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EXHIBIT 10.2
MIDDLE BAY OIL COMPANY, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made to be
effective as of the 30th day of January, 1997 (the "Effective Date") by and
between MIDDLE BAY OIL COMPANY, INC., an Alabama corporation (the
"Corporation"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive").
W I T N E S S E T H :
WHEREAS, Executive is currently employed by the Corporation as its
President and Chief Executive Officer; and
WHEREAS, the Corporation and Executive desire to embody in this
Agreement the terms and conditions under which Executive shall continue his
employment as Chief Executive Officer of the Corporation;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, promises, agreements, representations and warranties hereinafter set
forth, the parties hereto do hereby covenant, promise, agree, represent and
warrant as follows:
1. EMPLOYMENT. The Corporation as of the Effective Date continues the
employment of Executive as Vice President of Engineering of the Corporation,
and Executive shall render such duties for and on behalf of the Corporation as
may be assigned reasonably from time to time to Executive by the President or
Board of Directors (the "Duties"). Executive hereby accepts such continuation
of employment with the Corporation and agrees to render the Duties for and on
behalf of the Corporation on the terms and conditions set forth in this
Agreement.
2. TERM. The term (the "Initial Term") of this Agreement shall commence
on the Effective Date hereof and, subject to the further provisions of this
Agreement, shall end three (3) years from the Effective Date.
3. PERFORMANCE OF DUTIES. Executive shall devote all of his working
time exclusively to the Corporation's business and shall render the Duties to
the best of his ability for and on behalf of the Corporation. Executive shall
comply with all laws, statutes, ordinances, rules and regulations relating to
the Duties.
4. COMPENSATION. In partial consideration for all Duties rendered or
agreed to be rendered by Executive hereunder, the Corporation shall pay to
Executive an initial monthly base salary at the rate of EIGHTY-FIVE THOUSAND
DOLLARS & 00/100 CENTS ($85,000.00) per annum (the "Base Salary"), divided into
24 semi-monthly installments and payable on the fifteenth and last day of each
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month; provided, however, except as provided in Section 11(e) hereof, that,
absent approval by the Board of Directors of the Corporation, no Base Salary
shall be paid to Executive under this Agreement for any period subsequent to the
termination of employment of Executive for any reason whatsoever. The Board of
Directors shall have full discretion to adjust Executive's Base Salary and award
bonuses as they deem appropriate; however, in no case shall Executive's total
compensation equal less than the Base Salary. Payment of the Base Salary shall
be subject to the customary withholding tax and other employment taxes as
required with respect to compensation paid by a corporation to an employee.
5. EXPENSES. Executive shall be entitled to reimbursement for expenses,
provided that such expenses are reasonable and are incurred in connection with
the performance of Executive's Duties hereunder. Such expense reimbursement
shall be in accordance with and subject to the expense reimbursement policies
and procedures of the Corporation as in effect from time to time during the term
of this Agreement.
6. VACATIONS AND BENEFITS.
(a) shall be entitled to vacation time consistent with the
policies of the Corporation established from time to time regarding
vacation time for executives. Executive shall request vacation time in
writing in accordance with the policies of the Corporation. Executive
shall take his vacation at such time or times as shall be approved by
the Corporation, which approval shall not be unreasonably withheld.
(b) The Corporation shall include Executive, the spouse of
Executive and all children of Executive in all medical, health or
disability plans upon such terms and conditions as are provided to
other management officers of the Corporation and shall include
Executive in all disability and wage continuation plans as may be
adopted by the Corporation for other executive officers of the
Corporation.
(c) The Corporation shall include Executive in all group term
life insurance plans adopted by the Corporation for executive officers
of the Corporation.
(d) Due to the nature of Executive's Duties under this
Agreement, and the solicitations, meetings, conferences and the
individual goodwill related thereto and required to be undertaken and
maintained by Executive with the Corporation's clients in order to
maintain, preserve and guarantee the goodwill of the Corporation in its
highly competitive business, the Corporation agrees to reimburse
Executive on a monthly basis for all reasonable entertainment expenses;
provided that, prior to
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reimbursement, Executive shall provide to the Chief Accounting Officer
of the Corporation a written Expense Report, detailing the character
and nature of the reimbursable expenses.
(e) The Corporation agrees to permit Executive to become a
participant in any employee benefit plan of the Corporation, including
any pension or profit-sharing plan, at such time that the Corporation
has such a plan or plans and at such time that Executive shall become
eligible to participate therein according to the terms and provisions
of said plan.
7. DISABILITY. In the event that Executive shall be disabled so that he
is substantially unable to perform the Duties hereunder for more than 120 days
in any 12-month period, the employment of Executive hereunder, in the discretion
of the Corporation, may be terminated pursuant to Section 11 hereof.
8. CONFIDENTIAL INFORMATION AND TRADE SECRETS.
(a) Executive acknowledges that, in Executive's employment
hereunder, Executive will be making use of, acquiring and adding to the
Corporation's trade secrets and its confidential and proprietary
information of a special and unique nature and value relating to such
matters as, but not limited to, the Corporation's business operations,
internal structure, financial affairs, programs, software, systems,
procedures, manuals, confidential reports, lists of properties, leases
and drilling prospects, all of which shall be deemed to be confidential
information. Executive acknowledges that such confidential information
has been and will continue to be of central importance to the business
of the Corporation and that disclosure of it to or its use by others
could cause substantial loss to the Corporation. In consideration of
employment by the Corporation, Executive agrees that, during the
course of Executive's employment pursuant to this Agreement and for a
period of one (1) year thereafter, Executive shall not, directly or
indirectly, divulge or disclose to any person or entity, other than
those within the Corporation authorized to receive such information,
any of such confidential information which was obtained by Executive
as a result of Executive's employment with the Corporation or any
trade secrets of the Corporation, but shall hold all of the same
confidential and inviolate and will not use such material and
information against the best interests of the Corporation.
(b) All contracts, agreements, financial books, records,
instruments and documents, client lists, memoranda, data, reports,
programs, software, tapes, rolodexes, telephone and address books,
letters, research, card decks, listings, programming and any other
instruments, records or documents relating or pertaining to business
conducted by
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the Corporation or Executive, the Duties rendered by Executive or the
properties of the Corporation (collectively, the "Records") shall
at all times be and remain the property of the Corporation. Upon
termination of this Agreement and Executive's employment under this
Agreement for any reason whatsoever, Executive shall return to the
Corporation all Records (whether furnished by the Corporation or
prepared by Executive), and Executive shall neither make nor retain
any copies of any of such Records after such termination.
(c) All inventions and other creations, whether or not
patentable or copyrightable, and all ideas, reports and other creative
works, including without limitation computer programs, manuals and
related materials, made or conceived in whole or in part by Executive
while employed by the Corporation and within one (1) year thereafter,
which relate in any manner whatsoever to the business, existing or
proposed, of the Corporation or any other business or research or
development effort in which the Corporation or any of its subsidiaries
or affiliates engages during Executive's employment by the Corporation
will be disclosed promptly by Executive to the Corporation and shall be
the sole and exclusive property of the Corporation. All copyrightable
works created by Executive and covered by this Section 8(c) shall be
deemed to be works for hire and owned exclusively by the Corporation.
To the extent that any such inventions or other creations, under
applicable law, are not copyrightable works or are not considered works
made for hire, Executive agrees to assign ownership of all such
inventions or other creations to the Corporation, without the necessity
of any further compensation, and the Corporation shall be entitled to
obtain and hold in its own name all patents, copyrights or other rights
in respect of such inventions or creations. Executive shall cooperate
with the Corporation in obtaining patents or copyrights of all such
inventions, ideas, reports and other creative works, shall execute,
acknowledge, seal and deliver all documents tendered by the Corporation
to evidence its ownership thereof throughout the world and shall
cooperate with the Corporation in obtaining, defending and enforcing
its rights therein.
9. RESTRICTIVE COVENANTS.
(a) The Corporation and Executive acknowledge and agree that
Executive's Duties are of a special and unusual character which have a
unique value to the Corporation, the loss of which cannot be adequately
compensated by damages in an action at law and, if used in competition
with the Corporation, could cause serious harm to the Corporation.
Further, Executive and the Corporation also recognize and agree that
the Corporation and Executive will be actively engaged in the
Corporation's Business within the Business
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Area. Further, Executive and the Corporation also recognize that an
important part of Executive's Duties will be to develop good will for
the Corporation through his personal contact with customers, agents
and others having business relationships with the Corporation and that
there is a danger that this goodwill, a proprietary asset of the
Corporation, may follow Executive if and when his relationship with
the Corporation is terminated. Accordingly, Executive covenants that,
during the course of Executive's employment pursuant to this Agreement
and for a period of six months thereafter, Executive shall not, within
those areas in which Executive rendered services pursuant to this
Agreement within two (2) years prior to the termination or cessation
of Executive's employment with the Corporation, directly or
indirectly:
(i) be engaged, on his own behalf or on behalf of
others, in an executive capacity which involves duties and
responsibilities identical or substantially similar to those
of Executive under the terms and provisions of this Agreement
or
(ii) solicit, divert or appropriate or attempt to
solicit, divert or appropriate any oil and gas properties of
the Corporation which were identified by Executive or under
his supervision on behalf of the Corporation
to or for any business which is engaged in the oil and gas business in
a substantially similar manner and competing with the Corporation.
(b) Executive shall not, on his own behalf or on behalf of
others, solicit, divert or hire away, or attempt to solicit, divert or
hire away, any person employed by the Corporation, whether or not such
employee is a full-time employee or a temporary employee of the
Corporation and whether or not such employment is pursuant to a written
agreement or is at will, at any time during the term of this Agreement
and for a period of six months after Executive ceases to be employed by
the Corporation for any reason whatsoever.
(c) Compliance with the restrictive covenants of this
Agreement is a condition precedent to the Corporation's obligation to
make any payments of any nature to Executive, whether under this
Agreement or otherwise. Nothing in this Agreement shall be construed as
prohibiting the Corporation from pursuing any other remedies available
to it for a breach or threatened breach of Sections 8 and 9 of this
Agreement.
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(d) Executive agrees that the covenants and agreements
contained in Sections 8 and 9 of this Agreement are of the essence of
this Agreement and that each of such covenants is reasonable and
necessary to protect and preserve the interests and business of the
Corporation. Executive further agrees that each of such covenants is
separate, distinct and severable, not only from the other of such
covenants but also from the remaining provisions of this Agreement;
that the unenforceability of any such covenant or agreement shall not
affect the validity or enforceability of any other such covenant or
agreements or any other provision or provisions of this Agreement; and
that, in the event any court of competent jurisdiction determines,
rules or holds that any such provision, covenant or agreement hereof is
overly broad or against the public policy of the state, then said court
is specifically authorized to reform and narrow said provision,
covenant or agreement to the extent necessary to make said reformed and
narrowed provision, covenant or agreement valid and enforceable.
10. INDEMNITY. Executive shall indemnify the Corporation, its officers,
directors and shareholders (other than Executive) and hold the Corporation, its
officers, directors and shareholders (other than Executive) harmless from and
against any and all actions, suits, proceedings, liabilities, damages, losses,
costs and expenses (including attorneys' and experts' fees) arising out of or in
connection with any breach or threatened breach by Executive of any one or more
provisions of this Agreement.
11. TERMINATION OF EMPLOYMENT. The Corporation shall have the right
(but not the obligation) to terminate Executive's employment hereunder at any
time and without prior written notice to Executive upon the occurrence of any
one or more of the following events:
(a) the voluntary or involuntary termination of the
Corporation's existence in connection with the liquidation or
winding-up of the Corporation;
(b) the disability of Executive for more than 120 days in any
12-month period pursuant to Section 7 of this Agreement;
(c) for cause (for the purposes of this Agreement, the term
"cause" shall mean (i) conduct by Executive that amounts to fraud,
dishonesty, gross negligence or willful misconduct in the performance
of his Duties hereunder; (ii) failure by Executive to perform his
Duties hereunder in the manner and to the extent required under this
Agreement or breach by Executive of any covenant, promise,
representation or warranty of this Agreement or of any fiduciary or
other obligation owed by Executive to the Corporation, including
without limitation the obligation to refrain from engaging
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in the activities prohibited by Sections 8 and 9 hereof; or (iii) the
conviction of Executive of a felony); or
(d) by majority vote of the Board of Directors (without regard
to cause) and upon payment to Executive the greater of: (i) two (2)
years' Base Salary or (ii) the amount of Base Salary Executive would
have earned if Executive's employment had continued through the
remainder of the Initial Term or a Renewal Term.
Upon termination of Executive's employment under this Agreement pursuant to this
Section 11, neither party shall thereafter have any further rights, duties or
obligations under this Agreement, except for Executive's obligations under
Sections 7, 8 and 9 hereof, but each party shall remain liable and responsible
to the other for all prior obligations and duties hereunder and for all acts and
omissions of such party, its agents, servants and employees prior to such
termination.
12. NOTICES. All notices and other communications required or permitted
to be given by this Agreement shall be in writing and shall be given and shall
be deemed received if and when either hand delivered and a signed receipt is
given therefor or mailed by registered or certified United States mail, postage
prepaid, and if to the Corporation, to:
Middle Bay Oil Company, Inc.
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or if to Executive, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as either party hereto shall notify the other of in
writing.
13. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns. This Agreement
shall be binding upon Executive and his heirs, personal and legal
representatives and guardians and shall inure to the benefit of
Executive. Neither this Agreement nor any part hereof or interest
herein shall be assigned by Executive.
(b) The terms and provisions of this Agreement may not be
modified, except by written instrument duly executed by each party
hereto.
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(c) This Agreement shall be governed by and enforced and
construed in accordance with the laws of the State of Alabama.
(d) This Agreement sets forth the entire, integrated
understanding and agreement of the parties hereto with respect to the
subject matter hereof.
(e) The headings in this Agreement are included for the
convenience of reference only and shall be given no effect in the
construction of this Agreement.
(f) Each of the parties hereto shall have the right to waive
compliance with or the fulfillment, satisfaction or enforcement of any
warranty, representation, covenant, promise, agreement or condition
herein set forth, but the waiver by any party of such right shall not
be deemed a waiver of compliance with or fulfillment, satisfaction or
enforcement of any other warranty, representation, covenant, promise,
agreement or condition herein set forth or to seek redress for any
breach thereof on any subsequent occasion, nor shall any such waiver be
deemed effective unless in writing and signed by the party so waiving.
(g) In the event Executive shall breach any or all of the
covenants set forth in Section 9(a) of this Agreement, the running of
the period of the covenant or covenants breached shall be tolled during
the continuation of any such breach by Executive, and the running of
the period of such covenant or covenants shall commence again only upon
compliance by Executive with the covenant or covenants previously
breached.
IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed and
delivered this Agreement on the 30th day of January, 1997, to become effective
as of the Effective Date.
MIDDLE BAY OIL COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of
the Board of Directors
EXECUTIVE
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇