EXHIBIT 10.1
PREMIER ENERGY CORP.
Xx. Xxxxx Xxxxxxxxxx, PhD
0000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
X.X.X.
Phone: 0-000 000-0000
Cell: 0-000 000-0000
Fax: 0-000 000-0000
Email: x.xxx@xxxxxxxxx.xxx
EMPLOYMENT AND STOCK PURCHASE AGREEMENT
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Agreement made as of this 16th day of October 2008, by and among Xxxxx
Xxxxxxxxxx of Dallas, Texas ("Employee") and Premier Energy Corp (the
"Company").
Whereas, The Board of Directors of the Company recognizes Employee's potential
contribution to the growth and success of the Company and desires to assure the
Company of Employee's employment in an executive capacity as Chief Operating
Officer and to compensate him for his services in performing in that capacity,
the parties agree to the following terms and conditions of employment. Employee
wants to be employed by the Company and to commit himself to serve the Company
on the terms herein provided. In connection with his employment, Employee
proposes to purchase and the Company to sell Stock on the terms herein provided,
including particularly Employee's undertaking to remain loyal to the Company.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties, the parties agree as follows:
1. Definitions.
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"Benefits" shall mean all the fringe benefits approved by the Board from time to
time and established by the Company for the benefit of employees generally
and/or for key employees of the Company as a class, including, but not limited
to, regular holidays, vacations, absences resulting from illness or accident,
health insurance, disability and medical plans (including dental and
prescription drug), group life insurance, and pension, profit-sharing and stock
bonus plans or their equivalent.
"Board" shall mean the Board of Directors of the Company, together with an
executive committee thereof (if any), as same shall be constituted from time to
time.
"Cause" for termination shall mean (i) Employee's final conviction of a felony
involving a crime of moral turpitude, (ii) acts of Employee which, in the
judgment of the Board, constitute willful fraud on the part of Employee in
connection with his duties under this Agreement, including but not limited to
misappropriation or embezzlement in the
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performance of duties as an employee of the Company, or willfully engaging in
conduct materially injurious to the Company and in violation of the covenants
contained in this Agreement, or (iii) gross misconduct, including but not
limited to the willful failure of Employee either to (a) continue to obey lawful
written instruction of the Board after thirty (30) days notice in writing of
Employee's failure to do so and the Board's intention to terminate Employee if
such failure is not corrected, or (b) correct any conduct of Employee which
constitutes a material breach of this Agreement after thirty (30) days notice in
writing of Employee's failure to do so and the Board's intention to terminate
Employee if such failure is not corrected.
"Chairman" shall mean the individual designated by the Board from time to time
as its chairman.
"Chief Operating Officer" shall mean the individual having responsibility to the
Board for the operational affairs of the Company and who reports and is
accountable only to the Chief Executive Officer and the Board.
"Employee" shall mean Xxxxx Xxxxxxxxxx and, if the context requires, his heirs,
personal representatives, and permitted successors and assigns.
"Stock" shall mean the Company's Common Stock.
"Company" shall mean Premier Energy Corp, a Florida corporation, together with
such subsidiaries of the Company as may from time to time exist.
2. Position, Responsibilities, and Term of Employment.
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2.01 Position. Employee shall serve as Chief Operating Officer and in such
additional management position(s) as the Board shall designate. In this capacity
Employee shall, subject to the bylaws of the Company, and to the direction of
the Board, serve the Company by performing such duties and carrying out such
responsibilities as are normally related to the position of Chief Operating
Officer in accordance with the standards of the industry. The Board shall either
vote, or recommend to the shareholders of the Company, as appropriate, that
during the term of employment pursuant to this Agreement: (i) Employee be
nominated for election as a director at each meeting of shareholders held for
the election of directors; (ii) Employee be elected to and continued in the
office of President of the Company and such of its subsidiaries as he may select
(and such other office, if any, as shall be denominated that of the Chief
Operating Officer of the Company or such subsidiary in the Company's or such
subsidiary's Bylaws or other constituent instruments); (iii) Employee be elected
to and continued on the Board of each subsidiary of the Company, (iv) if the
Board of the Company or any of its subsidiaries shall appoint an executive
committee (or similar committee authorized to exercise the general powers of the
Board), Employee be elected to and continued on such committee; and (v) neither
the Company nor any of its subsidiaries shall confer on any other officer or
employee authority, responsibility, powers or prerogatives superior or equal to
the authority, responsibility, prerogatives and powers vested in Employee
hereunder.
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2.02 Best Efforts Covenant. Employee will, to the best of his ability, devote
his full professional and business time and best efforts to the performance of
his duties for the Company and its subsidiaries and affiliates.
2.03 Exclusivity Covenant. During the Agreement's term, Employee will not
undertake or engage in any other employment, occupation or business enterprise
other than a business enterprise in which Employee does not actively
participate. Further, Employee agrees not to acquire, assume, or participate in,
directly or indirectly, any position, investment, or interest in the Territory
adverse or antagonistic to the Company, its business or prospects, financial or
otherwise, or take any action towards any of the foregoing. The provisions of
this Section shall not prevent Employee from owning shares of any competitor of
the Company so long as such shares (i) do not constitute more than 5% of the
outstanding equity of such competitor, and (ii) are regularly traded on a
recognized exchange or listed for trading by NASDAQ in the over-the-counter
market.
2.04 Post-Employment Noncompetition Covenant. Except with the prior written
consent of the Board, Employee shall not engage in activities in the Territory
either on Employee's own behalf or that of any other business organization,
which are in direct or indirect competition with the Company for a period of one
(1) year subsequent to Employee's voluntary withdrawal from employment with the
Company (except for a termination pursuant to a Change in Control), or the
Company's termination of Employee's employment for Cause. Employee and the
Company expressly declare that the territorial and time limitations contained in
this Section and the definition of "Territory" are entirely reasonable at this
time and are properly and necessarily required for the adequate protection of
the business and intellectual property of the Company. If such territorial or
time limitations, or any portions thereof, are deemed to be unreasonable by a
court of competent jurisdiction, whether due to passage of time, change of
circumstances or otherwise, Employee and the Company agree to a reduction of
said territorial and/or time limitations to such areas and/or periods of time as
said court shall deem reasonable. For a period of one year subsequent to
Employee's voluntary withdrawal from employment with the Company (except for a
termination pursuant to a Change in Control), or the Company's termination of
Employee's employment for Cause, Employee will not without the express prior
written approval of the Board (i) directly or indirectly, in one or a series of
transactions, recruit, solicit or otherwise induce or influence any proprietor,
partner, stockholder, lender, director, officer, employee, sales agent, joint
venturer, investor, lessor, supplier, customer, agent, representative or any
other person which has a business relationship with the Company or had a
business relationship with the Company within the twenty-four-(24) month period
preceding the date of the incident in question, to discontinue, reduce, or
modify such employment, agency or business relationship with the Company, or
(ii) employ or seek to employ or cause any business organization in direct or
indirect competition with the Company to employ or seek to employ any person or
agent who is then (or was at any time within six months prior to the date the
Employee or the competitive business employs or seeks to employ such person)
employed or retained by the Company. Notwithstanding the foregoing, nothing
herein shall prevent the Employee from providing a letter of recommendation to
an employee with respect to a future employment opportunity.
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2.05 Confidential Information. Employee recognizes and acknowledges that the
Company's trade secrets and proprietary information and know-how, as they may
exist from time to time ("Confidential Information"), are valuable, special and
unique assets of the Company's business, access to and knowledge of which are
essential to the performance of Employee's duties hereunder. Employee will not,
during or after the term of his employment by the Company, in whole or in part,
disclose such secrets, information or know-how to any Person for any reason or
purpose whatsoever, nor shall Employee make use of any such property for his own
purposes or for the benefit of any Person (except the Company) under any
circumstances during or after the term of his employment, provided that after
the term of his employment these restrictions shall not apply to such secrets,
information and know-how which are then in the public domain (provided that
Employee was not responsible, directly or indirectly, for such secrets,
information or processes entering the public domain without the Company's
consent). Employee shall have no obligation hereunder to keep confidential any
Confidential Information if and to the extent disclosure of any thereof is
specifically required by law; provided, however, that in the event disclosure is
required by applicable law, the Employee shall provide the Company with prompt
notice of such requirement, prior to making any disclosure, so that the Company
may seek an appropriate protective order. Employee agrees to hold as the
Company's property all memoranda, books, papers, letters, customer lists,
processes, computer software, records, financial information, policy and
procedure manuals, training and recruiting procedures and other data, and all
copies thereof and therefrom, in any way relating to the Company's business and
affairs, whether made by him or otherwise coming into his possession, and on
termination of his employment, or on demand of the Company at any time, to
deliver the same to the Company. Employee agrees that he will not use or
disclose to other employees of the Company, during the term of this Agreement,
confidential information belonging to his former employers. Employee shall use
his best efforts to prevent the removal of any Confidential Information from the
premises of the Company, except as required in his normal course of employment
by the Company. Employee shall use his best efforts to cause all persons or
entities to whom any Confidential Information shall be disclosed by him
hereunder to observe the terms and conditions set forth herein as though each
such person or entity was bound hereby.
2.06 Nonsolicitation. Except with the prior written consent of the Board,
Employee shall not solicit customers, clients, or employees of the Company or
any of its affiliates for a period of twelve (12) months from the date of the
expiration of this Agreement. Without limiting the generality of the foregoing,
Employee will not willfully canvas, solicit nor accept any such business in
competition with the business of the Company from any customers of the Company
with whom Employee had contact during, or of which Employee had knowledge solely
as a result of, his performance of services for the Company pursuant to this
Agreement. Employee will not directly or indirectly request, induce or advise
any customers of the Company with whom Employee had contact during the term of
this Agreement to withdraw, curtail or cancel their business with the Company.
Employee will not induce or attempt to induce any employee of the Company to
terminate his/her employment with the Company.
2.07 Records, Files. All records, files, drawings, documents, equipment and the
like relating to the business of the Company which are prepared or used by
Employee during the term of his employment under this Agreement shall be and
shall remain the sole property of the Company.
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2.08 Hired to Invent. Employee agrees that every improvement, invention,
process, apparatus, method, design, and any other creation that Employee may
invent, discover, conceive, or originate by himself or in conjunction with any
other Person during the term of Employee's employment under this Agreement [that
relates to the business carried on by the Company during the term of Employee's
employment under this Agreement] shall be the exclusive property of the Company.
Employee agrees to disclose to the Company every patent application, notice of
copyright, or other action taken by Employee or any affiliate or assignee to
protect intellectual property during the 12 months following Employee's
termination of employment at the Company, for whatever reason, so that the
Company may determine whether to assert a claim under this Section or any other
provision of this Agreement. Any impropriety by the Company voids these
provisions.
2.09 Equitable Relief. Employee acknowledges that his services to the Company
are of unique characters which give them a special value to the Company.
Employee further recognizes that violations by Employee of any one or more of
the provisions of this Section 2 may give rise to losses or damages for which
the Company cannot be reasonably or adequately compensated in an action at law
and that such violation(s) may result in irreparable and continuing harm to the
Company. Employee agrees that, therefore, in addition to any other remedy which
the Company may have at law and equity, including the right to withhold any
payment of compensation under Section 4 of this Agreement, the Company shall be
entitled to injunctive relief to restrain any violation, actual or threatened,
by Employee of the provisions of this Agreement.
3. Compensation.
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3.01 Minimal Annual Compensation. The Company shall pay to Employee for the
services to be rendered hereunder a base salary at an annual rate of One Hundred
Thousand dollars ($100,000) ("Minimum Annual Compensation"). There shall be an
annual review for merit by the Board and an increase as deemed appropriate to
reflect the value of services by Employee. At no time during the term of this
Agreement shall Employee's annual base salary fall below Minimum Annual
Compensation. In addition, if the Board increases Employee's Minimum Annual
Compensation at any time during the term of this Agreement, such increased
Minimum Annual Compensation shall become a floor below which Employee's
compensation shall not fall at any future time during the term of this Agreement
and shall become Minimum Annual Compensation. Employee's salary shall be payable
in periodic installments in accordance with the Company's usual practice for
similarly situated employees of the Company.
3.02 Incentive Compensation. In addition to Minimum Annual Compensation,
Employee shall be entitled to receive payments under the Company's incentive
compensation and/or bonus program(s) (as in effect from time to time), if any,
in such amounts as are determined by the Company to be appropriate for similarly
situated employees of the Company. Any incentive compensation which is not
deductible in the opinion of the Company's counsel, under ss. 162(m) of the
Internal Revenue Code shall be deferred and paid, without interest, in the first
year or years when and to the extent such payment may be deducted, Employee's
right to such payment being absolute, subject only to the provisions of Section
2.09.
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3.03 Participating in Benefits. Employee shall be entitled to all Benefits for
as long as such Benefits may remain in effect and/or any substitute or
additional Benefits made available in the future to similarly situated employees
of the Company, subject to and on a basis consistent with the terms, conditions
and overall administration of such Benefits adopted by the Company. Benefits
paid to Employee shall not be deemed to be in lieu of other compensation to
Employee hereunder as described in this Section 3.
3.04 Specific Benefits. During the term of this Agreement (and thereafter to the
extent this Agreement shall require):
(a) Employee shall be entitled to four (4) weeks of paid vacation time per year,
to be taken at times mutually acceptable to the Company and Employee.
(b) In addition to the vacation provided pursuant to Section 3.04(a) hereof,
Employee shall be entitled to not less than ten (10) paid holidays (other than
weekends) per year, generally on such days on which the New York Stock Exchange
is closed to trading.
(c) Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by the Company or the Board for the similarly situated
employees of the Company) in performing services hereunder.
OR
(d) Upon submission of travel and expense reports accompanied by proper
vouchers, the Company will pay or reimburse Employee for all first class
transportation, hotel, living and related expenses incurred by Employee on
business trips away from the Company's principal office or Employee's principal
residence, and for all other business and entertainment expenses reasonably
incurred by him in connection with the business of the Company and its
subsidiaries during the term of this Agreement.
(e) Employee shall be eligible to participate during the Employment Period in
Benefits not inconsistent or duplicative of those set forth in this Section 3.04
as the Company shall establish or maintain for its employees or executives
generally.
4. Termination.
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4.01 Termination by Company for Other Than Cause. If during the term of this
Agreement the Company terminates the employment of Employee and such termination
is not for Cause, then, subject to the provisions of Section 2.09, the Company
shall pay to Employee an amount equal to the monthly portion of Employee's
Minimum Annual Compensation multiplied by the greater of twenty-four (24) or the
number of months remaining in the term of this Agreement (the "Severance
Period") until such time as Employee shall become reemployed in a position
consistent with Employee's experience and stature. If Employee obtains such a
position but Employee's annual compensation shall be less than the Minimum
Annual Compensation, then the difference shall be paid to Employee for the
balance of the Severance Period. Such difference shall be calculated as follows:
The difference between Employee's Minimum Annual Compensation for any year, or
lesser period, in which this Agreement would have been in effect and the
annualized compensation payable to Employee in his new position during such
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period shall be payable in the same manner as the Minimum Annual Compensation
was paid prior to termination over the period of such reemployment during such
period. If the Employee's employment in a new position shall terminate, then for
the purposes of this Paragraph 4.01 Employee shall be entitled to continuation
of the Minimum Annual Compensation until he shall again become reemployed, in
which case only the difference shall be payable as aforesaid; and so on. [If the
Employee's employment shall terminate as aforesaid or if the Employee's
reemployment in a new position shall terminate, Employee shall use his best
efforts to become reemployed as soon as reasonably possible in a position
consistent with Employee's experience and stature.] Subject to the provisions of
Section 2.09, the Company shall pay to Employee, in one lump sum as soon as
practicable, but in no event later than sixty (60) days after the date of such
termination, the Minimum Annual Compensation times the number of years, or
portions thereof, remaining in the term of the Agreement [and discounted to
present value using a capitalization rate of 10%].
4.02 Constructive Discharge. If the Company fails to reappoint Employee to (or
rejects Employee for) the position or positions listed in Section 2.01, fails to
comply with the provisions of Section 3, or engages in any other material breach
of the terms of this Agreement, Employee may at his option terminate his
employment and such termination shall be considered to be a termination of
Employee's employment by the Company for reasons other than "Cause."
4.03 Termination by the Company for Cause. The Company shall have the right to
terminate the employment of Employee for Cause. Effective as of the date that
the employment of Employee terminates by reason of Cause, this Agreement, except
for Sections 2.04 through 2.09, shall terminate and no further payments of the
Compensation described in Section 3 (except for such remaining payments of
Minimum Annual Compensation under Section 3.01 relating to periods during which
Employee was employed by the Company, Benefits which are required by applicable
law to be continued, and reimbursement of prior expenses under Section 3.04)
shall be made.
5. Stock Options.
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5.01 Amount of Stock. In accordance with the provisions of the Company's
specific authorization of the Board, the Company hereby grants to Employee,
subject to all of the terms and conditions of the Plan and this Agreement, an
option to acquire Two Hundred Thousand (200,000) shares of the Company's
outstanding common stock ("Option Stock") per year at $0.01 per share.
5.02 Vesting. The Option to acquire the Option Stock granted in Section 5.01
shall be available on the first day of the month beginning with October of 2009
and ending with October of 2010, and similarly thereafter for the term of the
Agreement.
6.01 Governing Law. This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of New York.
7.01 Interpretation. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
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7.02 Notice. Any notice required or permitted to be given hereunder shall be
effective when received and shall be sufficient if in writing and if personally
delivered or sent by prepaid cable, telex or registered air mail, return receipt
requested, to the party to receive such notice at its address set forth at the
end of this Agreement or at such other address as a party may by notice specify
to the other.
7.03 Amendment and Waiver. This Agreement may not be amended, supplemented or
waived except by a writing signed by the party against which such amendment or
waiver is to be enforced. The waiver by any party of a breach of any provision
of this Agreement shall not operate to, or be construed as a waiver of, any
other breach of that provision nor as a waiver of any breach of another
provision.
7.04 Binding Effect. Subject to the provisions of Section 4 hereof, this
Agreement shall be binding on the successors and assigns of the parties hereto.
All obligations of Employee with respect to any Shares covered by this Agreement
shall, as the context requires, bind Employee's spouse and the divorce or death
of such spouse shall not vitiate the binding nature of such obligation.
7.05 Survival of Rights and Obligations. All rights and obligations of Employee
or the Company arising during the term of this Agreement shall continue to have
full force and effect after the termination of this Agreement unless otherwise
provided herein.
Premier Energy Corp (The Company)
By /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
By /s/ Xxxxx Xxxxxxxxxx, PhD
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Xxxxx Xxxxxxxxxx, PhD (Employee)
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