Exhibit 10.21




 

Ness
Energy International, Inc. 

 

AGREEMENT

 

This
Agreement (this “Agreement”) is executed and effective on the 28th day of
February, 2005, by and between Ness Energy International, Inc., a Washington
corporation (the “Company”), and
Shannon K Stephens, Donna K Hendrick, Mary Gene Stephens, Ples R. Tillery, and
Judson F Hoover (the
“Executive”). 

 

RECITALS 

 

A. The
Company and the Executive entered into that certain Agreement for Grant of
Performance Shares (the “Agreement for Grant”) dated as of February 19, 2005, to
provide that performance shares would be granted to the Executive in the event
of a Change in Control of the Company. 

 

B. The
Company and the Executive desire to amend and restate the Agreement for Grant.


 

WITNESSETH:


 

WHEREAS,
the Board of Directors of the Company (as hereinafter defined) recognize that
the current business environment makes it difficult to attract and retain highly
qualified key employees unless a certain degree of security can be offered to
such individuals against organizational and personnel changes which frequently
follow a Change in Control (as defined below) of a corporation; and


 

WHEREAS,
even rumors of acquisitions or mergers may cause key employees to consider major
career changes in an effort to ensure financial security for themselves and
their families; and 

 

WHEREAS,
the Company desires to ensure fair treatment of its key employees in the event
of a Change in Control and to allow them to make critical career decisions
without undue time pressure and financial uncertainty; and 

 

WHEREAS,
the Company recognizes that its key employees will be involved in evaluating or
negotiating any offers, proposals or other transactions which could result in a
Change in Control of the Company and believes that it is in the best interest of
the Company and its stockholders for such key employees to be in a position,
free from personal, financial and employment considerations, to assess
objectively and pursue 




aggressively
the interests of the Company and its stockholders in making these evaluations
and carrying on such negotiations; and 

 

NOW,
THEREFORE, for and in consideration of the mutual promises, covenants and
obligations contained herein, the Company and the Executive agree as follows:


 

ARTICLE
I 

DEFINITIONS


 

As used
herein, the following words and phrases shall have the following respective
meanings unless the context clearly indicates otherwise. 

 

1.1
Board. The
Board of Directors of the Company. 

 

1.2
Change
in Control. A
“Change in Control” shall mean any one of the following: 

 

(a)
“Continuing Directors” no longer constitute a majority of the Board; the term
“Continuing Director” means any individual who is a member of the Board on the
date hereof or was nominated for election as a director by, or whose nomination
as a director was approved by, the Board with the affirmative vote of a majority
of the Continuing Directors; 

 

























(b) any
person or group of persons (as defined in Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (“Exchange Act”)) together with his or its
affiliates, becomes the beneficial owner, directly or indirectly, of 25% or more
of the voting power of the Company’s then outstanding securities entitled
generally to vote for the election of the Company’s directors; 

 

(c) the
merger or consolidation to which the Company is a party if the shareholders of
the Company immediately prior to the effective date of such merger or
consolidation have beneficial ownership (as defined in Rule 13d-3 under the
Exchange Act) of less than 50% of the combined voting power to vote for the
election of directors of the surviving corporation or other entity following the
effective date of such merger or consolidation; or 

 

(d) the
sale of, or transfer of ownership of all or substantially all of the assets of
the Company or the liquidation or dissolution of the Company. 

 

Notwithstanding
anything herein to the contrary, under no circumstances will a change in the
constitution of the board of directors of any Subsidiary, a change in the
beneficial ownership of any Subsidiary, the merger or consolidation of a
Subsidiary with any other entity, the sale of all or substantially all of the
assets of any Subsidiary or the liquidation or dissolution of any Subsidiary
constitute a “Change in Control” under this Plan. 




For
purposes of this Agreement, if the Executive’s employment with the Company is
terminated by the Company other than for “Cause” prior to the date on which a
Change in Control occurs, and it is reasonably demonstrated that such
termination (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (ii) otherwise arose in
connection with a Change in Control, then for all purposes hereof, such
termination shall be deemed to have occurred immediately following a Change in
Control. 

 

1.3
Common
Stock. The
common stock, no par value share, which the Company is currently authorized to
issue or may in the future be authorized to issue, or any securities into which
or for which the common stock of the Company may be converted or exchanged, as
the case may be. 

 

1.4 Board
of Directors. The Board of Directors of the Company. 

 

1.5
Fair
Market Value. The
average of the high and low sales price on the date of the Change in Control or
on the next business day, if such day is not a business day, or if no trading
occurred on such day, then on the first day preceding such day on which trading
occurred, of a share of Common Stock traded on the OTC Exchange, or any other
public securities market selected by the Board of Directos; provided, however,
that, if shares of Common Stock shall not have been traded on the OTC Exchange
or other public securities market for more than 10 days immediately preceding
such date or if deemed appropriate by the Compensation Committee for any other
reason, the Fair Market Value of shares of Common Stock shall be as determined
by the Board of Directors in such other manner as it may deem appropriate.


 

ARTICLE
II 

PAYMENT
UPON CHANGE IN CONTROL 

 

2.1
Cash
Payment. The
Company shall pay to the Executive, in one lump-sum cash payment within five (5)
days after the date of the Change in Control, an amount equal to the Fair Market
Value of [SEE
EXHIBIT A ATTACHED FOR NUMBER OF SHARES FOR EACH INDIVIDUAL]
shares of
Common Stock as of the date of the Change in Control. 

 

2.2
Adjustments. In the
event that any dividend or other distribution (whether in the form of cash,
Common Stock, other securities, or other property), recapitalization, stock
split, reverse stock split, rights offering, reorganization, merger,
consolidation, split-up, spin-off, split-off, combination, subdivision,
repurchase, or exchange of Common Stock or other securities of the Company,
issuance of warrants or other rights to purchase Common Stock or other
securities of the Company, or other similar corporate transaction or event
affects the Common Stock such that an adjustment is determined by 




























the
Compensation Committee to be appropriate to prevent the dilution or enlargement
of the benefits or potential benefits intended to be made available under this
Agreement, then the Compensation Committee shall adjust the number of Common
Stock stated in Section 2.1 above. 

 

2.3
No
Set-off of Amounts Payable Hereunder. The
Company’s obligations hereunder also shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against the Executive. 

 

2.4
Gross-Up
Payment. In the
event it shall be determined that any payment or distribution of any type by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the “Total Payments”), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or
any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively referred to as
the “Excise Tax”), then the Executive shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that at the time of payment by
the Executive of all taxes (including additional excise taxes under said Section
4999 and any interest, and penalties imposed with respect to any taxes) imposed
upon the Gross-Up Payment, the Executive shall have an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Total Payments. The calculation
of the Gross-Up Payment will be made in the same manner and in conjunction with
any similar calculation of a gross-up payment under the terms of the Severance
Plan or any employment agreement, if applicable. The Company shall pay the
Gross-Up Payment to the Executive on the same date as the gross-up payment is
paid under the Severance Plan or any employment agreement, if applicable, or, if
no payment is to be made under the Severance Plan or an employment agreement,
within twenty (20) business days after the payment is made hereunder.





ARTICLE
III 

SUCCESSORS
TO COMPANY 

 

This
Agreement shall bind any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, in the same manner and to the same extent that the
Company would be obligated under this Agreement if no succession had taken
place. In the case of any transaction in which a successor would not, by the
foregoing provision or by operation of law, be bound by this Agreement, the
Company shall require such successor expressly and unconditionally to assume and
agree to perform the Company’s obligations under this Agreement, in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach
hereof and shall entitle the Executive to compensation from the Company in the
same amount and on the same terms as the Executive would be entitled hereunder.
As used herein, “the Company” shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Article
III or which
otherwise becomes bound by all the terms and provisions hereof by operation of
law. 

 

ARTICLE
IV 

DURATION
AND AMENDMENT 

 

4.1
Duration. This
Agreement shall continue in effect until terminated in accordance with
Section
4.2. If a
Change in Control occurs, this Agreement shall continue in full force and
effect, and shall not terminate or expire, until after the Executive shall have
received all of benefits to which he is entitled hereunder in full.


 

4.2
Amendment
or Termination. This
Agreement may not be amended or terminated except by a mutual written agreement
signed by all parties. 

 


































ARTICLE
V 

MISCELLANEOUS


 

5.1
Notices. All
notices, requests, demands and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given and acknowledged by written receipt, or on the seventh day
after mailing if mailed (return receipt requested), postage prepaid and properly
addressed as follows: 





	 	 	 	 	 
	
       

      Company:

       
	
        
	
       
	
        
	
       

      Ness
      Energy International, Inc

       

	
       
	
        
	
       
	
        
	
       

      4102
      I-20 East Service Road810 Houston Street

       

	
       
	
        
	
       
	
        
	
       

      Willow
      Park, Texas 76087

       

	
       
	
        
	
       
	
        
	
       

      Attention:
      Board of Directors

       

	 	 	 
	
       

      Executive:

       
	  
	 
	  
	 

      [Address
      of each executive.]

       




 

Any party
may change its address for purposes of this Section
5.1 by
giving the other party written notice of the new address in the manner set forth
above. 

 

5.2
Assignment;
Binding Effect. Neither
this Agreement nor any of the rights or obligations hereunder may be assigned by
any party without the prior written consent of the other party. This Agreement
is binding upon and inures to the benefit of Executive and Company and their
respective heirs, personal representatives and permitted successors and assigns.


 

5.3
Governing
Law. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Texas. 

 

5.4
Waiver. Any
waiver by any party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach thereof or of any
other provision of this Agreement. 

 

5.5
Entire
Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes any and all prior and
contemporaneous promises, agreements and representations not set forth in this
Agreement. 

 

5.6
Severability. Should
any one or more of the provisions hereof be determined to be illegal or
unenforceable, all other provisions hereof shall be given effect separately
there from and shall not be affected thereby. 

 

5.7
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same agreement. 

 

5.8
Dispute
Resolution. Any
dispute, controversy or claim arising out of or in relation to or connection to
this Agreement, including without limitation any dispute as to the construction,
validity, interpretation, enforceability or breach of this Agreement, shall be
exclusively and finally settled by arbitration, and any party may submit such
dispute, controversy or claim to arbitration. 

 

(a)
Arbitrator. The
arbitration shall be heard and determined by one arbitrator, who shall be
impartial and who shall be selected by mutual agreement of the parties. If the
parties cannot agree on the arbitrator, then the appointing authority for the
implementation of such procedure shall be the Chief Executive Officer of the
American Arbitration Association, who shall appoint an independent arbitrator
who does not have any financial interest in the dispute, controversy or claim.


 

























(b)
Proceedings. Unless
otherwise expressly agreed in writing by the parties to the arbitration
proceedings: 

 

(i) The
arbitration proceedings shall be held in Fort Worth, Texas, at a site chosen by
mutual agreement of the parties, or if the parties cannot reach agreement on a
location within thirty (30) days of the appointment of the arbitrator, then at a
site chosen by the arbitrator; 

 

(ii) The
arbitrator shall be and remain at all times wholly independent and impartial;


 

(iii) The
arbitration proceedings shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, as amended from time
to time; 

 

(iv) Any
procedural issues not determined under the arbitral rules selected pursuant to
item (iii) above shall be determined by the law of the place of arbitration,
other than those laws which would refer the matter to another jurisdiction;


 

(v) The
costs of the arbitration proceedings (including attorneys’ fees and costs) shall
be borne in the manner determined by the arbitrator; 

 

(vi) The
decision of the arbitrator shall be reduced to writing; final and binding
without the right of appeal; the sole and exclusive remedy regarding any claims,
counterclaims, issues or accounting presented to the arbitrator; made and
promptly paid in United States dollars free of any deduction or offset; and any
costs or fees incident to enforcing the award shall, to the maximum extent
permitted by law, be charged against the party resisting such enforcement;


 

(vii) The
award shall include interest from the date of any breach or violation of this
Agreement, as determined by the arbitral award, and from the date of the award
until paid in full, at 12% per annum; and 

 

(viii)
Judgment upon the award may be entered in any court having jurisdiction over the
person or the assets of the party owing the judgment or application may be made
to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. 




(c)
Acknowledgment
Of Parties. Each
party acknowledges that he or she or it has voluntarily and knowingly entered
into an agreement to arbitration under this Section by executing this Agreement.


 

5.9
Employment
Status. This
Agreement does not constitute a contract of employment or impose on the Company
any obligation to retain the Executive as an employee. 

 

IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year above written. 

 


	 	 	 
	
       

      Ness
      Energy International, Inc.

       

	 	 
	
       

      By:

       
	
       
	
       

	
       
	
       
	
       

      Name:  Shannon
      K Stephens

       

	
       
	
       
	
      Title:    President,
      and Chief Executive Officer

       

       

       

	
       
	
       
	
       

      EXECUTIVE

       




























 




Exhibit A


 

Section
2.1 

 


	 	 	 	 	 
	
       

      Shannon
      K Stephens, 500 Looney Lane, Weatherford TX 76087

       
	
        
	
       

      4,375,000
      Share

       
	
        
	
       

	
       

      Donna
      K Hendrick, 315 FM 3137, Palo Pinto TX 76484

       
	
        
	
       

      1,0750,000
      Shares

       
	
        
	
       

	
       

      Ples
      R Tiller, 104 Yorkshire Ct, Weatherford, TX 76087

       
	
        
	
       

      1,075,000
      shares

       
	
        
	
       

	
       

      Mary
      Gene Stephens, 365 Cook Rd, Weatherford TX 76087

       
	
        
	
       

      1,800,000
      shares

       
	
        
	
       

	
       

      Judson
      F Hoover, 104 Thistle Ct, Highland Village TX 75077

       
	
       
	
       

      2,800,000
      shares