REPX 8-K
Riley Exploration Permian, Inc. (REPX)
8-K
2024-06-03
For: 2024-05-30
View Original
Added on
April 09, 2026
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): May 30, 2024
(Exact name of registrant as specified in its charter)
|
|
|
|
|
(State or other jurisdiction of incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
(Address of Principal Executive Offices, Including Zip Code)
(Registrant’s Telephone Number, Including Area Code)
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:
|
Title of Each Class
|
Trading Symbol(s)
|
Name of each exchange on which registered
|
|||
|
|
|
|
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 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
|
Appointment of John Suter
On May 30, 2024, the Company created a new executive officer position of Chief Operating Officer (“COO”)
in order to more effectively manage the Company’s operations given its growth over the past year, and appointed Mr. John Suter as COO with a starting date on or about June 20, 2024. In his role as COO, Mr. Suter will be leading Land, Operations,
Subsurface, Reservoir, as well as Commercial Development and special projects. Mr. Suter has 38 years of oil and gas experience in various executive management roles. Since 2020, Mr. has been serving as the COO for the State of Oklahoma. Prior to
joining the State, he served as the COO and interim CEO of Sandridge Energy from 2016 to 2020. Mr. Suter has an additional 30 years of experience in his role as VP – Operations with each of American Energy and Chesapeake Energy. Mr. Suter will
report directly to Bobby D. Riley, the Company’s Chief Executive Officer and Chairman of the Board.
In connection with the appointment of Mr. Suter as the COO, the Company and Mr. Suter expect to enter in an employment agreement with an initial term of two years,
with automatic renewals thereafter. The employment agreement will set forth the material terms and conditions of his employment consistent with those of our other executive officers, including an annualized base salary of $425,000, target annual
cash bonus opportunity of 50% of base salary, target annual equity award opportunity of 100% of base salary, standard employee benefit plan participation, severance and change in control benefits. Mr. Suter will also receive a one-time signing
bonus equity award of a number of shares of restricted stock equal to $425,000 calculated using the closing price of the Company’s common stock immediately prior to Mr. Suter’s start date. Additionally, Mr. Suter’s employment agreement is expected
to include certain restrictive covenants that generally prohibit him from (i) disclosing information that is confidential to the Company and its subsidiaries and (ii) from soliciting or hiring the Company’s employees and those of its subsidiaries
or soliciting the Company’s customers.
Separation Agreement with Amber Bonney
On April 26, 2024, Riley Exploration Permian, Inc. (the “Company”) announced that Amber Bonney,
the Company’s Chief Accounting Officer, resigned effective as of June 1, 2024 (the “Resignation Date”). As of the Resignation Date, Ms. Bonney also resigned from all positions
she holds with the Company’s subsidiaries and joint ventures.
In connection with Ms. Bonney’s resignation, the Company and Ms. Bonney have entered into a Separation and Release Agreement (the “Separation Agreement”), which provides for, among other things, the following separation benefits to Ms. Bonney (i) up to twelve months of Company-funded COBRA coverage; and (ii) retention of and continued
vesting of 61,773 unvested shares of restricted stock in accordance with the vesting schedule for such awards pursuant to the Company’s Amended and Restated 2021 Long Term Incentive Plan (“LTIP”) and the related award agreements pursuant to which such restricted stock was awarded, with 16,448 shares of restricted stock being forfeited as of the Resignation Date.
The Separation Agreement also contains customary releases and waivers of claims by Ms. Bonney and ongoing cooperation provisions and restrictive covenants that
generally prohibit her from (i) disclosing information that is confidential to the Company and its subsidiaries and (ii) from soliciting or hiring the Company’s employees and those of its subsidiaries or soliciting the Company’s customers. The
foregoing is not a complete description of the parties’ rights and obligations under the Separation Agreement and is qualified by reference to the full text and terms of the agreement, which is filed as Exhibit 10.1 to this Current Report on Form
8-K and incorporated herein by reference.
Employment Agreement with Jeffrey M. Gutman
Contemporaneously with the announcement of Ms. Bonney’s resignation on April 26, 2024, the Company announced the appointment of Jeffrey M. Gutman as Chief Accounting
Officer effective as of the Resignation Date. Mr. Gutman assumed the roles and responsibilities of Chief Accounting Officer effective as of the Resignation Date. For Further information regarding Jeffrey M. Gutman, please see the Form 8-K filed
with the Securities and Exchange Commission on April 26, 2024, which information is incorporated herein by reference.
In connection with the appointment of Mr. Gutman as the Chief Accounting Officer, the Company and Mr. Gutman entered in an employment agreement with an initial term of
two years, with automatic renewals thereafter. The employment agreement will set forth the material terms and conditions of his employment consistent with those of our other executive officers, including an annualized base salary of $360,000,
target annual cash bonus opportunity of 50% of base salary, target annual equity award opportunity of 100% of base salary, standard employee benefit plan participation, severance and change in control benefits. Mr. Gutman has also received an
one-time signing bonus equity award equivalent to 12,328 shares of restricted stock issued under the Company’s LTIP, which is equivalent to $360,000 based on the closing price of the Company’s common stock on May 31, 2024. Additionally, Mr.
Gutman’s employment agreement includes certain restrictive covenants that generally prohibit him from (i) disclosing information that is confidential to the Company and its subsidiaries and (ii) from soliciting or hiring the Company’s employees and
those of its subsidiaries or soliciting the Company’s customers. The foregoing is not a complete description of the parties’ rights and obligations under the Employment Agreement and is qualified by reference to the full text and terms of the
agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits.
|
(d) Exhibits.
|
Exhibit No.
|
Description of Exhibit
|
|
|
Separation and Release Agreement, dated as of June 1, 2024, by and between the Company and Amber Bonney.
|
||
|
Employment Agreement, dated as of June 1, 2024, by and between the Company and Jeffrey M. Gutman.
|
||
|
104
|
Cover Page Interactive Data File (embedded within the Inline XBRL document).
|
SIGNATURES
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 hereunto duly authorized.
|
RILEY EXPLORATION PERMIAN, INC.
|
||
|
Date: June 3, 2024
|
By:
|
/s/ Philip Riley
|
|
Philip Riley
|
||
|
Chief Financial Officer
|
||
Exhibit 10.1
EXECUTION VERSION
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (this “Agreement”) is by and among Amber Bonney (the
“Individual”) and Riley Exploration Permian, Inc. (the “Company”).
RECITALS
WHEREAS, the Individual has been employed by the Company as its Chief Accounting Officer;
WHEREAS, the Individual previously entered into that certain Employment Agreement with Riley Exploration Permian, Inc. dated as of January 25, 2022
(the “Employment Agreement”);
WHEREAS, the Individual voluntarily resigned and submitted a resignation letter to the Company on April 25, 2024 with an effective date of June 1, 2024
(“Separation Date”); and
WHEREAS, the parties desire to enter into this Agreement to reflect their mutual undertakings, promises, and agreements concerning the resignation
of the Individual’s employment with the Company and payments and benefits to the Individual upon or by reason of such ending.
NOW THEREFORE, in exchange for the valuable consideration paid or given under this Agreement, the receipt, adequacy, and sufficiency of which is
acknowledged, the parties knowingly and voluntarily agree to the following terms:
TERMS
|
1.
|
Separation Date; Effect of Separation. Pursuant
to the Individual’s voluntary resignation of employment without Good Reason (as defined in the Employment Agreement), the Individual’s employment with the Company shall terminate effective as of the Separation Date. Effective as of
the Separation Date, the Individual shall be deemed to have voluntarily resigned, and does hereby voluntarily resign, from all other corporate, board, and other offices or positions, if any, she held with the Company, Riley
Exploration – Permian, LLC (“REP”), RPC Power LLC (“RPC”), and their affiliates and any employee benefit plans
maintained by the Company, REP, RPC, or their affiliates. For purposes of this Agreement, “affiliate” means, with respect to the Company, REP, or RPC, any person that
directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company, REP, or RPC. As of the Separation Date, the Individual shall incur a separation from service from
the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).
|
| 2. |
Termination of Employment Agreement; Continuing Obligations. In
consideration of the mutual promises and undertakings in this Agreement, the parties agree that the Employment Agreement shall be terminated as of the Separation Date. The parties further
agree that, as of the Separation Date, the Company and the other Released Parties (as defined below) shall have no further liabilities, obligations, or duties to the other Individual, and the Individual shall forfeit all rights and
benefits, under the Employment Agreement except as provided below. Notwithstanding the previous two sentences or any other provision of this Agreement, the parties further agree the following post- termination rights and obligations of
the parties under the Employment Agreement shall continue in full force and effect according to their terms notwithstanding the termination of the Individual’s employment with the Company, the termination of the Employment Agreement, or
the execution of this Agreement: Sections 11 (Confidential Information), 12(d) and 12(e) (Covenant Not to Solicit and Permitted Exceptions), 13 (Inventions), 14 (Duties of Confidentiality and Loyalty Under the Common Law), 15 (Survival
and Enforcement of Covenants; Remedies), 16 (Successors and Assigns), 17 (Waiver of Right to Jury Trial), 18 (Attorneys’ Fees and Other Costs), 19 (Entire Agreement), 21 (Amendment), 22 (Waiver), 23 (Severability), 24 (Governing Law;
Venue), 25 (Third-Party Beneficiaries), 27 (Code Section 409A), 30 (Cooperation), 31 (Survival), and 32 (Notices) (together, the “Continuing Obligations”). For the
avoidance of doubt, Sections 12(a) through 12(c) shall not survive termination of the Employment Agreement and shall not be considered Continuing Obligations under this Agreement and Sections 12(d) and 12(e) shall be Continuing
Obligations hereunder for a period of 12 months after the Effective Date of this Agreement. The Individual acknowledges and agrees that she has fully complied with such Continuing Obligations at all times before she signs this Agreement
and that she intends to, and shall, fully comply with such Continuing Obligations after she signs this Agreement.
|
| 3. |
Final Pay and Benefits. The Individual shall receive the following
payments and benefits in accordance with the existing policies of the Company, or at the sole discretion of the Company, pursuant to her employment with the Company and her participation in its employee benefit plans:
|
| a. |
Final Pay. The Individual shall be entitled to payment of her regular
base salary through the Separation Date plus payment in the amount of $19,038.80 for her accrued, unused vacation existing as of immediately before the Separation Date. This payment is subject to applicable taxes and withholdings and
shall be paid to the Individual on or before the Company’s first regularly scheduled payday following the Separation Date. Other than as provided otherwise in this Agreement, the Individual shall not receive any commissions, bonuses,
separation or severance benefits, or other forms or remuneration or compensation in connection with her employment with the Company or any other arrangement with the Company, REP, RPC, or their affiliates after the Separation Date.
|
|
b.
|
Vested 401(k) Plan Benefits. Following the Separation Date, the
Individual shall receive payment or other entitlement, in accordance with the terms of the applicable plan or as required by applicable law, of any 401(k) plan benefits to which she has a vested entitlement as of the Separation Date
under the terms of the employee benefit plan of the Company.
|
-2-
| c. |
Right to Continue Certain Insurance Benefits. The Individual shall have
the right to continue after the Separation Date her group health, dental, and vision insurance benefits, if any, for herself and her dependents, at her own expense (except as provided below)
in accordance with the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The Individual should complete an insurance continuation election form, which will be furnished to her under separate cover, and timely return it if
she wishes to apply to continue her insurance coverage under COBRA.
|
| d. |
Reimbursement of Business Expenses. The Individual shall be entitled to
receive reimbursement of reasonable business expenses properly incurred by her in accordance with Company policy before the Separation Date. Any such reimbursement must be based on substantiating documentation provided by the Individual
within 30 days after the Separation Date.
|
| 4. |
Separation Benefits. Contingent upon the Individual’s timely acceptance
and non- revocation of this Agreement, the Company shall provide her with the following separation benefits (the “Separation Benefits”):
|
| a. |
Payment of Certain COBRA Premiums. If the Individual timely elects to
continue insurance coverage under the Company’s group health plan for herself and/or her dependents under COBRA following the Separation Date, the Company shall pay on her behalf the monthly premium costs she incurs for such coverage,
provided that she notifies the Company in writing within five days after she becomes eligible for group health insurance coverage, if any, through subsequent employment. The Company shall pay the monthly amounts just described for 12
months (i.e., for 12 months between July 2024 and June 2025) or until the Individual becomes eligible for group health insurance coverage due to subsequent
employment, whichever is sooner.
|
|
c.
|
Retention and Vesting of Certain Restricted Stock Shares. Pursuant to the Company’s Amended and Restated 2021 Long Term Incentive Plan (the “LTIP”), that certain Restricted Stock Agreement (Time Vesting) between the
Individual and the Company dated October 1, 2021, that certain Restricted Stock Agreement (Time Vesting) between the Individual and the Company dated January 25, 2022, that certain Restricted Stock Agreement (Time Vesting) between the
Individual and the Company dated September 27, 2022, that certain Restricted Stock Agreement (Time Vesting) between the Individual and the Company dated October 9, 2023 and that certain Restricted Stock Agreement (Time Vesting) between
the Individual and the Company dated April 15, 2024 (such agreements, the “Award Agreements”), the Company granted the Individual certain restricted stock shares which were
subject to the vesting, forfeiture, and other terms and conditions of the LTIP and the Award Agreements (the “Restricted Shares”). The Individual shall retain all Restricted
Shares which were vested as of immediately before the Separation Date (the “Vested Shares”). Notwithstanding any provision of the LTIP or the Award Agreements to the contrary,
sixty-one thousand, seven hundred seventy-three (61,773) unvested Restricted Shares shall not be forfeited as of the Separation Date and shall continue to vest in accordance with the vesting schedules set forth in the Award Agreements
as though the Individual’s employment had not terminated on the Separation Date (the “Continuing Restricted Shares”). Sixteen thousand four hundred forty-eight (16,448)
of the remaining Restricted Shares from the Award Agreements dated October 9, 2023 and April 15, 2024 shall be automatically forfeited effective as of the Separation Date. Notwithstanding any other provision of this Agreement, the
Vested Shares and the Continuing Shares shall remain subject to the otherwise applicable forfeiture and other terms and conditions of the LTIP and the Award Agreements.
|
-3-
| 5. |
Return of Property and Information. On or before the Separation Date,
the Individual shall return to the Company or the other Released Parties (as defined below) any and all items of its or their property, including without limitation all copies of all Confidential Information (as defined in the Employment
Agreement), badge/access cards, computers, files, seismic data, applicable passwords, software, cellular telephones, iPhones, iPads, android devices, tablets, other personal digital assistants, equipment, credit cards, forms, files,
manuals, correspondence, business records, personnel data, lists of employees, salary and benefits information, training materials, computer tapes and diskettes or other portable media, computer-readable files and data stored on any hard
drive or other installed device, and data processing reports, and any and all other documents or property which she has had possession of or control over during her employment with the Company and services to the Company, REP, RPC, and
their affiliates. The Individual’s obligations under this paragraph supplement, rather than supplant, the Continuing Obligations and her obligations under the common law. By signing below, the Individual hereby consents to permitting the
Company or its designee to remove (either directly or via remote wiping) all Confidential Information and other property belonging to the Company and the other Released Parties from any electronic device owned or controlled by her. The
Individual’s obligations under this paragraph shall not apply to, and the Individual may retain copies of, (a) the Employment Agreement, the LTIP, and the Award Agreements, (b) personnel, benefit, or payroll documents concerning only her,
and (c) documents related to her ownership of the Company’s common stock or the retention of the Vested Shares and the Continuing Restricted Shares.
|
| 6. |
General Release and Covenant not to Sue.
|
| a. |
Full and Final Release by Releasing Parties. The Individual, on behalf
of herself and her spouse, other family members, heirs, successors, and assigns (collectively, the “Releasing Parties”), hereby voluntarily, completely, and unconditionally to
the maximum extent permitted by applicable law releases, acquits, waives, and forever discharges any and all claims, demands, liabilities, and causes of action of whatever kind or character, whether known, unknown, vicarious, derivative,
direct, or indirect (individually a “Claim” and collectively the “Claims”), that she or they, individually,
collectively, or otherwise, may have or assert against the Released Parties (as defined below).
|
-4-
| b. |
Claims Included. This release includes without limitation any Claim
arising out of or relating in any way to (i) the Individual’s employment or the termination of her employment with the Company, her other positions for the Company, REP, RPC, and their affiliates, or with the employment practices of any
of the Released Parties; (ii) any federal, state, or local statutory or common law or constitutional provision that applies, or is asserted to apply, directly or indirectly, to the formation,
continuation, or termination of the Individual’s employment relationship with the Company, including but not limited to the Age Discrimination in Employment Act (“ADEA”); (iii) any contract, agreement, or arrangement between,
concerning, or relating to the Individual and any of the Released Parties, and any termination of such contract agreement or arrangement, including without limitation any Claim to any payments or other compensation or benefits under the
Employment Agreement, the LTIP, or the Award Agreements not provided for in this Agreement; and (iv) any other alleged act, breach, conduct, negligence, gross negligence, or omission of any of the Released Parties.
|
| c. |
Claims Excluded. Notwithstanding any other provision of this Agreement,
this release does not (i) waive or release any Claim for breach or enforcement of this Agreement; (ii) waive or release any right or Claim that may not be waived or released by applicable law; (iii) waive or release any right or Claim
that may arise under the ADEA after the date this Agreement is signed by the Individual; (iv) prevent the Individual from pursuing any administrative Claim for unemployment compensation or workers’ compensation benefits; or (v) waive or
release any right or Claim the Individual may have for indemnification under that certain Indemnity Agreement with the Company dated August 31, 2021, under any applicable state or other law, or under the bylaws or other governing
documents of the Company, or under any insurance policy providing directors’ and officers’ coverage for any lawsuit or claim relating to the period when the Individual was a director, officer, or employee of the Company, REP, RPC, or
their affiliates (if any); provided, however, that (A) the Individual’s execution of this Agreement is not a concession or guaranty that the Individual has any such right or
Claim to indemnification, (B) this Agreement does not create any additional rights to indemnification, and (C) the Company, REP, RPC, and their affiliates retain any and all defenses it may have to such indemnification or coverage. To the
extent any Claim arising under applicable federal or state wage and hour law is not waivable, the Individual assigns any such Claim to the Company, and Individual acknowledges that the Company has no obligation to pursue such Claim unless
it desires to do so in its sole discretion.
|
| d. |
Definition of Released Parties. The “Released Parties” include (i) the Company REP, and RPC; (ii) any parent, subsidiary, or affiliate of the Company, REP, or RPC; (iii) any past or present officer, director, manager, or employee of the entities
just described in (i)-(ii), in their individual and official capacities; and (iv) any past or present predecessors, parents, subsidiaries, affiliates, owners, equity holders or shareholders, members, managers, benefit plans, operating
units, divisions, agents, representatives, officers, directors, owners, founders, partners, employees, fiduciaries, insurers, attorneys, successors, or assigns of the entities just described in (i)-(iii).
|
-5-
| e. |
Permitted Activities. Notwithstanding any other provision of this
Agreement but subject to the Individual’s waiver in subparagraph 8(a) below, nothing in this Agreement is intended to, or does, preclude the Individual from (i) contacting, filing a charge or complaint with, providing information to, or
cooperating with an investigation being conducted by, any governmental or regulatory agency or body (such as the Equal Employment Opportunity Commission, the Department of Labor, the National
Labor Relations Board, the Occupational Safety and Health Administration, the Securities Exchange Commission (“SEC”), or any other federal, state, or local governmental agency, commission, or regulatory body); (ii) assisting
another in taking any of the actions in clause (i); (iii) making statements or disclosures regarding any sexual assault or sexual harassment dispute in compliance with the Speak Out Act; (iv) responding truthfully to inquiries by
governmental or regulatory agencies or bodies; (v) giving truthful testimony or making statements under oath in response to valid legal process (such as a subpoena) in any legal or regulatory proceeding; (vi) engaging in any other
legally protected activities; or (vii) pursuant to 18 U.S.C. § 1833(b), disclosing a trade secret in confidence to a governmental official, directly or indirectly, or to an attorney, if the disclosure is made solely for the purpose of
reporting or investigating a suspected violation of law, or if the disclosure is made in a document filed under seal in a lawsuit or other proceeding, and a party cannot be held criminally or civilly liable under any federal or state
trade secret law for such a disclosure. In accordance with applicable law and notwithstanding any other provision of this Agreement, nothing in this Agreement or any of the Company’s policies or agreements applicable to the Individual
(i) impedes her right to communicate with the SEC or any other governmental agency about possible violations of federal securities or other laws or regulations or (ii) requires her to provide any prior notice to the Company or obtain
the Company’s prior approval before engaging in any such communications.
|
| f. |
Covenant not to Sue. Except as permitted above or by law that may
supersede the terms of this Agreement, to the maximum extent permitted by applicable law, the Individual covenants not to sue or to file or cause to be filed any Claim released by this Agreement in any court. The Individual represents and
warrants that she does not have any charge, complaint, other proceeding against the Company, REP, RPC, or any of the other Released Parties pending before court or any federal, state, or local regulatory or fair employment practices
agency as of the date she signs this Agreement.
|
| 7. |
Confidentiality; Non-Disparagement; and Cooperation.
|
| a. |
Confidentiality. Except as requested by the Company, REP, RPC, or the
other Released Parties, as permitted above or by law that may supersede the terms of this Agreement, or as compelled by valid legal process, the Individual shall treat as Confidential Information (as defined in the Employment Agreement)
the fact and terms of this Agreement and shall not disclose such information to any party other than her spouse, attorney, and accountant or tax advisor.
|
-6-
| b. |
Non-Disparagement and Waiver of Related Rights. Except as requested by
the Company or the other Released Parties, as permitted above or by law that may supersede the terms of this Agreement, or as compelled by valid legal process, the Individual shall not before or after the Separation Date make to any other
parties any statement, oral or written, which directly or indirectly impugns the quality or integrity of the Company’s, REP’s, RPC’s, or any of the other Released Parties’ business or
employment practices, or any other disparaging or derogatory remarks about the Company, REP, RPC, or any of the other Released Parties, their officers, directors, managers, shareholders, managerial personnel, or other employees. In
executing this Agreement, the Individual acknowledges and agrees that she has knowingly, voluntarily, and intelligently waived any (i) free speech, free association, free press, or First Amendment to the United States Constitution
(including, without limitation, any counterpart or similar provision or right under any state constitution) rights to disclose, communicate, or publish any statements prohibited by this subparagraph and (ii) right to file a motion to
dismiss or pursue any other relief under the Oklahoma Citizens Participation Act or similar state law in connection with any Claim filed against her by the Company, REP, RPC, or any of the other Company Released Parties arising from any
alleged breach of this Agreement or the Continuing Obligations.
|
| c. |
Cooperation. The Individual shall cooperate fully and completely with
the Company, REP, RPC and any of the other Released Parties, at their request, in all pending and future litigation, investigations, arbitrations, and/or other fact-finding or adjudicative proceedings, public or private, involving the
Company, REP, RPC, or any of the other Released Parties. This obligation includes but is not limited to the Individual promptly meeting with counsel for the Company, REP, RPC, or the other Released Parties at reasonable times upon their
request, providing information and documentation related to any such matters within her possession or under her control upon their request, and providing testimony in court, before an arbitrator or other convening authority, or upon
deposition that is truthful, accurate, and complete, according to information known to the Individual. If the Individual provides cooperation under this subparagraph (including without limitation if the Individual appears as a witness in
any pending or future litigation, arbitration, or other fact-finding or adjudicative proceeding at the request of the Company, REP, RPC, or any of the other Released Parties), the Company shall reimburse her, upon submission of
substantiating documentation, for necessary and reasonable out-of-pocket expenses incurred by her as a result of such cooperation (not including attorneys’ fees).
|
| 8. |
Waiver of Certain Rights.
|
| a. |
Right to Individual Monetary Relief Not Provided in this Agreement. The
Individual waives any right to individual monetary relief from the Company, REP, RPC, or the other Released Parties, whether sought directly by her or in the event any administrative agency or other public authority, individual, or group
of individuals should pursue any Claim on her behalf; and she shall not request or accept from the Company, REP, RPC, or the other Released Parties, as compensation or damages related to her employment or the termination of her employment
with any of the Released Parties, any individual monetary relief that is not provided for in this Agreement. Notwithstanding the previous sentence, this Agreement shall not bar or impede in any way the Individual’s ability to seek or
receive any monetary award or bounty from any governmental agency or regulatory or law enforcement authority in connection with protected whistleblower activity.
|
-7-
| b. |
Right to Class- or Collective-Action Initiation or Participation. The
Individual waives the right to initiate or participate in any class or collective action with respect to any Claim against the Company, REP, RPC, or the Released Parties, including without limitation any Claim arising from the formation,
continuation, or termination of her employment relationship with any of the Released Parties.
|
| 9. |
No Violations. The Individual represents and warrants that she is not
aware of any material violations or alleged material violations of the Company’s standards of business conduct or personnel policies, of the Company’s integrity or ethics policies, or any other material misconduct or alleged material
misconduct by the Company or any of the other Released Parties, in each case which was not disclosed to the Company before the date she signs this Agreement.
|
| 10. |
Remedies.
|
| a. |
Remedies. Notwithstanding any other provision in this Agreement, the
Company’s obligation to provide the Separation Benefits to the Individual is subject to the condition that she materially complies with her obligations under this Agreement and the Continuing Obligations. The Company and REP shall have
the right to suspend or cease providing any part of the Separation Benefits, and the Individual shall immediately return to the Company all Separation Benefits previously received by her, if the Individual materially breaches any such
obligations, but all other provisions of this Agreement shall remain in full force and effect.
|
| b. |
Non-Exclusive Rights and Remedies. The Company’s rights and remedies
under this paragraph shall be in addition to any other available rights and remedies should the Individual breach any applicable obligations under this Agreement.
|
| 11. |
Trading Obligations. The Individual understands and acknowledges that
she is subject to the insider trading policies and procedures (the “Insider Trading Procedures”) of the Company and, as such, may not trade in the Company’s securities in
accordance therewith until any material, nonpublic information she possesses has become public or is no longer material. For avoidance of doubt, the Individual understands and acknowledges that she shall remain subject to the general
insider trading limitations applicable under the Insider Trading Procedures of the Company, including the trading window, blackout and pre-clearance procedures, until at least the third business day after the Company’s public announcement
of financial results for the quarter ended June 30, 2024. Notwithstanding the foregoing, the Individual shall comply with all federal and state securities laws applicable to the trading of the Company’s securities with knowledge of
material non-public information regarding the Company.
|
| 12. |
Nonadmission of Liability or Wrongdoing. The Individual acknowledges
that (a) this Agreement shall not in any manner constitute an admission of liability or wrongdoing on the part of the Company or any of the other Released Parties; (b) the Company and the other Released Parties expressly deny any such
liability or wrongdoing; and, (c) except to the extent necessary to enforce this Agreement, neither this Agreement nor any part of it may be construed, used, or admitted into evidence in any judicial, administrative, or arbitral
proceedings as an admission of any kind by the Company or any of the other Released Parties.
|
-8-
| 13. |
Mutual Jury Trial Waiver. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY CLAIM AGAINST THE OTHER ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION FOR BREACH OR ENFORCEMENT OF THIS AGREEMENT.
|
| 14. |
Authority to Execute. The Individual represents and warrants that she
has the authority to execute this Agreement on behalf of all the Releasing Parties. Likewise and reciprocally, the Released Parties represent and warrant that the signatories below have the authority to execute this Agreement on behalf of
all the Released Parties.
|
| 15. |
Governing Law; Venue; Severability; Interpretation. This Agreement and
the rights and duties of the parties under it shall be governed by the laws of the State of Oklahoma, without regard to any conflict-of-laws principles. Exclusive venue for any Claim between the parties which arises out of or relates to
this Agreement is in any state or federal court of competent jurisdiction that regularly conducts proceedings in Oklahoma County, Oklahoma. Nothing in this Agreement, however, precludes either party from seeking to remove a civil action
from any state court to federal court. The provisions of this Agreement shall be severable. If any one or more provisions of this Agreement may be determined by a court of competent jurisdiction to be illegal or otherwise unenforceable,
in whole or in part, such provision shall be considered separate, distinct, and severable from the other remaining provisions of this Agreement, such a determination shall not affect the validity or enforceability of such other remaining
provisions, and in all other respects the remaining provisions of this Agreement shall be binding and enforceable and remain in full force and effect. If any provision of this Agreement is held to be unenforceable as written by a court of
competent jurisdiction but may be made to be enforceable by limitation, then such provision shall be enforceable to the maximum limit permitted by applicable law. The language of all parts of this Agreement shall in all cases be construed
as a whole, according to its fair meaning, and not strictly for or against any of the parties.
|
| 16. |
Assignment. The Individual’s obligations, rights, and benefits under
this Agreement are personal to her and shall not be assigned to any person or entity without written permission from the Company. The Company may assign this Agreement without the Individual’s further consent. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors, and permitted assigns. The Individual represents and warrants that she has not assigned any part of the Claims by this
Agreement to anyone, and that no person or entity is or may be entitled to any portion of the Separation Benefits, either by subrogation or otherwise. THE INDIVIDUAL SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE RELEASED PARTIES
FROM ANY AND ALL CLAIMS DERIVATIVE OF HER OWN THAT ARE MADE AGAINST ANY OF THE RELEASED PARTIES, INCLUDING THE AMOUNT OF ANY SUCH CLAIMS ANY OF THE RELEASED PARTIES ARE COMPELLED TO PAY.
|
-9-
| 17. |
Expiration Date. The offer of this Agreement by the Company shall expire
after a period of 21 days after the date the Individual first received this Agreement for consideration (the “Expiration Date”). Changes to this Agreement, whether material or
immaterial, shall not restart the running of the consideration period. The Individual may accept the offer at any time before the Expiration Date by signing this Agreement in the space provided below and returning it to the attention of
the Company so that the signed Agreement is received no later than the close of business on the Expiration Date.
|
| 18. |
Limited Revocation Right; Effect of Revocation. After signing this
Agreement, the Individual shall have a period of seven days to reconsider and revoke her acceptance of this Agreement if she wishes (the “Revocation Period”). If the Individual
chooses to revoke her acceptance of this Agreement, she must do so by providing written notice to the Company before the eighth day after signing this Agreement, in which case this Agreement shall not become effective or enforceable.
|
| 19. |
Effective Date. This Agreement shall become effective and enforceable
upon the expiration of seven days after the Individual signs it (the “Effective Date”), provided that she signs the Agreement on or before the Expiration Date and does not revoke
her acceptance of the Agreement during the Revocation Period.
|
| 20. |
Knowing and Voluntary Agreement. The Individual acknowledges that (a)
she has been advised by this paragraph of her right to consult with an attorney of her choice before signing this Agreement; (b) she has had a reasonable period in which to consider whether to sign this Agreement; (c) she fully
understands the meaning and effect of signing this Agreement; and (d) her signing of this Agreement is knowing and voluntary.
|
| 21. |
Independent Consideration; Common-Law Duties. Whether or not expressly
stated in this Agreement, all obligations and undertakings the Individual makes and assumes in this Agreement are in consideration of the mutual promises and undertakings in this Agreement. In addition, the Individual acknowledges and
agrees that neither the Company, REP, RPC, nor any of the other Released Parties has any legal obligation to provide the consideration offered to her under this Agreement to her outside of this Agreement.
|
| 22. |
Entire Agreement. This Agreement, the Employment Agreement, and the
Award Agreements contain and represent the entire agreements of the parties with respect to their subject matters, and supersede all prior agreements and understandings, written and oral, between the parties with respect to their subject
matters. Notwithstanding the preceding sentence, nothing in this Agreement shall be interpreted or construed as relieving the Individual of complying with the Continuing Obligations. The Individual agrees that neither the Company, REP,
RPC, nor any of the other Released Parties has made any promise or representation to her concerning this Agreement not expressed in this Agreement, and that, in signing this Agreement, she is not relying on any prior oral or written
statement or representation by the Company, REP, RPC, or any of the other Released Parties outside of this Agreement but is instead relying solely on her own judgment and her attorney.
|
-10-
| 23. |
Modification; Waiver. No provision of this Agreement shall be amended,
modified, or waived unless such amendment, modification, or waiver is agreed to in writing and signed by the Individual and a duly authorized representative of the Company.
|
| 24. |
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. The delivery of this Agreement in the form of a clearly legible facsimile or electronically scanned version
by e-mail shall have the same force and effect as delivery of the originally executed document.
|
| 25. |
Third-Party Beneficiaries. The Released Parties besides the Company are
intended to be third-party beneficiaries of this Agreement and therefore may enforce this Agreement.
|
| 26. |
Internal Revenue Code Section 409A; Right to Consult Tax Advisor. The
payments and benefits provided under this Agreement are intended to be exempt from Section 409A and this Agreement shall be interpreted and administered in a manner consistent with that intent. Notwithstanding any contrary provision in
this Agreement, the Individual shall be solely responsible for any risk that the tax treatment of all or part of any payments provided by this Agreement may be affected by Section 409A, which may impose significant adverse tax
consequences on her, including accelerated taxation, a 20% additional tax, and interest. The Individual therefore has the right, and is encouraged by this paragraph, to consult with a tax advisor of her choice before signing this
Agreement.
|
[Signature Page Follows]
-11-
IN WITNESS WHEREOF, the Parties have executed this Separation and Release Agreement as of the Effective Date.
|
THE COMPANY
|
|||
|
RILEY EXPLORATION PERMIAN, INC.
|
|||
| /s/ Philip Riley | |||
|
Philip Riley
|
|||
|
Chief Financial Officer
|
|||
| Date: June 1, 2024 | |||
|
INDIVIDUAL
|
|||
| /s/ Amber Bonney | |||
|
Amber Bonney
|
|||
| Date: June 1, 2024 | |||
-12-
Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”), signed and effective as of June 1, 2024
(the “Effective Date”), is by and between Riley Exploration Permian, Inc., a Delaware corporation (the “Company”), and Jeffrey
Gutman (“Employee”).
RECITALS
WHEREAS, the Company and its current and future subsidiaries and Affiliates (as defined below) in which the Company, directly or indirectly, has an
interest (such subsidiaries and Affiliates, the “Company Group”) are engaged in oil and natural gas exploration and production, including owning, operating, leasing, acquiring, exploring,
marketing, developing, producing, and otherwise disposing of oil and gas interests involving oil, natural gas, and natural gas liquid reserves in the Permian Basin (the “Business”); and
WHEREAS, the Company desires to employ Employee to provide services to the Business, and Employee desires to be employed by the Company, in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the following terms:
TERMS
1. Employment and Position. During the Term (as defined below), the Company shall employ Employee as its Chief Accounting Officer and Employee shall serve in such capacity, subject to the terms and conditions of this
Agreement. Employee shall during the Term continue to report directly to the Company’s Chief Financial Officer (the “CFO”).
2. Duties.
(a) Duties for the Company and the Company Group. During the Term (as defined below), Employee shall have such duties, responsibilities, and authorities as may be lawfully assigned by the CFO
in his reasonable discretion, including without limitation duties, responsibilities, and authorities with respect to the Company Group and their Affiliates.
(b) Working Time and Best-Effort Requirements and Permitted Outside Activities. During the Term (as defined below), Employee shall
devote his full working time as well as his best efforts, abilities, knowledge, and experience to the Business and affairs of the Company and the Company Group as necessary to faithfully perform his duties, responsibilities, and authorities
under this Agreement. As long as such service and investments do not prevent Employee from fulfilling his duties, responsibilities, and authorities under this Agreement or directly or indirectly compete with the Company or the Company Group, in
each case as determined by the Company’s Board of Directors (the “Board”) in its sole discretion, Employee may, without violating this Agreement, (i) serve as an officer or director of any civic or charitable organization, (ii) passively own securities in publicly traded companies if the aggregate amount owned by him and all family members and Affiliates does not exceed 2% of
any such company’s outstanding securities, and (iii) passively invest his personal assets in such form or manner as will not require any services by Employee in the operation of the entities in which such investments are made.
(c) Compliance with Company Policies. During the Term (as defined below), Employee shall comply with all applicable Company rules and policies as a condition of employment.
(d) Duty of Loyalty. During the Term (as defined below), Employee shall owe a fiduciary duty of loyalty, fidelity, and allegiance to act in the best interests of the Company and each member of
the Company Group, and to not act in a manner that would materially injure their business, interests, or reputations. In keeping with these duties, Employee shall make full disclosure to the Board of all opportunities pertaining to the Business
of the Company and the Company Group that come to his attention during the Term and shall not appropriate for his own benefit any such Business opportunities concerning the subject matter of the fiduciary relationship.
3. Primary Work Location Although Employee shall be expected to travel from time to time as necessary to perform his duties, responsibilities, and authorities under this Agreement, his primary work location during the Term
(as defined below) shall be at the Company’s headquarters in Oklahoma City, Oklahoma.
4. Term of Agreement and Employment.
(a) Initial Term. This Agreement shall be in full force and effect for an “Initial Term” of two (2) years commencing on the
Effective Date and expiring on the second anniversary of the Effective Date (the “Expiration Date”), unless terminated before the Expiration Date in accordance with Section 6.
(b) Renewal Term. Notwithstanding Section 4(a), the effectiveness of this Agreement shall automatically be extended for an additional one-year term on the Expiration Date (each, a “Renewal Term”) and on each successive anniversary of the Expiration Date (each, a “Renewal Date”), unless and until (i) either
party gives written notice of non-renewal at least 90 days before the Expiration Date or any Renewal Date; or (ii) the Agreement is terminated earlier in accordance with Section 6. The Company’s non-renewal of this Agreement pursuant to this
Section 4(b) shall be deemed a “termination without Cause” for purposes of this Agreement.
(c) Term. For all purposes in this Agreement, the Initial Term and any Renewal Terms are referred to collectively as the “Term” of
this Agreement.
5. Compensation and Employment Benefits. In consideration of the performance of Employee’s duties, responsibilities, and authorities under this Agreement, the Company shall provide Employee with the following compensation
and employment benefits during the Term:
(a) Base Salary. The Company shall provide Employee with an annualized base salary of no less than $360,000.00 (the “Base Salary”), prorated for any partial period of employment and payable in accordance with the Company’s ordinary payroll policies and procedures for employee compensation. The Board may review the Base Salary in
good faith during the Term and may delegate its authority under this Agreement to the Compensation Committee of the Company (the “Compensation Committee”), provided that, except as provided in Section 15(c) below, such delegation shall not constitute authority to modify or amend the terms of this Agreement
without the consent of the Employee, as provided by Section 21 below.
(b) Discretionary Bonuses and Other Discretionary Incentive Compensation.
(i) Annual Bonus. Beginning with fiscal year 2024, Employee shall be eligible to receive annual discretionary bonuses in cash (each, an “Annual Bonus”) during each fiscal year of his employment with the Company prorated for any partial period of employment in accordance with this Section to the same extent similarly situated
executives of the Company; provided, however, that, notwithstanding any other provision of this Agreement, the Annual Bonus for fiscal year 2024 shall not
be prorated. The amount of any Annual Bonus shall be determined by the Board in its sole discretion based on its assessment of Employee’s performance against applicable performance objectives as well as Company performance. Factors such as
whether Annual Bonuses are paid, eligibility for Annual Bonuses, when such Annual Bonuses are paid, and the amount of Annual Bonuses are at the sole discretion of the Board. Although the amount of any Annual Bonuses is determined by the Board
in its sole discretion, the annual target for Annual Bonuses shall be 50% of Employee’s then-current Base Salary for full achievement of performance goals and objectives as determined by the Board in its sole discretion. Except as provided
below in this Agreement, Employee shall not be eligible to receive an Annual Bonus unless she remains employed by the Company through the date on which such Annual Bonus is paid.
(ii) Annual Equity Award. Employee shall be eligible to receive an annual performance-based equity award under the Company’s then-existing incentive equity plan based on a 3-year graded vesting
schedule with an expected target grant date fair value equal to 100% of Employee’s Base Salary (the “Annual Equity Award”). Employee’s entitlement to the Annual Equity Award remains
subject to approval by the Board and shall be granted pursuant to, and subject to, the Company’s 2021 Long Term Incentive Plan (as it may be amended from time to time, the “LTIP”) and
a Restricted Stock Agreement or Stock Option Award Agreement, as applicable (each, an “Award Agreement”), in the form established by the Board in its sole discretion, provided that the terms and conditions of any such Award Agreement shall be consistent with the terms and conditions of this Section 5(b)(ii), including without
limitation, the vesting schedule thereof.
(iii) Initial Equity Award. As soon as reasonably practicable following the Effective Date, the Company shall
grant to Employee an initial time-based restricted stock award ( “Initial RSA”) in an amount determined by dividing $360,000 by the closing price of the Company’s Common Stock on the last trading day prior to the Effective Date. The
Initial RSA shall be granted under and shall be subject to the terms and provisions of the Company’s LTIP as duly approved and adopted by the Board from time to time and shall be granted subject to the execution and delivery of an Award
Agreement in substantially the same form as may, from time to time, be approved by the Board, setting forth such terms and conditions as may be required by the Board or by the LTIP.
(iv) Other Benefits. Employee shall also be eligible to participate in all of the Company’s discretionary short-term and long-term incentive compensation plans, programs, and arrangements, if
any, generally made available to other similarly situated senior executive officers of the Company.
(v) Payment. All Annual Bonuses earned and payable to Employee by the Company shall be paid to Employee in a lump sum as soon as practicable following the end of the Company’s fiscal year but
in no event later than 5 months following the end of the taxable year during which the applicable Annual Bonus was earned. All Annual Equity Awards earned by Employee shall be granted to Employee as soon as practicable following the end of the
Company’s fiscal year but in no event later than 5 months following the end of the taxable year during which the applicable Annual Equity Award was earned. Notwithstanding any other provision of this Agreement, and for the avoidance of doubt,
Employee shall be eligible to receive the Annual Bonus for any completed fiscal year and for the fiscal year in which such Employee’s employment is terminated if such termination is: (i) by the Company without Cause, or (ii) by Employee for
Good Reason; provided, however, that such Annual Bonus shall be paid on the date that Annual Bonuses are paid to other senior executive officers of the Company but
in no event later than 5 months after the end of the taxable year in which any substantial risk of forfeiture with respect to such Annual Bonuses lapses and the Annual Bonus amount shall be determined by the Board in its sole discretion based
on its assessment of the Annual Bonus amount that Employee would have received based on achievement of performance goals for the applicable fiscal year.
(c) Welfare, Pension and Incentive Benefit. During the Term, Employee (and Employee’s spouse and/or eligible dependents to the extent provided in the applicable plans and programs) will be
eligible to participate in and be covered under all the welfare benefit plans or programs maintained by the Company for the benefit of its senior executive officers, including, without limitation, all medical, life, hospitalization, dental,
disability, accidental death and dismemberment, and travel accident insurance plans and programs. In addition, during the Term, Employee will be eligible to participate in all 401(k), retirement, savings and other employee benefit plans and
programs maintained from time to time by the Company for the benefit of its senior executive officers. Such benefits shall be governed by the applicable plan documents, insurance policies, or employment policies, and may be modified, suspended,
or revoked in accordance with the terms of the applicable documents or policies without violating this Agreement.
(h) Vacation. Employee shall be entitled to 4 weeks per year of paid vacation in accordance with the Company’s vacation policy during the Term. Employee may use his vacation in a reasonable
manner based upon the business needs of the Company. Unless otherwise specifically permitted under the Company’s vacation policy applicable to similarly situated employees, any accrued and unused vacation shall not be carried over from year to
year. Unless required by such vacation policy or applicable law, any amounts accrued and owing for the applicable year shall not be paid to Employee upon the termination of his employment with the Company, regardless of the reason for such
termination.
(i) Fringe Benefits. During the Term, the Company will provide Employee with such other fringe benefits as commensurate with Employee’s position as determined by the Board in its sole
discretion.
(j) Reimbursement of Business Expenses. Employee shall be authorized to incur ordinary, necessary, and reasonable business and travel expenses while performing his duties, responsibilities,
and authorities under this Agreement and promoting the Company’s Business and activities during the Term. The Company shall reimburse Employee for all such expenses incurred in accordance with the Company’s policies and practices concerning
reimbursement of business expenses that are submitted to the Company for reimbursement no later than 60 days after the applicable expense was incurred. Any such reimbursement shall be made as soon as reasonably practicable but in no event later
than 2½ months following the end of the taxable year in which the applicable expense was incurred.
(k) Payroll Deductions. With respect to any compensation or benefits required to be paid under this Agreement, the Company shall withhold any amounts authorized by Employee and all amounts
required to be withheld by applicable federal, state, or local law.
6. Termination of Agreement. This Agreement may be terminated as follows and any termination of this Agreement shall also constitute a termination of Employee’s employment with the Company:
(a) Death; Inability to Perform. This Agreement shall terminate immediately if the Employee dies and may be terminated upon notice to the Employee by the Company of his Inability to Perform
(as defined below). If Employee’s employment hereunder shall terminate on account of his death or Inability to Perform (as defined below), then all compensation and all benefits to Employee hereunder shall terminate contemporaneously with such
termination of employment, except that Employee (or Employee’s legal representative, estate, and/or beneficiaries, as the case may be) shall be entitled to receive the Accrued Obligations (as defined below). “Inability to Perform” shall be deemed to occur when: (i) Employee receives disability benefits under the Company’s applicable long-term-disability plan; or (ii) the Board, upon the written report of a qualified
physician designated by the Company or its insurer, has determined in its sole discretion (after a complete physical examination of Employee at any time after she has been absent for a period of at
least 90 consecutive calendar days or 120 calendar days in any 12-month period) that Employee has become physically or mentally incapable of performing his essential job functions with or without reasonable accommodation as required by law.
(b) By the Company for Cause. The Company may terminate this Agreement for any Cause. For purposes of this Agreement, “Cause” shall mean any act or omission of Employee that constitutes any: (i) material breach of this Agreement, (ii) Employee’s failure or refusal to perform Employee’s duties, including, but not limited to,
the failure or refusal to follow any lawful directive of the CFO or the Board within the reasonable scope of Employee’s duties, (iii) material violation of any written employment policy or rule of the Company or the Company Group, which
results, or is likely to result in, any material reputational, financial, or other harm to the Company or the Company Group,(iv) misappropriation of any funds, property, or business opportunity of the Company or the Company Group,
(v) illegal use or distribution of drugs or any abuse of alcohol in any manner that adversely affects Employee’s performance, (vi) fraud upon the Company or the Company Group or bad faith, dishonest, or disloyal acts or omissions toward the Company
or the Company Group, (vii) commission, indictment, or conviction of any felony or any misdemeanor involving moral turpitude, or (viii) other acts or omissions contrary to the best interests of the Company or the Company Group which has caused, or
is likely to cause, material harm to them. If the Board determines in its sole discretion that a cure is possible and appropriate, the Company shall give Employee written notice of the acts or omissions constituting Cause and no termination of this
Agreement shall be for Cause unless and until Employee fails to cure such acts or omissions within 30 days following receipt of such written notice. If the Board determines in its sole discretion that a cure is not possible and appropriate,
Employee shall have no notice or cure rights before this Agreement is terminated for Cause.
(c) By the Company Without Cause. The Company may terminate this Agreement for no reason or any reason other than death, Inability to Perform, or for Cause by providing advance written notice
to Employee that the Company is terminating the Agreement without Cause. For purposes of this Agreement, a “termination without Cause” by the Company shall include the Company’s non-renewal of this Agreement in accordance with Section 4(b).
(d) By Employee with Good Reason. Employee shall be permitted to terminate this Agreement for any Good Reason. For purposes of this Agreement, “Good Reason” shall exist in the event any of the following actions are taken without Employee’s consent: (i) a material
diminution in Employee’s Base Salary, duties, responsibilities, or authorities; (ii) a requirement that Employee report to an officer or employee other than the CFO or the Company’s Chief Executive Officer; (iii) a material relocation of
Employee’s primary work location more than 50 miles away from the Company’s corporate headquarters; (iv) any other action or inaction by the Company that constitutes a material breach of its obligations under this Agreement. To exercise his
right to terminate for Good Reason, Employee must provide written notice to the Company of his belief that Good Reason exists within 90 days of the initial existence of the condition(s) giving rise to Good Reason, and that notice shall describe
the condition(s) believed to constitute Good Reason. The Company shall have 30 days to remedy the Good Reason condition(s). If not remedied within that 30-day period, Employee may terminate this Agreement; provided, however, that such
termination must occur no later than 180 days after the date of the initial existence of the condition(s) giving rise to the Good Reason; otherwise, Employee shall be
deemed to have accepted the condition(s), or the Company’s correction of such condition(s), that may have given rise to the existence of Good Reason.
(e) By Employee Without Good Reason. Employee may terminate this Agreement for no reason or any reason other than for Good Reason by providing at
least 30 days’ written notice to the Company that Employee is terminating the Agreement without Good Reason.
(f) Expiration of Term; Non-Renewal. Either party may terminate this Agreement by providing a proper notice of non-renewal to the other party in accordance with Section 4(b). For purposes of
this Agreement, including without limitation Section 4(b) and Section 6(c) hereto, a “termination without Cause” shall include the Company’s non-renewal of this Agreement.
(g) Termination Date. For purposes of this Agreement, the “Termination Date” shall mean (i) if this Agreement is terminated because of Employee’s death, the date of death, (ii) if this Agreement is terminated because of Employee’s Inability to Perform, the
date the Company notifies Employee of the termination, (iii) if this Agreement is terminated by the Company for Cause, by the Company without Cause, by Employee for Good Reason, or by Employee without Good Reason, the applicable effective date
of such termination set forth in the required notice of such termination, and (iv) if this Agreement is terminated by either party giving a proper notice of non-renewal as permitted in Section 4(b) above, the last day of the Term.
7. Payments and Benefits Due Upon Termination of Agreement.
(a) Accrued Obligations. Upon any termination of this Agreement, the Company shall have no further obligation to Employee under this Agreement,
except for (i) payment to Employee of all earned but unpaid Base Salary through the Termination Date, prorated as provided above, and all earned but unpaid Annual Bonus due as of the Termination Date, (ii) provision to Employee,
in accordance with the terms of the applicable benefit plan of the Company or to the extent required by law, of any benefits to which Employee has a vested entitlement as of the Termination Date, (iii) payment to Employee of any accrued unused
vacation owed to Employee as of the Termination Date if such payment is required under the Company’s vacation policy or applicable law, (iv) payment to Employee of any un-reimbursed business expenses incurred through the Termination Date in
accordance with applicable Company policy and this Agreement, and (v) if applicable, the Separation Benefits (as defined below). The payments and benefits just described in (i)-(iv) shall constitute the “Accrued Obligations” and shall be paid when due under this Agreement, the Company’s plans and policies, and/or applicable law.
(b) Separation Benefits. If this Agreement is terminated either by the Company without Cause in accordance with Section 6(c) (including the Company’s non- renewal of this Agreement) or by Employee resigning his employment for Good Reason in accordance with Section 6(d),
the Company shall have no further obligation to Employee under this Agreement, except the Company shall provide the Accrued Obligations to Employee in accordance with Section 7(a) plus the following payments and benefits (collectively, the “Separation
Benefits”) to Employee: (i) an amount equal to one (1) times the sum of the Base Salary in effect immediately before the Termination Date plus the Annual Bonus received by Employee for the fiscal year preceding the Termination Date
(until the Annual Bonus for fiscal year 2024 is determined, the Annual Bonus for purposes of this Section 7 shall be the target Annual Bonus for fiscal 2024 as provided above, and thereafter shall be the Annual Bonus determined for fiscal
year 2024 or the Annual Bonus received by Employee for any future fiscal year) (together, the “Separation Pay”); and (ii) during the six-month period commencing on the Termination Date that Employee is eligible to elect and elects to
continue coverage for himself and his eligible dependents under the Company’s group health insurance plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or similar state law, the Company
shall reimburse Employee on a monthly basis for the difference between the amount Employee pays to effect and continue such coverage under COBRA and the employee contribution amount that active employees of the Company pay for the same or
similar coverage; provided, however, that Employee shall notify the Company in writing within five days after she becomes eligible after the Termination Date for group health insurance coverage, if any, through subsequent employment or
otherwise and the Company shall have no further reimbursement obligation after Employee becomes eligible for group health insurance coverage due to subsequent employment or otherwise. The Separation Pay shall be paid to Employee in a lump sum
within 60 days of the Termination Date; provided, however, that no Separation Pay shall be paid to Employee unless the Company receives, on or within 55 days after the Termination Date, an executed and
fully effective copy of the Release (as defined below). Any reimbursements due under this Section shall be made by the last day of the month following the month in which the applicable premiums were paid by Employee.
For the avoidance of doubt, Employee shall not be entitled to the Separation Benefits if this Agreement is terminated (i) due to
Employee’s death; (ii) by the Company due to Employee’s Inability to Perform; (iii) by the Company for Cause; (iv) by Employee without Good Reason; or (v) by non-renewal by Employee in accordance with Sections 4(b) and 6(f).
(c) Impact of Termination of Employment on Annual Equity Awards. Notwithstanding any other provision of this Agreement, the treatment of Employee’s Annual Equity Awards, and any other awards
received by Employee during the Term pursuant to the LTIP, shall be exclusively governed by the terms and conditions of the LTIP and the applicable Award Agreement or Award Agreements as a result of and following the termination of Employee’s
employment with the Company, regardless of the reason for such termination.
8. Payments and Benefits Due Upon Certain Change-in-Control Events. The parties acknowledge that Employee has entered into this Agreement based on his confidence in the
current stockholders of the Company and the support of the Board. Accordingly, if the Company should undergo a Change in Control the parties agree as follows:
(a) Definitions. For purposes of this Agreement, the following terms shall have the following definitions:
(i) Affiliate: except as otherwise provided in this Agreement, for purposes of this Agreement, Affiliate means, with respect to the Company, any person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control with, the Company; provided, however, that a natural person shall not be
considered an Affiliate.
(ii) Change in Control: a Change in Control has the same meaning as assigned by the LTIP. Notwithstanding the foregoing, a Change in Control shall not include the IPO or a public offering of
the Company’s common stock or a transaction with its sole purpose to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s
securities immediately before such transaction.
(iii) CIC Effective Date: means the date upon which a Change in Control occurs.
(iv) Code: means Internal Revenue Code of 1986, as amended from time to time.
(b) Change-in-Control Benefits. If Employee is employed by the Company on the CIC Effective Date and this Agreement is terminated on or before the
six-month anniversary of the CIC Effective Date by the Company without Cause in accordance with Section 6(c) or by Employee for Good Reason in accordance with Section 6(d), then the Company shall have no further obligation to Employee under
this Agreement or otherwise, except the Company shall provide Employee with the Accrued Obligations in accordance with Section 7(a) plus the following payments and benefits (collectively, the “Change-in-Control
Benefits”) in lieu of any Separation Benefits that may otherwise be due under Section 7(b): (i) an amount equal to 200% of the Base Salary in effect immediately before the Termination Date plus 200% of the Annual Bonus received
by Employee for the fiscal year preceding the Termination Date (until the Annual Bonus for fiscal year 2024 is determined, the Annual Bonus for purposes of this Section 8 shall be the target Annual Bonus for fiscal 2024 as provided above, and
thereafter shall be the Annual Bonus determined for fiscal year 2024 or the Annual Bonus received by Employee for any future fiscal year) (together, the “CIC Pay”); and (ii) during the
6- month period commencing on the Termination Date that Employee is eligible to elect and elects to continue coverage for himself and his eligible dependents under the Company’s group health insurance plan pursuant to COBRA or similar state
law, the Company shall reimburse Employee on a monthly basis for the difference between the amount Employee pays to effect and continue such coverage under COBRA and the employee contribution amount that active employees of the Company pay for
the same or similar coverage; provided, however, that Employee shall notify the Company in writing within five days after she becomes eligible after
the Termination Date for group health insurance coverage, if any, through subsequent employment or otherwise and the Company shall have no further reimbursement obligation after the Employee becomes eligible for group health insurance coverage due
to subsequent employment or otherwise. The CIC Pay shall be paid to the Employee in a lump sum within 60 days of the Termination Date; provided, however, that no CIC
Pay shall be paid to the Employee unless the Company receives, on or within 55 days after the Termination Date, an executed and fully effective copy of the Release (as defined below). Any reimbursements due under this Section shall be made by the
last day of the month following the month in which the applicable premiums were paid by the Employee.
For the avoidance of doubt, Employee shall not be entitled to the Change-in- Control Benefits if this Agreement is terminated (i)
due to Employee’s death; (ii) by the Company due to Employee’s Inability to Perform; (iii) by the Company for Cause; (iv) by Employee without Good Reason; or (v) by non-renewal by Employee in accordance with Sections 4(b) and 6(f).
9. Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the
payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment”
(as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00
less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such 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 result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The
determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that
any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the
Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has
been made.
10. Conditions
on Receipt of Separation Benefits and Change-in-Control Benefits.
(a) Execution and Non-Revocation of General Release Agreement. Notwithstanding any other provision in this Agreement, the Company’s payment to
Employee of the Separation Benefits or the Change-in-Control Benefits, as applicable, is subject to the conditions that (i) the Employee fully complies with all applicable restrictive covenants under Sections 11-13 of this Agreement; and (ii)
within 55 days after the Termination Date, the Employee executes, delivers to the Company, and does not revoke as permitted by applicable law a General Release Agreement in a form attached hereto as Exhibit A (the “Release”) that, among other things, fully and finally releases and waives any and all claims, demands, actions, and suits whatsoever
which she has or may have against the Company, the Company Group, and their Affiliates, whether under this Agreement or otherwise, that arose before the Release was executed. For purposes of this Agreement, the Release shall not become fully
enforceable and irrevocable until Employee has timely executed the Release and not revoked his acceptance of the Release within seven days after its execution.
(b) Separation from Service Requirement. Notwithstanding any other provision of this Agreement, Employee shall be entitled to the Separation Benefits or the Change-in-Control Benefits, as
applicable, only if the termination of this Agreement constitutes Employee’s “Separation from Service” within the meaning of Code Section 409A and Treasury Regulation Section
1.409A-1(h).
11. Confidential Information.
(a) Scope and Definition of Confidential Information. Employee acknowledges that the Company and the Company Group have developed substantial
goodwill with their employees, customers, and others with which they do business and competitively valuable information in connection with the Business. Employee further acknowledges and agrees that the following items shall be entitled to
trade secret protection and constitute “Confidential Information” under this Agreement regardless of when such Confidential Information was disclosed to Employee: any information used
in the Business that gives the Company, the Company Group, or their Affiliates an advantage over competitors and is not generally known by competitors or readily ascertainable by independent investigation, and includes without limitation all
trade secrets (as defined by applicable law); technical information, including all ideas, prospects, proposals, and other opportunities pertaining to exploring, producing, gathering, transporting, marketing, treating, or processing of
hydrocarbons and related products and services, inventions, computer programs, computer processes, computer codes, software, website structure and content, databases, formulae, designs, compilations of information, data, proprietary processes,
and know-how related to operations; financial information, including margins, earnings, accounts payable, and accounts receivable; business information, including business plans, expansion plans, business proposals, pending projects, pending
proposals, sales data, and contracts; advertising information, including costs and strategies; customer information, including customer contacts, customer lists, customer identities, customer preferences and needs, customer purchasing or
service terms, and specially negotiated terms with customers; supplier information, including supplier lists, supplier identities, contact information, capabilities, services, prices, costs, and specially negotiated terms with suppliers;
information about future plans, including marketing strategies, target markets, promotions, sales plans, projects and proposals, research and development, and new materials research; inventory information, including quality-control procedures,
inventory ordering practices, inventory lists, and inventory storage and shipping methods; information regarding personnel and employment policies and practices, including employee lists, contact information, performance information,
compensation data and incentive information (including any bonus or commission plan terms), benefits, and training programs; and information regarding independent contractors and subcontractors, including independent contractor
and subcontractor lists, contact information, compensation, and agreements. Confidential Information shall also include all information contained in any manual or electronic document or file created by the Company, the Company Group, or their
Affiliates and provided or made available to Employee. Confidential Information shall not include any information in the public domain, through no disclosure or wrongful act of Employee, to such an extent as to be readily available to competitors.
(b) Agreement to Provide Confidential Information to Employee. In exchange for Employee’s promises in this Agreement, the Company agrees during the Term to provide Employee with access to
previously undisclosed Confidential Information related to his duties, responsibilities, and authorities under this Agreement.
(c) Agreement to Return Company Property and Confidential Information. At any time during employment upon demand by the Company, and immediately upon termination of this Agreement, regardless
of the reason for such termination, Employee shall return to the Company all property of the Company or the Company Group in his possession or under his control, including without limitation all Confidential Information.
(d) Agreement not to Use or Disclose Confidential Information in Unauthorized Manner. Employee acknowledges and agrees that (i) due
to their Business, the Company and the Company Group will continue to develop new and additional Confidential Information after the Effective Date that has not been previously disclosed to him; (ii) all Confidential Information is considered
confidential and proprietary to the Company and the Company Group; and (iii) she has no right, other than under this Agreement, to receive any Confidential Information. Employee shall at all times hold in strictest confidence, and shall not
disclose or use, any Confidential Information (regardless of whether received before or after the Effective Date) except for the exclusive benefit of the Company and the Company Group in the ordinary course of performing his duties,
responsibilities, and authorities under this Agreement, and otherwise only with the prior written consent of the Board. Employee shall promptly advise the Board in writing of any unauthorized release or use of any Confidential Information, and
shall take reasonable measures to prevent unauthorized persons or entities from having access to, obtaining, being furnished with, disclosing, or using any Confidential Information.
(e) Protected Activities. Nothing in this Agreement is intended to, or does, prohibit Employee from (i) filing a charge or complaint with, providing
truthful information to, or cooperating with an investigation being conducted by a governmental agency (such as the Equal Employment Opportunity Commission, another other fair employment practices agency, the National Labor Relations Board, the
Department of Labor, or the Securities Exchange Commission (the “SEC”)); (ii) engaging in other legally-protected concerted activities (such as discussing information about the terms,
conditions, wages, and benefits of employment with other employees or third parties for the purpose of collective bargaining or other mutual aid or protection of employees); (iii) giving truthful testimony or making statements under oath in
response to a subpoena or other valid legal process or in any legal proceeding; (iv) otherwise making truthful statements as required by law or valid legal process; or (v) disclosing a trade secret in confidence to a governmental
official, directly or indirectly, or to an attorney, if the disclosure is made solely for the purpose of reporting or investigating a suspected violation of law. Accordingly, Employee understands that she shall not be held criminally or civilly
liable under any federal or state trade secret law for the disclosure of a trade secret that (i) 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 (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Employee likewise understands that, in the event she
files a lawsuit for retaliation by the Company for reporting a suspected violation of law, she may disclose the trade secret(s) of the Company or the Company Group to his attorney and use the trade secret information in the court proceeding, if she
(i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order. In accordance with applicable law, and notwithstanding any other provision of this Agreement, nothing in
this Agreement or any of any policies or agreements of the Company or the Company Group applicable to Employee (i) impedes his right to communicate with the SEC or any other governmental agency about possible violations of federal securities or
other laws or regulations or (ii) requires him to provide any prior notice to the Company or the Company Group or obtain their prior approval before engaging in any such communications.
12. Non-Solicitation Restrictive Covenants.
(a) Covenant not to Solicit. Beginning on the Effective Date and continuing for 12 months after the termination of Employee’s employment with the Company, regardless of the reason for such
termination (the “Restricted Period”), Employee shall not directly or indirectly, on behalf of himself or any third party (including without limitation through any family member or
Affiliate), (i) solicit the sale of goods, services, or a combination of goods and services from the established customers of the Company Group on behalf of himself or any other entity that competes against the Company Group in the Business in
the United States or (ii) solicit, hire, or otherwise engage as an employee, independent contractor, or otherwise, any person who is an employee or non- employee service provider of the Company or the Company Group or was an employee or
non-employee service provider of the Company or the Company Group at any time in the one-year period preceding the proposed solicitation. For avoidance of doubt, it shall not be a breach of this section for Employee to post general job listings
or similar broad- based advertisement for employment or other services as long as such listings or advertisements are not directly or indirectly targeted at the Company’s employees or service providers.
(b) Permitted Exception. Employee shall be permitted without violating Sections 2(b), 2(d), or 12(a) of this Agreement to make passive personal
investments in securities that are registered on a national stock exchange if the aggregate amount owned by him and all family members and Affiliates does not exceed 2% of such company’s outstanding securities as long as (i) these activities do
not prevent Employee from fulfilling his duties, responsibilities, and authorities under this Agreement, and (ii) Employee fully complies with his otherwise applicable obligations under this Agreement.
13. Inventions. Any and all Confidential Information and other discoveries, inventions, improvements, trade secrets (as defined by applicable law), know-how, works of authorship, or other intellectual property conceived,
created, written, developed, or first reduced to practice by Employee before or after the Effective Date, alone or jointly, in the performance of his duties, responsibilities, or authorities for the Company or the Company Group (the “Inventions”) shall be the sole and exclusive property of the Company and the Company Group, as applicable. Employee acknowledges that all original works of authorship protectable by
copyright that are produced by Employee in the performance of his duties, responsibilities, or authorities for the Company and the Company Group are “works made for hire” as defined in
the United States Copyright Act (17 U.S.C. § 101). In addition, to the extent that any such works are not works made for hire under the United States Copyright Act, Employee hereby assigns without further consideration all right, title, and
interest in such works to the Company and the Company Group. Employee shall promptly and fully disclose to the Company all Inventions, shall treat all Inventions as Confidential Information, and hereby assigns to the Company and the Company
Group without further consideration all of his right, title, and interest in and to any and all Inventions, whether or not copyrightable or patentable. Employee shall execute all papers, including applications, invention assignments, and
copyright assignments, and shall otherwise assist the Company and the Company Group as reasonably required to memorialize, confirm, and perfect in them the rights, title, and other interests granted to the Company and the Company Group under
this Agreement.
14. Duties of Confidentiality and Loyalty Under the Common Law. Employee’s obligations under this Agreement shall supplement, rather than supplant, his common-law duties of confidentiality and loyalty owed to the Company
and the Company Group.
15. Survival and Enforcement of Covenants; Remedies.
(a) Survival of Covenants. Employee’s covenants in Sections 11-13 shall survive the termination of this Agreement according to their terms, regardless of the reason for such termination, and
shall be construed as agreements independent of any other provision of this Agreement, and the existence of any claim or cause of action of Employee against the Company or the Company Group (whether under this Agreement or otherwise), shall not
constitute a defense to the enforcement by the Company or the Company Group of those covenants.
(b) Enforcement of Covenants. Employee acknowledges and agrees that his covenants in Sections 12 and 13 are ancillary to the otherwise enforceable
agreements by the Company under Section 5(b) to provide him with equity awards and under Section 11 to provide him with previously undisclosed Confidential Information and by his agreement not to disclose such Confidential Information, and are
supported by independent, valuable consideration. Employee further acknowledges and agrees that the limitations as to time, geographical area, and scope of activity to be restrained by those covenants are reasonable and acceptable to him and do
not include any greater restraint than is reasonably necessary to protect the Confidential Information, goodwill, and other legitimate business interests of the Company and the Company Group. Employee further agrees that, if at
some later date, a court of competent jurisdiction determines that any of the covenants in Sections 11-13 are unreasonable, any such covenants shall be reformed by the court and enforced to the maximum extent permitted under applicable law.
(c) Remedies. In the event of breach or threatened breach by Employee of any of his covenants in Sections 11, 12, or 13, the Company and the Company Group shall be irreparably damaged in
amounts difficult to ascertain and therefore entitled to equitable relief (without the need to post a bond or prove actual damages) by temporary restraining order, temporary injunction, or permanent injunction or otherwise, in addition to all
other legal and equitable relief to which they may be entitled, including any and all monetary damages, which it may incur as a result of such breach, violation, or threatened breach or violation. The Company and the Company Group may pursue
any remedy available to them concurrently or consecutively in any order as to any breach, violation, or threatened breach or violation, and the pursuit of one of such remedies at any time shall not be deemed an election of remedies or waiver of
the right to pursue any other of such remedies as to such breach, violation, or threatened breach or violation, or as to any other breach, violation, or threatened breach or violation. If Employee breaches any of his covenants in Section 12,
the time periods pertaining to such covenants shall also be suspended and shall not run in favor of him from the time he first breached such covenants until the time when he ceases such breach. Notwithstanding anything to the contrary in this
Agreement, the Company may amend the provisions of Sections 11, 12, or 13 without the approval of Employee or any other person to provide for less restrictive limitations as to time, geographical area, or scope of activity to be restrained. Any
such less restrictive limitations may, in the Company’s sole discretion, apply only with respect to the enforcement of this Agreement in certain jurisdictions specified in any such amendment. At the request of the Company, Employee shall
consent to any such amendment and shall execute and deliver to the Company a counterpart signature page to such amendment.
(d) After-Acquired Evidence. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that Employee is eligible to receive the Separation Benefits or the
Change-in-Control Benefits, as applicable, but, after such determination, the Company subsequently acquires evidence and determines that (i) Employee has materially breached the terms Sections 2, 11, or 12; or (ii) a Cause condition existed
prior to the Termination Date that, if curable, was not cured prior to the Termination Date, and that, had the Company been fully aware of such condition, would have given the Company the right to terminate Employee’s employment for Cause
pursuant to Section 6(b), then the Company shall have the right to cease the payment of any future installments of any such payments, as applicable, and Employee shall promptly return to the Company all installments of such payments, as
applicable, received by Employee prior to the date that the Company determines that the conditions of this Section 15(d) have been satisfied.
(e) Clawback. To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise determined by the
Board (or a committee thereof), amounts paid or payable under this Agreement shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company, which clawback policies or procedures may
provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement. Notwithstanding any provision of this Agreement to the contrary, the Company reserves the right, without the consent of Employee, to adopt any such clawback
policies and procedures, including such policies and procedures applicable to this Agreement with retroactive effect.
16. Successors and Assigns. Employee’s duties, responsibilities, and authorities under this Agreement are personal to him and shall not be assigned to any person or entity without written consent from the Board. The Company
may assign this Agreement without Employee’s further consent to any Affiliate (including without limitation to Riley Permian Operating Company, LLC), any successor of the Business of the Company or the Company Group (whether by merger,
consolidation, reorganization, reincorporation, or sale of stock or equity interests), or any purchaser of the majority of the assets of the Company or the Company Group; provided, however, that in the event of a Change in Control, the Company shall cause the surviving entity in any
such Change in Control to assume the Company’s obligations under Sections 7 and 8 to the extent such obligations have not yet been fully performed. The Company may not transfer Employee’s employment to any Affiliate (including without
limitation to Riley Permian Operating Company, LLC) unless the Company also assigns this Agreement to the Affiliate and the Affiliate expressly agrees to honor this Agreement in all respects. In the event of Employee’s death, this Agreement
shall be enforceable by his estate, executors, or legal representatives and any payment owed to Employee hereunder after the date of Employee’s death shall be paid to Employee’s estate. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legal representatives, successors, and permitted assigns.
17. Waiver of Right to Jury Trial. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EACH PARTY SHALL, AND HEREBY DOES, IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE, CONTROVERSY, CLAIM, OR
CAUSE OF ACTION AGAINST THE OTHER PARTY OR ITS AFFILIATES, INCLUDING ANY ARISING OUT OF OR RELATING TO EMPLOYEE’S EMPLOYMENT WITH THE COMPANY, THE TERMINATION OF THAT EMPLOYMENT, OR THIS AGREEMENT (EITHER ALLEGED BREACH OR ENFORCEMENT).
18. Attorneys’ Fees and Other Costs. If either party breaches this Agreement, or if a dispute arises between the parties based on or involving this Agreement, the party that enforces its rights under this Agreement against
the breaching party in a court of competent jurisdiction as determined by such court, or that prevails in the resolution of such dispute as determined by the court, shall be entitled to recover from the other party its or his reasonable
attorneys’ fees, court costs, and expenses incurred in enforcing such rights or resolving such dispute.
19. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties concerning its subject matters and supersedes all prior and
contemporaneous agreements and understandings, both written and oral, between the parties with respect to such subject matters, including without limitation, any other agreement or policy relating to severance or similar benefits that would be
payable to Employee upon termination of employment with the Company. Employee acknowledges and agrees that the Company has not made any promise or representation to him concerning this Agreement not expressed in this Agreement,
and that, in signing this Agreement, she is not relying on any prior oral or written statement or representation by the Company or its representatives outside of this Agreement but is instead relying solely on his own judgment and his legal and tax
advisors, if any. Notwithstanding anything to the contrary in this Section 19, nothing in this Agreement shall impair or otherwise limit Employee’s rights and/or the Company’s obligations under any indemnification agreement by and between the
Company and Employee that may be entered into during the Term.
20. Inconsistencies. Notwithstanding anything to the contrary, if any provision of this Agreement is inconsistent with any provision of the Company’s applicable benefit plan documents, insurance policies, or employment
policies, the applicable provision of this Agreement shall govern.
21. Amendment. Any modification to or waiver of this Agreement will be effective only if it is in writing and signed by the parties to this Agreement. Notwithstanding the previous sentence, the Company may modify or amend
this Agreement in its sole discretion at any time without the further consent of the Employee in any manner necessary to comply with applicable law and regulations or the listing or other requirements of any stock exchange upon which the
Company or its Affiliate is listed; provided, however, that (i) any such amendment shall preserve the rights and benefits of Employee hereunder as reasonably possible, and (ii) the Company shall use reasonable efforts to consult with Employee
prior to and regarding any such proposed amendment.
22. Waiver. The waiver by either party of a breach of any term of this Agreement shall not operate or be construed as a waiver of a subsequent breach of the same provision by either party or of the breach of any other term
or provision of this Agreement.
23. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, (a) this Agreement shall be considered divisible, (b) such provision shall be
deemed inoperative to the extent it is deemed illegal, invalid, or unenforceable, and (c) in all other respects this Agreement shall remain in full force and effect; provided, however, that, if any such provision may be made enforceable by such court by limitation, then such
provision shall be so limited by such court and shall be enforceable to the maximum extent permitted by applicable law.
24. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles. The parties hereby irrevocably consent to the binding and exclusive venue
for any dispute, controversy, claim, or cause of action between them arising out of or related to this Agreement being in the state or federal court of competent jurisdiction that regularly conducts proceedings or has jurisdiction in the State
of Delaware. Nothing in this Agreement, however, precludes either party from seeking to remove a civil action from any state court to federal court.
25. Third-Party Beneficiaries. The Company Group and the Company’s other Affiliates shall be included within the definition of “Company” for purposes of this Agreement, are intended to be third-party beneficiaries of this
Agreement, and therefore may enforce this Agreement.
26. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. The delivery of this
Agreement in the form of a clearly legible facsimile or electronically scanned version by e-mail shall have the same force and effect as delivery of the originally executed document.
27. Code Section 409A.
(a) Code Section 409A. The parties intend for all payments provided to Employee under this Agreement to be exempt from or comply with the provisions of Code Section 409A and not be subject to
the tax imposed by Code Section 409A. In addition, and without limiting the generality of the foregoing, it is the intent of the parties that the Severance Pay, CIC Pay, and COBRA benefits set forth in Sections 7 and 8 of this Agreement be
exempt from Code Section 409A as “short-term deferrals,” as “involuntary separation pay,” or under any other 409A exemption that may be applicable. The provisions of this Agreement shall be interpreted in a manner consistent with the foregoing
intents. For purposes of Section 409A, each payment amount or benefit due under this Agreement shall be considered a separate payment and Employee’s entitlement to a series of payments or benefits under this Agreement is to be treated as an
entitlement to a series of separate payments.
(b) Specified Employee Postponement. Notwithstanding the previous Section or any other provision of this Agreement to the contrary, if the Company or an Affiliate that is treated as a “service recipient” (as defined in Section 409A) is publicly traded on an established securities market (or otherwise) and Employee is a “specified
employee” (as defined below) and is entitled to receive a payment that is subject to Section 409A on account of Employee’s Separation from Service, such payment may not be made earlier than six months following the date of his
Separation from Service if required by Section 409A, in which case, the accumulated postponed amount shall be paid in a lump sum payment on the Section 409A Payment Date. The “Section 409A
Payment Date” is the earlier of (i) the date of Employee’s death or (ii) the date that is six months and one day after Employee’s Separation from Service. The determination of whether Employee is a “specified employee” shall be
made in accordance with Section 409A using the default provisions in the Section 409A unless another permitted method has been prescribed for such purpose by the Company.
(c) Reimbursement of In-Kind Benefits. Any reimbursement or in-kind benefit provided under this Agreement which constitutes a
“deferral of compensation” within the meaning of Treasury Regulation Section 1.409A-1(b) shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that (i) any reimbursement
is for expenses incurred during the period of time specified in this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement,
or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and
(iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
28. Right to Consult an Attorney and Tax Advisor. Notwithstanding any contrary provision in this Agreement, Employee shall be solely responsible for any risk that the tax treatment of all or part of any payments provided by
this Agreement may be affected by Code Section 409A, which may impose significant adverse tax consequences on him, including accelerated taxation, a 20% additional tax, and interest. Employee therefore has the right, and is encouraged by this
Section, to consult with a tax advisor of his choice before signing this Agreement. Employee is also encouraged by this Section to consult with an attorney of his choice before signing this Agreement.
29. Representations of Employee. Employee represents and warrants that (a) she has not previously assumed any obligations inconsistent with those in this Agreement; (b) his execution of this Agreement, and his employment
with the Company, shall not violate any other contract or obligation between Employee and any former employer or other third party; and (c) during the Term, she shall not use or disclose to anyone within the Company any other member of the
Company Group any proprietary information or trade secrets of any former employer or other third party. Employee further represents and warrants that she has entered into this Agreement pursuant to his own initiative and that the Company did
not induce him to execute this Agreement in contravention of any existing commitments. Employee further acknowledges that the Company has entered into this Agreement in reliance upon the foregoing representations of Employee.
30. Cooperation. The parties agree that certain matters in which Employee will be involved during the Term may necessitate Employee’s cooperation in the future. Accordingly, following the termination of Employee’s
employment for any reason, to the extent reasonably requested by the Board, Employee shall cooperate with the Company in connection with matters arising out of Employee’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of Employee’s other activities. The Company shall reimburse Employee for reasonable expenses incurred in connection with such
cooperation and, to the extent that Employee is required to spend substantial time on such matters as determined by the Board in its sole discretion, the Company shall compensate Employee at an hourly rate based on Employee’s Base Salary on the
Termination Date.
31. Survival. The following shall provisions shall survive the termination of Employee’s employment and/or the expiration or termination of this Agreement, regardless of the reasons for such expiration or termination:
Section 7 (“Payments and Benefits Due Upon Termination of Agreement”), Section 8 (“Payments and Benefits Due Upon Certain Change-in- Control Events”), Section 9 (“Parachute Payment Limitation”),
Section 10 (“Conditions on Receipt of Separation Benefits and Change-in-Control Benefits”), Section 11 (“Confidential Information”), Section 12 (“Non-Solicitation Restrictive Covenants”),
Section 15 (“Survival and Enforcement of Covenants; Remedies”), Section 17 (“Waiver
of Right to Jury Trial”), Section 18 (“Attorneys’ Fees and Other Costs”), Section 19 (“Entire Agreement”),
Section 20 (“Inconsistencies”), Section 24 (“Governing Law; Venue”), Section 30 (“Cooperation”), and Section 32 (“Notices”).
32. Notices. For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given (a) when received or rejected if delivered personally or
by courier; or (b) on the date receipt is acknowledged if delivered by certified mail, postage prepaid, return receipt requested:
|
If to Employee, addressed to:
|
If to the Company, addressed to:
|
|
|
6224 Wentworth Dr.
Edmond, OK 73025
or the
last known residential address reflected in the Company’s records
|
Riley Permian Exploration, Inc.
29 East Reno, Suite 500 Oklahoma City, OK 73104
Attention: Susan Prejean
|
or to such other address as either party may furnish to the other in writing in accordance herewith, except that notices or changes of address shall be
effective only upon receipt.
[Signature Page Follows]
AGREED and SIGNED as of the date set forth above:
|
RILEY PERMIAN EXPLORATION, INC.
|
EMPLOYEE
|
|||
|
By:
|
/s/ Philip Riley | Jeffrey Gutman | ||
|
Philip Riley
|
Jeffrey Gutman
|
|||
|
Chief Financial Officer
|
||||
EXHIBIT A
GENERAL RELEASE AGREEMENT
[To be completed when employment terminates]
This General Release Agreement (this “Agreement”) constitutes the Release referred to in
that certain Employment Agreement (the “Employment Agreement”) executed and agreed to as of [•], by and among Riley Exploration Permian, Inc. (the “Company”) and [•] (“Employee”).
(a) Capitalized words
used but not defined in this Agreement shall have the same meaning as such terms are assigned by the Employment Agreement. In exchange for the Separation Benefits or Change-in-Control Benefits, as applicable, to be provided to Employee by the
Company in accordance with the Employment Agreement, the Employee releases, waives, acquits, and forever discharges to the maximum extent permitted by law any and all rights, claims, and demands of whatever kind or character, whether presently
known to me or unknown, and whether vicarious, derivative, or direct or indirect, that he may have or assert against (i) the Company; (ii) any parent, subsidiary, or affiliate of the Company, including without limitation Riley Permian Operating
Company, LLC; (iii) any past or present officer, director, or employee of the entities just referred to in (i)-(ii), in their individual and official capacities; and (iv) any past or present predecessors, parents, subsidiaries, affiliates,
owners, shareholders, members, managers, benefit plans, operating units, divisions, agents, representatives, officers, directors, partners, employees, fiduciaries, insurers, attorneys, successors, and assigns of the entities just named in
(i)-(iii) (the “Released Parties”). This release includes without limitation any claims arising under federal, state, or local laws prohibiting employment discrimination, [including without limitation the Age Discrimination in Employment Act (“ADEA”)]; any claims growing out of any legal restrictions, contractual or otherwise, on the
Company’s right to terminate the employment of its employees; any claims arising out of Employee’s employment with the Company or the termination of that employment; any claims relating to or arising out of any agreement or contract between
Employee and any of the Released Parties; and any claims arising out of or based on any other act, conduct, or omission of any of the Released Parties (collectively, the rights, claims, and demands referenced above are referred to as the “Released Claims”). This release does not prevent Employee from filing any administrative claims for unemployment compensation or
workers’ compensation benefits. This Agreement is not intended to indicate that any Released Claims exist or that, if they do exist, they are meritorious. Rather, Employee is simply agreeing that, in exchange for the Separation Payments, any
and all potential claims of this nature that Employee may have against the Released Parties, regardless of whether they actually exist, are expressly settled, compromised, and waived.
In no event shall the Released Claims include [(a) any claim
under the ADEA which arises after the date this Agreement is signed by Employee ], (b) any claim to vested benefits under an employee benefit plan, (c) any claims for [describe
any indemnification rights that survive termination under any applicable agreements or at law], or (d) any claim relating to Employee’s status as [a director (other than
claims for unpaid director compensation, claims for indemnification, and claims for coverage under D&O insurance) if Employee remains a director following the termination of his employment or] a stockholder of the Company or any other
Released Party. Further, the parties expressly acknowledge that Employee retains the following equity interests, which are not waived by this Agreement, and which continue to be governed by the agreement and/or plan through which they were awarded:
[summary of equity ownership and agreement(s)/plan(s) that is/are source(s) of entitlement (including any applicable restricted unit agreements and the rights therein that survive
such termination)].
-1-
By signing this Agreement, Employee is bound by it. Anyone who succeeds to Employee’s rights and responsibilities, such as heirs
or the executor of Employee’s estate, is also bound by this Agreement. The release set forth in this Agreement also applies to any claims brought by any person or agency or class action under which Employee may have a right or benefit.
Notwithstanding the release in this Agreement, nothing in this Agreement prevents Employee from (i) contacting, filing a charge
or complaint with, providing information to, or cooperating with an investigation conducted by, any governmental agency, (ii) making disclosures or giving truthful testimony as required by law or valid legal process (such as by a subpoena), or
(iii) engaging in other legally-protected activities. Employee acknowledges and agrees, however, that he forever waives any right to recover, and he will not request or accept, anything of monetary value from any of the Released Parties arising out
of or connected in any way with his employment or the ending of his employment with the Company, the employment practices of the Company, or with any other act, conduct, or omission of any of the Released Parties, other than the Separation
Payments, whether sought directly by him or by any governmental agency, individuals, or group of individuals on his behalf.
THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE
TO THE SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF ANY OF THE RELEASED PARTIES.
(b) Employee agrees
not to bring or join any lawsuit, arbitration, or other proceeding against any of the Released Parties in any court relating to any of the Released Claims. Employee represents that Employee has not brought or joined any lawsuit or filed any
charge or claim against any of the Released Parties in any court or before any government agency and has made no assignment of any rights Employee has asserted or may have against any of the Released Parties to any person (including any
entity), in each case, with respect to any Released Claims.
(c) Employee further agrees to (i) keep confidential and not to disclose to anyone the terms of this Agreement, except as permitted below or by law and except that he may disclose the terms to his family,
attorney, or tax or financial advisor, if any, provided such persons have agreed to keep such information confidential, (ii) not make any disparaging remarks to any third party about the Released Parties or their operations, practices,
officers, directors, members, managers, employees, or contractors, (iii) not use or disclose any Confidential Information of the Released Parties he received during his employment and to comply with his continuing post-termination obligations
owed to the Company under the Employment Agreement and otherwise, and (iv) promptly return to the Company all property of any Released Party in his possession or under his control. [With respect to (iii), the Restricted Area is as follows:____________________________.]
-2-
(d) Employee’s
covenants in Sections 11-13 of the Employment Agreement (and those provisions necessary to enforce and interpret them) remain in full force and effect, and Employee promises to abide by such covenants. Notwithstanding the foregoing, nothing in
this Agreement or the Employment Agreement shall prohibit or restrict Employee from lawfully (a) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting
in an investigation by, any governmental agency regarding a possible violation of any law; (b) responding to any inquiry or legal process directed to the Employee from any governmental agency; (c) testifying, participating or otherwise
assisting in an action or proceeding by any governmental agency relating to a possible violation of law or (d) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Further, nothing herein or
in the Employment Agreement shall prevent Employee from, nor shall Employee be criminally or civilly liable under any federal or state trade secret law for, making a disclosure of trade secrets or other confidential information that is: (a)
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 applicable law; (b) made in a
complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) protected under the whistleblower provisions of applicable law.
(e) By executing and delivering this Agreement, Employee acknowledges that: (i) Employee has carefully read this Agreement; (ii) Employee has had at least 55 days to consider this Agreement before the
execution and delivery hereof to the Company; (iii) Employee has been and hereby is advised in writing that Employee may, at Employee’s option, discuss this Agreement with an attorney of Employee’s choice and that Employee has had adequate
opportunity to do so; (iv) Employee fully understands the final and binding effect of this Agreement and agrees that the only promises made to Employee to sign this Agreement are those stated in the Employment Agreement and herein; (v) Employee
is signing this Agreement voluntarily and of Employee’s own free will and Employee understands and agrees to each of the terms of this Agreement; and (vi) Employee has been paid all wages and other compensation to which Employee
is entitled pursuant to his employment with the Company and received all leaves (paid and unpaid) to which Employee was entitled during such employment.
Employee further acknowledges and agrees that (1) he has been given a reasonable period to read and consider this Agreement before
signing it; (2) this Agreement and the Employment Agreement contain the entire understandings and agreements between the Company and him regarding their subject matters and supersede all prior agreements and understandings between them; (3) he has
read this Agreement and fully understands the effect of his signing this Agreement; (4) in signing this Agreement, she is not relying on any written or oral statement or promise from the Company other than in this Agreement and the Employment
Agreement; (5) this Agreement shall be governed by Delaware law and exclusive venue for any claim between the parties or their affiliates arising out of or related this Agreement is in any state or federal court of competent jurisdiction in the
State of Delaware; and (6) nothing in this Agreement constitutes any sort of admission of liability.
-3-
[Notwithstanding the initial effectiveness of this Agreement,
Employee may revoke the delivery (and therefore the effectiveness) of this Agreement within the seven-day period beginning on the date Employee delivers this Agreement to the Company (such seven day period being referred to herein as the “Release Revocation Period”). To be effective, such revocation must be in writing signed by Employee and must be delivered to the Company’s Chief Executive
Officer on or before 11:59 p.m., E.S.T., on the last day of the Release Revocation Period. If an effective revocation is delivered in the foregoing manner and timeframe, this Agreement shall be of no force or effect and shall be null and void ab
initio. No Separation Benefits or Change-in-Control Benefits, as applicable, shall be paid if this Agreement is revoked by Employee in the foregoing manner.]
Executed on this _____________day of__________________, _________.
|
[Employee]
|
-4-