EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 22nd day of April, 2006, between Xxx
Xxxxx Corp., a Nevada corporation (the "the Company") and Xxxxxx X. Xxxxxxxxx,
an individual (the "Employee").
WITNESSETH
WHEREAS, Employee wishes to serve as President and Chief Executive Officer
for the Company and the Company seeks to engage Employee on the terms and
conditions set forth below.
WHEREAS, the Company intends to cause Employee to be appointed to a seat
on its Board of Directors.
WHEREAS, simultaneously herewith Employee is entering into a Stock
Purchase Agreement (the "Stock Purchase Agreement") with a shareholder of the
Company pursuant to which, among other things, Employee is purchasing 1,000,000
shares of the common stock (the "Restricted Stock"), US$.001 par value (the
"Common Stock"), of the Company for a purchase price of US$0.025 per share, or
an aggregate purchase price of US$25,000.
WHEREAS, Company intends to file an Information Statement (the
"Information Statement" with the Securities and Exchange Commission (the "SEC")
pursuant to which it shall (i) solicit the consent of its shareholders to amend
its Articles of Incorporation to change its name to Blacksands Petroleum Inc.
and to increase its authorized capitalization to 300,000,000 shares of Common
Stock and (ii) announce the resignation of the current directors of the Company
and the appointment of Employee and another individual as directors of the
Company.
WHEREAS, within 20 days after clearance of the Information Statement by
the SEC the Company intends to declare a 30 for 1 stock split in the form of a
dividend (the "Stock Split").
WHEREAS, simultaneously herewith the Company and Employee are entering
into a Stock Option Agreement (the "Option Agreement") pursuant to which
Employee is being granted an option to purchase 1,000,000 shares of Common
Stock, after giving effect to the Stock Split, under certain circumstances.
NOW, THEREFORE, in consideration of the mutual covenants and premises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT. The Company hereby employs Employee and Employee accepts
employment upon the terms and conditions of this Agreement. Employee shall
devote Employee's full business time to Employee's duties in such capacity, and
Employee shall engage in no other full or part-time positions, consulting
arrangements or any other activities detracting from Employee's employment with
the Company, except as expressly provided below. In addition to Employee's other
duties, Employee shall at the request of the Company serve as an officer or
director of any subsidiary of the Company, with such additional compensation as
may be agreed to by the parties.
Notwithstanding the foregoing, Employee shall be entitled to continue his
current relationship with Bighorn Petroleum Ltd. ("Bighorn") until no later than
August 31, 2006. During the period from the effective date hereof until August
31, 2006 (the "Interim Period"), Employee is permitted to devote approximately
25% of his time to the affairs of Bighorn. From and after the end of the Interim
Period through the end of the Employment Period, as defined below, Employee
shall devote his full business time to his duties hereunder, but may remain as a
director of Bighorn.
2. TERM.
2.1 Initial Term. The Company hereby employs Employee and Employee
hereby accepts employment for an initial term commencing as of April 15, 2006
(the "Commencement Date") and expiring on April 14, 2008 (the "Termination
Date") unless sooner terminated or extended as hereinafter provided (the
"Employment Period").
2.2 Renewal. This Agreement will automatically be renewed on the
terms set forth herein (unless the parties mutually agree to other terms) for
successive one year periods unless either party provides the other party notice
of its intent not to renew 60 days prior to the Termination Date of the original
or renewed Employment Period.
2.3 Review of Terms. The parties shall review the provisions of this
Agreement in light of Employee's performance hereunder no later than April 15,
2007.
3. POSITION AND DUTIES. During the Employment Period, Employee shall serve
as President and Chief Executive Officer of the Company, reporting directly to
the Board of Directors of the Company (the "Board"), with full executive power
as Chief Executive Officer of the Company, subject to supervision of the Board
consistent with its fiduciary duties and obligations under laws, with duties,
authorities and responsibilities commensurate with such title and office.
Employee's duties shall include, but not be limited to:
3.1 Maintain an in-depth understanding of the background,
environment and performance of the Company's business;
3.2 With identified prospects, develop appropriate relationships
with decision makers;
3.3 Perform an effective bridging role representing the investment
community to the Company and its operations;
3.4 Develop the Company's business plans to an understanding of the
investors needs and matching the Company's capabilities thereto;
3.5 Co-ordinate appropriate service providers and propose products
and services to meet the Company's needs;
3.6 Lead the negotiation for new contracts, understanding and
managing the risk for the Company within its established commercial terms and
business/legal guidelines/ mandates;
3.7 Deliver against specific financial and non-financial targets for
allocated business units;
3.8 Provide information to the Company on the latest heavy oil and
regulatory developments and needs for new Strategy development;
3.9 Understand the Company's market and obtain feedback on
competitor activities; and
3.10 Contribute to the development of the business team strategies
by creating best practice and suggesting innovative/creative ideas.
4. COMPENSATION; BENEFITS AND EXPENSES.
4.1 Cash Component. As compensation for the services to be rendered
hereunder, the Company shall pay to Employee an annual salary (the "Salary") of
CDN$60,000 per annum, payable in monthly installments of CDN$5,000. The Salary
shall increase to CDN$120,000, payable in monthly installments of CDN$10,000,
upon the close of a public or private placements of the Company's securities
resulting in gross proceeds of not less than US$50,000,000.
In the discretion of the Board of Directors, Employee may receive bonus
compensation with respect to any financings or strategic transactions introduced
by Employee to the Company. No bonus compensation shall be awarded unless it is
in full compliance with applicable legal and regulatory guidelines, including
those of the SEC, the federal securities laws and the Nasdaq Stock Market.
The Company shall use its commercially reasonable efforts to protect the
interests of its shareholders and employees by adopting appropriate
"anti-takeover" defenses.
4.2 Benefits. Employee shall be eligible to participate in any life
and health insurance and other benefit programs that the Company makes available
to all its employees.
4.3 Business Expenses. Employee will be reimbursed for reasonable
business expenses actually incurred upon presentation of vouchers or other
documents reasonably necessary to verify the expenditures and sufficient, in
form and substance, to satisfy Internal Revenue Service requirements for such
expenses.
4.4 Option. Simultaneously herewith Employee is entering into the
Option Agreement providing for the grant to Employee of options to purchase,
after giving effect to the Stock Split, 1,000,000 shares of Common Stock for an
exercise price of US$2 per share.
5. NO COMPETITIVE ACTIVITIES; CONFIDENTIALITY; INVENTION
5.1 General Restriction. Employee covenants and agrees that Employee
will not, except on behalf of the Company, except as otherwise permitted by this
Agreement, directly or indirectly, on Employee's own behalf or as a partner,
officer, director, stockholder, member, employee, agent, consultant, or
otherwise on behalf of any other person take any of the following actions or do
any of the following things:
(a) Competing Business. During the Employment Period (as extended by any
renewals hereunder) and for a period of one year thereafter, serve
as a director, employee or executive officer of a company that is
engaged in the Provinces of Alberta or Saskatchewan in the business
of heavy oil exploration and development.
(b) Soliciting Customers. During the Employment Period (as extended by
any renewals hereunder) and for a period of one year thereafter,
attempt in any manner to solicit or accept from any customer of the
Company, with whom the Company had significant contact during the
Employment Period, business of the kind or competitive with the
business done by the Company with such customer or to persuade or
attempt to persuade any such customer to cease to do business or to
reduce the amount of business which such customer has customarily
done or is reasonably expected to do with the Company, or if any
such customer elects to move its business to a person other than the
Company, provide any services for, or have any discussions with,
such customer, on behalf of such other person.
(c) Persuading Customers. During the Employment Period (as extended by
any renewals hereunder) and for a period of one year thereafter,
persuade or attempt to persuade any customer of the Company to cease
to do business or reduce its business with the Company or to do
business of the kind or competitive with the business done by the
Company with such customer with any other person.
(d) Interfering with Other Relationships. During the Employment Period
(as extended by any renewals hereunder) and for a period of one year
thereafter, persuade or attempt to persuade any supplier or licensor
of the Company to discontinue or reduce its business with the
Company or otherwise interfere in any way with the business of the
Company.
(e) Employees. During the Employment Period (as extended by any renewals
hereunder) and for a period of one year thereafter, attempt in any
manner to solicit for employment, as an employee or for retainer as
a consultant, or so employ or retain, any person who is then or at
any time during the preceding six months was an employee of or
consultant to the Company or persuade, entice or aid, or cooperate
with any other person in persuading, enticing or aiding, or
attempting to persuade, entice or aid, any employee of or consultant
to the Company to leave the employ of the Company or to become
employed as an employee or retained as a consultant by any person
other than the Company.
5.2 Confidentiality Agreement. The Company and Employee have entered
into a Non-Disclosure Agreement, dated as of April 1, 2006 (the "NDA"). The NDA
is hereby incorporated in its entirety into, and is an integral part of, this
Agreement
5.3 Remedies. The parties acknowledge that the legal remedies for a
breach of any of the provisions of this Section 5 will be inadequate and that
such provisions may be enforced by retraining order, injunction, specific
performance or other equitable relief. Such equitable remedies shall be
cumulative and in addition to any other remedies which the injured party or
parties may have under applicable law, equity, this Agreement or otherwise. The
prevailing party shall be entitled to recover its legal fees and expenses in any
action or proceeding for breach of this Section 5.
5.4 Public Policy/Severability. The parties do not wish to impose
any undue or unnecessary hardship upon Employee following Employee's departure
from the Company's employment. The parties have attempted to limit the
provisions of this Section 5 to achieve such a result, and the parties expressly
intend that all provisions of this Section 5 be construed to achieve this
result. If, contrary to the effort and intent of the parties, any covenant or
other obligation contained in this Section 5 is found not to be reasonably
necessary for the protection of the Company, to be unreasonable as to duration,
scope or nature of restrictions, or to impose an undue hardship on Employee,
then it is the desire of the parties that such covenant or obligation not to be
rendered invalid thereby, but rather that the duration, scope or nature of the
restrictions be deemed reduced or modified, with retroactive effect, to render
such covenant or obligation reasonable, valid and enforceable. The parties
further agree that in the event a court, despite the efforts and intent of the
parties, declares any portion of the covenants or obligations in this Section 5
invalid, the remaining provisions of this Section 5 shall nonetheless remain
valid and enforceable.
6. TERMINATION.
6.1 Termination For Cause. Notwithstanding anything to the contrary
in this Agreement, the Company shall have the right, subject to this Section 6,
to terminate this Agreement "for cause", by giving Employee seven (7) days prior
written notice to that effect, and Employee's right to further compensation and
benefits hereunder, shall then immediately cease. Any termination by the Company
under this paragraph "for cause" shall be without prejudice to Employee's right
to receive all compensation and benefits owed to Employee through the effective
date of termination. As used herein and throughout this Agreement, the term "for
cause" shall mean (i) commission of a willful act of dishonesty which
constitutes gross negligence in the course of Employee's duties hereunder, (ii)
a material breach of this Agreement that constitutes gross negligence which is
not cured within 30 days of receipt of notice thereof, (iii) a breach of
Employee's representations, warrants and covenants contained herein which is not
cured within 30 days of receipt of notice thereof, (iv) Employee's conviction of
, or plea of no contest to, a criminal offense or crime constituting a felony or
conviction in respect to any act involving fraud, dishonesty or moral turpitude
resulting in detriment to Employer or reflecting upon Employer's integrity
(other than traffic infractions or similar minor offenses) or (v) Employee's
death or permanent disability. For purposes of this Agreement, "permanent
disability" shall mean the inability of Employee to perform his duties to the
Company on account of physical or mental illness for a period of three
consecutive full months, or for a period of six full months during any 12-month
period.
6.2 Voluntary Termination. In the event Employee voluntarily
terminates Employee's employment, Employee's right to further compensation and
benefits hereunder shall then immediately cease. Any voluntary termination by
Employer under this Section 6.3 shall be without prejudice to Employee's right
to receive all compensation and benefits owed to Employee through the effective
date of termination.
6.3 Options. As provided in the Option Agreement, upon termination
of employment hereunder for any reason all unvested Options will become
immediately void and of no further effect as of the date of termination of
employment. Thereafter, Employee shall have 90 days to exercise any vested
Options, after which period all unexercised Options shall become void and of no
further effect.
7. REPURCHASE OF RESTRICTED STOCK. Employee hereby grants the Company the
right (the "Repurchase Right") to repurchase the Restricted Stock, at any time
or from time to time, for a purchase price of $0.05 per share, or an aggregate
purchase price of $50,000. The Company may exercise the Repurchase Right upon
written notice to Employee, accompanied by the Purchase Price therefor. At the
same time as such delivery, Employee shall duly convey and transfer the
Restricted Stock to the Company.
8. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the State of Nevada. Any action to enforce any term hereof shall be brought
exclusively within the state or federal courts of Nevada to which jurisdiction
and venue all parties hereby submit themselves.
9. BINDING EFFECT. Except as otherwise herein expressly provided, this
Agreement shall be binding upon, and shall inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and assigns.
10. NOTICES. Any notices, consents, waivers or other communications
required or permitted to be given under the terms hereof must be in writing and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; or (ii) upon receipt, when sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by
the sending party); in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall be:
If to the Company: Xxx Xxxxx Corp.
x/x Xxxxxx X. Xxxxxxxxx
Xxxxx 000, 000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxxxx, X.X. X0X 0X0
Telephone: (000) 000-0000
Facsimile: (403) [insert]
with a copy to (which copy shall not Gottbetter & Partners, LLP
constitute notice hereunder): 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Employee: Xxxxxx X. Xxxxxxxxx
Suite 328, 000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxxxx, X.X. X0X 0X0
Telephone: (000) 000-0000
Facsimile: (403) [insert]
with a copy to (which copy shall not Xxxxxxxxx and Company Barristers &
constitute notice hereunder): Solicitors
Suite 703 - 000 Xxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx X0X 0X0
Telephone: (000) 000.0000
Facsimile: (000) 000.0000
or to such other address as a party hereto may notify the other pursuant to this
Section.
11. ADDITIONAL DOCUMENTS. Each of the parties hereto agrees to execute and
deliver, without cost or expense to any other party, any and all such further
instruments or documents and to take any and all such further action reasonably
requested by such other of the parties hereto as may be necessary or convenient
in order to effectuate this Agreement and the intents and purposes thereof.
12. COUNTERPARTS. This Agreement and any amendments hereto may be executed
in two (2) or more counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument, binding on the
parties and the signature of any party to any counterpart shall be deemed a
signature to, and may be appended to, any other counterpart.
13. ENTIRE AGREEMENT. This Agreement, together with the Stock Purchase
Agreement, the NDA and the Option Agreement, contains the sole and entire
agreement and understanding of the parties and supersedes any and all prior
agreements, discussions, negotiations, commitments and understandings among the
parties hereto with respect to the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among the parties concerning the subject matter hereto, which are not
fully expressed herein or in any supplemental written agreements of even or
subsequent date hereof.
14. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person or circumstances, shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
15. MODIFICATION. This Agreement cannot be changed, modified or discharged
orally, but only if consented to in writing by both parties.
16. CONTRACT HEADINGS. All headings of the Sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
of this Agreement, and shall in no way affect the interpretation of any of the
provisions of this Agreement.
17. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
18. REPRESENTATION OF EMPLOYEE. Employee, with the full knowledge that the
Company is relying thereon, represents and warrants that Employee has not made
any commitment inconsistent with the provisions hereof and that employee is not
under any disability which would prevent Employee from entering into this
Agreement and performing all of Employee's obligations hereunder.
19. NO CONSTRUCTION AGAINST DRAFTING PARTY. The parties agree that this
Agreement was jointly negotiated and jointly drafted by the parties and their
respective attorneys, and that it shall not be interpreted or construed in favor
of or against any party on the ground that said party or said parties' attorney
drafted this Agreement.
[Signature page follows]
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
XXX XXXXX CORP.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Office: President
/s/ Xxxxxx Xxxxxxxxx
----------------------------------------------
XXXXXX X. XXXXXXXXX
