EXHIBIT 10.14
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into as of the
28th day of June, 2000, by and among TRITON EXPLORATION SERVICES, INC. (the
"Employer"), the individual signatory hereto ("Employee"), and Triton Energy
Limited, a Cayman Islands company (the "Company"), to the limited extent
provided herein,
W I T N E S S E T H:
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WHEREAS, the Employer is a direct or indirect wholly owned subsidiary of
the Company;
WHEREAS, the Employer and the Company consider the establishment and
maintenance of a sound and vital management to be essential to protecting and
enhancing their best interests and the best interests of their respective
shareholders;
WHEREAS, the Employer and the Company recognize that, because the Company
is a publicly held company and as is the case with many such companies, the
possibility of a change in control may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of management personnel to the detriment of the
Employer and the Company and their respective shareholders;
WHEREAS, the Boards of Directors of the Employer and the Company have
determined that appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the Employer's management,
including Employee, to their assigned duties without distraction in the face of
the potentially disturbing circumstances arising from the possibility of a
change in control of the Company; and
WHEREAS, in order to induce Employee to remain in the employ of the
Employer, the Employer is willing to agree to provide certain severance benefits
to Employee in the event Employee's employment is terminated subsequent to a
change in control of the Company under the circumstances described below and the
Company is willing to guarantee the performance of the Employer's obligations
hereunder;
NOW, THEREFORE, in consideration of the mutual premises and conditions
contained herein, the parties hereto agree as follows:
1. TERM
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1.1 Contract Term. This Agreement shall commence on the date
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hereof, and shall continue until January 1, 2001; provided, however, that
commencing January 1, 2001 and each January 1 thereafter the term of this
Agreement shall automatically be extended for an additional year unless (i)
there has been no change in control of the Company and (ii) no fewer than thirty
(30) days prior to such January 1st date, the Employer shall have given notice
that it does not wish to extend this Agreement.
1.2 Consideration by Employee. In consideration of the Employer's
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entering into this Agreement, Employee hereby agrees that, for the period
commencing on the date hereof and extending through the termination date of this
Agreement, Employee will not voluntarily terminate employment with the Employer,
except in the event of (i) a change in control of the Company as provided
herein, (ii) a substantial change in Employee's position, duties, compensation
or benefits which would be deemed "Good Reason" for Employee to terminate
Employee's employment in accordance with Section 3.3 if there were a change in
control of the Company, or (iii) the Employer's consenting to such termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this
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Agreement unless there shall have been a change in control of the Company, as
set forth below, and Employee's employment with the Employer (or any other
direct or indirect subsidiary of the Company) shall thereafter have been
terminated within two (2) years following the date of such change in control in
accordance with Section 3 below. For purposes of this Agreement, a "change in
control of the Company" shall mean the occurrence of any of the following
events: (i) there shall be consummated (x) any consolidation, amalgamation,
merger or other form of business combination of the Company, or to which the
Company is a party, in which (I) the Company is not the continuing or surviving
corporation or (II) where the Company is the continuing or surviving
corporation, the Company's Ordinary Shares would be converted into cash,
securities or other property, or the holders of the Company's Ordinary Shares
immediately prior to the consolidation, amalgamation, merger or other form of
business combination would represent less than a majority of the common stock or
ordinary shares of the surviving corporation immediately after the
consolidation, amalgamation, merger or other form of business combination, or
(y) any sale, lease, exchange or other transfer (excluding transfer by way of
pledge or hypothecation), in one transaction or a series of related
transactions, of all, or substantially all, of the assets of the Company, (ii)
the shareholders of the Company approve any plan or proposal for the liquidation
or dissolution of the Company, (iii) any "person" (as such term is defined in
Section 3(a)(9) or Section 13(d)(3) under the Securities Exchange Act of 1934,
as amended (the "1934 Act")) or any "group" (as such term is used in Rule 13d-5
promulgated under the 1934 Act), other than the Company or any successor of the
Company or any subsidiary of the Company or any employee benefit plan of the
Company or any subsidiary (including such plan's trustee), becomes a beneficial
owner for purposes of Rule 13d-3 promulgated under the 1934 Act, directly or
indirectly, of securities of the Company representing 25.0% or more of the
Company's then outstanding securities having the right to vote in the election
of Directors of the Company, or (iv) during any period of two consecutive years,
individuals who, at the beginning of such period constituted the entire Board of
Directors of the Company (the "Board", and such individuals being referred to as
the "Incumbent Directors"), cease for any reason (other than death) to
constitute a majority of the Directors of the Company, unless the election, or
the nomination for election, by the Company's shareholders, of each new Director
of the Company was approved by a vote of at least two-thirds of the Incumbent
Directors (so long as such new Director was not nominated by a person who
expressed an intent to effect a change in control of the Company or engage in a
proxy or other control contest) in which case such new Director shall be
considered an Incumbent Director.
3. TERMINATION OF EMPLOYMENT FOLLOWING CHANGE IN CONTROL. If a change
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in control of the Company shall have occurred, Employee shall be entitled to the
benefits provided in Section 4 hereof upon the subsequent termination of
Employee's employment, provided that such termination (a) occurs within two (2)
years following a change in control of the Company and (b) is not (i) because of
Employee's death, "Disability" or "Retirement" (as defined in Section 3.1
below), (ii) by the Employer for "Cause" (as defined in Section 3.2 below), or
(iii) by Employee other than for "Good Reason" (as defined in Section 3.3
hereof).
3.1 Disability; Retirement
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3.1-1 If, as a result of Employee's incapacity due to physical
or mental illness, Employee shall have been absent from Employee's duties with
the Employer on a full-time basis for 120 consecutive business days, and within
thirty (30) days after written notice of termination is given Employee shall not
have returned to the full-time performance of Employee's duties, the Employer
may terminate Employee's employment for "Disability."
3.1-2 Termination by Employee of Employee's employment based on
"Retirement" shall mean termination in accordance with the Employer's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with
Employee's consent with respect to Employee.
3.2 Cause. The Employer may terminate Employee's employment for
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"Cause." For the purposes of this Agreement, the Employer shall have "Cause" to
terminate Employee's employment hereunder upon (A) the willful and continued
failure by Employee to perform Employee's duties with the Employer (other than
any such failure resulting from incapacity due to physical or mental illness),
after a demand for substantial performance is delivered to Employee by the Board
which specifically identifies the manner in which the Board believes that
Employee has not substantially performed Employee's duties, or (B) the willful
engaging by Employee in gross misconduct materially and demonstrably injurious
to the Company. For purposes of this paragraph, an act, or failure to act, on
Employee's part shall not be considered "willful" if done, or omitted to be
done, by Employee (A) in good faith and (B) with reasonable belief that
Employee's action or omission was not opposed to the best interests of the
Company. Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
Employee a copy of a resolution duly adopted by the affirmative vote of not less
than two-thirds (2/3d's) of the entire authorized membership of the Board at a
meeting of the Board called and held for the purpose (after reasonable notice
and an opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board Employee was guilty
of conduct set forth above in clauses (A) or (B) of the second sentence of this
paragraph and specifying the particulars thereof in detail.
3.3 Good Reason. Employee may terminate Employee's employment for
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Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
3.3-1 Without Employee's express written consent, the assignment
to Employee of any duties inconsistent with Employee's positions, duties,
responsibilities and status with the Employer and the Company immediately prior
to a change in control of the Company, or a change in Employee's reporting
responsibilities, titles or offices with the Employer or the Company as in
effect immediately prior to a change in control of the Company, or any removal
of Employee from or any failure to re-elect Employee to any of such positions,
except in connection with the termination of Employee's employment for Cause,
Disability or Retirement or as a result of Employee's death or by Employee other
than for Good Reason;
3.3-2 A reduction by the Employer in Employee's base salary as
in effect on the date hereof or as the same may be increased from time to time;
3.3-3 The Employer's requiring Employee to be based anywhere
other than the Employer's offices at which Employee was based immediately prior
to a change in control of the Company except for required travel on the
Employer's business to an extent substantially consistent with Employee's
present business travel obligations, or, in the event Employee consents to any
relocation, the failure by the Employer to pay (or reimburse Employee) for all
reasonable moving expenses incurred by Employee relating to a change of
Employee's principal residence in connection with such relocation and to
indemnify Employee against any loss (defined as the difference between the
actual sale price of such residence and the higher of (a) Employee's aggregate
investment in such residence or (b) the fair market value of such residence as
determined by a real estate appraiser designated by Employee and reasonably
satisfactory to the Employer) realized on the sale of Employee's principal
residence in connection with any such change of residence;
3.3-4 The failure by the Employer or the Company to continue in
effect any benefit or compensation plan (including but not limited to any stock
option plans, convertible debenture plan, pension plan, life insurance plan,
health and accident plan or disability plan) in which Employee is participating
at the time of a change in control of the Company (or plans providing
substantially similar benefits), the taking of any action by the Employer or the
Company which would adversely affect Employee's participation in or materially
reduce Employee's benefits under any of such plans or deprive Employee of any
material fringe benefit enjoyed by Employee at the time of the change in control
of the Company, or the failure by the Employer to provide Employee with the
number of paid vacation days to which Employee is then entitled on the basis of
years of service with the Employer in accordance with the Employer's normal
vacation policy in effect on the date hereof;
3.3-5 Any failure of the Employer or the Company to obtain the
assumption of and the agreement to perform this Agreement by any successor as
contemplated in Section 6 hereof; or
3.3-6 Any purported termination of Employee's employment which
is not effected pursuant to a Notice of Termination satisfying the requirements
of Section 3.4 below (and, if applicable, Section 3.2 above); and for purposes
of this Agreement, no such purported termination shall be effective.
3.4 Notice of Termination. Any termination by the Employer
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pursuant to Sections 3.1 and 3.2 above or by Employee pursuant to Section 3.3
above shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Employee's employment under the
provision so indicated. In the event that Employee seeks to terminate
Employee's employment with the Employer pursuant to Section 3.3 above, Employee
must communicate Employee's written Notice of Termination to the Employer within
sixty (60) days of being notified of such action or actions by the Employer or
the Company which constitute Good Reason for termination.
3.5 Date of Termination. "Date of Termination" shall mean (i) if
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this Agreement is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that Employee shall not have returned to the
performance of Employee's duties on a full-time basis during such thirty (30)
day period); (ii) if Employee's employment is terminated for Cause, the date on
which a Notice of Termination is given or the date on which there shall have
been delivered to Employee the resolution specified in Section 3.2, whichever is
later; (iii) if Employee's employment is terminated pursuant to Section 3.3
above, the date that is specified in the Notice of Termination; and (iv) if
Employee's employment is terminated for any other reason, the date on which a
Notice of Termination is given; provided that, if within thirty (30) days after
any Notice of Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
4. COMPENSATION UPON TERMINATION OR DURING DISABILITY. If a change in
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control of the Company shall have occurred and the other conditions in the first
paragraph of Section 3 are met, Employee shall be entitled to the following:
4.1 Disability. During any period that Employee fails to perform
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Employee's duties hereunder as a result of incapacity due to physical or mental
illness, Employee shall continue to receive Employee's full base salary at the
rate then in effect and any installments of deferred portions of awards under
any applicable incentive, bonus or other plans paid during such period until
Employee's employment is terminated pursuant to Section 3 hereof. Thereafter,
Employee's benefits in respect of Employee's disability shall be determined in
accordance with the Employer's Long-Term Disability Income Insurance Plan, or a
substitute plan, and any other plans providing for the disability of a
participant then in effect.
4.2 Termination for Cause. If Employee's employment shall be
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terminated for Cause, the Employer shall pay Employee Employee's full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and the Employer shall have no further obligations to
Employee to make any payments under this Agreement.
4.3 Termination Without Cause; Termination for Good Reason. If the
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Employer shall terminate Employee's employment other than pursuant to Sections
3.1 or 3.2 hereof or if Employee shall terminate Employee's employment for Good
Reason, then the Employer shall pay to Employee as severance pay in a lump sum
in cash not later than the tenth (10th) day following the Date of Termination,
the following amounts:
4.3-1 Employee's full base salary through the Date of
Termination at the rate in effect at the time of Notice of Termination is given;
4.3-2 In lieu of any further salary or bonus payments to
Employee for periods subsequent to the Date of Termination, an amount equal to
the product of (a) the number two (2) times (b) the sum of (i) the highest of
Employee's annual base salary in effect at any time from the two years prior to,
through and including, the Date of Termination plus (ii) the greater of (x) the
highest of the aggregate bonuses paid to Employee during any fiscal year all or
a part of which was included in the foregoing two year period and (y) 15% times
the highest of Employee's annual base salary in effect at any time from the two
years prior to, through and including, the Date of Termination plus (iii) the
highest of the aggregate contributions made by the Employer on Employee's behalf
in respect of Employee's participation in any 401(k) plan or plans of the
Employer during any fiscal year all or a part of which was included in the
foregoing two year period;
4.3-3 In lieu of ordinary shares of the Company ("Company
Shares") issuable upon exercise of options ("Options"), if any, granted to
Employee under the Company's stock option plans (which Options shall be canceled
upon the making of the payment referred to below), Employee shall receive an
amount in cash equal to the aggregate spread between the exercise prices of all
Options held by Employee whether or not then fully exercisable, and the highest
price per Company Share actually paid in connection with any change in control
of the Company (such price being hereinafter referred to as "Termination Price")
and the Employer shall, if requested by Employee, purchase all Debentures
(herein so called) theretofore purchased by Employee under the Company's
convertible debenture plans, regardless of whether such Debentures are then
convertible, in cash in an amount equal to the aggregate spread between the
conversion price of the Debentures held by Employee and the Termination Price
times the number of Company Shares into which the Debentures are convertible
(assuming such Debentures were fully vested); and
4.3-4 All relocation and indemnity payments as set forth in
Section 3.3-4 hereof, and all legal fees and expenses incurred by Employee as a
result of such termination (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination or in seeking to obtain
or enforce any right or benefit provided by this Agreement).
4.4 Benefit Plans. Unless Employee is terminated for Cause, the
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Employer shall maintain in full force and effect for the continued benefit of
Employee, for a two-year period after the Date of Termination, all employee
benefit plans and programs or arrangements in which Employee was entitled to
participate immediately prior to the Date of Termination (at no greater cost or
expense to Employee than was the case immediately prior to the change in control
of the Company), including without limitation plans providing medical, dental,
life and disability insurance coverage, provided that Employee's continued
participation is possible under the general terms and provisions of such plans
and programs. In the event that Employee's participation in any such plan or
program is not possible, the Employer shall arrange to provide Employee, at the
Employer's cost and expense, with benefits substantially similar to those which
Employee is entitled to receive under such plans and programs. At the end of
the period of coverage, Employee shall have the option to have assigned to
Employee at no cost and with no appointment of prepaid premiums, any assignable
insurance policy owned by the Employer or the Company and relating specifically
to Employee.
4.5 Additional Benefits. If the Employer shall terminate Employee's
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employment other than pursuant to Section 3.1 or 3.2 hereof or if Employee shall
terminate Employee's employment for Good Reason, then in addition to the
benefits to which Employee is entitled under the retirement plans or programs in
which Employee participates or any successor plans or programs in effect on the
date of termination of Employee's employment hereunder, the Employer shall pay
Employee, not later than the tenth (10th) day following the Date of Termination,
in cash an amount equal to the difference between (a) the present value of the
most valuable retirement pension to which Employee would have been entitled
under the terms of the retirement plans or programs in which Employee
participates (or any successor plans or programs in effect on the Date of
Termination hereunder) without regard to "vesting" thereunder, if Employee would
have accumulated three (3) additional years of continuous credited service after
the Date of Termination under such retirement plans or programs and (b) the
present value of the most valuable retirement pension which Employee is actually
entitled to receive pursuant to the provisions of said retirement plans and
programs. For purposes of this Section 4.5, "present value" shall be determined
using the same methods and assumptions (including compensation increase
assumptions during such additional three year period) utilized under the
Employer's retirement plans and programs immediately prior to the change in
control of the Company.
4.6 Automobiles. Upon Employee's termination for any reason, the
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Employer shall enable Employee to purchase the automobile, if any, which the
Employer or the Company was providing for Employee's use at the time Notice of
Termination was given at the wholesale value of such automobile at such time.
4.7 Mitigation of Amounts Payable Hereunder. Employee shall not
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be required to mitigate the amount of any payment provided for in this Section 4
by seeking other employment or otherwise, nor shall the amount of any payment
provided for in this Section 4 be reduced by any compensation earned by Employee
as the result of employment by another employer after the Date of Termination,
or otherwise.
Prior to the occurrence of a change in control of the Company, the termination
of employment of Employee, and any payments or benefits in respect of such
termination, shall be governed by the policies and plans of the Employer and the
Company in effect at the time of termination.
5. EXCISE TAXES.
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5.1 In the event that any payment or benefit received or to be
received by Employee pursuant to the terms of this Agreement (the "Contract
Payments") or in connection with Employee's termination of employment or
contingent upon a change in control of the Company pursuant to any plan or
arrangement or other agreement with the Employer or the Company (or any
affiliate) ("Other Payments" and, together with the Contract Payments, the
"Payments"), would be subject to the excise tax (the "Excise Tax"), imposed by
Section 4999 of the Code, as determined as provided below, the Employer shall
pay to Employee, at the time specified in Section 5.2 below, an additional
amount (the "Gross-Up Payment") such that the net amount retained by Employee,
after deduction of the Excise Tax on Contract Payments and Other Payments and
any federal, state and local income or other tax and Excise Tax upon the payment
provided for by this Section 5.1, and any interest, penalties or additions to
tax payable by Employee with respect thereto, shall be equal to the total
present value of the Contract Payments and Other Payments at the time such
Payments are to be made. For purposes of determining whether any of the
Payments will be subject to the Excise Tax and the amounts of such Excise Tax,
(1) the total amount of the Payments shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code shall be treated
as subject to the Excise Tax, except to the extent that, in the opinion of
independent tax counsel selected by the Employer's independent auditors and
reasonably acceptable to Employee ("Tax Counsel"), a Payment (in whole or in
part) does not constitute a "parachute payment" within the meaning of Section
280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in
part) are not subject to the Excise Tax, (2) the amount of the Payments that
shall be treated as subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Payments or (B) the amount of "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code (after applying
clause (1) hereof), and (3) the value of any noncash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the
principles of Section 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Employee shall be deemed to pay
federal income tax at the highest marginal rates of federal income taxation
applicable to individuals in the calendar year in which the Gross-Up Payment is
to be made and state and local income taxes at the highest effective rates of
taxation applicable to Employee in the calendar year in which the Gross-Up
Payment is to be made, net of the maximum reduction in federal income taxes that
can be obtained from deduction of such state and local taxes, taking into
account any limitations applicable to individuals subject to federal income tax
at the highest marginal rates.
5.2 Gross-Up Payments provided for in Section 5.1 hereof shall be
made upon the earlier of (i) the payment to Employee of any Contract Payment or
Other Payment or (ii) the imposition upon Employee or payment by Employee of any
Excise Tax.
5.3 The Employee shall notify the Employer in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Employer of a Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than 20 business days after the Employee is informed
in writing of such claim and shall apprise the Employer of the nature of such
claim and the date on which such claim is requested to be paid. The Employee
shall not pay such claim prior to expiration of the 30 day period following the
date on which the Employee gives such notice to the Employer (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Employer notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim the Employee
shall:
i) give the Employer any information reasonably requested by the
Employer relating to such claim;
ii) take such action in connection with contesting such claim as
the Employer shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Employer and reasonably satisfactory to
the Employee;
iii) cooperate with the Employer in good faith in order to effectively
contest such claim; and
iv) permit the Employer to participate in any proceedings relating to
such claim;
provided, however, that the Employer shall bear and pay directly all costs
and expenses (including, but not limited to, additional interest and penalties
and related legal, consulting or other similar fees) incurred in connection with
such contest, and shall indemnify and hold the Employee harmless, on an
after-tax basis, for any Excise Tax or other tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses.
5.4 The Employer shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Employee to pay the tax claimed and sue for a refund or contest the claim in
any permissible manner, and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Employer shall
reasonably determine; provided, however, that if the Employer directs the
Employee to pay such claim and sue for a refund, the Employer shall advance the
amount of such payment to the Employee on a interest-free basis, and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax or other tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and provided, further, that if the Employee is required to
extend the statute of limitations to enable the Employer to contest such claim,
the Employee may limit this extension solely to such contested amount. The
Employer's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority. In addition, no
position may be taken nor any final resolution be agreed to by the Employer
without the Employee's consent if such position or resolution could reasonably
be expected to adversely affect the Employee (including any other tax position
of the Employee unrelated to the matters covered hereby).
5.5 As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Employer or the
Tax Counsel hereunder, it is possible that Gross-Up Payments which will not have
been made by the Employer should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder In the event that the
Employer exhausts its remedies and the Employee thereafter is required to pay to
the Internal Revenue Service an additional amount in respect of any Excise Tax,
the Employer or the Tax Counsel shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall promptly be paid by the
Employer to or for the benefit of the Employee.
5.6 If, after the receipt by Employee of the Gross-Up Payment or
an amount advanced by the Employer in connection with the contest of an Excise
Tax claim, the Employee becomes entitled to receive any refund with respect to
such claim, the Employee shall promptly pay to the Employer the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Employee of an amount
advanced by the Employer in connection with an Excise Tax claim, a determination
is made that Employee shall not be entitled to any refund with respect to such
claim and the Employer does not notify the Employee in writing of its intent to
contest the denial of such refund prior to the expiration of 30 days after such
determination, such advance shall be forgiven and shall not be required to be
repaid.
6. SUCCESSORS; BINDING AGREEMENT.
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6.1 Successors of the Company. The Employer and the Company will
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require any successor (whether direct or indirect, by purchase, amalgamation,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Employer and/or the Company, by agreement in form and
substance satisfactory to Employee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Employer and
the Company would be required to perform it if no such succession had taken
place. Failure of the Employer and the Company to obtain such agreement prior
to the effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Employer in the same amount
and on the same terms as Employee would be entitled hereunder if Employee
terminated Employee's employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
the terms, "Employer" and "the Company", shall include any successor to the
business and/or assets of the Employer and/or the Company as aforesaid which
executes and delivers the agreement provided for in this Section 6 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
6.2 Employee's Heirs, etc. This Agreement shall inure to the benefit
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of and be enforceable by Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts would still be payable to
Employee hereunder as if Employee had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee, or other designee or, if there be
no such designee, to Employee's estate.
7. NOTICE. For the purposes of this Agreement, notices and all other
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communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, or by overnight
courier service. All notices to the Employer shall be directed to the attention
of the Chief Executive Officer of the Employer with a copy to the Secretary of
the Employer, at 6688 N. Central Expressway, Suite 1400, Dallas, Texas 75206,
and all notices to the Company shall be directed to the President of the Company
in care of the Employer at such address. All notices to Employee shall be
directed to the address set forth on the signature page of this Agreement. Any
party to this Agreement may change the address for notice by specifying in
writing such new address pursuant to a notice duly delivered in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
8. MISCELLANEOUS. No provisions of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee, the Employer and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement constitutes the entire agreement of
the parties regarding the subject matter hereof, and supersedes all prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
9. VALIDITY. The invalidity or unenforceability of any provisions of
--------
this Agreement shall not effect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
-----------------------------
and construed under the laws of the State of Texas. The Employer and the Company
hereby irrevocably submit to the jurisdiction of any Texas State or Federal
court sitting in the Northern District of Texas, and the jurisdiction of any
arbitration panel constituted pursuant to Section 12 hereof, over any action,
proceeding or arbitration arising out of or relating to this Agreement and the
Employer and the Company hereby irrevocably agree that all claims in respect of
such action or proceeding may be heard and determined in such Texas State or
Federal court or arbitration proceeding.
12. ARBITRATION. Any dispute or controversy arising under or in
-----------
connection with this Agreement shall be settled exclusively by arbitration in
Dallas, Texas (in accordance with the rules of the American Arbitration
Association then in effect). Notwithstanding the pendency of any such dispute
or controversy, the Employer will continue to pay Employee Employee's full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary and installments under incentive,
bonus or other plans) and continue Employee as a participant in all
compensation, benefit and insurance plans in which Employee was participating
when the notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with Section 3.5 hereof. Amounts paid under this
paragraph are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement. Judgment may be entered on the arbitrator's award in any court
having jurisdiction; provided, however, that Employee shall be entitled to seek
specific performance of Employee's right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
13. CAPTIONS AND GENDER. The use of captions and Section headings herein
--------------------
is for the purposes of convenience only and shall not effect the interpretation
or substance of any provisions contained herein. Similarly, the use of the
masculine gender with respect to pronouns in this Agreement is for purposes of
convenience and includes either sex who may be a signatory.
14. LEGAL FEES. The Employer shall pay Employee, no less frequently than
-----------
monthly, all legal fees and expenses reasonably incurred by Employee in
connection with this Agreement (including all such fees and expenses, if any,
incurred in contesting or disputing the nature of any such termination for
purposes of this Agreement or in seeking to obtain or enforce any right or
benefit provided by this Agreement, but excluding any legal fees and expenses
relating to a claim brought by Employee that a court has determined (in a final,
non-appealable judgment) to be brought in bad faith).
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date and year first above written.
TRITON EXPLORATION SERVICES, INC.
By: /s/James C. Musselman
_________________________________________
James C. Musselman, President and
Chief Executive Officer
_________________________________________
(Employee's Signature)
_________________________________________
(Employee's Printed Name)
Employee's Address for Notice:
_________________________________________
_________________________________________
_________________________________________
JOINDER OF THE COMPANY
The Company hereby joins in this Agreement for the purpose of guaranteeing,
and the Company does hereby unconditionally guarantee, to Employee the due and
prompt performance by the Employer, or its successors and assigns as provided
herein (the "Obligor") of the Obligor's obligations hereunder and covenanting,
and the Company does hereby covenant, with Employee to be bound by the
agreements of the Company as set forth herein. In case of the failure of the
Obligor to punctually perform any obligation under this Agreement, including the
making of any payment hereunder, the Company hereby agrees to cause any such
obligation to be promptly performed when and as the same shall be due. The
Company hereby agrees that its obligations hereunder shall be as if it were
principal obligor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any provision of this Agreement, any failure
to enforce the provisions of this Agreement, or any waiver, modification or
indulgence granted to the Obligor with respect thereto, by the Employee, or any
other circumstance which may otherwise constitute a legal or equitable discharge
of a surety or guarantor. The Company hereby waives diligence, presentment,
demand, any right to require a proceeding first against the Obligor, and all
demands whatsoever, and covenants that its obligations under this Agreement will
not be discharged except by performance in full of the Obligor's obligations
hereunder. The agreements of the Company hereunder shall inure to the benefit of
and be enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
TRITON ENERGY LIMITED
By:/s/James C. Musselman
___________________________________
James C. Musselman, President and
Chief Executive Officer
