Exhibit 10.42
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is entered into
April 18, 1997, to take effect the 18th day of April, 1997 (the "Effective
Date"), by and between FX Energy, Inc., a Nevada corporation (the "Employer"),
and SCOTT J. DUNCAN (the "Executive").
RECITALS:
WHEREAS, the Executive desires employment as an employee of the
Employer, and the Employer desires to employ the Executive, under the terms and
conditions hereof.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
ARTICLE I
ASSOCIATION AND RELATIONSHIP
1.1 Nature of Employment. The Employer hereby employs the Executive and
the Executive hereby accepts employment from the Employer upon the terms and
conditions set forth herein.
1.2 Full Time Services. The Executive shall devote his full working
time, attention, and services to the business and affairs of the Employer and
shall not, without the Employer's written consent, be engaged during the term of
this Agreement in any other substantial business activity other than normal
investment activities, whether or not such business activity is pursued for
gain, profit, or other pecuniary advantages, that significantly interferes or
conflicts with the reasonable performance of his duties hereunder.
1.3 Duties. During the term of this Agreement, the Executive shall be
employed by the Employer and shall initially occupy the office of Vice-President
and shall serve as Employer's Treasurer. The Executive agrees to serve in such
offices or positions with the Employer or any subsidiary of the Employer and
such substitute or further offices or positions of substantially consistent rank
and authority as shall, from time to time, be determined by the Employer's board
of directors. The Executive agrees to perform such duties appropriate for an
executive officer of Employer as may be assigned to him from time to time by the
Employer and as described in the Employer's bylaws. The Employer shall direct,
control, and supervise the duties and work of the Executive.
1.4 Satisfaction of Employer. The Executive agrees that he will, at all
times faithfully, promptly, and to the best of his ability, experience, and
talent, perform all of the duties that may be required of him pursuant to the
express and implicit terms hereof. Such duties shall be rendered at Salt Lake
City, Utah, and, on a temporary basis, at such other place or places as the
interests, needs, business, and opportunities of the Employer shall require or
make advisable; provided, however, that Executive shall not be required to move
his residence from Salt Lake City, Utah without the mutual consent of the
Employer and the Executive.
1.5 Compliance with Rules. The Executive shall observe and comply with
the rules and regulations of the Employer respecting its business and shall
carry out and perform orders, directions, and policies of the Employer as they
may be from time to time communicated to the Executive either orally or in
writing. The Executive shall further observe and comply with all applicable
rules, regulations, and laws governing the business of Employer.
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1.6 Fees for Services. All income or other compensation generated by
the Executive other than from the Employer for any services performed by him
during the term of this Agreement in connection with the business of the
Employer, including, but not limited to, management fees, consulting fees,
advisory fees, commissions, or similar items, shall belong to the Employer
whether paid to the Employer or to the Executive, either directly or indirectly,
or an affiliate of the Executive. The Executive agrees to remit to the Employer
any such income or other compensation received by him or his affiliates within
ten (10) days after receipt of such income or other compensation. The Executive
agrees, upon request by the Employer, to render an accounting of all
transactions relating to his business endeavors related to the business of the
Employer during the term of his employment hereunder.
ARTICLE II
COMPENSATION AND BENEFITS
2.1 Compensation. For all services rendered by the Executive pursuant
to this Agreement, the Employer shall compensate the Executive as follows:
(a) Salary. The Executive shall be paid in accordance with the
normal payroll practice of the Employer annual compensation in the
amount of $90,000.
(b) Salary Escalation. At the beginning of each year, the
annual salary payable to the Executive pursuant to Section 2.1(a) above
shall automatically be increased as the board of directors or the
designated compensation committee thereof may deem appropriate,
provided however, in no event shall this annual increase be less than
7.5% of the annual salary amount for the previous year. In addition,
the rate of salary may be further or otherwise increased at any time
and in such amount as the board of directors or the designated
compensation committee thereof may determine appropriate, based on
results of operations, increased activities of the Employer, or such
other factors as the board of directors or the designated compensation
committee thereof may deem appropriate.
(c) Bonus. The Employer shall pay the Executive a cash bonus
in the amount of $100,000 if, prior to the end of the Employer's 1996
fiscal year, the Employer shall have paid off (with funds other than
proceeds from other debt financing) the revolving loan owed to Bank One
Texas, N.A., in the maximum principal amount of $5,000,000, under the
terms of that certain Loan Agreement dated June 7, 1994. The Employer
shall provide the Executive with additional incentive compensation in
the form of cash bonuses not less often than once each year during the
term of this Agreement. The amount of such bonuses shall be determined
in the sole discretion of the board of directors of the Employer or the
designated compensation committee thereof taking into consideration the
growth and profitability of the Employer, the relative contribution by
the Executive to the business of the Employer, the economy in general,
and such other factors as the board of directors or designated
compensation committee deems relevant.
(d) Other Benefits. The Employer shall additionally provide to
the Executive incentive, retirement, pension, profit sharing, stock
option, health, medical, or other employee benefit plans which are
consistent with and similar to such plans provided by the Employer to
its employees generally. All costs of such plans shall be an expense of
the Employer and shall be paid by Employer.
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2.2 Continuation of Compensation During Disability. If the Executive is
unable to perform his services by reason of disability due to illness or
incapacity for a period of more than six consecutive months, the compensation
thereafter payable to him during the next succeeding consecutive three-month
period shall be one-half of the compensation provided for in Section 2.1(a)
hereof, and during the following consecutive three-month period shall be
one-fourth of the salary provided for in Section 2.1(a); provided, however, that
no such compensation shall be payable after the termination of this Agreement.
During such initial six consecutive month period of disability, the Executive
shall be entitled to receive incentive compensation at the same annual rate as
incentive compensation, if any, earned with respect to the Employer's fiscal
year last preceding the date such illness or incapacity commenced.
Notwithstanding the foregoing, if such illness or incapacity does not cease to
exist within the 12 consecutive month period provided herein, the Executive
shall not be entitled to receive any further compensation from the Employer and
the Employer may thereupon terminate this Agreement. For purposes of this
Agreement, the Executive is "disabled" when he is unable to continue his normal
duties of employment, by reason of a medically determined physical or mental
impairment. In determining whether or not the Executive is disabled, the
Employer may rely upon the opinion of any doctor or practitioner of any
recognized field of medicine or psychiatric practice selected jointly by the
Employer and Executive and such other evidence as the Employer deems necessary.
2.3 Working Facilities. The Employer shall provide to the Executive at
the Employer's principal executive offices suitable executive offices and
facilities appropriate for his position and suitable for the performance of his
responsibilities.
2.4 Vacations and Meetings. The Executive shall be entitled each year
to a paid vacation of at least four (4) weeks and to attendance at appropriate
meetings and conventions of such duration and at such time as may be in
accordance with the Employer's policy. Vacations shall be taken by the Executive
at a time and with starting and ending dates mutually convenient to the Employer
and the Executive. Vacations or portions of vacations not used in one employment
year shall carry over to the succeeding employment year, but shall thereafter
expire if not used within such succeeding year.
2.5 Expenses. The Employer will reimburse the Executive for expenses
incurred in connection with the Employer's business, including expenses for
travel, lodging, meals, beverages, entertainment, and other items. The Executive
shall provide the following for all expenses for which the Executive desires
reimbursement:
(a) A report in which the Executive has recorded at or near
the time each expenditure was made: (i) the amount of the expenditure;
(ii) the time, date, place and designation of the type of
entertainment, travel or other expense; (iii) the business reason for
the expenditure and the nature of the business benefit derived or
expected to be derived as a result of the expenditure; and (iv) the
names, occupations, addresses and other information concerning each
person who was entertained sufficient to establish the business
relationship to the Employer; and
(b) Documentary evidence (such as receipts or paid bills),
which states sufficient information to establish the amount, date,
place and the essential character of the expenditure, for each
expenditure: (i) of twenty-five dollars ($25.00) or more (except for
transportation charges if not readily available); and (ii) for lodging
while traveling away from home.
2.6 Dues and Club Memberships. The Employer shall assume and pay
reasonable dues of the Executive in local, state, and national societies and
associations, and in such other clubs and organizations, as shall be approved
and authorized by the Employer.
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2.7 Payroll Taxes. The Employer shall withhold from the Executive's
compensation hereunder all federal and state payroll taxes and income taxes on
compensation paid to the Executive and shall provide an accounting to the
Executive for such amounts withheld.
ARTICLE III
COVENANT TO NOT DISCLOSE CONFIDENTIAL INFORMATION
3.1 Definition of Confidential Information. For purposes of this
Agreement, the term "Confidential Information" does not apply to information
generally available to the public or to businesses in the oil and gas
exploration and development industry, but otherwise shall mean information in
written or electronic form under the care or custody of Executive as a direct or
indirect consequence of or through his employment with the Employer, including,
but not limited to, the special proprietary and economic information regarding
the business, methods, and operation of the Employer that is designated by the
Employer as "Limited," "Private," or "Confidential" or similarly designated or
for which there is any reasonable basis to be believed is, or which appears to
be, treated by the Employer as confidential.
3.2 Protection of Goodwill. The Executive acknowledges that in the
course of carrying out, performing, and fulfilling his responsibilities to the
Employer, the Executive will be given access to and be entrusted with
Confidential Information relating to the Employer's business. The Executive
recognizes that (i) the goodwill of the Employer depends upon, among other
things, its keeping the Confidential Information confidential and that
unauthorized disclosure of the Confidential Information would irreparably damage
the Employer; and (ii) disclosure of any Confidential Information to competitors
of the Employer or to the general public would be highly detrimental to the
Employer. The Executive further acknowledges that in the course of performing
his obligations to the Employer he will be a representative of the Employer to
many clients or other persons and, in some instances, the Employer's primary
contact with such clients or other persons, and as such will be responsible for
maintaining or enhancing the business and/or goodwill of the Employer with those
clients or other persons.
3.3 Covenants Regarding Confidential Information. In further
consideration of the employment of the Executive by the Employer and in
consideration of the compensation to be paid to the Executive during his
employment, the Executive hereby agrees as follows:
(a) Nondisclosure of Confidential Information. The Executive
will not, during his employment with the Employer or at any time after
termination of his employment, irrespective of the time, manner, or
cause of termination, use, disclose, copy, or assist any other person
or firm in the use, disclosure, or copying, of any Confidential
Information.
(b) Return of Confidential Information. All files, records,
documents, drawings, equipment, and similar items, whether in written
or electronic form, relating to the business of the Employer, whether
prepared by the Executive or otherwise coming into his possession,
shall remain the exclusive property of the Employer and shall not be
removed from the premises of the Employer, except where necessary in
carrying out the business of the Employer, without the prior written
consent of the Employer. Upon termination of the Executive's
employment, the Executive agrees to deliver to the Employer all
Confidential Information and all copies thereof along with any and all
other property belonging to the Employer whatsoever.
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ARTICLE IV
ENFORCEMENT OF COVENANTS
4.1 Relief. The Executive agrees that a breach or threatened breach on
his part of any covenant contained in this Agreement will cause such damage to
the Employer as will be irreparable and for that reason, the Executive further
agrees that the Employer shall be entitled as a matter of right to an injunction
out of any court of competent jurisdiction restraining any further violation of
such covenants by the Executive, his employers, employees, partners, or agents.
The right to injunction shall be cumulative and in addition to whatever other
remedies the Employer may have, including, specifically, recovery of damages.
4.2 Survival of Covenants. Subject to Article V below, in the event the
Executive's employment relationship with the Employer is terminated, with or
without cause, the covenants contained in Article III above shall survive for a
period of one year after such termination.
ARTICLE V
TERM AND TERMINATION
5.1 Term. Except as provided herein, the term of this Agreement shall
be for a period of three (3) years commencing on the Effective Date and shall
automatically be extended for an additional one (1) year upon each anniversary
date of the Effective Date unless otherwise terminated pursuant to the terms
hereof.
5.2 Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
(a) Termination for Cause. The Employer shall have the right,
without further obligation to the Executive other than for compensation
previously accrued, to terminate this Agreement for cause ("Cause") by
showing that (i) the Executive has materially breached the terms
hereof; (ii) the Executive, in the determination of the board, has been
grossly negligent in the performance of his duties; (iii) the Executive
has substantially failed to meet written standards established by the
Employer for the performance of his duties; (iv) the Executive has
engaged in material willful or gross misconduct in the performance of
his duties hereunder; or (v) a final non-appealable conviction of or a
plea of guilty or nolo contendere by the Executive to a felony or
misdemeanor involving fraud, embezzlement, theft, or dishonesty or
other criminal conduct against the Employer. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated
for Cause, without (x) reasonable notice to the Executive setting forth
the reasons for the Employer's intention to terminate for Cause; (y) an
opportunity for the Executive, together with his counsel, to be heard
before the full board of directors of the Employer; and (z) delivery to
the Executive of written notice of termination setting forth the
finding that in the good faith opinion of the board of directors the
Executive was guilty of Cause and specifying the particulars thereof in
detail.
(b) Termination upon Death or Disability of the Executive.
This Agreement shall terminate immediately upon the Executive's death
or upon the disability of the Executive after termination of pay as set
forth in Section 2.2.
(c) Termination Upon Change of Control. Notwithstanding any
provision of this Agreement to the contrary, the Executive may
terminate this Agreement, but not the covenant not to disclose
information set forth in Article III, upon the happening of any of the
following events:
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(i) The sale by the Employer of substantially all of
its assets to a single purchaser or to a group of associated
purchasers;
(ii) The sale, exchange, or other disposition to a
single person or group of persons under common control in one
transaction or series of related transactions resulting in
such person or persons owning, directly or indirectly, greater
than twenty-five percent (25%) of the combined voting power of
the outstanding shares of the Employer's common stock;
(iii) More than fifty percent (50%) of the members of
the board of directors of the Employer shall be persons who
are neither nominated for election by the board or an
authorized committee of the board nor elected by the board;
(iv) The decision by the Employer to terminate its
business and liquidate its assets; or
(v) The merger or consolidation of the Employer in a
transaction in which the shareholders of the Employer
immediately prior to such merger or consolidation receive less
than fifty percent (50%) of the outstanding voting shares of
the new or continuing corporation.
In the event the Executive does not elect to terminate this Agreement
upon the happening of any of the events noted above, and as a result of
such event, the Employer is not the surviving entity, then the
provisions of this Agreement shall inure to the benefit of and be
binding upon the surviving or resulting entity. If as a result of the
merger, consolidation, transfer of assets, or other event listed above,
the duties of the Executive are increased, then the compensation of the
Executive provided for in Section 2.1 of this Agreement shall be
reasonably adjusted upward to compensate for the additional duties and
responsibilities assumed.
(d) Termination by Executive for Cause. The Executive shall
have the right to terminate this Agreement in the event of (i) the
Employer's intentional breach of any covenant or term of this
Agreement, but only if the Employer fails to cure such breach within
twenty (20) days following the receipt of notice by Executive setting
forth the conditions giving rise to such breach; (ii) an assignment to
the Executive of any duties inconsistent with, or a significant change
in the nature or scope of, the Executive's authorities or duties from
those authorities and duties held by the Executive as of the date
hereof and as increased from time to time; or (iii) the failure by the
Executive to obtain the assumption of the commitment to perform this
Agreement by any successor corporation.
5.3 Termination Payments.
(a) Termination Other than for Cause. In the event that the
Executive's employment is terminated by the Employer during the term
hereof for reasons other than Cause as defined in Section 5.2(a) or the
Executive terminates this Agreement in accordance with Section 5.2(c)
or Section 5.2(d), the Employer shall:
(i) Pay to Executive all amounts accrued through the
date of termination, any unreimbursed expenses incurred
pursuant to Section 2.5 of this Agreement, and any other
benefits specifically provided to the Executive under any
benefit plan.
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(ii) Pay to Executive an amount equal to one and
one-half times Executive's then current annual salary.
(iii) At the election of Executive, pay to Executive
an amount equal to the number of shares subject to such
holder's unexercised options, whether or not vested, times the
amount by which the "Fair Market Value" of the Employer's
common stock exceeds the exercise price of such options. Fair
Market Value shall mean the closing price for such stock on
the close of business on the trading day last preceding the
date of such termination as quoted on a registered national
securities exchange or, if not listed on such an exchange, the
Nasdaq Stock Market ("Nasdaq") of the National Association of
Securities Dealers, Inc., or, if not listed on such an
exchange or included on Nasdaq, the closing price (or, if no
closing price is available from sources deemed reliable by the
Company, the closing bid quotation) for such stock as
determined by the Company through any other reliable means of
determination available on the close of business on the
trading day last preceding the date of such termination. If
the Executive elects to receive payment as provided above for
Executive's unexercised options, on payment to the Executive
of the amount due from the Employer, the rights to exercise
options with respect to which he has received payment shall
terminate. If Executive elects not to receive payment as
provided above for Executive's unexercised options, all
forfeiture restrictions governing stock or options held by the
Executive shall immediately terminate and such common stock
and shall be fully vested and held free from forfeiture by the
Executive.
(iv) Maintain in full force and effect, for the
continued benefit of the Executive for the number of years
(including partial years) remaining in the term of employment
hereunder, all employee benefit plans and programs in which
the Executive was entitled to participate immediately prior to
the date of termination, provided that the Executive's
continued participation is possible under the general terms
and provisions of such plans and programs. In the event that
the participation of Executive and his family in the
Employer's group health plan and/or life insurance program is
barred, the Employer shall provide the Executive and his
family with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under
such plan and program from which his continued participation
is barred.
(v) Notwithstanding the foregoing, in no event shall
the aggregate amount of payments made under this Agreement on
account of any termination occurring as a result of a change
in control of the Employer exceed the aggregate present value
of three times the "Base Salary Amount" less $1.00. For
purposes hereof, the term "Base Salary Amount" shall mean the
average annualized compensation income from the Employer in
the Executive's gross income for federal income tax purposes
over the five years preceding the year in which the change in
control of the Employer occurred or, in the event Executive
has not been employed by Employer for at least five years, the
average of such annualized compensation income for the number
of years that Executive has been employed by Employee. This
paragraph shall be interpreted consistent with Section 280G of
the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations thereunder.
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(b) Termination upon Death of the Executive. If the Executive
dies during the term of this Agreement, the Employer shall pay to the
estate of the Executive the following:
(i) All amounts accrued through the date of
termination, any unreimbursed expenses incurred pursuant to
Section 2.5 of this Agreement, and any other benefits
specifically provided to the Executive under any benefit plan;
and
(ii) In six equal monthly installments commencing on
the first day of the month immediately following the month in
which the Executive dies, an amount equal to one year's then
current salary provided for in Section 2.1(a) of this
Agreement, and payment of the pro rata portion of the
incentive compensation which would have been payable pursuant
to Section 2.1(c), based upon the number of full months of his
employment during the year of his death.
(c) Termination for Cause or Termination by the Executive. If
the Executive terminates this Agreement for any reason other than in
accordance with the provisions of Section 5.2(d) of this Agreement, or
if the Employer terminates this Agreement on account of Cause, the
Employer shall deliver to the Executive, within ninety (90) days
following the effective date of such termination, all amounts accrued
through the date of termination, any unreimbursed expenses incurred
pursuant to Section 2.5 of this Agreement, and any other benefits
specifically provided to the Executive under any benefit plan. The
Employer shall have no further obligation to Executive.
5.4 Resignation upon Termination. Upon the termination of this
Agreement for any reason, the Executive hereby agrees to resign from all
positions held in the Employer or an affiliate of the Employer, including
without limitation any position as a director, officer, agent, trustee or
consultant of the Employer or any affiliate of the Employer.
ARTICLE VI
MISCELLANEOUS
6.1 Exit Interview. To insure a clear understanding of this Agreement,
including but not limited to the protection of the Employer's business
interests, the Executive agrees, at no additional expense to the Executive, to
engage in an exit interview with the Employer at a time and place designated by
the Employer.
6.2 Severability. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the validity and enforceability of any other provisions hereof.
Further, should any provisions within this Agreement ever be reformed or
rewritten by a judicial body, those provisions as rewritten shall be binding
upon the Employer and the Executive.
6.3 Right of Setoff. The Employer and Executive shall each be entitled,
at its option and not in lieu of any other remedies to which it may be entitled,
to set off any amounts due from the other or any affiliate of the other against
any amount due and payable by such person or any affiliate of such person
pursuant to this Agreement or otherwise.
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6.4 Representations and Warranties of the Executive. The Executive
represents and warrants to the Employer that (a) the Executive understands and
voluntarily agrees to the provisions of this Agreement; (b) the Executive is not
aware of any existing medical condition which might cause him to be or become
unable to fulfill his duties under this Agreement; and (c) the Executive is free
to enter into this Agreement and has no commitment, arrangement or understanding
to or with any third party that restrains or is in conflict with this Agreement
or that would operate to prevent the Executive from performing the services to
the Employer that the Executive has agreed to provide hereunder.
6.5 Succession. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Employer by merger or consolidation or any assignee of
all or substantially all of its property.
6.6 Assignment. Except to any successor or assignee of the Employer as
provided in Section 6.5, neither this Agreement nor any rights or benefits
hereunder may be assigned by either party hereto without the prior written
consent of the other party. Neither the Executive, the Executive's spouse, the
Executive's designated contingent beneficiary, nor their estates shall have any
right to anticipate, encumber, or dispose of any payment due under this
Agreement. Such payments and other rights are expressly declared nonassignable
and nontransferable, except as specifically provided herein.
6.7 Reimbursement of Expenses. In the event that it shall be necessary
or desirable for the Executive to retain legal counsel and/or incur other costs
and expenses in connection with the enforcement of any and all of the
Executive's rights under this Agreement, the Executive shall be entitled to
recover from the Employer reasonable attorneys' fees, costs, and expenses
incurred by the Executive in connection with the enforcement of said rights.
Payment shall be made to the Executive by the Employer at the time such
attorneys' fees, costs, and expenses are incurred by the Executive. If, however,
the Executive does not prevail in such enforcement action, the Executive shall
repay any such payments to the Employer and shall reimburse the Employer for
reasonable attorneys' fees, costs and expenses incurred by the Employer in
connection with such action. Further, the Executive shall reimburse the Employer
for any attorneys' fees and all other costs and expenses incurred by the
Employer in any action brought by the Employer relating to the enforcement of
this Agreement in which the Employer is the prevailing party. Fees payable
hereunder shall be in addition to any other damages, fees, or amounts provided
for herein.
6.8 Indemnification. The Employer shall indemnify the Executive and
hold the Executive harmless from liability for acts or decisions made by the
Executive while performing services for the Employer to the greatest extent
permitted by applicable law. The Employer shall use its best efforts to obtain
coverage for the Executive under any insurance policy now in force or hereafter
obtained during the term of this Agreement insuring officers and directors of
the Employer against such liability. The Executive agrees to indemnify and to
hold the Employer harmless from any and all damages, losses, claims,
liabilities, costs, or expenses arising from the Executive's acts or omissions
in violation of his duties under this Agreement which constitute fraud, gross
negligence, or willful and knowing violations of the terms of this Agreement.
6.9 Notices. Any notices or other communications required or permitted
under this Agreement shall be sufficiently given if personally delivered, if
sent by facsimile or telecopy transmission or other electronic communication
confirmed by sending a copy thereof by United States mail, if sent by United
States mail, registered or certified, postage prepaid, or if sent by prepaid
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overnight courier addressed as set forth on the signature page hereto or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered or sent by facsimile or telecopy
transmission or other electronic communication, one day after the date so sent
by overnight courier, or three days after the date of deposit in the United
States mail.
6.10 Entire Agreement. This Agreement contains the entire Agreement
between the parties hereto with respect to the subject matter contained herein.
No change, addition, or amendment shall be made except by written agreement
signed by the parties hereto.
6.11 Waiver of Breach. The failure by any party to insist upon the
strict performance of any covenant, duty, agreement, or condition of this
Agreement or the failure to exercise any right or remedy consequent upon a
breach hereof shall not constitute a waiver of any such breach or of any
covenant, agreement, term, or condition and the waiver by either party hereto of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by any party.
6.12 Multiple Counterparts. This Agreement has been executed in a
number of identical counterparts, each of which for all purposes is to be deemed
an original, and all of which constitute, collectively, one agreement. In making
proof of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
6.13 Descriptive Headings. In the event of a conflict between titles to
articles and paragraphs and the text, the text shall control.
6.14 Governing Law. The laws of the state of Utah shall govern the
validity, construction, enforcement, and interpretation of this Agreement.
Signed and delivered to be effective as of the Effective Date set forth
above.
EMPLOYER:
Address: FX ENERGY, INC.
3006 Highland Drive, Suite 206
Salt Lake City, Utah 84106
By: /s/ David N. Pierce
---------------------
Name: David N. Pierce
Title: CEO
Address: EXECUTIVE:
________________
________________
/s/ Scott J. Duncan
-------------------------
Scott J. Duncan
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