Chord Energy Corp 8-K, filed Apr 19, 2021
Chord Energy Corp (CHRD)
8-K
2021-04-19
For: 2021-04-13
View Original
Added on
April 08, 2026
About this 8-K
Chord Energy Corp filed this 8-K on April 19, 2021, reporting on events of April 13, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.02: Ended a material agreement
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________________
FORM 8-K
____________________________________________________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 13, 2021
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(Exact name of registrant as specified in its charter)
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| (State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||||||||
| (Address of principal executive offices) | (Zip Code) | |||||||
Registrant’s telephone number, including area code: (281 ) 404-9500
Not Applicable.
(Former name or former address, if changed since last report)
____________________________________________________________________
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | ||||||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | ||||||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | ||||||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | ||||||||
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| Emerging growth company | |||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
The description of Daniel E. Brown’s employment agreement and related equity grant agreements in Item 5.02 is incorporated by reference into this Item 1.01.
Item 1.02 Termination of a Material Definitive Agreement.
The information regarding the termination of Douglas E. Brooks’s employment agreement in Item 5.02 is incorporated by reference into this Item 1.02.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Daniel E. Brown as Chief Executive Officer and Director. On April 13, 2021, the Board of Directors (the “Board”) of Oasis Petroleum Inc. (“Oasis” or the “Company”) appointed Daniel E. Brown to serve as Chief Executive Officer, effective immediately. In connection with the Board’s appointment of Mr. Brown as Chief Executive Officer, the Board increased the size of the Board from six to seven directors and appointed Mr. Brown to fill the newly-created directorship, effective immediately.
Mr. Brown, age 45, has 23 years of experience in the oil and natural gas industry. He spent his career with Anadarko Petroleum Corporation (“Anadarko”) or one of its predecessors until Anadarko was acquired by Occidental Petroleum Corporation (“Occidental”) in August 2019. From October 2017 to August 2019, Mr. Brown served as Anadarko’s Executive Vice President, U.S. Onshore Operations. Prior to that position, he served as Executive Vice President, International and Deepwater Operations beginning in May 2017; Senior Vice President, International and Deepwater Operations beginning in August 2016; Vice President, Operations (Southern and Appalachia) beginning in August 2013; and Vice President, Corporate Planning beginning in May 2013.
Mr. Brown joined Anadarko in August 2006 upon the acquisition of Kerr-McGee Corporation (“Kerr-McGee”), where he began his career. In addition to those positions mentioned above, Mr. Brown held positions of increasing responsibility with Anadarko and Kerr-McGee throughout his career in U.S. onshore and Gulf of Mexico segments, as well as internationally. Mr. Brown also served as a director of Western Gas Equity Partners, LP (NYSE: WGP) and Western Gas Partners, LP (NYSE: WES) from November 2017 to February 2019. After the February 2019 simplification of those two MLPs, he served on the board of Western Midstream Partners, LP (NYSE: WES) until August 2019, when the Anadarko-Occidental transaction was completed. Since January 2020, Mr. Brown has served on the board of Beacon Offshore Energy LLC, a private-equity sponsored exploration and production company that is focused on the deepwater Gulf of Mexico.
Mr. Brown is a registered Professional Engineer in the state of Texas and serves on the board of Junior Achievement of Southeast Texas. Mr. Brown holds a Bachelor of Science in Mechanical Engineering from Texas A&M University and an MBA from Rice University, where he was a Jones Scholar Award recipient.
The Board believes that Mr. Brown is qualified to serve as Chief Executive Officer and director of the Company based on his education and extensive experience in the oil and gas industry. He has served in senior leadership positions for two large well-respected oil and gas companies.
Board Chair. In connection with Mr. Brown’s appointment as Chief Executive Officer of the Company, Douglas E. Brooks ceased to serve as Chief Executive Officer. Mr. Brooks, who was serving as Board Chair at the time, was appointed Chief Executive Officer by the Board on December 22, 2020, to serve in that capacity during the period that the Board conducted a search for a new Chief Executive Officer. Under the terms of Mr. Brooks’s employment agreement relating to interim role as Chief Executive Officer, Mr. Brooks no longer serves as an employee of the Company and his employment agreement has been terminated. Mr. Brooks will continue to serve as Board Chair.
Lead Independent Director. In accordance with the Company’s Second Amended and Restated Bylaws (the “Bylaws”), when Mr. Brooks was appointed Chief Executive Officer and therefore held both the Chief Executive Officer role and the Board Chair role, the Board appointed director Samantha Holroyd to serve as Lead Independent Director. Because Mr. Brooks once again serves only as Board Chair (and not as Chief Executive Officer), the position of Lead Independent Director is no longer required under the Bylaws. Ms. Holroyd will continue to serve as a director of the Company, including as Chair of the Nominating, Environmental, Social and Governance Committee.
Brown Employment Agreement. In connection with Mr. Brown’s appointment as Chief Executive Officer, the Company entered into an employment agreement with Mr. Brown (the “Employment Agreement”). The Employment Agreement has an initial employment period of three years. Beginning with the third anniversary of Mr. Brown’s appointment as Chief Executive Officer, Mr. Brown’s employment period (“Employment Period”) will be automatically extended for a period of 12 months commencing on April 13, 2024, and on each successive annual anniversary of the commencement date of the then-current 12-month renewal period unless either the Company or Mr. Brown gives notice of non-renewal at least 90 days before the next renewal date. The Employment Agreement provides for an annual base salary of $600,000, with an annual target bonus of 100% of Mr. Brown’s base salary.
Termination of Employment. Under the Employment Agreement, upon any termination of employment, Mr. Brown is entitled to receive (i) accrued but unpaid salary, (ii) any unpaid annual performance bonus earned for the calendar year prior to the year in which Mr. Brown terminates, (iii) reimbursement of eligible expenses and (iv) any employee benefits due pursuant to their terms (collectively, the “Accrued Payments”).
Death or Disability. If Mr. Brown is terminated due to death or “disability,” then Mr. Brown will be entitled to receive the following amounts: (i) the Accrued Payments, (ii) a pro-rata portion of the annual performance bonus for the calendar year of termination, (iii) an amount equal to 12 months’ worth of Mr. Brown’s base salary, payable in a lump sum within 60 days following termination, and (iv) reimbursement of COBRA premiums, if Mr. Brown elects and remains eligible for COBRA, for up to 18 months following termination.
Non-Renewal of Employment Agreement. If Mr. Brown’s employment terminates by reason of the Company’s non-renewal of the Employment Agreement at expiration, Mr. Brown is entitled to receive reimbursement of COBRA premiums, if Mr. Brown elects and remains eligible for COBRA, for up to 12 months following termination. Except for this COBRA reimbursement obligation, and except as provided in any award notices for the Initial Equity Grants (as described below), the non-renewal of the Employment Agreement does not entitle Mr. Brown to any severance benefits, vesting of unvested equity grants or any other benefits.
Termination Other Than for Cause or Good Reason. If the Company terminates Mr. Brown’s employment for a reason other than “cause,” or if Mr. Brown terminates employment for “good reason,” and, in each case, such termination is not within 18 months following a “change in control,” then Mr. Brown will be entitled to receive the following amounts:
(i) the Accrued Payments;
(ii) a pro-rata portion of the annual performance bonus for the calendar year of termination;
(iii) an amount equal to two times (the “Severance Multiple”) the sum of (a) Mr. Brown’s base salary as of the date of termination, plus (b) the aggregate of the product of (x) Mr. Brown’s base salary as of the date of termination and (y) the target bonus percentage specified in the Employment Agreement (or such higher percentage specified by the Board with respect to the calendar year in which the date of termination occurs), payable in equal monthly installments (with amounts in excess of certain limitations under Section 409A of the Internal Revenue Code payable in a lump sum within 60 days); and
(iv) reimbursement of COBRA premiums, if Mr. Brown elects and remains eligible for COBRA, for up to 18 months following termination.
Severance amounts, other than the pro-rata bonus amount, are subject to Mr. Brown’s delivery to the Company (and non-revocation) of a release of claims within 50 days of his termination date.
Change in Control. Under the Employment Agreement, if Mr. Brown’s employment is terminated by the Company without “cause” or by Mr. Brown for “good reason,” in each case, within 18 months following a “change in control,” then the Severance Multiple is 2.5X instead of 2X.
Under the Employment Agreement, these severance amounts are paid on the same schedule as described above under “Termination Other Than for Cause or Good Reason.”
No Gross Up Payments. The Employment Agreement provides that, if any payments made pursuant to the Employment Agreement in connection with a change in control would result in Mr. Brown receiving golden parachute payments that are subject to excise tax under Section 280G and 4999 of the Internal Revenue Code, the Company will not provide any gross-up payment for those excise taxes. Instead, the Employment Agreement provides that any golden parachute payments will be paid to Mr. Brown in full (with Mr. Brown responsible for paying in full any related excise tax liability), unless reducing the amount of such payments to $1 less than the 280G safe harbor amount would result in a better net after-tax position for Mr. Brown. Generally, the 280G safe harbor amount is equal to three times Mr. Brown’s average annual compensation from the Company for the preceding five years, or such lesser period during which Mr. Brown was employed by the Company.
Restrictive Covenants. Mr. Brown is subject to certain confidentiality, non-compete and non-solicitation provisions contained in the Employment Agreement. The confidentiality covenants are perpetual, while the non-compete and non-solicitation covenants apply during the term of the Employment Agreement and for 12 months following Mr. Brown’s termination date.
Applicable Definitions. For purposes of the Employment Agreement, the terms listed below are defined as follows:
(i) “cause” means (a) Mr. Brown has been convicted of a misdemeanor involving moral turpitude or a felony, (b) Mr. Brown has engaged in grossly negligent or willful misconduct in performing his duties (including the willful failure to follow any lawful express directive of the Board, within the reasonable scope of Employee’s substantive duties) that has a material detrimental effect on the Company, (c) Mr. Brown has breached a material provision of the Employment Agreement or any material provision of a written code of conduct or similar Company policy, (d) Mr. Brown has engaged in conduct that is materially injurious to the Company or
(e) Mr. Brown has committed an act of fraud. Under the Employment Agreement, Mr. Brown will have a limited period of 30 days to cure events (except in the case of a cause event described in clause (a) above).
(ii) “change in control” means (a) a person acquires 50% or more of the Company’s outstanding stock or outstanding voting securities, subject to certain limited exceptions, (b) individuals who serve as board members on the effective date of the Employment Agreement (or who are subsequently approved by a majority of such individuals), cease for any reason to constitute at least a majority of the Company’s Board of Directors, (c) consummation of a reorganization, merger, consolidation or a sale of all or substantially all of the Company’s assets, subject to certain limited exceptions, or (d) approval by the Company’s stockholders of a complete liquidation or dissolution.
(iii) “disability” means Mr. Brown’s physical or mental impairment that prevents him from being able to perform his inability to perform his essential job functions with or without reasonable accommodation, as may be required by law for a period of 180 days in any 12-month period.
(iv) “good reason” means, without Mr. Brown’s express written consent, (a) a material reduction in Mr. Brown’s base salary or target performance bonus percentage, (b) the failure by the Company to continue to provide Mr. Brown with the opportunity to participate in any material equity incentive compensation plan during the Employment Period, (c) a material diminution in Mr. Brown’s authority, status, title, position, duties or responsibilities, (d) the failure by the Board to nominate Mr. Brown for reelection as a director in connection with any stockholder meeting at which Mr. Brown’s term as a director is scheduled to expire; (e) the assignment to Mr. Brown of any duties or responsibilities that are materially inconsistent with such status, title, position or responsibilities; (f) a change in the geographic location where Mr. Brown must normally perform services by more than 50 miles; or (g) a material breach by the Company of the Employment Agreement. Mr. Brown must notify the Company within 60 days after the occurrence of any such event and the Company has 30 days following notice to cure. The definition of “good reason” provides that the Initial Equity Grants satisfy the equity incentive plan participation requirement through the end of the 2023 fiscal year.
This summary of the Employment Agreement is qualified in its entirety by reference to the full text of the Employment Agreement, which is attached hereto as Exhibit 99.2 and is incorporated by reference herein.
Adoption of New Equity Incentive Program. As previously disclosed on the Company’s Current Report on Form 8-K filed on January 21, 2021, the Compensation Committee of the Board approved a new equity incentive program for the Company on January 18, 2021. The new equity incentive program consists of three types of restricted stock units:
• Time-Vested Restricted Stock Units (“RSUs”): contingent shares vest 25% per year over four years to promote retention of key executives.
• Relative Total Shareholder Return Performance Share Units (“PSUs”):
• Contingent shares that may be earned over three and four years depending upon the Company’s relative total shareholder return (“TSR”) performance in comparison to pre-determined arrays of companies, as described below. These relative TSR PSUs promote alignment with shareholder interests by rewarding for shareholder returns measured against potential alternative investments.
• The number of PSUs earned over the three- or four-year performance periods ranges from 0 to 150% of target, based on performance.
• 50% of the PSU awards are based on performance relative to the Company’s oil & gas peers (divided evenly between the three- and four-year performance periods).
• 50% of the PSU awards are based on performance relative to the broad-based Russell 2000 index (divided evenly between the three- and four-year performance periods).
• Absolute TSR PSUs (also known as Leveraged Stock Units (“LSUs”)):
• Contingent shares that may be earned over three and four years depending upon the TSR performance of the Company’s common stock measured against specific premium return objectives. These absolute TSR PSUs promote alignment with shareholder interests by rewarding for the absolute increase in total shareholder returns.
• 50% of the LSU awards are measured over three years, and 50% measured over four years
• The number of LSUs earned over the three- or four-year performance periods ranges from 0 to 300% of target, based on performance
The Compensation Committee’s new equity incentive program is designed to represent a three-year grant, which the Compensation Committee believes incentivizes the Company’s management team to achieve sustained stock performance over an extended period of time. In other words, after the initial equity grants made to Mr. Brown described below, the Compensation Committee does not intend to make any additional equity grants to Mr. Brown until the 2024 fiscal year at the earliest.
Initial Equity Grants to Mr. Brown. As required by the Employment Agreement, on April 13, 2021, the Compensation Committee made the following initial grants under the new equity incentive program (the “Initial Equity Grants”) to Mr. Brown:
| Type of Equity Grant | Target | Maximum | ||||||||||||
| Time-Vested RSUs (0-100%) | 43,975 | 43,975 | ||||||||||||
| Relative TSR PSUs (0-150%) | 43,980 | 65,970 | ||||||||||||
Absolute TSR PSUs (LSUs) (0-300%)(1) | 74,584 | 223,752 | ||||||||||||
(1) In addition to the 300% cap, the total number of shares of common stock that may be delivered under the LSUs shall not exceed 10 times the fair value of the LSUs as of the date of grant.
Initial Equity Grant Vesting Provisions
The Employment Agreement provides that accelerated vesting will occur only on the terms set forth in the applicable grant agreement. The vesting provisions of the Initial Equity Grants are summarized below. Future equity agreements, if any, are not required to include these vesting provisions.
For purposes of each of the Initial Equity Awards, “disability,” “cause,” “good reason” and “change in control” have generally the same meaning described above with respect to the Employment Agreement.
Time-Vested RSUs. If Mr. Brown’s employment with the Company is terminated prior to the end of the four-year forfeiture restriction period (i) by the Company without “cause,” (ii) by reason of the Company’s non-renewal of the Employment Agreement (a “Non-Renewal”), (iii) by Mr. Brown for “good reason” or (iv) by reason of Mr. Brown’s death, then, upon termination, Mr. Brown will vest in the number of unvested RSUs that were scheduled to vest within 12 months following his termination. Furthermore, if any of these types of termination occurs within 18 months following a change in control, then all unvested RSUs will vest in full upon Mr. Brown’s termination.
Furthermore, if a change in control occurs and the acquiring company does not assume the RSUs and convert them into a substantially equivalent award, then all unvested RSUs will vest in full upon the completion of the change in control.
Relative TSR PSUs and Absolute TSR PSUs (LSUs). If Mr. Brown’s employment with the Company is terminated prior to the end of the four-year forfeiture restriction period (i) by the Company without “cause,” (ii) by reason of a Non-Renewal, (iii) by Mr. Brown for “good reason” or (iv) by reason of Mr. Brown’s death, then, actual PSU and LSU performance would be measured at end of the entire three- or four-year measurement period (or, if earlier, a post-termination change in control-adjusted performance period), and then the amount of the earned award would be prorated based on (A) Mr. Brown’s service following the date of his Employment Agreement or (B) 12 months, whichever is greater, as a percentage of the entire measurement period.
Furthermore, if change in control occurs prior to the end of a performance measurement period, then performance will be measured based on the change in control price. In addition, if the change of control occurs 18 months or less following the date of the Employment Agreement, performance will be measured against (i) the change in control price or (ii) 100% of target payout, whichever is greater.
This summary of the Initial Equity Grants is qualified in its entirety by reference to the full text of Mr. Brown’s forms of award notices and related grant agreements for the RSUs, PSUs and LSUs, which are attached hereto as Exhibits 99.3, 99.4 and 99.5 and are incorporated by reference herein.
Indemnification Agreement. In connection with his appointment as Chief Executive Officer and director of the Company, Mr. Brown entered into an Indemnification Agreement in the form entered into by the other executive officers and directors of the Company (the “Indemnification Agreement”). The Indemnification Agreement provides for indemnification and advancement of litigation and other expenses to the fullest extent permitted by law for claims relating to Mr. Brown’s service to the Company or any of its subsidiaries. This summary of the Indemnification Agreement is qualified in its entirety by reference to the full text of that agreement, which is attached hereto as Exhibit 99.6 and is incorporated by reference herein.
Item 7.01. Regulation FD Disclosure
On January 21, 2021, the Company issued a press release with respect to Mr. Brown’s appointment as Chief Executive Officer and a director. The full text of the press release is furnished with this Current Report on Form 8-K as Exhibit 99.1.
In accordance with General Instruction B.2 of Form 8-K, the information set forth in this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Current Report on Form 8-K shall not be deemed an admission as to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The exhibit listed in the following Exhibit Index is filed as part of this Current Report on Form 8-K.
| Exhibit No. | Description of Exhibit | |||||||
Press Release issued by Oasis Petroleum Inc. on April 14, 2021. | ||||||||
99.2† | Employment Agreement, dated April 13, 2021, by and between Oasis Petroleum Inc. and Daniel E. Brown | |||||||
99.3† | Form of Notice of Grant for Restricted Stock Units for Daniel E. Brown dated April 13, 2021 (with form of associated Restricted Stock Unit Agreement attached thereto) | |||||||
99.4† | Form of Notice of Grant for Relative Total Shareholder Return Performance Share Units for Daniel E. Brown dated April 13, 2021 (with form of associated Performance Share Unit Agreement attached thereto) | |||||||
99.5† | Form of Notice of Grant for Absolute Total Shareholder Return Performance Share Units for Daniel E. Brown dated April 13, 2021 (with form of associated Performance Share Unit Agreement attached thereto) | |||||||
99.6† | Indemnification Agreement, dated April 13, 2021, by and between Oasis Petroleum Inc. and Daniel E. Brown | |||||||
__________________
† Indicates Management Compensatory Plan, Contract or Arrangement.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
OASIS PETROLEUM INC. (Registrant) | |||||||||||||||||
| Date: April 19, 2021 | By: | /s/ Nickolas J. Lorentzatos | |||||||||||||||
Nickolas J. Lorentzatos | |||||||||||||||||
Executive Vice President, General Counsel and Corporate Secretary | |||||||||||||||||
Oasis Petroleum Appoints Daniel E. Brown as Chief Executive Officer and Board Member
HOUSTON, April 14, 2021 /PRNewswire/ -- Oasis Petroleum Inc. ("Oasis" or the "Company") (NASDAQ:OAS) today announced that it has appointed Daniel E. "Danny" Brown as Chief Executive Officer effective April 13, 2021. At the same time, Mr. Brown was also appointed to the Oasis Board of Directors.
Mr. Brown has 23 years of experience in the oil and natural gas industry having spent his career with Anadarko Petroleum Corporation, or one of its predecessors, until Anadarko was acquired by Occidental Petroleum in August 2019. From October 2017 to August 2019, Mr. Brown served as Anadarko's Executive Vice President, U.S. Onshore Operations. Prior to that position, he served as Executive Vice President, International and Deepwater Operations beginning in May 2017; Senior Vice President, International and Deepwater Operations beginning in August 2016; Vice President, Operations (Southern and Appalachia) beginning in August 2013; and Vice President, Corporate Planning beginning in May 2013.
Mr. Brown joined Anadarko in August 2006 upon the acquisition of Kerr-McGee Corporation, where he began his career. In addition to those positions mentioned above, Mr. Brown held positions of increasing responsibility with Anadarko and Kerr-McGee throughout his career in U.S. onshore and Gulf of Mexico segments, as well as internationally. Mr. Brown was also a director of Western Gas Equity Partners, LP and Western Gas Partners, LP from November 2017 to February 2019. After the February 2019 simplification of those two MLPs, he served on the board of Western Midstream Partners, LP until August 2019, when the Anadarko-Occidental transaction was completed. Since January 2020, Mr. Brown has served on the board of Beacon Offshore Energy LLC, a private-equity sponsored exploration and production company that is focused on the deepwater Gulf of Mexico.
Mr. Brown is a registered Professional Engineer in the state of Texas and serves on the board of Junior Achievement of Southeast Texas. Mr. Brown holds a Bachelor of Science in Mechanical Engineering from Texas A&M University and an MBA from Rice University, where he was a Jones Scholar Award recipient.
Douglas E. Brooks, Oasis's Board Chair, commented, "On behalf of our Board of Directors, we are extremely pleased to welcome Danny Brown to assume our senior leadership role at Oasis. Danny's impeccable reputation and extensive industry experience in a variety of leadership and operational positions at Anadarko and Kerr-McGee make him the perfect fit for our Company. His skills are also highly complementary to our existing senior leadership team: Taylor Reid, President and Chief Operating Officer; Michael Lou, Executive Vice President and Chief Financial Officer; and Nickolas Lorentzatos, Executive Vice President and General Counsel. The Board is excited to have such a strong leadership team at Oasis as we develop and execute strategies to maximize shareholder value in a responsible fashion with a strong focus on our ESG values.
"Since I will now be serving only as Board Chair, the role of Lead Independent Director is no longer required under our bylaws. Samantha Holroyd, who has served in that role, will continue as a director, including in her role as Chair of the Nominating, Environmental, Social and Governance Committee. Samantha and the other members of that committee conducted a
thorough and comprehensive search for our new CEO, and we believe the result is a strong endorsement of Oasis' future with Mr. Brown becoming our CEO."
Danny Brown, Chief Executive Officer, remarked, "I greatly appreciate the confidence shown by the board of directors in asking me to lead this exceptionally well positioned company with its well-respected management team and board, talented professionals, premier assets, pristine balance sheet, commitment to ESG and new strategic vision. I look forward to working with our board, senior management, and our full complement of dedicated team members as we plan and execute our new path forward to maximize value for our stakeholders."
Forward-Looking Statements
This press release contains forward-looking statements that involve a number of risks and uncertainties, including those detailed in the Company's filings with the SEC, including the Company's 2020 Annual Report on Form 10-K. These risks and uncertainties are incorporated by this reference as though fully set forth herein. There is no assurance that the goals, expectations, and timing herein can or will be met. In addition, any forward-looking statements represent the Company's estimates only as of today and should not be relied upon as representing its estimates as of any future date. Oasis assumes no obligation to update its forward-looking statements. All statements, other than statements of historical facts, included in this press release that address activities, events or developments that the Company expects, believes or anticipates will or may occur in the future are forward-looking statements.
About Oasis Petroleum Inc.
Oasis Petroleum, Inc. is an independent exploration and production company with quality and sustainable long-lived assets in the Williston and Delaware Basins. The Company is uniquely positioned with a best-in-class balance sheet and is focused on rigorous capital discipline and generating free cash flow by operating efficiently, safely and responsibly to develop its unconventional onshore oil-rich resources in the continental United States. For more information, please visit the Company's website at www.oasispetroleum.com.
SOURCE Oasis Petroleum Inc.
For further information: Douglas E. Brooks, Board Chair; Michael H. Lou, Chief Financial Officer and Executive Vice President; and Bob Bakanauskas, Director, Investor Relations, (281) 404-9600
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) between Oasis Petroleum Inc., a Delaware corporation (the “Company”), and Daniel E. Brown (“Employee”), is entered into on and as of April 13, 2021 (the “Effective Date”).
NOW, THEREFORE, in consideration the mutual promises, covenants, representations, obligations 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 shall employ Employee, and Employee accepts employment with the Company, upon the terms and conditions set forth in this Agreement beginning on the Effective Date. Unless earlier terminated pursuant to Section 4 below, the initial term of this Agreement shall begin on the Effective Date and end on April 13, 2024. The period from the Effective Date until the termination of Employee’s employment under this Agreement is referred to as the “Employment Period.” The term of this Agreement and the Employment Period shall be automatically renewed and extended for a period of 12 months commencing on April 13, 2024, and on each successive annual anniversary of the commencement date of the then-current 12-month renewal period, in each case unless either Employee or the Company gives notice of non-renewal to the other party on or prior to the 30th day prior to the then-scheduled expiration of the Employment Period. For the avoidance of doubt, the term “Employment Period” shall include any extensions of the period of employment pursuant to the auto-renewal provision included in this Section 1. To the extent Employee remains employed by the Company after the expiration of the Employment Period, such employment shall be subject to the terms and conditions to which the Company and Employee at that time shall agree.
2.Employee’s Duties; Other Interests; Duty of Loyalty.
(a)Positions. For the compensation and benefits provided herein, during the Employment Period, Employee shall serve as Chief Executive Officer of the Company (and/or in such other positions as the parties mutually may agree), with such customary duties and responsibilities as may from time to time be assigned to him by the Company’s Board of Directors (the “Board”), provided that such duties are at all times consistent with the duties of such position. Employee will report to the Board. Employee will also serve without additional compensation as a member of the Board, subject to any required approval of the Company’s stockholders. For the avoidance of doubt, the term “such other positions” in the first sentence of this Section 2(a) includes one or more officer, director, manager or similar positions of the Company or any of the Company’s Affiliates (including, without limitation, OMP GP LLC). For purposes of this Agreement, the term “Affiliate” shall mean any entity that owns or controls, is owned or controlled by, or is under common ownership or control with, the Company. Employee agrees to serve in the positions referred to herein and to perform all duties relating thereto diligently and to the best of his ability.
(b)Other Interests. Employee agrees, during the period of his employment by the Company, to devote his business time, energy and best efforts to the business and affairs of the Company and its Affiliates and not to engage, directly or indirectly, in any other business or
businesses, regardless of whether similar to that of the Company, except with the prior written consent of the Board or the Nominating, Environmental, Social & Governance Committee of the Board (the “NESG Committee”). The foregoing notwithstanding, the parties recognize and agree that Employee may (x) manage his personal, financial, and legal affairs; and (y) engage in professional, charitable or community activities or organizations that do not conflict with the business and affairs of the Company or interfere with Employee’s performance of his duties hereunder; provided, however, that Employee agrees that if the Board or NESG Committee determines that continued service with one or more of these entities described in clause (y) conflicts with the business and affairs of the Company or interferes with Employee’s duties hereunder and gives written notice of such to Employee, Employee will promptly resign from such position(s). Employee further agrees that Employee shall not become a director of any for profit entity without first receiving the approval of the NESG Committee.
(c)Duty of Loyalty. Employee acknowledges and agrees that Employee owes a fiduciary duty of loyalty, fidelity, and allegiance to use his reasonable best efforts to act at all times in the best interests of the Company. During the Employment Period, Employee agrees to comply with and, where applicable, enforce the policies of the Company, including without limitation such policies with respect to legal compliance, conflicts of interest, confidentiality, professional conduct and business ethics as are from time to time in effect. In keeping with these duties, Employee shall make full disclosure to the Company of all business opportunities pertaining to the Company’s business and shall not appropriate for Employee’s own benefit business opportunities concerning the subject matter of the fiduciary relationship. Employee shall cooperate with any investigation or inquiry authorized by the Board or conducted by a governmental authority related to the Company’s or an Affiliate’s business or the Employee’s conduct related to the Company or any Affiliate thereof.
3.Compensation and Benefits.
(a)Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall pay to Employee an annual base salary of $600,000, (“Base Salary”), payable in accordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. The Base Salary shall be reviewed for and subject to increases (but not decreases) by the Compensation Committee of the Board (the “Compensation Committee”) in good faith, based upon Employee’s performance and the Company’s pay philosophy. The term “Base Salary” shall refer to the Base Salary as may be in effect from time to time.
(b)Annual Bonus. During the Employment Period, Employee shall be eligible to receive an annual performance bonus payment (a “Performance Bonus”) for each calendar year pursuant to an annual cash performance bonus program (the “Bonus Plan”). Pursuant to the terms of the Bonus Plan, each annual Performance Bonus shall be payable based on the achievement of reasonable performance targets established in accordance herewith, and for each calendar year Employee’s target Performance Bonus shall be equal to 100% or such greater percentage as is determined by the Compensation Committee (the “Target Performance Bonus Percentage”) of Employee’s annual Base Salary in effect on the last day of the applicable
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calendar year; provided, however, that the Target Performance Bonus Percentage for a given year may be increased (but not decreased without the Employee’s written consent) by the Compensation Committee in its discretion. For each calendar year, the Compensation Committee will determine and establish in writing (i) the applicable performance targets, (ii) the percentage of annualized Base Salary payable to Employee if some lesser or greater percentage of the target annual performance is achieved, and (iii) such other applicable terms and conditions of the Bonus Plan necessary to be exempt from or to satisfy the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). Except as otherwise provided in Section 6, any Performance Bonus that Employee becomes entitled to receive (as a result of the applicable performance targets ultimately being achieved) will be deemed earned on the last day of the calendar year to which such bonus relates and will be paid to Employee as soon as administratively feasible following preparation of the Company’s unaudited financial statements for the applicable calendar year, but in no event later than March 15 of the calendar year following the calendar year to which such Performance Bonus relates. For purposes of clarity, the reference in the preceding sentence to a Performance Bonus being deemed “earned” on the last day of the calendar year applies to a calendar year for which Employee is employed through the last day of the calendar year, except as otherwise provided in Section 6.
(c)Initial Equity Grants. On the Effective Date, the Company shall grant Employee equity grants under the Company’s 2020 Long Term Incentive Plan, with respect to an aggregate target of 162,539 shares of the Company’s common stock (the “Initial Equity Grants”), which aggregate target number of shares shall be allocated as follows: (i) 25% to time-based restricted stock units, the award agreement for which is attached hereto as Exhibit B; (ii) 25% to relative total shareholder return performance share units, the award agreements for which are attached hereto as Exhibits C-1 and C-2; and (iii) 50% to absolute total shareholder return performance share units, the award agreements for which are attached hereto as Exhibits D1 and D2. The Initial Equity Grants shall be made pursuant to, and shall be subject to the terms and conditions set forth in, the award notices executed and delivered by Employee and the Company contemporaneously herewith, the award agreements, and the 2020 Long Term Incentive Plan.
(d)Equity Compensation. During the Employment Period and in addition to the Initial Equity Grants, Employee shall be eligible to participate in any equity compensation arrangement or plan offered by the Company to senior executives on such terms and conditions as the Compensation Committee shall determine. Other than for the Initial Equity Grants, nothing herein shall be construed to give Employee any rights to any amount or type of awards, or rights as a stockholder pursuant to any such plan, grant or award except as provided in such award or grant to Employee provided in writing and authorized by the Compensation Committee.
(e)Other Benefits.
(i)General. During the Employment Period, Employee shall be eligible to participate in benefit and additional incentive compensation plans generally offered by the Company to similarly situated executives, as in effect from time to time, including, without limitation, participation in the various health, retirement, life insurance, short-term and long-term disability insurance, parking and other
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executive benefit plans or programs provided to the executives 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 perquisites as may be approved by the Compensation Committee during the Employment Period. Employee shall be entitled to vacation in accordance with the Company’s plans, policies, programs and practices as in effect from time to time. The Company shall not, however, by reason of this Section 3(e)(i), be obligated to refrain from changing, amending, or discontinuing any such benefit plan or program, on a prospective basis, so long as any such changes are similarly applicable to similarly situated employees of the Company.
(ii)Business Expenses. The Company shall reimburse Employee for all reasonable business expenses incurred by Employee in the performance of his duties, which expenses will be subject to the oversight of the CEO and the Audit Committee of the Board (or such other designated committee of the Board) in the normal course of business and will be compliant with the Company’s reimbursement policies applicable from time to time to executives generally. Requests for reimbursement for such expenses must be accompanied by appropriate documentation. It is understood that Employee is authorized to incur reasonable business expenses for promoting the business of the Company, including, without limitation, reasonable expenditures for travel, lodging, meals and client or business associate entertainment. Employee is not permitted to receive a payment or other benefit in lieu of reimbursement under this Section 3(e)(ii). Notwithstanding the foregoing, and for the avoidance of doubt, any expenditures by Employee must comply with the Company’s Code of Business Conduct and Ethics and any similar written policies applicable to the Employee, in each case as in effect from time to time.
4.Termination of Employment. Unless otherwise agreed to in writing by the Company and Employee, Employee’s employment hereunder may be terminated under the following circumstances:
(a)Death. Employee’s employment hereunder shall terminate upon his death.
(b)Disability. The Company may terminate Employee’s employment for Disability by giving Notice of Termination at least 30 days prior to the Date of Termination. If Employee does not return to the substantial performance of his duties on a full-time basis within 30 days of such Notice of Termination, Employee’s employment under this Agreement shall be terminated due to Disability, and such termination will not be a breach of this Agreement by the Company. For purposes of this Agreement, “Disability” means Employee’s physical or mental impairment that prevents him from being able to perform his essential job functions under this Agreement (with or without reasonable accommodation, as may be required by applicable law) for a period of 180 days in any 12-month period.
(c)Cause; Suspension and Investigation. The Company has the right to terminate Employee’s employment for Cause by providing Employee with a Notice of Termination, and such termination will not be a breach of this Agreement by the Company. The
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Company may temporarily suspend Employee with pay pending an investigation authorized by the Company or a governmental authority or a determination by the Company whether Employee has engaged in acts or omissions constituting Cause, and such paid suspension shall not constitute Good Reason or a termination of this Agreement or Employee’s employment. For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, as determined in good faith by the independent members of the Board and set forth in an express resolution of the independent members of the Board:
(i)Employee’s conviction of a misdemeanor involving moral turpitude or a felony;
(ii)Employee’s having engaged in grossly negligent or willful misconduct in the performance of his duties for the Company, including, but not limited to, the willful failure to follow any lawful express directive of the Board, within the reasonable scope of Employee’s substantive duties, which actions have had a material detrimental effect on the Company;
(iii)Employee’s breach of any material provision of this Agreement or breach of any material provision of a written Code of Conduct or other similar policy of the Company, in any material respect;
(iv)Employee’s having engaged in conduct that is materially injurious to the Company (including, without limitation, misuse or misappropriation of the Company’s funds or other property); or
(v)Employee’s committing an act of fraud;
provided, however, that the Company must give Employee written notice of the acts or omissions constituting Cause within 60 days after the Board or an officer of the Company (other than Employee) first learns of the occurrence of such event, and no termination shall be for Cause under clause (ii), (iii), (iv), or (v) contained in this Section 4(c) unless and until Employee fails to cure such acts or omissions within 30 days following receipt of such written notice.
(d)Good Reason. Employee may terminate Employee’s employment with the Company for Good Reason, and such termination will not be a breach of this Agreement by Employee. For purposes of this Agreement, “Good Reason” shall mean the occurrence without the written consent of Employee, of one of the following arising on or after the Effective Date:
(i)a material reduction in Employee’s annual Base Salary or Target Performance Bonus Percentage;
(ii)the failure by the Company to continue to provide Employee with the opportunity to participate in any material equity incentive compensation plan in which the Employee was participating during the Employment Period; provided, however, that Employee acknowledges that the Initial Equity Grants constitute participation in the Company’s material equity incentive compensation plans for the three fiscal year period ending December 31, 2023;
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(iii)a material diminution in Employee’s authority, status, title, position, duties or responsibilities (including the removal of Employee from or failure to reappoint or reelect Employee to the officer position specifically identified in Section 2(a) of this Agreement), except in connection with the termination of Employee for Cause, due to Employee’s death or Disability, or by Employee voluntarily terminating employment without Good Reason; provided, however, that, for the avoidance of doubt, this subparagraph (iii) does not apply to Employee’s role as a director, which is covered instead by subparagraph (iv) below;
(iv)the failure by the Board to nominate Employee for reelection as a director in connection with any meeting of the Company’s stockholders at which Employee’s term is scheduled to expire; provided, however, that if it is reasonably determined by the Company that it is not practical for the Company to timely distribute supplemental proxy materials for Employee’s nomination in connection with the Company’s 2021 annual meeting of stockholders, then the nomination requirement under this clause (iv) with respect to that stockholder meeting will be deemed satisfied by the Board’s re-appointment of Employee as a director at the first meeting of the Board following that stockholder meeting;
(v)the assignment to Employee of any duties or responsibilities that are materially inconsistent with Employee’s authority, status, title, position, duties or responsibilities under this Agreement;
(vi)a permanent relocation in the geographic location at which Employee must perform services to a location more than 50 miles from the location at which Employee normally performed services on the Effective Date; provided, however, that if Employee relocates to a geographic location more than 50 miles from the location at which Employee normally performed services on the Effective Date without invoking Good Reason, then following such relocation, Employee can invoke Good Reason under this subsection only if Employee is required to relocate to a geographic location more than 50 miles from Employee’s new location;
(vii)a requirement that Employee report to an officer or employee instead of the Board; or
(viii)any other action or inaction that constitutes a material breach by the Company of this Agreement.
Neither a transfer of employment among the Company and any of its Affiliates nor the Company or an Affiliate entering into a co-employer relationship with a personnel services organization constitutes Good Reason, in each case, so long as Employee continues to serve as Chief Executive Officer of the Company. In the case of Employee’s allegation of Good Reason, (A) Employee shall provide notice to the Company of the event alleged to constitute Good Reason within 60 days after the occurrence of such event, and (B) the Company shall have the opportunity to remedy the alleged Good Reason event within 30 days from receipt of notice of
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such allegation. If not remedied within that 30-day period, Employee may submit a Notice of Termination pursuant to Section 5(a); provided, however, that the Notice of Termination must be given no later than 30 days after the expiration of such 30-day period; otherwise, Employee is deemed to have accepted such event, or the Company’s remedy of such event, that may have given rise to the existence of Good Reason; provided further that such acceptance shall be limited to the occurrence of such event and shall not waive Employee’s right to claim Good Reason with respect to future similar or dissimilar events.
(e)Without Cause. The Company has the right to terminate Employee’s employment under this Agreement without Cause at any time by providing Employee with a Notice of Termination.
(f)Without Good Reason. Employee may voluntarily terminate employment with the Company without Good Reason at any time by providing the Company with a Notice of Termination.
5.Termination Procedure.
(a)Notice of Termination. Any termination of Employee’s employment occurring in accordance with the terms of Section 4 (other than by reason of Employee’s death) shall be communicated to the other party by written notice that (i) indicates the specific termination provisions of this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for the termination, and (iii) specifies the Date of Termination (a “Notice of Termination”), and that is delivered to the other party in accordance with Section 9(b) hereof. Any purported notice of non-renewal pursuant to Section 1 shall be deemed a Notice of Termination for purposes of this Section 5(a).
(b)Date of Termination. For purposes of this Agreement, “Date of Termination” means the date of receipt of the Notice of Termination or any later date specified therein, as the case may be; provided, however, that if Employee’s employment is terminated by reason of his death, the Date of Termination shall be the date of death of Employee.
(c)Deemed Resignation. Any Notice of Termination shall be deemed to also be Employee’s resignation as an officer, director, employee, manager or other service provider of the Company and each Affiliate thereof, as well as from all other positions Employee holds with the Company or any of its Affiliates. Employee agrees to execute any and all documentation of such resignations upon request by the Company, but he shall be treated for all purposes as having so resigned upon the Date of Termination (as set forth in the Notice of Termination), regardless of when or whether he executes any such documentation.
6.Obligations of the Company Upon Termination. In the event Employee’s employment under this Agreement terminates pursuant to Section 4 the Company will provide Employee with the payments and benefits set forth below; provided, however, that no such payments or benefits that constitute a deferral of compensation within the meaning of Section 409A of the Code, or as otherwise required by Section 409A, shall be paid or provided to Employee prior to the date of Employee’s “separation from service” with the Company (within the meaning of Section 409A(a)(2)(A)(i) of the Code and Treasury
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Regulation Section 1.409A-1(h)) (“Separation from Service”) or as otherwise provided by Section 9(i) below.
(a)For Cause or Without Good Reason. In the event Employee’s employment is terminated by the Company for Cause or by Employee without Good Reason, the Company shall pay to Employee (i) any unpaid portion of the Base Salary through the Date of Termination at the rate then in effect, (ii) any unpaid Performance Bonus earned in the calendar year prior to the Date of Termination, (iii) unreimbursed Business Expenses through the Date of Termination, and (iv) such employee benefits, if any, as to which Employee may be entitled pursuant to the terms governing such benefits. The amounts, if any, set forth in clauses (i), (ii), (iii), and (iv) shall be collectively referred to herein as the “Accrued Payments.” The Accrued Payments shall be paid at the time and in the manner required by applicable law but in no event later than 30 business days after the Date of Termination, with the exception of clause (ii), which shall be paid at the time provided in and in accordance with Section 3(b), and clause (iv), which shall be paid or provided at the time and otherwise in accordance with the terms of the applicable benefit plans in effect from time to time.
(b)Without Cause or For Good Reason. In addition to the Accrued Payments, in the event Employee’s employment is terminated by the Company without Cause or by Employee for Good Reason, the Company shall, subject to the satisfaction by Employee of the Severance Conditions (as defined below), pay to Employee an amount equal to the Performance Bonus that Employee would have been entitled to receive pursuant to Section 3(b) hereof for the calendar year of termination based on actual achievement of the Company performance targets, multiplied by a fraction, the numerator of which is the number of days during which Employee was employed by the Company in the calendar year of Employee’s termination, and the denominator of which is 365 or 366, as applicable (the “Pro-Rata Bonus”), payable as soon as administratively feasible following preparation of the Company’s unaudited financial statements for the applicable calendar year, but in no event later than March 15 of the calendar year following the calendar year to which such Performance Bonus relates. In addition, the Company shall provide Employee with the following (the “Severance Benefits”), contingent upon satisfaction by Employee of the Severance Conditions, as defined below:
(i)Payment of an amount (the “Separation Payment”), payable at the time and in the manner provided below in Section 6(g), equal to the sum of:
(1)the product of (A) 2.0 and (B) Employee’s Base Salary as of the Date of Termination or, if greater, before any reduction not consented to by Employee); and
(2)the product of (A) 2.0 and (B) the product of (x) the Employee’s annual Base Salary as of the Date of Termination or, if greater, before any reduction not consented to by Employee, and (y) the Employee’s Target Performance Bonus Percentage as of the Date of Termination (or, if greater, the Target Performance Bonus Percentage in effect before any reduction not consented to by Employee);
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provided, however, that, if a Change in Control (as defined below) occurs during the Employment Period and (x) Employee is terminated by the Company without Cause within 18 months following such Change in Control or (y) Employee terminates employment for Good Reason within 18 months following such Change in Control, and any such termination constitutes a Separation from Service, then the multiple referred to in each of subparagraphs (1) and (2) shall be 2.5 instead of 2.0; and
(ii)The right to receive COBRA Reimbursements (as defined in Section 6(e) below) for 18 months following the Date of Termination, subject to the provisions of Section 6(e).
The term “Change in Control” has the meaning set forth in the Company’s 2020 Long Term Incentive Plan.
(c)Death or Disability. In the event Employee’s employment terminates by reason of his death or Disability, Employee (or his estate) shall be entitled to receive:
(i)the Accrued Payments;
(ii)subject to the satisfaction by Employee of the Severance Conditions (in the case of a termination by reason of Disability only), a Pro-Rata Bonus for the calendar year of termination, payable as soon as administratively feasible following preparation of the Company’s unaudited financial statements for the applicable calendar year, but in no event later than March 15 of the calendar year following the calendar year to which such Pro-Rata Bonus relates;
(iii)subject to the satisfaction by Employee of the Severance Conditions (in the case of a termination by reason of Disability only), an amount, payable in a lump sum within 60 days of the Date of Termination, equal to 12 months of Employee’s Base Salary as of the Date of Termination, or, if greater, before any reduction not consented to by Employee; and
(iv)subject to the satisfaction of the Severance Conditions by Employee, Employee’s estate (in the case of death), or Employee’s representative (if necessary, in the event of Disability), the right to receive (or, in the case of death, the right of the Employee’s surviving spouse to receive) COBRA Reimbursements for 18 months following the Date of Termination, subject to the provisions of Section 6(e).
(d)Non-Renewal of Employment Period. In the event Employee’s employment terminates by reason of the Company’s non-renewal of the Employment Period, Employee (or his estate) shall be entitled to receive COBRA Reimbursements for 12 months following the Date of Termination, subject to the provisions of Section 6(e). For the avoidance of doubt, except with respect to the COBRA Reimbursements or as may be expressly provided in any notice of award executed by the Company in connection with any equity grant to Employee, the non-renewal of the Employment Period shall not constitute a termination of this Agreement
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that results in the payment of any severance benefits, vesting of unvested equity grants or any other benefits.
(e)COBRA Reimbursements. If Employee is eligible to elect and elects to continue coverage for himself and his spouse and eligible dependents under the Company’s group medical, hospitalization, and dental plans pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or similar state law, the Company shall reimburse Employee on a monthly basis for the amount Employee pays to effect and continue such coverage under COBRA (the “COBRA Reimbursements”); provided, however, that (x) Employee shall notify the Company in writing within five days after he becomes eligible after the Date of Termination for group medical, hospitalization, or dental plan insurance coverage, if any, through subsequent employment or otherwise and Employer shall have no further obligation to provide the COBRA Reimbursements after Employee becomes eligible for group medical, hospitalization, or dental insurance plan coverage due to subsequent employment or otherwise; and (y) if Employee (or his spouse) is eligible for Medicare or a similar type of governmental medical benefit, such benefit shall be the primary provider before Employer medical benefits are provided. Employee shall send monthly invoices to the Company reflecting COBRA premiums paid by the last day of the month following the month in which the applicable premiums were paid by Employee and any COBRA Reimbursements due shall be made within 15 days of receipt of such invoices. For the avoidance of doubt, the COBRA Reimbursements are taxable and subject to withholding.
(f)Post-Termination Release. Notwithstanding any other provisions of this Agreement, it shall be a condition to Employee’s right to receive any payments or benefits pursuant to this Section 6 (with the exception of the Accrued Payments) that Employee (or Employee’s estate or representative, as applicable) execute and deliver to the Company, and not revoke, an effective waiver and release agreement in the form attached hereto as Exhibit A (the “Release”) within the time period set forth therein (and in all events within 50 days following Employee’s termination of employment) with all periods for revocation thereof having expired (the “Severance Conditions”). The form of the Release may be modified by the Company to reflect changes required by applicable law or regulations.
(g)Payment of Separation Payment. The Separation Payment shall be paid as follows:
(i)If the Separation Payment is greater than the Section 409A Exempt Amount (defined below), then —
(1)the Section 409A Exempt Amount shall be paid in substantially equal monthly installments over a period of 12 months beginning on the first payroll date that occurs on or after the 60th day following the Date of Termination, and
(2)the excess of the Separation Payment over the Section 409A Exempt Amount shall be paid in a single lump sum no later than 60 days after the Date of Termination.
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(ii)If the Separation Payment is equal to or less than the Section 409A Exempt Amount, then the Separation Payment shall be paid in equal monthly installments over a period of months (limited to 24 such months) determined by dividing (x) the Separation Payment by (y) the Employee’s monthly Base Salary as of the Date of Termination, commencing in payment on the first business day of the third month following the Date of Termination, but only if the Date of Termination constitutes a Separation from Service.
For purposes of this Agreement, the “Section 409A Exempt Amount” is two times the lesser of (x) Employee’s annualized compensation based upon the annual rate of pay for services provided to the Company for the calendar year preceding the calendar year in which Employee has a Separation from Service with the Company (adjusted for any increase during that year that was expected to continue indefinitely if Employee had not separated from service) and (y) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Employee has a Separation from Service.
(h)Exclusive Compensation and Benefits. The compensation and benefits described in this Section 6, along with the associated terms for payment, constitute all of the Company’s obligations to Employee with respect to the termination of Employee’s employment. Nothing in this Agreement, however, is intended to limit any earned, vested benefits (other than any entitlement to severance or separation pay, if any) that Employee may have under the applicable provisions of any benefit plan of the Company in which Employee is participating on the Date of Termination, any rights Employee may have to continue or convert coverage under certain employee benefit plans in accordance with the terms of those plans and applicable law, or any rights Employee may have under any long-term incentive or equity compensation plans.
(i)Offset. Employee agrees that the Company may set off against, and Employee authorizes the Company to deduct from, the Separation Payment due under Section 6(b)(i), to Employee, or to his estate, heirs, legal representatives, or successors, any amounts that may be due and owing to the Company or an Affiliate by Employee, whether arising under this Agreement or otherwise; provided, however, that no such offset may be made with respect to amounts payable that are subject to the requirements of Section 409A of the Code unless the offset would not result in a violation of the requirements of Section 409A of the Code.
(j)No Duty to Mitigate. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Agreement be reduced by any compensation or benefit earned by Employee as a result of employment by another employer, self-employment earnings, or by retirement benefits.
(k)Section 280G. Notwithstanding anything to the contrary in this Agreement, Employee expressly agrees that if the payments and benefits provided for in this Agreement or any other payments and benefits that Employee has the right to receive from the Employers and their Affiliates (collectively, the “Payments”), would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the Payments shall be either
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(a) reduced (but not below zero) so that the present value of the Payments will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of the Payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Employee. The reduction of Payments, if any, shall be made by reducing first any Payments that are exempt from Section 409A of the Code and then reducing any Payments subject to Section 409A of the Code in the reverse order in which such Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The professional firm engaged by the Company for general tax purposes as of the day prior to the date of the event that might reasonably be anticipated to result in Payments that would otherwise be subject to the excise tax will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company will appoint a nationally recognized tax firm to make the determinations required by this Section 6(k). The Company will bear all expenses with respect to the determinations by such firm required to be made by this Section 6(k). The Company and Employee shall furnish such tax firm such information and documents as the tax firm may reasonably request in order to make its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and Employee as soon as practicable following its engagement. If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and benefits from Employers (or their Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall immediately repay such excess to the Company.
7.Protection of Information.
(a)General. The parties acknowledge that during the Employment Period, the Company will disclose to Employee or provide Employee with access to trade secrets or confidential information (“Confidential Information”) of the Company or its Affiliates; and/or place Employee in a position to develop business goodwill on behalf of the Company or its Affiliates; and/or entrust Employee with business opportunities of the Company or its Affiliates. As part of the consideration for the compensation and benefits to be paid to Employee hereunder; to protect the trade secrets and Confidential Information of the Company and its Affiliates that have been and will in the future be disclosed or entrusted to Employee, the business good will of the Company and its Affiliates that has been and will in the future be developed in Employee, or the business opportunities that have been and will in the future be disclosed or entrusted to Employee by the Company and its Affiliates; and as an additional incentive for the Company to enter into this Agreement, the Company and Employee agree to the following obligations relating to unauthorized disclosures, non-competition and non-solicitation.
(b)Confidential Information; Unauthorized Disclosure.
(i)Employee shall not, whether during the Employment Period or thereafter, without the written consent of the Board or a person authorized thereby, disclose to any person, other than an executive of the Company or a person to whom
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disclosure is reasonably necessary or appropriate in connection with the performance by Employee of his duties as an executive of the Company, any Confidential Information, including but not limited to technology, know-how, processes, maps, geological and geophysical data, other proprietary information and any information whatsoever of a confidential nature; provided, however, that Confidential Information shall not include any information known generally to the public (other than as a result of unauthorized disclosure by Employee) or any information that Employee may be required to disclose by any applicable law, order, or judicial or administrative proceeding, provided that Employee first notifies the Company to facilitate a possible protective order and thereafter discloses only the minimum amount of Confidential Information required. Within 14 days after the termination of Employee’s employment for any reason, Employee shall return to the Company all documents and other tangible items containing Company information that are in Employee’s possession, custody or control. Employee agrees that all Confidential Information of the Company exclusively belongs to the Company, and that any work of authorship relating to the Company’s business, products or services, whether such work is created solely by Employee or jointly with others, and regardless of whether such work is Confidential Information, shall be deemed exclusively belonging to the Company.
(ii)Nothing in this Agreement will prohibit or restrict Employee from responding to any inquiry, or otherwise communicating with, any federal, state or local administrative or regulatory agency or authority or participating in an investigation conducted by any governmental agency or authority. Employee cannot be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. As a result, the Company and Employee shall have the right to disclose trade secrets in confidence to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. Each of the Company and Employee also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with that right or to create liability for disclosures of trade secrets that are expressly allowed by the foregoing.
8.Non-Competition.
(a)During the Employment Period and for a period of 12 months thereafter, Employee shall not, directly or indirectly for Employee or for others, engage in or become interested financially in as a principal, executive, partner, stockholder, agent, manager, owner, advisor, lender or guarantor of any person engaged in any Competing Business (as defined below) in the Restricted Area (as defined below); provided, however, that Employee shall not be
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prohibited from owning 2.5% or less of the outstanding equity securities of any entity whose equity securities are listed on a national securities exchange or publicly traded in any over-the-counter market; provided, however, that neither Employee nor any of his Affiliates, together or alone, has the power, directly or indirectly, to control or direct or is involved in the management or affairs of any such corporation that is a Competing Business.
(b)Certain Definitions.
(i)The term “Competing Business” means any business, individual, partnership, firm, corporation or other entity engaged in, or actively seeking to be in engaged in, the acquisition, exploration, exploitation, development, production and/or operation of oil and gas properties.
(ii)The term “Restricted Area” means any area within a county or parish in which any all or a portion of any hydrocarbon interest or other real property of the Company or its Affiliates is located either during the Employment Period or as of the Employee’s Date of Termination. The parties stipulate that the foregoing is a reasonable area restriction because the area identified is the market area with respect to which Employee will help the Company provide its products and services, help analyze, and/or receive access to Confidential Information.
(c)Non-Solicitation. Employee undertakes toward the Company and is obligated, during the Employment Period and for a period of 12 months thereafter, in the Restricted Area or in the metropolitan area in which any headquarters or office of the Company or any of its Affiliates is located, not to:
(i)solicit for hire or hire, directly or indirectly for Employee or for others, in any manner whatsoever, in the capacity of employee, executive, consultant or in any other capacity whatsoever, one or more of the employees, executives, directors or officers or other persons (hereinafter collectively referred to as “Company Employees”) who at the time of solicitation or hire, or in the one-year period prior thereto, are or were working full-time or part-time for the Company or any of its Affiliates and not to endeavor, directly or indirectly, in any manner whatsoever, to encourage any of said Company Employees to leave his or her job with the Company or any of its Affiliates and not to endeavor, directly or indirectly, and in any manner whatsoever, to incite or induce any client of the Company or any of its Affiliates to terminate, in whole or in part, its business relations with the Company or any of its Affiliates; or
(ii)solicit any client or customer of the Company, with whom Employee has had direct contact, or about whom Employee has Confidential Information, to terminate or modify its relationship with the Company that exists on the Date of Termination or that existed any time during the 12 months prior to the Date of Termination.
(d)Enforcement and Reformation. It is the desire and intent of the parties that the provisions of this Section 8 shall be enforced to the fullest extent permissible under the laws
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and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 8 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable. Such deletion shall apply only with respect to the operation of such provisions of this Section 8 in the particular jurisdiction in which such adjudication is made. In addition, if the scope of any restriction contained in this Section 8 is too broad to permit enforcement thereof to its fullest extent, then such restriction shall be enforced to the maximum extent permitted by law, and Employee hereby consents and agrees that such scope may be judicially modified in any proceeding brought to enforce such restriction.
(e)Remedies. In the event of a breach or threatened breach by Employee of the provisions of this Section 8, Employee acknowledges that money damages would not be sufficient remedy, and the Company shall be entitled to specific performance, injunction and such other equitable relief as may be legally appropriate to enforce the restrictions contained herein, without providing any bond and irrespective of any requirement of necessity or other showing. Nothing herein contained shall be construed as prohibiting the Company from pursuing any other remedies available for such breach or threatened breach or any other breach of this Agreement. For purposes of this Section 8, references to the Company shall include the Company’s Affiliates.
9.General Provisions.
(a)Survival. The termination of the Employment Period or this Agreement shall not impair the rights or obligations of any party that have accrued prior to such termination or that by their nature or terms survive termination of the Employment Period or this Agreement, including, without limitation, the Company’s obligations under Section 6 and Employee’s obligations under Sections 7 and 8, and this Section 9, and such other provisions hereof as may so indicate shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period or this Agreement.
(b)Notices. Any notice provided for in this Agreement shall be in writing and shall be delivered (i) personally, (ii) by certified mail, postage prepaid, (iii) by Federal Express or other reputable courier service regularly providing evidence of delivery (with charges paid by the party sending the notice), or (iv) by facsimile or a PDF or similar attachment to an email, provided that such telecopy or email attachment shall be followed within one (1) business day by delivery of such notice pursuant to clause (i), (ii) or (iii) above. Any such notice to a party shall be addressed at the address set forth below (subject to the right of a party to designate a different address for itself by notice similarly given):
If to Employee, at:
Daniel E. Brown
At the most recent address on file with the Company
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If to the Company, at:
Oasis Petroleum Inc.
Attn: Nickolas J. Lorentzatos
Executive Vice President & General Counsel
1001 Fannin Street, Suite 1500
Houston, Texas 77002
(c)Entire Agreement; No Duplication or Elimination of Rights. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to employment of Employee by the Company, and consequently, without limiting the scope of the foregoing, all understandings and agreements preceding the date of execution of this Agreement and relating to such subject matter hereof are hereby null and void and of no further force and effect.
(d)No Conflict. Employee represents and warrants that Employee is not bound by any employment contract, restrictive covenant, or other restriction preventing Employee from carrying out Employee’s responsibilities for the Company, or that is in any way inconsistent with the terms of this Agreement. Employee further represents and warrants that Employee shall not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others.
(e)Successors and Assigns. This Agreement shall inure to the benefit of, be enforceable by, and be binding on (x) Employee and his heirs, executors and personal representatives, and (y) the Company and its successors and assigns. The obligations of Employee hereunder are personal and may not be assigned or delegated by him or transferred in any manner whatsoever, nor are such obligations subject to involuntary alienation, assignment or transfer, except by will or the laws of descent and distribution. For the avoidance of doubt, and without limiting the generality of the foregoing, a termination of Employee’s employment by a successor or assign of the Company shall have the same legal effect under this Agreement as if the Company itself had terminated such employment.
(f)Governing Law. This Agreement will be governed by the substantive laws of the State of Texas, without regard to conflicts of law, and by federal law where applicable. If any part of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will not be affected in any way.
(g)Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Employee, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
(h)Withholding. All payments and benefits under this Agreement are subject to withholding of all applicable taxes.
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(i)Code Section 409A. This Agreement is intended to comply with the requirements of Section 409A of the Code, and shall be interpreted and construed consistently with such intent. The payments to Employee pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4), and for such purposes, each payment to Employee under this Agreement shall be considered a separate payment. In the event the terms of this Agreement would subject Employee to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and Employee shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible. To the extent any amounts under this Agreement that constitute a deferral of compensation within the meaning of Section 409A of the Code are payable by reference to Employee’s “termination of employment,” such term and similar terms shall be deemed to refer to Employee’s Separation from Service. Employee hereby agrees to be bound by the Company’s determination of its “specified employees” (as such term is defined in Section 409A of the Code) provided such determination is in accordance with any of the methods permitted under the regulations issued under Section 409A of the Code. Notwithstanding any other provision in this Agreement, to the extent any payments made or contemplated hereunder constitute nonqualified deferred compensation, within the meaning of Section 409A, then (i) each such payment that is conditioned upon Employee’s execution of a release and that is to be paid or provided during a designated period that begins in one taxable year and ends in a second taxable year, shall be paid or provided in the later of the two taxable years and (ii) if Employee is a specified employee (within the meaning of Section 409A of the Code) as of the date of Employee’s Separation from Service, each such payment that is payable upon Employee’s Separation from Service and would have been paid prior to the six-month anniversary of Employee’s Separation from Service, shall be delayed until the earlier to occur of (A) the first day of the seventh month following Employee’s Separation from Service and (B) the date of Employee’s death. Any reimbursement payable to Employee pursuant to this Agreement shall be conditioned on the submission by Employee of all expense reports reasonably required by Employer under any applicable expense reimbursement policy, and shall be paid to Employee within 30 days following receipt of such expense reports, but in no event later than the last day of the calendar year following the calendar year in which Employee incurred the reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefit to be provided, during any other calendar year. The right to any reimbursement or in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.
(j)Compensation Recoupment. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the compensation payable pursuant to this Agreement shall not be deemed fully earned or vested, even if paid or distributed to Employee, if such compensation or any portion thereof is deemed incentive compensation and subject to recovery, or “clawback,” by Company pursuant to the provisions of the Dodd-Frank Act and any rules or regulations promulgated thereunder or by any stock exchange on which the Company’s common stock is listed (the “Rules”). In addition, Employee hereby acknowledges that this Agreement may be amended as necessary and/or shall be subject to any recoupment policies adopted by Company to comply with the requirements and/or limitations under the
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Dodd-Frank Act and the Rules or any other federal or stock exchange requirements, including by expressly permitting (or, if applicable, requiring) Company to revoke, recover, and/or clawback any compensation payable pursuant to this Agreement that is deemed incentive compensation.
(k)Cooperation. Employee agrees, during and after the Employment Period, and for a period of five years after the date of Termination, to provide information, assistance and cooperation to the Company and its Affiliates, as may be reasonably required by the Company and its Affiliates, including but not limited to the transition of his most recent role and his attendance and truthful testimony with respect to the Company’s or its Affiliates’ investigation, analysis, resolution, defense and/or prosecution of any existing and/or future claims, disputes or disagreements with respect to any and all matters about which Employee has knowledge, or should have knowledge, by virtue of his employment with the Company or otherwise; provided, however, that after Termination, such request for assistance shall not reasonably interfere with Employee’s then current employment and not exceed 20 hours in any 12-month period, and Company shall pay Employee $300 per hour for his time. The Company will take reasonable steps to ensure that such assistance shall be given during regular business hours at locations and times mutually agreed upon by Employee and the Company, except with respect to mandated court appearances for which Employee will make himself available upon reasonable notice. In addition, Employee shall be entitled to receive prompt reimbursement for all reasonable travel expenses incurred by him in accordance with such cooperation, provided that Employee properly accounts for such expenses in accordance with the Company’s policies and procedures.
(l)Company Policies. Employee shall be subject to additional policies of the Company and its Affiliates as they may exist from time-to-time, including, without limitation, policies with regard to stock ownership by senior executives and policies regarding trading of securities.
(m)Legal Fees. The Company shall reimburse Employee for all reasonable legal fees and expenses incurred by Employee in connection with the negotiation and review of this Agreement and any ancillary documents entered into contemporaneously with the execution of this Agreement; provided, however, that Employee shall be required to submit documentation of such legal fees within 30 days of the Effective Date and the amount of such reimbursable fees and expenses shall not exceed $15,000 in the aggregate (with such amount to be paid within 30 days following the submission of expense documentation).
(n)Indemnification. Employee shall be indemnified by the Company as provided in the Company’s Bylaws and Certificate of Incorporation, and pursuant to applicable law. The obligations under this Section 9(n) shall survive termination of the Employment Period and this Agreement. During the Employment Period and the term of this Agreement, and thereafter (with respect to events occurring during the Employment Period), the Company also shall provide Employee with coverage under its current directors’ and officers’ liability policy to the same extent that it provides such coverage to its other executive officers.
(o)Counterparts. This Agreement may be executed in two or more counterparts, each of which will be an original and all of which together will constitute one and the same instrument.
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[Remainder of Page Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
_/s/ Daniel E. Brown_________________
Daniel E. Brown
OASIS PETROLEUM INC.
By:_/s/ Nickolas J. Lorentzatos_________
Nickolas J. Lorentzatos
Executive Vice President, General Counsel and Corporate Secretary
[Signature Page to Daniel Brown Employment Agreement]
EXHIBIT A
FORM OF
WAIVER AND RELEASE AGREEMENT
Pursuant to the terms of the Employment Agreement effective as of April 13, 2021 between Oasis Petroleum Inc. (the “Company”) and Daniel E. Brown (“I” or “me”), attached hereto as Exhibit A (the “Employment Agreement”), the Company will provide me the separation benefits described below (“Separation Benefits”) in exchange for my execution of, non-revocation of, and agreement to this Waiver and Release Agreement (this “Release”). As used in this Release, “Released Parties” includes (i) Company and its past and present directors, officers, employees, agents, insurers, and the predecessors, successors and assigns of each of the foregoing entities and persons (collectively referred to for purposes of this definition of “Released Parties” as the “Company Group”), (ii) all of the past and present affiliates (including all direct and indirect parent companies and all wholly or partially owned subsidiaries) of the Company Group, including, but not limited to, Oasis Petroleum LLC and Oasis Petroleum North America LLC, and each of the foregoing entities’ and persons’ respective directors, officers, employees, agents, insurers, predecessors, successors and assigns (collectively referred to as the “Affiliates”), and (iii) the Company Group’s and each of its Affiliates’ respective employee benefit plans and the respective past, present and future fiduciaries and agents of each such plan (collectively referred to as the “Benefit Plans”). All capitalized terms used but not defined herein shall have the respective meanings set forth in the Employment Agreement.
I understand that signing this Release is an important legal act. I acknowledge that I have been and am, with this Release, advised in writing to have an attorney (chosen by me and at my own cost) review this Release before signing it. I understand that, in order to be eligible to receive the Separation Benefits, I must sign (and return to the Company) this Release on or before ______________,1 not revoke it, and otherwise comply with its terms. I acknowledge that I have been given at least 21 calendar days to consider whether to accept the Separation Benefits and whether to execute this Release.
The Separation Benefits consist of __________________.2 By its execution hereof, the Company (x) confirms and acknowledges that I am entitled to the Accrued Payments and the Separation Benefits in accordance with the Employment Agreement and (y) without limiting the generality of the foregoing, agrees to make the payments contemplated by this paragraph on or before the date or dates specified in the Employment Agreement, subject to this Release not having been revoked by me.
I acknowledge that (a) the Accrued Payments and Separation Benefits represent all payments and benefits I am entitled to pursuant to the Employment Agreement, (b) the Accrued Payments and Separation Benefits are being provided to me in satisfaction of all rights I have pursuant to the Employment Agreement, and (c) I will not be entitled to any future benefits under the Employment Agreement except as expressly set forth in this Release; provided, however,
1 50th day after the Date of Termination.
2 Detailed list of each item making up the Separation Benefits, including any applicable acceleration of vesting of equity grants or other benefits.
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that, for the avoidance of doubt, Employee is not releasing his rights to receive performance share units or restricted stock units that, under the express provisions of the grant notices for Initial Equity Grants are required to be delivered after the date hereof.
All Separation Benefits will be provided in accordance with, and are subject to, all terms and conditions of the Employment Agreement.
In exchange for the Separation Benefits, and other good and valuable consideration described herein, which is in addition to any money or benefits to which I am already entitled, I, and anyone claiming through me or on my behalf, hereby knowingly and voluntarily waive and release the Released Parties from any and all claims, demands, actions, liabilities, and damages, whether currently known or unknown, that I now have or have ever had against the Company or any of the other Released Parties arising out of or relating in any way to my employment with or separation from employment with the Company and its Affiliates (including, but not limited to, severance payments under any severance plans, bonus payments under any bonus programs or policies of the Company or any Affiliate thereof or otherwise other than the Separation Benefits). This Release is intended to be as broad as the law allows, and the claims waived and released by me (subject to the exceptions and exclusions noted herein) include, but are not limited to:
(a)all claims that were or could have been asserted by me or on my behalf under: (i) the Age Discrimination in Employment Act, as amended (“ADEA”) (including the Older Workers’ Benefit Protection Act (“OWBPA”)); and (ii) any other federal, state, local, employment, services or other law, regulation, ordinance, constitutional provision, executive order or other source of law, including without limitation under any of the following laws, as amended from time to time: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 & 1981a, the Americans with Disabilities Act, the Equal Pay Act, the Lilly Ledbetter Fair Pay Act of 2009, the Family and Medical Leave Act, the Genetic Information Nondiscrimination Act, the Fair Credit Reporting Act, the Texas Labor Code including Chapter 21 of the Texas Labor Code; Dallas Municipal Ordinance 24927; the Texas Anti-Retaliation Act; the North Dakota Human Rights Act (N.D.C.C. 14-02.4); and Chapter 270302 of the North Dakota Administration Code;
(b)all claims that were or could have been asserted by me or on my behalf: (i) in any federal, state, or local court, commission, or agency; or (ii) under any common law theory including, without limitation, breach of contract (oral, written or implied), invasion of privacy, infliction of emotional distress, tortious interference, fraud, estoppel, unjust enrichment, statutory, regulatory, and common law “whistleblower” claims; and and/or claims related to defamation, slander, wrongful termination, and any other contract, tort or other common law claim of any kind;
(c)all claims arising under the Employee Retirement Income Security Act of 1974, except for any claims relating to vested benefits under the Benefit Plans; and
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(d)all claims arising out of or related in any way to my employment, compensation, other terms and conditions of my employment, or termination from employment with the Company, including, without limitation, all claims for any compensation payments, bonus, severance pay, equity, or any other compensation or benefit other than the Accrued Payments, Separation Benefits and vested benefits under the Benefit Plans.
I understand this Release does not apply to any claims or rights that may arise after the date that I sign this Release, the consideration for this Release, any claim for unemployment benefits or workers’ compensation, vested rights under the Benefit Plans as applicable on the date I sign this Release (other than any rights to any payments of severance benefits or bonuses (including, but not limited to, pursuant to the Employment Agreement), which rights are waived and relinquished herein in consideration of my receipt of the Separation Benefits), or any claims that the controlling law clearly states may not be released by settlement. I also understand that this Release does not in any way waive or impact my rights under the Indemnification Agreement, dated April 13, 2021, by and between the Company and me; the Indemnification Agreement, dated April 13, 2021 by and between Oasis Midstream Partners LP and me; or my rights under Section 9(n) of the Employment Agreement . I acknowledge and agree that I have (i) received all Base Salary due me as a result of services performed for the Company or any of its Affiliates with the receipt of my final paycheck; (ii) been reimbursed for all business expenses appropriately incurred in furtherance of my employment with the Company or any of its Affiliates; (iii) reported to the Company or any Affiliate thereof any and all work-related injuries incurred by me during my employment by the Company or any Affiliate thereof; and (iv) been properly provided any leave of absence because of my or a family member’s health condition and have not been subjected to any improper treatment, conduct or actions due to a request for or taking such leave.
Further, I expressly represent that no promise or agreement that is not expressed in this Release has been made to me in executing this Release. I acknowledge that I have made my own investigation of the facts in determining whether to execute this Release. I agree that I have consulted, or had an opportunity to consult with, an attorney or a representative of my own choosing, if any, and that I am not relying on any statement, representation, understandings, or advice from the Company or its agents or attorneys (other than those expressly set forth in this Release) in executing this Release. I agree that this Release is valid, fair, adequate and reasonable, is with my full knowledge and consent, was not procured through fraud, duress or mistake and has not had the effect of misleading, misinforming or failing to inform me. I knowingly waive any claim that this Release was induced by any misrepresentation or nondisclosure and any right to rescind or avoid this Release based upon presently existing facts, known or unknown. The parties stipulate that the Company, in entering into this Release, is relying on these representations and warranties, all of which survive the execution of this Release.
I acknowledge that my receipt of the Separation Benefits is not an admission by any one or more of the Released Parties that they engaged in any wrongful or unlawful act or that they violated any federal or state law or regulation. The Company and the other Released Parties expressly deny any such wrongful or unlawful act. I acknowledge that neither the Company nor
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any Affiliates thereof has promised me continued employment or represented to me that I will be rehired in the future. I acknowledge that the Company and I contemplate an unequivocal, complete and final dissolution of my employment relationship. I acknowledge that this Release does not create any right on my part to be rehired by the Company or any Affiliate thereof, and I waive any right to future employment by the Company or any Affiliate thereof.
The validity of this Release shall be construed under Texas law, without regard to its choice of law rules. Should any of the provisions set forth in this Release be determined to be invalid by a court, agency or other tribunal of competent jurisdiction, it is agreed that such determination shall not affect the enforceability of other provisions of this Release. I acknowledge that this Release sets forth the entire understanding and agreement between me and the Company and its Affiliates concerning the subject matter of this Release and supersedes any prior or contemporaneous oral and/or written agreements or representations, if any, between me and the Company or any Affiliate thereof; provided, however, this Release shall not in any way affect, modify, or nullify any agreement I have entered into with the Company or any Affiliate thereof that contains any other obligation regarding confidentiality or intellectual or other property that I have to the Company or any of its Affiliates. Specifically, I confirm and agree to continue to abide by the continuing obligations under Sections 7 and 8 of the Employment Agreement, including, without limitation, following termination of my employment with the Company.
This Release may be modified only in a written agreement signed by both parties, and any party’s failure to enforce this Release in the event of one or more events that violate this Release shall not constitute a waiver of any right to enforce this Release against subsequent violations. Whenever possible, each provision of this Release shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Release is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Release.
I acknowledge that I have read this Release, have had an opportunity to ask questions, have it explained to me, and that I understand that this Release will have the effect of knowingly and voluntarily waiving any action I might pursue, including breach of contract, personal injury, retaliation, discrimination on the basis of race, age, sex, national origin, disability, or any other claims arising prior to the date of this Release, with the exception of those claims and actions expressly reserved herein. By execution of this Release, I do not waive or release or otherwise relinquish any legal rights I may have that are attributable to or arise out of acts, omissions, or events of the Company or any Affiliate thereof that occur after the date I sign this Release.
I agree that I will keep the terms of this Release, and discussions leading to and terms of payment confidential and that I will not disclose, directly or indirectly, such terms to third persons except that I may disclose the terms of this Release to my legal and financial advisors (and my spouse), but as to all such persons and companies the disclosure must be made with the condition that the persons or companies receiving such information maintain the information in strict confidence. I specifically agree not to disclose the terms of this payment and this Release to any present or former employees of the Company or any of its Affiliates. I will give the
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Company immediate notice and a copy of any subpoena or other legal requirement that requires me to make any otherwise prohibited disclosure, prior to making any such disclosure to the extent practicable, to permit the Company to seek a protective order or other appropriate relief.
I understand that following the seven-day revocation period stated below, this Release will become final and binding. I promise that I will not file a lawsuit based on any claim that I have settled by this Release. If I break this promise, I agree to pay all of the Company’s or any of its Affiliates’ costs and expenses (including reasonable attorneys’ fees) related to the defense of any such claims. This promise not to sue does not apply to claims that I may have under the OWBPA and the ADEA. Although I am releasing claims that I may have under the OWBPA and the ADEA, I understand that I may challenge the knowing and voluntary nature of this Release under the OWBPA and the ADEA before a court, the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB”), or any other federal, state or local agency charged with the enforcement of any employment laws. I understand, however, that if I pursue a claim against the Company or any Affiliate thereof under the OWBPA and/or the ADEA, a court has the discretion to determine whether the Company or its Affiliate is entitled to restitution, recoupment, or set-off (hereinafter “reduction”) against a monetary award obtained by me in the court proceeding. A reduction never can exceed (x) the amount I recover or (y) the consideration I received for signing this Release, whichever is less. I also recognize that the Company and its Affiliates may be entitled to recover costs and attorneys’ fees incurred by the Company or any Affiliate thereof as specifically authorized under applicable law.
I further understand that nothing in this Release generally prevents me from filing a charge or complaint with, reporting possible violations of federal law or regulation or law to, or from participating in an investigation or proceeding conducted by the EEOC, NLRB, or any other federal, state or local agency charged with the enforcement of any employment laws, although by signing this Release I am waiving my right to monetary recovery based on claims asserted in such a charge or complaint. I do not need the prior authorization of the Company to make any such reports or disclosures, and I am not required to notify the Company that I have made such reports or disclosures. Furthermore, the U.S. Defend Trade Secrets Act of 2016 provides that: (a) an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (b) an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal, and (B) does not disclose the trade secret, except pursuant to court order. Nothing in this Release prohibits or creates liability for any such protected conduct. I understand that I have until ______________,3 which is at least 21 calendar days from the day I received this Release, in which to consider whether to sign this Release. Any modification of this Release, whether material or immaterial, will not restart the 21-calendar day consideration period set forth above. I understand that I may revoke this Release for seven days
3 50th day after the Date of Termination.
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after the date I sign it, and this Release will not become enforceable until this seven-day period has expired (the “Effective Date”). If I revoke this Release, it shall be null and void. Any revocation must be made in writing and delivered within the seven days to Nickolas J. Lorentzatos, Executive Vice President, General Counsel & Corporate Secretary or, if applicable, the person holding this position at the time of revocation. I acknowledge, understand, and agree that I release and waive claims through the date I sign this Release, knowingly and voluntarily, in exchange for consideration in addition to anything of value to which I am already entitled.
This Release may be executed in multiple counterparts (including by facsimile or electronic transmission in .pdf format), each of which, taken together, shall constitute one and the same instrument.
[Remainder of Page Left Blank; Signature Page Follows]
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I have read and understand the Release set forth above. I accept the consideration stated above and agree to be bound by the terms of this Release.
Date: Signed
Daniel E. Brown
ACCEPTED AND AGREED:
OASIS PETROLEUM INC.
By:___________________________
Name:
Title:
EXHIBIT B
RESTRICTED STOCK UNIT GRANT AGREEMENT
[See Attached.]
EXHIBIT C-1
RELATIVE TSR PERFORMANCE SHARE UNIT GRANT AGREEMENT
(RUSSELL 2000)
[See Attached.]
EXHIBIT C-2
RELATIVE TSR PERFORMANCE SHARE UNIT GRANT AGREEMENT
(OIL & GAS INDUSTRY PEER GROUP)
[See Attached.]
EXHIBIT D-1
ABSOLUTE TSR PERFORMANCE SHARE UNIT GRANT AGREEMENT
(THREE-YEAR)
[See Attached.]
EXHIBIT D-2
4-YEAR ABSOLUTE TSR PERFORMANCE SHARE UNIT GRANT AGREEMENT
(FOUR-YEAR)
[See Attached.]
FORM OF
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Pursuant to the terms and conditions of the Oasis Petroleum Inc. 2020 Long Term Incentive Plan (the “Plan”), and the associated Restricted Stock Unit Agreement (the “Agreement”), you are hereby granted an award of Restricted Stock Units, whereby each Restricted Stock Unit that vests represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus rights to certain Dividend Equivalents described in Section 3 of the Agreement, under the terms and conditions set forth below, in the Agreement, and in the Plan (the “Restricted Stock Units”). Capitalized terms used but not defined herein shall have the respective meanings set forth in the Plan or the Agreement.
| Grantee: | [__________] | ||||
Date of Grant: | [__________, 20__] (“Date of Grant”) | ||||
Number of Restricted Stock Units: | [__________] shares of Stock may be deliverable in respect of this Award | ||||
Vesting Schedule: | The restrictions on the Restricted Stock Units will lapse and your right to receive Stock in respect of the Restricted Stock Units shall vest and become nonforfeitable in 25% annual increments (rounded to the nearest whole share) on each of the one-year, two-year, three-year and four-year anniversaries of the Date of Grant (each such date, a “Vesting Date” and the period prior to full vesting of the Restricted Stock Units, the “Restriction Period”), subject to you remaining in the employ of or as a service provider to the Company or its Subsidiaries continuously from the Date of Grant through the applicable Vesting Date. Notwithstanding anything to the contrary herein, in the Agreement, in the Plan or in any other arrangement between you and the Company (including any employment agreement or severance plan in which you participate): (a)if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of the Restriction Period (w) by the Company or, if applicable, Subsidiary without “Cause” (as such term is defined your employment agreement with the Company, dated [__________, 20__] (the “Employment Agreement”), (x) by reason of the Company’s non-renewal of your Employment Agreement at the end of the Employment Period (as defined in the Employment Agreement) (a “Non-Renewal”), (y) by you for “Good Reason” (as defined in the Employment Agreement) or (z) by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of a waiver and release agreement in the form attached as Exhibit A to the Employment Agreement and as may be modified pursuant to the terms of the Employment Agreement (the “Release”), then, upon such termination of employment, you shall vest in the number of Restricted Stock Units that were scheduled to vest within 12 months following such termination of employment; (b)if your employment or service relationship with the Company and its Subsidiaries is terminated upon, or 18 months or less following, a Change in Control and prior to the end of the Restriction Period by the Company or, if applicable, Subsidiary without “Cause” or by reason of Non-Renewal, by you for “Good Reason” or by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of the Release, then, as of such termination of employment, you shall vest in all then-outstanding and unvested Restricted Stock Units; and (c)If, (i) in connection with a Change in Control in which the Company is not the surviving company, or survives as a wholly owned subsidiary of the acquiring company and (ii) the acquiring company (or, in the case of a non-triangular merger, the surviving company) does not assume and convert this Award into a substantially equivalent award with respect to such acquiring or surviving company’s capital stock that is then readily tradable on an established U.S. securities exchange, then you shall vest in all then-outstanding and unvested Restricted Stock Units immediately prior to, but contingent upon, the consummation of such Change in Control. Any reference in this Notice of Grant to the “Company” shall include any employer successor thereto. For purposes of this Award, notwithstanding a termination of the Employment Agreement at the end of the Employment Period as a result of non-renewal by either the Company or you, your continued employment or service relationship with the Company and its Subsidiaries following the termination of the Employment Agreement (1) shall constitute remaining continuously in the employ of or as a service provider to the Company or its Subsidiaries for all purposes pursuant to the terms hereof and count toward satisfaction of the employment or service relationship requirements herein, and (2) the provisions in your Employment Agreement relating to termination without “Cause,” by you for “Good Reason,” and by reason of your death shall apply to the continued employment or service relationship following non-renewal of the Employment Agreement, including for purposes of applying the earning and vesting provisions contained herein. | ||||
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Date of Settlement: | Payment in respect of vested Restricted Stock Units shall be made within 60 days following the applicable Vesting Date; provided, however, that if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of the Restriction Period by the Company or, if applicable, Subsidiary without “Cause,” by reason of Non-Renewal, by you for “Good Reason” or by reason of your death, then payment in respect of vested Restricted Stock Units shall be made no later than the 60th day following such termination of employment or service relationship; provided further in the event the Restricted Stock Units vest in connection with a Change in Control in which the Award is not assumed and converted into a substantially equivalent award, then payment in respect of vested Restricted Stock Units shall be made no later than the 60th day following such Change in Control (in each case, the “Date of Settlement”). | ||||
By your acceptance of this document, you and the Company hereby acknowledge receipt of the Restricted Stock Units issued on the Date of Grant indicated above, which have been granted under the terms and conditions contained herein and in the Plan and the Agreement. Alternatively, you acknowledge your agreement to be bound to the terms of this Notice, the Agreement and the Plan in connection with your acceptance of the Restricted Stock Units issued hereby through procedures, including electronic procedures, provided by or on behalf of the Company.
You acknowledge and agree that (a) you are not relying upon any written or oral statement or representation of the Company, its affiliates, or any of their respective employees, directors, officers, attorneys or agents (collectively, the “Company Parties”) regarding the tax effects associated with your execution of this Notice of Grant of Restricted Stock Units and your receipt and holding of and the vesting of the Restricted Stock Units, and (b) in deciding to enter into this Agreement, you are relying on your own judgment and the judgment of the professionals of your choice with whom you have consulted. You hereby release, acquit and forever discharge the Company Parties from all actions, causes of actions, suits, debts, obligations, liabilities, claims, damages, losses, costs and expenses of any nature whatsoever, known or unknown, on account of, arising out of, or in any way related to the tax effects associated with your execution of the Agreement and your receipt and holding of and the vesting of the Restricted Stock Units.
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
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You further acknowledge receipt of a copy of the Plan and the Agreement and agree to all of the terms and conditions of the Plan and the Agreement, which are incorporated herein by reference.
OASIS PETROLEUM INC.,
a Delaware corporation
By:
Name:
Title:
[Signature Page to RSU Notice of Award]
OASIS PETROLEUM INC.
2020 LONG TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
This Agreement is made and entered into as of the Date of Grant set forth in the Notice of Grant of Restricted Stock Units (“Notice of Grant”) by and between Oasis Petroleum Inc., a Delaware corporation (the “Company”), and you.
WHEREAS, the Company in order to induce you to enter into and to continue and dedicate service to the Company and to materially contribute to the success of the Company, agrees to grant you this award;
WHEREAS, the Company adopted the Oasis Petroleum Inc. 2020 Long Term Incentive Plan, as it may be amended from time to time (the “Plan”), under which the Company is authorized to grant restricted stock units to certain employees, directors and other service providers of the Company;
WHEREAS, a copy of the Plan has been furnished to you and shall be deemed a part of this Restricted Stock Unit Agreement (“Agreement”) as if fully set forth herein and the terms capitalized but not defined herein shall have the respective meanings set forth in the Plan; and
WHEREAS, you desire to accept the award made pursuant to this Agreement.
NOW, THEREFORE, in consideration of and mutual covenants set forth herein and for other valuable consideration hereinafter set forth, the parties agree as follows:
1.The Grant. Subject to the terms and conditions set forth below and in the Notice of Grant, the Company hereby grants you, effective as of the Date of Grant set forth in the Notice of Grant, as a matter of separate inducement but not in lieu of any salary or other compensation for your services for the Company, an award consisting of an aggregate number of Restricted Stock Units specified in the Notice of Grant, whereby each Restricted Stock Unit that becomes vested represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus the additional rights to Dividend Equivalents set forth in Section 3, in accordance with the terms and conditions set forth herein, in the Notice of Grant and in the Plan (the “Award”). Your right to receive Stock in respect of Restricted Stock Units is generally contingent, in whole or in part, upon satisfaction of the vesting requirements described in the Notice of Grant. Except as provided below, to the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable terms of this Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. The Restricted Stock Units contemplated herein are Restricted Stock Units designated as such under the Plan pursuant to Sections 2(aa) and 6(e) thereof.
2.No Stockholder Rights. The Restricted Stock Units granted pursuant to this Agreement do not and shall not entitle you to any rights of a holder of Stock unless and until
shares of Stock are actually issued to you on the Date of Settlement specified in the Notice of Grant.
3.Dividend Equivalents. With respect to each outstanding Restricted Stock Unit, the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid on one share of Stock. The amount credited to such book entry account shall be payable to you at the same time as, and subject to the same terms and conditions as are applicable to, the Restricted Stock Units to which they relate; provided, however, that only amounts credited with respect to Restricted Stock Units that vest shall be paid.
4.Restrictions. The Restricted Stock Units are restricted in that they may not be sold, transferred or otherwise alienated or hypothecated. The Restricted Stock Units are also restricted in the sense that they may be forfeited to the Company.
5.Expiration of Restrictions and Settlement of Award. The restrictions on the Restricted Stock Units granted pursuant to this Agreement will expire as set forth in the Notice of Grant, provided that you remain in the employ of, or a service provider to, the Company or its Subsidiaries until the applicable vesting dates set forth in the Notice of Grant. On the applicable Date of Settlement set forth in the Notice of Grant, the Company shall cause to be issued Stock in book entry form registered in your name. To the extent application of the vesting terms set forth in the Notice of Grant would result in you becoming vested in a fractional number of Restricted Stock, the number of Restricted Stock vested will be rounded down to the nearest whole share. The value of the shares of Stock shall not bear any interest owing to the passage of time. Neither this Section 5 nor any action taken pursuant to or in accordance with this Section 5 shall be construed to create a trust of any kind. Upon settlement of the Restricted Stock in Stock following the expiration of the Restriction Period, all of the Restricted Stock Units subject to this Award shall be canceled and terminated.
6.Termination of Services. Except as otherwise provided in the Notice of Grant, if your service relationship with the Company or any of its Subsidiaries is terminated for any reason, then those Restricted Stock Units for which the restrictions have not lapsed as of the date of termination shall become null and void and those Restricted Stock Units shall be forfeited to the Company for no consideration. The Restricted Stock Units for which the restrictions have lapsed as of the date of such termination, including Restricted Stock Units for which the restrictions lapsed in connection with such termination, shall not be forfeited to the Company and shall be settled on the applicable Date of Settlement set forth in the Notice of Grant.
7.Leave of Absence. With respect to the Award, the Company may, in its sole discretion, determine that if you are on leave of absence for any reason you will be considered to still be in the employ of, or providing services for, the Company.
8.Payment of Taxes. With respect to any required tax withholding, the Company shall withhold from the shares of Stock to be issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, which determination will be based on the shares’ Fair Market Value at the time such determination is made; provided, however, that the Committee, in its discretion (which discretion may not be delegated), may
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disallow satisfaction of the Company’s tax withholding obligations using the foregoing method, in which case the Company may require you to satisfy any current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award by such other method or methods specified by the Company. In the event the Company determines that the amount withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you must pay to the Company, in cash, the amount of that deficiency immediately upon the Company’s request.
9.Compliance with Securities Laws; Company Policies. Notwithstanding any provision of this Agreement to the contrary, any issuance of Stock hereunder will be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities and with the requirements of any stock exchange or market system upon which the Stock may then be listed. No Stock will be issued hereunder if such issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, Stock will not be issued hereunder unless (a) a registration statement under the Securities Act of 1933, as amended (the “Act”), is at the time of issuance in effect with respect to the shares issued, or (b) in the opinion of legal counsel to the Company, the shares issued may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Act. As a condition to any issuance hereunder, the Company may require you to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. From time to time, the Board and appropriate officers of the Company are authorized to take the actions necessary and appropriate to file required documents with governmental authorities, stock exchanges, and other appropriate Persons to make shares of Stock available for issuance. You agree not to sell any shares of Stock acquired pursuant to this Award in violation of the Company’s securities trading policy, to the extent applicable.
10.Right of the Company and Subsidiaries to Terminate Services. Nothing in this Agreement confers upon you the right to continue in the employ of or performing services for the Company or any Subsidiary, or interfere in any way with the rights of the Company or any Subsidiary to terminate your employment or service relationship at any time.
11.Furnish Information. You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.
12.Remedies. The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the successful enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.
13.No Liability for Good Faith Determinations. The Company and the members of the Board shall not be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Restricted Stock Units granted hereunder.
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14.Execution of Receipts and Releases. Any payment of cash or any issuance of shares of Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such Persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.
15.No Guarantee of Interests. The Board and the Company do not guarantee the Stock of the Company from depreciation.
16.Company Records. Records of the Company or its Subsidiaries regarding your period of service, termination of service and the reason(s) therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.
17.Notice. All notices required or permitted under this Agreement must be in writing and personally delivered or sent by mail and shall be deemed to be delivered on the date on which it is actually received by the person to whom it is properly addressed or if earlier the date it is sent via certified United States mail or reputable overnight delivery service (charges prepaid).
18.Waiver of Notice. Any person entitled to notice hereunder may waive such notice in writing.
19.Information Confidential. As partial consideration for the granting of the Award hereunder, you hereby agree to keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse and tax, legal and financial advisors. In the event any breach of this promise comes to the attention of the Company, it shall take into consideration that breach in determining whether to recommend the grant of any future similar award to you, as a factor weighing against the advisability of granting any such future award to you.
20.Successors. This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.
21.Severability. If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.
22.Company Action. Any action required of the Company shall be by resolution of the Board or by a person or entity authorized to act by resolution of the Board.
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23.Headings. The titles and headings of Sections are included for convenience of reference only and are not to be considered in construction of the provisions hereof.
24.Governing Law. All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of Texas, without giving any effect to any conflict of law provisions thereof, except to the extent Texas state law is preempted by federal law.
25.Consent to Texas Jurisdiction and Venue. You hereby consent and agree that state courts located in Harris County, Texas and the United States District Court for the Southern District of Texas each shall have personal jurisdiction and proper venue with respect to any dispute between you and the Company arising in connection with the Restricted Stock Units or this Agreement. In any dispute with the Company, you will not raise, and you hereby expressly waive, any objection or defense to such jurisdiction as an inconvenient forum.
26.Amendment. This Agreement may be amended by the Board or by the Committee at any time (a) if the Board or the Committee determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in any federal or state, tax or securities law or other law or regulation, which change occurs after the Date of Grant and by its terms applies to the Award; or (b) other than in the circumstances described in clause (a) or provided in the Plan, with your consent.
27.Unfunded Arrangement. Neither the Notice of Grant, this Agreement nor the Plan shall give you any security or other interest in any assets of the Company; rather, your right to the Award is that of a general, unsecured creditor of the Company.
28.The Plan. This Agreement is subject to all terms, conditions, limitations and restrictions contained in the Plan.
29.Clawback. Notwithstanding anything to the contrary herein or in the Plan, the Restricted Stock Units may be cancelled and you may be required to reimburse the Company for any realized gains with respect to the Restricted Stock Units to the extent required by applicable law (including but not limited to Section 304 of the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010), the rules of any applicable stock exchange, or any clawback policy of the Company.
30.Compliance With Section 409A of the Code. This Award is intended to be exempt from or comply with Section 409A of the Code, and shall be interpreted and construed accordingly, and each payment hereunder shall be considered a separate payment. To the extent this Agreement provides for the Award to become vested and be settled upon your termination of employment, the applicable shares of Stock shall be transferred to you or your beneficiary upon your “separation from service,” within the meaning of Section 409A of the Code; provided, however, that if you are a “specified employee,” within the meaning of Section 409A of the Code, then to the extent the Award constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, such shares of Stock shall be transferred to you or your
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beneficiary upon the earlier to occur of (i) the six-month anniversary of such separation from service and (ii) the date of your death.
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FORM OF
NOTICE OF GRANT OF PERFORMANCE SHARE UNITS
(RELATIVE TSR)
Pursuant to the terms and conditions of the Oasis Petroleum Inc. 2020 Long Term Incentive Plan (the “Plan”), and the associated Performance Share Unit Agreement (the “Agreement”), you are hereby granted an award of Performance Share Units, whereby each Performance Share Unit that becomes earned, as determined by the Committee in its sole and absolute discretion, represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus rights to certain Dividend Equivalents described in Section 3 of the Agreement, under the terms and conditions set forth below, in the Agreement, and in the Plan (the “Performance Share Units”). Capitalized terms used but not defined herein shall have the respective meanings set forth in the Plan or the Agreement.
| Grantee: | [__________] | ||||
Date of Grant: | [__________, 20__] (“Date of Grant”) | ||||
Number of Performance Share Units: | The target number of Performance Share Units is [__________] (the “Initial Performance Units”). The number of shares of Stock that may be deliverable in respect of this Award may range from 0% to 150% of the number of Initial Performance Units. | ||||
Performance Cycles: | The Performance Cycle applicable to the Performance Share Units began on [__________, 20__] and ends on: (a) [__________, 20__] (36 months) for one half of the Initial Performance Units (the “First Performance Cycle”); and (b) [__________, 20__] (48 months) for the remaining one half of the Initial Performance Share Units (the “Second Performance Cycle”) (each such period, a “Performance Cycle” and the period from the Date of Grant to [__________, 20__], the “Grant Cycle”). | ||||
Vesting Requirements: | Your right to receive Stock in respect of Performance Share Units is generally contingent, in whole or in part, upon (a) except as otherwise provided below, your continuous active service with the Company through the end of the applicable Performance Cycle (the “Continuous Service Requirement”) and (b) the level of achievement of the TSR Vesting Objective as outlined below and in Appendix A, which states the TSR Vesting Objective. The “TSR Vesting Objective” means the Company’s relative ranking in respect of the applicable Performance Cycle with regard to Total Shareholder Return (as defined in Appendix A) as compared to Total Shareholder Return of the Peer Companies (as defined in Appendix A). The level of achievement of the TSR Vesting Objective shall be determined in accordance with Appendix A. After the end of each applicable Performance Cycle, the Committee shall determine the Company’s Total Shareholder Return as compared to Total Shareholder Return of the Peer Companies and will certify the level of achievement with respect to the TSR Vesting Objective and what percentage of the Initial Performance Units eligible to vest for such Performance Cycle have been earned in accordance with the table set forth in Appendix A (such number of Performance Share Units that become earned shall hereinafter be called the “Earned Performance Units”), subject to your satisfaction of the Continuous Service Requirement through the end of such Performance Cycle. Notwithstanding anything to the contrary herein, in the Agreement, in the Plan or in any other arrangement between you and the Company (including any employment agreement or severance plan in which you participate): (a)if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of the Grant Cycle (w) by the Company or, if applicable, Subsidiary without “Cause,” (as such term is defined your employment agreement with the Company, dated [__________, 20__] (the “Employment Agreement”), (x) by reason of the Company’s non-renewal of your Employment Agreement at the end of the Employment Period (as defined in the Employment Agreement) (a “Non-Renewal”), (y) by you for “Good Reason” (as defined in the Employment Agreement) or (z) by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of a waiver and release agreement in the form attached as Exhibit A to the Employment Agreement and as may be modified pursuant to the terms of the Employment Agreement (the “Release”), then you shall be deemed to have earned, with respect to any Initial Performance Units eligible to vest for a Performance Cycle that has not ended prior to your termination date, a prorated number of Earned Performance Units that you would have actually earned in accordance with Appendix A as of the end of each such Performance Cycle had you remained employed through the end of the Performance Cycle, with the prorated number of Earned Performance Units determined based on the number of your Deemed Service Days (as defined below) as compared to the total number of days in the Performance Cycle; provided, however, that if a Change in Control (as defined below) occurs following your termination without Cause or due to Good Reason, a Non-Renewal or by reason of your death, then the number of Earned Performance Units shall be calculated in accordance with subparagraph (b) below as of the date of the Change in Control. The term “Deemed Service Days” means (x) the number of days you were employed by the Company during the Performance Cycle or (y) 12 months, whichever is greater. Any reference in this Notice of Grant to the “Company” shall include any employer successor thereto. (b)if a Change in Control occurs prior to the end of the Grant Cycle (the date of such occurrence, the “Change in Control Date”) and subject to your satisfaction of the Continuous Service Requirement until immediately prior to the Change in Control , then, upon the occurrence of such Change in Control, with respect to any Initial Performance Units eligible to vest for a Performance Cycle that has not ended prior to the Change in Control Date, you shall remain eligible to earn a number of Performance Share Units equal to the number of Earned Performance Units you would have earned in accordance with Appendix A, subject to your satisfaction of the Continuous Service Requirement through the end of the applicable Performance Cycle, but with (i) the determination of whether, and to what extent, the TSR Vesting Objective is achieved calculated based on actual performance against the stated criteria through the Change in Control Date and (ii) the Closing Value (as defined in Appendix A) for the Company deemed to equal the Change in Control Price instead of the Closing Value calculated in accordance with Appendix A; provided, however, that if the Change in Control occurs 18 months or less after the effective date of the Employment Agreement, the number of Earned Performance Units shall be equal to either (x) 100% of the Initial Performance Units or (y) that number determined by treating the Change in Control Price as the Closing Value, whichever results in the greater number of Earned Performance Units. For purposes of this Award, (A) “Change in Control” shall have the meaning given such term in the Plan; and (B) “Change in Control Price” shall equal the amount determined in the following clause (1), (2), (3), (4) or (5), whichever is applicable, as follows: (1) the price per share offered to holders of Stock in any merger or consolidation, (2) the per share Fair Market Value of the Stock immediately before the Change in Control, without regard to assets sold in the Change in Control and assuming the Company has received the consideration paid for the assets in the case of a sale of assets, (3) the amount distributed per share of Stock in a dissolution transaction, (4) the price per share offered to holders of Stock in any tender offer or exchange offer whereby a Change in Control takes place, or (5) if such Change in Control occurs other than pursuant to a transaction described in clause (1), (2), (3), or (4), the volume weighted average of the Company’s Stock trading prices over the 20 trading days immediately preceding the Change in Control Date. (c)if your employment or service relationship with the Company and its Subsidiaries is terminated upon, or 18 months or less following, a Change in Control and prior to the end of the Grant Cycle by the Company or, if applicable, Subsidiary without “Cause” or by reason of Non-Renewal, by you for “Good Reason” or by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of the Release, then you shall be deemed to have earned, and become vested in, with respect to any Initial Performance Units eligible to vest for a Performance Cycle that has not ended prior to your termination date, a number of Earned Performance Units that you would have actually earned in accordance with Appendix A, but with (i) the determination of whether, and to what extent, the TSR Vesting Objective is achieved calculated based on actual performance against the stated criteria through the Change in Control Date and (ii) the Closing Value (as defined in Appendix A) for the Company deemed to equal the Change in Control Price instead of the Closing Value calculated in accordance with Appendix A; provided, however, that if the Change in Control occurs 18 months or less after the effective date of the Employment Agreement, the number of Earned Performance Units shall be equal to either (x) 100% of the Initial Performance Units or (y) that number determined by treating the Change in Control Price as the Closing Value, whichever results in the greater number of Earned Performance Units. Any of your Performance Share Units that are eligible to be earned but that do not become Earned Performance Units as of the end of the applicable Performance Cycle shall terminate and be cancelled upon the expiration of such Performance Cycle. For purposes of this Award, notwithstanding a termination of the Employment Agreement at the end of the Employment Period as a result of non-renewal by either the Company or you, your continued employment or service relationship with the Company and its Subsidiaries following the termination of the Employment Agreement (1) shall constitute continuous active service with the Company for all purposes pursuant to the terms hereof and count toward satisfaction of the Continuous Service Requirements herein, and (2) the provisions in your Employment Agreement relating to termination without “Cause,” by you for “Good Reason,” and by reason of your death shall apply to the continued employment or service relationship following non-renewal of the Employment Agreement, including for purposes of applying the earning and vesting provisions contained herein. | ||||
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| Date of Settlement: | Payment in respect of Earned Performance Units shall be made no later than March 15 of the calendar year following the calendar year in which the last day of the applicable Performance Cycle occurs; provided, however, that (i) if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of a Performance Cycle by the Company or, if applicable, Subsidiary without “Cause,” by reason of Non-Renewal, by you for “Good Reason” or by reason of your death, then payment in respect of Earned Performance Units shall be made no later than two and one-half months following the end of the calendar year in which the substantial risk of forfeiture lapses with respect to such Performance Cycle (provided further that if a Change in Control occurs following the termination of your employment or service relationship under this clause (i), then payment in respect of Earned Performance Units shall be made no later than the 60th day following the Change in Control); and (ii) if your employment or service relationship with the Company and its Subsidiaries is terminated upon or following a Change in Control and prior to the end of the Grant Cycle by the Company or, if applicable, or Subsidiary without “Cause,” by reason of Non-Renewal, by you for “Good Reason” or by reason of your death, then payment in respect of Earned Performance Units shall be made no later than the 60th day following such termination of employment or service relationship (in each case, the “Date of Settlement”). All payments with respect to Earned Performance Units shall be made in freely transferable shares of Stock (or such cash, securities or other property to which a holder of an equal number of shares of Stock would be entitled in connection with a Change in Control), and will be subject to all applicable tax withholding requirements. Upon full settlement of the Performance Share Units hereunder and pursuant to Section 3 of the Agreement, no additional payments will be made pursuant to this Award and the Award shall terminate. | ||||
By your acceptance of this document, you and the Company hereby acknowledge receipt of the Performance Share Units issued on the Date of Grant indicated above, which have been granted under the terms and conditions contained herein and in the Plan and the Agreement. Alternatively, you acknowledge your agreement to be bound to the terms of this Notice, the Agreement and the Plan in connection with your acceptance of the Performance Share Units issued hereby through procedures, including electronic procedures, provided by or on behalf of the Company.
You acknowledge and agree that (a) you are not relying upon any written or oral statement or representation of the Company, its affiliates, or any of their respective employees, directors, officers, attorneys or agents (collectively, the “Company Parties”) regarding the tax effects associated with your execution of this Notice of Grant of Performance Share Units and your receipt and holding of and the vesting of the Performance Share Units, and (b) in deciding
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to enter into this Agreement, you are relying on your own judgment and the judgment of the professionals of your choice with whom you have consulted. You hereby release, acquit and forever discharge the Company Parties from all actions, causes of actions, suits, debts, obligations, liabilities, claims, damages, losses, costs and expenses of any nature whatsoever, known or unknown, on account of, arising out of, or in any way related to the tax effects associated with your execution of the Agreement and your receipt and holding of and the vesting of the Performance Share Units.
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
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You further acknowledge receipt of a copy of the Plan and the Agreement and agree to all of the terms and conditions of the Plan and the Agreement, which are incorporated herein by reference.
OASIS PETROLEUM INC.,
a Delaware corporation
By:
Name:
Title:
Attachment: Appendix A – Total Shareholder Return Vesting Objective
[Signature Page to Relative TSR PSU Notice of Award
Appendix A
Total Shareholder Return Vesting Objective
The TSR Vesting Objective for the Performance Share Units is outlined in this Appendix A below. The “TSR Vesting Objective” means the Company’s relative ranking in respect of the applicable Performance Cycle with regard to Total Shareholder Return as compared to the Total Shareholder Return of the Peer Companies. The Committee shall have the sole discretion for determining the level of achievement with respect to the TSR Vesting Objective and the number of Earned Performance Units for each Performance Cycle and any such determinations shall be conclusive.
1. Defined Terms.
(a) “Total Shareholder Return” or “TSR” means, as to the Company and each of the Peer Companies, the cumulative rate of return shareholders receive through stock price changes and the assumed reinvestment of dividends paid over the applicable Performance Cycle. Dividends per share paid other than in the form of cash shall have a value equal to the amount of such dividends reported by the issuer to its shareholders for purposes of Federal income taxation. For purposes of determining the Total Shareholder Return for the Company, the change in the price of the Company’s Stock shall be based upon the Initial Value of the Stock stated below and the volume weighted average of the trading prices of the Company’s Stock over the 20 trading days immediately preceding the end of the applicable Performance Cycle (the “Closing Value”). The Initial Value of the Stock to be used to determine Total Shareholder Return of the Company’s Stock over each Performance Cycle is $[___]. For purposes of determining the Total Shareholder Return for each of the Peer Companies, the change in the price of the common stock of each Peer Company shall be based upon the volume weighted average of the stock trading prices of each such Peer Company over the 20 trading days immediately preceding each of the start (the “Initial Value”) and the end (the “Closing Value”) of the applicable Performance Cycle.
(b) “Peer Company” means [__________________].
2. Calculation of Ranking; Earned Performance Units.
(a) After the end of each Performance Cycle, the Committee will:
(i)calculate the Company’s Total Shareholder Return and the Total Shareholder Return of each Peer Company;
(ii)rank, from highest to lowest, the Total Shareholder Return of the Company and each Peer Company; and
(iii)certify the level of achievement with respect to the TSR Vesting Objective and determine and certify the number of Earned Performance Units for the Performance Cycle in accordance with the following schedule:
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| Company Cumulative TSR Relative to Peer Companies | Performance Level | Payout in Shares of Stock as a Percentage of Target(1) (2) | ||||||
| <20th Percentile | Below Threshold | 0% | ||||||
| 20th Percentile | Threshold | 50% | ||||||
| 40th Percentile | 75% | |||||||
| 60th Percentile | Target | 100% | ||||||
| 70th Percentile | 125% | |||||||
| >=80th Percentile | Maximum | 150% | ||||||
(1)Fifty percent (50%) of the Initial Performance Units shall vest based on the Company’s performance over the First Performance Cycle and the remaining 50% of the Initial Performance Units shall vest based on the Company’s performance over the Second Performance Cycle.
(2)Payouts for percentile ranks in between the percentiles shown above (except for results that would result in below threshold and above maximum awards) would be calculated by interpolating (rounded to four decimal places) between the benchmarks detailed above.
(b) Notwithstanding the foregoing:
(i) if the Company’s Initial Value is greater than its Closing Value for any Performance Cycle, the greatest percentage of Performance Share Units that may become Earned Performance Units for that Performance Cycle is 100%;
(ii) except as otherwise provided by the Notice of Grant to which this Appendix A is attached, no Performance Share Units will become Earned Performance Units for a Performance Cycle unless you also satisfy the applicable Continuous Service Requirement in accordance with the terms of the Agreement and the Notice of Grant; and
(iii) the Company will have all interpretation powers provided to it within the Plan in making calculations, interpretations or decisions regarding this Award.
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OASIS PETROLEUM INC.
2020 LONG TERM INCENTIVE PLAN
PERFORMANCE SHARE UNIT AGREEMENT
This Agreement is made and entered into as of the Date of Grant set forth in the Notice of Grant of Performance Share Units (“Notice of Grant”) by and between Oasis Petroleum Inc., a Delaware corporation (the “Company”), and you.
WHEREAS, the Company in order to induce you to enter into and to continue and dedicate service to the Company and to materially contribute to the success of the Company, agrees to grant you this award;
WHEREAS, the Company adopted the Oasis Petroleum Inc. 2020 Long Term Incentive Plan, as it may be amended from time to time (the “Plan”), under which the Company is authorized to grant restricted stock units designated as performance share units to certain employees, directors and other service providers of the Company;
WHEREAS, a copy of the Plan has been furnished to you and shall be deemed a part of this Performance Share Unit Agreement (“Agreement”) as if fully set forth herein and the terms capitalized but not defined herein shall have the respective meanings set forth in the Plan; and
WHEREAS, you desire to accept the award made pursuant to this Agreement.
NOW, THEREFORE, in consideration of and mutual covenants set forth herein and for other valuable consideration hereinafter set forth, the parties agree as follows:
1.The Grant. Subject to the terms and conditions set forth below and in the Notice of Grant, the Company hereby grants you, effective as of the Date of Grant set forth in the Notice of Grant, as a matter of separate inducement but not in lieu of any salary or other compensation for your services for the Company, an award consisting of an aggregate number of Performance Share Units specified in the Notice of Grant, whereby each Performance Share Unit that becomes earned, as determined by the Committee in its sole and absolute discretion, represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus the additional rights to Dividend Equivalents set forth in Section 3, in accordance with the terms and conditions set forth herein, in the Notice of Grant and in the Plan (the “Award”). Your right to receive Stock in respect of Performance Share Units is generally contingent, in whole or in part, upon satisfaction of the vesting requirements described in the Notice of Grant; provided, however, that, based on the relative achievement of the applicable performance vesting objectives, the number of shares of Stock that may be deliverable hereunder in respect of the Performance Share Units may range from 0% to 150% of the number of Performance Share Units specified in your Notice of Grant (such specified number of Performance Share Units hereinafter called the “Initial Performance Units” and such number of Performance Share Units that equal 150% of the Initial Performance Units shall hereinafter be referred to as the “Maximum Performance Units”). Except as provided below, to the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and
agree that those terms of the Plan shall control and, if necessary, the applicable terms of this Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. The Performance Share Units contemplated herein are Restricted Stock Units designated as such under the Plan pursuant to Sections 2(v) and 6(e) thereof.
2.No Stockholder Rights. The Performance Share Units granted pursuant to this Agreement do not and shall not entitle you to any rights of a holder of Stock unless and until shares of Stock are actually issued to you on the Date of Settlement specified in the Notice of Grant.
3.Dividend Equivalents. With respect to each outstanding Performance Share Unit (up to the number of Maximum Performance Units subject to this Award), the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid on one share of Stock. The amount credited to such book entry account shall be payable to you at the same time as, and subject to the same terms and conditions as are applicable to, the Performance Share Units to which they relate; provided, however, that only amounts credited with respect to Earned Performance Units shall be paid.
4.Restrictions. The Performance Share Units are restricted in that they may not be sold, transferred or otherwise alienated or hypothecated. The Performance Share Units are also restricted in the sense that they may be forfeited to the Company.
5.Expiration of Restrictions and Settlement of Award. The restrictions on the Performance Share Units granted pursuant to this Agreement will expire as set forth in the Notice of Grant, provided that you remain in the employ of, or a service provider to, the Company or its Subsidiaries until the applicable dates set forth in the Notice of Grant. On the applicable Date of Settlement set forth in the Notice of Grant, the Company shall cause to be issued Stock in book entry form registered in your name. To the extent application of the vesting terms set forth in the Notice of Grant would result in you becoming vested in a fractional number of Earned Performance Units, the number of Earned Performance Units vested will be rounded down to the nearest whole share. The value of the shares of Stock shall not bear any interest owing to the passage of time. Neither this Section 5 nor any action taken pursuant to or in accordance with this Section 5 shall be construed to create a trust of any kind. Upon settlement of the Earned Performance Units in Stock following the end of the Grant Cycle, all of the Performance Share Units subject to this Award shall be canceled and terminated.
6.Termination of Services. Except as otherwise provided in the Notice of Grant, if your service relationship with the Company or any of its Subsidiaries is terminated for any reason, then those Performance Share Units for which the restrictions have not lapsed as of the date of termination shall become null and void and those Performance Share Units shall be forfeited to the Company for no consideration. The Performance Share Units for which the restrictions have lapsed as of the date of such termination, including Performance Share Units for which the restrictions lapsed in connection with such termination, shall not be forfeited to the Company and shall be settled on the applicable Date of Settlement set forth in the Notice of Grant.
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7.Leave of Absence. With respect to the Award, the Company may, in its sole discretion, determine that if you are on leave of absence for any reason you will be considered to still be in the employ of, or providing services for, the Company.
8.Payment of Taxes. With respect to any required tax withholding, the Company shall withhold from the shares of Stock to be issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, which determination will be based on the shares’ Fair Market Value at the time such determination is made; provided, however, that the Committee, in its discretion (which discretion may not be delegated), may disallow satisfaction of the Company’s tax withholding obligations using the foregoing method, in which case the Company may require you to satisfy any current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award by such other method or methods specified by the Company. In the event the Company determines that the amount withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you must pay to the Company, in cash, the amount of that deficiency immediately upon the Company’s request.
9.Compliance with Securities Laws; Company Policies. Notwithstanding any provision of this Agreement to the contrary, any issuance of Stock hereunder will be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities and with the requirements of any stock exchange or market system upon which the Stock may then be listed. No Stock will be issued hereunder if such issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, Stock will not be issued hereunder unless (a) a registration statement under the Securities Act of 1933, as amended (the “Act”), is at the time of issuance in effect with respect to the shares issued, or (b) in the opinion of legal counsel to the Company, the shares issued may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Act. As a condition to any issuance hereunder, the Company may require you to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. From time to time, the Board and appropriate officers of the Company are authorized to take the actions necessary and appropriate to file required documents with governmental authorities, stock exchanges, and other appropriate Persons to make shares of Stock available for issuance. You agree not to sell any shares of Stock acquired pursuant to this Award in violation of the Company’s securities trading policy, to the extent applicable.
10.Right of the Company and Subsidiaries to Terminate Services. Nothing in this Agreement confers upon you the right to continue in the employ of or performing services for the Company or any Subsidiary, or interfere in any way with the rights of the Company or any Subsidiary to terminate your employment or service relationship at any time.
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11.Furnish Information. You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.
12.Remedies. The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the successful enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.
13.No Liability for Good Faith Determinations. The Company and the members of the Board shall not be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Performance Share Units granted hereunder.
14.Execution of Receipts and Releases. Any payment of cash or any issuance of shares of Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such Persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.
15.No Guarantee of Interests. The Board and the Company do not guarantee the Stock of the Company from depreciation.
16.Company Records. Records of the Company or its Subsidiaries regarding your period of service, termination of service and the reason(s) therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.
17.Notice. All notices required or permitted under this Agreement must be in writing and personally delivered or sent by mail and shall be deemed to be delivered on the date on which it is actually received by the person to whom it is properly addressed or if earlier the date it is sent via certified United States mail or reputable overnight delivery service (charges prepaid).
18.Waiver of Notice. Any person entitled to notice hereunder may waive such notice in writing.
19.Information Confidential. As partial consideration for the granting of the Award hereunder, you hereby agree to keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse and tax, legal and financial advisors. In the event any breach of this promise comes to the attention of the Company, it shall take into consideration that breach in determining whether to recommend the grant of any future similar award to you, as a factor weighing against the advisability of granting any such future award to you.
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20.Successors. This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.
21.Severability. If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.
22.Company Action. Any action required of the Company shall be by resolution of the Board or by a person or entity authorized to act by resolution of the Board.
23.Headings. The titles and headings of Sections are included for convenience of reference only and are not to be considered in construction of the provisions hereof.
24.Governing Law. All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of Texas, without giving any effect to any conflict of law provisions thereof, except to the extent Texas state law is preempted by federal law.
25.Consent to Texas Jurisdiction and Venue. You hereby consent and agree that state courts located in Harris County, Texas and the United States District Court for the Southern District of Texas each shall have personal jurisdiction and proper venue with respect to any dispute between you and the Company arising in connection with the Performance Share Units or this Agreement. In any dispute with the Company, you will not raise, and you hereby expressly waive, any objection or defense to such jurisdiction as an inconvenient forum.
26.Amendment. This Agreement may be amended by the Board or by the Committee at any time (a) if the Board or the Committee determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in any federal or state, tax or securities law or other law or regulation, which change occurs after the Date of Grant and by its terms applies to the Award; or (b) other than in the circumstances described in clause (a) or provided in the Plan, with your consent.
27.Unfunded Arrangement. Neither the Notice of Grant, this Agreement nor the Plan shall give you any security or other interest in any assets of the Company; rather, your right to the Award is that of a general, unsecured creditor of the Company.
28.The Plan. This Agreement is subject to all terms, conditions, limitations and restrictions contained in the Plan.
29.Clawback. Notwithstanding anything to the contrary herein or in the Plan, the Performance Share Units may be cancelled and you may be required to reimburse the Company for any realized gains with respect to the Performance Share Units to the extent required by applicable law (including but not limited to Section 304 of the Sarbanes-Oxley Act of 2002 and
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the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010), the rules of any applicable stock exchange, or any clawback policy of the Company.
30.Compliance With Section 409A of the Code. This Award is intended to be exempt from or comply with Section 409A of the Code, and shall be interpreted and construed accordingly, and each payment hereunder shall be considered a separate payment. To the extent this Agreement provides for the Award to become vested and be settled upon your termination of employment, the applicable shares of Stock shall be transferred to you or your beneficiary upon your “separation from service,” within the meaning of Section 409A of the Code; provided, however, that if you are a “specified employee,” within the meaning of Section 409A of the Code, then to the extent the Award constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, such shares of Stock shall be transferred to you or your beneficiary upon the earlier to occur of (i) the six-month anniversary of such separation from service and (ii) the date of your death.
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FORM OF
NOTICE OF GRANT OF PERFORMANCE SHARE UNITS
(Absolute TSR: 3-year and 4-year)
Pursuant to the terms and conditions of the Oasis Petroleum Inc. 2020 Long Term Incentive Plan (the “Plan”), and the associated Performance Share Unit Agreement (the “Agreement”), you are hereby granted an award of Performance Share Units, whereby each Performance Share Unit that becomes earned, as determined by the Committee in its sole and absolute discretion, represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus rights to certain Dividend Equivalents described in Section 3 of the Agreement, under the terms and conditions set forth below, in the Agreement, and in the Plan (the “Performance Share Units”). Capitalized terms used but not defined herein shall have the respective meanings set forth in the Plan or the Agreement
| Grantee: | [__________] | ||||
Date of Grant: | [__________, 20__] (“Date of Grant”) | ||||
Number of Performance Share Units: | The target number of Performance Share Units is [__________] (the “Initial Performance Units”). The number of shares of Stock that may be deliverable in respect of this Award may range from 0% to 300% of the number of Initial Performance Units; provided, however, that the value of the number of shares of Stock that may be delivered in respect of this Award during the entire Grant Cycle (as defined below) shall not exceed 10 times (the “10X Cap”) the fair value of the Award as of the Date of Grant and determined in accordance with the Company’s accounting practices used for financial statement reporting purposes, with the value of the shares of Stock for purposes of applying the 10X Cap determined based on the sum of the fair market value of the shares of Stock to be delivered with respect to each Performance Cycle (as defined below), calculated based on the number of shares of Stock earned with respect to a Performance Cycle based on actual performance during such Performance Cycle and multiplied by the closing price of a share of Stock as of the Date of Settlement (as defined below). Any shares of Stock subject to this Award that are not deliverable as a result of the 10X Cap shall be forfeited for no additional consideration. | ||||
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Performance Cycles: | The Performance Cycles applicable to the Performance Share Units begin on [__________, 20__] and end on: (a)[__________, 20__] ([27][39] months) for 25% of the Initial Performance Units (the “First Performance Cycle”); (b)[__________, 20__] ([30][42] months) for 25% of the Initial Performance Units (the “Second Performance Cycle”); (c)[__________, 20__] ([33][45] months) for 25% of the Initial Performance Units (the “Third Performance Cycle”); and (d)[__________, 20__] ([36][48] months) for the remaining 25% of the Initial Performance Share Units (the “Fourth Performance Cycle”) (each such period, a “Performance Cycle” and the period from the Date of Grant to [__________, 20__], the “Grant Cycle”). | ||||
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Vesting Requirements: | Your right to receive Stock in respect of Performance Share Units is generally contingent, in whole or in part, upon (a) except as otherwise provided below, your continuous active service with the Company through the end of the Grant Cycle (the “Continuous Service Requirement”) and (b) the level of achievement of the TSR Earning Objective as outlined below and in Appendix A, which states the TSR Earning Objective. The “TSR Earning Objective” means the Company’s Total Shareholder Return (as defined in Appendix A) in the applicable Performance Cycle. The level of achievement of the TSR Earning Objective shall be determined in accordance with Appendix A. After the end of each applicable Performance Cycle, the Committee shall determine the Company’s Total Shareholder Return and will certify the level of achievement with respect to the TSR Earning Objective and what percentage of the Initial Performance Units eligible to be earned for such Performance Cycle have been earned in accordance with the table set forth in Appendix A (such number of Performance Share Units that become earned shall hereinafter be called the “Earned Performance Units”), subject to your satisfaction of the Continuous Service Requirement through the end of the Grant Cycle. Notwithstanding anything to the contrary herein, in the Agreement, in the Plan or in any other arrangement between you and the Company (including any employment agreement or severance plan in which you participate): (a)if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of the Grant Cycle (w) by the Company or, if applicable, Subsidiary without “Cause,” (as such term is defined your employment agreement with the Company, dated [__________, 20__] (the “Employment Agreement”), (x) by reason of the Company’s non-renewal of your Employment Agreement at the end of the Employment Period (as defined in the Employment Agreement) (a “Non-Renewal”), (y) by you for “Good Reason” (as defined in the Employment Agreement) or (z) by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of a waiver and release agreement in the form attached as Exhibit A to the Employment Agreement and as may be modified pursuant to the terms of the Employment Agreement (the “Release”), then you shall be deemed to have earned a prorated number of Earned Performance Units that you would have actually earned in accordance with Appendix A as of the end of the Grant Cycle had you remained employed through the end of the Grant Cycle, with the prorated number of Earned Performance Units determined based on the number of your Deemed Service Days (as defined below) as compared to the total number of days in such Grant Cycle; provided, however, that if a Change in Control (as defined below) occurs following your termination without Cause or due to Good Reason, a Non-Renewal or by reason of your death, then the number of Earned Performance Units shall be calculated in accordance with subparagraph (b) below as of the date of the Change in Control. The term “Deemed Service Days” means (x) the number of days you were employed by the Company during the Grant Cycle or (y) 12 months, whichever is greater. Any reference in this Notice of Grant to the “Company” shall include any employer successor thereto. (b)if a Change in Control occurs prior to the end of the Grant Cycle (the date of such occurrence, the “Change in Control Date”) and subject to your satisfaction of the Continuous Service Requirement until immediately prior to the Change in Control, then, upon the occurrence of such Change in Control, you shall remain eligible to earn a number of Performance Share Units equal to the number of Earned Performance Units you would have earned in accordance with Appendix A, subject to your satisfaction of the Continuous Service Requirement through the end of the Grant Cycle, but with (i) the determination of whether, and to what extent, the TSR Earning Objective is achieved calculated based on actual performance against the stated criteria through the Change in Control Date and (ii) the Closing Value (as defined in Appendix A) for the Company deemed to equal the Change in Control Price instead of the Closing Value calculated in accordance with Appendix A; provided, however, that if the Change in Control occurs 18 months or less after the effective date of the Employment Agreement, the number of Earned Performance Units shall be equal to either (x) 100% of the Initial Performance Units or (y) that number determined by treating the Change in Control Price as the Closing Value, whichever results in the greater number of Earned Performance Units. For purposes of this Award, (A) “Change in Control” shall have the meaning given such term in the Plan; and (B) “Change in Control Price” shall equal the amount determined in the following clause (1), (2), (3), (4) or (5), whichever is applicable, as follows: (1) the price per share offered to holders of Stock in any merger or consolidation, (2) the per share Fair Market Value of the Stock immediately before the Change in Control, without regard to assets sold in the Change in Control and assuming the Company has received the consideration paid for the assets in the case of a sale of assets, (3) the amount distributed per share of Stock in a dissolution transaction, (4) the price per share offered to holders of Stock in any tender offer or exchange offer whereby a Change in Control takes place, or (5) if such Change in Control occurs other than pursuant to a transaction described in clause (1), (2), (3), or (4), the volume weighted average of the Company’s Stock trading prices over the 20 trading days immediately preceding the Change in Control Date. (c)if your employment or service relationship with the Company and its Subsidiaries is terminated upon, or 18 months or less following, a Change in Control and prior to the end of the Grant Cycle by the Company or, if applicable, Subsidiary without “Cause” or by reason of Non-Renewal, by you for “Good Reason” or by reason of your death and subject in each case to your (or your estate’s) execution and non-revocation of the Release, then you shall be deemed to have earned, and become vested in, a number of Earned Performance Units that you would have actually earned in accordance with Appendix A, but with (i) the determination of whether, and to what extent, the TSR Earning Objective is achieved calculated based on actual performance against the stated criteria through the Change in Control Date and (ii) the Closing Value (as defined in Appendix A) for the Company deemed to equal the Change in Control Price instead of the Closing Value calculated in accordance with Appendix A; provided, however, that if the Change in Control occurs 18 months or less after the effective date of the Employment Agreement, the number of Earned Performance Units shall be equal to either (x) 100% of the Initial Performance Units or (y) that number determined by treating the Change in Control Price as the Closing Value, whichever results in the greater number of Earned Performance Units. Any of your Performance Share Units that are eligible to be earned but that do not become Earned Performance Units as of the end of the applicable Performance Cycle shall terminate and be cancelled upon the expiration of such Performance Cycle. For purposes of this Award, notwithstanding a termination of the Employment Agreement at the end of the Employment Period as a result of non-renewal by either the Company or you, your continued employment or service relationship with the Company and its Subsidiaries following the termination of the Employment Agreement (1) shall constitute continuous active service with the Company for all purposes pursuant to the terms hereof and count toward satisfaction of the Continuous Service Requirements herein, and (2) the provisions in your Employment Agreement relating to termination without “Cause,” by you for “Good Reason,” and by reason of your death shall apply to the continued employment or service relationship following non-renewal of the Employment Agreement, including for purposes of applying the earning and vesting provisions contained herein | ||||
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| Date of Settlement: | Payment in respect of Earned Performance Units shall be made no later than March 15 of the calendar year following the calendar year in which the last day of the Grant Cycle occurs; provided, however, that (i) if your employment or service relationship with the Company and its Subsidiaries is terminated prior to the end of the Grant Cycle by the Company or, if applicable, Subsidiary without “Cause,” by reason of Non-Renewal, by you for “Good Reason” or by reason of your death, then payment in respect of Earned Performance Units shall be made no later than two and one-half months following the end of the calendar year in which the substantial risk of forfeiture lapses with respect to such Performance Cycle (provided further that if a Change in Control occurs following the termination of your employment or service relationship under this clause (i), then payment in respect of Earned Performance Units shall be made no later than the 60th day following the Change in Control); and (ii) if your employment or service relationship with the Company and its Subsidiaries is terminated upon or following a Change in Control and prior to the end of the Grant Cycle by the Company or, if applicable, or Subsidiary without “Cause,” by reason of Non-Renewal, by you for “Good Reason” or by reason of your death, then payment in respect of Earned Performance Units shall be made no later than the 60th day following such termination of employment or service relationship (in each case, the “Date of Settlement”). All payments with respect to Earned Performance Units shall be made in freely transferable shares of Stock (or such cash, securities or other property to which a holder of an equal number of shares of Stock would be entitled in connection with a Change in Control), and will be subject to all applicable tax withholding requirements. Upon full settlement of the Performance Share Units hereunder and pursuant to Section 3 of the Agreement, no additional payments will be made pursuant to this Award and the Award shall terminate. | ||||
By your acceptance of this document, you and the Company hereby acknowledge receipt of the Performance Share Units issued on the Date of Grant indicated above, which have been granted under the terms and conditions contained herein and in the Plan and the Agreement. Alternatively, you acknowledge your agreement to be bound to the terms of this Notice, the Agreement and the Plan in connection with your acceptance of the Performance Share Units issued hereby through procedures, including electronic procedures, provided by or on behalf of the Company.
You acknowledge and agree that (a) you are not relying upon any written or oral statement or representation of the Company, its affiliates, or any of their respective employees, directors, officers, attorneys or agents (collectively, the “Company Parties”) regarding the tax effects associated with your execution of this Notice of Grant of Performance Share Units and your receipt and holding of and the vesting of the Performance Share Units, and (b) in deciding
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to enter into this Agreement, you are relying on your own judgment and the judgment of the professionals of your choice with whom you have consulted. You hereby release, acquit and forever discharge the Company Parties from all actions, causes of actions, suits, debts, obligations, liabilities, claims, damages, losses, costs and expenses of any nature whatsoever, known or unknown, on account of, arising out of, or in any way related to the tax effects associated with your execution of the Agreement and your receipt and holding of and the vesting of the Performance Share Units.
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
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You further acknowledge receipt of a copy of the Plan and the Agreement and agree to all of the terms and conditions of the Plan and the Agreement, which are incorporated herein by reference.
OASIS PETROLEUM INC.,
a Delaware corporation
By:
Name:
Title:
Attachment: Appendix A – Total Shareholder Return Earning Objective
[Signature Page to 4-Year Absolute TSR PSU Notice of Award]
Appendix A
Total Shareholder Return Earning Objective
The TSR Earning Objective for the Performance Share Units is outlined in this Appendix A below. The “TSR Earning Objective” means the Company’s Total Shareholder Return during the applicable Performance Cycle. The Committee shall have the sole discretion for determining the level of achievement with respect to the TSR Earning Objective and the number of Earned Performance Units for each Performance Cycle and any such determinations shall be conclusive.
1. Defined Terms.
(a) “Total Shareholder Return” or “TSR” means, as to the Company, the cumulative rate of return shareholders receive through stock price changes and the assumed reinvestment of dividends paid over the applicable Performance Cycle. Dividends per share paid other than in the form of cash shall have a value equal to the amount of such dividends reported by the issuer to its shareholders for purposes of Federal income taxation. For purposes of determining the Total Shareholder Return for the Company, the change in the price of the Company’s Stock shall be based upon the Initial Value of the Stock stated below and the volume weighted average of the trading prices of the Company’s Stock over the 20 trading days immediately preceding the end of the applicable Performance Cycle (the “Closing Value”). The “Initial Value” of the Company’s Stock to be used to determine Total Shareholder Return over each Performance Cycle is $[___] per share.
2. Calculation of Total Shareholder Return; Earned Performance Units.
(a) After the end of each Performance Cycle, the Committee will:
(i)calculate the Company’s Total Shareholder Return; and
(ii)certify the level of achievement with respect to the TSR Earning Objective and determine and certify the number of Earned Performance Units for the Performance Cycle in accordance with the following schedule:
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| TSR over Performance Cycle(1) | Payout as a % of Initial Performance Units(2) | ||||
| +145% | 300.00% | ||||
| +135% | 283.33% | ||||
| +125% | 266.67% | ||||
| +115% | 250.00% | ||||
| +105% | 233.33% | ||||
| +95% | 216.67% | ||||
| +85% | 200.00% | ||||
| +75% | 183.33% | ||||
| +65% | 166.67% | ||||
| +55% | 150.00% | ||||
| +45% | 133.33% | ||||
| +35% | 116.67% | ||||
| +25% | 100.00% | ||||
| < +25% | 0 | ||||
(1)25% of the Initial Performance Units shall be earned based on the Company’s performance over each Performance Cycle.
(2)Payouts for performance between the performance levels shown above (except for results that would result in below threshold and above maximum awards) would be calculated by interpolating (rounded to four decimal places) between the performance levels above.
(b) Notwithstanding the foregoing:
(i) except as otherwise provided by the Notice of Grant to which this Appendix A is attached, no Performance Share Units will become Earned Performance Units for a Performance Cycle unless you also satisfy the applicable Continuous Service Requirement in accordance with the terms of the Agreement and the Notice of Grant; and
(ii) the Company will have all interpretation powers provided to it within the Plan in making calculations, interpretations or decisions regarding this Award.
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OASIS PETROLEUM INC.
2020 LONG TERM INCENTIVE PLAN
PERFORMANCE SHARE UNIT AGREEMENT
This Agreement is made and entered into as of the Date of Grant set forth in the Notice of Grant of Performance Share Units (“Notice of Grant”) by and between Oasis Petroleum Inc., a Delaware corporation (the “Company”), and you.
WHEREAS, the Company in order to induce you to enter into and to continue and dedicate service to the Company and to materially contribute to the success of the Company, agrees to grant you this award;
WHEREAS, the Company adopted the Oasis Petroleum Inc. 2020 Long Term Incentive Plan, as it may be amended from time to time (the “Plan”), under which the Company is authorized to grant restricted stock units designated as performance share units to certain employees, directors and other service providers of the Company;
WHEREAS, a copy of the Plan has been furnished to you and shall be deemed a part of this Performance Share Unit Agreement (“Agreement”) as if fully set forth herein and the terms capitalized but not defined herein shall have the respective meanings set forth in the Plan; and
WHEREAS, you desire to accept the award made pursuant to this Agreement.
NOW, THEREFORE, in consideration of and mutual covenants set forth herein and for other valuable consideration hereinafter set forth, the parties agree as follows:
1.The Grant. Subject to the terms and conditions set forth below and in the Notice of Grant, the Company hereby grants you, effective as of the Date of Grant set forth in the Notice of Grant, as a matter of separate inducement but not in lieu of any salary or other compensation for your services for the Company, an award consisting of an aggregate number of Performance Share Units specified in the Notice of Grant, whereby each Performance Share Unit that becomes earned, as determined by the Committee in its sole and absolute discretion, represents the right to receive one share of common stock of the Company, par value $0.01 per share (“Stock”), plus the additional rights to Dividend Equivalents set forth in Section 3, in accordance with the terms and conditions set forth herein, in the Notice of Grant and in the Plan (the “Award”). Your right to receive Stock in respect of Performance Share Units is generally contingent, in whole or in part, upon satisfaction of the vesting requirements described in the Notice of Grant; provided, however, that, based on the relative achievement of the applicable performance vesting objectives, the number of shares of Stock that may be deliverable hereunder in respect of the Performance Share Units may range from 0% to 300% of the number of Performance Share Units specified in your Notice of Grant (such specified number of Performance Share Units hereinafter called the “Initial Performance Units” and such number of Performance Share Units that equal 300% of the Initial Performance Units shall hereinafter be referred to as the “Maximum Performance Units”). Except as provided below, to the extent that any provision of this Agreement conflicts with the expressly applicable terms of the Plan, you acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable terms of this
Agreement shall be deemed amended so as to carry out the purpose and intent of the Plan. The Performance Share Units contemplated herein are Restricted Stock Units designated as such under the Plan pursuant to Sections 2(v) and 6(e) thereof.
2.No Stockholder Rights. The Performance Share Units granted pursuant to this Agreement do not and shall not entitle you to any rights of a holder of Stock unless and until shares of Stock are actually issued to you on the Date of Settlement specified in the Notice of Grant.
3.Dividend Equivalents. With respect to each outstanding Performance Share Unit (up to the number of Maximum Performance Units subject to this Award), the Company shall credit a book entry account with an amount equal to the amount of any cash dividend paid on one share of Stock. The amount credited to such book entry account shall be payable to you at the same time as, and subject to the same terms and conditions as are applicable to, the Performance Share Units to which they relate; provided, however, that only amounts credited with respect to Earned Performance Units shall be paid.
4.Restrictions. The Performance Share Units are restricted in that they may not be sold, transferred or otherwise alienated or hypothecated. The Performance Share Units are also restricted in the sense that they may be forfeited to the Company.
5.Expiration of Restrictions and Settlement of Award. The restrictions on the Performance Share Units granted pursuant to this Agreement will expire as set forth in the Notice of Grant, provided that you remain in the employ of, or a service provider to, the Company or its Subsidiaries until the applicable dates set forth in the Notice of Grant. On the applicable Date of Settlement set forth in the Notice of Grant, the Company shall cause to be issued Stock in book entry form registered in your name. To the extent application of the vesting terms set forth in the Notice of Grant would result in you becoming vested in a fractional number of Earned Performance Units, the number of Earned Performance Units vested will be rounded down to the nearest whole share. The value of the shares of Stock shall not bear any interest owing to the passage of time. Neither this Section 5 nor any action taken pursuant to or in accordance with this Section 5 shall be construed to create a trust of any kind. Upon settlement of the Earned Performance Units in Stock following the end of the Grant Cycle, all of the Performance Share Units subject to this Award shall be canceled and terminated.
6.Termination of Services. Except as otherwise provided in the Notice of Grant, if your service relationship with the Company or any of its Subsidiaries is terminated for any reason, then those Performance Share Units for which the restrictions have not lapsed as of the date of termination shall become null and void and those Performance Share Units shall be forfeited to the Company for no consideration. The Performance Share Units for which the restrictions have lapsed as of the date of such termination, including Performance Share Units for which the restrictions lapsed in connection with such termination, shall not be forfeited to the Company and shall be settled on the applicable Date of Settlement set forth in the Notice of Grant.
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7.Leave of Absence. With respect to the Award, the Company may, in its sole discretion, determine that if you are on leave of absence for any reason you will be considered to still be in the employ of, or providing services for, the Company.
8.Payment of Taxes. With respect to any required tax withholding, the Company shall withhold from the shares of Stock to be issued to you the number of shares necessary to satisfy the Company’s obligation to withhold taxes, which determination will be based on the shares’ Fair Market Value at the time such determination is made; provided, however, that the Committee, in its discretion (which discretion may not be delegated), may disallow satisfaction of the Company’s tax withholding obligations using the foregoing method, in which case the Company may require you to satisfy any current or future obligation to withhold federal, state or local income or other taxes that you incur as a result of the Award by such other method or methods specified by the Company. In the event the Company determines that the amount withheld as payment of any tax withholding obligation is insufficient to discharge that tax withholding obligation, then you must pay to the Company, in cash, the amount of that deficiency immediately upon the Company’s request.
9.Compliance with Securities Laws; Company Policies. Notwithstanding any provision of this Agreement to the contrary, any issuance of Stock hereunder will be subject to compliance with all applicable requirements of federal, state or foreign law with respect to such securities and with the requirements of any stock exchange or market system upon which the Stock may then be listed. No Stock will be issued hereunder if such issuance would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Stock may then be listed. In addition, Stock will not be issued hereunder unless (a) a registration statement under the Securities Act of 1933, as amended (the “Act”), is at the time of issuance in effect with respect to the shares issued, or (b) in the opinion of legal counsel to the Company, the shares issued may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Act. As a condition to any issuance hereunder, the Company may require you to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect to such compliance as may be requested by the Company. From time to time, the Board and appropriate officers of the Company are authorized to take the actions necessary and appropriate to file required documents with governmental authorities, stock exchanges, and other appropriate Persons to make shares of Stock available for issuance. You agree not to sell any shares of Stock acquired pursuant to this Award in violation of the Company’s securities trading policy, to the extent applicable.
10.Right of the Company and Subsidiaries to Terminate Services. Nothing in this Agreement confers upon you the right to continue in the employ of or performing services for the Company or any Subsidiary, or interfere in any way with the rights of the Company or any Subsidiary to terminate your employment or service relationship at any time.
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11.Furnish Information. You agree to furnish to the Company all information requested by the Company to enable it to comply with any reporting or other requirements imposed upon the Company by or under any applicable statute or regulation.
12.Remedies. The parties to this Agreement shall be entitled to recover from each other reasonable attorneys’ fees incurred in connection with the successful enforcement of the terms and provisions of this Agreement whether by an action to enforce specific performance or for damages for its breach or otherwise.
13.No Liability for Good Faith Determinations. The Company and the members of the Board shall not be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Performance Share Units granted hereunder.
14.Execution of Receipts and Releases. Any payment of cash or any issuance of shares of Stock or other property to you, or to your legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such Persons hereunder. The Company may require you or your legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as it shall determine.
15.No Guarantee of Interests. The Board and the Company do not guarantee the Stock of the Company from depreciation.
16.Company Records. Records of the Company or its Subsidiaries regarding your period of service, termination of service and the reason(s) therefor, leaves of absence, re-employment, and other matters shall be conclusive for all purposes hereunder, unless determined by the Company to be incorrect.
17.Notice. All notices required or permitted under this Agreement must be in writing and personally delivered or sent by mail and shall be deemed to be delivered on the date on which it is actually received by the person to whom it is properly addressed or if earlier the date it is sent via certified United States mail or reputable overnight delivery service (charges prepaid).
18.Waiver of Notice. Any person entitled to notice hereunder may waive such notice in writing.
19.Information Confidential. As partial consideration for the granting of the Award hereunder, you hereby agree to keep confidential all information and knowledge, except that which has been disclosed in any public filings required by law, that you have relating to the terms and conditions of this Agreement; provided, however, that such information may be disclosed as required by law and may be given in confidence to your spouse and tax, legal and financial advisors. In the event any breach of this promise comes to the attention of the Company, it shall take into consideration that breach in determining whether to recommend the grant of any future similar award to you, as a factor weighing against the advisability of granting any such future award to you.
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20.Successors. This Agreement shall be binding upon you, your legal representatives, heirs, legatees and distributees, and upon the Company, its successors and assigns.
21.Severability. If any provision of this Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such provision shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been included herein.
22.Company Action. Any action required of the Company shall be by resolution of the Board or by a person or entity authorized to act by resolution of the Board.
23.Headings. The titles and headings of Sections are included for convenience of reference only and are not to be considered in construction of the provisions hereof.
24.Governing Law. All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of Texas, without giving any effect to any conflict of law provisions thereof, except to the extent Texas state law is preempted by federal law.
25.Consent to Texas Jurisdiction and Venue. You hereby consent and agree that state courts located in Harris County, Texas and the United States District Court for the Southern District of Texas each shall have personal jurisdiction and proper venue with respect to any dispute between you and the Company arising in connection with the Performance Share Units or this Agreement. In any dispute with the Company, you will not raise, and you hereby expressly waive, any objection or defense to such jurisdiction as an inconvenient forum.
26.Amendment. This Agreement may be amended by the Board or by the Committee at any time (a) if the Board or the Committee determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in any federal or state, tax or securities law or other law or regulation, which change occurs after the Date of Grant and by its terms applies to the Award; or (b) other than in the circumstances described in clause (a) or provided in the Plan, with your consent.
27.Unfunded Arrangement. Neither the Notice of Grant, this Agreement nor the Plan shall give you any security or other interest in any assets of the Company; rather, your right to the Award is that of a general, unsecured creditor of the Company.
28.The Plan. This Agreement is subject to all terms, conditions, limitations and restrictions contained in the Plan.
29.Clawback. Notwithstanding anything to the contrary herein or in the Plan, the Performance Share Units may be cancelled and you may be required to reimburse the Company for any realized gains with respect to the Performance Share Units to the extent required by applicable law (including but not limited to Section 304 of the Sarbanes-Oxley Act of 2002 and
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the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010), the rules of any applicable stock exchange, or any clawback policy of the Company.
30.Compliance With Section 409A of the Code. This Award is intended to be exempt from or comply with Section 409A of the Code, and shall be interpreted and construed accordingly, and each payment hereunder shall be considered a separate payment. To the extent this Agreement provides for the Award to become vested and be settled upon your termination of employment, the applicable shares of Stock shall be transferred to you or your beneficiary upon your “separation from service,” within the meaning of Section 409A of the Code; provided, however, that if you are a “specified employee,” within the meaning of Section 409A of the Code, then to the extent the Award constitutes nonqualified deferred compensation, within the meaning of Section 409A of the Code, such shares of Stock shall be transferred to you or your beneficiary upon the earlier to occur of (i) the six-month anniversary of such separation from service and (ii) the date of your death.
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this “Agreement”), made and executed as of April 13, 2021, by and between Oasis Petroleum Inc., a Delaware corporation (the “Company”), and Daniel E. Brown, an individual resident of the State of Texas (the “Indemnitee”).
WITNESSETH:
WHEREAS, the Company is aware that, to induce and to retain highly competent persons to serve the Company as directors or officers or in other capacities, the Company must provide such persons with adequate protection through insurance and indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company recognizes the substantial increase in corporate litigation in general, subjecting directors and officers to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited;
WHEREAS, the Amended and Restated Bylaws of the Company (the “Bylaws”) contain indemnification provisions which entitle the members of the Board of Directors and officers of the Company to indemnification protection to the fullest extent permitted by applicable law; and
WHEREAS, it is reasonable, prudent and necessary for the Company to obligate itself contractually to indemnify such persons to the fullest extent permitted by applicable law and to provide an express process and procedure for seeking indemnification so that they will continue to serve the Company free from undue concern.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Indemnitee do hereby agree as follows:
1.DEFINITIONS. For purposes of this Agreement, the following terms shall have the meanings set forth below:
(a)“Disinterested Director” shall mean a director of the Company who is not or was not a party to the Proceeding in respect of which indemnification is being sought.
(b)“Expenses” shall include all reasonable attorneys’ fees, accountants’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating or being or preparing to be a witness in any Proceeding or establishing the Indemnitee’s right of entitlement to indemnification for any of the foregoing. Expenses also shall include expenses incurred
in connection with any appeal resulting from any Proceeding, including without limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(c)“Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, investigation, inquiry, alternate dispute resolution mechanism, administrative or legislative hearing, or any other proceeding (including, without limitation, any securities laws action, suit, arbitration, investigation, inquiry, alternative dispute resolution mechanism, hearing or procedure) whether civil, criminal, administrative, arbitrative or investigative and whether or not based upon events occurring, or actions taken, before the date hereof, and any appeal in or related to any such action, suit, arbitration, investigation, inquiry, alternate dispute resolution mechanism, hearing or proceeding and any inquiry or investigation (including, without limitation, discovery), whether conducted by or in the right of the Company or any other person, that the Indemnitee in good faith believes could lead to any such action, suit, arbitration, investigation, inquiry, alternative dispute resolution mechanism, hearing or other proceeding or appeal thereof.
2.SERVICE BY THE INDEMNITEE. The Indemnitee’s service or continued services, as applicable, as a director or officer of the Company will be subject to the provisions of the Company’s Amended and Restated Certificate of Incorporation (the “Certificate”), the Bylaws, and the Delaware General Corporation Law, as amended (the “DGCL”). The Indemnitee may at any time and for any reason resign from such position (subject to any other obligation, whether contractual or imposed by operation of law), in which event this Agreement shall continue in full force and effect after such resignation. Additionally, this Agreement shall remain in full force and effect after the death, retirement or removal of the Indemnitee. Notwithstanding the forgoing, this Agreement may be terminated in accordance with Section 22 hereof. Nothing in this Agreement shall confer upon the Indemnitee the right to continue in the employ of the Company or as a director of the Company, or affect the right of the Company to terminate, in the Company’s sole discretion (with or without cause) and at any time, the Indemnitee’s employment or position as a director, in each case, subject to any contractual rights of the Indemnitee existing otherwise than under this Agreement.
3.INDEMNIFICATION. The Company shall indemnify and hold harmless the Indemnitee and advance Expenses to the Indemnitee as provided in this Agreement to the fullest extent permitted by the Certificate, the Bylaws in effect as of the date hereof and the DGCL or other applicable law in effect on the date hereof and to any greater extent that the Bylaws, the DGCL, or applicable law may in the future from time to time permit. Without diminishing the scope of the indemnification provided by this Section 3, the rights of indemnification of the Indemnitee provided hereunder shall include, but shall not be limited to, those rights hereinafter set forth, except that no indemnification shall be paid hereunder to the Indemnitee:
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(a)on account of conduct of the Indemnitee which is adjudged in a final adjudication by a court of competent jurisdiction from which there is no further right of appeal or in a final adjudication of an arbitration pursuant to Section 12 hereof, if the Indemnitee elects to seek such arbitration, to have been knowingly fraudulent or to constitute conduct not in good faith, or in the case of a criminal matter, to have been knowingly unlawful;
(b)in any circumstance where such indemnification is expressly prohibited by applicable law in effect as of the date of this Agreement or subsequently determined to be expressly prohibited by applicable law;
(c)with respect to liability for which payment is actually made to the Indemnitee under an insurance policy or under an indemnity clause, Bylaws provision or other agreement (other than this Agreement), except in respect of any liability in excess of payment under such insurance, clause, Bylaws provision or other agreement; or
(d)if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful.
4.ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee shall be entitled to the indemnification rights provided in this Agreement if the Indemnitee was or is a party or is threatened to be made a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company, by reason of the fact that the Indemnitee is or was a director, proposed director, officer, employee, agent or fiduciary of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries, or is or was serving at the request of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries as a director, proposed director, officer, employee, agent or fiduciary of any other entity, including, but not limited to, another corporation, partnership, limited liability company, employee benefit plan, joint venture, trust or other enterprise, or by reason of any act or omission by him/her in such capacity. Pursuant to this Section 4, the Indemnitee shall be indemnified against all judgments, penalties (including, but not limited to, excise and similar taxes) and fines against the Indemnitee, and all Expenses, liabilities and amounts paid in settlement including, without limitation, all interest, assessments and other charges which were actually and reasonably incurred by, or in the case of retainers, to be incurred by, the Indemnitee or on the Indemnitee’s behalf in connection with such Proceeding (including, but not limited to, the investigation, defense or appeal thereof), if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his or her conduct was unlawful; provided, in no event shall Indemnitee be entitled to be indemnified, held harmless or advanced any amounts hereunder in respect of any Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (if any) that Indemnitee may incur by reason of his or her own actual fraud or intentional misconduct. Indemnitee shall not be found to have committed actual fraud or intentional misconduct for any purpose of this Agreement unless or until a finding to that effect is made in a final adjudication by a court of competent jurisdiction from which there is no further right of appeal.
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5.ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee shall be entitled to the indemnification rights provided in this Agreement if the Indemnitee was or is a party or is threatened to be made a party to any Proceeding brought by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was a director, proposed director, officer, employee, agent or fiduciary of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries, or is or was serving at the request of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries as a director, proposed director, officer, employee, agent or fiduciary of another entity, including, but not limited to, another corporation, partnership, limited liability company, employee benefit plan, joint venture, trust or other enterprise, or by reason of any act or omission by him/her in any such capacity. Pursuant to this Section 5, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by, or in the case of retainers, to be incurred by, him/her in connection with such Proceeding (including, but not limited to the investigation, defense or appeal thereof); provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Company in a final adjudication by a court of competent jurisdiction from which there is no further right of appeal or in a final adjudication of an arbitration pursuant to Section 12 hereof, if the Indemnitee elects to seek such arbitration, unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such Proceeding shall have been brought or is pending, shall determine that such indemnification may be made.
6.GOOD FAITH DEFINITION. For purposes of this Agreement, the Indemnitee shall be deemed to have acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe the Indemnitee’s conduct was unlawful, in each case, if such action was based on any of the following: (a) the records or books of the account of the Company or other enterprise, including, without limitation, financial statements; (b) information supplied to the Indemnitee by the officers of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries or any entity at which the Indemnitee is or was serving as a director, proposed director, proposed director, officer, employee, agent or fiduciary at the request of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries (each such entity, a “Subject Enterprise”) in the course of his/her duties; (c) the advice of legal counsel for the Company or any Subject Enterprise; or (d) information or records given in reports made to the Company or any Subject Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or other enterprise. The provisions of this Section 6 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
7.INDEMNIFICATION FOR EXPENSES OF WITNESS. Notwithstanding the other provisions of this Agreement, to the extent that the Indemnitee has served on behalf of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries, or is or was serving at the request of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries, as a witness or other similar participant in any Proceeding, the Indemnitee
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shall be indemnified against all Expenses actually and reasonably incurred by, or in the case of retainers, to be incurred by, the Indemnitee in connection therewith to be paid by the Company within seven days of receipt by the Company of a statement from the Indemnitee requesting such payment and detailing such Expenses.
8.PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the judgments, penalties and fines and Expenses and amounts paid in settlement actually and reasonably incurred by, or in the case of retainers to be incurred by, the Indemnitee in connection with the investigation, defense, appeal or settlement of such Proceeding described in Sections 4 and 5 hereof, but is not entitled to indemnification for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such judgments, penalties and fines and Expenses and amounts paid in settlement actually and reasonably incurred by, or in the case of retainers, to be incurred by, the Indemnitee for which the Indemnitee is entitled to be indemnified. For purposes of this Agreement, the termination of any claim, issue, or matter in such a Proceeding described herein (a) by dismissal, summary judgment, judgment on the pleading, or final judgment, with or without prejudice, or (b) by agreement without payment or assumption or admission of liability by the Indemnitee, shall be deemed to be a successful determination or result as to such claim, issue or matter.
9.PROCEDURE FOR OBTAINING INDEMNIFICATION. To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company a written request, including, without limitation, documentation and information which is reasonably available to the Indemnitee and is reasonably necessary to determine whether the Indemnitee is entitled to indemnification. If a claim for indemnification or advancement of expenses submitted in accordance with this Agreement is not paid in full within 30 days after a written claim therefor by the Indemnitee has been received by the Company, the Indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Company shall have the burden of proving that the Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable law.
10.PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a)In making a determination with respect to entitlement to indemnification, the Indemnitee shall be presumed to be entitled to full indemnification hereunder, and the Company shall have the burden of proof in the making of any determination contrary to such presumption. Neither the failure of the Board of Directors (or such other person or persons empowered to make the determination of whether the Indemnitee is entitled to indemnification) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, nor any determination thereby that the Indemnitee has not met such applicable standard of conduct, shall be a defense or admissible as evidence in any Proceeding for any purpose or create a presumption that the Indemnitee has acted in bad faith or failed to meet any other applicable standard of conduct.
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(b)If the Board of Directors (or such other person or persons empowered to make the determination of whether the Indemnitee is entitled to indemnification) shall have failed to make a determination as to entitlement to indemnification within 30 days after receipt by the Company of such request, the requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be absolutely entitled to such indemnification, absent actual and material fraud in the request for indemnification, a prohibition of indemnification under applicable law in effect as of the date of this Agreement, or a subsequent determination that such indemnification is prohibited by applicable law. The termination of any Proceeding described in Section 4 or 5 hereof by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself: (i) create a presumption that the Indemnitee acted in bad faith or in a manner which he/she reasonably believed to be opposed to the best interests of the Company, or, with respect to any criminal Proceeding, that the Indemnitee has reasonable cause to believe that the Indemnitee’s conduct was unlawful; or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification, except as may be provided herein.
11.ADVANCEMENT OF EXPENSES. Subject to applicable law, all reasonable Expenses actually incurred by, or in the case of retainers, to be incurred by, the Indemnitee in connection with any Proceeding shall be paid by the Company in advance of the final disposition of such Proceeding, if so requested by the Indemnitee, within seven days after the receipt by the Company of a statement or statements from the Indemnitee requesting such advance or advances. The Indemnitee may submit such statements from time to time. The Indemnitee’s entitlement to such Expenses shall include those incurred, or in the case of retainers, to be incurred, in connection with any Proceeding by the Indemnitee seeking an adjudication or award in arbitration pursuant to this Agreement. Such statement or statements shall reasonably evidence the Expenses incurred by, or in the case of retainers, to be incurred by, the Indemnitee in connection therewith and shall include or be accompanied by a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the Indemnitee has met the standard of conduct necessary for indemnification under this Agreement and an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined in accordance with this Agreement that the Indemnitee is not entitled to be indemnified against such Expenses by the Company pursuant to this Agreement or otherwise. The form of Written Affirmation is attached as Exhibit A hereto. Each written undertaking to pay amounts advanced must be an unlimited general obligation but need not be secured, and shall be accepted without reference to financial ability to make repayment.
12.REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY OR FAILURE TO ADVANCE EXPENSES. In the event that a determination is made that the Indemnitee is not entitled to indemnification hereunder or if the payment has not been timely made following a determination or deemed determination of entitlement to indemnification pursuant to Sections 9 and 10 hereof, or if Expenses are not advanced pursuant to Section 11 hereof, the Indemnitee shall be entitled to seek a final adjudication in an appropriate court of the State of Delaware or any other court of competent jurisdiction of the Indemnitee’s entitlement to such indemnification or advance. Alternatively, the Indemnitee may, at the Indemnitee’s option, seek an award in arbitration to be conducted
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by a single arbitrator chosen by the Indemnitee and approved by the Company, which approval shall not be unreasonably withheld, conditioned or delayed. If the Indemnitee and the Company do not agree upon an arbitrator within 30 days following notice to the Company by the Indemnitee that it seeks an award in arbitration, the arbitrator will be chosen pursuant to the rules of the American Arbitration Association (the “AAA”). The arbitration will be conducted pursuant to the rules of the AAA, and an award shall be made within 60 days following the filing of the demand for arbitration. The arbitration shall be held in Houston, Texas. The Company shall not oppose the Indemnitee’s right to seek any such adjudication or award in arbitration or any other claim. Such judicial proceeding or arbitration shall be made de novo, and the Indemnitee shall not be prejudiced by reason of a determination (if so made) that the Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been made pursuant to the terms of Section 9 or Section 10 hereof that the Indemnitee is entitled to indemnification, the Company shall be bound by such determination and shall be precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable. The Company further agrees to stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement and is precluded from making any assertions to the contrary. If the court or arbitrator shall determine that the Indemnitee is entitled to any indemnification hereunder, the Company shall pay all reasonable Expenses actually incurred by, or in the case of retainers to be incurred by, the Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate Proceedings). Without limiting the generality of the foregoing, the Company shall not seek from a court, or agree to, a “bar order” that would have the effect of prohibiting or limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.
13.NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company in writing of the commencement thereof. The omission or delay by the Indemnitee to so notify the Company will not relieve the Company from any liability that it may have to the Indemnitee under this Agreement or otherwise, except to the extent that the Company suffers material prejudice by reason of such failure or delay. Notwithstanding any other provision of this Agreement, with respect to any such Proceeding as to which the Indemnitee gives notice to the Company of the commencement thereof:
(a)The Company will be entitled to participate therein at its own expense.
(b)Except as otherwise provided in this Section 13(b), to the extent that it may wish, the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After prior written notice from the Company to the Indemnitee of its election to so assume the defense thereof, the Company shall not be liable to the Indemnitee under this Agreement for any legal or other Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ the Indemnitee’s own counsel in such Proceeding, but the fees and Expenses of
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such counsel incurred after such notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Company; (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of such Proceeding, and such determination by the Indemnitee shall be supported by an opinion of counsel, which opinion shall be reasonably acceptable to the Company; or (iii) the Company shall not in fact have employed counsel to assume the defense of the Proceeding, in each of which cases the fees and Expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have reached the conclusion provided for in clause (ii) above.
(c)The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding without its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. The Company shall not be required to obtain the consent of the Indemnitee to settle any Proceeding which the Company has undertaken to defend if the Company assumes full and sole responsibility for such settlement and such settlement grants the Indemnitee a complete and unqualified release in respect of any potential liability. The Company shall have no obligation to indemnify the Indemnitee under this Agreement with regard to any judicial award issued in a Proceeding, or any related Expenses of the Indemnitee, if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such Proceeding, except to the extent the Company was not materially prejudiced thereby.
(d)If, at the time of the receipt of a notice of a claim pursuant to this Section 13, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of the Proceeding for which indemnification is sought to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of the policies.
14.OTHER RIGHTS TO INDEMNIFICATION. The indemnification and advancement of Expenses provided by this Agreement are cumulative, and not exclusive, and are in addition to any other rights to which the Indemnitee may now or in the future be entitled under any provision of the Bylaws or Certificate of the Company, or other governing documents of any direct or indirect wholly-owned subsidiary of the Company, any vote of the stockholders of the Company or Disinterested Directors, any provision of law or otherwise. Except as required by applicable law, the Company shall not adopt any amendment to its Bylaws or Certificate the effect of which would be to deny, diminish or encumber the Indemnitee’s right to indemnification under this Agreement.
15.NO IMPUTATION. The knowledge or actions, or failure to act, of any director, proposed director, officer, agent or employee of the Company or the Company itself shall not
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be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement.
16.DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall, from time to time, make the good faith determination whether it is practicable for the Company to obtain and maintain a policy or policies of insurance with reputable insurance companies providing the officers and directors of the Company and any direct or indirect wholly-owned subsidiary of the Company with coverage for losses from wrongful acts or to ensure the Company’s performance of its indemnification obligations under this Agreement. Among other considerations, the Company will weigh the costs of obtaining such insurance coverage against the protection afforded by such coverage. Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Board of Directors determines in good faith that (a) such insurance is not necessary or is not reasonably available, (b) the premium costs for such insurance are disproportionate to the amount of coverage provided, (c) the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit or (d) the Indemnitee is covered by similar insurance maintained by a direct or indirect wholly-owned subsidiary of the Company. However, the Board of Directors’ determination whether or not to adopt and maintain such insurance shall not affect in any way the Company’s obligations to indemnify the Indemnitee under this Agreement or otherwise. In all policies of director and officer liability insurance, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s directors, if the Indemnitee is a director; or of the Company’s officers, if the Indemnitee is not a director of the Company but is an officer. The Company agrees that the provisions of this Agreement shall remain in effect regardless of whether liability or other insurance coverage is at any time obtained or retained by the Company; except that any payments made to, or on behalf of, the Indemnitee under an insurance policy shall reduce the obligations of the Company hereunder with respect to the amount of such payment in accordance with Section 3(c) hereof.
17.INTENT. This Agreement is intended to be broader than any statutory indemnification rights applicable in the State of Delaware and shall be in addition to and supplemental to any other rights the Indemnitee may have under the Certificate, the Bylaws, applicable law or otherwise. To the extent that a change in applicable law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Certificate, the Bylaws, applicable law or this Agreement, it is the intent of the parties that the Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. To the extent there is any conflict between this Agreement and the Bylaws with respect to any right or obligation of any party hereto, the terms of this Agreement shall control; provided, however, the foregoing shall not apply to a reduction of any right of the Indemnitee.
18.ATTORNEY’S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In the event that the Indemnitee is subject to or intervenes in any Proceeding in which the validity or enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement the Indemnitee, if he/she prevails in whole or in part in such action, shall be
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entitled to recover from the Company and shall be indemnified by the Company against any actual expenses for attorneys’ fees and disbursements reasonably incurred by the Indemnitee.
19.SUBROGATION. In the event of any payment under this Agreement, the Company shall not be subrogated to the rights of recovery of Indemnitee, including rights of indemnification provided to Indemnitee from any other person or entity with whom Indemnitee may be associated; provided, however, that the Company shall be subrogated to the extent of any such payment of all rights of recovery of Indemnitee under insurance policies of the Company or any of its direct or indirect wholly-owned subsidiaries.
20.EFFECTIVE DATE. The provisions of this Agreement shall cover claims or Proceedings whether now pending or hereafter commenced and shall be retroactive to cover acts or omissions or alleged acts or omissions which heretofore have taken place. The Company shall be liable under this Agreement, pursuant to Sections 4 and 5 hereof, for all acts of the Indemnitee while serving as a director and/or officer, notwithstanding the termination of the Indemnitee’s service, if such act was performed or omitted to be performed during the term of the Indemnitee’s service to the Company.
21.GROSS-UP FOR TAXES. In the event any payment of indemnity to the Indemnitee under this Agreement shall be deemed to be income for federal, state or local income, excise or other tax purposes, then the Company shall pay to the Indemnitee, in addition to any amount for indemnification provided for herein, an amount equal to the amount of taxes for which the Indemnitee shall become liable (with offset for any deductions which the Indemnitee may have that are related to the indemnification amount but without offset for any other deductions which the Indemnitee may have that are not related to the indemnification amount), promptly upon receipt from the Indemnitee of a request for reimbursement of such taxes together with a copy of the Indemnitee’s tax return, which shall be maintained in strictest confidence by the Company. Any such tax gross-up payment shall be paid to the Indemnitee within 60 days following receipt by the Company of the Indemnitee’s request and tax return, which shall be received by the Company no later than the end of the calendar year next following the calendar year in which the Indemnitee remits the related taxes; provided, however, that in the event the Indemnitee is audited by the Internal Revenue Service, the deadline for receipt by the Company of the Indemnitee’s request and tax return shall be extended to the end of three calendar years (plus the time length of any audit extensions requested by the Internal Revenue Service) next following the calendar year in which the Indemnitee remits the related taxes.
22.DURATION OF AGREEMENT. This Agreement shall continue during the period the Indemnitee is a director, officer, employee or agent of the Company or any Subject Enterprise, and shall continue thereafter with respect to any possible claims based on the fact that the Indemnitee was a director, officer, employee or agent of the Company or any Subject Enterprise. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators. The indemnification provided under this Agreement shall continue as to the Indemnitee even though he/she may have ceased to be a director or officer of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries. This Agreement shall be
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binding upon the Company and its successors and assigns, including, without limitation, any corporation or other entity which may have acquired all or substantially all of the Company’s assets or business or into which the Company may be consolidated or merged, and shall inure to the benefit of the Indemnitee and his/her spouse, successors, assigns, heirs, devisees, executors, administrators or other legal representations. The Company shall require any successor or assignee (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance reasonably satisfactory to the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession or assignment had taken place.
23.DISCLOSURE OF PAYMENTS. Except as required by any federal securities laws or other federal or state law, neither party hereto shall disclose any payments under this Agreement unless prior approval of the other party is obtained.
24.CONTRIBUTION. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to the Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying the Indemnitee, shall contribute to the amount incurred by the Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement, and/or for Expenses, in connection with any claim relating a Proceeding under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees, and agents) and the Indemnitee in connection with such event(s) and/or transaction(s). The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution that may be brought by officers, directors, or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee. If such contribution constitutes deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and other guidance thereunder (“Section 409A”), as determined by the Company, such contribution shall be paid to the Indemnitee (or the Indemnitee’s estate in the event of death) upon the earlier of (a) the Indemnitee’s “separation from service” (as defined by the Company in accordance with Section 409A); (b) the Indemnitee’s death; (c) the Indemnitee’s becoming “disabled” (as defined in Section 409A); (d) the occurrence of an “unforeseeable emergency” (as defined in Section 409A); or (e) a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company (as defined in Section 409A).
25.IRC SECTION 409A. This Agreement is intended to comply with Section 409A (as defined in Section 23 of this Agreement) and any ambiguous provisions will be construed in a manner that is compliant with the application of Section 409A. If (a) the Indemnitee is a “specified employee” (as such term is defined by the Company in accordance with Section 409A) and (b) any payment payable upon “separation from service” (as such term is defined by the Company in accordance with Section 409A) under this Agreement is subject to Section 409A and is required to be delayed under Section 409A because the Indemnitee is a specified employee, that payment shall be payable on the earlier of (i) the first business day
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that is six months after the Indemnitee’s “separation from service”; (ii) the date of the Indemnitee’s death; or (iii) the date that otherwise complies with the requirements of Section 409A. This Section 25 shall be applied by accumulating all payments that otherwise would have been paid within six months of the Indemnitee’s separation from service and paying such accumulated amounts on the earliest business day which complies with the requirements of Section 409A. For purposes of Section 409A, each payment or amount due under this Agreement shall be considered a separate payment, and the Indemnitee’s entitlement to a series of payments under this Agreement is to be treated as an entitlement to a series of separate payments.
26.SEVERABILITY. If any provision or provisions of this Agreement shall be held invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, but not limited to, all portions of any Sections of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Agreement (including, but not limited to, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
27.COUNTERPARTS. This Agreement may be executed by one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement. Only one such counterpart signed by the party against whom enforceability is sought shall be required to be produced to evidence the existence of this Agreement.
28.CAPTIONS. The captions and headings used in this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
29.ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement, along with any employment agreement addressing the subject matter hereof and the Certificate and the Bylaws, interpreted as described in Section 17 hereof, constitutes the entire agreement and understanding of the parties hereto regarding the subject matter hereof, and no supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. No supplement, modification or amendment to this Agreement shall limit or restrict any right of the Indemnitee under this Agreement in respect of any act or omission of the Indemnitee prior to the effective date of such supplement, modification or amendment unless expressly provided therein.
30.NOTICES. All notices, requests, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given if (a) delivered by hand with receipt acknowledged by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail, return receipt requested with postage
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prepaid, on the date shown on the return receipt, (c) delivered by facsimile transmission on the date shown on the facsimile machine report or (d) if transmitted by electronic mail (“e-mail”) (but only if confirmation of receipt of such e-mail is requested and received, provided that each notice party shall use reasonable best efforts to confirm receipt of any such e-mail correspondence promptly upon receipt of such request):
If to the Indemnitee to:
Daniel E. Brown
The most recent address on file with the Company.
If to the Company, to:
Oasis Petroleum Inc.
1001 Fannin Street, Suite 1500
Houston, TX 77002
Facsimile: (281) 404-9501
Attn: Board of Directors
E-mail: nlorentzatos@oasispetroleum.com
or to such other address as may be furnished to the Indemnitee by the Company or to the Company by the Indemnitee, as the case may be.
31.GOVERNING LAW. The parties hereto agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, applied without giving effect to any conflicts of law principles.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
THE COMPANY:
OASIS PETROLEUM INC.
By: /s/ Nickolas J. Lorentzatos
Name: Nickolas J. Lorentzatos
Title: Executive Vice President,
General Counsel & Corporate
Secretary
INDEMNITEE:
/s/ Daniel E. Brown Name: Daniel E. Brown
EXHIBIT A
[DATE]
The Board of Directors of Oasis Petroleum Inc.
1001 Fannin Street, Suite 1500
Houston, TX 77002
Ladies and Gentlemen:
Pursuant to Section 11 (“Advancement of Expenses”) of that certain Indemnification Agreement, dated ________________, 2020, by and among Oasis Petroleum Inc., a Delaware corporation (the “Company”), and me (the “Indemnification Agreement”), I request that the Company pay in advance the reasonable expenses incurred by me in the defense of a Proceeding (as such term is defined in the Indemnification Agreement). I also request that the Company pay in advance the reasonable Expenses incurred by me in the defense of any other Proceeding, as such terms are defined in the Indemnification Agreement, arising from substantially the same matters that are in the original Proceeding in which I am named as a defendant by reason of the fact that I am or was an officer or member of the Board of Directors of the Company or its affiliates.
In relation to the request made above, I believe, in good faith, that I have met the standard of conduct necessary for indemnification under the Indemnification Agreement, and I hereby undertake to repay to the Company, immediately and upon demand, any expenses (including, without limitation, attorneys’ fees) paid by it to me or on my behalf in advance of the final disposition of the above-described Proceedings, if it shall ultimately be determined in accordance with the Indemnification Agreement that I am not entitled to be indemnified by the Company pursuant to the Indemnification Agreement or otherwise.
Sincerely,
Printed Name: