001-34732 | 26-1028629 | |
(Commission File Number) | (IRS Employer Identification No.) |
a. | If the Agreement is terminated as a result of the death of Mr. Hall, Mr. Hall’s stock options shall immediately vest and be exercisable for the maximum period permitted under the Plan. |
b. | If the Agreement is terminated as a result of the Disability of Mr. Hall, Mr. Hall’s unvested stock options shall immediately vest and all then-vested stock options shall be exercisable for a period of the greater of twenty-four months thereafter or the period specified in the grant. |
c. | Except in the case of termination by reason of Mr. Hall’s death, continuation of his base annual salary for the “Severance Period,” which consists of a period of twenty-four (24) months if his separation from employment does not occur within twelve (12) months of a Change in Control, but, in the event that his separation from employment does occur within twelve (12) months of a Change in Control, thirty-six (36) months. |
d. | A cash bonus payment equal to two (2) times Mr. Hall’s annual salary. |
e. | Continued insurance coverage for the Severance Period. |
f. | If he resigns for Good Reason, Mr. Hall’s unvested stock options shall immediately vest. Mr. Hall may exercise all then vested stock options for a period commencing with the date of termination and expiring on the later of one hundred and eighty (180) days following the end of the Severance Period or the date specified in the original grant. |
Exhibit No. | Description | |
10.1 | Employment Agreement between the Company and Mr. Hall dated October 7, 2014 |
Dated: October [ ], 2014 | Miller Energy Resources, Inc. | |
By: /s/ Carl F. Giesler, Jr. | ||
Carl F. Giesler, Jr. | ||
Chief Executive Officer |
1.1 | Employment. The Company hereby employs Employee and Employee accepts employment as Chief Operating Officer of the Company and Chief Executive Officer of CIE. During the Term of this Agreement and any extensions thereof, the Employee’s principal place of employment shall be in Anchorage, Alaska, and the Employee shall be furnished an office there commensurate with his duties. The parties further agree that, during the Term (as defined below) of this Agreement, Employee shall serve the Company as the principal officer in charge of the Company’s oil and gas operations. Employee shall be principally responsible for and shall have full power and authority to perform all duties incidental to the general management and oversight of the oil and gas operations of the Company. |
1.2 | Term. Unless earlier terminated pursuant to the provisions hereof, the initial term of Employee’s employment under this Agreement shall be for the period beginning on the date hereof and ending on September 13, 2017 (the “Term”). Said Term shall be automatically renewed thereafter for successive three-year terms unless the Board or any successor entity provides Employee with written notice that the Agreement will not be renewed no later than 120 days prior to the expiration of the then-current term. Notwithstanding the foregoing, in the event a Change in Control (as defined below) occurs during the then-current term, the Term of this Agreement shall not end prior to the first anniversary of such |
1.3 | Duties. During the Term of his employment pursuant to this Agreement, Employee shall serve the Company faithfully and to the best of his ability and shall devote his business and professional time, energy, and diligence to the performance of the duties of such positions, and he shall perform such services and duties in connection with the business and affairs of the Company (i) as are customarily incident to such positions, and (ii) subject to Section 1.1 hereof, as may reasonably be assigned or delegated to him from time to time by the Board or the Chief Executive Officer of the Company, including but not limited to the hiring and firing of employees of the Company, CIE and their subsidiaries.. |
2.1 | Base Salary. |
a) | As compensation for his services hereunder and as consideration for his covenant not to compete provided for in Section 4 hereof, Employee shall be paid a base annual salary at the rate of Four Hundred and Seventy Five Thousand and 00/00 Dollars ($475,000.00) per year, which rate of compensation shall be in effect from the Effective Date until the end of the initial Term of this Agreement. Thereafter, the base annual salary shall be at the rate determined in good faith by the Committee (or, if applicable under the Company’s Bylaws, by the Board itself) at the Committee’s (or Board's, as applicable) regularly scheduled meeting following the end of each fiscal year or upon any special meeting, based upon the Company's review of Employee's performance during the preceding fiscal year or lesser period, but shall not be reduced below the base annual salary in effect at the end of the immediately preceding fiscal year unless otherwise agreed to in writing by the parties. The base annual salary shall be payable at such periodic intervals, as from time to time are applicable with respect to the other salaried executive personnel of the Company, and shall be inclusive of all applicable income taxes, Social Security, and other taxes and charges that are required by law to be withheld by the Company or that are requested to be withheld by Employee. |
b) | If Employee’s base annual salary is hereafter increased by the Committee (or Board, as applicable), it shall not thereafter be reduced below a figure equal to the amount of base annual salary in effect immediately prior to such increase, together with an amount equal to the product of (x) the amount of base annual salary in effect immediately prior to such increase, multiplied by (y) the percentage increase in the consumer price index in Anchorage, Alaska to the last day of the fiscal year preceding any such reduction. |
2.2 | Incentives. Immediately upon the Effective Date, the Company shall grant to the Employee an option to purchase Two Hundred Thousand (200,000) shares of the common stock of the Company, which shall vest as follows: (i) 66,667 shares on September 14, 2015; (ii) 66,667 shares on September 14, 2016; and (iii) 66,666 shares on September 14, 2017. The options hereby granted may be exercised for a period of ten (10) years from and after the Effective Date at an exercise price equal to the stock closing price on the Effective Date. The remaining terms of this option shall be governed by the 2010 Equity Compensation Plan (including any successor plan thereto, the “Plan”). |
2.3 | Insurance. |
a) | The Company shall provide to Employee the standard package of family insurance benefits which are from time to time provided to other executive employees, including medical and major medical, and dental insurance coverage. |
b) | The Company shall provide the Employee coverage under its D & O insurance policy. |
2.4 | Other Benefits. The Company shall provide Employee the following additional benefits: |
a) | Upon production of accounts and vouchers or other reasonable evidence of payment by employee, all in accordance with the Company’s regular procedures in effect from time to time, reimbursement of all reasonable and ordinary expenses incurred for Company business, provided the same are of a type which are allowable for deductions under applicable federal tax law. |
b) | Paid vacation during the each calendar year of four (4) weeks per year, or such greater amount as may be permitted from time to time by the Company's vacation policy, to be taken at such time as selected by Employee. If Employee does not use all of the allotted weeks of vacation in any calendar year of the Company, Employee shall be entitled to add any and all unused vacation days to the paid vacation permitted under this Agreement for the following calendar year. |
c) | Employee shall be entitled to short-term medical leave benefits for up to three (3) months for time out of work over any three (3) year period of time due to a psychological or physical illness, injury, or condition. Such benefits shall include full pay to Employee for any leave which is due to medical or psychological conditions as supported by appropriate written verification from Employee's treating medical or psychological/psychiatric professional. |
d) | The Company shall provide to the Employee “key-man life insurance” in an amount of not less than Five Million ($5,000,000.00) Dollars, and which will provide that the beneficiaries of the policy shall be one-half to the Company and one-half to the spouse of the Employee. |
e) | Upon the event of a Change in Control, as hereinafter defined, the Employee shall be paid within thirty (30) days of the effective date of such Change in Control a lump sum bonus that is in addition to any other compensation, severance pay, bonus, or salary, in the aggregate amount equal to the Employee’s then base annual salary. |
f) | In addition to the benefits bestowed upon Employee in this Agreement, Employee shall be entitled to participate in and enjoy the Company’s retirement savings plan and other benefits as are generally extended to employees serving in an executive capacity, including any capacity similar to that of Employee, in accordance with the Company's customary practices and policies. |
2.5. | Withholding of Taxes. All compensation, in cash or otherwise, required to be paid by the Company to Employee under this Agreement shall be subject to the withholding of such amounts, if any, relating to tax, excise tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation. |
3.1 | Death. Employee’s employment hereunder shall terminate upon his death. Upon such termination, the Employee’s stock options shall immediately vest and shall be exercisable for the maximum period permitted under the Plan. |
3.2 | Disability. If due to physical or mental disability, Employee is not able to perform his material duties hereunder on a full-time basis for a period of four (4) months (whether consecutive or not) within any twelve (12)-month period, the Company may terminate his employment hereunder for “Disability.” The determination of “Disability” shall be based upon a certificate as to such physical or mental disability issued by a licensed physician and/or psychiatrist (as the case may be) mutually agreed upon by the Employee and the Company. Upon such termination, the Employee’s unvested stock options shall immediately vest and all then vested stock options shall be exercisable for a period of the greater of twenty-four (24) months thereafter or the period specified in the grant, not to exceed the maximum term for such options as may be permitted under the Plan. |
3.3 | By the Company for “Cause”. The Company, upon a majority vote of the Board of Directors after notice to Employee (as described below) and advice of independent legal counsel, may terminate Employee’s employment immediately for “Cause,” which shall mean and be limited to the following: |
a) | Willful, habitual and continued unavailability to act or respond on behalf of the Company; |
b) | Willful misconduct or fraud; |
c) | Conviction, by a court of competent jurisdiction, of a felony (whether or not committed during the term hereof or in the course of employment hereunder); |
d) | Willful, continued, and material failure to observe or perform the duties of his employment hereunder; and |
e) | Willfully acting in a manner materially adverse to the best interests of the Company. |
3.4 | Change in Control. Employee’s employment may be terminated by either the Company or Employee in the event of a Change in Control, which shall, for purposes of this Agreement, be defined as set forth in the attached Exhibit A, which is incorporated herein by reference; provided, however, that in the case of termination pursuant to this Section 3.4, the Board shall make a determination either to terminate Employee's employment hereunder or continue such employment within six (6) months after the effective date of the Change in Control and shall give Employee ninety (90) days' notice of any such determination to terminate Employee's employment hereunder, and the failure to make such |
3.5 | Termination by Employee for “Good Reason.” Employee may terminate his employment at any time without “Good Reason” by providing the Company thirty (30) days written notice. Employee may also terminate his employment for “Good Reason” as provided below. “Good Reason” shall mean any of the following: |
a) | A material change in Employee's function, authority, duties, title, compensation, responsibilities or principal place of employment, without Employee’s express written consent (other than a reduction in Employee’s function, authority or duties incident to a Temporary Suspension) including a material change in his position as principal officer in charge of operations of the Company; |
b) | A substantial difference of opinion between Employee and the Board and/or ownership of the Company that develops, or other circumstances should arise such that Employee, in good faith, no longer believes that he can function effectively in his position for the Company as defined in Section 1.1 above; |
c) | A significant increase in the amount of travel required for Employee to perform his job, without Employee's consent; |
d) | Any material failure by the Company to comply with any of the provisions of this Agreement; |
e) | Upon a Change in Control, as defined herein, or upon any other material change in the financial condition (other than as a result of any events or circumstances that would be deemed “Cause” for termination under the terms hereof) or ownership of the Company; or |
f) | Any other matter or circumstance requested by the Board if either (i) made with the intent of hindering Employee in the performance of his duties hereunder or creating an incentive for Employee to exercise his rights under Section 3.5 hereof or (ii) the effect of such request could reasonably be expected to hinder Employee in the performance of his duties hereunder or create an incentive for Employee to exercise his rights under Section 3.5 hereof; excluding, in each of clause (i) and (ii) above, any Temporary Suspension or in connection with any action taken by the Board following a finding that “Cause” for termination of the Employee exists. |
3.6 | Payment of Severance Benefits upon Termination. |
a) | In the event Employee voluntarily terminates his employment at any time during this Agreement without Good Reason as defined herein, Employee shall continue to receive his base annual salary, at the then current rate, and the Insurance Coverage as described in Section 2.3, for a period of two (2) months, upon execution of a Release of Claims in a form substantially similar to that attached hereto as Exhibit B, which is incorporated herein by reference; provided that if the |
b) | In the event the Company terminates Employee’s employment for Cause as defined herein, the Company shall pay Employee all accrued compensation, if any, through the date of termination. All salary and benefits (other than vested benefits under any pension, profit sharing or other compensation or benefit plan (including without limitation the Plan), which shall in all cases continue to be governed by the terms and conditions of such respective plans) shall cease at the time of termination. All unvested stock options shall expire and be void without value. |
c) | In the event Employee terminates his employment for Good Reason as defined herein, or there is a Change in Control as defined herein, or the Company terminates Employee’s employment without Cause as defined herein, or Employee’s employment is terminated due to Death or Disability as defined herein, Employee will be entitled to the severance benefits listed below (collectively "Severance"). Except in the case of termination due to the Death of Employee, the Severance is conditioned upon (i) the Employee executing, within 21 days of his separation, a Release of Claims form substantially similar to that attached hereto as Exhibit B, which is incorporated herein by reference and (ii) such Release of Claims remaining in full force and effect following the expiration of any period arising under applicable law during which the Employee shall have the right to rescind or revoke such Release of Claims or otherwise render such a Release of Claims ineffective. |
i. | Except in the case of termination by reason of the Employee’s death, continuation of Employee's base annual salary for the Severance Period (as defined below) at the rate in effect at the time of such termination and payable at the time and in the manner such payments would have been made to Employee if such termination had not occurred; |
ii. | A cash bonus payment equal to two (2) times the Employee’s annual salary; said cash bonus to be payable as soon as practicable following Employee's separation from employment, but no more than three (3) months following such termination; |
iii. | Continued insurance coverage, as described in Section 2.3 and to include medical and major medical and dental coverage for Employee and his family, at the Company's expense for the Severance Period; provided, however, that Employee will be responsible for any co-payments, deductibles, or other out-of-pocket expenses associated with use of any health coverage; and |
iv. | If the Employee’s resignation is tendered for “Good Reason,” Employee’s unvested stock |
d) | For purposes of this Agreement, the Severance Period shall be twenty-four (24) months if Employee's separation from employment does not occur within twelve (12) months of a Change in Control, but, in the event that Employee's separation from employment does occur within twelve (12) months of a Change in Control, the Severance Period shall be thirty-six (36) months. The full amount of the total salary continuation payments provided for above shall be payable in full within thirty (30) days after the effective date of Employee's severance-qualifying termination to an escrow agent mutually satisfactory to the Company and Employee under irrevocable written instructions to make payments of the Severance to Employee (or in the event of Employee's death, to his estate), at the time and in the manner that such payments would have been made to Employee if such termination had not taken place. |
5.1 | Company Information. Employee agrees at all times during the term hereof and thereafter, to hold in strictest confidence, and not to use or disclose, except for the benefit of the Company or as authorized by the Company, the Confidential Information of Company. Employee understands that "Confidential Information" means any Company proprietary information, trade secrets and other information not generally known to the public, such as technical and non-technical data, non-public seismic and reserve information, know-how, research, product plans, marketing plans, products, business forecasts, services, customer lists and customers (including, but not limited to, customers of Company on whom Employee may call or with whom Employee becomes more acquainted during the term of this Agreement or has become acquainted with during any prior period in which he performed services for the Company), information regarding employees of the Company, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, financial or other business information disclosed to Employee by the Company, either directly or indirectly in writing, electronically, orally or by drawings or observation of parts or equipment prior |
5.2 | Third Party Information. Employee recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. Employee agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Employee work for Company consistent with Company' agreement with such third party. Employee agrees to comply with Company's policies and procedures, as applicable from time to time with respect to such information. |
6.1 | Outplacement Service. In the event of termination of Employee's employment by the Company without Cause, the Company shall, upon the request of Employee (i) pay for outplacement service for Employee for a period of twelve (12) months, such payment to be made to an agency selected by Employee, provided that such fees shall be reasonable and customary for nationally rated firms engaged in providing such services for executives of similar level, qualifications, and experience, and (ii) provide to Employee, for a reasonable time following termination of employment, not to exceed twelve (12) months, office space and secretarial support to assist Employee in searching for and obtaining a new position, such office space to be provided in a location reasonably determined by the Company. |
6.2 | Indemnity. The Company shall indemnify Employee and hold him harmless for all acts or decisions made by him in good faith while performing services for the Company to the full extent permitted by applicable law. |
6.3 | Non-Disparagement. Except as compelled to do so by law, the Company and its past and present affiliated companies and their officers, directors, and employees shall refrain from making any remark or taking any action which disparages, defames, or places Employee in a negative light, and Employee shall refrain from making any remark or taking any action which disparages, defames, or places the Company or any of its parent, subsidiary, or affiliated companies or their past or present officers, directors, or employees in a negative light. |
6.4 | Employee Benefits. This Agreement shall not be construed to be in lieu or to the exclusion of any other rights, benefits, and privileges to which Employee may be entitled as an employee of the Company under any retirement, pension, profit-sharing, insurance, hospital, or other plans or benefits that may now be in effect or that may hereafter be adopted. |
6.5 | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, and jurisdiction shall lie in the courts of competent jurisdiction in Knox County. |
6.6 | Entire Agreement. This Agreement, together with the Plan, constitutes the entire understanding of the Company and Employee with respect to its subject matter, supersedes any prior agreement or arrangement relative to Employee's employment by the Company, and no modification, supplement, or amendment of any provision hereof shall be valid unless made in writing and signed by the parties. |
6.7 | Successors and Assigns; Permitted Assignment. This Agreement shall inure to the benefit of and be binding upon the Company and Employee and their respective successors, executors, administrators, heirs and/or permitted assigns; provided, however, that neither Employee nor the Company may make any assignment of this Agreement or any interest therein, by operation of law or otherwise, without the prior written consent of the other party hereto, except that, without such consent, the Company may assign this Agreement to any successor to all or substantially all of its assets and business by means of dissolution, merger, consolidation, transfer of assets, or otherwise, provided that such successor assumes in writing all of the obligations of the Company under this Agreement, subject, however, to Employee's right of termination as provided in Section 3.5 hereof. |
6.8 | Captions. The captions set forth in this Agreement are for convenience only and shall not be considered as part of this Agreement or as in any way limiting or amplifying the terms and conditions hereof. |
6.9 | No Conflicting Obligations. Employee represents and warrants to the Company that he is not under, or bound to be under in the future, any obligation to any person, firm, or corporation that is or would be inconsistent or in conflict with this Agreement or would prevent, limit, or impair in any way the performance by him of his obligations hereunder. |
6.10 | Waivers. The failure of any party to require the performance or satisfaction of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. |
6.11 | Notices. Any notice given hereunder shall be in writing and delivered or mailed by registered or certified mail, return receipt requested: |
6.13 | Severability. In the event that any court having jurisdiction shall determine that any restrictive covenant or other provision contained in this Agreement shall be unreasonable or unenforceable in any respect, then such covenant or other provision shall be deemed limited to the extent that such other court deems it reasonable or enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such covenant or other provision wholly unenforceable, the remaining covenants and other provisions of this Agreement shall nevertheless remain in full force and effect. |
6.14 | Counterparts. More than one counterpart of this Agreement may be executed by the parties hereto, and each fully executed counterpart shall be deemed an original. |