OFFICER/DIRECTOR EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this 1st day of November 2004, between American Stellar Energy , Inc. a
Nevada corporation (the "Company"), and Xxxxxxxx X. Xxxxx., an individual
(the "Executive"), who is located at 000 Xxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxx, 00000.
RECITALS
WHEREAS, the Executive is desirous of being employed by the Company; and
WHEREAS, the Company has agreed with the Executive upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are herein
incorporated by reference.
2. Employment. The Company hereby employs the Executive in the capacity of
Chief Financial Officer and Director for American Stellar Energy, Inc. and the
Executive hereby accepts such employment, upon the terms and conditions
hereinafter set forth.
3. Duties During Employment Period. During the "Term" (including any
renewals thereof) as defined in Section 5 of this Agreement, the Executive
shall:
A. Diligently devote the Executive's time and efforts to the
business and affairs of the Company and subsidiaries. The Executive shall
have such duties and powers that are commensurate and consistent with those of
a Chief Executive Officer and Director, subject to the authority and
directions of the Company's Board of Directors; and
B. Devote attention and render services to the Company and shall
be employed by the Company according to the terms and conditions of this
Agreement.
4. Compensation and Benefits
A. Salary. The Executive shall be paid a base salary (the "Base
Salary"), payable monthly, in arrears, at an annual rate of no less than
Thirty Thousand Dollars ($30,000.00) per year or $2,500.00 per month.
B. Stock. The Executive shall receive 1. One hundred thousand
(100,000) shares of the Company's common stock upon the signing of this
Agreement .These shares shall be issued under Rule 144 and bear a restrictive
legend.
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5. Term. The term of employment hereunder will commence on the Effective
Date and end one (1) year from such Effective Date (the "Term"), unless
terminated pursuant to Section 6, of this Agreement, provided that the
Executive and the Company may, upon mutual written consent, renew this
Agreement for such duration as may be mutually agreed upon by the parties
("Renewal Term"). For purposes of this Agreement, "Effective Date" shall mean
November 1, 2004.
6. Consequences of Termination of Employment.
A. Termination by the Company for Cause
1. Nothing herein shall prevent the Company from terminating employment
for "Cause" as hereinafter defined. The Executive shall continue to receive
salary only for the period ending with the date of such termination as
provided in this Section 6A. Any rights and benefits the Executive may have
in respect of any other compensation shall be determined in accordance with
the terms of such other compensation arrangements or such plans or programs.
2. "Cause" shall mean:
(a) committing or participating in an injurious act of fraud, gross
neglect, intentional misrepresentation, or embezzlement against the Company;
or
(b) committing or participating in any other injurious act of omission
wantonly or willfully against the Company, monetarily or otherwise.
3. Notwithstanding anything else contained in this Agreement, this
Agreement will not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a notice of termination
stating that the Executive committed one of the types of conduct set forth in
this Section 6A contained in this Agreement and specifying the particulars
thereof and the Executive shall be given a thirty (30) day period to cure such
conduct set forth in Section 6A.
B. Voluntary Termination.
In the event the Executive terminates the Executive's employment on the
Executive's own volition (prior to the expiration of the Term or Renewal Term
of this Agreement, including any renewals thereof), such termination shall
constitute a voluntary termination and in such event the Executive shall be
limited to compensation received.
7. Non-Disclosure of Confidential Information.
A. Executive acknowledges that the Company's trade secrets,
private or secret processes, as they exist from time to time, business records
and plans, inventions, acquisition strategy, price structure and pricing,
discounts, costs, computer programs and listings, source code and/or subject
code, copyright, trademark, proprietary information, formulae, protocols,
forms, procedures, methods for operating the Company's business, credit and
financial data concerning the Company's clients, sales presentations,
revenues, acquisitions, practices and plans and information which is embodied
in written or otherwise recorded form, and other information of a confidential
nature not known publicly or by other companies selling to the same markets
(collectively, the "Confidential Information") are valuable, special and
unique assets of the Company, access to and knowledge of which have been
provided to Executive by virtue of Executive's association with the Company.
In light of the highly competitive nature of the industry in which the
Company's business is conducted, Executive agrees that all Confidential
Information, heretofore or in the future obtained by Executive as a result of
Executive's association with the Company, shall be considered confidential.
B. The Executive agrees that the Executive shall:
1) hold in confidence and not disclose or make available to any third
party any such Confidential Information obtained directly or constructively
from the Company, unless so authorized in writing by the Company;
2) exercise all reasonable efforts to prevent third parties from gaining
access to the Confidential Information;
3) take such protective measures as may be reasonably necessary to
preserve the confidentiality of the Confidential Information.
C. Excluded from the Confidential Information, and therefore not
subject to the provisions of this Agreement, shall be any information which
the Executive can show:
1) at the time of disclosure, is in the public domain; or
2) after the disclosure, enters the public domain by way of printed
publication through no fault of the Executive; or
3) was in his possession at the time of disclosure and which was not
acquired directly or indirectly from the Company; or
4) was acquired, after disclosure, from a third party who did not
receive it from the Company, and who had the right to disclose the information
without any obligation to hold such information confidential.
D. Upon written request of the Company, Executive shall return to
the Company all written materials containing the Confidential Information.
8. Covenants as Essential Elements of this Agreements; Survival of Covenants.
It is understood by and between the parties hereto that the foregoing
covenants by Executive contained in Section 7 of this Agreement shall be
construed to be agreements independent of any other element of Executive's
relationship with the Company. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties, shall not
constitute a defense to the enforcement of the covenants in Section 7 of this
Agreement against Executive.
9. Remedies and Enforcement.
A. Executive acknowledges and agrees that the Company's remedy at
law for a breach of any of the provisions of Section 7 herein would be
inadequate and the breach shall be per se deemed as causing irreparable harm
to the Company. In recognition of this fact, in the event of a breach by
Executive of any of the provisions of Section 7, Executive agrees that, in
addition to any remedy at law available to the Company, including, but not
limited to monetary damages, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available to the Company.
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B. It is further expressly understood and agreed that the
provisions of this Agreement shall apply whether this Agreement is terminated
by Company or Executive or upon its expiration or termination.
C. Nothing herein contained shall be construed as prohibiting
Company or Executive from pursuing any other remedies available to it/ him for
any breach or default of this Agreement.
10. Litigation-Attorneys' Fees.
In connection with any litigation arising out of the enforcement of this
Agreement or for its interpretation, the prevailing party shall be entitled to
recover its costs, including reasonable attorneys' fees, at the trial and all
appellate levels from the other party hereto, who was the adverse party to
such litigation; however, the Company will advance to the Executive a minimum
of $10,000, if the Company files any litigation as a result of this Agreement
to cover Executive's legal costs and continue to fund Executive's legal
defense fees to the extent required to defend against the Company's actions.
In addition, the Company agrees to pay for any and all legal work or
representation required to defend and or settle any claims made by or against
Executive as a result of his employment with the Company.
11. Freedom to Contract.
The Executive represents and warrants that the Executive has the right to
negotiate and enter into this Agreement, and that this Agreement does not
breach, interfere with or conflict with any other existing contractual
agreement
12. Effect on Prior Agreements.
This Agreement supersedes any and all prior oral or written agreements,
concerning the subject matter hereof, in their entirety between the parties,
which shall be void and of no further force and effect after the date of this
Agreement.
13. Notices.
Any notice required or permitted to be given under the terms of this Agreement
shall be sufficient if in writing and if sent postage prepaid by registered or
certified mail, return receipt requested, by overnight delivery, or by courier
to the addresses of the respective parties set forth in the preamble of this
Agreement.
14. Waiver.
Unless agreed in writing, the failure of either party, at any time, to require
performance by the other of any provision hereunder shall not affect its
rights thereafter to enforce the same, nor shall a waiver by either party of
any breach of any provision hereof be taken or held to be a waiver of any
other preceding or succeeding breach of any term or provision of this
Agreement. No extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
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15. Complete Agreement.
This Agreement contains the entire agreement between the parties hereto with
respect to the contents hereof and supersedes all prior agreements and
understandings between the parties with respect to such matters, whether
written or oral. Neither this Agreement nor any term or provision hereof may
be changed, waived, discharged or amended in any manner other than by an
instrument in writing, signed by the party against which the enforcement of
the change, waiver, discharge or amendment is sought.
16. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which shall constitute one agreement.
17. Binding Effect/Assignment.
This Agreement shall be binding upon the parties hereto, their heirs, legal
representatives, successors and assigns. This Agreement shall not be
assignable by the Executive but shall be assignable by the Company in
connection with the sale, transfer or other disposition of its business or to
any of the Company's affiliates controlled by or under common control with the
Company, with the written approval of Executive.
18. Governing Law, Venue, Waiver of Jury Trial.
The parties agree that this Agreement shall be deemed made and entered into in
the State of Nevada and shall be governed and construed under and in
accordance with the laws of the State of Nevada without giving effect to any
principles of conflicts of law. Company and Executive acknowledge and agree
that the Judicial Circuit, shall be the exclusive venue and proper forum in
which to adjudicate any case or controversy arising either, directly or
indirectly, under or in connection with this Agreement in these courts, they
will not contest or challenge the jurisdiction or venue of these courts. The
parties further agree and hereby waive and release any right to a trial by
jury in any action arising out of the interpretation, enforcement or breach of
this Agreement.
19. Headings.
The headings of the sections are for convenience only and shall not control or
affect the meaning or construction or limit the scope or intent of any of the
provisions of this Agreement.
20. Survival.
Any termination of this Agreement shall not affect the ongoing provisions of
this Agreement which shall survive such termination in accordance with their
terms.
21. Severabililty.
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
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22. Construction.
This Agreement shall be constructed within the fair meaning of each of its
terms and not against the party drafting the document.
23. Service Restriction.
Nothing in this Agreement will prevent or restrict Executive from serving on
the Board of Directors of any public or private companies and receive
compensation from such service.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT,
UNDERSTAND ITS TERMS AND CONDITIONS, HAVE HAD THE
OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR
OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
AMERICAN STELLAR ENERGY, INC..
/S/ Xxxxxxx X. Xxxxxx Xx.
_________________________
XXXXXXXX X. XXXXX
/s/ Xxxxxxxx X. Xxxxx
________________________
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