EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 18th
day of July, 2008 (the “Agreement”), by and among Laureate Resources
& Steel Industries Inc., a Nevada corporation (the “Company”), and Xxxxxx
XxXxxxxx (the “Executive”).
WHEREAS, the Company desires to engage
the Executive to serve the Company as the Chief Operating Officer (COO) and the
Executive desires to serve as the COO of the Company;
NOW THEREFORE, in consideration of the
premises and the mutual agreements made herein, the Company and the Executive
agree as follows:
1. Employment;
Duties. The
Company shall engage the Executive to serve as Chief Operating Officer of the
Company. The Executive shall serve the Company in such capacity for
the “Employment
Period” as defined in
Section 2. The Executive agrees that during the term of his
employment hereunder, he shall exclusively devote 100% of his professional
working time, attention, knowledge and experience and give his best effort,
skill and abilities to promote the business and interests of the Company as
directed by the Board of Directors of the Company or a committee of the Board of
Directors to which the Board of Directors has duly delegated authority thereof
(collectively, the “Board”), or the Company’s Chief Executive
Officer, as the case may be. In connection with his responsibilities,
the Executive will submit written reports to the Board as reasonably
requested. The Executive agrees to faithfully and diligently perform
such duties as may from time to time be assigned to the Executive by the Board
or the Chief Executive Officer, as the case may be.
2. Employment
Period. This
Agreement shall have an initial term of two (2) years to be effective as of the
date hereof and ending on the second anniversary of the date of this Agreement
(the “Initial
Employment Period”), unless
sooner terminated in accordance with the provisions of Section 7 or Section
8. This Agreement shall automatically renew and continue to remain in
effect for successive two-year periods (each, a “Renewal
Employment Period”), until
terminated as provided herein, unless either party provides the other party with
written notice of non-renewal not later than ninety (90) days prior to the
expiration of the Initial Period or the anniversary of such date in any
subsequent Renewal Employment Period. The Initial Employment Period
and each Renewal Employment Period of this Agreement is referred to herein as
the “Employment
Period.”
3. Compensation
and Benefits.
(a) Base
Compensation. The Executive shall be paid
a base salary of two hundred thousand United States Dollars (US$200,000) per
annum, payable incrementally on a monthly basis and pro-rated for any partial
year of employment, less applicable statutory and regulatory deductions (the
“Base
Salary”). The
Base Salary shall be payable in accordance with the Company’s regular payroll
practices, as the same may be modified from time to time.
(b) Expense
Reimbursement. The Executive shall be
entitled to reimbursement of reasonable out-of-pocket expenses incurred in
connection with travel and matters related to the Company's business and affairs, subject to the
prior approval of an officer of the Company, if made in accordance with written
Company policy as in effect from time to time as determined by the
Board.
(c) Benefits. The Executive shall be
entitled to receive those benefits listed on Exhibit A
hereto.
(d) Social
Compensation Package. The Executive shall be
entitled to living allowance each month as set forth on Exhibit A hereto (the
“Social
Package”).
(e) Vacation. The Executive shall be
entitled to such paid vacation in each calendar year, pro-rated with respect to
the portion of the year in which employment commenced with the Company in
accordance with Company general policies regarding
vacations.
4. Trade
Secrets. The Executive agrees that it is in the Company's
legitimate business interest to restrict his disclosure or use of Trade Secrets
and Confidential Information relating to the Company or its affiliates as
provided herein, and agrees not to disclose or use the Trade Secrets and/or
Confidential Information relating to the Company or its affiliates for any
purpose other than in connection with his performance of his duties to the
Company. For purposes of this Agreement, “Trade Secrets” shall
mean all confidential and proprietary information belonging to the Company
(including ideas, formulas, compositions, inventions (whether patentable or
unpatentable and whether or not reduced to practice), know-how, manufacturing
and production processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial and marketing plans and customer and supplier
lists and information). For purposes of this
Agreement, “Confidential
Information” shall mean all information other than Trade Secrets
belonging to, used by, or which is in the possession of the Company and relating
to the Company’s business or assets specifically including, but not limited to,
information relating to the Company’s products, services, strategies, pricing,
customers, representatives, suppliers, distributors, technology, finances,
employee compensation, computer software and hardware, inventions, developments,
in each case to the extent that such information is not required to be disclosed
by applicable law or compelled to be disclosed by any governmental
authority. Notwithstanding the foregoing, the terms “Trade Secrets” and
“Confidential
Information” do not include information that (i) is or becomes generally
available to or known by the public (other than as a result of a disclosure by
the Executive), provided, that the source of
such information is not known by the Executive to be bound by a confidentiality
agreement with the Company; or (ii) is independently developed by the Executive
without violating this Agreement.
5. Return of
Documents and Property. Upon the expiration or
termination of the Executive's employment with the Company, or at any time upon
the request of the Company, the Executive (or his heirs or personal
representatives) shall deliver to the Company (a) all documents and materials
(including, without limitation, computer files) containing Trade Secrets and
Confidential Information relating to the business and affairs of the Company or
its affiliates, and (b) all documents, materials, equipment and other property
(including, without limitation, computer files, computer programs, computer
operating systems, computers, printers, scanners, pagers, telephones, credit
cards and ID cards) belonging to the Company or its affiliates, which in either
case are in the possession or under the control of the Executive (or his heirs
or personal representatives).
6. Discoveries
and Works. All
Discoveries and Works made or conceived by the Executive during his employment
by the Company, solely, jointly or with others, that relate to the Company's
present or anticipated activities, or are used or useable by the Company shall
be owned by the Company. For the purposes of this Section 6,
(including the definition of “Discoveries
and Works”) the term
“Company” shall include the Company and its
affiliates. The term “Discoveries
and Works” includes, by way
of example but without limitation, Trade Secrets and other Confidential
Information, patents and patent applications, service marks, and service xxxx
registrations and applications, trade names, copyrights and copyright
registrations and applications. The Executive shall (a) promptly
notify, make full disclosure to, and execute and deliver any documents requested
by the Company, as the case may be, to evidence or better assure title to
Discoveries and Works in the Company, as so requested, (b) renounce any and all
claims, including but not limited to claims of ownership and royalty, with
respect to all Discoveries and Works and all other property owned or licensed by
the Company, (c) assist the Company in obtaining or maintaining for itself at
its own expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with the Company or thereafter,
all applications or other endorsements necessary or appropriate to maintain
patents and other rights for the Company and to protect the title of the Company
thereto, including but not limited to assignments of such patents and other
rights. Any Discoveries and Works which, within one year after the
expiration or termination of the Executive's employment with the Company, are
made, disclosed, reduced to tangible or written form or description, or are
reduced to practice by the Executive and which pertain to the business carried
on or products or services being sold or delivered by the Company at the time of
such termination shall, as between the Executive and, the Company, be presumed
to have been made during the Executive's employment by the
Company. The Executive acknowledges that all Discoveries and Works
shall be deemed “works made
for hire” under the U.S.
Copyright Act of 1976, as amended 17 U.S.C. Sect. 101.
7. Termination.
(a) Manner of
Termination. The Company
and the Executive may terminate this Agreement, with or without cause, only in
accordance with the provisions of this Section 7.
(b) Termination
Without Cause. The Company may terminate
this Agreement without cause upon three (3) months advance notice (“Advance
Notice”). The Company may
terminate this Agreement without cause or Advance Notice at any time during the
Employment Period effective immediately upon giving written notice of
termination to the Executive, provided however, that if the Company terminates
this Agreement other than for cause, and without Advance Notice after ninety
(90) days from the date of the commencement of the Initial Employment Period,
during the Employment Period the Company shall pay the Executive payments
equivalent to three (3) months of Executive’s annual Base Salary over the three
(3) months period following such termination date in accordance with the
Company’s regular payroll procedures, together with pro-rata portion of
applicable Social Package, any applicable bonus, options, and reimbursement of
any and all reasonable and pre-approved expenses incurred by Executive as of the
date of notice of such date, and all of such payments shall completely and fully
discharge any and all obligations and liabilities of the Company to the
Executive with respect to this Agreement.
(c) Termination
for Cause. The
Company may terminate this Agreement for cause at any time during the Employment
Period effective immediately upon giving written notice of termination to the
Executive. For purposes of this Agreement, “cause” shall mean, with respect to the
Executive, (i) any act of fraud or dishonesty, willful misconduct or negligence
in connection with the Executive's performance of his duties; (ii)
repeated failure of the Executive to follow reasonable instructions of the
Board; (iii) dishonesty of the Executive which causes a material detriment to
the Company or its affiliates; (iv) a breach by the Executive of any provision
hereof or of any contractual or legal fiduciary duty to the Company (including,
but not limited to, the unauthorized disclosure of Trade Secrets or other
Confidential Information, non-compliance with the policies, guidelines and
procedures of the Company or engaging during his employment in any other
employment or business without the express written approval of the Company’s
Board of Directors); (v) the arrest of the Executive for the commission of a
felony, whether or not such alleged felony was committed in connection with the
Company's business; or (vi) the commencement of
any bankruptcy proceedings (whether voluntary or involuntary), the appointment
of a trustee or receiver for the Executive or the general assignment of the
Executive's assets to his
creditors.
(d) Termination
by Executive. The Executive
may terminate this Agreement with or without cause at any time during the
Employment Period upon two weeks’ prior written notice of termination to the
Company. For purposes of this Agreement, with respect to the Company,
“cause” shall mean the failure to pay any
amounts due Executive hereunder (and not disputed in good faith by the Company)
within two months after their due date.
(e) Effect of
Termination. Except as otherwise
provided herein with respect to a termination pursuant to Section 7(b), in the
event this Agreement is terminated pursuant to this Section 7, the Executive's
rights and the Company's obligations hereunder shall cease as of the effective
date of the termination, including, without limitation, the right to receive
Base Salary, Social Package, bonus and all other compensation or benefits
provided for in this Agreement, and the Executive shall not be entitled to any
further compensation, benefits, or severance compensation of any kind, and shall
have no further right or claim to any compensation, benefits or severance
compensation under this Agreement or otherwise against the Company or its
affiliates, from and after the date of such termination, except as required by
applicable law. For purposes of clarity, in the event of a
termination of employment, the Executive shall not be entitled to any prorated
Social Package, or bonus. Any termination under this Section 7 is
subject to the provisions of Sections 18 and 20 hereof.
(f) Relinquishment
of Authority. Notwithstanding anything to
the contrary set forth herein, upon written notice to the Executive, the Company
may immediately relieve the Executive of all his duties and responsibilities
hereunder and may relieve the Executive of authority to act on behalf of, or
legally bind, the Company.
8. Disability
and Death.
(a) If, prior to the expiration of the
Employment Period, the Executive shall be unable to perform his duties hereunder
by reason of physical or mental disability for at least ninety (90) consecutive
calendar days, the Company shall have the right to terminate this Agreement and
the remainder of the Employment Period by giving written notice to the Executive
to that effect. Immediately upon the giving of such notice, the
Employment Period shall terminate.
(b) Upon termination of this Agreement
pursuant to Section 8(a), the Executive shall be paid his Base Salary through
the effective date of such termination. All other compensation and
benefits provided for in Section 3 of this Agreement shall cease upon
termination pursuant to Section 8(a), except as otherwise required by
applicable law.
(c) In the event of a dispute as to whether
the Executive is disabled within the meaning of Section 8(a), either party may
from time to time request a medical examination of the Executive by a doctor
appointed by the Chief of Staff of a hospital selected by mutual agreement of
the parties, or as the parties may otherwise agree, and the written medical
opinion of such doctor shall be conclusive and binding upon the parties as to
whether the Executive has become disabled and the date when such disability
arose. The cost of any such medical examination shall be borne by the
requesting party.
(d) If, prior to the expiration of the
Employment Period or the termination of this Agreement, the Executive shall die,
the Executive's estate shall be paid his Base Salary and other compensation due
through such date of death. Except as otherwise provided in this
Section 8(d), upon the death of the Executive, the Employment Period shall
terminate without further notice and the Company shall have no further
obligations hereunder, including, without limitation, obligations with respect
to compensation, and benefits provided for in Section 3 of this Agreement,
other than as set forth in the immediately preceding sentence or as otherwise
required by law.
(e) Any termination under this Section 8 is
subject to the provisions of Section 18 hereof.
9. No
Conflicts. The
Executive has represented and hereby represents to the Company and its
affiliates that the execution, delivery and performance by the Executive of this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under any
contract, agreement or understanding, whether oral or written, to which the
Executive is a party or of which the Executive is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right or
ability to enter into and perform the terms of this Agreement, and agrees to
indemnify and save the Company and its affiliates harmless from any liability,
cost or expense, including attorney’s fees, based upon or arising out of any
such restrictions, covenants, agreements, or limitations that may be found to
exist.
For purposes of this Agreement,
“affiliate” shall include any person or entity
directly or indirectly controlled by or controlling the
Company.
10. Non-competition. Except as authorized
by the Board, during the Executive’s employment by the Company and for a period
of six (6) months thereafter, Executive will not (except as an officer,
director, stockholder, employee, agent or consultant of the Company or any
subsidiary or affiliate thereof) either directly or indirectly, whether or not
for consideration, (i) in any way, directly or indirectly, solicit, divert, or
take away the business of any person who is or was a customer of the Company, or
in any manner influence such person to cease doing business in part or in whole
with Company; (ii) engage in a Competing Business; (iii) except for
investments or ownership in public entities, mutual funds and similar
investments, none of which constitute more than 5% of the ownership or control
of such entities, own, operate, control, finance, manage, advise, be employed by
or engaged by, perform any services for, invest or otherwise become associated
in any capacity with any person engaged in a Competing Business; or (iv) engage
in any practice the purpose or effect of which is to intentionally evade the
provisions of this covenant. For purposes of this section, “Competing
Business” means any company
or business which is engaged directly or indirectly in any business carried on
or planned to be carried on by the Company or any of its subsidiaries or
affiliates. In the event that the Executive’s employment by the
Company is terminated without cause, as described in Section 7(b) hereof, the
limitations of this Section 10 shall cease to apply as of the final payment made
in respect of the termination of the Executive’s employment with the Company as
set forth in Section 7(b) above.
11. Non-Solicitation. During the Executive’s
employment by the Company and for a period of one year thereafter (the
“Restricted
Period”), the Executive,
directly or indirectly, whether for his account or for the account of any other
individual or entity, shall not solicit or canvas the trade, business or
patronage of, or sell to, any individuals or entities that were either customers
of the Company during the time the Executive was employed by the Company, or
prospective customers with respect to whom a sales effort, presentation or
proposal was made by the Company or its affiliates, during the one year period
prior to the termination of the Executive’s employment. The Executive
further agrees that during the Restricted Period, he shall not, directly or
indirectly, (i) solicit, induce, enter into any agreement with, or attempt to
influence any individual who was an employee or consultant of the Company at any
time during the time the Executive was employed by the Company, to terminate his
or her employment relationship with the Company or to become employed by the
Executive or any individual or entity by which the Executive is employed; or
(ii) interfere in any other way with the employment, or other relationship, of
any employee or consultant of the Company or its affiliates.
12. Enforcement. The Executive agrees that
any breach of the provisions of this Agreement would cause substantial and
irreparable harm, not readily ascertainable or compensable in terms of money, to
the Company for which remedies at law would be inadequate and that, in addition
to any other remedy to which the Company may be entitled at law or in equity,
the Company shall be entitled to temporary, preliminary and other injunctive
relief in the event the Executive violates or threatens to violate the
provisions of this Agreement, as well as damages, including, without limitation
consequential damages, and an equitable accounting of all earnings, profits and
benefits arising from such violation, in each case without the need to post any
security or bond. Nothing herein contained shall be construed as
prohibiting the Company from pursuing, in addition, any other remedies available
to the Company for such breach or threatened breach. A waiver by the
Company of any breach of any provision hereof shall not operate or be construed
as a waiver of a breach of any other provision of this Agreement or of any
subsequent breach by the Executive.
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13. Determinations
by the Company. All determinations and
calculations with respect to this Agreement shall be made by the Board or any
committee thereof to which the Board has delegated such authority, in good faith
in accordance with applicable law, the certificate of incorporation and by-laws
of the Company, in its sole discretion, and shall be final, conclusive and
binding on all persons, including the Executive and the personal representative
of his estate.
14. Successors
and Assigns. This Agreement shall inure
to the benefit of and shall be binding upon (i) the Company, its successors and
assigns, and any company with which the Company may merge or consolidate or to
which the Company may sell substantially all of its assets; and (ii) Executive
and his executors, administrators, heirs and legal
representatives. Since the Executive’s services are personal and
unique in nature, the Executive may not transfer, sell or otherwise assign his
rights, obligations or benefits under this Agreement.
15. Notices. Any notice required or
permitted under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, or sent properly addressed in a
sealed envelope postage prepaid by certified or registered mail, or delivered by
a reputable overnight delivery service. Unless otherwise changed by
notice, notice shall be properly addressed to the Executive if addressed to the
address of record then on file with the Company; and properly addressed to the
Company if addressed to:
Laureate Resources & Steel Industries
Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx, Corporate
Secretary
Tel (000) 000-0000
With a copy to:
Wuersch & Xxxxxx
LLP
000 Xxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopier: 212-509-9559
Attention: Xxxxxx X. Xxxxxx,
Esq.
16. Severability. It is expressly understood
and agreed that although the Company and the Executive consider the restrictions
contained in this Agreement to be reasonable and necessary for the purpose of
preserving the goodwill, proprietary rights and going concern value of the
Company, if a final determination is made by arbitration or any court having
jurisdiction that any provision contained in this Agreement is invalid, the
provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such other extent
as such arbitral body or court may determine or indicate to be
reasonable. Alternatively, if the arbitrable body or court finds that
any provision or restriction contained in this Agreement or any remedy provided
herein is unenforceable, and such restriction or remedy cannot be amended so as
to make it enforceable, such finding shall not affect the enforceability of any
of the other restrictions contained therein or the availability of any other
remedy. The provisions of this Agreement shall in no respect limit or
otherwise affect the Executive's obligations under any other agreements with the
Company.
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17. Counterparts. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same
instrument.
18. Effects of
Termination. Notwithstanding anything to
the contrary contained herein, if this Agreement is terminated pursuant to
Section 7 or Section 8 or expires by its terms, the provisions of Sections 4-6
and 10-20 of this Agreement shall survive and continue in full force and
effect.
19. Miscellaneous. This Agreement constitutes
the entire agreement, and supersedes all prior agreements, of the parties hereto
relating to the subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained
herein. This Agreement cannot be modified, altered or amended except
by a writing signed by both parties. No waiver by either party of any
provision or condition of this Agreement at any time shall be deemed a waiver of
such provision or condition at any prior or subsequent time or of any other
provision or condition at the same or any prior or subsequent
time.
20. Arbitration. All disputes and
controversies arising out of or relating to this Agreement shall be finally
settled and binding under the International Arbitration Rules of the American
Arbitration Association (“AAA”) by a sole arbitrator. The
place of arbitration shall be New York, New York. Any award, verdict or
settlement issued under such arbitration may be entered by any party for order
of enforcement by any court of competent jurisdiction. The arbitrator
shall have no power to take interim measures he or she deems necessary,
including injunctive relief and measures for the protection or conservation of
property and disposition of perishable goods.
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above
written.
| EXECUTIVE | |||
|
|
/s/ Xxxxxx XxXxxxxx | ||
| Name: Xxxxxx XxXxxxxx | |||
| THE COMPANY | |||
|
|
By:
|
/s/ Xxxxxxx Xxxx | |
| Name: Xxxxxxx Xxxx | |||
| Title: Corporate Secretary | |||
9
Employment Agreement
Exhibit
A
Executive Benefits
Annual Social Package: USD$100,000.00
per annum, payable monthly.
Company car allowance: USD$1,500.00 per
month.
Stock Options:
Executive shall be granted an option
(the “Option”) to purchase five hundred thousand (500,000) shares of common
stock of the Company at a purchase price of one U.S. Dollar (US$1.00) per share
(the “Reference Price”). The Option shall vest upon the three-month
anniversary of the date of commencement of the services by the Executive to the
Company. The Option shall be exercisable for the purchase of shares of
Company common stock at the Reference Price at any time after six (6) months of
service until the second anniversary of the Executive’s commencement of
service. The Option shall be subject to such other customary terms and
conditions as contained in the Company’s general form of option grant
agreement. For purposes of clarity, the Option is not intended to be
construed as deferred compensation under Rule 409A of the U.S. Internal Revenue
Code of 1986, as amended, and the rules and regulations promulgated thereunder,
and the Company shall have authority to modify the Option if necessary such the
Option will not be construed as deferred
compensation.
Incentive for successful merger and
acquisitions transactions benchmarks to be determined at the discretion of the
Board and set forth as a supplement to this Agreement.
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