EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
EXECUTIVE
EMPLOYMENT AGREEMENT dated the 1st day of January 2006, by and between SulphCo.,
Inc., a Nevada corporation (the "Employer”), and Xxxxxxx Xxxxxxxxx (the
"Executive").
In
consideration of the mutual covenants and agreements of the parties set forth
in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as
follows:
1. AT-WILL
EMPLOYMENT.
Employer
and Executive hereby agree that the Executive is employed at-will and,
consequently, Executive or Employer can terminate this Agreement and Executive’s
employment with or without cause, upon thirty (30) days’ written notice to the
other party. Executive understands and agrees that there are no other express
or
implied agreements contrary to the foregoing and that this termination provision
cannot be amended or altered by any practice or oral statements made to the
Executive. The only way in which this termination provision may be altered
or
amended is by a written instrument signed by the Chairman and the President
specifically referring to this section of the Agreement.
2. POSITION
AND RESPONSIBILITIES OF THE CHIEF OPERATING OFFICER.
The
Executive shall serve as the Executive Vice President of the Employer to
perform
the duties identified in Exhibit A to this Agreement.
3. COMPENSATION.
For all
services to be rendered by the Executive, the Employer shall pay and provide
to
the Executive:
3.1
BASE
SALARY. The Employer shall pay the Executive a Base Salary in the fixed amount
of Two Hundred and Forty Thousand Dollars ($240,000.00) per year. This Base
Salary shall be paid in installments consistent with the normal payroll
practices of the Employer.
3.2
GRANT
OF STOCK. Subject
to the terms and conditions of this Agreement, the Employer hereby grants
to the
Executive 50,000 shares of Stock. The Stock or rights granted hereunder may
not
be sold, pledged or otherwise transferred until the Stock becomes vested.
If the
Executive’s employment with the Employer is terminated for any reason which does
not give rise to 100% vesting of the Stock, the balance of the Stock subject
to
the provisions of this Agreement which has not vested at the time of the
Executive’s termination of employment shall be forfeited by the Executive, and
ownership transferred back to the Employer. The stock shall vest 90 days
from
the date of this Agreement.
The
Executive shall be liable for any and all taxes, including withholding taxes,
arising out of this grant or the vesting of Stock hereunder.
3.3
LIVING EXPENSES ALLOWANCE. The Employer will pay Executive a living expenses
allowance of $2,000.00 per month for up to 6 months, which is intended to
allow
Executive reasonable
accommodations in the Reno area.
3.4
INCENTIVE PLANS. The Executive shall participate in any annual incentive
award
programs available to executive officers of the Employer. This participation
is
on a basis which is commensurate with the Executive's position with the
Employer.
3.5
OTHER
BENEFITS. The Executive is entitled to receive other benefits, such as
disability, short & long-term, paid time off, including vacation and sick
time, and health insurance programs. This participation is on a basis which
is
commensurate with those benefits provided to other executives with the Employer.
4. BUSINESS
EXPENSES.
During
the period of his employment, Executive shall be reimbursed for all actual
and
reasonable business expenses incurred by Executive in accordance with the
general policy of Employer as adopted by the Employer from time to time;
provided, however, that no expense shall be subject to reimbursement unless
application therefore is made to Employer’s accounting department on the
prescribed form on the first day of each month, but no later than thirty
(30)
days after the obligation therefore is incurred. Employer shall regularly
review
said expenses to determine in its sole discretion, their
reasonability.
5. COMPENSATION
UPON TERMINATION.
In the
event that this Agreement and Executive’s employment are terminated, Employer
shall pay only the following amounts to Executive: (i) his unpaid Annual
Salary
to date of termination; (ii) any amounts earned, accrued or owing, but not
yet
paid under this Agreement, including accrued and unused PTO to date of
termination and reimbursement of business expenses; and (iii) other benefits
in
accordance with applicable plans.
6. DISCLOSURE
OF INFORMATION.
The
Executive recognizes that he has access to and knowledge of certain confidential
and proprietary information of the Employer which is essential to the
performance of his duties under this Agreement. The Executive shall not,
during
or after the term of his employment by the Employer, in whole or in part,
disclose such information to any person, firm, corporation, association or
other
entity for any reason or purpose whatsoever, nor shall he make use of any
such
information for his own purposes.
7. INDEMNIFICATION.
The
Employer covenants and agrees to indemnify and hold harmless the Executive
fully, completely and absolutely against any and all actions, suits,
proceedings, claims, demands, judgments, costs, expenses (including reasonable
attorney's fees), losses and damages resulting from the Executive's good
faith
performance of his duties under this Agreement subject to the requirements
and
limitations imposed by the Employer's Articles of Incorporation and By-Laws
and
applicable law and insurance coverages.
8. ARBITRATION.
READ
THIS ARBITRATION AGREEMENT CAREFULLY BEFORE YOU SIGN THE DUPLICATE
COPY.
To
resolve employment disputes in an efficient and cost-effective manner, Employer
and Executive agree that any and all claims arising out of or related to
Executive’s recruitment to or employment that could be filed in a court of law,
whether the disputes or claims arise in tort, contract, or pursuant to a
statute, regulation or ordinance, including but not limited to, claims of
unlawful harassment, discrimination or retaliation, wrongful demotion or
discharge, fraud, defamation, breach of contract or implied contract, or
invasion of privacy, shall be submitted to final and binding arbitration,
and
not to any other forum.
The
arbitration process shall be initiated by delivering a written request for
arbitration to the other party within the time limits that would apply to
the
filing of a civil complaint in a court of law. If a party does not deliver
a
timely written request for arbitration within such period, that party waives
any
right to raise any claim, in any forum, involving a dispute subject to this
Agreement. No claim should be submitted to arbitration without first attempting
to resolve the matter informally and exhausting Employer’s internal dispute
resolution procedures.
If
Employer and Executive are unable to agree upon a neutral arbitrator, they
will
obtain a list of arbitrators from a neutral dispute resolution service, and
strike names alternatively until one arbitrator remains. The remaining
arbitrator shall conduct the arbitration in accordance with the procedures
set
forth in the American Arbitration Association’s National Rules for the
Resolution of Employment Disputes, except to the extent that such rules require
the arbitration to be administered by the American Arbitration Association.
Employer shall pay the arbitrator’s fees and expenses. The arbitration
proceedings shall be held in the State of Nevada at a mutually convenient
location and the substantive law of the State of Nevada shall apply.
The
arbitrator shall determine the prevailing party in the arbitration. Costs
and
attorneys’ fees shall be awarded to the prevailing party in accordance with the
same legal standards that would apply had the action been filed in court.
The
arbitrator shall have the authority to order any legal and equitable remedy
that
would be available in a civil or administrative action on the claim. The
arbitrator shall prepare a written decision that includes the
essential findings and conclusions upon which the award is based.
Arbitration
shall be the exclusive means of resolving any claim arising out of the
employment relationship between Employer and Executive except to the extent
permitted by this Agreement or required by applicable law. This Agreement
to
arbitrate does not prevent Executive or Employer from applying for provisional
remedies, such as temporary restraining orders, preliminary injunctions,
writs
of attachment, or receivers, to the extent permitted by law or to prevent
an
arbitration award from being rendered ineffectual. The application for
provisional relief shall not be a waiver of arbitration.
The
parties understand and agree that this arbitration provision shall be governed
by and interpreted under the Federal Arbitration Act.
NOTICE:
THIS PARAGRAPH 8 CONTAINS A WAIVER OF THE RIGHT TO A TRIAL BY COURT OR JURY
FOR
ALL DISPUTES BETWEEN EXECUTIVE AND EMPLOYER, INCLUDING CLAIMS ARISING OUT
OF A
DISPUTED TERMINATION AND/OR FOR CLAIMS OF UNLAWFUL HARASSMENT OR DISCRIMINATION
ALLEGEDLY OCCURRING DURING THE COURSE OF EMPLOYMENT, AS WELL AS FOR CLAIMS
OF
BREACH OF THIS AGREEMENT.
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/s/
Xxxxxxx Xxxxxxxxx
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1/9/2006
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Executive
Signature
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Date
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9. ENTIRE
AGREEMENT.
This
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of Executive by
Employer, and contains all of the covenants and agreements between the parties
with respect to that employment. Each party to this Agreement acknowledges
that
no representations, inducement, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which
are
not embodied herein. No statements or promises other than those contained
in
this written Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing, signed by Executive
and
the Chairman and the President.
10. EFFECT
OF WAIVER.
The
failure of either party to insist on strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition, nor shall any waiver
or
relinquishment of any right or power at any one time or times be deemed a
waiver
or relinquishment of that right or power for all or any other
times.
11. PARTIAL
INVALIDITY.
If any
provision, part of a provision, or term in this Agreement is held by a court
of
competent jurisdiction to be illegal, invalid, void or unenforceable, then
the
remaining parts, terms and provisions shall nevertheless continue in full
force
without being impaired or invalidated in any way.
12. LAW
GOVERNING AGREEMENT.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Nevada.
13. NOTICES.
All
notices required or permitted to be given under this Agreement shall be in
writing and personally delivered, or sent by registered or certified United
States mail, return receipt requested, addressed to the parties at the addresses
appearing below. Notices shall be sent:
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If
to Employer:
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Xxxxxx
X. Xxxxxxxxx
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SulphCo.,
Inc.
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000
Xxxxx Xxxxxxx Xxxxx
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Xxxxxx,
Xxxxxx 00000
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If
to Executive:
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Xxxxxxx
Xxxxxxxxx
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X.X.
Xxx 000000
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X.
Xxxxxxxxxx, Xxxxxxxxxx 00000
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14. ASSIGNMENT; NO THIRD PARTY BENEFICIARY; SURVIVORSHIP. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, legal and personal representatives, executors, administrators, devisees, legatees, heirs and assigns. Employer may assign and transfer all of its rights under this Agreement. The obligations of Executive under this Agreement, being personal, may not be assigned or transferred by Executive. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person other than the parties hereto and their respective heirs, personal representatives, legal representatives, successors and permitted assigns, any rights or remedies under or by reason of this Agreement. The respective rights and obligations of the parties hereunder shall survive the termination of Executive’s employment to the extent necessary to preserve such rights and obligations.
15. PREVAILING
PARTY.
In the
event that either party brings an action for the collection of any damages
resulting from, or to enjoin any action constituting a breach of any of the
terms or provisions of this Agreement, then the non-prevailing party shall
pay
all reasonable attorney’s fees, costs and expert witness fees of the other
party.
16. SECTION
HEADINGS.
The
article, section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. VOLUNTARY
AGREEMENT.
Executive and Employer represent and agree that each has reviewed all of
the
provisions of this Agreement, and is voluntarily entering into this Agreement
and has had an opportunity to review all aspects of this Agreement with his/its
legal, tax or other advisors.
Executed
on January 9, 2006, at Reno, Nevada.
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EMPLOYER:
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EXECUTIVE:
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SULPHCO,
INC.:
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/s/Xxxxxx
X. Xxxxxxxxx
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/s/Xxxxxxx
Xxxxxxxxx
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Xxxxxx
X. Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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Chairman
and CEO
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EXHIBIT
A
Chief
Operating Officer
Xxxxxxx
Xxxxxxxxx
The
position of the Chief Operating Officer plans, organizes and controls all
of the
day-to-day activities of the Company. Provides direction and structure for
each
operating unit and implements programs that will facilitate short and long-term
goals.
Essential
Duties:
Advise
Chairman and President on business activities, issues, opportunities and
recommended actions.
Assist
managers in establishing goals and taking action that will enhance their
department’s performance and individual growth.
Challenge
the basic assumptions underlying each department’s operations.
Set
performance goals for each department.
Monitor
performance and assist with operational modifications, if
necessary.
Develop
an organizational structure and culture that will facilitate and recognize
superior performance for the department and the individual.
Perform
as a sounding board for managers.
Other
duties as assigned.
