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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"AGREEMENT") made this
10th day of December, 2008 (the "EFFECTIVE DATE"), between
Foothills Resources,
Inc., a Delaware corporation with its principal place of
business located at
4540 California Avenue, Suite 550, Bakersfield, California
93309, its
affiliates, subsidiaries, successors and assigns (the
"COMPANY"), and John L.
Moran, an individual residing at 11902 Shanklin St.,
Bakersfield, California
93312 (the "EXECUTIVE").
WHEREAS, the Company employs the Executive (collectively, the
"PARTIES") as
its President pursuant to the terms of an employment agreement
dated April 6,
2006 between the Parties (the "ORIGINAL AGREEMENT"); and
WHEREAS, the Company recognizes that it is in the best interests
of the
Company and its shareholders to retain capable and experienced
executive
officers such as the Executive; and
WHEREAS, the Executive is willing to continue serving the
Company in the
capacity set forth above; and
WHEREAS, the Company and the Executive desire to amend and
restate the
Original Agreement to comply with Section 409A of the Internal
Revenue Code of
1986, as amended (the "CODE").
NOW, THEREFORE, in consideration of the covenants and promises
contained
herein, the Parties agree as follows:
1. EMPLOYMENT PERIOD. The Company shall continue to employ the
Executive,
and the Executive agrees to continue to serve the Company in
the
position of President in accordance with the terms and subject
to the
conditions of this Agreement continuing until such employment
is
terminated in accordance with the provisions of paragraph 11, in
which
case the provisions of paragraph 11 shall control (the
"TERM").
The Executive affirms that no obligation exists between the
Executive and
any other entity which would prevent or impede the Executive's
immediate and
full performance of every obligation of this Agreement.
2. POSITION AND DUTIES. During the Term, the Executive shall
serve in,
and assume duties and responsibilities consistent with, the
position
of President, unless and until otherwise instructed by the
Company.
During the Term, the Executive agrees to devote his working
time, as
set forth in Paragraph 4 hereof, using his skill, energy and
best
business efforts on behalf of the Company. During the Term,
Executive
shall not engage in any other employment, consulting or other
business
activity without the prior written consent of the Company,
which
consent shall not be unreasonably withheld.
3. NO CONFLICTS. The Executive covenants and agrees that for so
long as
he is employed by the Company, he shall inform the Company of
each and
every business opportunity related to the business of the
Company of
which he becomes aware, and that he will not, directly or
indirectly,
exploit any such opportunity for his own account, nor will he
render
any services to
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any other person or business, acquire any interest of any type
in any
other business or engage in any activities that conflict with
the
Company's best interests or which is in competition with the
Company.
4. DAYS/HOURS OF WORK AND WORK WEEK. The Executive shall
normally work 5
days per week and his hours of work shall be appropriate with
the
nature of the Executive's duties and responsibilities with
the
Company, it being recognized that such duties and
responsibilities
require flexibility in the Executive's work schedule.
5. LOCATION. The locus of the Executive's employment with the
Company
shall be the Company's corporate headquarters located in
Bakersfield,
California.
6. COMPENSATION.
(a) BASE SALARY. During the Term, the Company shall pay, and
the
Executive agrees to accept, in consideration for the
Executive's
services hereunder, pro rata semi-monthly payments of the
annual
salary of One Hundred Ninety Thousand Dollars ($190,000.00),
less
all applicable taxes and other appropriate deductions. In
addition, the Board shall review the Executive's base salary
annually and shall determine whether upward adjustment is
appropriate given the Company's operating performance over
the
relevant Term.
(b) ANNUAL BONUS. During the Term of this Agreement, the
Executive
shall be eligible to receive an annual bonus in an amount to
be
determined by the Board for each calendar year (or pro-rata
portion thereof in the case of a period of less than twelve
(12)
months) to be awarded and paid in the Board's sole
discretion
based on its review of the operating performance of the
Company
during the fiscal year to which the bonus pertains. Such
review
by the Board shall be based on an evaluation of the
Company's
results of operations relative to the Company's achievement
of
certain milestones established for the Company's operational
performance, and milestones established for the Executive's
performance, that shall be agreed to by the Executive and
the
Board from time to time. Each annual bonus shall be paid by
the
Company to the Executive promptly after the first meeting of
the
Board following the previous calendar year, but in no case
later
than March 30th of each year.
7. EXPENSES. During the Term, the Executive shall be entitled to
payment
for or reimbursement of any and all reasonable expenses paid
or
incurred by the Executive in connection with and related to
the
performance of his duties and responsibilities for the Company.
All
requests by the Executive for payment for or reimbursement of
such
expenses shall be supported by appropriate invoices,
vouchers,
receipts or such other supporting documentation in such form
and
containing such information as the Company may from time to
time
reasonably require, evidencing that the Executive, in fact,
incurred
or paid such expenses.
8. VACATION. During the Term of this Agreement, the Executive
shall be
entitled to accrue twenty five (25) vacation days per year.
9. STOCK OPTIONS.
(a) GRANT OF OPTIONS. The Company shall issue to the Executive
an
option to acquire three hundred thousand (300,000) shares of
the
Company's common stock (the
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"COMMON STOCK"), pursuant to the Company's then current
stock
option plan (the "PLAN"). The exercise price of the option to
be
granted pursuant to this paragraph 9(a) shall be equal to
the
fair market value per share of the Common Stock on the date
of
grant.
(b) VESTING AND EXERCISE OF OPTIONS. The option to be
granted
pursuant to paragraph 9(a) shall vest as follows: 25% of the
shares of Common Stock underlying such option will vest on
the
date of grant, and the remaining 75% of the shares of Common
Stock underlying the option will vest in equal annual on the
first, second and third anniversaries of the date of grant.
10. OTHER BENEFITS.
(a) During the Term, the Company shall purchase term life
insurance,
the beneficiary of which shall be the Executive's estate, with
a
benefit amount equal to or greater than One Million Dollars
($1,000,000.00), subject to the insurability of the
Executive
over the Term.
(b) During the Term, the Executive shall be eligible to
participate
in Company-sponsored benefit plans (collectively, the
"BENEFIT
PLANS") all in accordance with the Company's policies as in
effect from time to time and in substantially the same manner
and
at substantially the same levels as the Company makes such
opportunities available to the Company's employees.
11. TERMINATION OF EMPLOYMENT.
(a) DEATH. In the event that during the Term, the Executive
dies,
this Agreement and the Executive's employment with the
Company
shall automatically terminate and the Company shall have no
further obligations to the Executive or his heirs,
administrators
or executors with respect to compensation and benefits
accruing
thereafter, except for the obligation to pay to the
Executive's
heirs, administrators or executors any earned but unpaid
base
salary and vacation pay, and reimbursement of any and all
reasonable expenses paid or incurred by the Executive in
connection with and related to the performance of his duties
and
responsibilities for the Company during the period ending on
the
termination date. The Company shall deduct, from all
payments
made hereunder, all applicable taxes, including income tax,
FICA
and FUTA, and other appropriate deductions.
(b) DISABILITY. In the event that, during the Term, the
Executive
shall be prevented from performing his duties and
responsibilities hereunder to the full extent required by
the
Company by reason of a Disability (as defined below), this
Agreement and the Executive's employment with the Company
shall
automatically terminate and the Company shall have no
further
obligations to the Executive or his heirs, administrators or
executors with respect to compensation and benefits accruing
thereafter, except for the obligation to pay the Executive's
heirs, administrators or executors any earned but unpaid
base
salary and vacation pay, and reimbursement of any and all
reasonable expenses paid or incurred by the Executive in
connection with and related to the performance of his duties
and
responsibilities for the Company during the period ending on
the
termination date. The Company shall deduct, from all
payments
made hereunder, all applicable taxes, including income tax,
FICA
and FUTA. For
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purposes of this Agreement, "DISABILITY" shall mean a physical
or
mental disability that, in the Board's discretion, based upon
the
medical opinions of two qualified physicians specializing in
the
area or areas of the Executive's affliction, one of whom shall
be
chosen by the Board and one of whom shall be chosen by the
Executive, prevents the performance by the Executive, with
or
without reasonable accommodation, of his duties and
responsibilities hereunder for a continuous period of not
less
than six consecutive months.
(c) CAUSE.
(i) At any time during the Term, the Company may terminate
this
Agreement and the Executive's employment hereunder for
Cause. For purposes of this Agreement, "CAUSE" shall mean:
(a) the willful and continued failure of the Executive to
perform substantially his duties and responsibilities for
the Company (other than any such failure resulting from a
Disability) after a written demand by the Board for
substantial performance is delivered to the Executive by the
Company, which specifically identifies the manner in which
the Board believes that the Executive has not substantially
performed his duties and responsibilities, which willful and
continued failure is not cured by the Executive within
thirty (30) days of his receipt of such written demand; (b)
the conviction of, or plea of guilty or nolo contendere to a
felony, after the exhaustion of all available appeals; or
(c) fraud, dishonesty, competition with the Company,
unauthorized use of any of the Company's or any of its
subsidiary's trade secrets or confidential information, or
gross misconduct which is materially and demonstratively
injurious to the Company. Termination under paragraphs
11(c)(i)(b) and 11(c)(i)(c) above shall not be subject to
cure.
(ii) Termination of the Executive for Cause pursuant to
paragraph
11(c)(i)(a) shall be made by delivery to the Executive of a
copy of the written demand referred to in paragraph
11(c)(i)(a), or pursuant to paragraphs 11(c)(i)(b) or (c) by
delivery to the Executive of a written notice from the
Board, either of which shall specify the basis of such
termination, the conduct justifying such termination, and
the particulars thereof and finding that in the reasonable
judgment of the Board, the conduct set forth in paragraph
11(c)(i)(a), 11(c)(i)(b) or 11(c)(i)(c), as applicable, has
occurred and that such occurrence warrants the Executive's
termination of employment. Upon receipt of such demand or
notice, the Executive, shall be entitled to appear before
the Board for the purpose of demonstrating that Cause for
termination does not exist or that the circumstances which
may have constituted Cause have been cured in accordance
with the provisions of paragraph 11(c)(i)(a). No termination
shall be final until the Board has reached a determination
regarding "Cause" following such appearance.
(iii) Upon termination of this Agreement for Cause, the
Company
shall have no further obligations or liability to the
Executive or his heirs, administrators or executors with
respect to compensation and benefits thereafter, except for
the obligation to pay the Executive any earned but unpaid
base salary and vacation pay, and reimbursement of any and
all reasonable expenses paid or incurred by the Executive in
connection with and related to the performance of his duties
and responsibilities for the Company during the period
ending on the termination date. The Company shall deduct,
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from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate
deductions.
(d) GOOD REASON.
(i) At any time during the Term, subject to the conditions
set forth in paragraph 11(d)(ii) below, the Executive
may terminate this Agreement and the Executive's
employment with the Company for Good Reason. For
purposes of this Agreement, for "GOOD REASON" shall
mean the occurrence, without the Executive's consent,
of (i) a material diminishment of the Executive's job
assignment, duties, responsibilities or reporting
relationships which is inconsistent with his initial
position hereunder or any later agreed upon amendment
of that position; (ii) a material reduction in the
Executive's base compensation or total compensation
package, including benefit plans and programs; or (iii)
a material breach of the terms of this Agreement by the
Company, or any permitted successor or assignee.
(ii) The Executive shall be entitled to terminate this
Agreement and his employment with the Company for Good
Reason at any time, provided (A) that he has delivered
written notice to the Company of his intention to
terminate this Agreement and his employment with the
Company for Good Reason within 5 business days after
either (1) the date on which the Executive receives
written notice from the Company of the occurrence of
any event included within the meaning of Good Reason
under paragraph 11(d)(i) or (2) the date on which the
Executive obtains actual knowledge of the occurrence of
any event included within the meaning of Good Reason
under paragraph 11(d)(i), and (B) Executive's
termination of services to the Company occurs within
two years following the initial occurrence, without the
Executive's consent, of any event included within the
meaning of Good Reason under paragraph 11(d)(i). Such
notice, if given by the Executive pursuant to clause
(b) of the preceding sentence, shall specify in
reasonable detail the circumstances claimed to provide
the basis for such termination for Good Reason.
Notwithstanding the foregoing, the Executive shall not
be entitled to terminate this Agree
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