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EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered effective
as of the 1st day of July, 1999, by and between VENUS EXPLORATION, INC., a
company organized and existing under the laws of the State of Delaware
("Company"), and E. L. AMES, JR., an individual residing in San Antonio, Bexar
County, Texas ("Employee").
FOR AND IN CONSIDERATION of the mutual covenants herein contained and
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 parties hereto hereby agree as follows:
1. EMPLOYMENT, Company hereby employs Employee and Employee hereby
accepts employment with Company on the terms and conditions herein set forth. In
consideration of Employee's employment by Company, Employee agrees to the terms,
conditions and covenants of this Agreement.
2. TERM OF EMPLOYMENT. Employment of Employee by Company shall be for a
term of two (2) years.
3. DUTIES AND RESPONSIBILITIES. Employee shall serve as Chief Executive
Officer and, if elected by the Board of Directors of the Company, Chairman of
the Board of Directors of the Company.
3.01 EXTENT OF SERVICES. Employee shall devote his efforts to
the advancement of the interests of the company's business, and he
shall pursue no new business interests other than passive investments,
without the prior written approval of the Company, which approval shall
not be unreasonably withheld. Employee shall minimize the interference
any such activities have on the conduct of the Company's business.
3.02 APPROVED OTHER BUSINESS INTERESTS. The Company
understands and accepts the facts that the Employee owns certain
interests in oil and gas properties in his own right and that the
Employee may develop those interests and the surrounding Areas of
Mutual Interest without offering same to, or in any way involving, the
Company. However, Employee agrees that he will not acquire any new
interests outside of such Areas of Mutual Interests and that all new
oil and gas projects in which he is involved outside of such Areas of
Mutual Interest will be considered a Company project.
4. COMPENSATION AND BENEFITS. The compensation and other benefits
listed below as payable to or accruing to Employee shall constitute the full
consideration to be paid to Employee for all services to be rendered by Employee
to Company and all other agreements of Employee hereunder.
4.01 BASE SALARY. As compensation for all services of whatever
type rendered by Employee in the performance of his duties under this
Agreement and for all other agreements and undertakings of Employee
hereunder, Company shall pay to Employee a base salary to be determined
from time to time and approved by the Board of Directors; however, in
no event will such salary be less than $190,000.00 per year without the
written consent of Employee. Such salary shall be payable in equal
regular installments in accordance with Company's customary
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payroll payment policy. It is specifically understood and agreed that a
portion of Employee's annual base salary hereunder is attributable to
Employee's agreement, pursuant to Section 8 hereof, to maintain the
confidentiality of "Confidential Information" (as herein defined), both
during and after the term of this Agreement, and that Employee's salary
would be reduced significantly if Employee did not agree to be bound by
the terms of Section 8. It is further understood and agreed that a
portion of Employee's annual base salary is attributable to Employee's
agreement, pursuant to Section 9 hereof, not to compete with Company
either during or for a specified period of time after the expiration or
termination of this Agreement and that Employee's annual salary would
be reduced significantly if Employee did not agree to be bound by the
terms of Section 9 hereof . Employee agrees that he is being fairly and
reasonably compensated for the agreements undertaken by Employee
pursuant to Sections 8 and 9 hereof.
4.02 BENEFITS. Employee shall be entitled to four weeks paid
vacation each year, subject to the times for such vacation being
mutually agreed upon by Employee and Company. Employee shall be
entitled to participate in the Company benefit programs designed for
Company employees with similar salaries, duties and responsibilities.
4.03 EXPENSES. Company shall pay or reimburse Employee for all
reasonable and necessary expenses actually incurred or paid by Employee
during the term of this Agreement in the performance of Employee's
services under this Agreement, upon presentation of expense statements
or vouchers or such other supporting documents as Company may
reasonably require.
4.04 AUTOMOBILE. The Company shall provide Employee an
automobile of class, style and age that are commensurate with the
position he holds and the needs of Employee in that position.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Employee represents,
warrants and agrees that: (i) Employee is not currently bound by any employment
agreement, restriction or other obligation of any kind that would in any way
materially interfere with or be inconsistent with the services to be provided by
Employee to Company hereunder; and (ii) Employee is free to enter into this
Agreement and the services and work product provided by Employee to Company
hereunder will be original works of Employee.
6. REGULATIONS AND POLICIES. Employee shall, during the term of this
Agreement, comply with all Company regulations and policies, including, without
limitation, security regulations.
7. CONFIDENTIAL INFORMATION. The term "Confidential Information," as
used herein, shall mean and include any and all documents, knowledge, data or
information (in whatever medium) known, communicated, provided or made available
to Employee, whether before or after the execution of this Agreement, which are
marked with a confidentiality legend by Company or which Employee knows or
reasonably should know constitute trade secrets of Company or information
belonging to third parties to whom Company may have an obligation of
confidentiality; provided, however, that Confidential Information shall not
include any information or materials which are or become generally available to
the public other than as a result of any breach of the provisions of this
Agreement or any other agreement between Employee and Company (or their
respective successors, assigns or affiliates).
8. CONFIDENTIALITY. Employee acknowledges and agrees that in his
employment by Company he occupies a position of trust and confidence and that
during the term of his employment
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under this Agreement he will have access to and will become familiar with
Company's Confidential Information. Employee further acknowledges and agrees
that the Confidential Information, including any and all copies thereof,
constitutes trade secrets of Company and is confidential and proprietary
information of Company. Employee further acknowledges and agrees that he has no
right, title, interest or claim in or to any of the Confidential Information or
any copies thereof. Employee agrees to maintain the confidentiality of the
Confidential Information and agrees that he will not take, or permit to be
taken, any action with respect to the Confidential information (or any portion
thereof) which is inconsistent with the confidential and proprietary nature of
such information. Without limiting the generality of the foregoing, Employee
agrees that he will not, directly or indirectly, without the prior specific
written consent of Company, except as specifically required in the course of his
employment,
(i) communicate, divulge, transmit or otherwise disclose any
Confidential Information to any person, firm, partnership,
corporation or other entity, or
(ii) use any Confidential Information in any manner except as
specifically required in connection with the performance of
services hereunder.
Employee agrees to take any and all steps reasonably necessary to
protect the confidentiality of the Confidential Information. Employee shall,
upon termination of this Agreement, immediately return to Company all
Confidential Information in Employee's control or possession, including, without
limitation, any and all copies thereof. This Section shall survive the
expiration or termination of this Agreement for a period of two (2) years.
9. RESTRICTIVE COVENANT AND NON-COMPETITION.
9.01 UPON TERMINATION. As an independent covenant, Employee
agrees that, for a period of two (2) years commencing upon the
termination of this Agreement by expiration of its term or by the
Company for cause, as provided in Section 12 of this Agreement,
Employee will not, unless granted express written permission by the
Board of Directors of Company, develop, work on or in any way advance,
directly or indirectly, as an officer, director, stockholder, employee,
advisor, consultant, partner, owner, agent, representative or in any
other capacity, any competitor of Company or any other third party, any
oil, gas and mineral exploration or production from the geographic
areas, horizons, plays, formations or trends that the Company was
studying to any significant extent during his employment; provided,
however, that the foregoing shall not prohibit Employee from becoming a
passive shareholder owning less than five percent (5%) of the shares of
another corporation whose shares are publicly traded.
9.02 COMPANY EMPLOYEES. As an independent covenant, Employee
agrees, during the term of this Agreement and, upon termination or
expiration of this Agreement for any reason, for a period of eighteen
(18) months thereafter, not to induce or attempt to influence any
employee of Company to terminate his or her employment with Company.
9.03 REASONABLENESS. Employee acknowledges and agrees that the
covenants and agreements set forth in this Section are made to protect
the legitimate business interests of Company, including Company's
interest in Confidential Information, and not to restrict his mobility
or to prevent him from utilizing his skills. Employee recognizes and
acknowledges the necessarily national and scope of the market served by
Company and agrees that the restrictions set forth in this Section are
reasonable.
9.04 SURVIVAL. This Section 9 shall survive the expiration or
termination of this Agreement.
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10. PERFORMANCE BY EMPLOYEE. Employee acknowledges and agrees that the
value of the Confidential Information and the success and long-term viability of
Company depends largely upon Employee's performance of his obligations under
Sections 8 and 9 of this Agreement.
11. INJUNCTIVE RELIEF. Employee acknowledges and agrees that in the
event of any unauthorized use or disclosure of Confidential Information in
violation of the terms and conditions of Section 8 of this Agreement by
employee, or any breach of any of the terms and conditions of Section 9 of this
Agreement by Employee, Company will suffer irreparable injury not compensable by
money damages and, therefore, will not have an adequate remedy available at law.
Accordingly, if Company institutes an action or proceeding to enforce the
provisions of Section 8 or 9 of this Agreement, Company shall be entitled to
obtain such injunctive relief or other equitable remedy from a court of
competent jurisdiction as may be necessary or appropriate to prevent or curtail
any such breach, threatened or actual. The foregoing shall be in addition to and
without prejudice to such other rights as Company may have at law or in equity.
12. TERMINATION.
12.01 TERMINATION. Employee's employment hereunder is
terminable, with cause, at the will of either Company or Employee upon
the giving of 30 days' prior written notice by either party; otherwise,
it shall continue for the term of the Agreement as specified in section
2, at which time it shall terminate. If Employee's employment is
terminated for cause by the Company before the expiration of the term
of the Agreement, Company shall discontinue Employee's compensation as
of the effective date of the termination of Employee's employment. If
Employee's employment is terminated for cause by the Employee, is
terminated involuntarily, including, without limitation, termination
resulting from the death or mental or physical disability of Employee,
or is terminated without cause by the Company, Employee's regular
compensation shall continue for the remainder of the term of the
Agreement. For purposes of this Agreement, "for cause" shall mean:
(a) Any willful or intentional act of either Employee
or the Company that has or will have the effect of injuring
the reputation or business relationships of the other party or
its affiliates;
(b) The non-terminating party's conviction of or
entering a plea of nolo contendere to a charge of felony or a
misdemeanor involving dishonesty or fraud;
(c) The non-terminating party's material breach of
any of the terms, covenants or conditions contained in this
Agreement; provided, however, that with respect to any breach
that can be effectively cured by some act of a party,
termination of this Agreement shall be revoked if, within ten
(10) days after receipt of notice of such breach from the
non-breaching party, the breaching party cures such breach to
the reasonable satisfaction of the other party or, if such
cure cannot reasonably be accomplished within such ten (10)
day period, if the breaching party initiates efforts to cure
such breach within such ten (10) day period and diligently
pursues such cure efforts thereafter until such cure is
accomplished; or
(d) The non-terminating party's repeated or
continuous failure, neglect or refusal to perform its duties
under this Agreement.
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Until the effective date of termination, Employee, if requested to do
so by Company, shall continue to render services to Company.
12.02 NO DUTY TO MITIGATE. Employee shall not be required to
mitigate the amount of any post-employment payment or benefit paid or
provided to Employee under this Agreement by seeking other employment
or otherwise, nor shall the amount of any such payment or benefit paid
or provided to Employee under this Agreement be reduced or offset by
any compensation earned by Employee as the result of employment by
another employer or otherwise.
13. EFFECT OF TERMINATION. Upon the termination or expiration of this
Agreement: (i) Employee shall immediately return to Company any and all
Confidential Information in his possession or control (including, without
limitation, all copies thereof and all materials incorporating such Confidential
Information), (ii) Employee shall have no further obligation to perform services
for Company hereunder, provided, however, that Employee shall continue to be
bound by the terms of Sections 8 and 9 hereof, and (iii) except to the extent
specifically provided in Section 12 above, Company shall have no further
obligation to compensate or provide benefits to Employee hereunder.
14. BUSINESS KNOWLEDGE AND EXPERIENCE. Notwithstanding anything to the
contrary contained in this Agreement, it is specifically understood and agreed
that Employee has, prior to entering into this Agreement, developed significant
business expertise, ideas and experience (collectively "Business Experience")
that such Business Experience, to the extent it applies to business operations
generally and not to the specific operations, technologies or trade secrets of
Company, shall not be deemed to constitute Confidential Information, and nothing
contained in Section 8 of this Agreement shall be deemed to prevent Employee
from using such general Business Experience in such a manner as does not violate
any of the other terms and conditions of this Agreement.
15. GENERAL.
15.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants contained herein shall
survive the execution of this Agreement and the consummation of the
transactions contemplated hereby.
15.02 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, successors, assigns and legal representatives, but it
shall not be assignable by Employee. Any purported assignment in
violation of the foregoing shall be invalid and of no force and effect.
No assignment of this Agreement shall relieve the assigning party of
any obligation or liability hereunder.
15.03 NOTICES. Any notice, demand, payment, request, response
or other communication provided for herein or given hereunder to a
party hereto shall be in writing and shall be deemed to have been duly
given if signed by the party giving it. Notice shall be deemed
effective upon delivery by hand, or on the third business day after it
is deposited in the United States mail, postage prepaid (registered or
certified mail) or on the business day after it is sent by federal
express or similar overnight service to the address of the parties
listed below:
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If to Company: John Y. Ames,
President
1250 N.E. Loop 410, Suite 1000
San Antonio, Texas 78209
If to Employee: E. L. Ames, Jr.
1250 N.E. Loop 410, Suite 1000
San Antonio, Texas 78205
or to such other address as the party to receive such communication has
last designated by notice delivered to the other party in accordance
with the foregoing provisions.
15.04 WAIVER. Failure to delay in insisting upon strict
compliance with any provision hereof shall not be deemed a waiver of
such provision or any other provision hereof with respect to prior,
contemporaneous or subsequent occurrences. No waiver by either party of
any right hereunder or of any default shall be binding upon such party
unless such waiver is in writing and signed by Employee (in the case of
Employee) or a duly authorized officer of Company in the case of
Company.
15.05 GOVERNING LAW; VENUE. This Agreement shall be governed
by and construed in accordance with the laws of the State of Texas.
Employee and Company hereby agreed that the sole and exclusive place of
jurisdiction and venue for resolution of any disputes arising hereunder
or relating hereto shall be San Antonio, Bexar County, Texas, and
Employee hereby specifically consents to personal jurisdiction in such
location.
15.06 ENTIRE AGREEMENT. This Agreement, as may be amended from
time to time, shall represent the sole and entire agreement between
Employee and Company respecting the employment relationship between
Company and Employee. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties
hereto relating to the employment relationship between Company and
Employee that are not fully expressed in this Agreement. This Agreement
may be amended only by a writing signed by both parties.
15.07 SEVERABILITY. The provisions of this Agreement are
severable and the invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any other
provision. In addition, in the event that any provision of this
Agreement (or portion thereof) is determined by a court to be
unenforceable as drafted by virtue of the scope, duration, extent or
character of any obligation contained therein, the parties acknowledge
that it is their intention that such provision (or portion thereof)
shall be construed in a manner designed to effectuate the purposes of
such provision to the maximum extent enforceable under applicable law.
15.08 ATTORNEYS' FEES. If any legal action or other proceeding
is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection
with any of the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief
to which it may be entitled.
15.09 REMEDIES CUMULATIVE. All remedies provided for in this
Agreement shall be cumulative and in addition to, and not in lieu of,
any other remedies available to either party under this or any other
agreement between the parties or at law, in equity or otherwise.
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15.10 LANGUAGE. The language used in this Agreement shall be
deemed to be language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction against any party
shall apply to any term or condition of this Agreement.
15.11 MEDIATION AND ARBITRATION. THE PARTIES HEREBY AGREE THAT
ANY CONTROVERSY ARISING BETWEEN THE PARTIES TO THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO COMMON LAW, STATUTORY, TORT OR CONTRACT
CLAIMS OR OTHER CLAIMS IN ANY MANNER WHATSOEVER PERTAINING TO THIS
AGREEMENT OR ANY OTHER DISPUTE BETWEEN THE PARTIES (OR ANY AGENT,
OFFICER, DIRECTOR OR AFFILIATE OF ANY PARTY) ("DISPUTE") SHALL BE
SUBMITTED TO MEDIATION AND, FAILING TO REACH A SETTLEMENT IN MEDIATION,
TO BINDING ARBITRATION IN ACCORDANCE WITH THE RULES OF THE CPR
INSTITUTE FOR DISPUTE RESOLUTION.
Notwithstanding anything to the contrary in this Agreement, this
arbitration provision shall be governed by the provisions of the
Federal Arbitration Act, 9 U.S.C. Section 1 et seq. Judgment upon the
arbitration award may be entered in any court having jurisdiction
thereof.
15.12 HEADINGS. The descriptive headings of the sections,
paragraphs and subparagraphs hereof are inserted for convenience only
and do not constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
August ___, 1999.
COMPANY:
VENUS EXPLORATION, INC.
By: /s/ John Y. Ames
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John Y. Ames,
President
EMPLOYEE:
/s/ E.L. Ames, Jr.
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E. L. Ames, Jr.