EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, dated as of February 14, 2008 (this “Agreement”), by and between
Sonterra Resources, Inc. (f/k/a River Capital Group, Inc.), a Delaware
corporation (the “Company”), and Xxxxxxx X. Xxxxxxx (the “Employee”).
RECITAL
The
Company desires to engage Employee’s services, and Employee desires to perform
such services, upon the terms, and subject to the conditions, set forth
herein.
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
compensation and benefits received by the Employee from the Company and the
access given the Employee to the Company’s confidential information and the
Company’s customers, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and with the Company’s
recognition of the knowledge and expertise provided by the Employee being
acknowledged, the Company and the Employee hereby agree as follows:
| 1. |
Term
of Employment.
|
Subject
to the termination provisions set forth herein, the initial term of this
Agreement and the Employee’s employment hereunder will be for a term of two (2)
years from the date of this Agreement (the “Initial Term”). This Agreement shall
thereafter be automatically extended for additional successive one (1) year
term
unless either party gives written notice of termination to the other party
not
less than ninety (90) days prior to the end of any term (in which event this
Agreement shall terminate effective as of the close of the then existing
Employment Term). The Initial Term of this Agreement and any additional terms
as
extended in accordance with this Section 1 are collectively referred to in
this
Agreement as the “Employment Term.”
| 2. |
Position
and Duties.
|
(a) During
the Employment Term, the Employee shall serve as Chief Executive Officer and
President. The Employee shall have such duties, functions, responsibilities,
and
authority as are from time to time delegated to the Employee by the Board of
Directors of the Company (the “Board”) or are otherwise consistent with the
duties, responsibilities and authority of the executive office held by the
Employee; provided that with respect to any specifically delegated duties,
functions, responsibilities and authority, such duties, functions,
responsibilities, and authority are reasonable and customary for a person
serving in the office/position of a public company comparable to the Company.
The Chief Executive Officer and President shall report and be accountable to
the
Board of Directors of the Company.
(b) During
the Employment Term, the Employee will: (i) devote substantially all of his
time
during normal business hours to the business of the Company, fulfill his duties
and obligations under this Agreement and use his best efforts, judgment and
energy to perform, improve and advance the business and interests of the Company
in a manner consistent with the duties of his position; provided however that
Employee is not prevented from serving as a member of the board of directors
of
a corporation if the Company determines that such membership is not adverse
to
its interests; (ii) not engage in any business activities that are directly
or
indirectly competitive with any business conducted by the Company or any of
its
subsidiaries or affiliates; (iii) observe and carry out such reasonable rules,
regulations, policies, directions and restrictions as may be established from
time to time by the Board, including but not limited to, the standard policies
and procedures of the Company as in effect from time to time; and (iv) do such
traveling as may be required in connection with the performance of such duties
and responsibilities.
(c) The
Employee acknowledges that this Agreement contains a non-disclosure of
proprietary information and non-competition provisions, and the Employee agrees
to comply with these provisions. The Employee understands that entering into
and
complying with these provisions is a condition to the Employee’s continued
employment with the Company and that failure to comply with the terms of these
provisions may result in immediate termination from employment.
(d) In
connection with the Employee’s employment by the Company under this Agreement,
the Employee shall be based at the principal executive offices of the Company
in
San Antonio, Texas, except for such reasonable travel as the performance of
the
Employee’s duties in the business of the Company may require. Notwithstanding
the foregoing, the Board may in its reasonable discretion determine to relocate
the principal offices of the Company for any necessary business purpose and
doing so shall not be a breach of this Agreement.
| 3. |
Hours
of Work.
|
The
Employee’s normal days and hours of work shall coincide with the Company’s
regular business hours. The nature of the Employee’s employment with the Company
requires flexibility in the days and hours that the Employee must work, and
may
necessitate that the Employee work on other or additional days and hours. The
Company reserves the right to require the Employee, and the Employee agrees,
to
work during other or further days or hours than the Company’s normal business
hours.
| 4. |
Compensation
and Benefits.
|
(a) Base
Salary.
During
the Employment Term, the Company shall pay to the Employee for his services
hereunder a base salary (“Base Salary”) at the rate of $200,000.00. per year,
payable in installments in accordance with the general payroll practices of
the
Company, or as otherwise mutually agreed upon, but no less often than twice
monthly. The Employee’s Base Salary may be subject to such adjustments as may be
determined from time to time by the Board in its sole discretion; provided,
however,
in no
event shall the Employee’s salary be reduced unless such reduction is part of a
salary reduction applicable to all employees of the Company based upon the
Company’s financial condition.
2
(b) Stock
Options.
The
Employee shall be eligible to receive awards of options (“Options”) to purchase
common stock of the Company pursuant to and in accordance with the terms and
conditions set forth in any option plan adopted by the Board in its sole
discretion (the “Option Plan”). The decision whether or not to award stock
options under the Option Plan, if adopted, to the Employee, and the amount
of
any such award, shall be within the sole discretion of the Company. The
definitive terms and conditions of the Options shall be set forth in a separate
option agreement to be entered into by the Employee and the Company (the “Option
Agreement”). To the extent there is any inconsistency or conflict between the
terms of the Option Agreement and the terms of the Option Plan, the terms of
the
Option Plan shall govern and control. Upon the execution of this Agreement,
the
Company shall grant to the Employee options under the Company’s Option Plan to
acquire shares of the Company’s Common Stock having an exercise price, vesting
and term, all as described on Exhibit
A
attached
hereto.
(c) Employee
Benefits.
During
the Employment Term, the Employee shall be entitled to participate in all
employee benefit plans (including executive bonus plans, cash bonus awards
and
long-term incentive plans), programs and arrangements that are generally made
available by the Company to its senior executives. In addition to the rights
of
the Employee set forth in the preceding sentence, the Company shall provide
health, dental, disability and life insurance for the Employee under such group
health, dental, disability and life insurance plans maintained by the Company
for its full-time, salaried employees. Nothing herein shall require the Company
to adopt or maintain any type of benefit plan or policy; provided,
however,
the
Company shall provide health insurance for the Employee and his family at all
times during the Employment Term. The Employee acknowledges that any such plan
or policy will be subject to deductibles and co-pay requirements
(d) Expenses. During
the Employment Term, the Employee shall be entitled to receive reimbursement
upon a timely basis (according to the then-current practices of the Company)
for
all reasonable and necessary out-of-pocket expenses incurred by the Employee
in
connection with performing his duties and responsibilities hereunder, which
are
reimbursable in accordance with the Company’s policies from time to time in
effect, upon the presentation by the Employee of an itemized monthly accounting
of such expenditures, including receipts where required by Company policy or
federal income tax regulations.
| 5. |
Vacation.
|
The
Employee shall be entitled to accrue, pro
rata,
fifteen
(15) vacation days for each annual period during the Employment Term. Vacation
days shall be used during the applicable annual period in which they are
accrued. The Employee shall be entitled to carry over up to five (5) accrued
vacation days from one annual period to the next and all the rest of the accrued
vacation time that the Employee does not use during the applicable annual period
in which they were accrued will be forfeited unless the Company shall have
requested the Employee, in writing, to modify or postpone a previously planned
vacation.
3
| 6. |
Termination
of Employment.
|
(a) For
Cause.
The
Company may terminate the Employee’s employment at any time hereunder for Cause
(as defined below) (a “For Cause Termination”) upon written notice to the
Employee. For purposes of this Agreement, “Cause” shall mean any of the
following:
(i) dishonesty
by the Employee in the performance of his duties and obligations to the
Company;
(ii) the
Employee’s conviction of, or entering a plea of guilty, nolo contendere or
comparable plea to, any felony or to any misdemeanor involving moral
turpitude;
(iii) any
willful act or omission by the Employee that is, or is likely to be, materially
injurious to the financial condition or business reputation of the Company,
as
determined by the Board of the Company or an independent committee of the Board
of the Company;
(iv) a
breach
by the Employee of any material covenant contained in this Agreement which
is to
be observed or performed by the Employee, or any of the written policies of
the
Company the result of which is, or is likely to be, materially injurious to
the
Company, as determined by the Board of the Company or an independent committee
of the Board of the Company;
(v) any
appropriation by the Employee of a corporate opportunity or a material corporate
asset;
(vi) the
Company being unable to register its securities with the United States
Securities and Exchange Commission or listed on a stock exchange due to the
failure of the Employee to make a disclosure with respect to the Employee’s
background; or
(vii) the
failure or refusal by the Employee to comply with a written lawful directive
by
the Board or any committee of the Board that is not inconsistent with the terms
hereof.
(b)
Without
Cause.
The
Company may in its sole and absolute discretion terminate Employee’s employment
hereunder at any time without Cause for any or no reason. For purposes of this
Agreement, a “Without Cause Termination” shall mean a termination by the Company
of Employee’s employment hereunder other than pursuant to a For Cause
Termination.
(c) Death.
The
Employee’s employment hereunder shall terminate automatically upon his
death.
(d) Disability.
If the
Disability (as defined below) of the Employee occurs during the Employment
Term,
the Company may notify the Employee of the Company’s intention to terminate the
Employee’s employment hereunder for Disability. In such event, the Employee’s
employment hereunder shall terminate effective on the 30th day following the
date such notice of termination is received by the Employee (the “Disability
Effective Date”). For purposes of this Agreement, the “Disability” of the
Employee shall be deemed to have occurred at such time as the Board determines,
in its reasonable discretion, (i) that despite any reasonable accommodation
required by law, the Employee is unable to perform the essential functions
of
his position hereunder as a result of his physical or mental incapacity and
(ii)
that such inability has existed or is likely to exist for a period of ninety
(90) days or more in any twelve (12) month period or for sixty (60) consecutive
days.
4
(e)
Termination
By The Employee.
For Good Reason.
The
Employee may terminate his employment hereunder if (i) there occurs a material
breach by the Company of any material provision of this Agreement by the
Company, which breach is not cured within thirty (30) days after notice by
the
Employee to the Company of such breach; (ii) the Board, in its reasonable
discretion, determines to relocate the principal offices of the Company out
of
San Antonio, Texas, for any necessary business purpose; or (iii) the Employee’s
Base Salary is reduced pursuant to the terms of Section 4(a) hereof and is
not
fully restored to the original amount set forth in Section 4(a) hereof within
ninety (90) days from the date of such reduction.
(f) Notice
of Termination.
Any
termination of the Employee’s employment hereunder by the Company or by the
Employee (other than a termination pursuant to Section 6(c)) shall be
communicated by a Notice of Termination (as defined below) to the other party
hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) in the case of a termination for Disability or
a For
Cause Termination or a Good Reason Termination, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee’s employment under the provision so indicated, and (iii) specifies the
Employment Termination Date (as defined in Section 6(g) below). The failure
by
the Company or Employee, as applicable, to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of
Disability, Cause or Good Reason shall not waive any right of the Company or
Employee hereunder or preclude the Company or Employee from asserting such
fact
or circumstance in enforcing the Company’s or Employee’s rights
hereunder.
(g) Employment
Termination Date.
For
purposes of this Agreement, “Employment Termination Date” shall mean the
effective date of termination of the Employee’s employment hereunder, which date
shall be (i) if the Employee’s employment is terminated by his death, the date
of his death, (ii) if the Employee’s employment is terminated because of his
Disability, the Disability Effective Date, (iii) if the Employee’s employment is
terminated by the Company pursuant to a For Cause Termination, the date
specified in the Notice of Termination, (iv) if the Employee’s employment is
terminated by the Company pursuant to a Without Cause Termination, the date
specified in the Notice of Termination and (iv) if the Employee’s employment is
terminated by the Employee pursuant to a Good Reason Termination, the date
on
which the Notice of Termination is given.
5
(h) Resignation.
In the
event of termination of the Employee’s employment hereunder for any reason
whatsoever other than the death of the Employee, the Employee agrees that if
at
such time he is a member of the Board of Directors or officer of the Company
or
a director or officer of any of the Company’s subsidiaries, he will promptly
deliver to the Company his written resignation from all such positions, such
resignation to be effective as of the Employment Termination Date.
| 7. |
Company
Obligations Upon Termination of Employment.
|
(a) Death.
If the
Employee’s employment hereunder is terminated by reason of the Employee’s death,
the Company shall pay to the Employee’s estate, in a lump sum in cash within
thirty (30) days after the Employment Termination Date, a sum equal to the
Employee’s accrued and unpaid Base Salary,
reimbursable expenses and vacation accrued but unpaid in each case through
the
Employment Termination Date, and thereafter the Company shall have no further
obligation to the Employee under the Agreement.
(b) Disability.
If the
Employee’s employment hereunder is terminated by reason of the Employee’s
Disability, the Company shall pay to the Employee, in a lump sum in cash within
thirty (30) days after the Employment Termination Date, a sum equal to
reimbursable expenses and vacation accrued but unpaid in each case through
the
Employment Termination Date and thereafter the Company shall have no further
obligation to the Employee under the Agreement, except as provided in the
immediately following sentence. In addition, the Company shall continue to
provide at its expense group medical and dental insurance, as in effect on
the
Employment Termination Date, to the Employee and to the Employee’s immediate
family for a period of six (6) months after the Employment Termination
Date.
(c) For
Cause Termination.
If the
Employee’s employment hereunder is terminated pursuant to a For Cause
Termination, the Company shall pay to the Employee, in a lump sum in cash within
thirty (30) days after the Employment Termination Date, the Employee’s accrued
and unpaid Base Salary, reimbursable expenses and vacation accrued but unpaid
in
each case through the Employment Termination Date, to the extent not theretofore
paid, and, thereafter, the Company shall have no further obligations to the
Employee under this Agreement.
(d) Without
Cause Termination and Good Reason Termination.
If the
Employee’s employment hereunder is terminated by reason of a Without Cause
Termination or a Good Reason Termination pursuant to Section 6(e)(i), the
Company shall pay to the Employee the Employee’s Base Salary for a period of six
(6) months, at the regularly scheduled payment intervals following the
Employment Termination Date, and shall pay within thirty (30) days following
the
Employment Termination Date all reimbursable expenses and vacation accrued
but
unpaid in each case through the Employment Termination Date and shall continue
to provide group medical and dental insurance at the Company’s expense, as in
effect on the Employment Termination Date, to the Employee and to the Employee’s
immediate family for such six (6) month period after the Employment Termination
Date and thereafter the Company shall have no further obligation to the Employee
under this Agreement. If the Employee’s employment hereunder is terminated by
reason of a Good Reason Termination pursuant to either Section 6(e)(ii) or
Section 6(e)(iii) hereof, the Company shall pay to the Employee, in a lump
sum
in cash within thirty (30) days after the Employment Termination Date, the
Employee’s accrued and unpaid Base Salary, reimbursable expenses and vacation
accrued but unpaid in each case through the Employment Termination Date, to
the
extent not theretofore paid, and, thereafter, the Company shall have no further
obligations to the Employee under this Agreement; provided
that the
Employee shall not be subject to Section 12 hereof after his termination
pursuant to either Section 6(e)(ii) or Section 6(e)(iii).
6
(e) Sole
Remedy.
The
receipt of payments provided for under Section 7(d) shall be the Employee’s sole
and exclusive remedy for the termination of his employment hereunder and shall
be in lieu of any claim that he might otherwise have against the Company arising
from such termination. All payments that are to be made by, and/or benefits
that
are to be provided, the Company to the Employee following the Employment
Termination Date shall be subject to the Employee complying with any covenants
hereunder to be observed or performed by the Employee following termination
of
the Employee’s employment hereunder including, without limitation, Sections 10,
11, 12 and 13 hereof.
(f) Release.
Any
severance payments due to Employee under Section 7(d) shall be contingent upon
Employee executing a full and general release of any and all claims against
the
Company, the Board of Directors and officers of the Company and any affiliates
and representatives of the Company arising out of Employee’s employment with the
Company or this Agreement in a form acceptable to the Company.
(g) No
Duty to Mitigate.
Employee’s rights and privileges under the first sentence of Section 7(d) shall
be considered severance pay in consideration of his past service and his past
service to the Company, and his entitlement thereto shall neither be governed
by
any duty to mitigate his damages by seeking further employment nor offset by
any
compensation that he may receive from future employment unless such employment
is a violation of Section 12 hereof.
8. Compliance
With Other Agreements.
The
Employee represents and warrants to the Company that the execution, delivery,
and performance by the Employee of this Agreement do not and will not conflict
with or result in a violation of any provision of, or constitute a default
under, any contract, agreement, instrument, or obligation to which the Employee
is a party or by which the Employee is bound.
9. Employee’s
Compliance With Company Policies And The Law.
The
Employee shall comply fully with all Company policies, procedures and rules,
as
determined, promulgated and modified by the Company from time to time,
including, without limitation, the Company’s policies, procedures and rules
prohibiting discrimination and harassment, and concerning email and Internet
use, and the Company’s Xxxxxxx Xxxxxxx Policy and Procedures. The Company
reserves the right to add, delete or modify any Company policy, procedure or
rule in its respective sole discretion. The Employee shall also comply fully
with all, and with all applicable U.S. federal, state and local laws,
regulations and ordinances, including, without limitation the Xxxxxxxx-Xxxxx
Act
of 2002.
7
| 10. |
Nondisclosure
of Confidential and Proprietary
Information
|
During
the Employment Term, the Employee agrees to the following:
(a) The
Employee acknowledges that during the Employment Term, the Employee will have
access to and possession of trade secret, confidential information, and
proprietary information (collectively, as defined more extensively below,
“Confidential Information”) of the Company, its parents, subsidiaries and
affiliates and their respective customers, suppliers and other third party
that
do business with them. The Employee recognizes and acknowledges that this
Confidential Information is valuable, special and unique to the Company’s
business, is owned solely by and is the exclusive property of the Company,
is to
be used only for the Company’s benefit, and that access to and knowledge thereof
are essential to the performance of the Employee’s duties to the Company. During
Employment Term and thereafter, the Employee will keep secret and will not
use
or disclose, reveal, transfer, reproduce, sell, capitalize upon or take
advantage of such Confidential Information relating to the Company, its
customers, suppliers or other third party that do business with it except at
the
request of the Company, and in addition, Employee shall exercise all reasonable
efforts and precautions to protect such disclosure, breach of confidentiality,
or other conduct or action inconsistent with the Employee’s rights; provided,
however,
that
Confidential Information may be disclosed to the extent (i) required by law
or
court order or (ii) generally available to the public other then by unauthorized
disclosure.
(b) The
term
“Confidential Information”, means information in whatever form be it written,
digital, graphic, electronically stored, orally transmitted or memorized
concerning:
(i) the
Company’s business or operations plans, strategies, portfolio, prospects or
objectives;
(ii) the
Company’s structure, products, product development, technology, distribution,
sales, services, support and marketing plans, practices, and
operations;
(iii) the
prices, costs, and details of the Company’s services;
(iv) research
and development, new products, licenses, operations or plans;
8
(v) trade
secrets, proprietary information, trade and service marks, inventions, mask
works, ideas, processes, formulas, source and object codes, data, programs,
other works of authorship, know-how, discoveries, developments, designs,
schematics, manuals, drawings, computer disks and programs, techniques, employee
suggestions, development tools, computer printouts, and improvements
(hereinafter referred to as “Inventions”);
(vi) customers
and customer lists, including present and potential customers, prospects or
targets (including without limitation, the identities of customers, names,
addresses, contact, persons and the customers’ business status or needs),
customer files and records;
(vii) information
regarding the skills, compensation and benefits of other employees of the
Company;
(viii) financial
records, unpublished financial statements, financial condition, results of
the
Company’s operations and related information about the Company;
(ix) any
other
financial, commercial, business or technical information related to any of
the
products or services made, developed or sold by the Company or its
customers.
(c) The
Employee further recognizes that the Company has received and in the future
will
receive from third parties confidential or proprietary information
(“Third Party
Information”) subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During the Employment Term and thereafter, the Employee will hold
Third Party Information in the strictest confidence and will not disclose to
anyone (other than Company personnel who need to know such information in
connection with their work for the Company) or use, except in connection with
work for the Company, Third Party Information unless expressly authorized by
the
Company in writing.
(d) The
Employee further agrees to store and maintain all Confidential Information
in a
secure place. On the termination of employment, Employee agrees to deliver
all
records, data, information, and other documents produced or acquired during
the
Employment Term, and all copies thereof, to the Company. Such material at all
times will remain the exclusive property of the Company, unless otherwise agreed
to in writing by the Company. Upon termination of the employment, the Employee
agrees to make no further use of any Confidential Information on his or her
own
behalf or on behalf of any other person or entity other than the Company.
(e)
During
the Employment Term and thereafter, the Employee will not improperly use or
disclose any confidential information or trade secrets, if any, of any former
employer or any other person to whom the Employee has an obligation of
confidentiality, and will not bring onto the premises of the Company any
unpublished documents or any property belonging to any former employer or any
other person to whom the Employee has an obligation of confidentiality unless
consented to in writing by that former employer or person.
9
| 11. |
Assignment
of Inventions and Intellectual
Property
|
(a) The
term
“Proprietary Rights” will mean all trade secret, trademark, service xxxx,
patent, copyright, mask work and other intellectual property rights throughout
the world. The term “Inventions” shall mean all trade secrets, trade and service
marks, inventions, mask works, ideas, processes, formulas, source and object
codes, data, programs, technology, writings, software programs, other works
of
authorship, know how, discoveries, developments, designs, techniques or any
claim of rights (or any related improvements or modifications to the
foregoing).
(b) In
consideration of the Employee’s employment, the Employee hereby assigns and
agrees to assign in the future (when any such Inventions or Proprietary rights
are first reduced to practice or first fixed in an tangible medium, as
applicable) to the Company all right, title and interest in and to any and
all
Inventions (and all Proprietary Rights with respect thereto) whether or not
patentable or registrable under copyright or similar statutes, made or conceived
or reduced to practice or learned by the Employee, either alone or jointly
with
others, during or at any time before or after the period of employment with
the
Company, which (i) relate to methods, apparatus, designs, products, processes
or
devices sold, leased, used or under construction or development by the Company
or any subsidiary or otherwise relate to or pertain to the actual or anticipated
business, functions, operations, research or development of the Company or
any
subsidiary, (ii) arise (wholly or partly) from the Employee’s efforts during any
time that the Employee is either physically present on the Company’s premises or
utilizing any physical or intellectual property owned or leased by the Company,
or (iii) is based on any information or knowledge gained by the Employee through
his or her employment with the Company. Inventions assigned to the Company,
or
to a third party as directed by the Company pursuant to this Section, are
hereinafter referred to as “Company Inventions.”
(c) During
the Employment Term and for eighteen (18) months thereafter, the Employee will
promptly disclose to the Company, fully and in writing, all Inventions authored,
conceived or reduced to practice by the Employee, either alone or jointly with
others. In addition, the Employee will promptly disclose to the Company all
patent applications filed by the Employee or on behalf of the Employee within
eighteen (18) months after termination of employment. At the time of each such
disclosure, the Employee will advise the Company in writing of any Inventions
that he or she believes fully qualifies for protection under the Law; and the
Employee will at that time provide to the Company in writing all evidence
necessary to substantiate that belief.
(d) The
Employee also agrees to assign all right, title and interest in and to any
particular Company Invention to a third party, as directed by the
Company.
(e) The
Employee will assist the Company in every proper way to obtain, and from time
to
time enforce the Company’s Proprietary Rights relating to Company Inventions in
any and all countries. To that end the Employee will execute, verify and deliver
such documents and perform such other acts (including appearances as a witness)
as the Company may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights and
the
assignment thereof. In addition, the Employee will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee. The
Employee’s obligation to assist the Company with respect to Proprietary Rights
relating to such Company Inventions in any and all countries will continue
beyond the termination of employment and the Company will provide compensation
at a reasonable rate after termination for the time actually spent by me at
the
Company’s request on such assistance.
10
(f) In
the
event the Company is unable for any reason, after reasonable effort, to secure
the Employee’s signature on any document needed in connection with the actions
specified in the preceding paragraph, the Employee hereby irrevocably appoints
the Company and its duly authorized officers and agents as the Employee’s agent
and attorney in fact to act for and in his or her behalf to sign, execute,
verify and file any and all documents and to do all other lawfully permitted
acts to further the purposes of the preceding paragraph with the same legal
force and effect as if executed by the Employee. The Employee hereby waives
any
quitclaims to the Company any and all claims, of any nature whatsoever, which
the Employee now or may hereafter have for infringement of any proprietary
rights assigned to the Company.
(g) Notwithstanding
the foregoing, the Employee shall not be prohibited by this Section 11 from
using, after the Employment Term, ideas, data, technology, know how or
techniques, which are acquired or generated from the general knowledge of the
industry that the Company is engaged in.
| 12. |
Non-Competition.
|
(a) Employee
will, as a result of his employment with the Company, be involved with and
exposed to substantial business resources and assets of the Company and certain
of its affiliates and will develop additional contacts and relationships with
numerous individuals and companies, which are also involved in the business
of
the Company or businesses related thereto. Such individuals and organizations
will have business and contractual relationships with the Company and/or its
affiliates that will be a valuable asset thereof. The Employee also recognizes
and agrees with the Company that the services which the Employee will render
during the term of employment are unique, special and of extraordinary
character, that the Company will be substantially dependent upon such services
to develop and market its products and to earn a profit, and that the
application of the Employee’s knowledge and services to any competitive business
would be substantially detrimental to the Company. Accordingly, in consideration
for employment by the Company and compensation and other benefits, including
any
compensation the Employee may receive after his or her employment is terminated
pursuant to this Agreement, the Employee will not, directly or indirectly
(whether as an employee, officer, executive, director, manager, stockholder,
member, lender, consultant or any other capacity), during the period of his
or
her employment with the Company, and for a period of six (6) months after
termination of employment hereunder for any reason whatsoever, engage in any
business or activity or otherwise compete anywhere in the United States, with
any business or activity that is competitive with any business or activity
engaged in by the Company or any of its subsidiaries or affiliates or
contemplated to be engaged in (as of the time of the termination of employment)
by the Company or any such subsidiary or affiliate; provided, however,
that
the
foregoing sentence shall not be applicable in the event the Employee is
terminated pursuant to Section 6(e)(ii) or Section 6(e)(iii) hereof or if the
Employee or the Company terminates this Agreement at the end of the Initial
Term
or any additional term pursuant to Section 1. In addition, for a period of
two
(2) years from the end of Employment Term the Employee will not induce or
attempt to induce any person or entity that is engaged in any business activity
or relationship with the Company or any subsidiary or affiliate of the Company
to terminate that activity or relationship to reduce such activity or
relationship.
11
(b) The
term
“compete” as used herein means to engage, directly or indirectly, either as a
proprietor, partner, employee, commissioned salesperson, agent, consultant,
director, officer, stockholder or in any other capacity or manner whatsoever.
The provisions of this Section will not prevent the Employee from investing
any
assets in securities of any corporation, provided that such investments do
not,
directly or indirectly, result in the Employee, his spouse or his children
collectively (i) owning beneficially at any time five percent (5%) or more
of
the equity securities of any publicly traded corporation engaged in a business
competitive with the Company, or (ii) otherwise being able to control or
actively participate in the business decisions of such competing business
| 13. |
Non-Solicitation.
|
For
the
period of his employment by the Company and for two (2) years after
the
date of the conclusion of such employment, the Employee will not (i) induce,
solicit or seek to influence, either directly or indirectly, any employee of,
or
any person under written contract with, the Company or any of its affiliates,
to
enter into any employment agreement, independent contractor arrangement, or
any
other arrangement whereby such individual would perform services for
compensation, either directly or indirectly, for any person, firm, corporation
or other entity engaged in business in competition with the Company or any
of
its affiliates. any Employee of the Company to leave the employ of the Company
or any subsidiary, or division thereof or other company of the Company, or
(ii)
solicit any customer of the Company or any of its affiliates, or any identified
prospect or identified potential customer to which a marketing proposal or
presentation was made during the 12 month period immediately preceding
termination of the Employment Term (other than on behalf of the Company) for
any
business of the type conducted by the Company (including any form of electronic
or internet commerce).
| 14. |
No
Conflicting Obligations.
|
The
Employee represents and warrants that the Employee has the full right and
authority to enter into this Agreement and to render the services as required
under this Agreement, and that by executing this Agreement the Employee is
not
breaching any contract or legal obligation the Employee owes to any third party,
including any agreement to keep in confidence information acquired by the
Employee in confidence or in trust prior to employment by the Company. The
Employee shall not enter into any agreement or business relationship or incur
any obligations to any third party following the Effective Date that may
conflict with, or interfere with the Employee’s abilities to perform, the
Employees duties and responsibilities pursuant to this Agreement.
Notwithstanding anything to the contrary set forth herein, the Company
acknowledges that the Employee providing services to BOSS Operating Company,
LLC, or affiliates thereof, pursuant to a short-term transition services
agreement or other arrangements between the Company and BOSS Operating Company,
LLC shall not be a breach of any of the covenants of the Employee set forth
herein.
12
| 15. |
Return
of Company Property.
|
When
the
Employee leaves the employ of the Company, the Employee will deliver to the
Company (and will not keep in his possession, recreate or deliver to anyone
else) any and all devices, records, recordings, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints, sketches,
materials, computer materials, equipment, other documents or property, together
with all copies thereof (in whatever medium recorded), belonging to the Company,
its successors or assigns. The Employee further agrees that any property
situated on the Company’s premises and owned by the Company, including computer
disks and other digital, analog or hard copy storage media, filing cabinets
or
other work areas, is subject to inspection by Company personnel at any time
with
or without notice. Prior to leaving, the Employee will cooperate with the
Company in completing and signing the Company’s termination statement for
technical and management personnel.
| 16. |
Notification
of New Employer.
|
In
the
event that the Employee leaves the employ of the Company, the Employee hereby
agrees to notify his new employer of those of the Employee’s obligations which
are continuing under this Agreement after the termination hereof.
| 17. |
Remedies.
|
(a) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Employee and his agents, for the Employee’s
or his agent’s threatened or actual breach of Sections 8, 9, 10 and 11 of this
Agreement, as money damages for a breach thereof would be incapable of precise
estimation, uncertain, and an insufficient remedy for an actual or threatened
breach of Sections 8, 9, 10 and 11 of this Agreement. Nothing herein shall
be
construed as prohibiting the Company from pursuing any other remedies available
for such breach or threatened breach of Sections 8, 9, 10 and 11 of this
Agreement, including the recovery of damages.
13
(b)
The
prevailing party in any legal actions arising under this Agreement shall be
reimbursed in full the legal fees for enforcement in favor of such prevailing
party.
| 18. |
Public
Statements.
|
Employee
agrees that he will not make any speeches, publish articles, appear as a guest
or a commentator on any television or radio show or issue statements to the
press regarding that in anyway pertain to the Company or to Employee’s
employment with same without Company’s prior approval unless pursuant to the
Employee’s duties to the Company. Violation of this provision by Employee is a
material breach of this Agreement.
| 19. |
Notices.
|
Any
notices, requests, demands or other communications required or permitted under
this Agreement will be in writing and will be deemed to have been given when
delivered personally or three (3) days after being mailed by certified mail,
return receipt requested, addressed to the party being notified at the address
of such party first set forth herein, or at such other address as such party
may
hereafter have designated by notice; provided,
however,
that
any notice of change of address will not be effective until its receipt by
the
party to be charged therewith.
| 20. |
Miscellaneous.
|
(a) Telephones,
stationery, postage, e-mail, the internet and other resources made available
to
the Employee by the Company, are solely for the furtherance of the Company
business.
(b) All
construction and interpretation of this Agreement shall be governed by and
construed in accord with the internal laws of the State of Texas, without giving
effect to that State’s principles of conflicts of law.
(c) The
Employee and the Company agree that any provision of this Agreement deemed
unenforceable or invalid by any court of competent jurisdiction, such provision
shall be reformed and modified to make such provision valid and to permit
enforcement of the objectionable provision to the fullest permissible extent.
It
is the intent of the Company and the Employee that this Agreement be enforced
to
the fullest extent permitted by applicable law. Any provision of this Agreement
deemed unenforceable after modification shall be deemed stricken from this
Agreement, with the remainder of the Agreement being given its full force and
effect. If any term or other provision of this Agreement is determined by a
court of competent jurisdiction to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other terms, provision and
conditions of this Agreement shall nevertheless remain in full force and
effect.
14
(d) Any
waiver granted by a party of any breach of or failure to comply with any
provision or condition of this Agreement by the other party shall not be
construed as, or constitute, a continuing waiver of such provision or condition,
or a waiver of any other breach of, or failure to comply with, any other
provision or condition of this Agreement, any such waiver to be limited to
the
specific matter and instance for which it is given. No waiver of any such breach
or failure or of any provision or condition of this Agreement shall be effective
unless in a written instrument signed by the party granting the
waiver.
(e) The
Employee and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Employee affirms that the Employee is knowledgeable and
sophisticated as to business matters, including the subject matter of this
Agreement, and has read and fully understands this Agreement’s meaning and
legally binding effect. The Employee further affirms that, prior to assenting
to
the terms of this Agreement, the Employee had been provided with a reasonable
time to review it, consult with counsel of the Employee’s own choice, and to
negotiate at arm’s length with the Company as to the contents of the Agreement.
The Employee further affirms that the provisions in this Agreement represent
accurately the expression of the parties’ mutual intent, and that the Employee
has entered into this Agreement freely and voluntarily and without pressure
or
coercion from anyone. Each party assumes the risk of any misrepresentation
or
mistaken understanding or belief relied upon by either party in entering into
this Agreement. In resolving any dispute or construing any term or provision
in
this Agreement, there shall be no presumption made or inference drawn because
of
the inclusion of a provision not contained in a prior draft or the deletion
of a
provision contained in a prior draft. The parties acknowledge and agree that
this Agreement was negotiated and drafted with each party being represented
by
competent counsel of its choice and with each party having an opportunity to
participate in the drafting of the provisions hereof and shall therefore be
construed as if drafted jointly by the parties.
(f) The
Company and the Employee agree that the Employee’s obligations to the Company
during the Employee’s employment with the Company, as well as any other
obligation of the Employee under this Agreement, may be assigned to any
successor in interest to the Company or any division or affiliate of the Company
in its sole discretion and without additional consideration or prior notice
to
the Employee, but that nothing requires the Company to do so. The Employee’s
obligations under this Agreement are personal in nature and may not be assigned
by the Employee to any other person or entity.
(g) Entire
Agreement; Amendment.
This
Agreement contains the entire understanding and agreement of the parties
relating to the subject matter hereof and supersedes all prior and/or
contemporaneous understandings and agreements of any kind and nature (whether
written or oral) among the parties with respect to such subject matter, all
of
which are merged herein. This Agreement may not be modified, amended, altered
or
supplemented, except by a written agreement executed by each of the parties
hereto.
15
(h) Counterparts.
This
Agreement and any amendments hereto may be executed and delivered in one or
more
counterparts, and by the different parties hereto in separate counterparts,
each
of which when executed shall be deemed to be an original, but all of which
taken
together shall constitute one and the same agreement, and shall become effective
when counterparts have been signed by each party hereto and delivered to the
other parties hereto, it being understood that all parties need not sign the
same counterpart. In the event that any signature to this Agreement or any
amendment hereto is delivered by facsimile transmission or by e-mail delivery
of
a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. At the request of any party each other
party shall promptly re-execute an original form of this Agreement or any
amendment hereto and deliver the same to the other party. No party hereto shall
raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file to deliver a signature to this Agreement or any amendment hereto or the
fact that such signature was transmitted or communicated through the use of
a
facsimile machine or e-mail delivery of a “.pdf” format data file as a defense
to the formation or enforceability of a contract, and each party hereto forever
waives any such defense.
(i) Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
[Signature
page follows]
16
IN
WITNESS WHEREOF,
the
parties have executed and delivered this Agreement on the date first above
written.
|
SONTERRA
RESOURCES, INC. (f/k/a River Capital Group,
Inc.)
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxxx
|
||
|
Title:
|
Chief
Executive Officer
|
||
|
EMPLOYEE:
|
|||
|
/s/
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxxx
|
|||
17
Exhibit
A
Option
Grant
Employee
Options granted pursuant to the River Capital Group, Inc. 2007 Non-Qualified
Stock Option Plan:
Notice
Addresses:
|
Optionee:
Xxxxxxx
X. Xxxxxxx
____________________
____________________
____________________
|
Corporation:
Sonterra
Resources, Inc. (f/k/a River Capital Group, Inc.)
000
Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxx
Facsimile:
000-000-0000
Attention:
Xxxxxxx X. Xxxxxxx
|
Grant
Date: February
14, 2008
|
Option
#1
|
|
|
Total
Options Granted: 571,151
|
Option
Price: $0.302107090
|
|
Vesting
Schedule:
|
|
|
Number
of Shares
|
|
|
Date
|
(Non-Cumulative)
|
|
First
Anniversary of the Date of Grant
|
190,383
|
|
Second
Anniversary of the Date of Grant
|
190,384
|
|
Third
Anniversary of the Date of Grant
|
190,384
|
|
Option
#2
|
|
|
Total
Options Granted: 571,152
|
Option
Price: $0.392739217
|
|
Vesting
Schedule:
|
|
|
Number
of Shares
|
|
|
Date
|
(Non-Cumulative)
|
|
First
Anniversary of the Date of Grant
|
190,384
|
|
Second
Anniversary of the Date of Grant
|
190,384
|
|
Third
Anniversary of the Date of Grant
|
190,384
|
|
Option
#3
|
|
|
Total
Options Granted: 571,152
|
Option
Price: $0.453160635
|
|
Vesting
Schedule:
|
|
|
Number
of Shares
|
|
|
Date
|
(Non-Cumulative)
|
|
First
Anniversary of the Date of Grant
|
190,384
|
|
Second
Anniversary of the Date of Grant
|
190,384
|
|
Third
Anniversary of the Date of Grant
|
190,384
|
18
