EMPLOYMENT AGREEMENT
Exhibit 10.2
KNIGHT ENERGY CORP.)"/>
This Agreement, dated as of October 1, 2006 is by and between Knight Energy Corp., a
Delaware corporation (“Employer”), and Xxxxx X. Xxxx (“Employee”)
WHEREAS, Employee desires to enter into the employment of Employer, and Employer desires to
employ Employee provided that, in so doing, it can protect its confidential information, business,
accounts, patronage and good will;
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants set
forth below, the parties hereto agree as follows:
1. Compensation and Employment. Employee agrees to enter into the employment of
Employer, and Employer agrees to employ Employee, on the terms and conditions set forth below.
Employer shall pay to Employee, and Employee agrees to accept as full consideration for his
employment:
(a) $150,000 per annum during the term of this Agreement, payable by-weekly and in accordance with Employer’s standard payroll practices, subject to all
appropriate withholdings
(b) Employee shall be entitled to four (4) weeks paid vacation per year and
such other fringe benefits as the Board of Directors of Employer may, in its sole discretion,
determine. Employee may at his or her sole option carry 50% of all unused vacation into the
next year or chose to be paid for the time at his or her normal rate of pay. If payment is
chosen, it will occur within January of the year following the year in which it was earned.
Employee agrees during the term of his employment to devote such of his business time as
may reasonably be required and his reasonable best efforts, skills and abilities to the
performance of his duties as stated in this Agreement and to the furtherance of the business
of Employer and its affiliates.
(c) Employee shall be entitled to additional compensation of $3,000.00 per
month as (1) car and local travel expenses re-imbursement including insurance, maintenance
and fuel expenses and (2) miscellaneous expenses. This shall be payable by-weekly and in
accordance with Employer’s standard payroll practices, subject to all appropriate
withholdings.
(d) Employee shall be entitled to re-imbursement of up to $750.00 per month
for health insurance expense until such time as Employer makes a company sponsored health
insurance plan available to Employee.
(e) Employee shall be entitled to reimbursement for accounting certification
dues and fees, mobile and office telephone fees and office related expenses.
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(f) Employee’s job title initially shall be Chief Financial Officer (CFO).
Employee agrees that this position is at all times subject to oversight by the Chief
Executive Officer or the Board of Directors of Employer. Employment includes all tasks and assignments
reasonable to such position and performing such other services for Employer and its
affiliates as may be reasonably directed from time to time by the Chief Executive Officer or the Board
of Directors. Employee’s job title may be changed to such other title as may be determined
from time to time by the Chief Executive Officer or Board of Directors of Employer.
(g) Employee shall also use his reasonable best efforts to preserve the
business of Employer and its affiliates.
(h) Employee acknowledges receipt of Employer’s Employment handbook as of the date of this
Agreement and agrees to act in conformity with the lawful terms and provisions set forth therein
at all times during the term of his employment by Employer provided that all amendments or
supplements thereto are delivered to Employee in writing and that he shall only be subject to
any such amendment or supplement after his receipt thereof.
2. Term. The employment of Employee shall begin on the date of this Agreement
and shall continue for five (5) years or until the earliest of (a) the date Employer
terminates it for just cause, (b) the death of Employee, or (c) upon termination by the Employee through written
notice given at least 14 days’ prior written notice. For purposes of this Section 2, “just
cause”for termination shall be: (a) the failure or inability for any reason of Employee to devote
such time as agreed to by the Employee and the Employer pursuant hereto to Employer’s and its
affiliates’ business, (b) the failure of Employee to perform his duties under this Agreement,
(c)the commission by Employee of any act involving moral turpitude or the commission by
Employee of any act or the suffering by Employee of any occurrence or state of facts, which
renders Employee incapable of performing his duties under this Agreement, or adversely affects
Employer’s business reputation, (d) any breach by Employee of any of the material terms of, or
the failure to perform any material covenant contained in, this Agreement, (e) the violation
by Employee of instructions or policies established by Employer communicated to Employee with
respect to the operation of its business and affairs or Employee’s failure to carry out the
reasonable instructions of the Board of Directors and Chairman of the Board of Employer, (f)
the commission by Employee of any action or the existence of any state of facts which would
legally justify an employer in terminating a contract of employment
or (g) provision of 14
days’ prior written notice to Employee.
(a) Notwithstanding anything to the contrary in this Agreement, the provisions of Sections
3, 4 and 5 shall survive any termination of Employee’s
employment under this Agreement. In the
event of the termination of Employee’s employment prior to the completion of the term of
employment specified above, Employee shall be entitled not only to the compensation and
commissions earned and benefits accrued by him as of the date of termination, but an additional
one time net termination fee of $1,000,000 after appropriate withholdings tax to employee. Said
fee is compensation for Employee’s honoring and abiding of Sections 3, 4, and 5 herein which
would directly impact Employee’s future earnings.
3. Nondisclosure Agreement. Employee, during the term of employment under this
Agreement, shall have access to and become familiar with various trade secrets and proprietary
and confidential information consisting of, but not limited to, processes, computer programs,
compilations of information, records, sales procedures, customer requirements,
pricing techniques, customer lists, methods of doing business and other confidential
information (collectively referred to as the “Trade Secrets”), which are owned by Employer and its
affiliates
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and regularly used in the operation of its business, but in connection with which Employer
takes precautions to prevent dissemination to persons other than certain directors, officers and
employees. Employee acknowledges and agrees that the Trade Secrets (a) are secret and not known in
the industry; (b) are entrusted to Employee after being informed of their confidential and secret
status by Employer and because of the fiduciary position occupied by Employee with Employer; (c)
have been developed by Employer for and on behalf of Employer through substantial expenditures of
time, effort and money and are used in its business; (d) give Employer an advantage over
competitors who do not know or use the Trade Secrets; (e) are of such value and nature as to make
it reasonable and necessary to protect and preserve the confidentiality and secrecy of the Trade
Secrets; and (f) the Trade Secrets are valuable, special and unique assets of Employer, the
disclosure of which could cause substantial injury and loss of profits and goodwill to Employer.
Employee shall not use in any way or disclose any of the Trade Secrets, directly or indirectly,
either during the term of this Agreement or at any time thereafter, except as required in the
course of his employment under this Agreement. All files, records, documents, information, data and
similar items relating to the business of Employer, whether prepared by Employee or otherwise
coming into his possession, shall remain the exclusive property of Employer and shall not be
removed from the premises of Employer under any circumstances without the prior written consent of
the Board of Directors of Employer (except in the ordinary course of business during Employee’s
period of active employment under this Agreement), and in any event shall be promptly delivered to
Employer upon termination of this Agreement. Employee agrees that upon his receipt of any subpoena,
process or other request to produce or divulge, directly or indirectly, any Trade Secrets to any
entity, agency, tribunal or person, Employee shall timely notify and promptly hand deliver or
deliver through a reputable overnight delivery service a copy of the subpoena, process or other
request to the President of Employer.
4. Non-competition Agreement. Employee acknowledges and agrees that as a
result of the information he has acquired regarding the Employer prior to the date hereof, as well
as the further training he will receive, the experience he will gain while employed and the
information he will acquire regarding the Trade Secrets will enable him to injure Employer if he
should compete with Employer or its affiliates in a business that is competitive with the business
conducted or to be conducted by Employer or its affiliates. For these reasons, Employee hereby
agrees as follows:
(a) Without the prior written consent of Employer, Employee shall not, during
the period of employment with Employer, directly or indirectly, either as an individual, a
partner or a joint venturer, or in any other capacity, (i) invest (other than investments in
publicly-owned companies which constitute not more than 20% of the voting securities of any
such company) or engage in any business that is competitive with that of Employer or its
affiliates, (ii) accept employment with or render services to a competitor of Employer or any of
its affiliates as a director, officer, agent, employee or consultant,
(iii) contact (other than for
social purposes), solicit or attempt to solicit or accept business from any (A) customers of
Employer or its affiliates or (B) person or entity whose business Employer or its affiliates is
soliciting, (iv) contact (other than for social purposes), solicit or attempt to solicit or accept or
direct business that is competitive with such business being conducted by Employer or any of
its affiliates during Employee’s employment under this Agreement from any of the customers
of Employer or any of its affiliates, or (v) take any action inconsistent with the fiduciary
relationship of an employee to his employer. As used herein, “affiliates” shall mean persons
or entities that directly or indirectly, through one or more intermediaries, control or are
controlled by, or are under common control with, Employer.
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(b) Upon any termination or cessation of his employment with Employer for
any reason whatsoever, and for a period of two years thereafter, Employee shall not, without the
prior written consent of Employer, directly or indirectly, either as an individual, a partner or a
joint venturer, or in any other capacity, within 100 miles of any location of Employer or its
affiliates, engage in any (i) accept employment with or render services consisting to a competitor
of Employer or its affiliates as a director, officer, agent, employee or consultant, or (ii)
contact (other than for social purposes), solicit or attempt to solicit or accept business (A) from
any of the customers of Employer or its affiliates as of the date of this Agreement or at the time
of Employee’s termination or cessation of employment, or (B) from any person or entity whose
business Employer or its affiliates were soliciting as of such time.
5. Non-employment
Agreement. For a period of two years after the termination or
cessation of his employment with Employer for any reason whatsoever, Employee shall not, on
his own behalf or on behalf of any other person, partnership, association, corporation or
other entity, hire or solicit or in any manner attempt to influence or induce any employee of
Employer or its affiliates to leave the employment of Employer or its affiliates, nor shall he use or
disclose to any person, partnership, association, corporation or other entity any information obtained
while an employee of Employer concerning the names and addresses of such employees.
6. Severability. The parties hereto intend all provisions of Sections 4 and 5
hereof to be enforced to the fullest extent permitted by law. Accordingly, should a court of
competent jurisdiction determine that the scope of any provision of Sections 4 and 5 hereof is too
broad to be enforced as written; the parties intend that the court reform the provision to such
narrower scope as it determines to be reasonable and enforceable. In addition, however, Employee
agrees that the non-competition agreements, nondisclosure agreements and non-employment
agreements set forth above each constitute separate agreements independently supported by
good and adequate consideration and shall be severable from the other provisions of, and
shall survive, this Agreement. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision never comprised a part of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance here from. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part
of this Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
7. Inventions. Employee shall promptly disclose, grant and assign to Employer for
its sole use and benefit any and all inventions, improvements, technical
information and suggestions relating in any way to the products of Employer or any of its affiliates or
capable of beneficial use by Employer or any of its affiliates, which Employee has while providing
services to Employer conceived, developed or acquired, or may conceive, develop or acquire during the
term hereof (whether or not during usual working hours), together with all patent
applications,letters patent, copyrights and reissues thereof that may at any time be granted for or upon
any such invention, improvement or technical information. In connection therewith, Employee
shall promptly at all times during and after the term hereof:
(a) Execute and deliver such applications, assignments, descriptions and other instruments
as may be reasonably necessary or proper in the opinion of Employer to vest title to such
inventions, improvements, technical information, patent applications and
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patents or reissues thereof in Employer and to enable it to obtain and maintain the entire
right and title thereto throughout the world at Employer’s cost and expense.
(b) Render to Employer, at its expense at Employee’s reasonable rate, all such assistance
as it may require in the prosecution of applications for said patents or reissues thereof, in
the prosecution or defense of interferences which may be declared involving any said application
or patents, and in any litigation in which Employer may be involved relating to any such
patents, inventions, improvements or technical information.
8. Remedies. Employee recognizes and acknowledges that the ascertainment of
damages in the event of his breach of any provision of this Agreement would be difficult, and
Employee agrees that Employer, in addition to all other remedies it may have, shall have the right
to injunctive relief if there is such a breach.
9.
Acknowledgements. Employee acknowledges and recognizes that
the enforcement of any of the non-competition provisions in this Agreement by Employer will not
interfere with Employee’s ability to pursue a proper livelihood. Employee further represents that
he is capable of pursuing a career in other industries to earn a proper livelihood. Employee
recognizes and agrees that the enforcement of this Agreement is necessary to ensure the
preservation and continuity of the business and good will of Employer. Employee agrees that
due to the nature of Employer’s business, the non-competition restrictions set forth in this
Agreement are reasonable as to time and geographic area. At any time during Employee’s
employment with Employer and for a period of two years thereafter, Employer may request
Employee to supply such information as is reasonably necessary to ascertain whether or not
Employee has complied with, or has violated, the restrictive covenants of Sections 3, 4, and 5
hereof. Any such request for information will be sent to Employee by certified mail, return
receipt requested, addressed to Employee’s last known address. Employee shall furnish the
requested information to Employer within 10 days following the receipt of such request unless
the disclosure of such information causes Employee to breach a binding nondisclosure
agreement.
10. Notices. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other shall be deemed
to have been duly given if given in writing and personally delivered or sent by mail,
registered or certified, postage prepaid with return receipt requested, as follows:
If to Employee:
|
Xxxxx X. Xxxx | |
| 000 Xxxx Xxx Xxxx | ||
| Xxxxxxx, XX 00000 | ||
If to Employer:
|
Knight Energy Corp. | |
| 000 Xxxx Xxx Xxxx | ||
| Xxxxxxx, XX 00000 |
Any party may change its address for notice by written notice given to the other parties.
Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of three days after mailing.
11. Entire Agreement. This Agreement supersedes any and all other agreements, either
oral or written, between the parties hereto with respect to the subject matter hereof and contains
all of the covenants and agreements between the parties with respect thereto.
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12. Modification. No change or modification of this Agreement shall be valid
or binding upon the parties hereto, nor shall any waiver of any term or condition in the future
be so binding, unless such change or modification or waiver shall be in writing and signed by the
parties hereto.
parties hereto.
13. Governing Law and Venue. The parties acknowledge and agree that this
Agreement and the obligations and undertakings of the parties hereunder will be performable
in Dallas, Dallas County, Texas. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas. If any action is brought to
enforce or interpret this Agreement, venue for such action shall be in Dallas County, Texas.
14. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original, but all of which shall constitute one
document.
15. Costs. If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to which he or it may be
entitled.
16. Estate. If Employee dies prior to the expiration of the term of employment, any
monies that may be due him from Employer under this Agreement as of the date of his death
shall be paid to his estate or such other beneficiaries as are designated by Employee in
writing.
17. Assignment. Employer shall have the right to assign this Agreement to its
successors or assigns. The terms “successors” and “assigns” shall include any person,
corporation, partnership or other entity that buys all or substantially all of Employer’s
assets or all of its stock, or with which Employer merges or consolidates. The rights, duties and
benefits to Employee hereunder are personal to him, and no such right or benefit may be assigned by
him.
18. Binding Effect. This Agreement shall be binding upon the parties
hereto, together with their respective executors, administrators, successors, personal
representatives, heirs and assigns.
19. Waiver of Breach. The waiver by Employer of a breach of any provision of this
Agreement by Employee shall not operate or be construed as a waiver of any subsequent
breach by Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| KNIGHT ENERGY CORP. | ||||||
| By : | /s/ Xxxxxxx X. Xxxxx | |||||
| Xxxxxxx X. Xxxxx | ||||||
| Its Chief Executive Officer | ||||||
AND
|
/s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
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