EMPLOYMENT AGREEMENTEmployment Agreement |
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VENOCO, INC. | Timothy A. Ficker. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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This Employment Agreement ("Agreement") is entered into effective as of March 19, 2007 by and between Venoco, Inc., a Delaware corporation ("Company"), and Timothy A. Ficker ("Employee"). WHEREAS, the Company desires to employ Employee as its Chief Financial Officer and Employee desires to accept such employment; NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and agreements contained herein, and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Employment . The Company hereby employs Employee effective March 19, 2007 and Employee hereby accepts employment by the Company. Employee shall assume the title and responsibilities of Chief Financial Officer of the Company immediately following the filing by the Company of its Form 10-K for 2006. Employee's employment shall be on the terms and conditions set forth in this Agreement. 2. Term of Employment . Subject to the provisions for earlier termination provided in the Agreement, the term of this Agreement (the "Term") shall commence on the effective date of this Agreement as stated above and shall terminate on December 31, 2008; provided, however, commencing on January 1, 2008 and on each January 1 thereafter, the term of this Agreement shall automatically be extended one additional year unless, not later than September 30 of the preceding year, the Board of Directors of the Company (the "Board") shall give written notice to Employee that the Term of the Agreement shall cease to be so extended; provided, further, that if a Change in Control, as defined in Section 8, shall have occurred during the original or extended Term of this Agreement, the Term shall continue in effect for a period of not less than 36 months beyond the date of such Change in Control. In no event, however, shall the Term of this Agreement extend beyond the end of the calendar month in which Employee's 65th birthday occurs. Notwithstanding any provision of this Agreement to the contrary, termination of this Agreement shall not alter or impair any rights or benefits of Employee (or Employee's estate or beneficiaries) that have arisen under this Agreement on or prior to such termination, including, without limitation, the provisions of Sections 9(c), 15 and 18. 3. Employee's Duties . During the Term of this Agreement, Employee shall serve as the Chief Financial Officer of the Company, based in Denver, Colorado, and with such customary duties and responsibilities as may from time to time be assigned to him by the President, Chief Executive Officer and the Board, provided that such duties are at all times consistent with the duties of such position. Employee agrees to devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the duties and responsibilities assigned to Employee hereunder, to use reasonable best efforts to perform faithfully and efficiently such duties and responsibilities. 4. Base Compensation . For services rendered by Employee under this Agreement, the Company shall pay to Employee a base salary ("Base Compensation") of $220,000.00 per annum, payable in accordance with the Company's customary payroll practice for its executive officers. The amount of Base Compensation shall be reviewed periodically and may be increased to reflect inflation or such other adjustments as the Board may deem appropriate but Base Compensation, as increased, may not be decreased thereafter. 5. Annual Bonuses . Employee shall be eligible to participate in the Company's incentive compensation plan; under which cash bonuses are paid to employees based upon the performance of both the Company and the employee. The target annual bonus for the position of Chief Financial 1 Officer shall be 45% of Base Compensation. The annual bonus award will be determined by the Company's Compensation Committee each year for performance during the prior year and paid on April 1 of the year in which it is determined. The amount of the bonus shall be based on performance of the Employee and the Company as measured against goals established by the Compensation Committee. 6. [intentionally left blank] 7. Additional Benefits . In addition to the other compensation and benefits provided for in this Agreement, Employee shall be entitled to receive all fringe benefits and perquisites offered by the Company to its executive officers. Such benefits shall include, without limitation, four weeks paid vacation per year; participation in the Company's 401(k) Plan; participation in other incentive and benefit plans offered generally to key employees; participation in various employee benefit plans or programs provided to the employees of the Company in general, subject to the regular eligibility requirements with respect to each of such benefit plans or programs; and such other benefits or prerequisites as may be approved by the Board during the Term of this Agreement. Nothing in this paragraph shall be deemed to prohibit the Company from making any changes in any plans, programs or benefits described in this Section 7, provided the change similarly affects all executives of the Company similarly situated. 8. Change in Control . For purposes of this Agreement, a "Change in Control" shall mean the occurrence of one of the following events: (i) Any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act) other than Timothy M. Marquez, Bernadette B. Marquez, their respective legal representatives, devisees, donees and heirs and any Trust for the benefit of either or both of Timothy M. Marquez and Bernadette B. Marquez and/or the issue of either of them (the "Marquez Family") becomes a "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company's then outstanding securities, or the outstanding securities of a successor entity in the event of a business combination between the Company and another entity; provided that for purposes of this paragraph a "person" shall not include the entity with which the Company may consummate a business combination; (ii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. For purposes of this clause (ii), the term "the sale or disposition by the Company of all or substantially all of the Company's assets" shall mean a sale or other disposition transaction or series of related transactions (other than transactions related to the creation of a master limited partnership or royalty trust in which the Company continues its corporate existence), involving assets of the Company or of any direct or indirect subsidiary of the Company (including the stock of any direct or indirect subsidiary of the Company) in which the value of the assets or stock being sold or otherwise disposed of (as measured by the purchase price being paid therefor or by such other method as the Board determines is appropriate in a case where there is no readily ascertainable purchase price) constitutes more than two-thirds of the "fair market value of the Company" (as hereinafter defined). For purposes of the preceding sentence, the "fair market value of the Company" shall be the aggregate market value of the Company's outstanding common stock (on a fully diluted basis) plus the aggregate market value of the Company's other outstanding equity securities. The aggregate market value of the Company's equity securities shall be determined by multiplying the number of shares of the Company's common stock (on a fully diluted basis) outstanding on the date of the execution and delivery of a definitive agreement with respect to the transaction or series of related transactions (the "Transaction Date") by the average 2 closing price of such security for the ten trading days immediately preceding the Transaction Date, or if not publicly traded, by such other method as the Board shall determine is appropriate; or (iii) the Marquez Family is no longer the largest beneficial owner of the Company's outstanding voting securities and Timothy Marquez is no longer the Chief Executive Officer or Chairman of the Board of Directors of the Company. 9. Termination . This Agreement may be terminated prior to the end of its Term as set forth below. (a) Resignation . Employee may resign, including by reason of retirement, his position at any time. In the event of such resignation, except in the case of resignation on or following a Change in Control for Good Reason (as defined below), Employee shall not be entitled to further compensation pursuant to this Agreement. (b) Death . If Employee's employment is terminated due to his death, the Company shall pay Employee's beneficiaries or legal representatives (i) within 15 days, any Base Compensation and vacation pay which had accrued hereunder at the date of Employee's death; and (ii) within 30 days, the same benefits that Employee would receive in the event of Discharge following a Change in Control as described in Section 9(c)(i), below. (c) Discharge . (i) The Company may terminate this Agreement and Employee's employment for any reason deemed sufficient by the Company upon notice as provided in Section 12. However, in the event that Employee's employment is terminated during the Term by the Company on or following a Change in Control and for any reason other than his Misconduct (as defined in Section 9(c)(ii) below) then: (A) the Company shall pay in a lump sum, in cash, to Employee, within 15 days of the Date of Termination, an amount equal to three times the sum of (1) Employee's Base Compensation, (2) an amount equal to the highest incentive award paid or payable, as the case may be, to Employee under the Company's Incentive Compensation Plan during the current year and the three years prior to termination, (3) an amount equal to the amount of contributions that the Company would have made on behalf of Employee under the Company's 401(k) Plan during the prior year disregarding any limitations on benefits or covered compensation imposed by I.R.C. Sections 401(a)(17), 401(k), 401(m) or 415; (B) for the 36-month period after such Date of Termination, the Company shall provide or arrange to provide Employee (and Employee's dependents) with group health insurance benefits substantially similar to those which Employee (and Employee's dependents) were receiving immediately prior to the Notice of Termination, with the Employee charged a monthly premium(s) for such coverage(s) that does not exceed the premium(s) charged to an active employee for comparable coverage(s); benefits otherwise receivable by Employee pursuant to this clause (B) shall be reduced to the extent comparable benefits are actually received by Employee (and Employee's dependents) during the 36-month period following Employee's termination, and any such benefits actually received by Employee shall be reported to the Company (to the extent coverage and/or benefits received under a self-insured health plan of the Company (any successor or affiliate) are taxable to Employee, the Company shall make Employee "whole" on a net after tax basis); (C) within 30 days of the Date of Termination or, if later, the first date on which such payment would not subject Employee to suit under Section 16(b) of the Securities Exchange Act of 1934, if applicable, the Company shall offer to pay to Employee for cancellation of all outstanding stock-based awards then held by Employee on the Date of Termination (collectively, "Awards"), a lump sum amount in cash equal to the sum of the value (with respect to an option or stock appreciation right, the "spread"; and with respect to restricted stock or phantom stock, the value of an unrestricted share) of all such Awards, calculated, where applicable, as if all corporate performance goals 3 had been achieved (thus warranting full value of the Award) and in the case where the Company's stock is not publicly traded, using a fair market value on the Date of Termination as determined by an independent third party agreeable to the Company and Employee; and (D) within 30 days after the Date of Termination, the Company shall pay to Employee an amount equal to 36 times the excess of (i) the monthly premium payable immediately prior to the Notice of Termination for life, disability and accident benefits substantially similar to those which employee (and Employee's dependents) were receiving at such time, over (ii) the aggregate monthly premiums(s) charged to the Executive for such coverage at such time. (ii) Notwithstanding the foregoing provisions of this Section 9, in the event Employee is terminated because of Misconduct, the Company shall have no compensation obligations pursuant to this Agreement after the Date of Termination. As used herein, "Misconduct" means (a) the willful and continued failure by Employee to substantially perform his duties with the Company (other than any such failure resulting from Employee's incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination by Employee for Good Reason), after a written demand for substantial performance is delivered to Employee by the Board, which demand specifically identifies the manner in which the Board believes that Employee has not substantially performed his duties, or (b) the willful engaging by Employee in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes hereof, no act, or failure to act, on Employee's part shall be deemed "willful" unless done, or omitted to be done, by Employee not in good faith and without reasonable belief that Employee's action or omission was in the best interest of the Company. Notwithstanding the foregoing, Employee shall not be deemed to have been terminated for Misconduct unless and until there shall have been delivered to Employee a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice to Employee and an opportunity for Employee, together with Employee's counsel, to be heard before the Board), finding that in the good faith opinion of the Board Employee was guilty of conduct set forth above and specifying the particulars thereof in detail. (iii) If the Company terminates this Agreement and Employee's employment before the expiration of the Term, other than following a Change in Control and other than for Misconduct, the Company shall pay in a lump sum, in cash, to Employee within 15 days of the Date of Termination, an amount equal to two times the sum of (1) Employee's Base Compensation and (2) an amount equal the greater of $99,000 or the highest incentive award paid or payable, as the case may be, during the three years prior to termination. (d) Disability . (i) If Employee shall have been absent from the full-time performance of Employee's duties with the Company for six consecutive months as a result of Employee's incapacity due to physical or mental illness, as determined by Employee's physician, and within 30 days after written Notice of Termination is given by the Company Employee shall not have returned to the full-time performance of Employee's duties, Employee's employment may be terminated by the Company for "Disability" and Employee shall upon such termination be entitle |
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