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
August 12, 2013
Date of Report (Date of earliest event reported)
Bonanza Creek Energy, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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001-35371 |
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61-1630631 |
(State or other jurisdiction of |
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(Commission File No.) |
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(I.R.S. employer identification |
410 17th Street, Suite 1400
Denver, Colorado 80202
(Address of principal executive offices, including zip code)
(720) 440-6100
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b), (c) and (e) Bonanza Creek Energy, Inc. (the Company) announced on August 12, 2013, that it has hired William J. Cassidy to serve as the Companys Executive Vice President and Chief Financial Officer, and Anthony G. Buchanon, currently serving as the Companys Vice President Rocky Mountain Engineering, has been promoted by the Companys Board of Directors (the Board) to the position of Executive Vice President and Chief Operating Officer. Mr. Cassidys appointment will be effective on September 2, 2013, and Mr. Buchanons appointment is effective on August 12, 2013. Messrs. Cassidy and Buchanon are referred to collectively herein as the Executive Officers and each individually as an Executive Officer.
Mr. Cassidy, 47, has served as Global Head of Finance and Treasury for Puma Energy, a midstream and downstream oil and gas company and subsidiary of the commodity trading multinational Trafigura Beheer BV, since 2013. From 2009 to 2013, Mr. Cassidy was a Principal at RPA Capital, LLC, an asset management fund focused on commodity producers. He has served as a director of Oasis Petroleum since 2010 and previously served as a director of GasValpo, SA, a Chilean gas distribution company from 2008 to 2012. From 2008 to 2009, Mr. Cassidy worked as Chief Financial Officer of USDCM, LLC, a Greenwich, Connecticut based drilling fund. From 1995 until 2008, Mr. Cassidy served in a variety of investment banking roles, including Head of Exploration and Production Investment Banking at Barclays Capital, Principal of the Energy and Power Investment Banking division at Banc of America Securities and Vice President at JPMorgan Chase. Mr. Cassidy has no family relationships that require disclosure pursuant to Item 401(d) of Regulation S-K and has not been involved in any transactions that require disclosure pursuant to Item 404(a) of Regulation S-K.
Mr. Buchanon, 53, has been employed by the Company since 2012, as Vice President - Rocky Mountain Engineering, where he was responsible for the engineering and geoscience teams for the Companys horizontal drilling program for the Wattenberg Field in Colorado. From 2010 to 2012, he was Production Operations Manager for Noble Energy, Inc. and was part of the Wattenberg Business Unit leadership team responsible for developing Nobles Wattenberg assets. From 2008 to 2010, he was the General Manager of Rosetta Resources Inc.s Denver Region, responsible for all land, geology and reservoir engineering functions for a variety of assets located in Bakken in Montana, Sacramento Basin, Denver-Julesberg Basin, San Juan Basin and Pinedale. Before that, he served in a variety of management level engineering and operations roles for companies such as Trend Exploration Company, Burlington Resources Inc. (now ConocoPhillips) and Mobil Exploration and Production (now ExxonMobil Corporation). Mr. Buchanon has no family relationships that require disclosure pursuant to Item 401(d) of Regulation S-K and has not been involved in any transactions that require disclosure pursuant to Item 404(a) of Regulation S-K.
Mr. Cassidys base salary will be $325,000, and Mr. Buchanons will be $300,000. Each Executive Officer is entitled to participate in the Companys Short-Term Incentive Program (STIP) with a target amount of 90% of base salary upon the achievement of corporate goals established annually and subject to the other terms of the STIP. In addition, Mr. Cassidy will receive (i) awards under the Companys 2011 Long Term Incentive Plan (LTIP) with grant date fair market values of approximately (A) $487,500 of restricted stock, vesting annually over three years, and (B) $162,500 of performance shares, vesting based on the Companys achievement of performance goals to be measured as of December 31, 2015, and (ii) a cash signing bonus of $100,000, subject to a reimbursement obligation if Mr. Cassidy terminates his employment within six months of his start date. Mr. Buchanons existing LTIP awards received in his capacity as Vice President Rocky Mountain Engineering, consisting of 31,403 restricted stock shares, vesting at various times over the next three years, and 2,134 performance shares, vesting based on the Companys achievement of performance goals to be measured as of December 31, 2015, were not amended and remain in effect.
Each of the Executive Officers will participate in the Bonanza Creek Energy, Inc. Executive Change in Control and Severance Plan (the Severance Plan), which provides for certain payments and benefits if an Executive Officers employment is terminated under certain circumstances. If the conditions of the Severance Plan
are satisfied, following each such Executive Officers termination, such Executive Officer is entitled to, among other benefits, (i) a lump sum cash payment equal to 2.5 times base salary and (ii) a lump sum cash payment equal to the greater of the annual average of the bonuses received by the Executive Officer pursuant to the Companys STIP in the two calendar years prior to termination and such executives current target bonus amount, multiplied by 2.5.
Each Executive Officer has entered into an Employee Restrictive Covenants, Proprietary Information and Inventions Agreement, pursuant to which such Executive Officer agrees to maintain the confidentiality of Company proprietary information and not to engage in any business activity that competes with the Company. In addition, for 2.5 years following any termination of employment, each Executive Officer has agreed to certain non-competition and non-solicitation obligations assuming the Company meets its severance obligations.
Each of Messrs. Cassidy and Buchanon has executed Employment Letter Agreements with the Company, which incorporate the terms of their employment described above. The descriptions of the Employment Letter Agreements set forth above are qualified in their entirety by the terms of the Employment Letter Agreements, copies of which are attached as Exhibits 10.1 and 10.2 and are incorporated herein by reference.
As a result of these announcements, Gary A. Grove will no longer serve as Interim Chief Operating Officer of the Company. Mr. Grove will continue to serve as the Companys Executive Vice President Engineering and Planning and a member of the Board. Effective on Mr. Cassidys start date of September 2, 2013, Wade E. Jaques will no longer serve as Principal Financial Officer of the Company. Mr. Jaques will continue to serve as the Companys Vice President, Chief Accounting Officer, Controller and Treasurer.
On August 12, 2013, the Company issued a press release announcing the appointments of Messrs. Cassidy and Buchanon, which is filed herewith as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1 Employment Letter Agreement, dated August 6, 2013, between Bonanza Creek Energy, Inc. and William J. Cassidy
10.2 Employment Letter Agreement, dated August 7, 2013, between Bonanza Creek Energy, Inc. and Anthony G. Buchanon
10.3 Bonanza Creek Energy, Inc. Executive Change in Control and Severance Plan, as amended (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on May 3, 2013)
10.4 Bonanza Creek Energy, Inc. 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.10 to the Companys Registration Statement on Form S-1/A filed on November 4, 2011)
10.5 Bonanza Creek Energy, Inc. Short Term Incentive Guidelines (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2013)
99.1 Press Release issued August 12, 2013
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Bonanza Creek Energy, Inc. | ||
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Date: August 12, 2013 |
By: |
/s/ Christopher I. Humber | |
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Christopher I. Humber | |
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Senior Vice President, General Counsel and | |
INDEX TO EXHIBITS
Exhibit Number |
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Description |
10.1 |
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Employment Letter Agreement, dated August 6, 2013, between Bonanza Creek Energy, Inc. and William J. Cassidy |
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10.2 |
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Employment Letter Agreement, dated August 7, 2013, between Bonanza Creek Energy, Inc. and Anthony G. Buchanon |
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10.3 |
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Bonanza Creek Energy, Inc. Executive Change in Control and Severance Plan, as amended (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on May 3, 2013) |
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10.4 |
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Bonanza Creek Energy, Inc. 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.10 to the Companys Registration Statement on Form S-1/A filed on November 4, 2011) |
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10.5 |
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Bonanza Creek Energy, Inc. Short Term Incentive Guidelines (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q filed on May 10, 2013) |
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99.1 |
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Press Release issued August 12, 2013 |
Exhibit 10.1
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410 17th Street, Suite 1400 Denver, CO 80202 (720) 440-6100 phone (720) 305-0804 fax
Bonanzacrk.com |
August 5, 2013
Mr. William J. Cassidy
23 Thorne Place
Rye, New York 10580
Re: Employment Terms and Conditions Executive Vice President, Chief Financial Officer
Dear Bill:
Thank you for your interest in joining Bonanza Creek Energy, Inc. (the Company). The Company is pleased to offer you the position of Executive Vice President, Chief Financial Officer, reporting to me as President and Chief Executive Officer. If you accept our offer, your anticipated start date will be on or about September 1, 2013. In summary, your compensation will be:
· An annual salary of $325,000.00 (Base Salary), to be paid on a bi-weekly basis, subject to all withholdings and deductions;
· Participation in the Companys Long Term Incentive Program (LTIP), subject to the terms and conditions of the LTIP and the award agreement(s) to be entered into thereunder, with a sign-on award of (i) restricted stock shares with a grant date market value approximately equal to $487,500.00 (75% of award), vesting annually in equal increments over a period of three years beginning on the 15th of the month following your start date and (ii) performance shares with a grant date market value approximately equal to $162,500.00 (25% of award), 0-200% of which shall vest based on the Companys achievement of performance goals to be measured as of December 31, 2015;
· Participation in the Companys Short Term Incentive Program (the STIP) as further discussed below;
· STIP award at 90% of base salary;
· A cash sign-on bonus of $100,000.00 (the Sign-On Bonus), subject to standard payroll deductions and withholdings; provided that, by signing below, you agree to reimburse the Company if you voluntarily terminate your employment with the Company within 6 months from your start date in the amount of (i) 100% of the Sign-On Bonus if such termination occurs within the first 3 months of employment or (ii) 50% of the Sign-On Bonus if such termination occurs within the second 3 months of employment;
· Participation in the Companys No Tracking Vacation Program; ten (10) days sick leave annually; and eleven (11) paid holidays per year, all in accordance with the Companys benefits policy;
· Option to participate in the Companys 401(k) Plan, in accordance with such plan; currently the Company provides matching contributions of 6% of W-2 income, which amount may be amended from time to time in accordance with the terms of the 401(k) Plan;
· Option to participate in the Companys health insurance plans upon your election subject to the terms and conditions of the plans;
· Option to participate or to continue to participate in the Companys flexible benefit plan (Section 125 Plan);
· Participation in the Companys Executive Change in Control and Severance Plan (the Severance Plan) as a Tier 2 Executive (as such term is defined in the Severance Plan);
· Reimbursement of expenses to relocate between your current residence of Rye, New York to Denver, Colorado no later than July 1, 2014 in accordance with the Companys relocation policy; and,
· Temporary travel/housing allowance of $5,000 per month until relocation to Denver is complete or July 1, 2014, whichever is earlier.
The STIP is administered by the Compensation Committee and Board of Directors of the Company. The STIP has been designed to supplement your base salary and provide a year-over-year short term incentive cash bonus payment opportunity when the Company meets or exceeds its goals. Your target cash bonus opportunity for 2013 will be equal to 90% of Base Salary, based on Company performance achievement as well as your individual performance achievement. You will be eligible for a pro-rata payment for your first year of participation. Bonuses under the STIP for each year, if any, will typically be paid in March of the following year.
The Company may modify compensation and benefits from time to time as it deems necessary in accordance with the terms and conditions of the plans set forth above and the Companys policies.
The terms and conditions of employment set forth in this Employment Letter are contingent upon (i) your signing the Companys Employee Restrictive Covenants, Proprietary Information and Inventions Agreement attached hereto (PIIA) attached hereto as Exhibit A and (ii) your ability to successfully pass or provide the following:
· Pre-employment drug screen in accordance with Company policy;
· Proof of authorization to work in the United States;
· Current drivers license, with an acceptable DMV driving record;
· Personal and criminal background check; and
· Employment verification.
In addition, as a Company employee, you will be expected to abide by the Companys rules and regulations and as such may be modified by the Company from time to time.
Notwithstanding anything to the contrary, your employment with the Company is AT WILL. You may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying the Company, subject only to any rights or obligations that may be required by the Severance Plan or PIIA, each as may be amended from time to time. Likewise, the Company may terminate your employment at any time and for any reason whatsoever, with or without cause or advance notice, subject only to any rights and obligations that may be required by the Severance Plan or PIIA, as each may be amended from time to time.
In consideration for the benefits to be provided to you under this Employment Letter to which you are not currently entitled, by executing this Employment Letter, you hereby (i) accept the terms of employment outlined in this Employment Letter and (ii) acknowledge and agree that this Employment Letter constitutes the entire agreement between you and the Company concerning your employment (except as otherwise may be set forth in the LTIP and any agreements entered into thereunder, the STIP, the Severance Plan, the PIIA or any Indemnification Agreement entered into between you and the Company (collectively, the Additional Agreements)), and supersedes and terminates all prior and contemporaneous agreements and understandings, both written and oral, between the parties with respect to its subject matters, except for the Additional Agreements. You agree that the Company has not made any promise or representation to you concerning this Employment Letter not expressed in this Employment Letter, and that, in signing this Employment Letter, you are not relying on any prior oral or
written statement or representation by the Company, but are instead relying solely on your own judgment and the judgment of your legal and tax advisors, if any.
If you have any questions or need additional information, please feel free to contact me.
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Sincerely, | ||
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/s/ Michael R. Starzer | ||
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Name: |
Michael R. Starzer | |
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Title: |
President and Chief Executive Officer | |
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Accepted and agreed: |
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/s/ William J. Cassidy |
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William J. Cassidy |
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Date: |
August 6, 2013 |
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Exhibit A
Employee Restrictive Covenants, Proprietary Information and Inventions Agreement
BONANZA CREEK ENERGY, INC.
EMPLOYEE RESTRICTIVE COVENANTS, PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Bonanza Creek Energy Company, Inc., a Delaware corporation (collectively with its subsidiaries and affiliates, the Company), and the compensation now and hereafter paid to me, I hereby agree as follows:
1. NONDISCLOSURE.
1.1 Recognition of Companys Rights; Nondisclosure. At all times during my employment and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Companys Proprietary Information (as defined below), except as such disclosure, use or publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain the Companys written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that incorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information will be the sole property of the Company and its assigns.
1.2 Proprietary Information. The term Proprietary Information means any and all confidential and/or proprietary knowledge, data or information of the Company. By way of illustration, but not limitation, Proprietary Information includes all technical and non-technical information of the Company including (a) trade secrets, including, but not limited to, the whole or any portion or phase of any scientific or technical information, design, process, procedure, improvement, confidential business or financial information, listing or name, addresses or telephone number, or other information relating to any business that is secret and of value; (b) inventions, ideas, materials, concepts, processes, formulas, data, other works of authorship, know-how, improvements, discoveries, developments, designs, techniques, drilling reports, maps, well logs, mud logs, seismic data and geological or geophysical data and analyses (collectively, Inventions); (c) information regarding research, development, production, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers and the existence of any business discussions, negotiations or agreements between the Company and any third party; and (d) information regarding the skills and compensation of the Companys employees, contractors or other service providers.
1.3 Third Party Information. I understand, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information (Third Party Information) subject to a duty on the Companys part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company) or use, except in connection with my work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the Company, I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company.
2. PROMISE OF ACCESS TO PROPRIETARY INFORMATION, SPECIALIZED TRAINING, AND GOODWILL
2.1 Access to Proprietary Information. During my employment, the Company agrees to provide me with access to Proprietary Information relevant to my position and responsibilities. The Company promises to disclose Proprietary Information to me in order to enable me to perform the duties and responsibilities of my position for the Company. I further acknowledge that, prior to my employment at the Company; I was unfamiliar with Proprietary Information. Finally, I acknowledge that the unauthorized disclosure of Proprietary Information could place the Company at a competitive disadvantage.
2.2 Access to Specialized Training. To the extent appropriate to my position, the Company also promises that it will provide me with specialized training and instruction regarding (a) the methods, products and services designed, developed, enhanced, modified, manufactured, sold or provided by or for the Company, (b) the Companys operations, (c) marketing and operational techniques and strategies, and (d) the Companys technology. The Company promises to provide specialized training and instruction to me regardless of whether I become or remain employed by the Company, in order to enable me to perform duties for the Company. I agree to use this training for the Companys exclusive benefit, and agrees not to use such training in a way that would harm the Companys business interests during employment and thereafter.
2.3 Access to Goodwill. I acknowledge that the Company has developed, over a period of time, and will continue to develop, significant relationships and goodwill between itself and its customers and suppliers by providing superior products and services. I further acknowledge that these relationships and this goodwill are a valuable asset belonging solely to the Company. I further acknowledge that any business relationship that Employee brings or has brought to the Company will belong to and will inure to the benefit of the Company after I begin employment. Finally, I acknowledge that the responsibility to build and maintain business relationships and goodwill with current and prospective customers creates a special relationship of trust and confidence between me, the Company, and such customers. The Company promises to permit me to use its goodwill in contacting and in doing business with its current and prospective customers and suppliers. The Company further promises to compensate me according to its normal payroll procedures while I build and/or maintain the Companys business relationships and goodwill with its current and prospective customers and suppliers. If and when appropriate, and pursuant to company policy and procedure, the Company agrees to reimburse me for reasonable and necessary business expenses incurred in building and maintaining business relationships and goodwill with the Companys current and prospective customers and suppliers.
3. ASSIGNMENT OF INVENTIONS.
3.1 Proprietary Rights. The term Proprietary Rights means all trade secret, patent, copyright, moral rights and other intellectual property rights throughout the world.
3.2 Previous Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, within two (2) business days following my signing of this Agreement, I will provide to the Company a complete written list of all Inventions relevant to the subject matter of my employment by the Company that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as Previous Inventions). If I do not timely provide the Company with my written list of Previous Inventions, I represent that there are no Previous Inventions. If, in the course of my employment with the Company, I incorporate a Previous Invention into any work product for the Company, the Company is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use, reproduce, make derivative works of, distribute, publicly perform, publicly display, import and sell such Previous Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Previous Inventions in any Company Inventions without the Companys prior written consent.
3.3 Assignment of Inventions. Subject to Sections 3.4 and 3.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 3, are hereinafter referred to as Company Inventions. I hereby forever waive and agree not to assert any and all Proprietary Rights I may have in or with respect to a Company Invention.
3.4 Nonassignable Inventions. I recognize that, in the event of a specifically applicable state law, regulation, rule, or public policy (Specific Inventions Law), this Agreement will not be deemed to require assignment of any invention which qualifies fully for protection under a Specific Inventions Law by virtue of the fact that any such invention was, for example, developed entirely on my own time without using the Companys
equipment, supplies, facilities, or trade secrets and neither related to the Companys actual or anticipated business, research or development, nor resulted or was derived from work performed by me directly or indirectly for the Company. In the absence of a Specific Inventions Law, the preceding sentence will not apply.
3.5 Obligation to Keep Company Informed. During the period of my employment and for one (1) year after termination of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an inventor or co-inventor within one (1) year after termination of employment. At the time of each such disclosure, I will advise the Company in writing of any Inventions that I believe fully qualify for protection under the provisions of a Specific Inventions Law; and I will at that time provide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under a Specific Inventions Law. I will preserve the confidentiality of any Invention that does not fully qualify for protection under a Specific Inventions Law.
3.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular Company Invention to a third party, including, without limitation, the United States, as directed by the Company.
3.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are works made for hire, pursuant to United States Copyright Act (17 U.S.C., Section 101).
3.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Inventions in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries will continue beyond the termination of my employment, but the Company will compensate me at a reasonable rate after my termination for the time actually spent by me at the Companys request on such assistance.
3.9 Further Assurances. In the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section 2 with the same legal force and effect as if executed by me. I hereby waive, assign and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.
3.10 Presumption of Ownership. Due to the difficulty of establishing when an Invention is first conceived or developed, whether it results from access to the Companys actual or anticipated business or research or development, or whether it is a direct or indirect result or derivation of any work I perform for the Company, I hereby acknowledge and agree that ownership of all Inventions conceived, developed, suggested or reduced to practice by me, alone or jointly with others during my employment shall be presumed to belong to the Company and I shall have the burden of proof to prove otherwise.
4. RECORDS. Unless otherwise directed or requested by the Company, I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all Proprietary Information developed by me and all Company Inventions made by me during the period of my employment at the Company, which records will be available to and remain the sole property of the Company at all times.
5. NO CONFLICTS. I acknowledge that during my employment I will have access to and knowledge of Proprietary Information. To protect the Companys Proprietary Information, I agree that during the period of my employment by the Company I will not, without the Companys express written consent, engage in any other
employment or business activity which is competitive with the Company, or would otherwise conflict with my obligations to the Company, except that nothing herein shall prevent my service on corporate, civic, charitable or industry boards or committees.
6. NON-COMPETE AND NON-SOLICITATION OBLIGATIONS.
6.1 Definitions.
(a) Business shall mean the acquisition, exploration, development and production of onshore oil, natural gas and associated liquids in the United States of America.
(b) Business Opportunities shall mean all business ideas, prospects, proposals or other opportunities pertaining to the Business, that are or were developed by me during my employment with the Company or any of the Companys Affiliates or originated by any third party and brought to my attention during my employment with the Company or any of the Companys Affiliates and in such capacity, together with information relating thereto (including, without limitation, geological and seismic data and interpretations thereof, whether in the form of maps, charts, logs, seismographs, calculations, summaries, memoranda, opinions or other written or charted means).
(c) Post-Termination Non-Compete Term shall mean the same time period of time as the Severance Obligation Period (as that term is defined in the Executive Change in Control and Severance Plan, as amended).
6.2 Covenant Not to Compete During Term of Employment. I acknowledge that, during my employment with the Company, I will have access to and knowledge of Proprietary Information, including, without limitation, trade secret information. During the term of my employment with the Company and except as provided below or as otherwise permitted by the Company (acting upon the instruction of the board of directors of the Company), to protect the Companys Proprietary Information, I agree that:
(a) I shall not, other than through the Company or any person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company and any predecessor to any such entity (each a Company Affiliate and collectively, the Companys Affiliates), engage or participate in any manner, whether directly or indirectly for my direct benefit through a family member or as an employee, employer, consultant, agent, principal, partner, more than five percent shareholder, officer, director, licensor, lender, lessor, or in any other individual or representative capacity, in (i) any business or activity that is competitive with the Business (as defined above), (ii) any business or activity that is engaged in leasing, acquiring, exploring, developing or producing hydrocarbons and related products, or (iii) any enterprise in which a material portion of its business is materially competitive in any way with any business in which the Company or any of the Companys Affiliates is engaged during my employment with the Company or any of the Companys Affiliates (including, without limitation, any business if the Company devoted material resources to entering into such business); and
(b) all investments made by me (whether in my own name or for my direct benefit through an immediate family member or intermediary)( collectively, Employee Affiliates), which relate to the Business or the lease, acquisition, exploration, development or production of hydrocarbons and related products shall be made solely through the Company or any of the Companys Affiliates; and I shall not (directly or indirectly), and shall not permit any Employee Affiliates to: (i) invest or otherwise participate alongside the Company or any of the Companys Affiliates in any Business Opportunities (as defined above) or (ii) invest or otherwise participate in any business or activity relating to a Business Opportunity, regardless of whether the Company or any of the Companys Affiliates ultimately participates in such business or activity;
provided, however, that this Section 6.2 shall not apply to (w) the existing personal oil and gas investments owned by me, my family members or any Employee Affiliates as of the date of this Agreement set forth on Exhibit A hereto (the Existing Personal Investments), (x) future expenditures made by me, my family members or any Employee Affiliates in the Existing Personal Investments, provided that such future expenditures do not go beyond the limited allowed for Permitted Investments (as defined below), (y) Permitted Investments (as defined below) and (z) any opportunity that is first offered to, and subsequently declined by, the Company (acting through the Companys board of directors of the Company or its designee), if and to the extent that such opportunities are
outside the Geographic Scope (as defined below). For purposes of this Agreement, Permitted Investments means passive investments in securities or other ownership interests of businesses made by me, my family members or any Employee Affiliates, provided that the aggregate amount owned by me, my family members and Employee Affiliates does not exceed 5% of the outstanding securities or other ownership interests of any such business.
6.3 Covenant Not to Compete After the Date of Termination. I hereby acknowledge and agree that the purpose of this Section 6.3 is to protect the Company from unfair loss of goodwill and business advantage, to shield me from the pressure to use or disclose Proprietary Information or to trade on the goodwill belonging to the Company, for the protection of the Companys trade secret and Proprietary Information, and because of the knowledge I have acquired or will acquire as an executive or management personnel, or as an officer, or as profession staff to executive and management personnel. Accordingly, during the Post-Termination Non-Compete Term, I agree not to engage or participate in any manner, whether directly or indirectly for my benefit, through a family member, or as an employee, employer, consultant, agent, principal, partner, shareholder, officer, director, licensor, lender (other than as an employee of a chartered commercial bank with assets of $500 million or greater), lessor, or in any other individual or representative capacity, in any business engaged in leasing, acquiring, exploring, developing, or producing hydrocarbons and related products within the boundaries of, or within a twenty-five (25) mile radius of the boundaries of, any mineral property interest of the Company or the Companys Affiliates (including, without limitation, a mineral lease, overriding royalty interest, production payment, net profits interest, mineral fee interest, or option or right to acquire any of the foregoing, or an area of mutual interest as designated pursuant to contractual agreement between the Company or any of the Companys Affiliates and any third party) or any other property on which the Company or the Companys Affiliates have a right, license, or authority to conduct or direct exploratory activities, such as three dimensional seismic acquisitions or other seismic, geophysical, and geochemical activities as of the date my employment with the Company is terminated (the Geographic Scope); provided, however, that this subparagraph shall not be construed to preclude me from (w) holding the Existing Personal Investments, (x) making future expenditures made by me, my family members or any Employee Affiliates in the Existing Personal Investments, provided that such future expenditures do not go beyond the limited allowed for Permitted Investments, (y) making Permitted Investments and (z) investing in any opportunity that is first offered to, and subsequently declined by, the Company (acting through the board of directors of the Company or its designee), if and to the extent that such opportunities are outside the Geographic Scope.
6.4 Covenant Not to Solicit. I shall not, during my employment with the Company or the Post-Termination Non-Compete Term (a) directly or indirectly, on behalf of myself or any third party, solicit, encourage, facilitate, or induce any advertiser, supplier, broker, vendor, agent, sales representative, employee, contractor, consultant, or licensee of the Company or of the Companys Affiliates to breach any agreement or contract with, or discontinue or curtail his, her or its business relationships with the Company or any of the Companys Affiliates or (b) directly or indirectly, solicit, recruit, induce, or otherwise engage as an employee, independent contractor or otherwise, either for myself or any other third party, any person who is employed by the Company or any of the Companys Affiliates at the time of such solicitation, recruitment or inducement.
6.5 Non-Disparagement. I shall not, during my employment with the Company or the Post-Termination Non-Compete Term, make to any other person or party any statement (whether oral, written, electronic, anonymous, on the internet, or otherwise), which directly or indirectly impugns the quality or integrity of the Company or its Affiliates business or employment practices, operations, or services, or any other disparaging or derogatory remarks about the Company or its Affiliates.
7. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any non-compete agreement or any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement.
8. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company or upon request by the Company during the course of my employment, I will deliver to the Company any and all property, equipment, drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Proprietary Information of Company. I agree that I will not copy, delete or alter any information contained on my Company computer before I return it to Company. I further agree that any property situated on Companys premises and
owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. I understand and agree that compliance with this paragraph may require that data be removed from my personal computer equipment or other electronic storage devices or media. Consequently, upon reasonable prior notice, I agree to permit the qualified personnel of Company and/or its contractors access to such computer equipment or other electronic storage devices or media for that purpose. Prior to leaving, I will cooperate with the Company in completing and signing the Companys termination statement.
9. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and because I may have access to and become acquainted with the Companys Proprietary Information, the Company has the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement. This paragraph shall not be construed as an election of any remedy, or as a waiver of any right available to Company under this Agreement or the law, including the right to seek damages from me for a breach of any provision of this Agreement, nor shall this paragraph be construed to limit the rights or remedies available under applicable law or in equity for any violation of any provision of this Agreement, including, but not limited to claims for damages. If employee violates and covenant contained in Section 5, the duration of such covenant shall be automatically extended for the period of time equal to the period of such violation.
10. NOTICES. Any notices required or permitted hereunder will be given to the appropriate party at the address specified below or at such other address as the party may specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing.
11. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the Company, I hereby consent to the notification of my new employer of my rights and obligations under this Agreement.
12. GENERAL PROVISIONS.
12.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of Colorado, without regard for its conflicts of law principles that would require application of the laws of a different state. I hereby expressly consent to the personal jurisdiction of the state and federal courts located in Denver, Colorado for any lawsuit filed there against me by Company arising from or related to this Agreement.
12.2 Attorneys Fees and Costs. Should the Parties take any action or commence any legal proceeding relating to this Agreement, if either Party prevails in all or any part of its claims or defenses, such Party shall be entitled to recover all costs and expenses from the other party, including reasonable attorneys fees, incurred in connection with such action or other legal proceeding.
12.3 Severability. In case any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Notwithstanding the foregoing, if any one or more of the provisions contained in this Agreement is held to be excessively broad as to duration, geographical scope, activity or subject, for any reason, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it then appears.
12.4 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns. This Agreement and shall be freely assignable by Company in its sole discretion, at any time, without the requirement of notice or consent by me.
12.5 Survival. The provisions of this Agreement will survive the termination of my employment and the assignment of this Agreement by the Company to any successor in interest or other assignee.
12.6 Employment. I acknowledge and agree that my relationship with the Company is AT-WILL, and that both the Company and I may terminate my employment relationship at any time, with or without cause or advance notice. I further agree and understand that nothing in this Agreement will confer any right with respect to continuation of employment by the Company, nor will it interfere in any way with my right or the Companys right to terminate my employment at any time, with or without cause or advance notice.
12.7 Waiver. No waiver by the Company of any breach of this Agreement will be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement will be construed as a waiver of any other right. The Company will not be required to give notice to enforce strict adherence to all terms of this Agreement.
12.8 Entire Agreement. The obligations pursuant to Sections 1 and 2 of this Agreement will apply to any time during which I was previously employed, or am in the future employed, by the Company as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between us relating to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
12.9 Advice of Counsel. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signatures on Following Page]
This Agreement is effective as of August 5, 2013.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Dated: |
August 6, 2013 |
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/s/ William J. Cassidy |
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Signature |
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Name: |
William J. Cassidy |
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Accepted and Agreed To: |
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BONANZA CREEK ENERGY, INC. |
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By: |
/s/ Michael R. Starzer |
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Name: |
Michael R. Starzer |
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Title: |
President and Chief Executive Officer |
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Dated: |
August 6, 2013 |
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Exhibit 10.2
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410 17th Street, Suite 1400 Denver, CO 80202 (720) 440-6100 phone (720) 305-0804 fax
Bonanzacrk.com |
August 6, 2013
Mr. Anthony G. Buchanon
5755 Glenstone Drive
Highlands Ranch, Colorado 80130
Re: Employment Terms and Conditions Executive Vice President, Chief Operating Officer
Dear Tony:
Thank you for your continued service to Bonanza Creek Energy, Inc. (the Company) as our Vice President, Rocky Mountain Engineering. The Company is pleased to offer you a promotion to the position of Executive Vice President, Chief Operating Officer (COO), reporting to me as President and Chief Executive Officer. In summary, as COO, your compensation will be:
· An annual salary of $300,000 (Base Salary), to be paid on a bi-weekly basis, subject to all withholdings and deductions;
· Continued participation in the Companys 2011 Long Term Incentive Program (LTIP), subject to the terms and conditions of the LTIP and the award agreement(s) to be entered into thereunder, at the discretion of the Companys Compensation Committee and Board of Directors;
· Continued participation in the Companys Short Term Incentive Program (the STIP) as further discussed below;
· Participation in the Companys No Tracking Vacation Program; ten (10) days sick leave annually; and eleven (11) paid holidays per year, all in accordance with the Companys benefits policy;
· Option to participate or continue to participate in the Companys 401(k) Plan, in accordance with such plan; currently the Company provides matching contributions of 6% of W-2 income, which amount may be amended from time to time in accordance with the terms of the 401(k) Plan;
· Option to participate or continue to participate in the Companys health insurance plans upon your election subject to the terms and conditions of the plans;
· Option to participate or to continue to participate in the Companys flexible benefit plan (Section 125 Plan); and
· Participation in the Companys Executive Change in Control and Severance Plan (the Severance Plan) as a Tier 2 Executive (as such term is defined in the Severance Plan).
As you know, the STIP is administered by the Compensation Committee and Board of Directors of the Company. The STIP has been designed to supplement your base salary and provide a year-over-year short term incentive cash bonus payment opportunity when the Company meets or exceeds its goals. Your target cash bonus opportunity as COO for 2013 will be equal to 90% of Base Salary, based on Company performance achievement as well as your individual performance achievement calculated on a pro-rata basis for 2013 based on the number of days in 2013 during which you were COO and the number of days in 2013 during which you were Vice President Rocky Mountain Engineering at the 40% target level. Bonuses under the STIP for each year, if any, will typically be paid in March of the following year.
The Company may modify compensation and benefits from time to time as it deems necessary in accordance with the terms and conditions of the plans set forth above and the Companys policies.
The terms and conditions of employment set forth in this Employment Letter are contingent upon your signing the Companys Employee Restrictive Covenants, Proprietary Information and Inventions Agreement attached hereto (PIIA) attached hereto as Exhibit A.
You will continue to be expected to abide by the Companys rules and regulations, as such may be modified by the Company from time to time.
Notwithstanding anything to the contrary, your employment with the Company is AT WILL. You may terminate your employment with the Company at any time and for any reason whatsoever simply by notifying the Company, subject only to any rights or obligations that may be required by the Severance Plan or PIIA, each as may be amended from time to time. Likewise, the Company may terminate your employment at any time and for any reason whatsoever, with or without cause or advance notice, subject only to any rights and obligations that may be required by the Severance Plan or PIIA, as each may be amended from time to time.
In consideration for the benefits to be provided to you under this Employment Letter to which you are not currently entitled, by executing this Employment Letter, you hereby (i) accept the terms of employment outlined in this Employment Letter and (ii) acknowledge and agree that this Employment Letter constitutes the entire agreement between you and the Company concerning your employment (except as otherwise may be set forth in the LTIP and any agreements entered into thereunder, the STIP, the Severance Plan, the PIIA or any Indemnification Agreement entered into between you and the Company (collectively, the Additional Agreements)), and supersedes and terminates all prior and contemporaneous agreements and understandings, both written and oral, between the parties with respect to its subject matters, except for the Additional Agreements. You agree that the Company has not made any promise or representation to you concerning this Employment Letter not expressed in this Employment Letter, and that, in signing this Employment Letter, you are not relying on any prior oral or written statement or representation by the Company, but are instead relying solely on your own judgment and the judgment of your legal and tax advisors, if any.
If you have any questions or need additional information, please feel free to contact me.
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Sincerely, |
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/s/ Michael R. Starzer |
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Name: Michael R. Starzer |
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Title: President and Chief Executive Officer |
Accepted and agreed: |
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/s/ Anthony G. Buchanon |
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Anthony G. Buchanon |
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Date: |
August 7, 2013 |
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Exhibit A
Employee Restrictive Covenants, Proprietary Information and Inventions Agreement
BONANZA CREEK ENERGY, INC.
EMPLOYEE RESTRICTIVE COVENANTS, PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Bonanza Creek Energy Company, Inc., a Delaware corporation (collectively with its subsidiaries and affiliates, the Company), and the compensation now and hereafter paid to me, I hereby agree as follows:
1. NONDISCLOSURE.
1.1 Recognition of Companys Rights; Nondisclosure. At all times during my employment and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Companys Proprietary Information (as defined below), except as such disclosure, use or publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain the Companys written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that incorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information will be the sole property of the Company and its assigns.
1.2 Proprietary Information. The term Proprietary Information means any and all confidential and/or proprietary knowledge, data or information of the Company. By way of illustration, but not limitation, Proprietary Information includes all technical and non-technical information of the Company including (a) trade secrets, including, but not limited to, the whole or any portion or phase of any scientific or technical information, design, process, procedure, improvement, confidential business or financial information, listing or name, addresses or telephone number, or other information relating to any business that is secret and of value; (b) inventions, ideas, materials, concepts, processes, formulas, data, other works of authorship, know-how, improvements, discoveries, developments, designs, techniques, drilling reports, maps, well logs, mud logs, seismic data and geological or geophysical data and analyses (collectively, Inventions); (c) information regarding research, development, production, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers and the existence of any business discussions, negotiations or agreements between the Company and any third party; and (d) information regarding the skills and compensation of the Companys employees, contractors or other service providers.
1.3 Third Party Information. I understand, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information (Third Party Information) subject to a duty on the Companys part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company) or use, except in connection with my work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the Company, I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company.
2. PROMISE OF ACCESS TO PROPRIETARY INFORMATION, SPECIALIZED TRAINING, AND GOODWILL
2.1 Access to Proprietary Information. During my employment, the Company agrees to provide me with access to Proprietary Information relevant to my position and responsibilities. The Company promises to disclose Proprietary Information to me in order to enable me to perform the duties and responsibilities of my position for the Company. I further acknowledge that, prior to my employment at the Company, I was unfamiliar with Proprietary Information. Finally, I acknowledge that the unauthorized disclosure of Proprietary Information could place the Company at a competitive disadvantage.
2.2 Access to Specialized Training. To the extent appropriate to my position, the Company also promises that it will provide me with specialized training and instruction regarding (a) the methods, products and services designed, developed, enhanced, modified, manufactured, sold or provided by or for the Company, (b) the Companys operations, (c) marketing and operational techniques and strategies, and (d) the Companys technology. The Company promises to provide specialized training and instruction to me regardless of whether I become or remain employed by the Company, in order to enable me to perform duties for the Company. I agree to use this training for the Companys exclusive benefit, and agrees not to use such training in a way that would harm the Companys business interests during employment and thereafter.
2.3 Access to Goodwill. I acknowledge that the Company has developed, over a period of time, and will continue to develop, significant relationships and goodwill between itself and its customers and suppliers by providing superior products and services. I further acknowledge that these relationships and this goodwill are a valuable asset belonging solely to the Company. I further acknowledge that any business relationship that Employee brings or has brought to the Company will belong to and will inure to the benefit of the Company after I begin employment. Finally, I acknowledge that the responsibility to build and maintain business relationships and goodwill with current and prospective customers creates a special relationship of trust and confidence between me, the Company, and such customers. The Company promises to permit me to use its goodwill in contacting and in doing business with its current and prospective customers and suppliers. The Company further promises to compensate me according to its normal payroll procedures while I build and/or maintain the Companys business relationships and goodwill with its current and prospective customers and suppliers. If and when appropriate, and pursuant to company policy and procedure, the Company agrees to reimburse me for reasonable and necessary business expenses incurred in building and maintaining business relationships and goodwill with the Companys current and prospective customers and suppliers.
3. ASSIGNMENT OF INVENTIONS.
3.1 Proprietary Rights. The term Proprietary Rights means all trade secret, patent, copyright, moral rights and other intellectual property rights throughout the world.
3.2 Previous Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, within two (2) business days following my signing of this Agreement, I will provide to the Company a complete written list of all Inventions relevant to the subject matter of my employment by the Company that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as Previous Inventions). If I do not timely provide the Company with my written list of Previous Inventions, I represent that there are no Previous Inventions. If, in the course of my employment with the Company, I incorporate a Previous Invention into any work product for the Company, the Company is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use, reproduce, make derivative works of, distribute, publicly perform, publicly display, import and sell such Previous Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Previous Inventions in any Company Inventions without the Companys prior written consent.
3.3 Assignment of Inventions. Subject to Sections 3.4 and 3.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 3, are hereinafter referred to as Company Inventions. I hereby forever waive and agree not to assert any and all Proprietary Rights I may have in or with respect to a Company Invention.
3.4 Nonassignable Inventions. I recognize that, in the event of a specifically applicable state law, regulation, rule, or public policy (Specific Inventions Law), this Agreement will not be deemed to require assignment of any invention which qualifies fully for protection under a Specific Inventions Law by virtue of the fact that any such invention was, for example, developed entirely on my own time without using the Companys
equipment, supplies, facilities, or trade secrets and neither related to the Companys actual or anticipated business, research or development, nor resulted or was derived from work performed by me directly or indirectly for the Company. In the absence of a Specific Inventions Law, the preceding sentence will not apply.
3.5 Obligation to Keep Company Informed. During the period of my employment and for one (1) year after termination of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an inventor or co-inventor within one (1) year after termination of employment. At the time of each such disclosure, I will advise the Company in writing of any Inventions that I believe fully qualify for protection under the provisions of a Specific Inventions Law; and I will at that time provide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under a Specific Inventions Law. I will preserve the confidentiality of any Invention that does not fully qualify for protection under a Specific Inventions Law.
3.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular Company Invention to a third party, including, without limitation, the United States, as directed by the Company.
3.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are works made for hire, pursuant to United States Copyright Act (17 U.S.C., Section 101).
3.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Company Inventions in any and all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company with respect to Proprietary Rights relating to such Company Inventions in any and all countries will continue beyond the termination of my employment, but the Company will compensate me at a reasonable rate after my termination for the time actually spent by me at the Companys request on such assistance.
3.9 Further Assurances. In the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section 2 with the same legal force and effect as if executed by me. I hereby waive, assign and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.
3.10 Presumption of Ownership. Due to the difficulty of establishing when an Invention is first conceived or developed, whether it results from access to the Companys actual or anticipated business or research or development, or whether it is a direct or indirect result or derivation of any work I perform for the Company, I hereby acknowledge and agree that ownership of all Inventions conceived, developed, suggested or reduced to practice by me, alone or jointly with others during my employment shall be presumed to belong to the Company and I shall have the burden of proof to prove otherwise.
4. RECORDS. Unless otherwise directed or requested by the Company, I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all Proprietary Information developed by me and all Company Inventions made by me during the period of my employment at the Company, which records will be available to and remain the sole property of the Company at all times.
5. NO CONFLICTS. I acknowledge that during my employment I will have access to and knowledge of Proprietary Information. To protect the Companys Proprietary Information, I agree that during the period of my employment by the Company I will not, without the Companys express written consent, engage in any other
employment or business activity which is competitive with the Company, or would otherwise conflict with my obligations to the Company, except that nothing herein shall prevent my service on corporate, civic, charitable or industry boards or committees.
6. NON-COMPETE AND NON-SOLICITATION OBLIGATIONS.
6.1 Definitions.
(a) Business shall mean the acquisition, exploration, development and production of onshore oil, natural gas and associated liquids in the United States of America.
(b) Business Opportunities shall mean all business ideas, prospects, proposals or other opportunities pertaining to the Business, that are or were developed by me during my employment with the Company or any of the Companys Affiliates or originated by any third party and brought to my attention during my employment with the Company or any of the Companys Affiliates and in such capacity, together with information relating thereto (including, without limitation, geological and seismic data and interpretations thereof, whether in the form of maps, charts, logs, seismographs, calculations, summaries, memoranda, opinions or other written or charted means).
(c) Post-Termination Non-Compete Term shall mean the same time period of time as the Severance Obligation Period (as that term is defined in the Executive Change in Control and Severance Plan, as amended).
6.2 Covenant Not to Compete During Term of Employment. I acknowledge that, during my employment with the Company, I will have access to and knowledge of Proprietary Information, including, without limitation, trade secret information. During the term of my employment with the Company and except as provided below or as otherwise permitted by the Company (acting upon the instruction of the board of directors of the Company), to protect the Companys Proprietary Information, I agree that:
(a) I shall not, other than through the Company or any person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company and any predecessor to any such entity (each a Company Affiliate and collectively, the Companys Affiliates), engage or participate in any manner, whether directly or indirectly for my direct benefit through a family member or as an employee, employer, consultant, agent, principal, partner, more than five percent shareholder, officer, director, licensor, lender, lessor, or in any other individual or representative capacity, in (i) any business or activity that is competitive with the Business (as defined above), (ii) any business or activity that is engaged in leasing, acquiring, exploring, developing or producing hydrocarbons and related products, or (iii) any enterprise in which a material portion of its business is materially competitive in any way with any business in which the Company or any of the Companys Affiliates is engaged during my employment with the Company or any of the Companys Affiliates (including, without limitation, any business if the Company devoted material resources to entering into such business); and
(b) all investments made by me (whether in my own name or for my direct benefit through an immediate family member or intermediary)( collectively, Employee Affiliates), which relate to the Business or the lease, acquisition, exploration, development or production of hydrocarbons and related products shall be made solely through the Company or any of the Companys Affiliates; and I shall not (directly or indirectly), and shall not permit any Employee Affiliates to: (i) invest or otherwise participate alongside the Company or any of the Companys Affiliates in any Business Opportunities (as defined above) or (ii) invest or otherwise participate in any business or activity relating to a Business Opportunity, regardless of whether the Company or any of the Companys Affiliates ultimately participates in such business or activity;
provided, however, that this Section 6.2 shall not apply to (w) the existing personal oil and gas investments owned by me, my family members or any Employee Affiliates as of the date of this Agreement set forth on Exhibit A hereto (the Existing Personal Investments), (x) future expenditures made by me, my family members or any Employee Affiliates in the Existing Personal Investments, provided that such future expenditures do not go beyond the limited allowed for Permitted Investments (as defined below), (y) Permitted Investments (as defined below) and (z) any opportunity that is first offered to, and subsequently declined by, the Company (acting through the Companys board of directors of the Company or its designee), if and to the extent that such opportunities are
outside the Geographic Scope (as defined below). For purposes of this Agreement, Permitted Investments means passive investments in securities or other ownership interests of businesses made by me, my family members or any Employee Affiliates, provided that the aggregate amount owned by me, my family members and Employee Affiliates does not exceed 5% of the outstanding securities or other ownership interests of any such business.
6.3 Covenant Not to Compete After the Date of Termination. I hereby acknowledge and agree that the purpose of this Section 6.3 is to protect the Company from unfair loss of goodwill and business advantage, to shield me from the pressure to use or disclose Proprietary Information or to trade on the goodwill belonging to the Company, for the protection of the Companys trade secret and Proprietary Information, and because of the knowledge I have acquired or will acquire as an executive or management personnel, or as an officer, or as profession staff to executive and management personnel. Accordingly, during the Post-Termination Non-Compete Term, I agree not to engage or participate in any manner, whether directly or indirectly for my benefit, through a family member, or as an employee, employer, consultant, agent, principal, partner, shareholder, officer, director, licensor, lender (other than as an employee of a chartered commercial bank with assets of $500 million or greater), lessor, or in any other individual or representative capacity, in any business engaged in leasing, acquiring, exploring, developing, or producing hydrocarbons and related products within the boundaries of, or within a twenty-five (25) mile radius of the boundaries of, any mineral property interest of the Company or the Companys Affiliates (including, without limitation, a mineral lease, overriding royalty interest, production payment, net profits interest, mineral fee interest, or option or right to acquire any of the foregoing, or an area of mutual interest as designated pursuant to contractual agreement between the Company or any of the Companys Affiliates and any third party) or any other property on which the Company or the Companys Affiliates have a right, license, or authority to conduct or direct exploratory activities, such as three dimensional seismic acquisitions or other seismic, geophysical, and geochemical activities as of the date my employment with the Company is terminated (the Geographic Scope); provided, however, that this subparagraph shall not be construed to preclude me from (w) holding the Existing Personal Investments, (x) making future expenditures made by me, my family members or any Employee Affiliates in the Existing Personal Investments, provided that such future expenditures do not go beyond the limited allowed for Permitted Investments, (y) making Permitted Investments and (z) investing in any opportunity that is first offered to, and subsequently declined by, the Company (acting through the board of directors of the Company or its designee), if and to the extent that such opportunities are outside the Geographic Scope.
6.4 Covenant Not to Solicit. I shall not, during my employment with the Company or the Post-Termination Non-Compete Term (a) directly or indirectly, on behalf of myself or any third party, solicit, encourage, facilitate, or induce any advertiser, supplier, broker, vendor, agent, sales representative, employee, contractor, consultant, or licensee of the Company or of the Companys Affiliates to breach any agreement or contract with, or discontinue or curtail his, her or its business relationships with the Company or any of the Companys Affiliates or (b) directly or indirectly, solicit, recruit, induce, or otherwise engage as an employee, independent contractor or otherwise, either for myself or any other third party, any person who is employed by the Company or any of the Companys Affiliates at the time of such solicitation, recruitment or inducement.
6.5 Non-Disparagement. I shall not, during my employment with the Company or the Post-Termination Non-Compete Term, make to any other person or party any statement (whether oral, written, electronic, anonymous, on the internet, or otherwise), which directly or indirectly impugns the quality or integrity of the Company or its Affiliates business or employment practices, operations, or services, or any other disparaging or derogatory remarks about the Company or its Affiliates.
7. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any non-compete agreement or any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict with this Agreement.
8. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company or upon request by the Company during the course of my employment, I will deliver to the Company any and all property, equipment, drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Proprietary Information of Company. I agree that I will not copy, delete or alter any information contained on my Company computer before I return it to Company. I further agree that any property situated on Companys premises and
owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. I understand and agree that compliance with this paragraph may require that data be removed from my personal computer equipment or other electronic storage devices or media. Consequently, upon reasonable prior notice, I agree to permit the qualified personnel of Company and/or its contractors access to such computer equipment or other electronic storage devices or media for that purpose. Prior to leaving, I will cooperate with the Company in completing and signing the Companys termination statement.
9. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and because I may have access to and become acquainted with the Companys Proprietary Information, the Company has the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement. This paragraph shall not be construed as an election of any remedy, or as a waiver of any right available to Company under this Agreement or the law, including the right to seek damages from me for a breach of any provision of this Agreement, nor shall this paragraph be construed to limit the rights or remedies available under applicable law or in equity for any violation of any provision of this Agreement, including, but not limited to claims for damages. If employee violates and covenant contained in Section 5, the duration of such covenant shall be automatically extended for the period of time equal to the period of such violation.
10. NOTICES. Any notices required or permitted hereunder will be given to the appropriate party at the address specified below or at such other address as the party may specify in writing. Such notice will be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing.
11. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the Company, I hereby consent to the notification of my new employer of my rights and obligations under this Agreement.
12. GENERAL PROVISIONS.
12.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to the laws of the State of Colorado, without regard for its conflicts of law principles that would require application of the laws of a different state. I hereby expressly consent to the personal jurisdiction of the state and federal courts located in Denver, Colorado for any lawsuit filed there against me by Company arising from or related to this Agreement.
12.2 Attorneys Fees and Costs. Should the Parties take any action or commence any legal proceeding relating to this Agreement, if either Party prevails in all or any part of its claims or defenses, such Party shall be entitled to recover all costs and expenses from the other party, including reasonable attorneys fees, incurred in connection with such action or other legal proceeding.
12.3 Severability. In case any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Notwithstanding the foregoing, if any one or more of the provisions contained in this Agreement is held to be excessively broad as to duration, geographical scope, activity or subject, for any reason, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it then appears.
12.4 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns. This Agreement and shall be freely assignable by Company in its sole discretion, at any time, without the requirement of notice or consent by me.
12.5 Survival. The provisions of this Agreement will survive the termination of my employment and the assignment of this Agreement by the Company to any successor in interest or other assignee.
12.6 Employment. I acknowledge and agree that my relationship with the Company is AT-WILL, and that both the Company and I may terminate my employment relationship at any time, with or without cause or advance notice. I further agree and understand that nothing in this Agreement will confer any right with respect to continuation of employment by the Company, nor will it interfere in any way with my right or the Companys right to terminate my employment at any time, with or without cause or advance notice.
12.7 Waiver. No waiver by the Company of any breach of this Agreement will be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement will be construed as a waiver of any other right. The Company will not be required to give notice to enforce strict adherence to all terms of this Agreement.
12.8 Entire Agreement. The obligations pursuant to Sections 1 and 2 of this Agreement will apply to any time during which I was previously employed, or am in the future employed, by the Company as a consultant if no other agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between us relating to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
12.9 Advice of Counsel. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signatures on Following Page]
This Agreement is effective as of August 12, 2013.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Dated: |
August 7, 2013 |
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/s/ Anhtony G. Buchanon |
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Signature |
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Name: |
Anthony G. Buchanon | ||
Accepted and Agreed To: | |||
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BONANZA CREEK ENERGY, INC. | |||
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By: |
/s/ Michael R. Starzer |
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Name: Michael R. Starzer |
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Title: President and Chief Executive Officer |
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Dated: |
August 7, 2013 |
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Exhibit 99.1
News Release |
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For Immediate Release
August 12, 2013
Bonanza Creek Energy Announces Key Executive Management Team Additions
Denver, Colorado, August 12, 2013 Bonanza Creek Energy, Inc. (NYSE: BCEI) today announced that William J. Cassidy has been hired to serve as the Companys Executive Vice President and Chief Financial Officer. Most recently, Mr. Cassidy served as the Global Head of Corporate Finance and Treasury for Puma Energy, a midstream and downstream oil company with operations spanning 37 countries and a subsidiary of the commodity trading multinational Trafigura Beheer BV. From 2009-2013, Mr. Cassidy was a Principal at RPA Capital, LLC, an asset management fund focused on commodity producers. He has served as a director of Oasis Petroleum since 2010 and as a director of GasValpo, SA, a Chilean gas distribution company, from 2008 until 2012. From 2008 to 2009, Mr. Cassidy worked as Chief Financial Officer of USDCM, LLC, a Greenwich, Connecticut based drilling fund. From 1995 until 2008, Mr. Cassidy served in a variety of investment banking roles, including Head of Exploration and Production Investment Banking at Barclays Capital, Principal of the Energy and Power Investment Banking division at Banc of America Securities and Vice President at JPMorgan Chase. His prior investment banking experience includes numerous debt and equity financings and M&A transactions for clients such as Apache Corporation, Chesapeake Energy Corporation, Encana Corporation, Plains Exploration & Production Company and Range Resources Corporation, among others. He worked as a Geophysicist for Conoco (now ConocoPhillips) from 1989 to 1993. Mr. Cassidy holds a Bachelor of Science in Geology and Math from the National University of Ireland, Cork, a Masters of Science in Petroleum Geophysics from the Royal School of Mines, Imperial College, London and an MBA (Finance) from the Wharton School of the University of Pennsylvania.
Bonanza Creek also announced that Anthony G. Buchanon, Vice President Rocky Mountain Engineering, was promoted to Executive Vice President and Chief Operating Officer. Mr. Buchanon has been with the Company since 2012 and has been instrumental in providing leadership and experience to Bonanza Creeks expanding horizontal drilling program in the Wattenberg Field in Colorado. He has more than 30 years of experience in exploration and production operations, including reservoir, completion and production engineering and unconventional oil and gas exploitation. Immediately prior to joining Bonanza Creek, he served as Production Operations Manager for Noble Energy, Inc. and was part of the Wattenberg Business Unit leadership team that was responsible for developing Nobles Wattenberg assets. Before that, he served in a variety of management level engineering and operations roles for companies such as Rosetta Resources Inc., Trend Exploration Company, Burlington Resources Inc. (now ConocoPhillips) and Mobil Exploration and Production (now ExxonMobil Corporation). He holds a Bachelor of Science in Petroleum Engineering from Marietta College.
Michael Starzer, the Companys President and Chief Executive Officer, commented, We are pleased with the addition of Bill and Tony expanding the Companys talented executive team in these new roles. Bills deep knowledge of capital markets and corporate finance, in addition to his experience working with successful high growth E&P executive teams will be a great asset to the organization. Tony has brought proven leadership, operational experience and technical knowledge to Bonanza Creek successfully leading our engineering and geoscience
departments for our flagship Niobrara Oil Shale asset. I am very excited to work closely with Bill and Tony as we continue to grow Bonanza Creek.
About Bonanza Creek Energy, Inc.
Bonanza Creek Energy, Inc. is an independent oil and natural gas company engaged in the acquisition, exploration, development and production of onshore oil and associated liquids-rich natural gas in the United States. The companys assets and operations are concentrated primarily in the Rocky Mountains in the Wattenberg Field, focused on the Niobrara oil shale, and in southern Arkansas, focused on the oily Cotton Valley sands. The companys common shares are listed for trading on the NYSE under the symbol: BCEI. For more information about the company, please visit www.bonanzacrk.com. Please note that the company routinely posts important information about the company under the Investor Relations section of its website.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical facts, included in this press release that address activities, events or developments that the company expects, believes or anticipates will or may occur in the future are forward-looking statements. These statements are based on certain assumptions made by the company based on managements experience, perception of historical trends and technical analyses, current conditions, anticipated future developments and other factors believed to be appropriate and reasonable by management. When used in this press release, the words will, potential, believe, estimate, intend, expect, may, should, anticipate, could, plan, predict, project, profile, model or their negatives, other similar expressions or the statements that include those words, are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. Without limiting the generality of the foregoing, forward-looking statements contained in this press release specifically include the growth of the Company and impact of new additions to the Companys executive management team. Such statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond the control of the company, which may cause actual results to differ materially from those implied or expressed by the forward-looking statements. Further information on such assumptions, risks and uncertainties is available in the companys SEC filings. We refer you to the discussion of risk factors in Part I, Item 1ARisk Factors of our Annual Report on Form 10-K for the year ended December 31, 2011 filed with the Securities Exchange Commission on March 22, 2012. The companys SEC filings are available on the companys website at www.bonanzacrk.com and on the SECs website at www.sec.gov. All of the forward-looking statements made in this press release are qualified by these cautionary statements. Any forward-looking statement speaks only as of the date on which such statement is made and the company undertakes no obligation to correct or update any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by applicable law.
For further information, please contact:
Mr. Ryan Zorn |
Mr. James Masters |
Vice President - Finance |
Investor Relations Manager |
720-440-6172 |
720-440-6121 |