Exhibit 10.23
EMPLOYMENT AGREEMENT
This Agreement, executed and delivered as of January 1, 1995, by and
between ALAMCO, INC., a Delaware corporation (the "Company"), with its principal
offices at 200 West Main Street, Clarksburg, West Virginia 26301, and BRIDGET D.
FURBEE, (the "Executive");
WITNESSETH THAT:
WHEREAS, the Executive is currently employed by the Company and the Company
wishes to continue to employ the Executive and the Executive wishes to be so
employed; and
WHEREAS, the execution and delivery of this Agreement has been duly authorized
by the Board of Directors of the Company (the "Board");
NOW, THEREFORE, the parties hereto, intending to be legally mutually bound, do
hereby covenant and agree as follows:
1. Employment.
The Company hereby employs the Executive as its Vice President of
Administration and Legal Affairs, and the Executive agrees to be so employed, on
the terms and conditions set forth herein.
2. Term.
The term of the Executive's employment under this Agreement shall
commence on January 1, 1995 and end on December 31, 1996. Such term shall be
automatically renewed effective as of January 1, 1997, and each biennial (every
two years) anniversary thereof for additional given consecutive terms of two (2)
years unless notice of termination is given by either party to the other party
no less than ninety (90) days prior to January 1, 1997, or any such biennial
anniversary, subject to earlier termination as provided herein, including
Sections 7, 8 and 9 hereof.
3. Duties.
The Executive shall perform all the duties commonly performed by a
Vice President of Administration and Legal Affairs of the Company, and shall be
subject to such further instructions as may be issued from time to time within
the general scope of those duties by the Board or its designated
representative. The Executive shall devote all her time, energies, and skills
to such duties during the term hereof.
4. Compensation.
(a) Base Salary. In consideration of the services to be rendered by
the Executive to the Company hereunder, the Company shall pay the Executive an
annual salary of $69,500, subject to any adjustments as may be mutually agreed
upon by the Executive and the Board.
(b) Other Benefits.
In addition to the foregoing, the Company shall:
(i) reimburse the Executive for all expenses reasonably
incurred by the Executive in connection with performance of her duties on the
Company's behalf, including, without limitation, expenses incurred for travel,
lodging, and reasonable business entertainment; and
(ii) continue in effect the grant of stock options previous-
ly awarded the Executive in the aggregate amount of 25,000 shares.
5. Location.
The Executive shall perform her duties hereunder generally in, and
shall not be obligated to maintain an office in any other place than, Clarks-
burg, West Virginia, or its environs, unless the Company's principal place of
business shall be maintained elsewhere; provided; however, that the Executive
shall conduct such travel outside of Clarksburg as may be reasonably necessary
in connection with the performance of her duties hereunder.
6. Trade Secrets.
(a) Acknowledgements. The Executive acknowledges that she has
heretofore acquired and hereafter anticipates acquiring detailed knowledge of
the Company's business and affairs. In view of the nature of the services the
Executive is capable of performing for the Company, the Executive also acknowl-
edges that those services will have peculiar value to the Company, the loss of
which cannot be adequately compensated by money damages.
(b) Nondisclosure. The Executive therefore shall not, during the
term of her employment hereunder or thereafter, divulge to any third party
information obtained in the course of her employment including, without limita-
tion, any information concerning the Company's business, operations, affairs,
rates, investors, customers, geological data, well logs, well locations,
acreage, reserves of gas or oil, finances, and plans or policies to the extent
the same are not already matters of public knowledge.
(c) Confidentiality. All such information shall be regarded as
secret, confidential, and proprietary to the Company and shall be used by the
Executive for no other purpose than to pursue the Company's business and
affairs.
(d) Non-competition. In view of her unique skills and knowledge,
the Executive shall not, without the Company's express prior written consent,
during the term hereof or, unless otherwise agreed to in writing by the Board,
for a period of time equal to the lesser of (a) one (1) year following the
termination or expiration of this Agreement or any renewal or extension hereof,
or (b) the period during which the Executive is receiving severance payments
from the Company pursuant to Sections 8 or 10 hereof, engage in any business (as
proprietor, officer, director or shareholder) which is competitive with the
Company's oil and gas business; provided, however, that the foregoing provision
shall not prohibit the Executive from investing in a publicly held company in
which she owns less than one percent (1%) of the equity; and provided further
that the foregoing provision shall not apply in the event the Executive's
employment hereunder shall terminate or be terminated as a result of or in
connection with a Change in Control as defined in Section 8.2 hereof.
(e) Equitable Relief. If the Executive competes with the Company in
violation of Section 6(d) hereof or discloses or threatens to disclose any of
the information described in Section 6(b) concerning the Company, the Company
shall be deemed to be subject to irreparable injury and shall be entitled to
immediate injunctive or other similar equitable relief to restrain the Executive
from so competing with the Company or from so disclosing its proprietary
information to a third party, including any competitor of the Company. The
foregoing relief shall be in addition to any other remedies to which the Company
may be entitled under law.
7. Termination for Cause; Resignation.
If at any time during the term hereof or any extension or renewal
hereof the Company's Board shall determine that the Executive has engaged in
willful misfeasance or malfeasance, disregard of her duties, or negligence
related to the performance of her duties, any one of which conditions shall be
deemed cause for dismissal, the Company shall promptly so advise the Executive
in writing, giving details of the alleged errors or omissions. The Executive
shall then be accorded a reasonable opportunity to refute the allegations,
including the right to meet with the full Board or an appropriate committee
thereof. The Executive shall be entitled to be represented at any such meeting
by legal counsel. In the event that the Board continues to be of the opinion
that the Executive has given cause for dismissal, it may forthwith terminate her
employment. In the event the Executive is terminated for cause, or in the event
the Executive resigns under circumstances other than those described in Section
8 or Section 9, this Agreement shall immediately terminate and the Executive
shall be entitled only to her salary and other benefits accrued through the date
of termination.
8. Termination by the Company Other than for Cause.
(a) The Executive recognizes that the Company, acting through its
Board, has the legal right to remove her as Vice President of Administration and
Legal Affairs, either by termination of her employment or reassignment to a
position other than Vice President of Administration and Legal Affairs, if the
best interests of the Company will be served. However, should such a removal
either by termination or reassignment occur (unless the reassignment is to
another position of comparable executive status as designated by the Board or
appropriate committee thereof for the unexpired portion of the term of this
Agreement or any renewal hereof), not constituting a termination for cause under
Section 7 above or not in connection with death or disability under Section 9,
or should the Executive resign from her employment with the Company at any time
within six (6) months following occurrence of a Change in Control (as defined in
Section 8(b)), the Executive shall be entitled to receive in full satisfaction
of the Company's obligations hereunder (in addition to such other benefits as
may be payable to the Executive): (a) as severance pay, an amount equal to one
(1) times the salary under Section 4(a) as in effect on the date of such removal
or Change in Control, as the case may be, payable within five (5) business days
of such event.
(b) For purposes hereof, the term "Change in Control" shall mean a
change in control of the Company of the nature that would be required to be
reported in response to Item 5(f) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, (the "Exchange Act"); provided,
however, that, without limitation, such a Change in Control shall be deemed to
have occurred if, on or after the date hereof, any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the
beneficial owner, directly or indirectly, of the securities of the Company
representing fifteen percent (15%) or more of the combined voting power of the
Company's then outstanding securities (determined without regard to any contrac-
tual restrictions limiting any stockholder in the exercise of voting rights with
respect to voting securities).
9. Death or Disability.
(a) If during the period of employment hereunder the Executive
shall have become disabled through illness or otherwise from performing her
duties hereunder, the Executive shall be entitled to a leave of absence with
full compensation for the duration of any such disability, reduced dollar for
dollar by the amount of any disability benefits paid to the Executive in accor-
dance with any disability policy or program of the Company for a period of up to
but not exceeding eight (8) consecutive months.
(b) If the Executive shall have become permanently disabled, or if
employment hereunder terminates by reason of the Executive's death, all future
obligations of the Company hereunder shall, at the Company's election, cease;
provided, however, that any and all benefits and rights theretofore vested under
any pension, savings, profit-sharing, or insurance plan of the Company shall
remain unimpaired thereby.
(c) If the Executive's death shall have occurred after the termina-
tion of employment hereunder and if, but for her death, the Executive would have
been entitled to receive additional payments hereunder in respect of her
employment, such payments shall thereafter be paid as the Executive's last will
and testament shall direct, or failing such direction, to the Executive's
estate.
10. Failure to Renew.
If the Company shall fail to agree to extend the term of this
Agreement pursuant to Paragraph 2 hereof upon the expiration of its term, the
Executive shall be entitled to receive as severance pay (in addition to such
other benefits as may be payable to the Executive) an amount equal to one-half
(1/2) times the annual salary under Section 4(a) as in effect on the date of
such expiration, payable within five (5) business days of such expiration.
11. Vacation.
During each calendar year of the term hereof, the Executive
shall be entitled to four (4) weeks vacation and three (3) days of personal
leave with pay. The Executive shall select such vacation periods with reason-
able regard to the needs of the business of the Company.
12. Employee Plan.
Nothing contained herein shall prevent the Executive from
participation in any plan that may be provided by the Company for the benefit of
its executives or employees and for which the Executive may qualify. Benefits
under any such plan shall be determined in accordance with the respective
provisions thereof.
13. No Assignment or Attachment.
This Agreement and the rights, interests and benefits hereunder
shall not be assigned, transferred, pledged, or hypothecated in any way by the
Executive or by the Company and shall not be subject to execution, attachment,
or similar process. Any attempted assignment, transfer, pledge or hypothecation
or the levy of any execution, attachment or similar process thereon shall be
null and void and without effect.
14. Insurance.
The Executive shall be included within and covered by the
presently effective group health and accident insurance policies maintained by
the Company or such other plans as may in the future be made available to
executive officers of the Company.
15. Successors and Assigns.
This Agreement shall be binding on and inure to the benefits of
the parties hereto and their respective successors, heirs and assigns; provided,
however, that neither party may assign her or its rights hereunder without the
other's express prior written consent.
16. Notices.
Any notice required to be given hereunder shall be sufficient if
in writing and submitted by first class mail, postage prepaid, if to the
Executive to her as follows:
Bridget D. Furbee
808 Stout Street
Bridgeport, West Virginia 26330
and if to the Company, to it at the address first above written, attention Chief
Executive Officer.
17. Effect of Prior Agreements.
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior employment agreement between the Company
and the Executive.
18. Amendment.
Any amendment hereof or supplement hereto shall be in writing
and signed by the parties hereto.
19. Severability.
Any provision of this Agreement that is invalid, illegal, or
unenforceable in any respect in any jurisdiction shall be, as to such juris-
diction, ineffective to the extent of such invalidity, illegality, or unenfor-
ceability without affecting the remaining provisions hereof; and any such
invalidity, illegality, or unenforceability in any such jurisdiction shall not
invalidate or in any way affect the validity, legality or enforceability of such
provision in any other jurisdiction.
20. Governing Law.
This Agreement shall be governed by, construed under, and
enforced in accordance with the laws of the State of West Virginia applicable to
contracts made in such state by residents thereof and to be performed entirely
within such state.
21. Arbitration.
Any controversy or claim arising out of or relating to this
Agreement, shall be settled by arbitration in the City of Pittsburgh, Pennsyl-
vania. The arbitration shall be conducted in accordance with the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their respective
hands and seals the day and year first above written.
ATTEST:
(CORPORATE SEAL) ALAMCO, INC.
By: /s/ Jane Merandi By: /s/ John L. Schwager
Secretary President and
Chief Executive Officer
EXECUTIVE
/s/ Bridget D. Furbee