Exhibit 10.8
AGREEMENT
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AGREEMENT made as of the date set forth on the signature page hereof
between XXXXXXXXX ENERGY CORPORATION, a Delaware corporation (the "Company"),
and the undersigned person named on the signature page hereof (the
"Undersigned").
WhEREAS, the Undersigned is an employee of the Company;
WHEREAS, the Company owes to the Undersigned accrued salary in the amount
set forth on the signature page hereof (the "Accrued Salary");
WHEREAS, the Undersigned and the Company desire to satisfy the Accrued
Salary by issuing the undersigned the number of shares of common stock, $.OO1
par value per share, of the Company (the "Shares") set forth on the signature
page hereof upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual representations and
calculated covenants hereinafter set forth, the parties hereto do hereby agree
as follows:
1. Satisfaction of Accrued Salary. The Undersigned hereby irrevocably
agrees that effective as of the date hereof, the Undersigned shall be issued,
and the Undersigned shall accept, the number of Shares set forth on the
signature page hereof, in full and final payment and satisfaction of the Accrued
Salary.
2. Issuance of Shares. Certificates representing the Shares shall be issued
to the Undersigned as soon as is practicably possible.
3. Representations by the Undersigned.
3.1 The Undersigned understands and agrees that the Company is relying
and may rely upon the following representations, warranties and acknowledgments
made by the Undersigned.
(i) Acquisition for Account. The Undersigned represents and warrants
that the Shares acquired by it are being acquired for its own
account, for investment purposes and not with a view to any
distribution within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). The Undersigned will not sell,
assign, mortgage, pledge, hypothecate, transfer or otherwise
dispose of any of the Shares unless (A) a registration statement
under the Securities Act with respect thereto is in effect and
the prospectus included therein meets the requirements of Section
10 of the Securities Act, or (B) the Company has received a
written opinion of its counsel that, after an investigation of
the relevant facts, such counsel is of the opinion that such
proposed sale, assignment, mortgage, pledge, hypothecation,
transfer or disposition does not require registration under the
Securities Act or any state securities law.
(ii) No Registration. The Undersigned understands that the issuance of
the Shares is not being registered under the Securities Act and
the Shares must be held indefinitely unless they are subsequently
registered thereunder or an exemption from such registration is
available.
(iii) Investor Status. The Undersigned represents and warrants further
that (A) it is either an "accredited Undersigned," as such term
is defined in Rule 501(a) promulgated under the Securities Act,
or, either alone or with its purchaser representative, has such
knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of the
acquisition of the Shares; (B) it is able to bear the economic
risks of an investment in the Shares, including, without
limitation, the risk of the loss of part or all of its investment
and the inability to sell or transfer the Shares for an
indefinite period of time; (C) it has adequate financial means of
providing for current needs and contingencies and has no need for
liquidity in its investment in the Shares; and (D) it does not
have an overall commitment to investments which are not readily
marketable that is excessive in proportion to net worth and an
investment in the Shares will not cause such overall commitment
to become excessive.
(iv) Review of Material. The Undersigned has reviewed the Company's
reports, proxy and information statements and registration
statements filed via the Xxxxx System with the Securities and
Exchange Commission since January 1, 2003, and has been afforded
the opportunity to obtain such information regarding the Company
as it has reasonably requested to evaluate the merits and risks
of the Undersigned's investment in the Shares. No oral or written
representations have been made or oral information furnished to
the Undersigned or his advisers in connection with the investment
in the Shares.
(v) Legend. The Undersigned acknowledges that the a restrictive
legend will be placed on any instrument, certificate or other
document evidencing the Shares in, or substantially in, the
following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933. These securities
have been acquired for investment and not for distribution or
resale. They may not be sold, assigned, mortgaged, pledged,
hypothecated or otherwise transferred or disposed of without an
effective registration statement for such securities under the
Securities Act of 1933 or an opinion of counsel to the Company
that registration is not required under such Act."
(vi) The Undersigned hereby acknowledges and represents that the
issuance of the Shares fully satisfies the payment of all the
Accrued Salary owed by the Company to the Undersigned in all
respects; the market value of the Shares
may be materially less than the Accrued Salary; and the Shares
are good, valuable and sufficient consideration for the full
satisfaction of the Accrued Salary.
4. Representations by the Company.
4.1 The Company represents and warrants to the Undersigned as follows:
(a) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Delaware and has the corporate power to
conduct its business.
(b) The execution, delivery and performance of this Agreement by the
Company has been duly approved by the Board of Directors of the Company.
(c) The Shares have been duly and validly authorized and, when issued
in accordance with the terms hereof, will be duly authorized, validly issued,
fully paid and nonassessable shares of common stock of the Company.
5. General Release. The Undersigned releases and discharges the Company,
the Company's heirs, executors, administrators, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the Company, the Undersigned, the Undersigned's heirs, executors,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may, have for, upon, or by reason of any matter, cause or thing related
whatsoever from the beginning of the world to the day of the date of this
release.
This release shall not release or discharge any of the Company's duties,
obligations or agreements under this Agreement.
6. Miscellaneous.
6.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and hand delivered or sent by first class mail, postage
prepaid, or overnight mail, addressed to the Company, 0000 Xxxxx XxxxxXxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxx, Chief
Executive Officer, and to the Undersigned at the address set forth on the
signature page hereof. Notices shall be deemed to have been given on the date of
mailing, except notices of change of address, which shall be deemed to have been
given when received.
6.2 This Agreement shall not be changed, modified or amended except by
a writing signed by the party to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
6.3 This Agreement shall be binding upon and inure to the benefit of
the parties
hereto and to their respective permitted successors and assigns. This Agreement
sets forth the entire agreement and understanding between the parties as to the
subject matter thereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature between them.
6.4 This Agreement and its validity, construction and performance shall
be governed in all respects by the laws of the State of Delaware, applicable to
agreements to be performed wholly within the State of Delaware.
6.5 This Agreement may be executed in counterparts.
6.6 Facsimile signatures hereon are deemed to be original signatures.
Remainder of page intentionally left blank.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Dated: 10/30/03
/s/ Xxxxxxx "Gene" Xxxxxx
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$ 166,200 Xxxxxxx "Gene" Xxxxxx
(Accrued Salary) (Name)
166,200 Shares
(Number of Shares to be issued) 0000 Xxxxxxxxxxx Xx.,
Xxxxxxxx Xxxxxxx, XX 00000
(Address)
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(Social Security Number)
Accepted:
XXXXXXXXX ENERGY CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Chief Executive Officer
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