EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between
XXXXXXXX RESOURCES, INC., a Nevada corporation (the "Company") with principal
offices at 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, and Xxxxxx X.
Xxxxx ("Employee"), an individual residing at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxx
00000.
1. Employment. The Company hereby agrees to employ Employee, and Employee
hereby agrees to render his exclusive service to the Company, in his current
capacity of Senior Vice President, Chief Financial Officer, Secretary and
Treasurer of the Company, with such duties as may be assigned to him from time
to time by the Board of Directors for a period of time commencing on July 1,
1996 (the effective date of this Agreement) and ending on June 30, 1997 (the
"Employment Period"), subject to earlier termination as hereinafter provided.
2. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Dallas, Texas, at such location as may be specified by the
Board of Directors of the Company.
3. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $11,041.67 per month, payable semimonthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion. Such compensation shall be in addition to any group insurance,
pension, profit sharing, and other employee benefits, which are extended from
time to time to Employee in the discretion of the Board of Directors of the
Company and for which Employee is eligible. Subject to such rules and procedures
as are from time to time specified by the Company, the Company shall also
reimburse Employee for all reasonable expenses incurred by him on behalf of the
Company.
4. Performance of Services. Employee shall devote his full working time to
the business of the Company; provided, however, Employee shall be excused from
performing any services for the Company hereunder during periods of temporary
incapacity and during vacations conforming to the Company's standard vacation
policy, without thereby in any way affecting the compensation to which he is
entitled hereunder.
5. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
come into his possession during his
-1-
employment hereunder, shall be deemed to be confidential and proprietary to the
Company and the Employee further agrees to retain in confidence any confidential
information known to him concerning the Company and it's subsidiaries and their
respective businesses so long as such information is not publicly disclosed. In
the event of a breach or threatened breach by the Employee of the provisions of
this Paragraph 5, the Company shall, in addition to any other available
remedies, be entitled to an injunction restraining Employee from disclosing, in
whole or in part, any such information or from rendering any services to any
person, firm or corporation to whom any of such information may have been
disclosed or is threatened to be disclosed.
6. Property of Company. All data, drawings, and other records and written
material prepared or compiled by Employee or furnished to Employee while in the
employ of the Company shall be the sole and exclusive property of the Company,
and none of such data, drawings or other records, or copies thereof, shall be
retained by Employee upon termination of his employment. Notwithstanding the
foregoing, Employee shall be under no obligation to return public information.
7. Surviving Provisions. The provisions of Paragraphs 5 and 6 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
8. Termination for Good Cause. It is agreed and understood that the Company
cannot terminate the employment of the Employee under this Agreement except for
good cause, and that, without prejudice to the generality of the right to
terminate for good cause, each of the following contingencies shall be good
cause:
(a) Should Employee by reason of injury or illness become incapable
for more than one hundred fifty (150) consecutive days of satisfactorily
performing his duties as an employee under this Agreement;
(b) Should Employee for reasons other than illness or injury absent
himself from his duties without the consent of the Company (which consent
shall not be unreasonably withheld) for more than twenty (20) consecutive
days;
(c) Should Employee be convicted of a crime punishable by
imprisonment;
(d) Should Employee during the period of his employment by the Company
engage in any activity that would in the opinion of the Board of Directors
of the Company constitute a material conflict of interest with the Company;
provided that termination for cause based on this subparagraph (d) shall
not be effective unless the Employee shall have received written notice
-2-
from the Board of Directors of the Company of such activity (which notice
shall also include a demand for the Employee to cease the activity giving
rise to the conflict of interest) fifteen (15) days prior to his
termination and the Employee has failed after receipt of such notice to
cease all activities creating the conflict of interest; or
(e) Should Employee be grossly negligent or inefficient in the
performance of his duties hereunder, or otherwise fail to comply with the
terms and conditions of this Agreement; provided that termination for cause
based on this subparagraph (e) shall not be effective unless the Employee
shall have received written notice from the Board of Directors of the
Company (which notice shall include a description of the reasons and
circumstances giving rise to such notice) fifteen (15) days prior to his
termination and the Employee has failed after receipt of such notice to
satisfactorily discharge the performance of his duties hereunder or to
comply with the terms of this Agreement, as the case may be.
The Company may for good cause terminate Employee's employment under this
Agreement without advance notice, except as otherwise specifically provided for
in subparagraphs (d) and (e) above. Termination shall not affect any of the
Company's other rights and remedies.
9. Change in Control. Notwithstanding anything herein to the contrary, a
Change in Control of the Company shall not in any manner diminish, impair or
otherwise affect Employee's right to remain employed by Company throughout the
term of this Agreement, nor shall any such Change in Control affect the
Company's obligations hereunder. For purposes of this Agreement, a Change in
Control of the Company shall be deemed to have taken place if: (w) without the
approval or recommendation of a majority of the then existing Board of Directors
of the Company, a third person shall cause or bring about (through solicitation
of proxies or otherwise) the removal or resignation of a majority of the then
existing members of the Board of Directors or if a third person causes or brings
about (through solicitation of proxies or otherwise) an increase in the size of
the Board of Directors such that the then existing members of the Board of
Directors thereafter represent a minority of the total number of persons
comprising the entire Board; (x) a third person, including a "group" as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the
beneficial owner of shares of any class of the Company's stock having 30% or
more of the total number of votes that may be cast for the election of directors
of the Company; (y) any shares of any class of the Company's stock are purchased
pursuant to a tender of exchange offer (other than an offer by the Company); or
(z) the stockholders of the Company approve a definitive agreement for the
merger or other business combination of the Company with or into another
corporation pursuant to which the Company will not survive or will survive only
as a subsidiary of another corporation, for the sale or other disposition of all
or substantially all of the assets of the Company, or any combination of the
foregoing.
-3-
10. Severance Benefit Payment. The Company shall provide Employee with a
severance benefit payment in an amount equal to three (3) times the Employee's
then existing annual base pay (the "Severance Benefit Payment") upon a Change in
Control during the Employment Period followed by (i) the occurrence of any one
of the events specified in subparagraphs (a) through (f) below and (ii)
Employee's resignation from employment:
(a) Without the express written consent of Employee, the assignment of
Employee to any duties inconsistent with his position, duties,
responsibilities or status with the Company as such existed immediately
prior to the Change in Control or a reduction of his duties or
responsibilities, in each case as determined by Employee;
(b) A reduction by the Company in the Employee's salary immediately
prior to the Change in Control, or any failure to maintain or provide
benefit plans covering the Employee providing benefits at least equal to
the level of benefits paid to the Employee under the Company's benefit
plans as such existed immediately prior to the Change in Control;
(c) Without the express written consent of the Employee, the Company's
requiring the Employee to be based anywhere other than the Company offices
at which he was based immediately prior to the Change in Control except for
required travel on the Company's business in accordance with the Company's
past management practices;
(d) Any failure of the Company to obtain the assumption of the
obligation to perform this Agreement by any successor as contemplated in
Paragraph 13 hereof;
(e) Any failure by the Company or its stockholders, as the case may
be, to re-elect the Employee to the corporate office held by him
immediately prior to the Change in Control or his removal from any such
office, including any seat held at such time on the Company's Board of
Directors; or
(f) Any breach by the Company (or any successor) of any of the
provisions of this Agreement or any failure by the Company to carry out any
of it's obligations hereunder.
The Severance Benefit Payment shall be paid to Employee in total and in
cash in equal payments (without interest over a period not to exceed twelve (12)
months) upon the occurrence of any of the foregoing events.
-4-
11. Payment of Certain Costs of Employee. If a dispute arises regarding a
termination of the Employee subsequent to a Change in Control or the
interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in contesting or disputing any such termination or
seeking to obtain or enforce any right or benefit provided for in this Agreement
or in otherwise pursuing his claim will be paid by the Company, to the extent
permitted by law. The Company further agrees to pay prejudgment interest on any
money judgment obtained by the Employee calculated at the Chemical Bank, N. A.
New York, New York prime interest rate in effect from time to time from the date
that payment(s) to him should have been made under this Agreement.
12. Mitigation. The Employee is not required to mitigate the amount of any
payments to be made by the Company pursuant to this Agreement by seeking other
employment or otherwise.
13. Successors.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Employee, to expressly
assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation from the Company
in the same amount and on the same terms as the Employee would be entitled
hereunder if he were to terminate his employment pursuant to subparagraphs
10(a), 10(b), 10(c), 10(d), 10(e) or 10(f). As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Paragraph 13 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Employee should die during the term hereof, the Company shall pay an
amount equal to any amounts than payable to Employee hereunder, plus an
amount equal to six months' salary, with all such amounts to be paid to
Employee's devisee, legatee or other designee or, if there be no such
designee, to his estate.
-5-
14. No Inconsistent Obligations. Employee represents and warrants that he
has not previously assumed any obligations inconsistent with those of this
Agreement.
15. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
16. Binding Effect. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Company by merger or consolidation or any assignee of
all or substantially all of its properties.
17. Bankruptcy. Notwithstanding anything in this Agreement to the contrary,
the insolvency or adjudication of bankruptcy of the Company, whether voluntary
or involuntary, shall terminate this Agreement and the rights and obligations of
Company and Employee hereunder shall be of no further force or effect.
18. Law Governing. This Agreement made, accepted and delivered in Dallas
County, Texas, is performable in Dallas County, Texas, and it shall be construed
and enforced according to the laws of the State of Texas. Venue shall lie in
Dallas County, Texas for the purpose of resolving and enforcing any dispute
which may arise under this Agreement and the parties agree that they will submit
themselves to the jurisdiction of the competent State or Federal Court situated
in Dallas County, Texas.
19. Invalid Provision. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be impaired thereby.
20. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Employee:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
-6-
If to the Company:
Xxxxxxxx Resources, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
EXECUTED and effective as to this lst day of July 1996.
XXXXXXXX RESOURCES, INC.
By: /s/ M. XXX XXXXXXX
------------------
Name: M. Xxx Xxxxxxx
Title: President and Chief Executive Officer
EMPLOYEE:
/s/XXXXXX X. XXXXX
------------------
Xxxxxx X. Xxxxx
-7-
