EXHIBIT 10.6
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"Agreement") is entered into as of August 14, 1998, (the "Effective Date"), by
and between FUTURE PETROLEUM CORPORATION, a Utah corporation (the "Employer"),
and B. ▇▇▇▇ ▇▇▇▇▇ (the "Executive").
RECITALS
WHEREAS, the Executive and the Employer entered into an Executive
Employment Agreement dated as of November 18, 1997 (the "Original Agreement"),
and
WHEREAS, the Executive and the Employer desire to amend and restate the
Original Agreement in its entirety; and
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.
AGREEMENT
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 President
and shall serve as the Employer's chief executive officer. 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 the 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 the 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
Dallas, Texas, 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 Dallas, Texas without the mutual consent of the
Employer and the Executive and the reimbursement by the Employer of all
expenses incurred by the Executive in connection with such move.
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 the
Employer.
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 One Hundred Twenty-Five Thousand Dollars ($125,000.00).
(b) Salary Escalation. 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 provide the Executive with
incentive compensation in the form of cash or stock 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) Stock Purchase. The Executive may, at his option, forego
receipt of a portion of the salary and/or bonus otherwise payable to the
Executive hereunder, whereupon such foregone amount shall be deemed to
be paid by the Executive to the Employer as the purchase price for
shares of common stock of the Employer. The portion of the Executive's
salary as to which the Executive may forego pursuant to this section
shall be determined in the sole discretion of the Executive. The
purchase price for the shares of common stock of the Employer under this
section shall be equal to (a) for compensation relating to the period
beginning on the date of the Original Agreement and ending December 31,
1998, $0.42 per share (the average midpoint price between bid and ask
for the five (5) days prior to the date of the Original Agreement); and
(b) for compensation relating to the period beginning on January 1,
1999, and thereafter, the average midpoint price between bid and ask for
the last five (5) days of the calendar year prior to the year to which
the foregone compensation relates. All shares purchased by the Executive
under this section shall be delivered to the Executive on or before
January 31 of the year following the year in which the services for
which compensation is payable hereunder were performed.
(e) Incentive Compensation. The Employer shall grant to the
Executive pursuant to the terms of the 1993 Employee Incentive Plan of
the Employer, options to purchase 250,000 shares of common stock of the
Employer, at an exercise price per share equal to the average midpoint
price between the bid and ask prices of the Employer's common stock for
the five (5) trading days preceding the Effective Date of this
Agreement. The options shall be 100% vested as of the date hereof and
shall expire on the date that is ten years from the date hereof.
(f) Anti-Dilution. In addition to all other compensation
payable to the Executive hereunder, on each anniversary date of this
Agreement, the Employer shall grant to the Executive options to purchase
shares of common stock of the Employer equal to twelve percent (12%)
multiplied by the difference between (i) the issued and outstanding
shares of common stock together with all shares of common stock issuable
on exercise or conversion of all options, warrants and other securities
convertible or exercisable into common stock on a fully diluted basis,
less (ii) the shares of common stock held by the Executive together with
all options, warrants and other securities convertible or exercisable
into common stock held by the Executive. The exercise price of such
options shall be the average midpoint price between the bid and ask
prices of the Employer's common stock for the five (5) trading days
preceding the date of each such grant. The options shall be 100% vested
as of the date of grant and shall expire on the date that is ten years
from the date of grant.
(g) 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 the Employer.
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 (6) consecutive months, the
compensation thereafter payable to him during the next succeeding consecutive
three (3) month period shall be one-half of the compensation provided for in
Section 2.1(a) hereof (as adjusted pursuant to Section 2.1(b)), and during the
following consecutive three (3) month period shall be one-fourth of the salary
provided for in Section 2.1(a) (as adjusted pursuant to Section 2.1(b));
provided, however, that no such compensation shall be payable after the
termination of this Agreement. During such initial six (6) 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 twelve (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 the
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.
2.7 Automobile. The Employer shall provide to the Executive, at the
election of the Executive, either (a) a company vehicle of a type suitable for
the Executive's position, insured at the Employer's expense, for the exclusive
use of the Executive; or (b) reimbursement of the costs and expenses,
including insurance, of purchasing or leasing and maintenance of the
Executive's personal vehicle.
2.8 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 the 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.
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 (1) 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 has been entered. Notwithstanding
the foregoing, the Executive shall not be deemed to have been terminated
for Cause, without (x) reasonable written 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:
(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 thirty-three
percent (33%) 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;
(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; or
(vi) A person (within the meaning of Section 3(a)(9) or Section
13(d)(3), as in effect on the date hereof, of the Securities
Exchange Act of 1934 (the "Exchange Act")) shall become the
beneficial owner (within the meaning of rule 13d-3 of the Exchange
Act as in effect on the date hereof) of fifty percent (50%) or
more of the outstanding voting securities of the Employer.
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 the 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 the 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 the 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.
(ii) Pay to the Executive an amount equal to two (2) times
the Executive's then current annual salary.
(iii) At the election of the Executive, pay to the
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
the Executive elects not to receive payment as provided above for
the Executive's unexercised options, all forfeiture restrictions
governing stock or options held by the Executive shall immediately
terminate and such common stock or options 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 the
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.
(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 (6) 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 (1) year's then current
salary provided for in Section 2.1(a) (as adjusted pursuant to
Section 2.1(b)) 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(c) or 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 the 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 an officer, agent, or trustee 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 reasonable
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 the 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.
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 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 (1) day after the date so sent by overnight courier, or
three (3) 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 Texas 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: Future Petroleum Corporation
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Title: President
Address: EXECUTIVE:
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