{"id":39654,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-tom-brown-inc-and-donald-l-evans.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-tom-brown-inc-and-donald-l-evans","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-tom-brown-inc-and-donald-l-evans.html","title":{"rendered":"Employment Agreement &#8211; Tom Brown Inc. and Donald L. Evans"},"content":{"rendered":"<pre>                          SECOND AMENDED AND RESTATED\n                              EMPLOYMENT AGREEMENT      \n\n\n         This Second Amended and Restated Employment Agreement (this\n'Agreement') is made by and between TOM BROWN, INC., a Delaware corporation\n(the 'Company'), having its principal offices at 500 Empire Plaza, Midland,\nTexas 79701, and Donald L. Evans (the 'Employee'), an individual residing at\n411 Carol Lane, Midland, Texas 79705.\n\n                             W I T N E S S E T H :\n\n         WHEREAS, the Company and the Employee entered into that certain First\nAmended and Restated Employment Agreement, dated as of May 21, 1992, providing\nfor, among other things, Employee's employment by the Company for the period\ncommencing January 1, 1992 and ending December 31, 1996; and\n\n         WHEREAS, the Company desires to amend, restate and extend the terms of\nthe Company's Employment Agreement with Mr. Evans as provided herein;\n\n         NOW, THEREFORE, in consideration of the premises and the other mutual\ncovenants contained herein, the Company and Employee hereby agree as follows:\n\n         1.      Employment.  The Company hereby agrees to employ Employee, and\nEmployee hereby agrees to render his exclusive service to the Company, in his\ncurrent capacity of Chief Executive Officer and Chairman of the Board of\nDirectors of the Company, with such duties as may be assigned to him from time\nto time by the Board of Directors for the period commencing on the date hereof\nand ending on December 31, 2001 (the 'Employment Period'), subject to earlier\ntermination as hereinafter provided.\n\n         2.      Place of Employment.  Unless otherwise agreed by the Company\nand Employee, throughout the Employment Period of this Agreement, Employee's\nbusiness office shall be located in Midland, Texas, at such location as may be\nspecified by the Board of Directors of the Company.\n\n         3.      Base Compensation.  Employee shall be compensated by the\nCompany at a minimum base rate of Two Hundred Seventy Nine Thousand Two Hundred\nSixty and No\/100 Dollars ($279,260.00) per annum, payable semi-monthly on the\nfifteenth and final days of each month during the Employment Period, subject to\nsuch increases and additional payments as may be determined from time to time\nby the Board of Directors of the Company in its sole discretion.  Such\ncompensation shall be in addition to any group insurance, pension, profit\nsharing and other employee benefits, including the Company's\n\n\n\n\nexisting employee benefit plans, which are extended from time to time to\nEmployee in the discretion of the Board of Directors of the Company and for\nwhich Employee is eligible.  Subject to such rules and procedures as are from\ntime to time specified by the Company, the Company shall also reimburse\nEmployee for all reasonable expenses incurred by him on behalf of the Company.\n\n         4.      Performance of Services.  Employee shall devote his full\nworking time to the business of the Company; provided, however, Employee shall\nbe excused from performing any services for the Company hereunder during\nperiods of temporary incapacity and during vacations conforming to the\nCompany's standard vacation policy, without thereby in any way affecting the\ncompensation to which he is entitled hereunder.\n\n         5.      Noncompetition.  Employee agrees that during his employment by\nthe Company and for so long thereafter as he is receiving Severance Benefit\nPayments (as such term is defined in Paragraph 10 hereof), he will not,\ndirectly or indirectly, either through any kind of ownership (other than\nownership of securities of publicly held corporations of which Employee owns\nless than one percent (1%) of any class of outstanding securities) or as a\ndirector, officer, agent, employee or consultant, engage in the business of\nmarketing products and services which are competitive with the products and\nservices marketed by the Company within the States of Texas, Wyoming, New\nMexico, Montana or North Dakota.  It is expressly agreed that the remedy at law\nfor breach of this covenant is inadequate and that injunctive relief shall be\navailable to prevent the breach thereof.\n\n         6.      Continuing Obligations.  In order to induce the Company to\nenter into this Agreement, the Employee hereby agrees that all documents,\nrecords, techniques, business secrets and other information which have come\ninto his possession from time to time during his employment by the Company or\nwhich may come into his possession during his employment hereunder, shall be\ndeemed to be confidential and proprietary to the Company and the Employee\nfurther agrees to retain in confidence any confidential information known to\nhim concerning the Company and its subsidiaries and their respective businesses\nso long as such information is not publicly disclosed.  In the event of a\nbreach or threatened breach by the Employee of the provisions of this Paragraph\n6, the Company shall, in addition to any other available remedies, be entitled\nto an injunction restraining Employee from disclosing, in whole or in part, any\nsuch information or from rendering any services to any person, firm or\ncorporation to whom any of such information may have been disclosed or is\nthreatened to be disclosed.\n\n         7.      Property of Company.  All data, drawings and other records and\nwritten material prepared or compiled by Employee or furnished to Employee\nwhile in the employ of the Company shall be the sole and exclusive property of\nthe Company, and\n\n\n\n\n\n                                      2\n\nnone of such data, drawings or other records, or copies thereof, shall be\nretained by Employee upon termination of his employment.\n\n         8.      Surviving Provisions.  The provisions of Paragraphs 5 (for so\nlong as the Employee is receiving Severance Benefit Payments), 6 and 7 of this\nAgreement shall continue to be binding upon Employee in accordance with their\nterms, notwithstanding termination of Employee's employment hereunder for any\nreason.\n\n         9.      Termination for Good Cause.  It is agreed and understood that\nthe Company cannot terminate the employment of the Employee under this\nAgreement except for good cause, and that, without prejudice to the generality\nof the right to terminate for good cause, each of the following contingencies\nshall be good cause:\n\n                 (a)      Should Employee by reason of injury or illness become\n         incapable for more than one hundred fifty (150) consecutive days of\n         satisfactorily performing his duties as an employee under this\n         Agreement;\n\n                 (b)      Should Employee for reasons other than illness or\n         injury absent himself from his duties without the consent of the\n         Company for more than ten (10) consecutive days;\n\n                 (c)      Should Employee commit a crime punishable by\n         imprisonment;\n\n                 (d)      Should Employee during the Employment Period engage\n         in any activity that would in the opinion of the Board of Directors of\n         the Company constitute a material conflict of interest with the\n         Company; provided that termination for cause based on this\n         subparagraph (d) shall not be effective unless the Employee shall have\n         received written notice from the Board of Directors of the Company of\n         such activity (which notice shall also include a demand for the\n         Employee to cease the activity giving rise to the conflict of\n         interest) 30 days prior to his termination and the Employee has failed\n         after receipt of such notice to cease all activities creating the\n         conflict of interest; or\n\n                 (e)      Should Employee be negligent or inefficient in the\n         performance of his duties hereunder, or otherwise fail to comply with\n         the terms and conditions of this Agreement; provided that termination\n         for cause based on this subparagraph (e) shall not be effective unless\n         the Employee shall have received written notice from the Board of\n         Directors of the Company (which notice shall include a description of\n         the reasons and\n\n\n\n\n\n                                       3\n\n         circumstances giving rise to such notice) 30 days prior to his\n         termination and the Employee has failed after receipt of such notice\n         to satisfactorily discharge the performance of his duties hereunder or\n         to comply with the terms of this Agreement, as the case may be.\n\n         The Company may for good cause terminate Employee's employment under\nthis Agreement without advance notice, except as otherwise specifically\nprovided for in subparagraphs (d) and (e) above. Termination shall not affect\nany of the Company's other rights and remedies.\n\n         10.     Severance Benefit Payment.  The Company shall provide Employee\nwith a severance benefit payment in an amount equal to the Employee's then\nexisting annual base pay (or an amount equal to the Employee's base pay for the\nbalance of the term hereof if less than one year) (the 'Severance Benefit\nPayment') upon (i) the occurrence of any one of the events specified in\nsubparagraphs (a) through (d) below and (ii) Employee's resignation from\nemployment (each, a 'Severance Event'):\n\n                 (a)  Without the express written consent of Employee, the\n         assignment of Employee to any duties inconsistent with his position,\n         duties, responsibilities or status with the Company as such exist as\n         of the date hereof or a reduction of his duties or responsibilities\n         for reasons other than good cause;\n\n                 (b)      Any failure of the Company to obtain the assumption\n         of the obligation to perform this Agreement by any successor as\n         contemplated in Paragraph 13 hereof;\n\n                 (c)      Any failure by the Company or its stockholders, as\n         the case may be, to re-elect the Employee to the corporate offices of\n         Chief Executive Officer and Director, or upon his removal from any\n         such office for reasons other than good cause; or\n\n                 (d)      Any breach by the Company (or any successor) of any\n         of the provisions of this Agreement or any failure by the Company to\n         carry out any of its obligations hereunder for reasons other than good\n         cause.\n\n         The Severance Benefit Payment shall be paid to Employee in\nsemi-monthly installments in the same amounts and at the same times as\nEmployee's base pay was being paid at the time of the Severance Event, until\nthe full amount of the Severance Benefit Payment has been paid.\n\n\n\n\n\n                                       4\n\n         11.     Payment of Certain Costs of Employee.  If a dispute arises\nregarding a termination of the Employee or the interpretation or enforcement of\nthis Agreement, all legal fees and expenses incurred by the Employee in\ncontesting or disputing any such termination or seeking to obtain or enforce\nany right or benefit provided for in this Agreement or in otherwise pursuing\nhis claim will be paid by the Company, to the extent the Employee prevails.\nThe Company further agrees to pay prejudgment interest on any money judgment\nobtained by the Employee calculated at the NationsBank of Texas, N.A. prime\ninterest rate in effect from time to time from the date that payment(s) to him\nshould have been made under this Agreement.\n\n         12.     Mitigation.  The Employee is not required to mitigate the\namount of any payments to be made by the Company pursuant to this Agreement by\nseeking other employment or otherwise.  Notwithstanding the foregoing, if the\nEmployee secures other employment while he is entitled to receive Severance\nBenefit Payments hereunder, such Severance Benefit Payments shall be reduced by\nthe amount of compensation received by Employee from such employment.  Employee\nshall notify the Company within fifteen (15) days after he accepts such new\nemployment of his monthly compensation from such employment.\n\n         13.     Successors.  (a)  The Company will require any successor\n(whether direct or indirect, by purchase, merger, consolidation or otherwise)\nto all or substantially all of the business and\/or assets of the Company, by\nagreement in form and substance satisfactory to the Employee, to expressly\nassume and agree to perform this Agreement in the same manner and to the same\nextent that the Company would be required to perform if no such succession had\ntaken place.  Failure of the Company to obtain such agreement prior to the\neffectiveness of any such succession shall be a breach of this Agreement and\nshall entitle the Employee to compensation from the Company in the same amount\nand on the same terms as the Employee would be entitled hereunder if he were to\nterminate his employment pursuant to subparagraphs 10(a), 10(b), 10(c) or\n10(d).  As used in this Agreement, 'Company' shall mean the Company as\nhereinbefore defined and any successor to its business and\/or assets as\naforesaid which executes and delivers the agreement provided for in this\nParagraph 13 or which otherwise becomes bound by all the terms and provisions\nof this Agreement by operation of law.\n\n         (b)     This Agreement shall inure to the benefit of and be\nenforceable by the Employee's personal or legal representatives, executors,\nadministrators, successors, heirs, distributees, devisees and legatees.  If the\nEmployee should die during the term hereof, the Company shall pay an amount\nequal to any amounts then payable to Employee hereunder, plus an amount equal\nto three months' salary, with all such amounts to be paid to Employee's\ndevisee, legatee or other designee or, if there be no such designee, to his\nestate.\n\n\n\n\n\n                                       5\n\n         14.     No Inconsistent Obligation.  Employee represents and warrants\nthat he has not previously assumed any obligations inconsistent with those of\nthis Agreement.\n\n         15.     Modification.    This Agreement shall be in addition to all\nprevious agreements, written or oral, relating to Employee's employment by the\nCompany, and shall not be changed orally, but only by a written instrument to\nwhich the Company and the Employee are both parties.\n\n         16.     Binding Effect.  This Agreement and the rights and obligations\nhereunder shall be binding upon and inure to the benefit of the parties hereto\nand their respective legal representatives, and shall also bind and inure to\nthe benefit of any successor of the Company by merger or consolidation or any\nassignee of all or substantially all of its properties.\n\n         17.     Bankruptcy.  Notwithstanding anything in this Agreement to the\ncontrary, the insolvency or adjudication of bankruptcy of the Company, whether\nvoluntary or involuntary, shall terminate this Agreement and the rights and\nobligations of the Company and Employee hereunder shall be of no further force\nor effect.\n\n         18.     Law Governing.  This Agreement is made, accepted and delivered\nin Midland County, Texas, is performable in Midland County, Texas, and it shall\nbe construed and enforced according to the laws of the State of Texas.  Venue\nshall lie in Midland County, Texas for the purpose of resolving and enforcing\nany dispute which may arise under this Agreement and the parties agree that\nthey will submit themselves to the jurisdiction of the competent State or\nFederal Court situated in Midland County, Texas.\n\n         19.     Invalid Provision.  In case any one or more of the provisions\ncontained in this Agreement shall be invalid, illegal or unenforceable in any\nrespect, the validity, legality and enforceability of the remaining provisions\ncontained herein shall not in any way be impaired thereby.\n\n         20.     Notice.  For purposes of this Agreement, notices and all other\ncommunications provided for herein shall be in writing and shall be deemed to\nhave been duly given when delivered or mailed by United States registered or\ncertified mail, return receipt requested, postage prepaid, addressed as\nfollows:\n\n                 If to Employee:\n\n                          Donald L. Evans\n                          411 Carol Lane\n                          Midland, Texas 79705\n\n\n\n\n\n                                       6\n\n                 If to Company:\n\n                          Tom Brown, Inc.\n                          500 Empire Plaza\n                          Suite 500\n                          Midland, Texas 79701\n\nor to such other address as either party may have furnished to the other in\nwriting in accordance herewith, except that notices of change of address shall\nbe effective only upon receipt.\n\n         Dated to be effective as of the lst day of January, 1997.\n\n\nEMPLOYEE                                   TOM BROWN, INC.\n\n\n\nBy: \/s\/ Donald L. Evans                By: \/s\/ William R. Granberry          \n   ------------------------------         ------------------------------------\n        Donald L. Evans                        William R. Granberry, President\n                                 \n\n\n\n\n\n\n\n\n012\\TBI\\Employment Agreement DLE 97\n\n\n\n\n\n                                       7\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6962],"corporate_contracts_industries":[9409],"corporate_contracts_types":[9539,9544],"class_list":["post-39654","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-brown-tom-inc","corporate_contracts_industries-energy__exploration","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39654","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39654"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39654"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39654"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39654"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}