Exhibit 10.27
Form of Executive Employment Agreement.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into to be
effective as of the 29th day of August, 1997, by and between BOX ENERGY
CORPORATION, a Delaware corporation (the "Company"), and
(the "Employee").
In consideration of the mutual promises and covenants herein set forth
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Employee agree as
follows:
1. Employment. The Company hereby employs the Employee as its
upon the terms and conditions and for the
compensation herein provided, and the Employee agrees to be so employed and
to render the services as specified.
2. Term of Employment. The term of this Agreement will be for a
period of two (2) years from the date of this Agreement unless sooner
terminated in accordance with Section 5 hereof (the "Term"). Upon
expiration of the Term, all obligations under this Agreement shall cease
except as otherwise provided in Section 11 hereof. This Agreement may only
be renewed by a written agreement signed by both parties. In the absence
of such a written agreement or other written employment agreement signed by
both parties, following the expiration of the Term, the Employee or the
Company may terminate Employee's employment with or without notice and with
or without reason.
3. Duties. During the Term, the Employee agrees to devote his
full and exclusive business time and attention to the business of the
Company or any subsidiary or affiliate thereof, except for vacations and
sick leave and charitable, education and civic activities that do not
detract from the performance of his duties hereunder, in a professional and
prudent manner in accordance with the Company's policy consistent with the
Employee's position, and to devote his skill, energy, experience and
judgment to perform all duties carefully, efficiently and to the
satisfaction of the Company. The Employee shall have all the requisite
powers and agrees to perform all of the duties associated with his
position, subject to such policies and guidelines as may be established by
the Company and agreements to which the Company is a party. The Employee
agrees not to engage in any other activity or own any interest that would
conflict with the interests of the Company or would interfere with the
Employee's responsibilities to the Company and the performance of his
duties hereunder.
4. Compensation. During the period of employment, the Company
will compensate the Employee as follows:
(a) Salary. The Company will pay the Employee for services
rendered a base salary at the rate of DOLLARS
($ ) per year, subject to such withholding of taxes and other
amounts as may be required by law, such salary to be paid in equal periodic
installments in accordance with the Company's normal salary payment dates
for employees. Salary will be reviewed annually and may be increased at
the sole discretion of the Board of Directors or their designee.
(b) Bonus. In addition to base salary, the Employee may
receive an annual performance bonus, based on performance goals and targets
as determined in the sole discretion of the Board of Directors or their
designee. Because such bonus is discretionary, Employee is not guaranteed
any annual performance bonus during any year of employment under this
Agreement.
(c) Benefits. During the period of employment hereunder, the
Employee may participate in all employee benefit plans and programs for
employees generally that the Company has in effect on the date hereof or
may hereafter establish in the future in its sole and absolute discretion,
subject to the terms of those plans and programs, but the Company shall not
be required to establish any such plan or program and may discontinue any
existing plan or program at any time.
(d) Reimbursements and Expenses. The Company will reimburse
the Employee for reasonable and necessary expenses incurred by the Employee
on the Company's business in accordance with such procedures as the Company
may from time to time establish, including documentation of such expenses
by the Employee.
5. Termination.
(a) Death or Disability. The employment of the Employee
shall terminate immediately upon the death of the Employee. If Employee
becomes disabled and is unable to perform the essential functions of the
Employee's position or another vacant, existing position for which he is
qualified with or without reasonable accommodation, the Company may
terminate the employment of the Employee by written notice to the Employee,
which termination shall be effective upon the date of sending of such
notice.
(b) Termination With or Without Cause. The Company may
terminate the employment of the Employee with or without Cause by written
notice to the Employee, which termination shall be effective upon the date
of sending of such notice. "Cause" shall mean any termination of
Employee's employment with the Company by reason of the Employee's (1)
conviction of any felony or of a misdemeanor involving moral turpitude, (2)
material failure to perform his duties or responsibilities in a manner
satisfactory to the Company, (3) engagement in conduct which is injurious
(monetarily or otherwise) to the Company or any of its affiliates
(including, without limitation, misuse of the Company's or any of its
affiliate's funds or other property), (4) engagement in business activities
which are in conflict with the business interests of the Company, (5)
insubordination, (6) engagement in conduct which is in violation of the
Company's safety rules or standards or which otherwise causes injury to
another employee or any other person, (7) engagement in conduct which is in
violation with the guidelines for appropriate employee conduct as described
in the Company's employee handbook or which is otherwise inappropriate in
the office or work environment.
(c) Resignation With or Without Reason. The Employee may
terminate employment with or without reason and without notice; provided
that if Employee purports to terminate his employment for "Good Reason," a
"Good Reason" shall only exist upon the occurrence and continuation for a
period of thirty (30) days after written notice to the Company from the
Employee of any failure to pay, or any reduction of, the Employees' salary
or reduction in the Employee's participation in Company benefit plans or
programs that are then available to employees generally.
6. Termination Payments. Upon the termination of the employment
of the Employee prior to the expiration of the Term, the Employee shall be
entitled to the following:
(a) Death, Disability, For Cause or Resignation Without Good
Reason. In the event of the termination of the Employee's employment by
reason of death or disability pursuant to Section 5(a) hereof, the
termination of the Employee's employment by the Company for Cause pursuant
to Section 5(b) hereof, or the resignation of the Employee without Good
Reason pursuant to Section 5(c) hereof, then the Employee shall be entitled
to receive:
(i) all salary which is accrued and unpaid as of the
date of such termination;
(ii) all unpaid accumulated and accrued benefits due
under any benefit plan or program in which the Employee was a participant;
and
(iii) all payments due with respect to accrued and unpaid
reimbursable expenses incurred by the Employee prior to the date of such
termination of employment.
(b) Without Cause or For Good Reason. In the event of the
termination of the Employee's employment by the Company without Cause or
the termination of employment by the Employee for Good Reason, then the
Employee shall be entitled to receive a lump-sum cash severance payment
equal to two times the amount of the Employee's then current annual base
salary provided that Employee signs the Complete Release attached hereto as
Exhibit "A" within the forty-five (45) day period immediately following the
termination of Employee's employment.
(c) Severance Payment Governed by Severance Plan. Employee
acknowledges and agrees that the Company's severance obligations pursuant
to Section 6(b) hereof constitute an individual severance agreement
governed by the Company's Severance Plan. Employee further understands
that the Company's severance obligations pursuant to Section 6(b) hereof
are the Company's sole severance obligations to him during the Term of the
Agreement, that, in accordance with the terms of the Severance Plan, he
will not be entitled to any other severance under the Severance Plan
because of this individual severance agreement, and that any dispute
relating to the Company's severance obligations pursuant to Section 6(b)
hereof shall be subject to the claims resolution procedure of the Severance
Plan.
7. Nondisclosure.
(a) The Employee hereby acknowledges that in connection with
employment by the Company, the Employee will be exposed to and may obtain
certain information, including, without limitation, information, trade
secrets, formulae, technical data and know-how regarding the business and
the operations of the Company (collectively, "Confidential Information");
Confidential Information, however, shall not include information disclosed
or otherwise made available to the general public, information disclosed to
third parties by the Company without restriction on such third parties, and
information released from confidential treatment by written consent of the
Company. The Employee further acknowledges that such Confidential
Information is unique, valuable, considered trade secrets, and deemed
proprietary by the Company.
(b) The Employee agrees that all Confidential Information is
and will remain the property of the Company. The Employee further agrees,
for the duration of the Term and thereafter, to hold in strictest
confidence all Confidential Information, and not, directly or indirectly,
to duplicate, sell, use, lease, commercialize, disclose or otherwise
divulge to any person or entity any portion of the Confidential Information
or use any Confidential Information for the Employee's benefit or profit or
allow any person, entity or third party, other than the Company and its
authorized employees, to use or otherwise gain access to any Confidential
Information.
(c) All written Confidential Information and all memoranda,
notes, records or other documents made or compiled by, or otherwise made
available to, the Employee concerning the business of the Company or its
affiliates shall be the Company's property and shall be delivered to the
Company upon the termination of the Employee's employment hereunder or at
any time upon the request of the Company. The Employee shall not at any
time have or claim any right, title or interest in any material or matter
of any sort prepared for or used in connection with the business or
promotion of the Company or its affiliates.
8. Non-Solicitation. The Employee further agrees that during
employment by the Company and for a period of one year after termination of
employment, except when acting on behalf of the Company, the Employee will
not, directly or indirectly, in any manner or capacity induce any person,
who at any time during the Employee's employment was an employee of the
Company, to discontinue his or her employment in the Company or to
interfere with the business of the Company.
9. Alternative Dispute Resolution. Any controversy or claim
arising out of or relating to this Agreement, the breach thereof,
Employee's employment or the termination thereof (including without
limitation any claims under federal, state, or local employment
discrimination laws, wrongful discharge claims of whatever nature and any
claims of tort or contractual restriction) shall be settled by binding
arbitration before the American Arbitration Association in accordance with
its National Rules for the Resolution of Employment Disputes or, in the
event of a dispute relating to an employee benefit plan (including whether
a severance payment is due pursuant to Sections 6(b) hereof), in accordance
with its Employee Benefit Plan Claims Arbitration Rules. Judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
10. Assignment. The Employee may not delegate the performance of
any of the Employee's obligations or duties hereunder, or assign any rights
hereunder. Any such purported delegation or assignment shall be null and
void and of no force or effect. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the respective
successors and assigns of the parties hereto.
11. Survival of Covenants. Notwithstanding anything to the
contrary contained in this Agreement, upon the expiration of the Term or in
the event this Agreement is terminated for any reason whatsoever, the
covenants and agreements of the Employee contained in Sections 7, 8 and 9
hereof, shall survive any such expiration or termination and shall not
lapse.
12. Severability. In case any one or more provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement;
this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
13. Modification/Amendment. Neither this Agreement nor any
provisions hereof may be waived, modified, amended, changed, discharged, or
terminated except by an agreement in writing signed by both parties hereto.
14. Waiver of Default. Any waiver by either party of a breach of
any provision in this Agreement shall not operate as or be construed as a
waiver of any subsequent breach thereof.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO ITS RULES REGARDING CONFLICT OF LAWS.
16. Entire Agreement. This Agreement represents the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements and understandings with
respect to such subject matter.
17. Notices. Notices given pursuant to the provisions of this
Agreement shall be in writing and shall be deemed given upon receipt if
personally delivered or sent by facsimile transmission, or three days after
deposit if sent by certified mail, return receipt requested, to the
following addresses:
To the Company: Box Energy Corporation
8201 Preston Road, Suite 600
Dallas, Texas 75225-6211
Attention: President
Fax Number: (214) 890-8030
To the Employee:
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or such other address as shall be furnished in writing by either party to
the other party.
18. Headings. Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the day and year first above written.
BOX ENERGY CORPORATION,
a Delaware corporation
By:
-----------------------------
James A. Watt
President and Chief Operating
Officer
EMPLOYEE
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EXHIBIT "A" (to Employment Agreement with )
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AGREEMENT FOR SEVERANCE PAYMENT,
RELEASE AND NON-DISCLOSURE
WHEREAS, has been employed by Box Energy
Corporation pursuant to an Employment Agreement, which became effective
August 29, 1997;
WHEREAS, pursuant to the terms of that Employment Agreement, Box
Energy Corporation has agreed to pay a
severance payment provided that he executes this agreement for severance
payment, release and non-disclosure within forty-five (45) days after his
discontinuation of employment and otherwise qualifies for the severance
payment under the terms of the Employment Agreement;
WHEREAS, his employment was discontinued effective ;
WHEREAS, , on behalf of himself and his
spouse (if any) and his heirs, successors, assigns, agents,
representatives, and related persons (hereinafter collectively referred to
as "EMPLOYEE"), and Box Energy Corporation, on behalf of itself and its
parent, subsidiaries and affiliated companies, and on behalf of their
directors, officers, partners, employees, agents, attorneys, shareholders,
representatives and related persons and entities (including, without
limitation, J. R. Simplot and any affiliates thereof) (hereinafter
collectively referred to as "EMPLOYER") wish to enter this agreement for a
severance payment and for a release, waiver, and non-disclosure
(hereinafter referred to as the "Agreement");
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, EMPLOYER and EMPLOYEE agree as follows:
1. EMPLOYEE hereby agrees to accept a severance payment in the
amount of DOLLARS ($ ) less applicable
taxes and withholdings. EMPLOYEE is not entitled to the severance payment
under this Paragraph one (1) unless he executes this Agreement within the
forty-five (45) day period immediately following his discontinuation of
employment and does not revoke it as provided in Paragraph fifteen (15)
hereof.
2. In consideration of the severance payment, EMPLOYEE hereby
irrevocably and unconditionally releases EMPLOYER from any and all claims
and causes of action, known or unknown, and damages, arising in any way
from EMPLOYEE's employment with EMPLOYER and the discontinuation thereof
that have arisen through the date of this Agreement. In consideration of
the severance payment, EMPLOYEE waives all claims and causes of action
against EMPLOYER and all damages, if any, that may be recoverable. This
release and waiver of all claims and damages includes, but is not limited
to, any tort or claim of contractual restriction relating to EMPLOYEE's
employment or the discontinuation thereof, any claim of wrongful discharge,
any claim of negligence, and all rights under federal, state or local law
prohibiting race, sex, age, religion, national origin, handicap, disability
or other forms of discrimination, including, but not limited to, Title VII
of the Civil Rights Act of 1964, as amended, the Texas Commission on Human
Rights Act, as amended, any other state or local human rights laws,
Worker's Compensation laws, the Employee Retirement Income Security Act, as
amended, the Family Medical Leave Act, the Americans with Disabilities Act,
the Age Discrimination in Employment Act, as amended, the Fair Labor
Standards Act, as amended, and the National Labor Relations Act, as
amended.
3. This Agreement does not release or waive EMPLOYEE's rights, if
any, as an employee (1) to any vested benefits under a benefit plan
(including the Pension Plan of Box Energy Corporation and the Box Energy
Corporation Prototype Cash or Deferred Profit Sharing Plan ("401K Plan"))
which by its terms specifically provides for the vesting of benefits, (2)
to convert any insured benefits under an employee benefit plan to the
extent that the plan allows conversion, (3) to maintain his medical
insurance in force provided by the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA); or (4) to exercise any applicable stock
options awarded to EMPLOYEE.
4. It is expressly understood and agreed that this Agreement is
not and shall not be construed as an admission of liability on the part of
EMPLOYER, which expressly denies that it is liable.
5. For one year following the date EMPLOYEE executes this
Agreement, EMPLOYEE will not, directly or indirectly, communicate with any
reporters, broadcasters, or any other part of the media about EMPLOYER.
EMPLOYEE hereby covenants that for two years following the date EMPLOYEE
executes this Agreement, he will not, directly or indirectly, make any
negative or disparaging communication about EMPLOYER, except for truthful
testimony given under oath in the course of administrative or judicial
proceedings. If EMPLOYEE violates the covenant in this paragraph, then he
shall be liable to and shall tender to EMPLOYER an amount equal to fifty
percent (50%) of the total severance amount set forth in Paragraph one (1)
of this Agreement.
6. EMPLOYEE agrees to preserve the confidentiality of all of the
terms of this Agreement save and except as provided for herein. EMPLOYEE
shall not acknowledge and/or disclose the existence of this Agreement and
shall not divulge any of the terms of this Agreement to anyone; provided,
however, that EMPLOYEE may disclose the terms of this Agreement (1) to his
spouse, if any, (2) to his attorney and/or professional tax
advisor/preparer, if any, and federal, state, and local income taxing
authorities, for the limited purpose of obtaining professional tax advice
and filing tax returns, (3) when compelled to do so by court order or other
sufficient legal process, or (4) if necessary to enforce the terms of this
Agreement. If EMPLOYEE violates the covenant in this paragraph, then he
shall be liable to and shall tender to EMPLOYER an amount equal to fifty
percent (50%) of the total severance amount set forth in Paragraph one (1)
of this Agreement.
7. In any suit pertaining to this Agreement, venue shall lie
exclusively with the courts of Dallas County, Texas and the laws of the
State of Texas shall govern the suit.
8. In any suit to enforce the terms of this Agreement, the
prevailing party shall recover its reasonable attorney's fees, expert
witness fees, and court costs.
9. The failure by any party to this Agreement to enforce at any
time, or for any period of time, any one or more of the terms or conditions
of this Agreement shall not be a waiver of such terms or conditions or of
such party's right thereafter to enforce each and every term and condition
of this Agreement.
10. Should any clause, sentence, provision, paragraph or part of
this Agreement for any reason whatsoever, be adjudged by any court of
competent jurisdiction, or be held by any other competent authority having
jurisdiction, to be invalid, unenforceable, or illegal, such judgment or
holding shall be confined in its operation to the clause, sentence,
provision, paragraph or part of this Agreement directly involved, and the
remainder of this Agreement shall remain in full force and effect.
11. Neither this Agreement nor any part thereof is admissible in
any administrative or judicial proceeding other than one to enforce the
terms of this Agreement.
12. This Agreement shall be fairly construed and interpreted based
on its language and without regard to which party authored the Agreement.
13. This Agreement constitutes the entire agreement between the
parties and supersedes all prior and contemporaneous negotiations,
representations, agreements, and understandings. No change, modification,
or termination of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument that is signed by both
parties.
14. EMPLOYEE represents that he was given twenty-one (21) or more
days to consider this Agreement before signing it, and further that he was
advised in writing to consult with an attorney before signing it.
15. Pursuant to the Older Worker Benefit Protection Act, this
Agreement cannot become effective and enforceable until seven days
following its execution. Hence, the Severance Payment specified in
Paragraph one (1) of this Agreement shall not be tendered until seven (7)
days have elapsed following the date this Agreement is executed. For seven
(7) days following execution of this Agreement, EMPLOYEE may revoke the
Agreement. If it is revoked, no Severance Payment will become due and no
obligations will arise under this Agreement. If this Agreement is not
revoked within seven (7) days of its execution, it then immediately becomes
effective and enforceable, and EMPLOYER shall tender the Severance Payment
specified in Paragraph one (1) to EMPLOYEE.
16. EMPLOYEE hereby acknowledges that he has read the foregoing
document, understands its contents, agrees to its terms and conditions, and
that notwithstanding any medical condition, he is of sound mind and
competent to enter into this Agreement, and that he has voluntarily and
knowingly executed it in the space provided below.
EMPLOYER
BOX ENERGY CORPORATION,
a Delaware corporation
By:
- --------------- Name:
Date executed Its:
EMPLOYEE
- --------------- --------------------------
Date executed
Acknowledgement
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned notary public, personally appeared
, known to me to be that person whose
name is subscribed in the foregoing instrument and acknowledged to me that
the instrument was executed for the purposes and consideration therein
expressed and the capacity therein stated.
SUBSCRIBED AND SWORN TO before me on this day of .
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Notary Public, State of Texas
My Commission Expires: