EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement" effective September 15,
2005, is between Harvest Natural Resources, Inc. (the "Company") and James A.
Edmiston III, a resident of Texas ("Employee"), the terms and conditions of
which are as follows:
WHEREAS, the Company desires to secure the experience, abilities and
service of Employee by employing the Employee in the position of President and
Chief Executive Officer of the Company upon the terms and conditions specified
herein;
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Employee agree as follows:
1. TERM OF EMPLOYMENT.
Subject to the terms and conditions set forth in this Employment Agreement,
the Company agrees to employ Employee and Employee agrees to be employed by
the Company for the term which started on September 1, 2004 and ends on May
31, 2007. On May 31, 2007, and on each anniversary thereafter (an
"Extension Date") the term of this Employment Agreement shall automatically
be extended for a one-year period unless and until either party has given
written notice to the other at least one year before any Extension Date
that it or he wishes to terminate this Employment Agreement as of such
Extension Date.
2. POSITION AND DUTIES.
(a) Position. Subject to annual election by the Company's Board of
Directors, effective as of October 1, 2005, Employee's position shall
be President and Chief Executive Officer of Harvest Natural Resources,
Inc.
(b) Duties and Responsibilities. Employee's duties and responsibilities
initially shall be those normally associated with Employee's position,
plus any additional duties and responsibilities the Company initially
may assign orally or in writing to Employee. Employee shall undertake
to perform all Employee's duties and responsibilities for the Company
and its affiliates in good faith and on a full-time basis and shall at
all times act in the course of Employee's employment under this
Employment Agreement in the best interest of the Company and the
Company's affiliates.
(c) The Company's Right to Change Position or Duties. Subject to the terms
of this Employment Agreement, the Company shall have the right, to the
extent the Company from time to time reasonably deems necessary or
appropriate, to change Employee's position, or to expand or reduce
Employee's duties and responsibilities.
3. COMPENSATION AND BENEFITS.
(a) Base Salary. From the date of this Agreement until October 1, 2005,
Employees yearly base salary shall be $300,000. Effective as of
October 1, 2005 and for the remaining term of this Employment
Agreement, Employee' yearly base salary shall be not less than
$370,000 US (paid bi-weekly), which yearly base salary shall be
payable from the Company's Houston offices to Employee in accordance
with the Company's standard payroll practices and policies, and shall
be subject to such withholdings as required by U.S. Federal law and
the State of Texas, or as otherwise permissible under such practices
or policies. The Company shall annually review Employee's base salary.
(b) Annual Bonus. Employee shall be eligible for such annual bonus as may
be determined by the Human Resources Committee of the Company's Board
of Directors and the Company's Board of Directors, which bonus shall
be based on Employee's performance under the guidelines adopted by the
Company, the Company's overall performance and any special
circumstances the Human Resources Committee and the Company's Board
deem appropriate. Any such bonus is to be determined at the discretion
of the Company's Human Resources Committee and the Company's Board of
Directors. Employee acknowledges that the Company is not obligated to
award him any bonus in any year.
(c) Employee Benefit Plans. Employee shall be eligible to participate in
the employee benefit plans, programs and policies maintained by the
Company for similarly situated employees in accordance with the terms
and conditions to participate in such plans, programs, and policies as
in effect from time to time.
(d) Stock Options and Restricted Stock. Previously Employee has been
granted certain stock options and restricted stock pursuant to the
Company's long-term incentive plans. Except as provided in Section
4(a), this Employment Agreement neither increases nor decreases the
number of stock options and shares of restricted stock previously
granted, nor does it change the terms under which they were granted.
In addition, concurrently with the execution and delivery of this
Employment Agreement, Employee and the Company are executing new stock
option agreements in substantially the form of Exhibits A and B
attached to this Employment Agreement, pursuant to which Employee is
granted the option to purchase 250,000 shares of the Company's common
stock.
(e) Vacation. Employee shall be entitled to four (4) weeks annual
vacation.
(f) Expenses. The Company shall pay or reimburse Employee for all
reasonable expenses actually incurred or paid by Employee in the
performance of his services hereunder upon the presentation of expense
statements or vouchers or such other supporting information as the
Company may reasonably require of Employee.
(g) Office Facilities and Services. Employee shall be accorded such
benefits and support services, including without limitation, office
facilities, administrative
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assistant, communications, and such other perquisites as would
normally be accorded by a corporation of the size and at the stage of
development in the industry in which the Company is, to its President
and Chief Executive Officer.
(h) Indemnification. Employee shall be entitled to the benefit of the
indemnification provisions contained in the bylaws of the Company, as
the same may be amended.
(i) Stock Unit Award Agreement. Employee and the Company shall enter into
a stock unit award agreement, in substantially the form of Exhibit C
to this Employment Agreement (the "Stock Unit Award"), as soon as
possible after Employee and the Company have had the opportunity to
review guidance to be published by the Internal Revenue Service under
Section 409A of the Internal Revenue Code, as amended, and agree on a
date of payment under the stock unit award agreement.
4. TERMINATION OF EMPLOYMENT.
(a) Termination By The Company Other Than For Cause Or By Employee For
Good Reason.
(1) The Company shall have the right to terminate Employee's
employment other than for Cause at any time, and Employee shall
have the right to quit or resign for Good Reason at any time.
(2) If (a) the Company or its successors terminate Employee's
employment with the Company other than (i) for Cause or (ii)
pursuant to a notice of termination delivered in accordance with
Section 1 of this Employment Agreement or (b) Employee resigns
for Good Reason, then (u) the Company shall pay to Employee
within thirty (30) days after the termination or resignation an
amount equal to thirty-six months of Employee's base salary as in
effect immediately before Employee's termination of employment or
resignation, (v) the Company shall pay to Employee within thirty
(30) days after the termination or resignation an amount equal to
thirty-six months of the maximum contribution the Company may
make for Employee under the Company's 401(k) profit sharing plan
as in effect immediately before Employee's termination of
employment or resignation, (w) any outstanding stock option(s)
granted by the Company to Employee shall become fully vested and
shall remain exercisable for twelve (12) months following
Employee's termination pursuant to this Section 4(a)(2), or the
tenth anniversary of the date(s) of the grant(s) specified in the
relevant option agreement(s), whichever is the shorter period,
(x) the forfeiture restrictions in the Stock Unit Award shall
lapse as to the stock units granted thereunder, (y) the
restriction period on restricted shares of stock granted by the
Company to Employee will continue and will lapse as if Employee
had continued in the employ of the Company and a certificate(s)
representing such shares will be delivered to Employee within
thirty (30) days after the end of the applicable restriction
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period, and (z) Employee shall be reimbursed for up to $20,000 of
outplacement services with an outplacement service approved by
the Company.
(3) If the termination or resignation described in Section 4(a)(2)
occurs within 730 days after or 240 days before a Change of
Control, then (r) the Company shall pay to Employee, within
thirty (30) days after the termination of employment or
resignation an amount equal to thirty-six months of Employee's
base salary as in effect immediately before Employee's
termination of employment or resignation, (s) the Company shall
pay to Employee, within thirty (30) days after the later to occur
of the termination, resignation or Change of Control, the Bonus
Amount, (t) the Company shall pay to Employee within thirty (30)
days after the termination or resignation an amount equal to
thirty-six months of the maximum contribution the Company may
make for Employee under the Company's 401(k) profit sharing plan
as in effect immediately before Employee's termination of
employment or resignation, (u) any outstanding stock option(s)
granted by the Company to Employee shall become fully vested and
shall remain exercisable for twelve (12) months following
Employee's termination or resignation, or the tenth anniversary
of the date(s) of the grant(s) specified in the relevant option
agreement(s), whichever is the shorter period, (v) the forfeiture
restrictions in the Stock Unit Award shall lapse as to the stock
units granted thereunder, (w) the restriction period on
restricted shares of stock granted by the Company to Employee
will continue and will lapse as if Employee had continued in the
employ of the Company and a certificate(s) representing such
shares will be delivered to Employee within thirty (30) days
after the end of the applicable restriction period, (x) Employee
shall be reimbursed for up to $20,000 of outplacement services
with an outplacement service approved by the Company, (y) for a
period of thirty-six months following the later to occur of the
termination, resignation or Change of Control, the Company shall
continue to provide Employee and Employee's dependents with the
same level of life, disability, accident, dental and health
insurance benefits Employee and Employee's dependents were
receiving immediately before Employee's termination or
resignation, and (z) the Company will pay Employee, within thirty
(30) days after the later to occur of the termination,
resignation or Change of Control, an additional amount such that
the net amount retained by Employee pursuant to the benefits
described in this Section 4(a)(3) after any excise tax imposed
under Section 4999 of the Internal Revenue Code of 1986, as
amended from time to time) shall be equal to the amount that
Employee would have received pursuant to those benefits before
payment of any such excise tax.
(4) If the Company or its successors terminate Employee's employment
with the Company pursuant to a notice of termination delivered in
accordance with Section 1 of this Employment Agreement within 730
days after or 240 days before a Change of Control, then (r) the
Company shall pay to
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Employee, within thirty (30) days after the later to occur of the
termination or Change of Control, an amount equal to thirty-six
months of Employee's base salary as in effect immediately before
Employee's termination of employment (s) the Company shall pay to
Employee, within thirty (30) days after the later to occur of the
termination or Change of Control, the Bonus Amount, (t) the
Company shall pay to Employee within thirty (30) days after the
later to occur of the termination or Change of Control, an amount
equal to thirty-six months of the maximum contribution the
Company may make for Employee under the Company's 401(k) profit
sharing plan as in effect immediately before Employee's
termination of employment, (u) any outstanding stock option(s)
granted by the Company to Employee shall become fully vested and
shall remain exercisable for twelve (12) months following the
later to occur of Employee's termination or Change of Control, or
the tenth anniversary of the date(s) of the grant(s) specified in
the relevant option agreement(s), whichever is the shorter
period, (v) the forfeiture restrictions in the Stock Unit Award
shall lapse as to the stock units granted thereunder, (w) the
restriction period on restricted shares of stock granted by the
Company to Employee will continue and will lapse as if Employee
had continued in the employ of the Company and a certificate(s)
representing such shares will be delivered to Employee within
thirty (30) days after the end of the applicable restriction
period, (x) Employee shall be reimbursed for up to $20,000 of
outplacement services with an outplacement service approved by
the Company, (y) for a period of thirty-six months following the
later to occur of Employee's termination or Change of Control,
the Company shall continue to provide Employee and Employee's
dependents with the same level of life, disability, accident,
dental and health insurance benefits Employee and Employee's
dependents were receiving immediately before Employee's
termination, and (z) the Company shall pay to Employee, within
thirty (30) days after the later to occur of the termination or
Change of Control, an additional amount such that the net amount
retained by Employee pursuant to the benefits described in this
Section 4(a)(4) after any excise tax imposed under Section 4999
of the Internal Revenue Code of 1986, as amended from time to
time, shall be equal to the amount that Employee would have
received pursuant to such benefits before payment of any such
excise tax.
(b) Termination By The Company For Cause, Or By Employee Other Than For
Good Reason.
(1) The Company shall have the right to terminate Employee's
employment at any time for Cause, and Employee shall have the
right to quit or resign at any time other than for Good Reason.
(2) If the Company terminates Employee's employment for Cause or
pursuant to a notice of termination delivered in accordance with
Section 1 of this Employment Agreement that is not delivered
within 730 days after or 240
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days before a Change of Control, or Employee quits or resigns
other than for Good Reason, the Company's only obligation to
Employee under this Employment Agreement shall be to pay
Employee's base salary (including accrued vacation) actually
earned up to the date Employee's employment terminates.
(c) Termination for Disability or Death.
(1) The Company shall have the right to terminate Employee's
employment on or after the date Employee has a Disability, and
Employee's employment shall terminate at Employee's death.
(2) If Employee's employment terminates under this Section 4(c), the
Company shall pay Employee or, if Employee dies, Employee's
estate the amount provided for under Section 4(a)(2) (u) and, in
addition, Employee or, if Employee dies, Employee's estate shall
be entitled to the provisions of Sections 4(a)(2)(v), (w), (x)
and (y) with respect to the Company's 401(k) profit sharing plan,
Employee's stock options and Employee's restricted stock.
(d) Bonus Amount. The term "Bonus Amount" means three times the amount of
the higher of (i) the highest annual bonus earned by Employee for the
last three fiscal years ending prior to the termination date, and (ii)
(A) the target bonus percentage as established by the Company's Board
of Directors for the fiscal year in which the Change of Control
occurs, multiplied by (B) Employee's annual base salary for that
fiscal year (whether or not paid or accrued for the full year at the
time of Employee's termination or resignation).
(e) Cause. The term "Cause" shall mean (1) Employee's final conviction of
a felony by a trial court, (2) Employee's material breach of this
Employment Agreement or (3) Employee's material violation of any
policy or code of conduct of the Company, all as reasonably determined
by the Company.
(f) Good Reason. The term "Good Reason" shall mean any of the following,
unless Employee shall have given his express written consent thereto:
(1) a material breach of the terms and conditions of this Employment
Agreement by the Company which remains uncorrected for thirty (30)
days after Employee delivers written notice of such breach to the
Company; (2) failure to maintain or reelect Employee to the position
described in Section 2(a); (3) a significant reduction of Employee's
duties, position or responsibilities relative to Employee's duties,
position or responsibilities in effect immediately prior to such
reduction, unless Employee is provided with comparable duties and
responsibilities; (4) a substantial reduction, without good business
reasons, of the facilities and perquisites available to Employee
immediately prior to such reduction; (5) a reduction by the Company of
Employee's monthly base salary in effect immediately prior to such
reduction; (6) the Company fails to continue Employee's participation
in any bonus, incentive, profit sharing, performance,
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savings, retirement or pension policy, plan, program or arrangement on
substantially the same or better basis, both in terms of the amount of
benefits provided to Employee and the level of Employee's
participation, relative to other participants; (7) the relocation of
Employee more than fifty (50) miles from the location of the Company's
principal office on the date hereof; or (8) the failure of the Company
to obtain a satisfactory agreement from a successor to assume and
agree to perform this Employment Agreement as contemplated by Section
6(d).
(g) Disability. Employee shall have a "disability" under this Employment
Agreement on the date the Company receives written notice from a
physician selected by the Company that Employee no longer can perform
one or more of the essential functions of Employee's job even with
reasonable accommodation.
(h) Change of Control. A "Change of Control" means the occurrence of any
of the following:
(1) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934) (a "Covered Person") of beneficial
ownership (within the meaning of rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 50 percent or more of the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Voting Securities"); provided, however, that for
purposes of this subsection (1) of this Section 4(g) the
following acquisitions shall not constitute a Change of Control:
(i) any acquisition by the Company, (ii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any entity controlled by the Company, or (iii)
any acquisition by any entity pursuant to a transaction which
complied with clauses (i), (ii) and (iii) of subsection (3) of
this Section 4(g); or
(2) individuals who, as of the date of this Employment Agreement,
constitute the board of directors of the Company (the "Incumbent
Board") cease for any reason to constitute at least a majority of
the board of directors of the Company; provided, however, that
any individual becoming a director after the date of this
Employment Agreement whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors; or
(3) the consummation of a reorganization, merger or consolidation or
sale of the Company, or a disposition of at least 50 percent of
the assets of the Company, together with its subsidiaries,
including goodwill (a "Business
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Combination"), provided, however, that for purposes of this
subsection (3), a Business Combination will not constitute a
change of control if the following three requirements are
satisfied:
following such Business Combination, (i) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Company's voting securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50 percent of the ownership interests of
the entity resulting from such Business Combination (including,
without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
assets of the Company together with its subsidiaries, either
directly or through one or more subsidiaries or other affiliated
entities) in substantially the same proportions as their
ownership immediately prior to such Business Combination, (ii) no
Covered Person (excluding any employee benefit plan (or related
trust) of the Company or its subsidiaries or such entity
resulting from such Business Combination) beneficially owns,
directly or indirectly, 50 percent or more of, respectively, the
ownership interests in the entity resulting from such Business
Combination, except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority
of the members of the board of directors of the entity resulting
from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or
of the action of the board of directors of the Company, providing
for such Business Combination. For this purpose any individual
who becomes a director after the date of this Employment
Agreement, and whose election, or nomination for election, by the
Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors.
(i) Benefits. Employee shall have the right to receive any benefits
payable under the Company's employee benefits plans, programs and
policies (other than the Company's Policy for Termination and
Separation of Employment (the "Severance Plan")) which Employee
otherwise has a non-forfeitable right to receive under the terms of
such plans, programs and policies (other than severance benefits)
independent of Employee's rights under this Employment Agreement upon
a termination of employment in addition to any other benefits under
this Section 4 without regard to the reason for such termination of
employment. Employee acknowledges and agrees that until the
termination of this Employment Agreement, he shall not be entitled to
participate in the Severance Plan.
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(j) Notice of Termination. Any termination by the Company or by Employee
for any reason shall be communicated by a notice of termination to the
other party hereto and shall be given in accordance with Section 6(a).
Such notice shall state the specific termination provision in this
Employment Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated.
(k) No Mitigation. Employee shall not be required to mitigate the amount
of any severance payment contemplated by this Employment Agreement,
nor shall any such payment be reduced by any earnings that Employee
may receive from any other source.
(l) Stock Award Agreements. In the event of a conflict adverse to Employee
between the terms of this Employment Agreement and the terms of any
agreement granting Employee stock options or restricted stock, the
terms of this Employment Agreement shall govern.
5. COVENANTS BY EMPLOYEE.
(a) Property of the Company.
(1) Employee covenants and agrees that upon the termination of
Employee's employment for any reason or, if earlier, upon the
Company's request, Employee shall promptly return all Property
which had been entrusted or made available to Employee by the
Company or any of its subsidiaries.
(2) The term "Property" shall mean all records, files, memoranda,
reports, price lists, drawing, plans, sketches, keys, codes,
computer hardware and software and other property of any kind or
description prepared, used or possessed by Employee during
Employee's employment by the Company (and any duplicates of any
such property) together with any and all information, ideas,
concepts, discoveries, and inventions and the like conceived,
made, developed or acquired at any time by Employee individually
or with others during Employee's employment which relate to the
business, products or services of the Company or any of its
subsidiaries.
(b) Trade Secrets.
(1) In consideration for the promises made in Section 5(d) of this
Employment Agreement, the Company promises that it shall provide
and make available to Employee certain confidential, proprietary
information and trade secrets.
(2) Employee covenants and agrees that Employee shall hold in a
fiduciary capacity for the benefit of the Company and each of its
affiliates, and shall not directly or indirectly use or disclose,
any Trade Secret that Employee may have acquired pursuant to
Section 5(b)(1) above during the term of
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Employee's employment by the Company for so long as such
information remains a trade secret.
(3) The term "Trade Secret" shall mean information, including, but
not limited to, technical or non-technical data, a formula, a
patent, a compilation, a program, a device, a method, a
technique, a drawing, a process, financial data, financial plans,
product plans, or that: (a) derives economic value, actual or
potential, from not being generally known to, and not being
generally readily ascertainable by proper means by other persons
who can obtain economic value from its disclosures or use, and
(b) is the subject of reasonable efforts by the Company and its
affiliates to maintain its secrecy.
(4) This Section 5(b) is intended to provide rights to the Company
and its subsidiaries which are in addition to those rights the
Company and its subsidiaries have under the common law or
applicable statutes for the protection of trade secrets.
(c) Confidential Information.
(1) Employee covenants and agrees while employed under this
Employment Agreement and thereafter during the Restricted Period
he shall hold in a fiduciary capacity for the benefit of the
Company and each of its affiliates, and shall not directly or
indirectly use or disclose, any of the Company's or the Company's
affiliates' Confidential or Proprietary Information that Employee
may have acquired (whether or not developed or compiled by
Employee and whether or not Employee is authorized to have access
to such information) during the term of, and in the course of, or
as a result of Employee's employment by the Company or its
affiliates.
(2) The term "Confidential or Proprietary Information" shall mean any
secret, confidential or proprietary information of the Company or
an affiliate (not otherwise included in the definition of a Trade
Secret under this Employment Agreement) that has not become
generally available to the public by the act of one who has the
right to disclose such information without violation of any right
of the Company or its affiliates.
(d) Non-Competition. During the period of Employee's employment with the
Company and thereafter during the Restricted Period, Employee
covenants and agrees that, in connection with the business operations
and prospective interests of the Company on the date of Employee's
termination as an employee of the Company, which prospective interests
are disclosed to Employee prior to or on the date of Employee's
termination as an employee, he shall not, directly or indirectly, own
any interest in, manage, control, participate in, consult with, render
services for, or in any manner engage in any businesses in competition
with the Company or materially adverse to the Company (unless the
Company's Board of Directors shall have authorized such activity and
the Company shall
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have consented thereto in writing). Investments in less than 5% of the
outstanding securities of any class of the Company subject to the
reporting requirements of Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, shall not be prohibited
by this section. For purposes of this Section 5(d), the term "Company"
shall include Harvest Natural Resources, Inc. and any of its
affiliates or subsidiaries or any company in which it is a minority
shareholder or a joint venture partner. For purposes of this Section
5(d), the term "businesses" shall mean any enterprise, commercial
venture, or project involving oil and gas exploration or production
activities in the same geographic areas as the Company's activities
during the period of Employee's employment.
Further, during the period of Employee's employment with the Company
and thereafter during the Restricted Period, Employee covenants and
agrees that he will not directly or indirectly through another entity
induce or otherwise attempt to influence any employee of the Company
to leave the Company's employment or in any way interfere with the
relationship between the Company and any employee thereof. Further,
Employee will not induce or attempt to induce any customer, supplier,
licensee, joint venture partner, shareholder, licensor or other
business relation of the Company to cease doing business with the
Company or in any way interfere with the relationship between any such
customer, supplier, licensee, joint venture partner, shareholder,
licensor or business relation of the Company.
If (i) pursuant to the arbitration process described in Section 6(c)
of this Employment Agreement (or such other process as to which the
Company and Employee may agree upon in writing), it is determined that
Employee has violated the provisions of this Section 5(d), and (ii)
Employee has received a payment from the Company pursuant to Section
4(a)(2)(u), Section 4(a)(3)(r), Section 4(a)(3)(s), Section 4(a)(4)(r)
or Section 4(a)(4)(s) of this Employment Agreement (the "Lump Sum
Severance Amount"), then, in addition to any other remedies that the
Company may have, Employee shall be obligated, and hereby agrees, to
pay the Company, as liquidated damages, an amount (but not less than
zero) equal to the product of (x) the Lump Sum Severance Amount and
(y) a fraction whose numerator is the excess of thirty-six (36) over
the number of calendar months that have elapsed since the last day of
Employee's termination of employment under Section 4 of this
Employment Agreement and whose denominator is thirty-six (36).
(e) Employment Restriction - Conflict of Interest. Employee covenants and
agrees that he will not receive and has not received any payments,
gifts or promises and Employee will not engage in any employment or
business enterprises that in any way conflict with his service and the
interests of the Company or its affiliates. In addition, Employee
agrees to comply with the laws or regulations of any country,
including, without limitation, the United States of America, having
jurisdiction over Employee, the Company or any of the Company's
subsidiaries.
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Employee shall not make any payments, loans, gifts or promises or
offers of payments, loans or gifts, directly or indirectly, to or for
the use or benefit of any official or employee of any government or to
any other person if Employee knows, or has reason to believe, that any
part of such payments, loans or gifts, or promise or offer, would
violate the laws or regulations of any country, including, without
limitation, the United States of America, having jurisdiction over
Employee, the Company or any of the Company's subsidiaries.
By signing this Employment Agreement, Employee acknowledges that he
has not made and will not make any payments, loans, gifts, promises of
payments, loans or gifts to or for the use or benefit of any official
or employee of any government or to any other person which would
violate the laws or regulations of any country, including, without
limitation, the United States of America, having jurisdiction over
Employee, the Company or any of the Company's subsidiaries.
(f) Restricted Period. The term "Restricted Period" shall mean the
two-year period which starts on the date Employee's employment
terminates with the Company without regard to whether such termination
comes before or after the end of the term of this Employment
Agreement.
(g) Reasonable and Continuing Obligations. Employee agrees that Employee's
obligations under this Section 5 are obligations which will continue
beyond the date Employee's employment terminates and that such
obligations are reasonable and necessary to protect the Company's
legitimate business interests. The Company additionally shall have the
right to take such other action as the Company deems necessary or
appropriate to compel compliance with the provisions of this Section
5.
6. MISCELLANEOUS.
(a) Notices. Notices and all other communications shall be in writing and
shall be deemed to have been duly given when personally delivered or
when mailed by United States registered or certified mail. Notices to
the Company shall be sent to 1177 Enclave Parkway, Suite 300, Houston,
Texas 77077. Notices and communications to Employee shall be sent to
Employee's home address, as indicated by the records of the Company.
(b) No Waiver. Except for the notice described in Section 4(f), no failure
by either the Company or Employee at any time to give notice of any
breach by the other of, or to require compliance with, any condition
or provision of this Employment Agreement shall be deemed a waiver of
any provisions or condition of this Employment Agreement
(c) Arbitration and Governing Law. ANY UNRESOLVED DISPUTE OR CONTROVERSY
BETWEEN EMPLOYEE AND THE COMPANY ARISING UNDER OR IN CONNECTION WITH
THIS EMPLOYMENT AGREEMENT SHALL BE SETTLED EXCLUSIVELY BY ARBITRATION,
CONDUCTED
-12-
IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION
THEN IN EFFECT. THE COMPANY WILL BEAR THE ADMINISTRATIVE COSTS OF ANY
ARBITRATION UNDER THIS EMPLOYMENT AGREEMENT, INCLUDING THE
ARBITRATOR'S FEES. THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO ADD
TO, DETRACT FROM, OR MODIFY ANY PROVISION HEREOF. THE ARBITRATOR SHALL
HAVE THE AUTHORITY TO ORDER REMEDIES WHICH EMPLOYEE COULD OBTAIN IN A
COURT OF COMPETENT JURISDICTION. A DECISION BY THE ARBITRATOR SHALL BE
IN WRITING AND WILL BE FINAL AND BINDING. JUDGMENT MAY BE ENTERED ON
THE ARBITRATOR'S AWARD IN ANY COURT HAVING JURISDICTION. THE
ARBITRATION PROCEEDING SHALL BE HELD IN HOUSTON, TEXAS, UNITED STATES
OF AMERICA. NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL BE
ENTITLED TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM ANY COURT
OF COMPETENT JURISDICTION, WITHOUT THE NEED TO RESORT TO ARBITRATION
IN THE EVENT THAT EMPLOYEE VIOLATES SECTIONS 5(b), 5(c), 5(d) OR 5(e)
OF THIS EMPLOYMENT AGREEMENT. THIS EMPLOYMENT AGREEMENT SHALL IN ALL
RESPECTS BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS.
(d) Assignment by Company; Meaning of "Company". This Employment Agreement
shall be binding upon and inure to the benefit of the Company and any
successor to all or substantially all of the business or assets of the
Company. The Company may assign this Employment Agreement to any
affiliate or successor, and no such assignment shall be treated as a
termination of Employee's employment under this Employment Agreement;
provided, however, that in the case of an assignment to an affiliate,
the Company shall not be relieved of its obligations under this
Employment Agreement. The Company will require any successor
corporation (whether direct or indirect, and whether by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company to expressly assume and to agree to
perform this Employment Agreement in the same manner and to the same
extent as the Company, as if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a material breach
of this Employment Agreement. As used in this Employment Agreement,
"Company" shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and
agrees to perform this Employment Agreement by operation of law, or
otherwise.
(e) Assignment by Employee. Employee's rights and obligations under this
Employment Agreement are personal, and they shall not be assigned or
transferred without the Company's prior written consent.
(f) Other Agreements. With the exception of the Company's stock option
plans (and related agreements), restricted stock plan (and related
agreements) and incentive
-13-
plans, and the guidelines referred to in Section 3(b), this Employment
Agreement replaces and merges any and all previous agreements and
understandings regarding all the terms and conditions of Employee's
employment relationship with the Company, and this Employment
Agreement constitutes the entire agreement of the Company and Employee
with respect to such terms and conditions.
(g) Amendment. No amendment to this Employment Agreement shall be
effective unless it is in writing and signed by the Company and by
Employee.
(h) Invalidity. If any provision of this Employment Agreement is held to
be invalid, illegal or otherwise unenforceable, the remaining
provisions shall be unaffected and shall continue in full force and
effect, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible
to the provision at issue.
(i) Enforceability by Beneficiaries. This Employment Agreement shall inure
to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal or personal representatives and successors and
if Employee should die while any amount would still be payable to him
hereunder if he had continued to live, all such amounts shall be paid
in accordance with the terms of this Employment Agreement to
Employee's devisee, legatee or other designee or, if there is no such
designee, to his estate.
(j) Reimbursement of Certain Expenses. To the extent Employee shall
prevail in any arbitration proceeding pursuant to Section 6(c) to
resolve any dispute or controversy between Employee and the Company
arising under or in connection with this Employment Agreement, then
the Company shall reimburse Employee, or pay on Employee's behalf, all
of Employee's reasonable expenses, including without limitation
attorneys' fees, incurred by Employee in connection with the
arbitration.
7. NOVATION.
This Employment Agreement is a novation to the Amended and Restated
Employment Agreement between the Company and Employee effective September 1,
2004, which is hereby extinguished. As consideration for this novation, Employee
acknowledges the value of the matters described in the recitals to this
Employment Agreement and the other terms of this Employment Agreement and agrees
that they are adequate to make the novation binding in all respects.
IN WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement in multiple originals to be effective as set out above.
-14-
HARVEST NATURAL RESOURCES, INC. JAMES A. EDMISTON III
By: By:
---------------------------------- -----------------------------------
Stephen D. Chesebro'
Chairman of the Board of Directors
-15-
EXHIBIT A
HARVEST NATURAL RESOURCES, INC.
2001 LONG TERM STOCK INCENTIVE PLAN
EMPLOYEE OPTION AGREEMENT
Agreement made at Houston, Texas, USA, as of September 15, 2005, by and
between HARVEST NATURAL RESOURCES, INC. (the "Company") and JAMES A. EDMISTON
III (the "Employee").
It is hereby agreed as follows:
1. Grant of Option; Consideration. The Company hereby confirms the grant,
pursuant to Section 5 of the Company's 2001 Stock Option Plan (the "Plan"), to
the Employee on September 15, 2005, of a nonqualified stock option to purchase
up to 85,000 shares of the Company's Common Stock, par value $0.01 per share
(the "Shares"), at an exercise price of $10.80 per share (the "Option"). The
Option granted hereunder is not intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended. The terms of the Option are subject to adjustment in certain
circumstances, as provided in the Plan.
The Employee shall be required to pay no consideration for the grant of the
Option, except for his agreement to serve as an employee of the Company or any
subsidiary and other agreements set forth herein.
2. Incorporation of Plan by Reference. The Option has been granted to the
Employee under the Plan, a copy of which is attached hereto. All of the terms,
conditions, and other provisions of the Plan are hereby incorporated by
reference into this Employee Stock Option Agreement (the "Agreement").
Capitalized terms used in this Agreement but not defined herein shall have the
same meanings as in the Plan. If there is any conflict between the provisions of
this Agreement and the provisions of the Plan, the provisions of the Plan shall
govern.
3. Vesting. Subject to all of the terms and conditions of the Plan and this
Agreement, including acceleration of vesting in the event of a Change of Control
or Total Disability, the Employee may purchase up to:
(i) one-third of the Shares subject to the Option upon exercise of the
Option after the later of September 14, 2006, and the Stock Value
Date;
(ii) an additional one-third of the Shares subject to the Option upon
exercise of the Option after the later of September 14, 2007, and the
Stock Value Date; and
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(iii) the remaining one-third of the Shares subject to the Option upon
exercise of the Option after the later of September 14, 2008, and the
Stock Value Date.
The "Stock Value Date" is the first day after September 15, 2005, on which
the average of the Closing Price of the Stock for ten (10) consecutive trading
days equals or exceeds $20.00 per share. The "Closing Price of the Stock" means
the final trading price per share of the Stock as reported in The Wall Street
Journal listing of consolidation trading for New York Stock Exchange issues.
4. Term and Termination of Service. This Option, to the extent it has not
been previously exercised, shall expire at 5:00 p.m. (Central Time) on September
14, 2015 or, if earlier, at 5:00 p.m. (Central Time):
(i) on the date 3 months after the Employee ceases to be a Non-Employee
Director, Employee or Consultant of the Company or any Subsidiary for
any reason other than a Change of Control, Total Disability or death;
(ii) on the date 12 months after the Employee ceases to be a Non-Employee
Director, Employee or Consultant of the Company or any Subsidiary by
reason of Total Disability;
(iii) on the date 12 months after the date of the Employee's death who dies
while in the service or employ of the Company or a Subsidiary or
within 3 months after the termination of such employment or service;
or
(iv) on the date 12 months after the Employee's termination of employment
or service if such employment or service is terminated within 730 days
after the effective date of a Change of Control.
Except in the case of a termination subject to (ii) above, the Option shall
be exercisable after the date of such termination of Employee's service or
employment only to the extent the Option was exercisable at the date of
such termination. In the case of termination subject to (ii) above, any
Options that are not exercisable shall become exercisable effective as of
the termination date.
The term and vesting schedule of the Option is also subject to Sections
4(a)(2), (3) and (4) of an Employment Agreement dated September 15, 2005
between the Company and the Employee.
5. Option Exercise. The Option may be exercised in whole or in part (to the
extent then exercisable) by contacting the Company's designated agent for
processing Option exercises. An Option exercise must be accompanied by payment
in full of the exercise price (i) in cash, (ii) by means of a broker-assisted
cashless exercise to the extent then permitted under rules and regulations
adopted by the Committee, or (iii) in such other manner as may then be permitted
under rules and regulations adopted by the Committee. As soon as practicable
after the valid
-17-
exercise of the Option, the Company shall deliver to the Employee one or more
stock certificates representing the Shares so purchased, with any requisite
legend affixed.
6. Non-Transferability. No right or interest of the Employee in the Option
shall be pledged, encumbered, or hypothecated to or in favor of any third party
or shall be subject to any lien, obligation, or liability of the Employee to any
third party. The Option shall not be transferable to any third party by the
Employee otherwise than (i) by will or the laws of descent and distribution,
(ii) pursuant to a qualified domestic relations order as defined under the Code
or Title I of the Employee Retirement Income Security Act of 1974 to an
immediate family member, or (iii) to the extent authorized by the Committee, to
an immediate family member of the Employee who acquires the options from the
Employee through a gift.
7. Compliance with Laws and Regulations. The obligation of the Company to
deliver Shares upon the exercise of this Option is conditioned upon compliance
by the Employee and by the Company with all applicable laws and regulations,
including regulations of federal and state agencies. If requested by the
Company, the Employee shall provide to the Company, as a condition to the valid
exercise of this Option and the delivery of any certificates representing
Shares, appropriate evidence, satisfactory in form and substance to the Company,
that he is acquiring the Shares for investment and not with a view to the
distribution of the Shares or any interest in the Shares, and a representation
to the effect that the Employee shall make no sale or other disposition of the
Shares unless (i) the Company shall have received an opinion of counsel
satisfactory to it in form and substance that such sale or other disposition may
be made without compliance with registration or other applicable requirements of
federal and state laws and regulations, and (ii) all steps required to comply
with such laws and regulations in connection with the sale or other disposition
of the Shares have been taken and all necessary approvals have been received.
The certificates representing the Shares may bear an appropriate legend giving
notice of the foregoing restrictions on transfer of the Shares, and any other
restrictive legend deemed necessary or appropriate by the Committee.
8. Tax Withholding. Whenever Shares are to be delivered upon exercise of
the Option, the Company shall be entitled to require as a condition of delivery
or payment that the Employee remit or, in appropriate cases, agree to remit when
due an amount sufficient to satisfy all federal, state, and local withholding
tax requirements relating thereto. The Employee will be entitled to elect to
have the Company withhold from the Shares to be delivered upon the exercise of
the Option, a sufficient number of such shares to satisfy the Employee's minimum
statutory federal, state, and local withholding tax obligations relating to the
Option exercise to the extent then permitted under rules and regulations adopted
by the Committee and in effect at the time of the exercise of the Option. In
such case, the Shares withheld or the shares surrendered will be valued at the
Fair Market Value at the time of the exercise of the Option.
9. Employee Bound by Plan. The Employee hereby acknowledges receipt of the
attached copy of the Plan and agrees to be bound by all the terms and provisions
thereof (as presently in effect or hereafter amended), and by all decisions and
determinations of the Committee.
-18-
10. Binding Effect: Integration: No Other Rights Created. This Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties. This Agreement constitutes the entire agreement between the parties
with respect to the Option, and supersedes any prior agreements or documents
with respect to the Option. No amendment, alteration, suspension,
discontinuation or termination of this Agreement which may impose any additional
obligation upon the Company or impair the rights of the Employee with respect to
the Option shall be valid unless in each instance such amendment, alteration,
suspension, discontinuation or termination is expressed in a written instrument
duly executed in the name and on behalf of the Company and by the Employee.
Neither this Agreement nor the grant of the Option shall constitute an
employment agreement, nor shall either confer upon the Employee any right with
respect to his continued status with the Company.
HARVEST NATURAL RESOURCES, INC.
BY:
------------------------------------
STEPHEN D. CHESEBRO'
CHAIRMAN OF THE BOARD
EMPLOYEE:
----------------------------------------
James A. Edmiston III
DATE:
----------------------------------
Attachment (copy of the Plan)
-19-
EXHIBIT B
HARVEST NATURAL RESOURCES, INC.
2004 LONG TERM STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
Agreement made at Houston, Texas, USA, as of September 15, 2005, by and
between HARVEST NATURAL RESOURCES, INC. (the "Company") and James A. Edmiston
III (the "Optionee").
It is hereby agreed as follows:
2. Grant of Option; Consideration. The Company hereby grants, pursuant to
Article VI of the Harvest Natural Resources, Inc. 2004 Long Term
Incentive Plan (the "Plan"), to the Optionee on September 15, 2005, a
nonqualified stock option to purchase up to 165,000 shares of the
Company's Common Stock, par value $0.01 per share (the "Shares"), at
an exercise price of $10.80 per share (the "Option"). The Option
granted hereunder is not intended to constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"). The terms of the Option are subject
to adjustment in certain circumstances, as provided in the Plan.
The Optionee shall be required to pay no consideration for the grant
of the Option, except for his agreement to serve as a Non-Employee
Director, Employee or Consultant of the Company or any Subsidiary and
other agreements set forth herein.
3. Incorporation of Plan by Reference. The Option has been granted to the
Optionee under the Plan, a copy of which is attached hereto. All of
the terms, conditions, and other provisions of the Plan are hereby
incorporated by reference into this Stock Option Agreement (the
"Agreement"). Capitalized terms used in this Agreement but not defined
herein shall have the same meanings as in the Plan. If there is any
conflict between the provisions of this Agreement and the provisions
of the Plan, the provisions of the Plan shall govern.
4. Vesting. Subject to all of the terms and conditions of the Plan and
this Agreement, including acceleration of vesting in the event of a
Change of Control or Total Disability, the Optionee may purchase up
to:
(i) one-third of the Shares subject to the Option upon exercise
of the Option after the later of September 14, 2006, and the
Stock Value Date;
-20-
(ii) an additional one-third of the Shares subject to the Option
upon exercise of the Option after the later of September 14,
2007, and the Stock Value Date; and
(iii) the remaining one-third of the Shares subject to the Option
upon exercise of the Option after the later of September 14,
2008, and the Stock Value Date.
The "Stock Value Date" is the first day after September 15, 2005, on
which the average of the Closing Price of the Stock for ten (10)
consecutive trading days equals or exceeds $20.00 per share. The
"Closing Price of the Stock" means the final trading price per share
of the Stock as reported in The Wall Street Journal listing of
consolidation trading for New York Stock Exchange issues.
5. Term and Termination of Service. The Option, to the extent it has not
been previously exercised, shall expire at 5:00 p.m. (Central Time) on
September 14, 2015 or, if earlier, at 5:00 p.m. (Central Time):
(i) on the date 3 months after the Optionee ceases to be a
Non-Employee Director, Employee or Consultant of the Company
or any Subsidiary for any reason other than a Change of
Control, Total Disability or death;
(ii) on the date 12 months after the Optionee ceases to be a
Non-Employee Director, Employee or Consultant of the Company
or any Subsidiary by reason of Total Disability;
(iii) on the date 12 months after the date of the Optionee's
death who dies while in the service or employ of the Company
or a Subsidiary or within 3 months after the termination of
such employment or service; or
(iv) on the date 12 months after the Optionee's termination of
employment or service if such employment or service is
terminated within 730 days after the effective date of a
Change of Control.
Except in the case of a termination subject to (ii) above, the Option
shall be exercisable after the date of such termination of Optionee's
service or employment only to the extent the Option was exercisable at
the date of such termination. In the case of termination subject to
(ii) above, any Options that are not exercisable shall become
exercisable effective as of the termination date.
The term and vesting schedule of the Option is also subject to
Sections 4(a)(2), (3) and (4) of an Employment Agreement dated
September 15, 2005 between the Company and the Optionee.
6. Option Exercise. The Option may be exercised in whole or in part (to
the extent then exercisable) by contacting the Company's designated
agent for processing Option
-21-
exercises. An Option exercise must be accompanied by payment in full
of the exercise price (i) in cash, (ii) by means of a broker-assisted
cashless exercise to the extent then permitted under rules and
regulations adopted by the Committee, or (iii) in such other manner as
may then be permitted under rules and regulations adopted by the
Committee. As soon as practicable after the valid exercise of the
Option, the Company shall deliver to the Optionee one or more stock
certificates representing the Shares so purchased, with any requisite
legend affixed.
7. Non-Transferability. No right or interest of the Optionee in the
Option shall be pledged, encumbered, or hypothecated to or in favor of
any third party or shall be subject to any lien, obligation, or
liability of the Optionee to any third party. The Option shall not be
transferable to any third party by the Optionee otherwise than (i) by
will or the laws of descent and distribution, (ii) pursuant to a
qualified domestic relations order as defined under the Code or Title
I of the Employee Retirement Income Security Act of 1974 to an
immediate family member, or (iii) to the extent authorized by the
Committee, to an immediate family member of the Optionee who acquires
the options from the Optionee through a gift.
8. Compliance with Laws and Regulations. The obligation of the Company to
deliver Shares upon the exercise of the Option is conditioned upon
compliance by the Optionee and by the Company with all applicable laws
and regulations, including regulations of federal and state agencies.
If requested by the Company, the Optionee shall provide to the
Company, as a condition to the valid exercise of the Option and the
delivery of any certificates representing Shares, appropriate
evidence, satisfactory in form and substance to the Company, that he
is acquiring the Shares for investment and not with a view to the
distribution of the Shares or any interest in the Shares, and a
representation to the effect that the Optionee shall make no sale or
other disposition of the Shares unless (i) the Company shall have
received an opinion of counsel satisfactory to it in form and
substance that such sale or other disposition may be made without
compliance with registration or other applicable requirements of
federal and state laws and regulations, and (ii) all steps required to
comply with such laws and regulations in connection with the sale or
other disposition of the Shares have been taken and all necessary
approvals have been received. The certificates representing the Shares
may bear an appropriate legend giving notice of the foregoing
restrictions on transfer of the Shares, and any other restrictive
legend deemed necessary or appropriate by the Committee.
9. Tax Withholding. Whenever Shares are to be delivered upon exercise of
the Option, the Company shall be entitled to require as a condition of
delivery or payment that the Optionee remit or, in appropriate cases,
agree to remit when due an amount sufficient to satisfy all federal,
state, and local withholding tax requirements relating thereto. The
Optionee will be entitled to elect to have the Company withhold from
the Shares to be delivered upon the exercise of the Option, a
sufficient number of such shares to satisfy the Optionee's minimum
statutory federal, state, and local withholding tax obligations
relating to the Option exercise to the extent then permitted under
rules and regulations adopted by the Committee and in effect at the
time of the exercise of the Option. In such
-22-
case, the Shares withheld or the shares surrendered will be valued at
the Fair Market Value at the time of the exercise of the Option.
-23-
10. Optionee Bound by Plan. The Optionee hereby acknowledges receipt of
the attached copy of the Plan and agrees to be bound by all the terms
and provisions thereof (as presently in effect or hereafter amended),
and by all decisions and determinations of the Committee.
11. Binding Effect: Integration: No Other Rights Created. This Agreement
shall be binding upon the heirs, executors, administrators and
successors of the parties. This Agreement constitutes the entire
agreement between the parties with respect to the Option, and
supersedes any prior agreements or documents with respect to the
Option. No amendment, alteration, suspension, discontinuation or
termination of this Agreement which may impose any additional
obligation upon the Company or impair the rights of the Optionee with
respect to the Option shall be valid unless in each instance such
amendment, alteration, suspension, discontinuation or termination is
expressed in a written instrument duly executed in the name and on
behalf of the Company and by the Optionee. Neither this Agreement nor
the grant of the Option shall constitute an employment agreement, nor
shall either confer upon the Optionee any right with respect to his
continued status with the Company.
HARVEST NATURAL RESOURCES, INC.
BY:
------------------------------------
STEPHEN D. CHESEBRO'
CHAIRMAN OF THE BOARD
OPTIONEE:
----------------------------------------
James A. Edmiston III
DATE:
----------------------------------
Attachment (copy of the Plan)
-24-
EXHIBIT C
STOCK UNIT AWARD AGREEMENT
This STOCK UNIT AWARD AGREEMENT (this "Agreement") is made by and between
Harvest Natural Resources, Inc., a Delaware corporation (the "Company"), and
James A. Edmiston III (the "Executive") as of the ____ day of
______________________, 2005 (the "Grant Date").
WHEREAS, the Company desires to grant to the Executive the stock unit award
specified herein (the "Award"), subject to the terms and conditions of this
Agreement; and
WHEREAS, the Award is a "stock value right" as that term is defined in Treasury
Regulation Section 31.3121(v)(2)-1(b)(4)(ii); and
WHEREAS, the Executive desires to have the opportunity to hold the Award,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. GRANT OF STOCK UNIT AWARD. Effective as of the Grant Date, the Company
hereby awards to the Executive 250,000 Stock Units. A "Stock Unit" is a
right to receive on the Payment Date, after vesting thereof, a cash amount
equal to the excess of (a) the Fair Market Value of one share of the Stock
on the Valuation Date over (b) 100 percent of the Fair Market Value of one
share of the Stock on September 15, 2005. For purposes of this Agreement
the "Fair Market Value of one share of the Stock" means the average of the
high and low trading prices per share of the Stock for the applicable date
as reported by the New York Stock Exchange or the principal stock exchange
on which the Stock is then traded. The Stock Units that are awarded hereby
to the Executive shall be subject to the prohibitions and restrictions set
forth herein with respect to the sale or other disposition of such Stock
Units and the obligation to forfeit and surrender such Stock Units to the
Company (the "Forfeiture Restrictions"). In accepting the award of Stock
Units set forth in this Agreement the Executive accepts and agrees to be
bound by all the terms and conditions of this Agreement.
2. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(a) "Affiliate" means an Entity that is required to be treated as a single
employer together with the Company for certain benefit plan purposes
under section 414 of the Code.
(b) "Board" means the Board of Directors or other governing body of the
Company or its direct or indirect parent.
-25-
(c) "Change of Control" means the occurrence of any of the following
events:
(i) the acquisition by any individual, Entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934) (a "Covered Person") of beneficial
ownership (within the meaning of rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 50 percent or more of the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Voting Securities"); provided, however, that for
purposes of this subsection (i) of this Section 2(c) the
following acquisitions shall not constitute a Change of Control:
(i) any acquisition by the Company, (ii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any Entity controlled by the Company, or (iii)
any acquisition by any Entity pursuant to a transaction which
complied with clauses (A), (B) and (C) of subsection (iii) of
this Section 2(c); or
(ii) individuals who, as of the date of this Agreement, constitute the
Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director after the date of this Agreement
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors; or
(iii) the consummation of a reorganization, merger or consolidation or
sale of the Company, or a disposition of at least 50 percent of
the assets of the Company including goodwill (a "Business
Combination"), provided, however, that for purposes of this
subsection (iii), a Business Combination will not constitute a
change of control if the following three requirements are
satisfied: following such Business Combination, (A) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Company's Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50 percent of
the ownership interests of the Entity resulting from such
Business Combination (including, without limitation, an Entity
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries or other affiliated entities) in
substantially the same proportions as their ownership immediately
prior to such Business Combination, (B) no Covered Person
(excluding any employee benefit plan (or related trust) of the
Company or such Entity resulting from such Business Combination)
beneficially owns, directly or indirectly,
-26-
50 percent or more of, respectively, the ownership interests in
the Entity resulting from such Business Combination, except to
the extent that such ownership existed prior to the Business
Combination, and (C) at least a majority of the members of the
board of directors of the Entity resulting from such Business
Combination were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination. For this purpose
any individual who becomes a director after the date of this
Agreement, and whose election or nomination for election by the
Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Disability" means the Executive no longer can perform one or more of
the essential functions of the Executive's job even with reasonable
accommodation and a physician selected by the Company has confirmed
such condition exists and has reported his findings to the Company in
a written notice received by the Company.
(f) "Entity" means any corporation, partnership, association, joint-stock
company, limited liability company, trust, unincorporated organization
or other business Entity.
(g) "Forfeiture Restrictions" means any prohibitions and restrictions set
forth herein with respect to the sale or other disposition of Stock
Units issued to the Executive hereunder and the obligation to forfeit
and surrender such Stock Units to the Company.
(h) ["Payment Date" means the earliest of (i) __________________________,
20__, (ii) six months after the date the Executive incurs a Section
409A Separation From Service with respect to the Company and (iii) the
date the Company incurs a Section 409A Change of Control.]
(i) "Section 409A Change of Control" means a change in the ownership or
effective control of a corporation or in the ownership of a
substantial portion of the assets of a corporation under section 409A
of the Code and the guidance issued by the Secretary of the Treasury
with respect thereto.
(j) "Section 409A Separation from Service" means a separation from service
within the meaning of section 409A of the Code and the guidance issued
by the Secretary of the Treasury with respect thereto.
(k) "Stock" means the Company's common stock, par value $0.01 per share.
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(l) "Valuation Date" means the last day immediately preceding the Payment
Date on which sales of the Stock are reported by the principal stock
exchange on which the Stock is then traded.
3. TRANSFER RESTRICTIONS. The Stock Units granted hereby may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise transferred,
encumbered or disposed of (other than by will or the applicable laws of
descent and distribution) to the extent then subject to the Forfeiture
Restrictions. Any such attempted sale, assignment, pledge, exchange,
hypothecation, transfer, encumbrance or disposition in violation of this
Agreement shall be void and the Company shall not be bound thereby.
4. VESTING. The Stock Units that are granted hereby shall be subject to
Forfeiture Restrictions. The Forfeiture Restrictions shall lapse as to the
Stock Units that are granted hereby in accordance with the provisions of
subsections (a) through (c) of this Section 4.
(a) Generally. The Forfeiture Restrictions shall lapse as to the Stock
Units that are granted hereby in accordance with the following
schedule provided that the Executive's employment with the Company and
all of its Affiliates has not terminated prior to the applicable lapse
date:
(i) the Forfeiture Restrictions shall lapse as to one-third of the
Stock Units subject to this Agreement after the later of
September 14, 2006, and the Stock Value Date;
(ii) the Forfeiture Restrictions shall lapse as to an additional
one-third of the Stock Units subject to this Agreement after the
later of September 14, 2007, and the Stock Value Date; and
(iii) the Forfeiture Restrictions shall lapse as to the remaining
one-third of the Stock Units subject to this Agreement after the
later of September 14, 2008, and the Stock Value Date.
The "Stock Value Date" is the first day after the Grant Date on which
the average of the Closing Price of the Stock for ten (10) consecutive
trading days equals or exceeds $25.00 per share. The "Closing Price of
the Stock" means the final trading price per share of the Stock as
reported in The Wall Street Journal listing of consolidation trading
for New York Stock Exchange issues or the principal stock exchange on
which the Stock is then traded. If the Executive's employment
relationship with the Company and all of its Affiliates terminates
before the applicable lapse date set forth in this subsection (a),
except as otherwise specified in subsections (b) or (c) below, the
Forfeiture Restrictions then applicable to the Stock Units shall not
lapse and all the Stock Units then subject to the Forfeiture
Restrictions shall be forfeited to the Company upon such termination
of the Executive's employment relationship.
(b) Death or Disability. Notwithstanding any provisions of Section 4(a) to
the contrary, in the event the Executive's employment relationship
with the Company and all of its Affiliates is terminated due to the
death or Disability of the
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Executive prior to the expiration of the term of this Agreement, the
Forfeiture Restrictions shall lapse as to the Stock Units that are
granted hereby on the date of such termination of the Executive's
employment relationship due to death or Disability.
(c) Change of Control. Notwithstanding any provisions of Section 4(a) to
the contrary, in the event the Executive's employment relationship
with the Company and all of its Affiliates is terminated within 730
days after or 240 days before a Change of Control, the Forfeiture
Restrictions shall lapse as to the Stock Units that are granted hereby
on the date the Executive's employment relationship with the Company
and all of its Affiliates is terminated.
5. TIME OF PAYMENT UNDER THE AWARD. To the extent the Forfeiture Restrictions
lapse with respect to the Stock Units granted hereby on or before the
Payment Date the Company shall pay to the Executive on the Payment Date the
amount payable with respect to the Stock Units for which the Forfeiture
Restrictions have lapsed.
6. TERM.. This Agreement and the Executive's rights hereunder shall terminate
at 5:00 p.m. (Central Time) on __________________, 2015.
7. TAX WITHHOLDING. The Company shall be entitled to deduct from the amounts
payable to the Executive (or other person validly exercising the Award)
under this Agreement and any other compensation payable by the Company to
the Executive any sums required by federal, state or local tax law to be
withheld with respect to any payment made by the Company to the Executive
under this Agreement. The Company shall have no obligation with respect to
payment of the Award until the Company or an Affiliate has received payment
sufficient to cover all minimum tax withholding amounts due with respect to
the Award. Neither the Company nor any Affiliate shall be obligated to
advise the Executive of the existence of the tax or the amount which it
will be required to withhold.
8. CAPITAL ADJUSTMENTS AND REORGANIZATIONS.
(a) The existence of the Stock Units shall not affect in any way the right
or power of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in its capital
structure or its business, engage in any merger or consolidation,
issue any debt or equity securities, dissolve or liquidate, or sell,
lease, exchange or otherwise dispose of all or any part of its assets
or business, or engage in any other corporate act or proceeding.
(b) If the Company shall effect a subdivision or consolidation of the
Stock or other capital readjustment, the payment of a stock dividend
with respect to the Stock, or other increase or reduction of the
number of shares of the Stock outstanding, without receiving
compensation therefor in money, services or property, then the number
of Stock Units awarded under this Agreement shall be appropriately
adjusted in the same manner as if the Executive was the holder of an
equivalent number of shares of the Stock immediately prior to the
event requiring the adjustment.
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9. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, the Executive
shall be considered to be in the employment of the Company as long as the
Executive has an employment relationship with the Company. The Board shall
determine any questions as to whether and when there has been a termination
of such employment relationship, and the cause of such termination, under
the Plan and the Board's determination shall be final and binding on all
persons.
10. NOT AN EMPLOYMENT AGREEMENT. This Agreement is not an employment agreement,
and no provision of this Agreement shall be construed or interpreted to
create an employment relationship between the Executive and the Company or
any of its Affiliates or guarantee the right to remain employed by the
Company or any of its Affiliates for any specified term.
11. NOTICES. Any notice, instruction, authorization, request or demand required
hereunder shall be in writing, and shall be delivered either by personal
delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the Company at the Company's principal
business office address and to the Executive at the Executive's residential
address indicated beneath the Executive's signature on the execution page
of this Agreement, or at such other address and number as a party shall
have previously designated by written notice given to the other party in
the manner hereinabove set forth. Notices shall be deemed given when
received, if sent by facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications
sent by facsimile means); and when delivered (or upon the date of attempted
delivery where delivery is refused), if hand-delivered, sent by express
courier or delivery service, or sent by certified or registered mail,
return receipt requested.
12. AMENDMENT AND WAIVER. Except as otherwise provided herein, this Agreement
may be amended, modified or superseded only by written instrument executed
by the Company and the Executive. Only a written instrument executed and
delivered by the party waiving compliance hereof shall waive any of the
terms or conditions of this Agreement. Any waiver granted by the Company
shall be effective only if executed and delivered by a duly authorized
executive officer of the Company other than the Executive. The failure of
any party at any time or times to require performance of any provisions
hereof shall in no manner effect the right to enforce the same. No waiver
by any party of any term or condition, or the breach of any term or
condition contained in this Agreement, in one or more instances, shall be
construed as a continuing waiver of any such condition or breach, a waiver
of any other condition, or the breach of any other term or condition.
13. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by the
laws of the State of Texas without regard to its conflicts of law
provisions. The invalidity of any provision of this Agreement shall not
affect any other provision of this Agreement, which shall remain in full
force and effect.
14. SUCCESSORS AND ASSIGNS. Subject to the limitations which this Agreement
imposes upon the transferability of the Stock Units granted hereby, this
Agreement shall bind, be enforceable by and inure to the benefit of the
Company and its successors and assigns,
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and to the Executive, the Executive's permitted assigns and upon the
Executive's death, the Executive's estate and beneficiaries thereof
(whether by will or the laws of descent and distribution), executors,
administrators, agents, legal and personal representatives.
15. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be an original for all purposes but all of which taken
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by
an officer thereunto duly authorized, and the Executive has executed this
Agreement, all as of the date first above written.
HARVEST NATURAL RESOURCES, INC.
By:
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Title:
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EXECUTIVE:
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James A. Edmiston III
Address:
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