UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 20, 2019
CHAPARRAL ENERGY, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-38602 | 73-1590941 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer
Identification No.) |
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701 Cedar Lake Boulevard
Oklahoma City, OK
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73114 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (405) 478-8770
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities Registered pursuant to Section 12(b) of the Act:
Title of each class |
Ticker symbol(s) |
Name of each exchange on which registered |
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Class A common stock, par value $0.01 per share | CHAP | The New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. |
Entry into a Material Definitive Agreement |
Participation and Restrictive Covenant Agreements with Certain Named Executive Officers. The description in Item 5.02 of the Participation and Restrictive Covenant Agreement proposed to be entered into between the Company and each of Mark Ver Hoeve and Josh Walker is incorporated by reference into this Item 1.01.
Item 5.02 |
Departure of Directors or Principal Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Executive Severance Plan
On December 20, 2019, after receiving the unanimous recommendation of the Compensation Committee, the Board of Directors (the Board) of Chaparral Energy, Inc. (the Company) unanimously adopted the Chaparral Energy, L.L.C. Executive Severance Plan (the Severance Plan).
The Severance Plan provides severance benefits to certain key management employees of the Company and its subsidiaries who are selected by the Severance Plans administrator and have entered into a Participation and Restrictive Covenant Agreement with the Company (each, a Participant), and whose employment is terminated in a Qualifying Termination, meaning a termination without Cause or resignation with Good Reason, in each case as defined in the Severance Plan. On December 20, 2019, four of the Companys officers, including two of the Companys currently serving named executive officersMark Ver Hoeve (VP Geosciences) and Josh Walker (VP Completions & Operations)were designated as Participants under the Severance Plan.
In order to be entitled to the benefits of the Severance Plan, Mr. Ver Hoeve and Mr. Walker must enter into the Participation and Restrictive Covenant Agreement presented to them by the Company. Pursuant to the Companys form of Participation and Restrictive Covenant Agreement, each Participant must agree that, for a period of 12 months following his or her termination date, he or she will not solicit, direct or attempt to solicit or divert any customer of the Company or an affiliate of the Company or solicit or hire any employee or consultant of the Company. Furthermore, during that 12-month period, each such Participant must agree not to engage in certain activities in any county or parish in which the Company operates on his termination date. Each Participant must also agree not to disparage the Company or any of its officers, director other affiliates. This non-disparagement provision is not subject to a time limit.
If a Participants employment terminates in a Qualifying Termination, he or she will receive the following severance benefits:
(i) |
an amount equal to the (x) a severance multiple of 12 multiplied by (y) the Participants monthly severance amount (i.e., the Participants monthly base salary plus 1/12th of the Participants target bonus), with such amount payable in substantially equal installments over the severance period of 12 months. (However, if the Qualifying Termination occurs within six months following a Change in Control the severance multiple will be increased to 18 and the severance period will be increased to 18 months.) |
(ii) |
any accrued, but unpaid as of the date of the Qualifying Termination, annual cash bonus for any completed fiscal year preceding a Qualifying Termination, to be paid no later than March 15th following the year of such completed fiscal year; |
(iii) |
accrued benefits under any retirement plan (such as a 401(k) plan) or welfare plan (such as a health plan); and |
(iv) |
if the Participant timely elects COBRA continuation coverage, reimbursement from the Company equal to the difference between the cost of such COBRA continuation coverage and the amount active employees pay for health coverage through the 12-month anniversary of the Participants termination date (or, if earlier, the date the Participant becomes eligible for health insurance coverage under another employers plan). |
In the event a Participant holds any equity awards granted under the Chaparral Energy, Inc. 2019 Long-Term Incentive Plan or any predecessor or successor incentive plan (each an Equity Plan), the treatment of those equity awards upon a Qualifying Termination will continue to be governed by the terms of the applicable Equity Plan and the applicable award agreements. As used in the Severance Plan, the term Change in Control has the meaning specified in the Chaparral Energy, Inc. 2019 Long-Term Incentive Plan.
If any payments and benefits to be paid or provided to a Participant, whether pursuant to the terms of the Severance Plan or otherwise, would be subject to golden parachute excise taxes under the Internal Revenue Code, the payments and benefits will be reduced to the extent necessary to avoid those excise taxes, but only if such a reduction of pay or benefits would result in a greater after-tax benefit to the eligible employee.
Upon at least 12 months (or, in connection with or following a Change in Control, upon at least 24 months) prior written notice to all Participants, the Severance Plan may be terminated or amended by the Compensation Committee of the Board. However, any termination or amendment of the Severance Plan may not materially impair the rights of a Participant whose Qualifying Termination occurs prior to such termination or amendment.
The foregoing descriptions of the Severance Plan and the Participation and Restrictive Covenant Agreement does not purport to be complete and is qualified in its entirety by reference to the Severance Plan and the form of Participation and Restrictive Covenant Agreement attached as Exhibit 99.1 and Exhibit 99.2, respectively, to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The exhibits listed in the following Exhibit Index are filed as part of this Current Report on Form 8-K.
Exhibit No. |
Description |
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99.1 | Chaparral Energy, L.L.C. Executive Severance Plan, dated as of December 20, 2019 | |
99.2 | Form of Participation and Restrictive Covenant Agreement |
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Management contract or compensatory plan or arrangement |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
CHAPARRAL ENERGY, INC. | ||||||
Dated: December 27, 2019 | By: |
/s/ Scott Pittman |
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Name: | Scott Pittman | |||||
Title: | Chief Financial Officer and Senior Vice President |
Exhibit 99.1
CHAPARRAL ENERGY, L.L.C.
EXECUTIVE SEVERANCE PLAN
(Effective December 20, 2019)
In order to secure the continued services of certain key management employees of Chaparral Energy, L.L.C. (the Employer) and to ensure their continued dedication to their assigned duties to providing services to Chaparral Energy, Inc. (the Company) without distraction in circumstances arising from the possibility of certain terminations of employment and in the event of any threat or occurrence of a Change in Control of the Company, the Compensation Committee of the Board of Directors of the Company (the Committee) has adopted this Executive Severance Plan (as it may be amended pursuant to the terms hereof, this Plan).
SECTION 1. Definitions. For purposes of this Plan, the following terms shall have the meanings set forth below:
Accrued Bonus shall mean a Participants accrued, but unpaid as of a Participants Termination Date, annual cash bonus for any completed fiscal year of the Company preceding a Participants Termination Date.
Affiliate(s) shall mean, with respect to the Employer or the Company, a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Employer or the Company, as applicable, including each subsidiary of the Employer or the Company, as applicable, within the meaning of Section 424(f) of the Code.
Annual Bonus shall mean Participants target annual cash bonus for the calendar year in which the Qualifying Termination occurs; provided, however, that, with respect to a CIC Qualifying Termination, such target annual cash bonus shall in no event be less than the highest target annual cash bonus of Participant under any such annual cash bonus plan for any calendar year commencing since the Effective Date and prior to the termination of this Plan in accordance with Section 8(l). For the avoidance of doubt, Annual Bonus shall include annual cash bonus received by the Participant from the Employer and all of its Affiliates.
Base Salary shall mean Participants Monthly Base Salary multiplied by 12.
Beneficiary shall mean the person or entity designated by Participant, by written instrument delivered to the Employer, to receive the benefits payable under this Plan in the event of Participants death. If Participant fails to designate a Beneficiary, or if no Beneficiary survives Participant, such death benefits shall be paid as follows: (i) to Participants surviving spouse; (ii) if there is no surviving spouse, to Participants living descendants per stirpes; or (iii) if there is neither a surviving spouse nor descendants, to Participants duly appointed and qualified executor or personal representative.
Cause shall mean the occurrence of any one or more of the following events: (i) Participants conviction of, or entry by Participant of a guilty or no contest plea to, a felony or crime involving moral turpitude; (ii) Participants willful commission of an act of fraud or dishonesty resulting in economic or financial injury to the Employer, the Company or any Affiliate thereof; (iii) Participants willful failure to substantially perform or gross neglect of Participants duties, including, but not limited to, the failure to follow any lawful directive of the Board or the CEO, within the reasonable scope of Participants duties; (iv) Participants performance of acts materially detrimental to the Employer, the Company or any Affiliate thereof, unless otherwise approved in advance by the Board or the CEO; (v) Participants use of narcotics, alcohol, or illicit drugs in a manner that has or may reasonably be expected to have a detrimental effect on Participants performance of his duties as an employee of the Employer or any Affiliate thereof or on the reputation of the Employer, the Company or any Affiliate thereof; (vi) Participants commission of a violation of the Code of Conduct of the Employer or the Company or, if applicable to the Participant, any Affiliate or any other rule or policy adopted by the Employer, the Company or any Affiliate thereof which results in injury to the Employer, the Company or an Affiliate thereof; (vii) Participants breach of the Participation and Restrictive Covenant Agreement; or (viii) any other acts or omissions contrary to the best interests of the Employer, the Company or any Affiliate thereof which has caused, or is likely to cause, material harm to one or more of them. Cause shall not be deemed to exist with respect to clause (vi), clause (vii), and clause (viii) above unless (A) the Employer provides written notice to the Participant of the conduct giving rise to Cause under the applicable clause within ninety (90) days after the Company has actual knowledge of the existence of such conduct and (B) Participant fails to completely remedy both the conduct so identified and the harm or threat of harm associated therewith within thirty (30) days after receipt of such notice.
CEO shall mean the Chief Executive Officer of the Employer.
Change in Control shall have the same meaning as such term is defined under the Chaparral Energy, Inc. 2019 Long-Term Incentive Plan or any successor equity incentive plan, as may be amended from time to time.
CIC Agreement shall have the meaning set forth in Section 2.
CIC Qualifying Termination shall mean a Qualifying Termination that occurs within six (6) months following the consummation of a Change in Control.
CIC Severance Multiple shall mean 18.
CIC Severance Period shall mean 18 months.
Claimant shall have the meaning set forth in Section 4(c).
COBRA shall mean the Consolidated Budget Reconciliation Act of 1985, as amended from time to time, and the regulations promulgated thereunder.
COBRA Benefits shall have the meaning set forth in Section 3(a)(vi).
Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder.
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Effective Date shall mean December 20, 2019.
Employment shall mean employment with the Employer, the Company or any Affiliate. A Participants Employment shall be deemed to have continued notwithstanding a transfer of employment between the Employer, the Company and Affiliate thereof, or between any two Affiliates.
Equity Plan shall mean the Chaparral Energy, Inc. 2019 Long-Term Incentive Plan or any successor equity incentive plan, as may be amended from time to time, or any predecessor plan (including, without limitation, the Chaparral Energy, Inc. Management Incentive Plan).
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended from time to time, and the regulations promulgated thereunder.
Excise Tax shall have the meaning set forth in Section 3(d)(i).
Full Payment shall have the meaning set forth in Section 3(d)(i).
Good Reason shall mean: (i) a material diminution in Participants authority, duties, or responsibilities combined with a material demotion in Participants pay grade ranking; (ii) the reduction by the Employer or the employing Affiliate of Participants Base Salary by more than ten percent (10%) (unless done so for all executive officers of the Employer); (iii) the requirement that Participant be based at any office or location that is more than 50 miles from the Participants place of employment, except for travel reasonably required in the performance of Participants responsibilities; or (iv) any other action or inaction that constitutes a material breach by the Company or the Employer or any Affiliate thereof of this Plan, such as the failure of any successor to the Company to assume this Plan pursuant to Section 8(h). Notwithstanding the foregoing, Participant will not be deemed to have terminated his employment for Good Reason unless (A) Participant provides written notice to the Employer of the existence of one of the conditions described above within ninety (90) days after Participant has knowledge of the initial existence of the condition, (B) the Employer or the employing Affiliate fails to remedy the condition so identified within thirty (30) days after receipt of such notice (if capable of correction), (C) Participant provides a notice of termination to the Employer within thirty (30) days of the expiration of the Employers or the employing Affiliates period to remedy the condition, and (D) Participant terminates employment within ninety (90) days after Participant provides written notice to the Employer of the existence of the condition referred to in clause (A).
Monthly Base Salary shall mean Participants monthly base salary at the rate in effect prior to any reduction for purposes of Good Reason, or on the date of a Qualifying Termination, whichever is higher; provided, however, that, with respect to a CIC Qualifying Termination, such rate shall in no event be less than the highest rate in effect for Participant at any time following the Effective Date and prior to the termination of this Plan in accordance with Section 8(l). For the avoidance of doubt, Monthly Base Salary shall include base salary received by the Participant from the Employer and all of its Affiliates.
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Monthly Severance Amount shall mean the sum of (i) Participants Monthly Base Salary plus (ii) one-twelfth (1/12) of Participants Projected Bonus.
Payment shall have the meaning set forth in Section 3(d)(i).
Participant shall mean any employee of the Employer (or one of its Affiliates) selected by the Plan Administrator in accordance with Section 2 who has entered into a Participation and Restrictive Covenant Agreement and otherwise meets the requirements of Section 2.
Participation and Restrictive Covenant Agreement shall mean the written agreement evidencing participation under this Plan and the restrictive covenants being agreed to as a condition to participate in this Plan between the Company or the Employer and the applicable employee.
Person shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a group as defined in Section 13(d)(3) thereof.
Plan Administrator shall mean (i) the Committee with respect to any Participant who is subject to Section 16 of the Exchange Act and (ii) the CEO or such other person as may be designated by the Committee from time to time with respect to any Participant who is not subject to Section 16 of the Exchange Act.
Projected Bonus shall mean one-hundred percent (100%) of the Annual Bonus for the Participant for the fiscal year during which the Termination Date occurs multiplied by the payout percentage reasonably projected in good faith by the Board (or its designee) to be applied to such Annual Bonus as of the Termination Date and prorated for the number of days Participant was employed by the Employer or an Affiliate during the fiscal year of the Employer in which the Termination Date occurs.
Qualifying Termination shall mean the Participants termination of Employment which constitutes a termination by the Employer without Cause or a resignation by the Participant for Good Reason.
Reduced Payment shall have the meaning set forth in Section 3(d)(i).
Retirement Plan shall mean any qualified or nonqualified supplemental employee pension benefit plan, as defined in Section 3(2) of ERISA, currently or hereinafter made available by the Employer or its Affiliates in which Participant is eligible to participate.
Section 409A Payment shall have the meaning set forth in Section 5(d).
Severance Benefits shall mean the severance benefits under Section 3(a).
Severance Multiple shall mean 12.
Severance Payments shall have the meaning set forth in Section 3(a)(i).
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Severance Period shall mean 12 months.
Termination Date shall mean, with respect to any Participant, the effective date of such Participants termination of Employment, as determined in accordance with Section 5(d).
Welfare Plan shall mean any health, vision or dental plan, disability plan, survivor income plan or life insurance plan, as defined in Section 3(1) of ERISA, currently or hereafter made available by the Employer or its Affiliates in which Participant is eligible to participate.
SECTION 2. Eligibility. The Plan Administrator shall from time to time, in its sole discretion, select and designate in writing, which of the Employers (including any of its Affiliates) employees are eligible to participate in this Plan and such employee shall become a Participant under this Plan conditioned upon accepting and executing a Participation and Restrictive Covenant Agreement within 30 days after such agreement is delivered to such employee. The Plan Administrator may, in its sole discretion, remove an employee from participation in this Plan, with such removal to be effective upon three-months prior notice to the impacted employee; provided, however, that if (a) a Participant is notified of his or her removal from participation in this Plan and (b) on or within six-months following the date on which the Participant is notified of his or her removal from this Plan, the Company has entered into or enters into an agreement that if consummated would constitute a Change in Control (the CIC Agreement), then such individual shall remain a Participant in this Plan and remain eligible for benefits in accordance with the terms hereof until the earlier to occur of (i) the termination of the CIC Agreement and (ii) the 12-month anniversary of the date on which the Participant is notified of his or her removal from this Plan.
SECTION 3. Compensation, Benefits and Effect of Termination of Employment.
(a) Effect of Qualifying Termination. Subject to Section 3(c) and Section 3(d), upon a Participants Qualifying Termination, the Employer shall provide Participant the payments and benefits set forth below (the Severance Benefits). For the avoidance of doubt, a Participant shall not be entitled to benefits under this Plan if such Participants Employment terminates for any reason (including due to disability, for Cause or resignation without Good Reason) other than as specifically set forth in the Qualifying Termination definition or this Section 3(a).
(i) The Employer shall pay to Participant an amount equal to the Severance Multiple times the Monthly Severance Amount or, in the event of a Participants CIC Qualifying Termination, the CIC Severance Multiple times the Monthly Severance Amount. Such amount shall be payable over the Severance Period or CIC Severance Period, as applicable, in substantially equal installments in accordance with the Employers regular payroll policies as if Participants employment had not ended (collectively, the Severance Payments). Subject to compliance with Section 3(b) below, the first installment of the Severance Payments will be paid within 60 days following the Termination Date, with the first payment including such amounts as would have otherwise been paid during the period beginning on the Termination Date and ending on such payment date.
(ii) The Employer shall pay Participant any Accrued Bonus, with such Accrued Bonus payable in a single lump sum no later than the March 15th following the year in which such Accrued Bonus was earned.
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(iii) Participant shall receive any and all benefits accrued through the date of termination of Employment under any Retirement Plan, Welfare Plan or other plan or program in which Participant participates as of the Termination Date, with the amount, form and time of payment of such benefits determined by the terms of such Retirement Plan, Welfare Plan and other plan or program.
(iv) If upon the Termination Date Participant holds any awards granted under the Equity Plan, including stock options, restricted stock, restricted stock units, performance shares, performance units, and any other stock-based award, all such awards shall be governed by the terms of the Equity Plan and the applicable award agreements and shall become vested, exercisable, and payable only to the extent provided for under the terms of the Equity Plan and the applicable award agreements.
(v) If Participant timely elects COBRA continuation coverage, Participant shall pay and the Employer shall reimburse Participant for such health insurance coverage through the earlier of (x) the 12-month anniversary of the Termination Date and (y) Participant becoming eligible for health insurance coverage under another employers plan (whether through the Participant or as a dependent) at the same rate as it pays for health insurance coverage for its active employees (with Participant required to pay for any employee-paid portion of such coverage) (such amounts to be referred to herein as the COBRA Benefits).
(vi) During the Severance Period or, in the event of a Participants CIC Qualifying Termination, the CIC Severance Period, Participant shall not be entitled to reimbursement for fringe benefits, including without limitation, dues and expenses related to club memberships, automobile expenses, expenses for professional services and other similar perquisites.
(b) Release of Claims. The obligations of the Employer and its Affiliates under this Section 3 (except upon such Participants death) shall be subject to such Participants execution, within 45 days after the Termination Date, of a general release and waiver substantially in a form prescribed by the Employer, which has become irrevocable following any revocation period permitted by the Employer (not to exceed 7 days).
(c) Recoupment. Notwithstanding any provisions in this Plan to the contrary, the Plan Administrator may, in its sole and absolute discretion, in the event of Participants material breach of a material obligation of Participant to the Employer pursuant to any award or agreement between Participant and the Employer, including a material breach of the Participation and Restrictive Covenant Agreement or a determination that an event constituting Cause has occurred, regardless of whether this determination happened prior to or following the Termination Date: (i) terminate the right of such Participant to receive any payment under this Section 3, to the extent it has not been paid; and (ii) seek the recoupment of any payment paid to such Participant under this Section 3, including through exercise rights of set-off, forfeiture or cancellation, to the full extent permitted by law, with respect to any other awards, benefits or payments otherwise due Participant from the Employer or any of its Affiliates, to the extent the Plan Administrator in its sole discretion deems appropriate after considering the relevant facts and circumstances. Any termination and/or recoupment of a Participants benefits under this Plan shall be in addition and without prejudice to any other remedies that the Employer might elect to assert.
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(d) Code Section 280G.
(i) If any payment or benefit (including payments and benefits pursuant to this Plan) Participant would receive in connection with or as a result of a Change in Control from the Employer or otherwise (the Payment) would (i) constitute a parachute payment within the meaning of Section 280G of the Code, and (ii) but for this paragraph, be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax), then the Employer shall cause to be determined, before any amounts of the Payment are paid to Participant, which of the following two alternative forms of payment shall be paid to Participant: (A) payment in full of the entire amount of the Payment (a Full Payment), or (B) payment of only a part of the Payment so that Participant receives the largest payment possible without the imposition of the Excise Tax (a Reduced Payment). A Full Payment shall be made in the event that the amount received by Participant on a net after-tax basis is greater than what would be received by Participant on a net after-tax basis if the Reduced Payment were made, otherwise a Reduced Payment shall be made. If a Reduced Payment is made, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Participant shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits shall occur in the following order: (A) reduction of cash payments (in the reverse chronological order in which such cash would otherwise be paid); (B) cancellation of accelerated vesting of equity awards other than stock options (in the reverse chronological order in which such equity awards would vest in the absence of a Change in Control); (C) cancellation of accelerated vesting of stock options (in the reverse chronological order in which such stock options would vest in the absence of a Change in Control); and (D) reduction of other benefits paid to Participant (in the reverse chronological order in which such benefits would otherwise be provided).
(ii) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control, or a nationally recognized law firm selected by the Plan Administrator, shall make all determinations required to be made under Section 3(d)(i). If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized law firm or independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm or law firm required to be made hereunder. Any good faith determinations of the accounting firm or law firm made hereunder shall be final, binding and conclusive upon the Company and Participant.
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(e) Death. If Participants Employment terminates under circumstances described in Section 3(a), then upon Participants subsequent death, all unpaid amounts payable to Participant under Section 3(a)(i) through Section 3(a)(v), if any, shall be paid to Participants Beneficiary.
SECTION 4. Administration of Plan; Claims Procedure.
(a) General. Except as specifically provided herein, this Plan shall be administered by the Plan Administrator. The Plan Administrator may delegate any administrative duties, including, without limitation, duties with respect to the processing, review, investigation, approval and payment of benefits under this plan to designated individuals or committees. The Plan Administrator shall be the administrator and a named fiduciary under this Plan for purposes of ERISA.
(b) Interpretations and Variations. The Plan Administrator shall have the duty and authority to interpret and construe, in its sole discretion, the terms of this Plan in regard to all questions of eligibility, the status and rights of Participants, and the manner, time and amount of any payment under this Plan. The Plan Administrator or its representative shall decide any issues arising under this Plan, and the decision of the Plan Administrator shall be binding and conclusive on Participants and the Company. Any variations from this Plan may be made only by the Plan Administrator in its sole discretion.
(c) Filing a Claim. Although it is not normally necessary to file a claim in order to receive benefits under this Plan, if a Participant (the Claimant) feels he or she has been improperly denied benefits under this Plan, any claim for payment of such benefits shall be signed, dated and submitted to the Company in accordance with Section 8(a). All claims relating to this Plan must be filed within 90 days following Participants Termination Date or alleged improper denial of benefits, whichever is later, unless the Plan Administrator otherwise specifies in writing. The Plan Administrator shall then evaluate the claim and notify the Claimant of the approval or disapproval in accordance with the provisions of this Plan not later than 90 days after the Companys receipt of such claim unless special circumstances require an extension of time for processing the claims. If such an extension of time for processing is required, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial 90-day period which shall specify the special circumstances requiring an extension and the date by which a final decision will be reached (which date shall not be later than 180 days after the date on which the claim was filed). If the Claimant does not provide all the necessary information for the Plan Administrator to process the claim, the Plan Administrator may request additional information and set deadlines for the Claimant to provide that information.
(d) Notice of Initial Determination. The Claimant shall be given a written notice in which the Claimant shall be advised as to whether the claim is granted or denied, in whole or in part. If a claim is denied, in whole or in part, the Claimant shall be given written notice which shall contain (i) the specific reasons for the denial, (ii) specific references to pertinent Plan provisions on which the denial is based, (iii) a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary and (iv) an explanation of this Plans appeal procedures, which shall also include a statement of the Claimants right to bring a civil action under Section 502(a) of ERISA following a denial of the claim upon review.
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(e) Right to Appeal. If a claim for payment of benefits under this Plan made in accordance with the procedures specified in this Plan is denied, in whole or in part, the Claimant shall have the right to request that the Plan Administrator review the denial, provided that the Claimant files a written request for review with the Plan Administrator within 60 days after the date on which the Claimant received written notification of the denial. The Claimant may review or receive copies, upon request and free of charge, any documents, records or other information relevant (within the meaning of Department of Labor Regulation 2560.503-1(m)(8)) to the Claimants claim. The Claimant may also submit written comments, documents, records and other information relating to his or her claim.
(f) Review of Appeal. In deciding a Claimants appeal, the Plan Administrator shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial review of the claim. If the Claimant does not provide all the necessary information for the Plan Administrator to decide the appeal, the Plan Administrator may request additional information and set deadlines for the Claimant to provide that information. Within 60 days after a request for review is received, the review shall be made and the Claimant shall be advised in writing of the decision on review, unless special circumstances require an extension of time for processing the review, in which case the Claimant shall be given a written notification within such initial 60-day period specifying the reasons for the extension and when such review shall be completed (provided that such review must be completed within 120 days after the date on which the request for review was filed).
(g) Notice of Appeal Determination. The decision on review shall be forwarded to the Claimant in writing and, in the case of a denial, shall include (i) specific reasons for the decision, (ii) specific references to the pertinent Plan provisions upon which the decision is based, (iii) a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records or other information relevant to the Claimants claim and (iv) a statement of the Claimants right to bring a civil action under Section 502(a) of ERISA following a wholly or partially denied claim for benefits. The Plan Administrators decision on review shall be final and binding on all persons for all purposes. If a Claimant shall fail to file a request for review in accordance with the procedures herein outlined, such Claimant shall have no right to review and shall have no right to bring an action in any court, and the denial of the claim shall become final and binding on all persons for all purposes. Any notice and decisions by the Plan Administrator under this Section 4 may be furnished electronically in accordance with Department of Labor Regulation 2520.104b-1(c)(i), (iii) and (iv).
(h) Statute of Limitations. No Claimant may bring any legal action to recover benefits under this Plan until he or she has exhausted the internal administrative claims and appeals process described above. No legal action may be commenced at all, unless commenced no later than one year following the issuance of a final decision on the claim for benefits, or the expiration of the appeal decision period if no decision is issued. This one-year statute of limitations on suits for all benefits available under this Plan shall apply in any forum where such legal action is initiated.
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SECTION 5. Section 409A Compliance; Changes in Law.
(a) It is the intention of the Company that the provisions of this Plan comply with Section 409A of the Code, and all provisions of this Plan shall be construed and interpreted in a manner consistent with Section 409A of the Code. In the event that the Company determines that any provision of this Plan does not comply with Section 409A of the Code or any such rules, regulations or guidance and that as a result any Participant may become subject to a tax under Section 409A of the Code, notwithstanding Section 8(l), the Company shall have the discretion to amend or modify such provision to avoid the application of such tax, and in no event shall any Participants consent be required for such amendment or modification. Notwithstanding any provision of this Plan to the contrary, each Participant shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with amounts payable pursuant to this Plan (including any taxes arising under Section 409A of the Code), and the Company not shall have any obligation to indemnify or otherwise hold such Participant harmless from any or all of such taxes.
(b) In the event that the Company determines that any provision of this Plan violates, or would result in any material liability (other than liabilities for the Severance Benefits) to the Company under, any law, regulation, rule or similar authority of any governmental agency the Company shall be entitled, notwithstanding Section 8(l), to amend or modify such provision as the Company determines in its discretion to be necessary or desirable to avoid such violation or liability, and in no event shall any Participants consent be required for such amendment or modification.
(c) The payments under this Plan are designated as separate payments for purposes of the short-term deferral rule under Treasury Regulation Section 1.409A-1(b)(4), the exemption for involuntary terminations under separation pay plans under Treasury Regulation Section 1.409A-1(b)(9)(iii), and the exemption for medical expense reimbursements under Treasury Regulation Section 1.409A-1(b)(9)(v)(B). As a result, (i) payments that are made on or before the 15th day of the third month of the calendar year following the year that includes Participants Termination Date, (ii) any additional payments that are made on or before the last day of the second calendar year following the year of Participants Termination Date and do not exceed the lesser of two times Participants annual rate of pay in the year prior to the Termination Date or two times the limit under Code Section 401(a)(17) then in effect, and (iii) continued medical expense reimbursements during the applicable COBRA period, are intended to be exempt from the requirements of Section 409A of the Code.
(d) To the extent any amounts under this Plan are payable by reference to a Participants termination of Employment, such term and similar terms shall be deemed to refer to such Participants separation from service, within the meaning of Section 409A of the Code. Notwithstanding any other provision in this Plan, to the extent any payments hereunder constitute nonqualified deferred compensation, within the meaning of Section 409A of the Code (a Section 409A Payment), and Participant is a specified employee, within the meaning of Treasury Regulation Section 1.409A-1(i), as determined by the Company in accordance with any method permitted under Section 409A of the Code, as of the date of Participants separation from service, each such Section 409A Payment that is payable upon such Participants separation from service and would have been paid prior to the six-month anniversary of such Participants
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separation from service, shall be delayed until the earlier to occur of (i) the six-month anniversary of Participants separation from service and (ii) the date of Participants death. Further, to the extent that any amount is a Section 409A Payment and such payment is conditioned upon Participants execution of a release or Participation and Restrictive Covenant Agreement and which is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, then such Section 409A Payment shall be paid or provided in the later of the two taxable years.
(e) Any reimbursements payable to a Participant pursuant to this Plan or otherwise shall be paid to such Participant in no event later than the last day of the calendar year following the calendar year in which such Participant incurred the reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefit to be provided, during any other calendar year. The right to any reimbursement or in-kind benefit pursuant to this Plan shall not be subject to liquidation or exchange for any other benefit.
SECTION 6. Covenants. Each Participants participation in this Plan is conditioned upon Participants execution of a Participation and Restrictive Covenant Agreement within thirty (30) days after such agreement is delivered to such Participant (or such later date as permitted by the Plan Administrator). If a Participant breaches any of the covenants in the Participation and Restrictive Covenant Agreement, including any non-competition, non-solicitation, non-disparagement or confidentiality covenants contained therein, (i) Participants entitlement to Severance Benefits shall be null and void, (ii) all rights to receive or continue to receive Severance Benefits shall thereupon cease and (iii) Participant shall immediately repay to the Company all amounts theretofore paid to, and the value of all benefits theretofore received by, Participant. The foregoing shall not limit any other rights or remedies the Company may have existing in its favor, including injunctive relief.
SECTION 7. Offset; No Mitigation.
(a) To the extent permitted by Section 409A of the Code, the amount of a Participants payments under this Plan shall be reduced to the extent necessary to defray amounts owed by Participant due to unused expense account balances, overpayment of salary, awards or bonuses, advances or loans.
(b) In no event shall any Participant be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Participant under any of the provisions of this Plan and, such amounts shall not be reduced whether or not Participant obtains other employment, except as expressly provided in Section 3(a)(v) and Section 3(c).
SECTION 8. Miscellaneous.
(a) Notices. All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if delivered in writing in person or by telecopy (or similar electronic means with a copy following by nationally recognized overnight courier) or sent by nationally-recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such other address as may hereafter be designated in writing by such party to the other parties.
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If to the Company: |
Chaparral Energy, Inc. | |
701 Cedar Lake Boulevard | ||
Oklahoma City, OK 73114 | ||
Attention: General Counsel | ||
If to a Participant: |
At the most recent address | |
on file with the Company |
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Plan shall be deemed to have been given when so delivered, sent or mailed.
(b) Choice of Law. This Plan shall be deemed to be made in Oklahoma, and, to the extent not preempted by ERISA or other federal law, the validity, interpretation, construction and performance of this plan in all respects shall be governed by the laws of Oklahoma without regard to its principles of conflicts of law. By participating in this Plan, each Participant and the Company hereby (i) irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts located in Oklahoma, and agree that any claim which, subject to Section 4 above, may be brought in a court of law or equity may be brought in any such Oklahoma court, and (ii) knowingly, voluntarily and intentionally waive any rights such party may have to a trial by jury in respect of any litigation based hereon or arising out of or in connection with this Plan. This provision is a material inducement for the Participant to be a Participant hereunder.
(c) No Waiver. No failure by the Company or a Participant at any time to give notice of any breach by the Company or a Participant, or to require compliance with, any condition or provision of this Plan shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
(d) Severability. If a court of competent jurisdiction determines that any provision of this Plan is invalid or unenforceable, then the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Plan, and all other provisions shall remain in full force and effect.
(e) Withholding of Taxes and Other Employee Deductions. The Company may withhold from any benefits and payments made pursuant to this Plan all federal, state, city and other taxes as may be required pursuant to any law or governmental regulation or ruling and all other normal employee deductions made with respect to the Companys employees generally.
(f) Headings. The paragraph headings have been inserted for purposes of convenience and shall not be used for interpretive purposes.
(g) Interpretations. For purposes of this Plan, the words include and including, and variations thereof, shall not be deemed to be terms of limitation but rather shall be deemed to be followed by the words without limitation. The term or is not exclusive. The word extent in the phrase to the extent shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply if. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely.
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(h) Successors. This Plan shall be binding upon and inure to the benefit of the Employer and any successor of the Employer, including without limitation any person, association, or entity which may hereafter acquire or succeed to all or substantially all of the business or assets of the Employer by any means whether direct or indirect, by purchase, merger, consolidation, or otherwise and the Employer shall require any such acquirer successor to assume this Plan and the obligations and liabilities contemplated thereunder, including, but not limited to the amendment and termination obligations contemplated under Section 8(l). Participants rights, benefits and obligations under this Plan are personal and shall not be voluntarily or involuntarily assigned, alienated, or transferred, whether by operation of law or otherwise, without the prior written consent of the Employer.
(i) Non-Duplication. The Severance Benefits provided under this Plan are not intended to result in any duplicative benefits to Participant and this Plan shall be administered accordingly. Accordingly, the Plan Administrator, in good faith, shall exercise its discretion and to the extent permitted under applicable law, equitably offset against Participants severance benefits under this Plan against any other severance, termination, or similar benefits payable to Participant by the Employer or amounts paid to comply with, or satisfy liability under, the Worker Adjustment and Retraining Notification Act or any other foreign, federal, state, or local law requiring payments in connection with any termination of Employment or workforce reduction, including, but not limited to, amounts paid in connection with paid leaves of absence, back pay, benefits, and other payments intended to satisfy such liability or alleged liability. For the avoidance of doubt, this Plan shall replace any agreements entered into between the Employer and the Participant providing the Participant with severance or related benefits and the Participant shall not be entitled to benefits under both this Plan and any other severance plan or policy maintained by the Employer or its Affiliates and amounts payable under this Plan shall be reduced by any amounts received or payable under any such severance plan or policy. To the extent that the Severance Benefits payable hereunder are deemed to be a substitute for a Section 409A Payment provided under another agreement with Participant, then the Severance Benefits payable hereunder shall be paid at the same time and in the same form as such substituted Section 409A Payment to the extent required to comply with Section 409A of the Code.
(j) Deemed Resignations. Any termination of a Participants Employment shall constitute an automatic resignation of such Participant as an officer of the Employer and each Affiliate of the Employer, an automatic resignation from the board of directors, if applicable, of the Employer and each Affiliate of the Employer and from the board of directors or similar governing body of any corporation, limited liability company or other entity in which the Employer or any Affiliate holds an equity interest and with respect to which board or similar governing body such Participant serves as the Employers or such Affiliates designee or other representative.
(k) No Guarantee of Employment. This Plan shall not be construed as creating any contract of Employment between the Employer and its Affiliates, on the one hand, and any Participant, on the other hand, nor shall this Plan be construed as restricting in any way the rights of the Employer or any of its Affiliates to terminate the Employment of any Participant at any time and for any reason subject, however, to any rights of a Participant under this Plan.
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(l) Amendment and Termination of this Plan. Except as specifically provided in Section 5, the Committee may amend, modify or terminate this Plan at any time; provided, however, that (i) no such amendment, modification or termination will be effective unless each affected Participant has received written notice thereof at least twelve (12) months prior to such amendment, modification or termination becoming effective and (ii) no such amendment, modification or termination may materially impair the rights of a Participant whose Termination Date previously occurred. In addition, the Committee may not amend, modify or terminate this Plan after steps have been taken, and continue to be taken, that could lead to a Change in Control or within twenty-four (24) months after a Change in Control without an impacted Participants written consent. The failure of the Employer or a Participant to insist upon strict adherence to any term of this Plan on any occasion shall not be considered as a waiver of the rights of the Employer or such Participant or deprive the Employer or such Participant of the right thereafter to insist upon strict adherence to that term or any other term of this Plan. No failure or delay by the Employer or any Participant in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. For the avoidance of doubt, a Participations participation in this Plan shall terminate upon the earliest to occur of (i) the date of termination of the Participants employment by the Employer if no benefits are payable under this Plan, (ii) the date the Employer satisfies its obligation, if any, to make payments and provide benefits to the Participant pursuant to this Plan, (iii) the removal of the Participant from participation in this Plan in accordance with Section 2, and (iv) termination of this Plan in accordance with this Section 8(l) prior to the date the Participant terminates employment with the Employer.
SECTION 9. Survival. The provisions of this Plan, including Section 3, Section 4, Section 5, Section 6, Section 7 and Section 8 shall survive and remain binding and enforceable, notwithstanding the expiration or termination of this Plan, the termination of a Participants Employment for any reason or any settlement of the financial rights and obligations arising from such Participants participation hereunder, to the extent necessary to preserve the intended benefits of such provisions.
* * * * * *
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IN WITNESS WHEREOF, the Employer has caused this Plan to be executed on its behalf, to be effective as of the Effective Date.
CHAPARRAL ENERGY, L.L.C. | ||
By: |
|
|
Justin Byrne | ||
Vice President and General Counsel |
Exhibit 99.2
CHAPARRAL ENERGY, L.L.C.
EXECUTIVE SEVERANCE PLAN
PARTICIPATION AND RESTRICTIVE COVENANT AGREEMENT
This Participation and Restrictive Covenant Agreement (this Agreement) is entered into as of , 20[●] between Chaparral Energy, L.L.C. (the Employer), and [Executive Name] (Executive).
WHEREAS, the Compensation Committee of the Companys Board of Directors has adopted the Chaparral Energy, L.L.C. Executive Severance Plan, effective as of December 20, 2019 (the Severance Plan), to provide certain benefits to participants upon a qualifying termination of employment, as contemplated under the Severance Plan;
WHEREAS, the Plan Administrator (as defined in the Severance Plan) has decided to offer Executive the opportunity to participate in the Severance Plan, subject to the terms of the Severance Plan and this Agreement;
WHEREAS, as a condition of eligibility to participate in the Severance Plan, Executive must agree to be bound by the terms of this Agreement, including the restrictive covenants contained in Section 4, and Executive agrees and acknowledges that participation in the Severance Plan is good, valuable, and sufficient consideration for Executives promises and commitments as set forth in this Agreement including, without limitation, the restrictive covenants contained in Section 4; and
WHEREAS, Executive acknowledges that Executive has carefully reviewed the Severance Plan and this Agreement and has decided that Executive wishes to enter into this Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employer and Executive agree as follows:
1. Plan. The terms of the Severance Plan are incorporated by reference into this Agreement, and this Agreement shall be a part of and governed by the terms of the Severance Plan, as amended from time to time or terminated in accordance with Section 8(l) of the Severance Plan, subject to the termination of Executives participation in the Severance Plan as provided in Sections 2 and 8(l) of the Severance Plan. Executive is an intended third-party beneficiary of the Severance Plan.
2. Participation Subject to Execution and Return of this Agreement. This Agreement and Executives designation as a Participant in the Severance Plan shall be null and void unless Executive agrees to be bound by and executes this Agreement and returns it to the Employer on or before [ , 20[●]]1.
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Note to Draft: Date to be 30 days after this Agreement is delivered to Executive. |
3. Definitions. The capitalized terms used, but not defined in this Agreement, shall have the respective meanings set forth in the Severance Plan.
4. Restrictive Covenants.
(a) Nondisclosure of Confidential Information. Executive acknowledges that it is the policy of the Company and the Employer to maintain as secret and confidential (i) all valuable and unique information, (ii) other information heretofore or hereafter acquired by the Company, the Employer, or any of their Affiliates and deemed by it to be confidential, and (iii) information developed or used by the Company, the Employer, or any of their Affiliates, in each case, relating to the business, operations, employees and customers of the Company, the Employer, or any of their Affiliates including, but not limited to, the mental impressions of Executive acquired by Executive during his or her employment by the Employer as well as any employee information (all such information described in clauses (i), (ii) and (iii) above, other than information that is known to the public or becomes known to the public through no fault of Executive, is hereinafter referred to as Confidential Information). The parties recognize that the services to be performed by Executive pursuant to this Agreement are special and unique and that by reason of his or her employment by the Employer before, on and after the date hereof, Executive has acquired and will acquire previously undisclosed Confidential Information. Executive recognizes that all such Confidential Information is the property of the Company, the Employer, and their subsidiaries. Accordingly, at any time following the termination of Executives employment and subject to Section 4(j), Executive shall not, except in the proper performance of his or her duties under this Agreement, directly or indirectly, without the prior written consent of the Company or the Employer, use the Confidential Information for any purpose or disclose the Confidential Information to any Person other than the Company, the Employer, or their subsidiaries, whether or not such Person is a competitor of the Company, the Employer, or their subsidiaries, and shall prevent the use, publication or disclosure of any Confidential Information obtained by, or which has come to the knowledge of, Executive before, on and after the date hereof. For purposes of the foregoing, the parties acknowledge and agree that overseeing, supervising, consulting with or advising others with respect to the acquisition or disposition of producing or non-producing leasehold, mineral interests or royalty interests (including, without limitation, farm-ins, farm-out, poolings, leasing activities, unitizations and similar activities), during the 12-month period commencing on the Termination Date, solely as relates to any county or parish in which the Company conducts oil and gas operations on the Termination Date will necessarily require and be deemed hereby to constitute the use and/or disclosure of Confidential Information in violation of the covenant set forth in this Section 4(a). For avoidance of doubt and notwithstanding the foregoing provisions of the immediately preceding sentence, following the 12-month anniversary of the Termination Date (but not before such time), Executives retention of Executives mental impressions of Confidential Information, without conscious memorization or subsequent reference to Confidential Information, will not preclude the activities described in the immediately preceding sentence.
(b) Non-Solicitation. Executive shall not, for a period of 12 months following the Termination Date (the Non-Solicitation Period), either personally or by directing, assisting or encouraging his or her agent and whether for himself or herself or on behalf of any other person or entity, directly or indirectly hire or solicit any employee or consultant of the Employer, including by attempting, directly or indirectly, to persuade any such employee or consultant to discontinue
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his or her status of employment or consultancy with the Employer to become an employee or consultant of any other person or entity. Additionally, during the Non-Solicitation Period, Executive shall not, for himself or on behalf of any person or entity, directly solicit any established customer of the Employer or the Company for the purpose of causing such customer to purchase goods, services or a combination of goods and services from another person or entity in lieu of goods, services or a combination thereof from the Employer or the Company. For purposes of this Agreement, an established customer shall be given the broadest possible interpretation under Oklahoma law. Nothing contained in this provision is intended to prohibit general advertising or solicitation not specifically directed at any or all of the Employers or the Companys customers or employees.
(c) Non-Competition.
(i) As part of the consideration for the severance benefits to be paid to Executive hereunder, to protect the trade secrets and Confidential Information of the Company and its customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and through Executive and the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as an additional incentive for the Company to enter into this Agreement, during the Term, Executive shall not directly or indirectly, individually or on behalf of any other person or entity, manage, participate in, work for, consult with, render services for, or take an interest in (as an owner, stockholder, partner or lender) (i) any Competitor in an area of Competing Business or (ii) any entity for the purposes of evaluating an investment or financing activity in any counties in which the Company or the Employer operates.
(ii) For purposes of Section 4(c)(i):
(A) Competitor means any business, company or individual that is in, or is actively seeking to be in, the Competing Business in any county or parish in which the Company or the Employer operates.
(B) Competing Business means the acquisition, exploration, exploitation, development, production and/or operation of oil and gas properties.
(iii) Executive acknowledges that each of the covenants of Section 4(c)(i) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 4. Executive agrees that the scope of prohibited activities and time duration of each of the covenants set forth in Section 4(c)(i) are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of the Companys proprietary and Confidential Information, plans and services and to protect the other legitimate business interests of the Company, including, without limitation, the goodwill developed by Executive with the Companys customers, suppliers, licensees and business relations. It is also the intent of the Company and Executive that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company throughout the term of this covenant. The covenants in Section 4(c)(i) are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope or duration set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and this Agreement shall thereby be reformed.
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(iv) Nothing in this Section 4(c) shall prohibit: (A) direct or indirect ownership of publicly traded securities which are issued by a Competitor involved in or conducting a Competing Business, provided that Executive, directly or indirectly, does not own more than 5% of the outstanding equity or voting securities of such Competitor; (B) ownership of royalty interests where Executive owns the surface of the land covered by the royalty interest and the ownership of the royalty interest is incidental to the ownership of such surface estate, provided that any such surface estate does not adjoin, or is not near to, any property ownership interest held directly or indirectly by the Company; (C) direct or indirect ownership of royalty interests or overriding royalty interests owned prior to the date of this Agreement; or (D) direct or indirect ownership of working interests or other interests in oil and gas owned prior to date of this Agreement and disclosed by Executive to the Company in writing.
(v) For the avoidance of doubt, Executive will have no continuing obligations under this Section 4(c) following the 12-month anniversary of the Termination Date.
(d) Non-Disparagement. Following the termination of Executives employment for any reason, Executive shall not disparage the Employer, the Company, or any of their Affiliates, including any of the officers or directors, or the reputation of such entities.
(e) Cooperation. Upon reasonable request, Executive agrees to cooperate with the Company and the Employer and all individuals employed by the Company or the Employer in any and all matters relating to the Company or the Employer, including cooperation in any transition of his or her duties as an employee of the Employer or any Affiliate thereof, as well as any ongoing investigations by the Securities and Exchange Commission (the SEC) and related investigations or any other related matters at the request of the Company or the Employer.
(f) Obligations of Executive Upon Termination. Upon termination of Executives employment for any reason, Executive shall return to the Employer all property of the Company, Employer, and their Affiliates, including, without limitation, all documents and copies, including, without limitation, hard and electronic copies, of documents in his or her possession or under his or her control relating to any Confidential Information including, but not limited to, internal and external business forms, manuals, correspondence, notes and computer programs, and Executive shall not make or retain any copy or extract of any of the foregoing. In addition, Executive shall resign from all positions held with the Company, the Employer, and their Affiliates.
(g) Remedies. Executive acknowledges and understands that Section 4(a), Section 4(b), and the other provisions of this Agreement are of a special and unique nature, the loss of which cannot be adequately compensated for in damages by an action at law, and that the breach or threatened breach of the provisions of this Agreement would cause the Company, the Employer, and their Affiliates irreparable harm. In the event of a breach or threatened breach by
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Executive of the provisions of this Agreement, the Company, the Employer, and their Affiliates, as applicable, shall be entitled to an injunction restraining him from such breach in addition to other appropriate equitable and legal relief. Nothing contained in this Agreement shall be construed as prohibiting the Company, the Employer, or their Affiliates from pursuing, or limiting their ability to pursue, any other remedies available for any breach or threatened breach of this Agreement by Executive, including, without limitation, the right to repayment of any Severance Payment (net of any taxes Executive has paid or is required to pay in respect thereof) already paid to Executive as contemplated by Section 3 of the Severance Plan. If Executives employment is terminated by the Employer for Cause or by Executive without Good Reason, then, in the event of a material breach by Executive of the terms of Section 4, Executive shall pay the Employer an amount equal to 150% of the sum of Executives Base Salary and target Annual Bonus for the year in which the Termination Date occurs. Notwithstanding anything to the contrary in this Agreement, the Company and the Employer may amend the provisions of Section 4 without the approval of Executive or any other person to provide for less restrictive limitations as to time, geographical area, or scope of activity to be restrained. Any such less restrictive limitations may, in sole discretion of the Company and the Employer, apply only with respect to the enforcement of this Agreement in certain jurisdictions specified in any such amendment. At the request of the Company or the Employer, Executive shall consent to any such amendment and shall execute and deliver to the Company and the Employer a counterpart signature page to such amendment; provided, however, that Executives failure to do so shall not impact the validity of the amendment.
(h) After-Acquired Evidence. Notwithstanding any provision of this Agreement to the contrary, if the Company or the Employer determines that Executive is eligible to receive any Severance Payment payable under Section 3 of the Severance Plan, but, after such determination, the Company or the Employer within the subsequent twenty-four (24) months acquire evidence that (i) Executive has materially breached the terms of Section 4; or (ii) one or more of clauses (ii), clause (iv) and, to the extent such breach was willful, clause (viii) in the Severance Plans definition of Cause existed prior to the Termination Date that has subsequently resulted in material injury to the Company, and had the Employer been aware of all material facts relating to such condition, would have given the Employer the right to terminate Executives employment for Cause, then, in each case, the Company and the Employer shall have the right to cease payment of any future installments of such Severance Payments and prompt repayment of any portion of the Severance Payment (net of any taxes Executive has paid or is required to pay in respect thereof) already paid to Executive as contemplated by Section 3 of the Severance Plan.
(i) Clawback. To the extent required by applicable law or any applicable securities exchange listing standards, amounts paid or payable under this Agreement shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company, the Employer, or their Affiliates, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement. Notwithstanding any provision of this Agreement to the contrary, and to the extent required by applicable law or any applicable securities exchange listing standards, the Company and the Employer reserve the right, without the consent of Executive, to adopt any such clawback policies and procedures, including, without limitation, such policies and procedures applicable to this Agreement with retroactive effect.
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(j) Protected Activities. Nothing in this Agreement is intended to, or does, prohibit Executive from (i) filing a charge or complaint with, providing truthful information to, or cooperating with an investigation being conducted by a governmental agency (such as the Equal Employment Opportunity Commission, another other fair employment practices agency, the National Labor Relations Board, the Department of Labor, or the SEC); (ii) engaging in other legally-protected activities; (iii) giving truthful testimony or making statements under oath in response to a subpoena or other valid legal process or in any legal proceeding; (iv) otherwise making truthful statements as required by law or valid legal process; or (v) disclosing a trade secret in confidence to a governmental official, directly or indirectly, or to an attorney, if the disclosure is made solely for the purpose of reporting or investigating a suspected violation of law. Accordingly, Executive understands that he or she shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive likewise understands that, in the event he or she files a lawsuit for retaliation by the Company or the Employer for reporting a suspected violation of law, he or she may disclose the trade secret(s) of the Company or the Employer to his attorney and use the trade secret information in the court proceeding, if he or she (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order. In accordance with applicable law, and notwithstanding any other provision of this Agreement, nothing in this Agreement or any of any policies or agreements of the Company, the Employer, or their Affiliates applicable to Executive (i) impedes his or her right to communicate with the SEC or any other governmental agency about possible violations of federal securities or other laws or regulations or (ii) requires him to provide any prior notice to the Company, the Employer, or their Affiliates or obtain their prior approval before engaging in any such communications.
5. Not a Contract for Employment; Survival. This Agreement does not entitle Executive to employment with the Employer, the Company, or any of their respective Affiliates for any specified duration. Executives employment is at will and may be terminated by either party at any time for any or no reason, with or without notice. This Agreement shall survive any such employment termination and any termination of Executives participation in the Severance Plan.
6. Counterparts. This Agreement may be executed and delivered (including by email transmission or other customary means of electronic transmission (e.g., pdf) in one or more counterparts, all of which shall be considered one and the same instrument.
7. Adequacy of Consideration. Executive acknowledges and agrees that the Severance Benefits to which Executive may be eligible under the Severance Plan are good, valuable, and adequate consideration to which Executive would not be entitled if Executive did not enter into this Agreement and the Severance Plan, or if Executive does not abide by the provisions of this Agreement and the Severance Plan, including the Restrictive Covenants contemplated in Section 4.
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8. Governing Law; Entire Agreement; Amendment. The validity, interpretation, and construction of this Agreement shall be governed by the laws of Oklahoma without regard to its principles of conflicts law. This Agreement and the Severance Plan constitute the complete agreement between Executive and the Employer or the Company concerning the subject matter therein and they supersede and replace in its entirety any prior written or oral understandings entered into between Executive and the Employer or the Company relating to severance or similar pay. For the avoidance of doubt, and subject to Section 4(j) above, nothing in this Agreement shall limit, restrict or supersede any fiduciary, statutory, tort or other non-contractual obligations of Executive to the Employer or the Company any of their respective Affiliates (including without limitation under any applicable trade secrets laws), or any obligations of the Employee under any code of conduct, other applicable rule or policy of the Employer or the Company or any of their respective Affiliates, or any obligations (including with respect to non-competition, non-solicitation, intellectual property, confidentiality) that Executive has or may have pursuant to any plan, policy, or agreement with the Employer or the Company any of their respective, all of which shall continue in full force and effect in accordance with their respective terms. This Agreement may only be amended in a writing signed by all parties.
[Signature Page Follows]
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