upon and shall set forth in reasonable detail the facts and
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circumstances claimed or provide a basis for termination of the Employee's
employment under the provision so indicated.
13. Termination of Employment for Cause or Without Good Reason.
Any termination of employment by the Employee that is not for Good Reason or
termination of the Employee's employment by the Company for Cause shall be a
breach of this Agreement by the Employee and, if such termination occurs all
rights, benefits and compensation of the Employee under this Agreement shall
immediately terminate, except that equity options, if any, shall continue to be
governed in accordance with their terms. The rights and remedies of the
Company as set forth in this Paragraph 13, in case of termination of employment
by the Employee without Good Reason or termination of the Employee's employment
by the Company for Cause, shall be cumulative with and shall be in addition to
(i) any and all other relief available to the Company for breach by the
Employee of any other provision of this Agreement, and (ii) any and all other
general or equitable relief to which the Company may be entitled by reason of
such breach.
14. Other Termination of Employment. If the Employee shall
terminate his employment for Good Reason under Paragraph 11 hereof, then the
Company shall pay to Employee his base compensation described in Paragraph 3
hereof and in effect at such time of termination for a period of one (1) year
following such termination. If employment of Employee hereunder is terminated
under any other circumstances other than those set forth in Paragraphs 8, 9, 10
or 13 hereof, then the Company shall pay to Employee the remaining base
compensation described in Paragraph 3 hereof and in effect at such time of
termination for the term of this Agreement; provided that the Company shall
also pay to Employee those amounts provided in Paragraphs 8 and 9 pursuant to
the terms thereof.
15. Confidentiality; Ownership of Patentable Inventions.
(a) Employee will maintain the confidentiality of, and will not
disclose without the Company's express consent, any and all proprietary or
confidential information of the Company. The provisions of this paragraph will
be deemed to encompass any and all confidential or proprietary information of
the Company that was obtained by Employee since the commencement of Employee's
employment with the Company and confidential and proprietary information of BEC
on the date of this Agreement. This paragraph will continue after, and will not
be deemed to be extinguished or terminated by, the termination of this
Agreement or of Employee's employment by the Company. For purposes of this
paragraph "proprietary or confidential information" of the Company does not
include (i) information that is or becomes generally available to the public
other than as a result of disclosure by the Employee in breach of this
Agreement, (ii) information that was or is available to Employee on a
non-confidential basis, (iii) any non-patentable
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information that is or was conceived, created or independently developed by
Employee, or (iv) information that is disclosed by Employee to others on behalf
of the Company or to further the business opportunities or best interests of
the Company.
(b) Employee agrees that any patentable invention, design or
process made, invented or discovered by Employee in the course of his
employment hereunder shall be the property of the Company and Employee shall
execute and deliver all documents necessary and proper to make all such
patentable inventions, designs or processes the property of the Company.
16. Non-Competition.
(a) Employee agrees that during the term of this Agreement he will
not, directly or indirectly, for Employee's own account or for the benefit of
any other person or party engage or become, without the prior consent of the
Company, an owner, director, manager, officer, partner, operator, employee or
agent of, or render services to or invest in, any business or enterprise
competing with the primary business of the Company.
(b) In addition to the agreement in Section 16(a), for a period of
two years after the term of this Agreement Employee agrees not to compete with
the Company with respect to any prospect established with respect to Company
properties owned at the time of termination of this Agreement, or any other
specific matter or opportunity, which was specifically identified by the
Company to Employee in writing as of the date of such termination.
Notwithstanding the foregoing, nothing in this Agreement shall
prohibit Employee from being a passive investor in (i) any Fortune 500
companies, or (ii) any other business or enterprise (A) not in direct
competition with the business of the Company [and] (B) not an entity which is a
party to an exploration agreement with the Company. Provided, however, that
with respect to any investment in a business or enterprise engaged in the oil
and gas industry (other than any Fortune 500 companies), Employee shall obtain
the prior consent of the Management Committee (including the vote or consent of
at least one GAP Representative), which consent shall not be unreasonably
withheld.
If Employee intentionally breaches any provisions of Section 15 or
this Section 16 (collectively the "Restrictive Covenants") in a material way,
the Company shall have the right to have the Restrictive Covenants specifically
enforced by any court having equity jurisdiction it being acknowledged and
agreed that any such breach will cause irreparable injury to the Company and
that money damages will not provide adequate remedy to the Company. The
Company's right of specific performance hereunder shall be independent of, and
in addition to, any other rights and remedies available to the Company under
law or in equity.
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If any court determines that any of the Restrictive Covenants or any
part thereof is invalid or unenforceable, the remainder of the Restrictive
Covenants shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or geographical scope of such provision, as the case may
be and, in its reduced form, such provision shall then be enforceable and shall
be enforced.
17. Miscellaneous. (a) Notices. Any notice or communication
required or permitted hereunder shall be given in writing and shall be (i) sent
by first class registered or certified United States mail, postage prepaid,
(ii) sent by overnight or express mail or expedited delivery service, (iii)
delivered by hand or (iv) transmitted by wire, telex or telefax, addressed as
follows:
If to Employee: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company: ▇▇▇▇▇▇▇ Oil & Gas, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Suite 707
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: General Atlantic Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party in accordance herewith.
Any such notice or communication shall be deemed to have been given as of the
date of first attempted delivery at the address and in the manner provided
above.
(b) Successors and Assigns. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign
or transfer this Agreement or any rights or obligations hereunder; provided,
however, that in the event of a merger, consolidation or transfer or sale of
all or substantially all of the assets of the Company, this Agreement shall be
binding upon the successor to the Company's business and assets.
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(c) Interpretation. When the context in which words are used in
this Agreement indicates that such is the intent, words in the singular number
shall include the plural and vice versa, and the words in masculine gender
shall include the feminine and neuter genders and vice versa.
(d) Severability. Every provision in this Agreement is intended
to be severable. In the event that any provision of this Agreement shall be
held to be invalid, the same shall not affect in any respect whatsoever the
validity of the remaining provisions of this Agreement.
(e) Captions. Any section or paragraph titles or captions contained
in this Agreement are for convenience only and shall not be deemed a part of
the context of this Agreement.
(f) Entire Agreement. This Agreement together with the Partnership
Agreement contains the entire understanding and agreement between the parties
and supersedes any prior written or oral agreements between them respecting the
subject matter contained herein. There are no representations, agreements,
arrangements or understandings, oral or written, between and among the parties
hereto relating to the subject matter of this Agreement which are not fully
expressed herein or therein.
(g) No Waiver. The failure of any party to insist upon strict
performance of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure continues, shall not
be a waiver of such party's right to demand strict compliance in the future.
No consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or waiver to
or of any other breach or default in the performance of the same or any
obligation hereunder.
(h) Amendment. This Agreement may be changed, modified or amended
only by an instrument in writing duly executed by all of the parties hereto.
Any such amendment shall be effective as of such date as may be determined by
the parties hereto.
(i) Enforcement. The Company may enforce this Agreement pursuant to
the provisions of the Agreement of Limited Partnership of the Partnership,
provided that in the event of a dispute, either General Partner of the Company
shall have the right to enforce the provisions hereof.
(j) Choice of Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY TEXAS LAW.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
the same to be executed by their duly authorized corporate officers, all as of
the day and year first above written.
"Employee" /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇
"Company" ▇▇▇▇▇▇▇ OIL & GAS, L.P.
By: ▇▇▇▇▇▇▇ Exploration Company,
General Partner
By: Name: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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