Exhibit
10.1
UNIT
CORPORATION
2000
NON-EMPLOYEE
DIRECTORS'
STOCK
OPTION PLAN
as
Amended
and Restated
May
29, 2009
UNIT
CORPORATION
2000
NON-EMPLOYEE
DIRECTORS' STOCK OPTION PLAN
The
purposes of the Unit Corporation 2000 Non-Employee Directors' Stock Option Plan
(the "Plan") are to promote the long-term success of Unit Corporation (the
"Company") by creating a long-term mutuality of interests between the
non-employee Directors and stockholders of the Company, to provide an additional
inducement for such Directors to remain with the Company and to provide a means
through which the Company may attract able persons to serve as Directors of the
Company.
SECTION
I
Administration
The
Compensation Committee (the "Committee") of the Board of Directors of the
Company (the "Board") shall administer the Plan. All of the members of the
Committee shall be non-employee directors. The Committee shall keep records of
action taken at its meetings. A majority of the Committee shall constitute a
quorum at any meeting, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by a majority
of the Committee, shall be the acts of the Committee.
The
Committee shall interpret the Plan and prescribe such rules, regulations and
procedures in connection with the operations of the Plan, as it shall deem to be
necessary and advisable for the administration of the Plan consistent with the
purposes of the Plan. All questions of interpretation and application of the
Plan, or as to stock options granted under the Plan, shall be subject to the
determination of the Committee, which shall be final and binding.
Notwithstanding
the above, the selection of the Directors to whom stock options are to be
granted, the timing of such grants, the number of shares subject to any stock
option, the exercise price of any stock option, the periods during which any
stock option may be exercised and the term of any stock option shall be as
hereinafter provided, and the Committee shall have no discretion as to such
matters.
SECTION
2
Shares
Available under the Plan
The
aggregate number of shares which may be issued or delivered and as to which
grants of stock options may be made under the Plan is 510,000 shares of Common
Stock, $.20 par value, of the Company (the "Common Stock"), subject to
adjustment and substitution as set forth in Section 5. If any stock option
granted under the Plan is cancelled by mutual consent or terminates or expires
for any reason without having been exercised in full, the number of shares
subject thereto shall again be available for purposes of the Plan. The shares
which may be issued or delivered under the Plan may be
either
authorized but unissued shares or reacquired shares or partly each, as shall be
determined from time to time by the Board.
SECTION
3
Grant
of Stock Options
On the
first business day following the day of each annual meeting of the stockholders
of the Company, each person who is then a member of the Board and who is not
then an employee of the Company or any of its subsidiaries (a "non-employee
Director") shall automatically and without further action by the Board or the
Committee be granted a stock option to purchase 3,500 shares of Common Stock,
subject to adjustment and substitution as set forth in Section 5. If the number
of shares then remaining available for the grant of stock options under the Plan
is not sufficient for each non-employee Director to be granted an option for
3,500 shares of common stock (or the number of adjusted or substituted shares
pursuant to Section 5), then each non-employee Director shall be granted an
option for a number of whole shares equal to the number of shares then remaining
available divided by the number of non-employee Directors, disregarding any
fractions of a share. Solely for purposes of satisfying a deficiency
of shares available for the grant of stock options available to non-employee
Directors on the day after the 2009 annual meeting of the Company’s
stockholders, in addition to the 437 shares available for the grant of options
made to each non-employee Director on May 7, 2009, each non-employee Director
shall receive an additional grant of stock options for 3,063 shares on May 29,
2009, provided, however, that none of these options for 3,063 additional shares
(the “2009 Option Award Balance”) shall vest unless and until this Plan is
approved by the Company’s stockholders. In the event such stockholder approval
in not obtained, then each 2009 Option Award Balance shall be
forfeited.
SECTION
4
Terms
and Conditions of Stock Options
Stock
options granted under the Plan shall be subject to the following terms and
conditions:
(A) The
purchase price at which each stock option may be exercised (the "option price")
shall be one hundred percent (100%) of the fair market value per share of the
Common Stock covered by the stock option on the date of grant, determined as
provided in Section 4(G). Notwithstanding any other provision of this Plan, the
purchase price of an outstanding option shall not be subject to modification or
amendment subsequent to the date of grant of such option.
(B) The
option price for each stock option shall be paid in full upon exercise and shall
be payable in cash in United States dollars (including check, bank draft or
money order). Provided, however, that in lieu of such cash the person exercising
the stock option may pay the option price in whole or in part by delivering to
the Company shares of the Common Stock having a fair market value on the date of
exercise of the stock option, determined as provided in Section 4(G) equal to
the option price for the shares being purchased; except that (i) any portion of
the option price representing a
fraction
of a share shall in any event be paid in cash and (ii) no shares of the Common
Stock which have been held for less than six months may be delivered in payment
of the option price of a stock option. The date of exercise of a stock option
shall be determined under procedures established by the Committee, and, as of
the date of exercise the person exercising the stock option shall be considered
for all purposes to be the owner of the shares with respect to which the stock
option has been exercised. Payment of the option price with shares shall not
increase the number of shares of the Common Stock, which may be issued or
delivered under the Plan as provided in Section 2.
(C) No
stock option shall be exercisable during the first six months of its term except
in case of death as provided in Section 4(E), provided, however, that no 2009
Option Award Balance shall be exercisable under any circumstance until after
approval of this Plan by the Company’s stockholders. Subject to the terms of
Section 4(E) providing for earlier termination of a stock option, no stock
option shall be exercisable after the expiration of ten years from the date of
grant. A stock option to the extent exercisable at any time may be exercised in
whole or in part.
(D) No
stock option shall be transferable by the grantee otherwise than by will, or if
the grantee dies intestate, by the laws of descent and distribution of the state
of domicile of the grantee at the time of death. All stock options shall be
exercisable during the lifetime of the grantee only by the grantee or the
grantee's guardian or legal representative.
(E) If
a grantee ceases to be a Director of the Company, any outstanding stock options
held by the grantee shall be exercisable and shall terminate, according to the
following provisions:
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(i)
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If
a grantee ceases to be a Director of the Company for any reason other than
retirement, disability, resignation, removal for cause or death, any then
outstanding stock option held by such grantee shall be exercisable by the
grantee (but only to the extent exercisable by the grantee immediately
prior to ceasing to be a Director) at any time prior to the regular
expiration date of such stock option or within one year after the date the
grantee ceases to be a Director, whichever is the shorter
period.
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(ii)
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If
during his or her term of office as a Director a grantee is removed from
office for cause, any outstanding stock option held by the grantee which
is not exercisable by the grantee immediately prior to removal shall
terminate as of the date of removal, and any outstanding stock option held
by the grantee which is exercisable by the grantee immediately prior to
removal shall be exercisable by the grantee at any time prior to the
regular expiration date of such stock option or within 30 days after the
date of removal, whichever is the shorter
period.
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(iii)
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If
a grantee ceases to be a Director of the Company by reason of death,
retirement, resignation or disability, any then outstanding stock option
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held
by such grantee shall be exercisable by the grantee (but in the case of
resignation, retirement or disability only to the extent exercisable by
the grantee immediately prior to ceasing to be a Director and in the case
of death whether or not exercisable by the grantee immediately prior to
death) at any time prior to the regular expiration date of such stock
option or within 24 months after the date the grantee ceases to be a
Director, whichever is the shorter period. In the event of the death of
the grantee, the stock options shall be exercisable by the person entitled
to do so under the Will of the grantee, or, if the grantee fails to make
testamentary disposition of the stock options or shall die intestate, by
the legal representative of the
grantee.
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(F) All
stock options shall be confirmed by an agreement, or an amendment thereto, which
shall be executed on behalf of the Company by the Chief Executive Officer (if
other than the President), the President or any Vice President and by the
grantee.
(G) Fair
market value of the Common Stock shall be the mean between the following prices,
as applicable, for the date as of which fair market value is to be determined as
quoted in The Wall Street Journal (or in such other reliable publication as the
Committee, in its discretion, may determine to rely upon): (a) if the Common
Stock is listed on the New York Stock Exchange, the closing price per share of
the Common Stock as quoted in the NYSE-Composite Transactions listing for such
date, (b) if the Common Stock is not listed on such exchange, the highest and
lowest sales prices per share of Common Stock for such date on (or on any
composite index including) the principal United States securities exchange
registered under the Securities Exchange Act of 1934 (the "1934 Act") on which
the Common Stock is listed, or (c) if the Common Stock is not listed on any such
exchange, the highest and lowest sales prices per share of the Common Stock for
such date on the National Association of Securities Dealer Automated Quotations
System or any successor system then in use ("NASDAQ"). If there are no such sale
price quotations for the date as of which fair market value is to be determined
but there are such sale price quotations within a reasonable period both before
and after such date, then fair market value shall be determined by taking a
weighted average of the means between the highest and lowest sales prices per
share of the Common Stock as so quoted on the nearest date before and the
nearest date after the date as of which fair market value is to be determined.
The average should be weighted inversely by the respective number of trading
days between the selling dates and the date as of which fair market value is to
be determined. If there are no such sale price quotations on or within a
reasonable period both before and after the date as of which fair market value
is to be determined, then fair market value of the Common Stock shall be the
mean between the bona fide bid and asked prices per share of Common Stock as so
quoted for such date on NASDAQ, or if none, the weighted average of the means
between such bona fide bid and asked prices on the nearest trading date before
and the nearest trading date after the date as of which fair market value is to
be determined, if both such dates are within a reasonable period. The average is
to be determined in the manner described above in this Section
4(G).
(H) The
obligation of the Company to issue or deliver shares of the Common Stock under
the Plan shall be subject to (i) the effectiveness of a registration statement
under the Securities Act of 1933, as amended, with respect to such shares, if
deemed necessary or appropriate by counsel for the Company, (ii) the condition
that the shares shall have been listed (or authorized for listing upon official
notice of issuance upon each stock exchange, if any, on which the Common Stock
shares may then be listed and (iii) all other applicable laws, regulations,
rules and orders which may then be in effect.
(I)
Forfeiture of Stock Options.
If at any time during grantee’s tenure as a
Director, the Committee determines that grantee has engaged in any
activity in competition with any activity of the company or its subsidiaries, or
activity or conduct that is inimical, contrary or harmful to the interests of
the company or its subsidiaries, including but not limited to:
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(i)
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conduct
relating to a Director’s duties to the company for which either criminal
or civil penalties against the Director may be
sought;
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(ii)
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conduct
or activity that results in the termination of a Director’s tenure because
of his or her: (a) failure to abide by the Company’s rules and regulations
governing the transaction of its business, including without limitation,
its Code of Business Ethics and Conduct; (b) inattention to duties, or the
commission of acts while in the position of director which acts amount to
gross negligence or misconduct; (c) misappropriation of funds or property
of the Company or its subsidiaries or committing any fraud
against the Company or any of its subsidiaries or against any other person
or entity while serving as a Director of the Company, or (d)
misappropriation of any corporate opportunity, or otherwise obtaining
personal profit from any transaction which is adverse to the interests of
the Company or any of its subsidiaries or to the benefits of which the
Company or its subsidiaries are entitled; or (e) the commission of a
felony or other crime involving moral
turpitude;
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(iii)
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accepting
employment with, acquiring a 5% or more equity or participation interest
in, serving as a consultant, advisor, director or agent of, directly or
indirectly soliciting or recruiting any employee of the Company or any of
its subsidiaries who was employed at any time during the Director’s tenure
with the Company or any of its subsidiaries, or otherwise assisting in any
other capacity or manner any company or enterprise that is directly or
indirectly in competition with or acting against the interests of the
Company or any of its subsidiaries (a "
competitor
"),
except for (a) any isolated, sporadic accommodation or assistance provided
to a competitor, at its request, by the Director during his or her tenure
with the Company, but only if provided in the good faith and reasonable
belief that such action would benefit the Company or any of its
subsidiaries by promoting good business relations with the competitor and
would not harm the Company’s or any of its subsidiaries’ interests in any
substantial manner or (b) any other service or assistance that is provided
at the request or with the written permission of the Company or any of its
subsidiaries;
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(iv)
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disclosing
or misusing any confidential information or material concerning the
Company or any of its subsidiaries;
or
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(v)
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making
any statement or disclosing any information to any customers, suppliers,
lessors, lessees, licensors, licensees, regulators, employees or others
with whom the Company or any of its subsidiaries engages in business that
is defamatory or derogatory with respect to the business, operations,
technology, management, or other employees of the Company or any of its
subsidiaries, or taking any other action that could reasonably be expected
to injure the Company or any of its subsidiaries in their business
relationships with any of the foregoing parties or result in any other
detrimental effect on the Company or any of its
subsidiaries;
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then on
the date on which the Director breached this Section 4 (I) as determined by the
Committee and (a) all of the Director’s vested stock options acquired under this
Plan (or other securities into which those stock options have been exercised,
converted or exchanged) shall be returned to the Company or, if no longer held
by the director, and the director shall pay to the Company, without interest,
all cash, securities or other assets received by him or her on the sale or
transfer of such stock or securities, and (ii) all unvested stock options shall
be forfeited.
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(vi)
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If
a Director owes any amount under the above subsections of this Section 4,
the Company may, to the fullest extent permitted by applicable law, deduct
such amount from any amounts the Company owes the Director from time to
time for any reason (including without limitation amounts owed as fees,
reimbursements or other compensation, or fringe
benefits).
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Subject to the foregoing provisions of
this Section 4 and the other provisions of the Plan, any stock option granted
under the Plan may be subject to such restrictions and other terms and
conditions if any, as shall be determined, in its discretion, by the Committee
and set forth in the agreement referred to in Section 4(F), or an amendment
thereto.
SECTION
5
Adjustment
and Substitution of Shares
If a
dividend or other distribution shall be declared upon the Common Stock payable
in shares of the Common Stock, the number of shares of the Common Stock set
forth in Section 3, the number of shares of the Common Stock then subject to any
outstanding stock options and the number of shares of the Common Stock which may
be issued or delivered under the Plan but are not then subject to outstanding
stock options shall be adjusted by adding thereto the number of shares of the
Common Stock which would have been distributable thereon if such shares had been
outstanding on the date fixed for determining the stockholders entitled to
receive such stock dividend or distribution.
If the
outstanding shares of the Common Stock shall be changed into or exchangeable for
a different number or kind of shares of stock, other securities or other
property of the Company or another corporation, whether through reorganization,
reclassification, recapitalization, stock split-up, combination of shares,
merger or consolidation, then there shall be substituted for each share of the
Common Stock set forth in Section 3, for each share of the Common Stock subject
to any then outstanding
stock
option, and for each share of the Common Stock which may be issued or delivered
under the Plan but which is not then subject to any outstanding stock option,
the number and kind of shares of stock or other securities into which each
outstanding share of the Common Stock shall be so changed or for which each such
share shall be exchangeable.
In case
of any adjustment or substitution as provided for in this Section 5, the
aggregate option price for all shares subject to each then outstanding stock
option prior to such adjustment or substitution shall be the aggregate option
price for all shares of stock or other securities (including any fraction) to
which such shares shall have been adjusted or which shall have been substituted
for such shares. Any new option price per share shall be carried to at least
three decimal places with the last decimal place rounded upwards to the nearest
whole number.
No
adjustment or substitution provided for in this Section 5 shall require the
Company to issue or deliver or sell a fraction of a share or other security.
Accordingly, all fractional shares or other securities, which result from any
such adjustment or substitution, shall be eliminated and not carried forward to
any subsequent adjustment or substitution.
SECTION
6
Effect
of the Plan on the Rights of Company and Stockholders
Nothing
in the Plan, in any stock option granted under the Plan, or in any stock option
agreement shall confer any right to any person to continue as a Director of the
Company or interfere in any way with the rights of the stockholders of the
Company or the Board of Directors to elect and remove Directors.
SECTION
7
Amendment
and Termination
The right
to amend the Plan at any time and from time to time and the right to terminate
the Plan at any time are hereby specifically reserved to the Board; provided
always that no such termination shall terminate any outstanding stock options
granted under the Plan; and provided further that no amendment of the Plan shall
(a) be made without stockholder approval if stockholder approval of the
amendment is at the time required for stock options under the Plan to qualify
for the exemption from Section 16(b) of the 1934 Act provided by Rule 16b-3 or
by the rules of any stock exchange on which the Common Stock may then be listed,
(b) amend more than once every six months the provisions of the Plan relating to
the selection of the Directors to whom stock options are to be granted, the
timing of such grants, the number of shares subject to any stock option, the
periods during which any stock option may be exercised and the term of any stock
option other than to comport with changes in the Internal Revenue Code of 1986
or the rules and regulations thereunder, (c) otherwise amend the Plan in any
manner that would cause stock options under the Plan not to qualify for the
exemption provided by Rule 16b-3 or (d) modify or amend the purchase price of
any outstanding option No amendment or termination of the Plan shall, without
the written consent of the holder of a
stock
option theretofore awarded under the Plan, adversely affect the rights of such
holder with respect thereto.
Notwithstanding
anything contained in the preceding paragraph or any other provision of the Plan
or any stock option agreement, the Board shall have the power to amend the Plan
in any manner deemed necessary or advisable for stock options granted under the
Plan to qualify for the exemption provided by Rule 16b-3 (or any successor rule
relating to exemption from Section 16(b) of the 1934 Act), and any such
amendment shall, to the extent deemed necessary or advisable by the Board, be
applicable to any outstanding stock options theretofore granted under the Plan
notwithstanding any contrary provisions contained in any stock option agreement.
In the event of any such amendment to the Plan, the holder of any stock option
outstanding under the Plan shall, upon request of the Committee and as a
condition to the exercisability of such option, execute a conforming amendment
in the form prescribed by the Committee to the stock option agreement referred
to in Section 4(F) within such reasonable time as the Committee shall specify in
such request.
SECTION
8
Effective
Date and Duration of Plan
The
effective date of the Plan shall be the date of its approval by the stockholders
of the Company and it shall end on May 30, 2017. Notwithstanding any other
provisions contained in the Plan other than the 2009 Option Award Balances, no
stock option shall be granted under the Plan until after such stockholder
approval. No stock option may be granted under the Plan subsequent to May 30,
2017.
IN
WITNESS WHEREOF the Board of Directors as of the 29
th
day of
May, 2009 has adopted this Plan.
UNIT CORPORATION
By:
/s/ John G. Nikkel
John G. Nikkel
Chairman of the Board
of Directors
[Corporate Seal]
ATTEST:
/s/
Mark E. Schell
Mark E.
Schell, Secretary
9
Exhibit
10.2
CONSULTING
AGREEMENT
This
consulting agreement ("Agreement") is dated June 1, 2009, and is between John G.
Nikkel ("Nikkel") and Unit Corporation, a Delaware corporation (the
"Corporation"). Nikkel and the Corporation may be referred to
individually as "Party" and collectively as "Parties."
WHEREAS,
on December 17, 2004, the Parties entered into a consulting agreement ("Original
Agreement");
WHEREAS,
on April 1, 2006, the Original Agreement expired according to its
terms;
WHEREAS,
on April 12, 2006, the Parties renewed the Original Agreement for a one year
term effective April 1, 2006;
WHEREAS,
on April 9, 2007, the Parties entered into a Consulting Agreement for a one year
term effective April 1, 2007;
WHEREAS,
on March 26, 2008, the Parties renewed the Consulting Agreement for a one year
term effective April 1, 2008;
WHEREAS,
the Parties desire to again enter into a consulting agreement under the
substantially same terms and conditions as the Original Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement, the Parties agree as follows:
1.
Except as
otherwise provided herein, this Agreement incorporates and adopts the terms and
conditions of the Original Agreement attached hereto as Exhibit A.
2.
This
Agreement is for a term of 1 year commencing as of April 1, 2009 unless it is
sooner terminated by mutual written agreement of the Parties. In the event of
Nikkel's death during the term of this Agreement, the obligations of the Parties
under this Agreement shall terminate.
3. In
the event there is a conflict between the terms of this Agreement and that of
the Original Agreement, the terms of this Agreement will govern.
IN
WITNESS WHEREOF, each of the Parties has signed this Agreement, in the case of
the Corporation by its duly authorized officer, as of the day and year first set
forth above.
UNIT CORPORATION
/s/ John G.
Nikkel
/s/ Mark E. Schell
John G.
Nikkel Mark
E. Schell, Senior Vice President
CONSULTING
AGREEMENT
This
consulting agreement is dated December 17, 2004, and is between John G. Nikkel
("
Nikkel
") and Unit
Corporation, a Delaware corporation (the "
Corporation
").
Nikkel
has elected to retire as an employee and Chief Executive Officer of the
Corporation effective April 1, 2005 and will cease to be an officer of the
Corporation as of that date.
The board
of directors of the Corporation wishes to secure the services of Nikkel as a
consultant to the Corporation and Nikkel is willing to act in that capacity
following his retirement.
The
Corporation and Nikkel wish to enter into this agreement to describe their
obligations to each other and the scope of Nikkel's services to the Corporation
as an independent contractor and consultant to the Corporation after his
retirement.
The
parties therefore agree as follows:
1.
Term
of Agreement.
This
agreement is for a term of 1 year starting on the date of Nikkel's retirement
unless it is sooner terminated by mutual written agreement of the
parties. In the event of Nikkel's death during the term of this
agreement, the obligations of the parties under this agreement shall
terminate.
The
parties, by mutual written agreement, may extend the term of this agreement for
successive 1 year periods at any time before the termination of the then
existing term of this agreement.
2.
Consulting
Fees.
In
consideration of Nikkel's obligations under this agreement, the Corporation
shall pay Nikkel an annual consulting fee of $70,000, with payments to be made
monthly in accordance with the Corporation's usual procedures. This
compensation shall be paid beginning as of Nikkel's retirement date and ending
on the termination of this agreement.
During
the term of this agreement the Corporation shall make available to Nikkel
secretarial services and office space.
3.
Consulting
Services.
3.1
Duration and
Scope
. During the term of this agreement, Nikkel shall serve
as a consultant to the Corporation (including its subsidiaries, affiliates and
joint venture partners). Nikkel will provide the advice and counsel
to the Corporation as reasonably requested by the Chief Executive Officer of the
Corporation. Unless otherwise requested, Nikkel shall attend the
weekly exploration meetings held by the Corporation's subsidiary Unit Petroleum
Company to assist in the decisions normally made during those
meetings.
3.2
Compliance with
Laws
. Nikkel shall comply at his expense with all applicable
provisions of workers' compensation laws, unemployment compensation laws,
federal social security law, the Fair Labor Standards Act, federal, state and
local income tax laws, and all other applicable federal, state and local laws,
regulations and codes applicable to his status as an independent
contractor.
3.3
Status
. As
a consultant to the Corporation, Nikkel shall act as an independent
contractor. Nikkel shall not have the status of an employee of the
Corporation. Nikkel shall be solely responsible for and shall pay all
such amounts of applicable federal and state income and self employment
taxes. Except as otherwise provided in this agreement, Nikkel shall
not be eligible to participate in any employee benefit, group insurance or
compensation plans or programs maintained by the Corporation;
provided, however
, that any
rights that Nikkel may have under these plans or programs because of his prior
status as an employee and officer of the Corporation (or his status as a
director of the Corporation) shall not be affected by this
Exhibit
"A" to Consulting Agreement
Page
1
agreement. The
Corporation shall not provide Social Security, unemployment compensation,
disability insurance, workers ' compensation or similar coverage, or any other
statutory employment benefit, to Nikkel.
3.4
Reimbursement of Reasonable
Expenses
. On presentment to the Corporation of appropriate
documentation of his expenses, the Corporation shall reimburse Nikkel under
guidelines similar to those applicable to the Corporation's officers for
reasonable expenses incurred by Nikkel during the performance of his consulting
services.
4.
Protection
of the Corporation's Interests.
4.1
Protection of Trade
Secrets
. For the term of this agreement, Nikkel shall not,
without the prior written consent of the Corporation, disclose or use for any
purpose (except in the course of his consulting services with the Corporation
and in furtherance of the Corporation's business) confidential information or
proprietary data of the Corporation, its subsidiaries, affiliates and joint
venture partners, except as required by applicable law or legal
process. Nikkel agrees to deliver to the Corporation at the
termination of this agreement, or at such other time as the Corporation may
request, all memoranda, notes, plans, records, reports and other documents (and
copies thereof) relating to the business of the Corporation, its subsidiaries,
affiliates and joint venture partners, that Nikkel may then possess or have
under his control.
4.2
Limitation on Services
Provided to Others
. During the term of this agreement, Nikkel
shall not, directly or indirectly:
(a) Engage
in any business or activity in which the Corporation or any subsidiary,
affiliate or joint venture partner of the Corporation is engaged (provided,
however, that the purchase, sale and leasing of oil and gas mineral interests or
participating in the drilling of oil and gas wells by Nikkel shall not be deemed
to be a violation of this provision but nothing in this agreement will relieve
Nikkel of any fiduciary duties he may owe to the Corporation); nor
(b) Be
employed by, render services of any kind to, advise or receive compensation in
any form from, nor invest or participate in any manner or capacity in, any
entity or person that directly or indirectly engages in such business or
activity.
This
Subsection will not preclude investments in a corporation whose stock is traded
on a public market and of which Nikkel owns less than a significant
interest.
4.3
Nonsolicitation
. During
the term of this agreement, Nikkel shall not, directly or
indirectly:
(a) Attempt
to cause any employee of the Corporation or any subsidiary, affiliate or joint
venture partner to leave his or her employment; nor
(b) Knowingly
advise or provide information to any person in connection with an attempt by
such person to cause any employee of the Corporation or any subsidiary,
affiliate or joint venture partner to leave his or her employment.
4.4
Modification by
Court
. If any of the covenants contained in subsections 4.1,
4.2 and 4.3 above is determined to be unenforceable because of the duration of
the covenant or the area covered by it, then the court or arbitrator making the
determination shall have the power to reduce the duration of the covenant or the
area covered by it, and the covenants, in their reduced form, will be
enforceable.
4.5
Different
Jurisdictions
. If any of the covenants set forth in
Subsections 4.1, 4.2 and 4.3 above is determined to be wholly unenforceable by
the courts or arbitrators of any domestic or foreign jurisdiction, then the
determination shall not bar or in any way affect the Corporation's right to
relief in the courts or in arbitration proceedings of any other jurisdiction
with respect to any breach of such covenants in such other
jurisdiction. Such covenants, as they relate to each jurisdiction,
shall be severable into independent covenants and shall be governed by the laws
of the jurisdiction where a breach occurs.
4.6
Purpose of
Covenants
. Nikkel and the Corporation agree that the covenants
in Subsections 4.1, 4.2 and 4.3 above are reasonable and necessary to protect
the confidentiality of the trade secrets and other
Exhibit
"A" to Consulting Agreement
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2
proprietary
information concerning the business of the Corporation and its subsidiaries,
affiliates and joint venture partners that was acquired by Nikkel as an employee
of the Corporation and during the course of his consulting services under this
Agreement.
4.7
Repayment of
Gains
. Nikkel and the Corporation agree that the principal
purpose of entering into this agreement was to motivate Nikkel to contribute to
the Corporation's success and to increase the Corporation's
value. Nikkel and the Corporation also agree that any breach of the
covenants set forth in Subsections 4.1, 4.2 and 4.3 above would be contrary to
the purpose of this agreement. In the event that Nikkel takes any
action contrary to any of the covenants set forth in Subsections 4.1, 4.2 and
4.3 above, Nikkel shall on demand pay the Corporation an amount equal to the
total amount of all cash compensation paid to Nikkel under this agreement,
whether that cash compensation was paid before or after the time when Nikkel
takes the contrary action.
5.
Miscellaneous
Provisions.
5.1
Waiver
. No
provisions of this agreement can be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by Nikkel
and the Corporation. No waiver by either party of any breach of, or
of compliance with, any condition or provision of this agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
5.2
Assignment and Successors;
The Corporation
. The Corporation shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Corporation's business and/or assets, by an agreement in substance and form
satisfactory to Nikkel, to assume this agreement and to perform this agreement
in the same manner and to the same extent as the Corporation would be required
to perform it in the absence of a succession. For all purposes under
this agreement, the term "Corporation" shall include any successor to the
Corporation's business and/or assets that executes and delivers the assumption
agreement described in this Subsection 5.2 or that becomes bound by this
agreement by operation of law. The rights and benefits of Nikkel
under this agreement may not be anticipated, assigned, alienated, or subject to
attachment, garnishment, levy, execution, or other legal or equitable process
except as required by law. Any attempt by Nikkel to anticipate, alienate,
assign, sell, transfer, pledge, encumber, or charge the same shall be
void.
5.3
Arbitration
. Any
dispute or controversy arising under or in connection with this agreement shall
be settled exclusively by arbitration in Tulsa, Oklahoma, in accordance with the
rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any
court having jurisdiction. Within 30 days following the conclusion of
any arbitration proceeding (notwithstanding any appeal), the Corporation shall
pay all reasonable attorneys' fees and related expenses incurred by Nikkel in
connection with any such arbitration;
provided, however
, that the
Corporation's reimbursement obligation under this sentence shall be limited to
$15,000 in the event that the Corporation is the prevailing party in the action
and $30,000 if Nikkel is the prevailing party in the action. For
purposes of the preceding sentence, if there is disagreement concerning who is
the prevailing party, then the parties shall request that the arbitrator hearing
the dispute determine the point and the parties agree to be bound by the
arbitrator's determination.
5.4
Taxes
. All
payments made under this agreement shall be subject to any required withholding
of applicable taxes.
5.5
Whole
Agreement
. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this agreement have been made or entered into by either party with
respect to the subject matter hereof.
5.6
Choice of
Law
. The validity, interpretation, construction and
performance of this agreement shall be governed by the laws of the State of
Oklahoma.
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"A" to Consulting Agreement
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5.7
Severability
. The
invalidity or unenforceability of any provision or provisions of this agreement
shall not affect the validity or enforceability of any other provision, which
shall remain in full force and effect.
5.8
Delivery of
Notice
. Notices and all other communications contemplated by
this agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by certified mail, return receipt
requested and postage prepaid. In the case of the Nikkel, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Corporation in writing. In the case of the
Corporation, mailed notices shall be addressed to its corporate headquarters,
and all notices shall be directed to the attention of its
Secretary.
IN WITNESS WHEREOF,
each of
the parties has signed this agreement, in the case of the Corporation by its
duly authorized officer, as of the day and year first above
written.
/s/
John G. Nikkel
John
G. Nikkel
Unit
Corporation
/s/
Larry D. Pinkston
By: Larry
D. Pinkston
Its: President
Exhibit
"A" to Consulting Agreement
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