Employment Agreement - Warren Resources Inc. and David E. Fleming
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of June 25, 2001, by and
between Warren Resources, Inc., a New York corporation (the "Company"), and
David E. Fleming (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Employee desires to accept an offer of employment with the
Company upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to serve the Company, on the terms and conditions
hereinafter set forth in this Agreement.
2. Term. This Agreement, and the employment of the Employee by the Company
hereunder, will commence on the date hereof (the "Effective Date") and terminate
on July 31, 2004 (the "Initial Term"), subject to earlier termination as set
forth herein (the "Employment Period"). As used herein, the term "Employment
Year" shall mean each consecutive twelve (12) month period during the Employment
Period commencing on the Effective Date, or the yearly anniversary thereof, as
the case may be. Effective on the third anniversary of the Effective Date (and
each anniversary of such date thereafter), the term of this Agreement as then in
effect shall be automatically extended for an additional one (1) year term after
the Initial Term unless, at least three (3) months prior to such date, the
Company or the Employee shall give written notice to the other party that it or
he, as the case may be, in its or his sole discretion, does not wish to so
extend the term of this Agreement.
3. Position and Duties. Subject to the provisions of this Section 3, during
the Employment Period, the Employee shall serve as the Senior Vice President and
General Counsel of the Company, and shall faithfully perform the duties and
responsibilities normally associated with such positions, subject to the
oversight and direction of the Chief Executive Officer and the Board of
Directors.
4. Place of Employment. Generally, the Employee will fulfill all duties and
responsibilities to the Company as set forth herein from the current principal
place of business of the Company, located at 489 Fifth Avenue, New York, New
York, or any other location within midtown Manhattan, New York, New York, to
which the principal place of business may be relocated.
<PAGE>
5. Best Efforts. The Employee's employment with the Company shall be sixty
(60%) percent time and the Employee shall devote his best efforts and sixty
(60%) percent of his business time exclusively to the performance of his duties
and responsibilities as set forth in this Agreement, which duties and
responsibilities shall be performed competently, carefully and faithfully.
Except as provided below, the Employee shall not, while an employee of the
Company and without the prior written consent of the Company, engage in any
other gainful occupation or activity which conflicts with or impinges upon the
full and faithful performance of the Employee's duties, or otherwise violates
any other term or provision of this Agreement. It is expressly understood and
agreed, however, that the provisions of this Section 5 shall not be construed to
prevent the Employee from pursuing any other activity or profession in the 40%
of the time not devoted to the Company, including without limitation the
practice of law or investment banking, or investing or trading for his own
account or pursuing charitable or civic activities; provided, that such
activities do not impair the performance by the Employee of his duties and
responsibilities hereunder, or otherwise violate any provision of this
Agreement, and that Employee shall not represent another entity not affiliated
with the Company in the oil and gas industry which is competitive with the
Company.
6. The Employee's Compensation.
(a) Salary. During the Employment Period, for the services described herein
the Company shall pay to the Employee an annual base salary of $210,000.00 (as
adjusted pursuant to the terms hereof, the "Base Compensation"). The Base
Compensation shall be increased on each anniversary date of this Agreement by
any increases in the cost of living based on the changes in the "Consumer Price
Index" as published from time to time by the U.S. Department of Commerce for the
New York City metropolitan area. The Base Compensation will be paid to the
Employee in accordance with the normal payroll practices of the Company in
effect from time to time, less all required withholdings for benefits, federal,
state and local taxes, if any. The amount of the Base Compensation may, in the
Company's discretion, be increased by the Company on an annual basis during the
Employment Period. All increases to the Base Compensation, if any, shall be
based on the condition of the Company's business and results of operations and
the Company's evaluation of the Employee's individual performance for the
relevant period. Any increases made to the Base Compensation shall be in the
discretion of the Company.
(b) Bonus Compensation. In addition to the Base Compensation to which the
Employee is entitled under Section 6(a), the Employee shall be eligible to be
awarded bonus compensation in accordance with past business practices of the
Company (the "Bonus Compensation") with respect to each fiscal year or portion
thereof during which the Employee was employed by the Company hereunder equal to
up to and including 100% of the Employee's Base Compensation. The amount and
time for payment of the Bonus Compensation for any year, if any, shall be
determined by the Board of Directors in its discretion; provided, however, that
under no event shall Employee be paid annual Bonus Compensation of less than 50%
of the Employee's Base Compensation on each anniversary date of this Agreement.
2
<PAGE>
(c) Options. Employee shall be entitled to participate in the Company's
Equity Incentive Plan (the "Equity Incentive Plan"), and will be awarded 150,000
options thereunder, exercisable at the price of $11.00 per share of common stock
for a period ending five years after the date of grant of the option (the
"Options"). The Options shall vest and be subject to immediate exercise as
follows: 50% on the date hereof; 25% one year after the date hereof and 25% two
years after the date hereof. The grant of such Options shall be documented with
a formal award letter from the Company to the Employee setting forth the terms
and conditions of Employee's Options.
7. The Employee's Benefits. As an employee of the Company, the Employee
shall be entitled to receive and enjoy the following benefits during the
Employment Period:
(a) Participation in Company Benefit Plans. The Employee shall be entitled
to participate in and to receive benefits generally available to senior
executives under those certain employee benefit plans and arrangements which may
be offered by the Company from time to time during the Employment Period,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements by the Company. The Company shall
provide full medical, hospitalization and dental insurance coverage for the
Employee.
(b) Vacations. The Employee shall be entitled to sixty percent of four (4)
weeks of paid vacation per Employment Year, provided that any vacations are to
be taken at times mutually agreeable to the Company and the Employee. In
addition to the foregoing, the Employee shall be entitled to receive all paid
holidays given by the Company to its employees generally. If Employee has not
used his accrued but unused vacation days during an Employment Year, such days
may not be carried over to another and shall be deemed waived by the Employee.
Any accrued but unused vacation days in an Employment Year shall be reimbursed
in cash to Employee upon a termination of his employment Without Cause
hereunder.
(c) Business Expense Reimbursement. The Company shall promptly reimburse or
pay the Employee for all reasonable and necessary business expenses paid or
incurred by the Employee in performing his duties and responsibilities
hereunder; provided, that, the Employee shall have (i) submitted such reasonable
documentation as may be requested by the Company in accordance with the
reimbursement policies of the Company in effect from time to time and (ii)
obtained the prior approval of the Company for all charges in excess of $5,000.
(d) Life Insurance. The Company shall provide term life insurance in the
amount of $500,000 on the life of Employee, with Employee's spouse, or other
Employee designee, as the named beneficiary; and
3
<PAGE>
(e) Disability Insurance. The Company shall provide disability insurance
paying benefits to Employee of not less than $200,000 per annum (subject to
availability).
8. Termination of Employment. The Employee's employment with the Company
may be terminated as follows:
(a) With Cause. The Employee's employment with the Company may be
terminated by the Company at any time for "Cause." As used herein, the term
"Cause" shall refer to the following: (i) theft, fraud, dishonesty, gross
negligence or willful malfeasance by the Employee in connection with the
performance of his duties hereunder (collectively, "Theft Events"); (ii) a
material breach or failure to fulfill and perform the Employee's duties
hereunder, which breach or failure is not cured to the reasonable satisfaction
of the Company within forty-five (45) days after written demand from the Company
(if such breach is at all curable during such time in the reasonable
determination of the Company; failing such determination, "Cause" shall have
occurred upon the occurrence of such breach or failure); (iii) conviction of a
felony or a crime involving moral turpitude; (iv) habitual neglect of duties or
misconduct in the performance of the Employee's duties and responsibilities
hereunder following an initial notice of warning from the Company with respect
thereto; or (v) a repeated or ongoing failure to comply with the reasonable
directions and instructions of management of the Company in connection with the
performance of the Employee's duties and responsibilities hereunder following an
initial notice of warning from the Company with respect thereto. Upon
termination for Cause, all rights of the Employee under this Agreement shall
immediately terminate and the Company shall have no further obligations, subject
to Section 8(e)(i) below. A termination of the Employee's employment with the
Company by the Employee upon his voluntary resignation or voluntary retirement
shall be treated as a termination for Cause hereunder. In connection therewith,
the Employee covenants and agrees not to voluntarily resign or voluntarily
retire without providing the Company with forty-five (45) days' prior written
notice. Upon a termination for Cause, Employee shall receive in full
satisfaction of all amounts due to him an amount equal to the remainder of Base
Compensation through date of termination due under his current Employment Year.
In addition, Employee shall receive any accrued but unpaid vacation time for the
current Employment Year and Bonus Compensation equal to the amount paid for the
previous Employment Year, prorated for the number of days of service in the
current Employment Year. Notwithstanding any of the foregoing, in the event that
the Company has terminated Employee's employment on account of a Theft Event,
the Company shall be entitled to withhold from any amounts otherwise due to
Employee under this Subsection 8(a) the amount of monetary damages incurred by
the Company from such Theft Event which shall be quantified and determined in
writing by the Company within 90 days after the date of termination. The
Employee agrees that his eligibility to receive any and all amounts described in
this Section 8(a) shall be subject to and contingent upon the Employee's
execution of a full and complete general release in favor of the Company and its
affiliated persons and entities, satisfactory to the Company in its sole
discretion.
(b) Without Cause. The Employee's employment with the Company may be
terminated by the Company at any time without Cause, but in the event of any
4
<PAGE>
such termination pursuant to this Section 8(b), the Company will pay, in
addition to any other amounts due hereunder, the Employee severance pay in an
amount equal to the greater of (i) the balance of all of Employee's remaining
and unpaid Base Compensation due for the balance of the then existing term
hereunder, or (ii) Employee's annual Base Compensation multiplied by two,
payable upon execution and delivery of the release described below, less all
required withholdings and in accordance with then current payroll practices of
the Company and applicable law or regulation. In addition, Employee shall
receive any accrued but unpaid vacation time for the current Employment Year and
Bonus Compensation equal to the amount paid for the previous Employment Year.
The Employee agrees that his eligibility to receive any and all amounts
described in this Section 8(b) shall be subject to and contingent upon the
Employee's execution of a full and complete general release in favor of the
Company and its affiliated persons and entities, satisfactory to the Company in
its sole discretion.
(c) Termination for Death or Disability. The Employee's employment
hereunder shall terminate immediately upon the Employee's death or Disability.
For purposes of the preceding sentence, the term "Disability" shall mean the
Employee's inability, by reason of physical or mental incapacity (determined by
a licensed physician reasonably acceptable to the Employee and the Company), to
perform the essential functions of his job, with or without a reasonable
accommodation by the Company, for an aggregate of one hundred and twenty (120)
days during any twelve (12) month period, provided further that during any such
continuous period, the Employee's Base Compensation payable under Section 6(a)
shall be reduced by the amount, if any, of payments to the Employee under any
short-term or long-term disability insurance policy, plan or program maintained
by the Company. During any period when the Employee implicitly or explicitly
purports to be unable to perform his duties hereunder by reason of physical or
mental illness, incapacity or disability, the Employee, at the request and
expense of Company, shall submit to one or more examinations by a physician of
the Company's choice. A termination of the Employee's employment with the
Company due to any of the foregoing provisions of this Section 8(c) shall be
treated as a termination without Cause hereunder.
(d) Termination by Employee for Good Reason. Employee shall have the right
to terminate this Agreement for "Good Reason". The following events affecting
Employee shall constitute "Good Reason" within the meaning of this Agreement:
(i) if Employee, at any time during the Employment Period (except during a
period of Disability), has suffered a material change or diminution in duties
and responsibilities from those contemplated herein, (ii) if there is a Change
of Control Event, as defined below, or (iii) if Employee shall be relocated by
the Company or a successor thereto to a location greater than 30 miles outside
midtown Manhattan, New York, New York.
For purposes of this Employment Agreement, a "Change of Control" shall mean
the happening of any of the following:
(i) the acquisition by any person or group deemed a person under
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act") (other than the Company and its subsidiaries as determined
5
<PAGE>
immediately prior to that date) of beneficial ownership, directly or
indirectly (with beneficial ownership determined as provided in Rule 13d-3,
or any successor rule, under the Exchange Act), of a majority of the total
combined voting power of all classes of stock of the Company having the
right under ordinary circumstances to vote at an election of the Board of
Directors of the Company, if such person or group deemed a person was not a
beneficial owner of at least five percent (5%) of such total combined
voting power of the Company on the date of this Agreement;
(ii) the election to the Board of Directors of the Company of members
as a result of which a majority of the Board of Directors shall consist of
persons who are not members of the Board of Directors as of the Effective
Date (including Employee as a member of the Board of Directors as of the
Effective Date), except in the event that such slate of Directors is
proposed by the management of the Company;
(iii) the date of approval by the stockholders of the Company of an
agreement providing for the merger or consolidation of the Company with
another corporation or other entity where (x) stockholders of the Company
immediately prior to such merger or consolidation would not beneficially
own following such merger or consolidation shares entitling such
stockholders to 50% or more of all votes (without consolidation of the
rights of any class of stock to elect directors by a separate class vote)
to which all stockholders of the surviving corporation would be entitled in
the election of directors, or (y) where the members of the Board of
Directors, immediately prior to such merger or consolidation, would not,
immediately after such merger or consolidation, constitute a majority of
the board of directors of the surviving corporation; or
(iv) the sale of all or substantially all of the assets of the
Company.
(e) Status upon Termination. The termination of this Agreement, and the
Employee's employment hereunder, for any reason whatsoever shall constitute the
Employee's effective termination and resignation from any other positions or
duties with the Company and all of its affiliates.
(f) Effect of Termination.
(i) In the event of a termination of the Employee's employment with
the Company hereunder for any reason, in addition and subject to the
provisions of Sections 8(a), 8(b), 8(c) and 8(d), the Employee shall be
entitled to receive all Base Compensation and accrued benefits owing
through the date of termination in accordance with the Company's normal
practices then in effect.
(ii) In the event of a termination of the Employee's employment
without Cause pursuant to Sections 8(b), 8(c) or 8(d) above, the Company
shall also pay the Employee severance compensation in accordance with
Section 8(b) above. Furthermore, if the Employee is terminated without
Cause, or the employment ceases under Section 8(c) or 8(d), all unvested
options granted to the Employee pursuant to the Equity Incentive Plan shall
6
<PAGE>
be kept in effect, or, at the Employee's option, the Company must purchase
all vested and unvested options at an amount equal to the greater of (a)
the exercise price, or (b) the Fair Market Value of the common stock for
which such options may be exercised as of the date of such termination
reduced by the exercise price, as the case may be.
(iii) In the event of a termination of the Employee's employment with
the Company hereunder for Cause pursuant to Section 8(a) above, all rights
of the Employee under this Agreement shall immediately terminate and the
Company shall have no further obligations hereunder, subject to Section
8(f)(i) above and this provision. Furthermore, if the Employee is
terminated for Cause, all unvested options granted to the Employee pursuant
to the Equity Inventive Plan shall be kept in effect, or at the Employee's
option, the Company must purchase all unvested options at the exercise
price. Additionally, the Company shall have the right, but not the
obligation, at any time within 90 days (the "For Cause Purchase Period") of
such termination for Cause to purchase any or all of the Vested Options
granted to the Employee pursuant to the Equity Inventive Plan at a purchase
price equal to the lesser of (i) the exercise price of the Vested Options
or (ii) the Fair Market Value of the common stock for which such Vested
Options may be exercised as of the date of such termination reduced by the
exercise price, as the case may be. In the event of termination for Cause,
the Employee agrees not to exercise such Vested Options until the
expiration of the Purchase Period or receipt of notice from the Company
that it will not exercise its right to purchase the Vested Options.
Notwithstanding any of the foregoing, in the event that the Company has
terminated Employee's employment on account of a Theft Event, the Company
shall be entitled to withhold from any amounts otherwise payable to
Employee under this Subsection 8(f)(iii) the amount of monetary damages
incurred by the Company from such Theft Event which shall be quantified and
determined in writing by the Company within 90 days after the date of
termination.
(iv) "Fair Market Value" shall be the weighted average closing "ask"
price for the Company's publicly traded common stock for the fifteen
trading days immediately preceding the termination date; provided, however,
that if the Company's common stock is not publicly traded, the price shall
be based upon the price per share paid by third party investors for the
Company's Common Stock in a private placement of at least $1,000,000 of the
Company's Common Stock most recently before the date of termination.
9. Noncompetition and Confidentiality.
(a) Noncompetition. During the Employment Period and, in the case of a
termination of the Employee's employment for Cause, for a period of six (6)
months following the date of termination of employment, or, in the case of a
termination of the Employee's employment without Cause, for a period of one day
following the date of termination of employment (the "Covered Period"), the
Employee agrees not to engage in any Competitive Activity within the States of
New York, New Mexico, Texas and Wyoming. As used herein, the term "Competitive
Activity" shall mean the following: (i) providing competitive services, other
7
<PAGE>
than on behalf of the Company, to any Customer (as defined below); (ii) serving
as an officer, director, employee, consultant, advisor, agent or representative
of, or otherwise associating in any other capacity with, any person,
corporation, partnership, limited liability company, sole proprietorship,
association or other business enterprise, other than the Company, engaged in the
business of oil and gas exploration, drilling and production or any other
business in which the Company is engaged (each, a "Competitive Enterprise"), or
engaging individually in any Competitive Enterprise; (iii) owning or acquiring,
directly or indirectly, any interest in any Competitive Enterprise (provided,
however, the Employee shall be allowed to passively own for investment purposes,
directly or indirectly, no more than ten percent (10%) of the issued and
outstanding publicly traded securities of any issuer engaged in a Competitive
Enterprise); (iv) soliciting or inducing any partner, stockholder, member,
principal, director, officer, employee, consultant, agent or other
representative of the Company or one or more affiliates to leave the employ or
retention of the Company or such affiliate or hiring away any of the foregoing
persons; and/or (v) encouraging, requesting or advising, explicitly or
implicitly, any Customer or supplier of the Company or one or more of its
affiliates to withdraw, curtail or cancel its business relationships with the
Company or any affiliate thereof (unless expressly requested to do so by the
Company as part of the Employee's employment services provided hereunder).
As used in this Section 9, the term "Customer" shall include any person who
is or was a customer of the Company or an affiliate thereof at any time during
the period commencing with the Employment Period through the end of the Covered
Period.
(b) Confidentiality. During the Employment Period and for a period of five
(5) years thereafter, the Employee shall not, except as may otherwise be
required by law, directly or indirectly disclose to any person or entity, or use
or cause to be used in any manner adverse to the interests of the Company or any
affiliate thereof, any Confidential Information (as defined below in this
Section 9(b)). The Employee agrees that, upon the termination of his employment
with the Company for any reason, all Confidential Information (other than a copy
of this Agreement and any other agreements that have been personally executed by
the Employee other than in his capacity as an officer of the Company) and
duplicates thereof in the possession or control of the Employee, in any form or
format, including, without limitation, written, visual, audio, electronic or
magnetic formats, shall forthwith be returned to the Company and shall not be
retained by the Employee or furnished or communicated to any third party in any
form whatsoever.
As used in this Section 9(b), the term "Confidential Information" shall
mean the following: (i) information disclosed to the Employee or known by the
Employee as a consequence of the Employee's relationship with the Company or any
Affiliate thereof, as defined below, not generally known in the Company's
business, about the Company's or an Affiliate's employees, customers, directors,
officers, partners, shareholders, advertising methods, public relations methods,
business plans, operations, methods, processes and forecasts, vendors, finances,
trade marks, trade secrets, source code, patent applications, manuals, designs,
technical specifications and other intellectual property; (ii) information
disclosed to the Employee or known by the Employee as a consequence of the
8
<PAGE>
Employee's relationship with the Company or any Affiliate thereof, not generally
known in the businesses in which the customers of the Company or its affiliates
are or may be engaged, about the products, processes, operations, trade
information and services of any such customer; or (iii) information disclosed to
the Employee by the Company or any of its affiliate which is marked as
"confidential" or, if communicated verbally, is followed up by written
correspondence designating such information as "confidential." Affiliate shall
mean any person or entity that directly, or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Company.
(c) Severability. The invalidity or nonenforceability of any provision of
this Section 9 in any respect shall not affect the validity or enforceability of
the other provisions of this Section 9 in any other respect, or of any other
provision of this Agreement. In the event that any provision of this Section 9
shall be held invalid or unenforceable by a court of competent jurisdiction by
reason of the geographic or business scope or the duration thereof or for any
other reason, such invalidity or unenforceability shall attach only to the
particular aspects of such provision found invalid or unenforceable as applied
and shall not affect or render invalid or unenforceable any other provision of
this Section 9 or the enforcement of such provision in other circumstances, and
this Section 9 shall be construed as if the geographic or business scope or the
duration of such provision or other basis on which such provision has been
challenged had been more narrowly drafted so as not to be invalid or
unenforceable.
10. Business Opportunities. During the Employment Period, the Employee
agrees to bring all business opportunities to the Company relating to or
otherwise associated with the business or businesses then conducted by the
Company or each affiliate thereof, or business or businesses proposed to be
conducted by the Company.
11. Rights to Work Product. The Employee agrees that all work performed by
the Employee pursuant hereto shall be the sole and exclusive property of the
Company, in whatever stage of development or completion. With respect to any
copyrightable works prepared in whole or in part by the Employee pursuant to
this Agreement, including compilations of lists or data, the Employee agrees
that all such works will be prepared as "work-for-hire" within the meaning of
the Copyright Act of 1976, as amended (the "Act"), of which the Company shall be
considered the "author" within the meaning of the Act. In the event (and to the
extent) that such works or any part or element thereof is found as a matter of
law not to be a "work-for-hire" within the meaning of the Act, the Employee
hereby assigns to the Company the sole and exclusive right, title and interest
in and to all such works, and all copies of any of them, without further
consideration, and agrees, to the extent reasonable under the circumstances, to
cooperate with the Company to register, and from time to time to enforce, all
patents, copyrights and other rights and protections relating to such works in
any and all countries. To that end, the Employee agrees to execute and deliver
all documents requested by the Company in connection therewith, and the Employee
hereby irrevocably designates and appoints the Company as the Employee's agent
and attorney-in-fact to act for and on behalf of the Employee and in the
Employee's stead to execute, register and file any such applications, and to do
all other lawfully permitted acts to further the registration, protection and
issuance of patents, copyrights or similar protections with the same legal force
and effect as if executed by the Employee. The Company shall reimburse the
Employee for all reasonable costs and expenses incurred by the Employee pursuant
to this Section 11.
9
<PAGE>
12. No Disparaging Statements. During the Term of employment and for one
(1) year after termination of this Agreement for any reason whatsoever, the
Employee and the Company agree to refrain from making any disparaging
statements, either orally or in writing, about the other party (and, on the part
of the Employee, about any affiliate of the Company, or any directors, officers,
shareholders, employees, agents or other representatives of the Company or any
affiliate thereof).
13. Survival. The provisions of Sections 8(b), 8(c), 8(d), 8(f), 9, 11, 12,
14, 15, 16 and 17 hereof shall survive the termination of this Agreement for the
applicable time period necessary to fully effectuate the provisions of such
sections.
14. Compliance With Other Agreements. The Employee and the Company each
hereby represent and warrant to the other that the execution and delivery of
this Agreement and the performance of such party's obligations hereunder will
not, with or without the giving of notice and/or the passage of time, (i)
violate any judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to such party, or (ii) conflict with, result in
the breach of any provision of or the termination of, or constitute a default
under, any agreement to which such party is a party or by which such party is or
may be bound. The parties agree to indemnify and hold harmless each other from
any liability, judgment or claim incurred, entered or made against such party
based on its reliance on the representations and warranties made in this Section
14, including all costs and expenses and attorney's fees incurred or paid by
such party in connection with the foregoing.
15. Injunctive Relief. The Employee acknowledges and agrees that the
Company and its affiliates are engaged in a highly competitive business and that
the protections of the Company and each such affiliate set forth in Sections 9,
10 and 11 of this Agreement are fair and reasonable and are of vital concern to
the Company and its affiliates. Further, the Employee acknowledges and agrees
that monetary damages for any violation of such Sections will not adequately
compensate the Company and its affiliates with respect to any such violation.
Therefore, in the event of a breach by the Employee of any of the terms and
provisions contained in Sections 9, 10 or 11 hereof, the Company shall be
entitled to institute legal proceedings to enforce the specific performance of
this Agreement by the Employee and to enjoin the Employee from any further
violations. The remedies available to the Company pursuant to this Section 15
may be exercised cumulatively by the Company in conjunction with all other
rights and remedies provided by law.
16. Arbitration Of Disputes. If any dispute shall arise between the
Employee and the Company in connection with this Agreement, and such dispute
cannot be resolved amicably by the parties, the same shall be conclusively and
finally resolved by binding arbitration. Any party hereto may commence an
arbitration proceeding by providing written notice to the other party requesting
the arbitration of an unresolved dispute. Each such dispute, if any, shall be
submitted to three (3) arbitrators, one (1) to be selected by the Employee, one
10
<PAGE>
(1) to be selected by the Company, and the third to be selected by agreement of
the two arbitrators chosen by the parties. If either the Employee or the Company
refuses or neglects to appoint an arbitrator within thirty (30) days after
receipt of written notice from the other party requesting the other party to do
so, the American Arbitration Association may appoint two (2) arbitrators. If the
two arbitrators fail to agree on the selection of a third arbitrator within
thirty (30) days of their appointment, the appointment shall be left to the
American Arbitration Association. The arbitrators shall be experienced in the
subject matter of the dispute. Except as otherwise specifically set forth
herein, the arbitrators shall conduct the arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
decision in writing of any two (2) arbitrators, when filed with the parties
hereto, shall be final and binding on both parties. Judgment may be entered upon
the final decision of the arbitrators in any court having jurisdiction. Such
arbitration shall take place at a location to be mutually agreed to by the
Employee and the Company; provided, however, that if the Company and Employee
cannot agree on a location, the place shall be selected by the arbitrators.
Notwithstanding anything to the contrary contained in this Section 16,
nothing shall prohibit the Company or Employee from pursuing all legal and
equitable remedies available to the Company or Employee in order to enforce the
provisions of Sections 9, 10 and 11 of this Agreement. To the extent that any
court action is permitted consistent with or to enforce this Agreement, the
parties hereby consent to the jurisdiction of the federal or state courts
sitting in any state where the Company maintains an office. Accordingly, with
respect to any such court action, all of the parties hereto (a) submit to the
personal jurisdiction of such courts, (b) consent to service of process and (c)
waive any other requirement (whether imposed by statute, rule of court, or
otherwise) with respect to personal jurisdiction or service of process.
17. Amendment; Waiver; Discharge. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or discharge is
agreed to in writing and signed by the Employee and a duly authorized
representative of the Company. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
18. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
19. Notices. All notices, demands and other communications provided for in
this Agreement shall be in writing and shall be delivered by hand or sent via
fax transmission (with written fax confirmation) or mailed postage prepaid or by
registered, certified or express mail or reputable overnight courier service,
charges prepaid, and shall be deemed given when so delivered, if delivered by
hand, or upon receipt of reasonably adequate fax confirmation, if faxed, or, if
mailed, five (5) business days after mailing (or one (1) business day in the
case of express mail or overnight courier service), addressed as follows:
11
<PAGE>
If to the Employee:
David E. Fleming
105 Norfield Road
Weston, Connecticut 06883
If to the Company:
Warren Resources, Inc.
489 Fifth Avenue
32nd Floor
New York, NY 10016
Attention: Chief Executive Officer
(Fax): (212) 697-9466
(Tel.): (212) 697-9660
or to such other address or person as any party may have furnished to the other
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
20. Headings. All headings contained in this Agreement are for reference
purposes only and shall not in any way effect the meaning or interpretation of
any provision or provisions of this Agreement.
21. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supersedes
all prior agreements, promises, covenants, understandings, arrangements,
communications, representations or warranties, whether oral or written, by any
party or representative of any party hereto.
22. Assignment and Transfer. The Employee's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, and any
purported assignment, transfer or delegation thereof shall be void. This
Agreement shall inure to the benefit of, and be binding upon and enforceable by,
any purchaser of substantially all of the Company's assets, any corporate
successor to the Company or any assignee thereof.
23. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12
<PAGE>
24. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of law principles.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
WARREN RESOURCES, INC.
By: /s/ Norman F. Swanton
-----------------------------------------
Name: Norman F. Swanton
Title: Chief Executive Officer
/s/ David E. Fleming
-----------------------------------------
David E. Fleming
13