EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (“Agreement”) is entered into as of May 16, 2008
(“Effective Date”) by and between Xxxxxx Xxxxxx, an individual (“Executive”),
and Stratos Renewables Corporation, a Nevada corporation (“Company”). Company
and Executive are each a “Party” to this Agreement and are sometimes
collectively referred to as “Parties.”
In
consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Company and Executive agree
as
follows:
1. Employment. Company
employs Executive, and Executive agrees to be employed by Company, upon
the
terms and conditions set forth in this Agreement beginning on the Effective
Date
and continuing for two (2) years, until May 14, 2010, or such earlier date
on
which Executive’s employment is terminated under Section 4 of this Agreement
(the “Term”). Thereafter, this Agreement shall automatically be renewed and the
Term extended for additional consecutive terms of one (1) year (each a
“Renewal
Term”), unless such renewal is objected to by either Company or Executive upon
ninety (90) days written notice prior to the commencement of the next Renewal
Term.
2. Duties.
2.1. Basic
Duties.
Executive
agrees to serve as Chairman of Company and will have such other powers,
duties
and responsibilities as
are
set forth in the Bylaws of Company and as
usually vested in his position as well as additional or different duties
that
Executive may be reasonably directed to perform by the Board of Directors
of
Company (“Board
of Directors”),
or their designees. Executive shall be subject to Company policies, procedures
and approval practices, as generally in effect from time-to-time.
2.2. Time
Devoted to Employment.
Nothing
in this Agreement shall prohibit Executive from providing services to any
other
entity, except that while Executive is providing services to Company under
this
Agreement, Executive will perform his duties and responsibilities
faithfully, diligently and to the best of his ability, in compliance with
all
applicable laws and Company’s policies and procedures.
2.3. No
Conflicting Agreements.
Executive represents and warrants that his performance of his duties under
this
Agreement does not and will not breach any other agreement, including any
confidentiality and non-disclosure agreements with prior employers or other
persons. Executive represents and warrants that he has not entered into,
and
will not enter into, any agreement, either written or oral, in conflict
with
this Agreement. Executive represents and warrants that he has disclosed
to
Company any actual or potential conflicts.
2.4. Duty
of Loyalty.
Executive acknowledges and agrees that Executive owes a fiduciary duty
of
loyalty, fidelity and allegiance to act at all times in the best interests
of
Company and to do no act which would intentionally injure Company's business,
its interests, or its reputation. Executive understands that it is Company’s
policy to conduct its business according to the highest ethical and legal
standards and agrees to uphold those standards of business conduct and
ethical
principles, and comply with all applicable laws and regulations and Company’s
policies.
2.5. Place
of Performance.
Executive shall be based at Company’s offices located at 0000 Xxxxx Xxxxxx
Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, except for required travel on
Company’s business from time-to-time.
3. Compensation
and Method of Payment.
3.1. Total
Compensation.
As
compensation under this Agreement, Company will pay and Executive will
accept
the following:
3.1.1. For
each
year of this Agreement, measured from the Effective Date, base compensation
(“Base Salary”) of Two Hundred Fifty Thousand Dollars ($250,000); provided,
however, that Company will review Executive’s Base Salary and may in its sole
discretion increase Executive’s Base Salary, subject to the approval of the
Board of Directors.
3.1.2. Company
will pay Executive a bonus in an amount to be determined for each Fifty
Million
Dollars ($50,000,000) of capital raised by Company during the Term. All
capital
raised by Company after November 14, 2007 shall be included for purposes
of
calculating bonuses under this Section 3.1.2.
3.1.3. During
the Term, Executive is eligible for incentive bonuses which may be awarded
by
Company, with the approval of the Compensation Committee of the Board of
Directors, in its sole discretion.
3.1.4. Company
will reimburse Executive for all reasonable travel, entertainment and other
expenses incurred or paid by Executive in connection with the performance
of
Executive’s duties, responsibilities or services under this Agreement, upon
presentation by Executive of documentation as Company may request and in
accordance with any applicable policies adopted by Company.
3.1.5. Executive
will be entitled to participate in employee fringe benefit, health insurance,
life insurance, and other programs which Company may adopt from time-to-time
for
executives of Company. Participation will be in accordance with any plans
and
any applicable policies adopted by Company. Executive will be entitled
to
vacations in accordance with Company policy in effect from time-to-time
and
subject to applicable state law.
3.2. Reservation
of Rights.
Notwithstanding any other provision of this Agreement, Company reserves
the
right to modify, suspend or discontinue any and all benefit plans, practices,
policies and programs at any time whether before or after termination of
employment without advance notice to or recourse by Executive.
3.3. Payment
of Compensation.
Company
will pay Executive’s Base Salary in accordance with the normal payroll cycle of
Company as established from time-to-time, subject to applicable taxes,
withholding and other required, usual or elected employee
deductions.
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4. Termination
of Agreement.
This
Agreement and all obligations under this Agreement (except those obligations
which expressly survive the termination of this Agreement) will terminate
upon
the earliest to occur of any of the following:
4.1. By
Expiration.
This
Agreement and the employment of Executive will terminate at the expiration
of
the Term or any Renewal Term.
4.2. Termination
for Cause by Company.
Company
may terminate Executive at any time
if it
believes in good faith that it has Cause (as defined below) to terminate
Executive. “Cause” shall include, but not be limited to:
4.2.1. Executive’s
gross negligence and/or willful misconduct with respect to Company and/or
its
subsidiaries and affiliates, and/or their predecessors and
successors;
4.2.2. Executive’s
refusal to follow Company’s lawful directions or substantial and repeated
failure to perform Executive’s duties; provided,
that
with respect to any violation of this Section 4.2.2 that is subject to
cure,
Executive will have the right, within thirty (30) calendar days after receipt
of
written notice from Company, to cure such event or circumstance giving
rise to
the violation, in the event of which such event or circumstance shall be
deemed
to not constitute Cause;
4.2.3. Executive’s
commission of a felony;
4.2.4. Executive’s
acts
or
omissions which constitute discriminatory, harassing or retaliatory conduct,
theft, fraud, dishonesty, including Executive’s violation of the restrictive
covenants in Section 5 of this Agreement; or
4.2.5. Executive
shall have been repeatedly or habitually intoxicated or under the influence
of
drugs while on the premises of Company or while performing any of his duties
or
obligations.
4.3. Resignation
by Executive.
Executive has the right to resign Executive’s engagement for Good Reason upon
ninety (90) calendar days’ prior written notice to Company (the “Resignation
Notice”). On Executive’s last day of the engagement, concurrently with his
resignation, Company will deliver a general release form to Executive.
If
Executive executes and delivers the general release form to Company within
thirty (30) calendar days after Executive’s receipt thereof and does not revoke
such general release form pursuant to any applicable revocation periods,
then
Company will pay Executive Special Severance Pay as defined in this Agreement
within ten (10) business days after the date of Executive’s execution and
delivery of such release and the expiration of any revocation period. If
Executive purports to resign without Good Reason and fails to render services
under this Agreement, such act and such failure shall be a material breach
of
this Agreement and Company shall be entitled to terminate Executive for
Cause.
“Good Reason” means that, without Executive’s written consent, one or more of
the following events occurred after Executive’s execution of this
Agreement:
4.3.1. Demotion.
A material adverse change in Executive’s status, title, position or reporting
responsibilities.
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4.3.2. Pay
Cut.
Executive’s annual Base Salary is reduced.
4.3.3. Relocation.
Executive’s principal office is transferred to another location which is outside
a fifty (50) mile radius from the City of Los Angeles, California.
However,
an event that is or would constitute Good Reason shall cease to be Good
Reason
if: (a) Executive does not deliver the Resignation Notice stating Good
Reason to
Company within thirty (30) calendar days after the event occurs; (b) Company
reverses the action or cures the default that constitutes Good Reason within
thirty (30) calendar days after Executive delivers the Resignation Notice
to
Company; or (c) Executive was a primary instigator of the Good Reason event
and
the circumstances make it inappropriate in good faith for Executive to
receive
Good Reason resignation benefits under this Agreement.
4.4. Termination
For Disability, Death or a Reason Other Than For Cause.
4.4.1. Executive’s
employment will terminate immediately upon the death of Executive.
4.4.2. Except
as
prohibited by applicable law, Company may terminate Executive’s employment on
account of Disability. “Disability” means a physical or mental illness, injury,
or condition that prevents Executive from performing substantially all
of
Executive’s duties under this Agreement for at least ninety (90) consecutive
calendar days or for at least one hundred twenty (120) calendar days, whether
or
not consecutive, in any three hundred and sixty-five (365) calendar day
period,
as certified by a physician selected by the Board of Directors in good
faith.
4.4.3. Company
may terminate Executive’s employment without cause or for any reason and without
advance notice, subject to Section 4.5.3.
4.5. Effect
of Termination.
4.5.1. Termination
due to Expiration of Term or Renewal Term.
If
Executive’s employment is terminated due to the expiration of the Term or any
Renewal Term pursuant to Section 4.1, Company will pay Executive accrued
compensation and benefits due to Executive under Section 3 through the
last day
of Executive’s employment (“Accrued
Benefits”).
Except to the extent required by law, all other obligations and liabilities
of
Company shall terminate as of the effective date of any such
termination.
4.5.2. Termination
by Company for Cause.
In the
event that Executive’s employment is terminated by Company for “Cause” pursuant
to Section 4.2, Company will pay Executive Accrued Benefits required to
be paid
at termination by law. Except to the extent required by law, all other
obligations and liabilities of Company shall terminate as of the effective
date
of any such termination.
4.5.3. Termination
by Company Without Cause, by Executive for Good Reason, or Termination
Upon
Death or Disability of Executive.
If
Executive (a) dies, (b) is terminated by Company for Disability or (c)
is
terminated by Company for a reason other than for Cause, then Company will
pay
Accrued Benefits to Executive or his personal representative or estate.
In
addition, Company will deliver a general release form to Executive or his
personal representative or estate promptly after such death or termination.
If
Executive or his personal representative or estate executes and delivers
the
general release form to Company within thirty (30) calendar days after
Executive’s (or his personal representative’s or estate’s) receipt and does not
revoke such general release form pursuant to any applicable revocation
periods,
then Company shall make one (1) lump sum payment, within ten (10) business
days,
of the greater of (i) one (1) full year of Base Salary plus any accrued
unpaid
bonuses and (ii) Base Salary for the remainder of the Term plus any accrued
unpaid bonuses (the “Special Severance Payment”). Except to the extent required
by law, all other obligations and liabilities of Company shall terminate
as of
the date of termination.
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4.5.4. Resignation
as Board Member or Officer.
Immediately upon the termination of Executive’s employment with Company,
Executive will tender a written notice of Executive’s resignation from any and
all offices of Company and all subsidiaries, affiliates or clients in which
Executive represents Company in the capacity of an officer or director.
Notwithstanding any failure by Executive to provide Company with such written
notice of resignation within three (3) days after the date of the termination
of
Executive’s employment with Company, Executive hereby authorizes and directs the
Board of Directors to accept Executive’s resignation from all said positions
effective as of the date of termination of Executive’s employment.
5. Property
Rights and Obligations of Executive.
5.1. Confidential
Information.
For
purposes of this Agreement, “Confidential Information” includes any and all
financial, cost and pricing information and any and all information regarding
Company’s customers, potential customers, suppliers, partners, service
providers, brokers, marketing plans, advertising, contracts, potential
contracts, strategies, forecasts, pricing, methods, practices, techniques,
business plans and financial plans and information contained in any drawings,
designs, plans, proposals, customer lists, records of any kind, data, formulas,
specifications, concepts or ideas, where such information is reasonably
related
to the business of Company, has been divulged to or learned by Executive
during
the term of his employment by Company, and has not previously been publicly
released by duly authorized representatives of Company or otherwise lawfully
entered the public domain.
5.2. Preservation
of Trade Secrets.
Executive will preserve as confidential all Confidential Information pertaining
to Company’s business that have been obtained or learned by reason of his
employment. Executive will not, without the prior written consent of Company,
either use for his own or for any other person’s benefit or purposes or disclose
or permit disclosure to any third parties, either during the Term or thereafter
(except as required in fulfilling the duties of his employment), any
Confidential Information. Executive may only use Company’s trade names and
trademarks in connection with Company’s products and services, in such manner
and for such purposes as may be authorized by Company. Upon termination
of this
Agreement, Executive immediately will cease the use of such trade names
and
trademarks and eliminate them wherever they have been used or incorporated
by
Executive. Executive agrees to execute Company’s Confidential Information and
Inventions Agreement. In addition, Executive agrees that he will not disclose
to
Company or induce Company to use any trade secrets belonging to any third
party.
Executive agrees that he will not disclose proprietary information belonging
to
a former employer or other entity without its written permission. Executive
will
indemnify and hold Company harmless from any liabilities, including defense
costs, it may incur because Executive is alleged to have broken any of
these
promises or improperly revealed or used such proprietary information or
to have
threatened to do so, or if a former employer challenges Executive’s entering
into this Agreement or rendering services pursuant to it.
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5.3. Property
of Company.
Executive agrees that all documents, reports, files, analyses, drawings,
designs, tools, equipment, plans (including, without limitation, marketing
and
sales plans), proposals, customer lists, computer software or hardware,
and
similar materials that are made by him or come into his possession by reason
of
and during the term of his employment with Company are the property of
Company
and will not be used by his in any way adverse to Company’s interests. Executive
will not allow any such documents or things, or any copies, reproductions
or
summaries to be delivered to or used by any third party without the specific
consent of Company. Executive agrees to immediately deliver to Company,
upon
demand, and in any event upon the termination of Executive’s employment, all of
such documents and things which are in Executive’s possession or under his
control.
5.4. Inventions.
Intellectual property (including such things as all ideas, concepts, inventions,
plans, developments, software, data, configurations, materials (whether
written
or machine-readable), designs, drawings, illustrations, and photographs,
that
may be protectable, in whole or in part, under any patent, copyright, trademark,
trade secret, or other intellectual property law), developed, created,
conceived, made, or reduced to practice during Executive’s employment with
Company (except intellectual property that has no relation to Company that
Executive developed, etc., purely on Executive’s own time and at Executive’s own
expense), shall be the sole and exclusive property of Company, and Executive
hereby assigns all of Executive’s rights, title, and interest in any such
intellectual property to Company. Company and Executive acknowledge that
any
provision in this Agreement requiring Executive to assign his rights in
any
intellectual property work product does not apply to: (i) an invention
which was
developed by Executive prior to the start of Executive’s employment with
Company; and (ii) an invention which otherwise qualifies under the provisions
of
California Labor Code Section 2870.1
5.5. Non-Solicitation
and Non-Disparagement by Executive.
5.5.1. Non-Compete
and Non-Solicitation of Customers.
Executive acknowledges that in the course of his employment, he will learn
about
Company, its subsidiaries or any of its affiliates’ (collectively, the “Company
Group”) business, services, materials, programs and products and the manner in
which they are developed, marketed, served and provided. Executive knows
and
acknowledges that Company Group has invested considerable time and money
in
developing its programs, agreements, offices, representatives, services,
products and marketing techniques and that they are unique and original.
Executive further acknowledges that Company Group must keep secret all
pertinent
information divulged to Executive about Company Group business concepts,
ideas,
programs, plans and processes, so as not to aid Company Group’s competitors.
Accordingly, Company Group is entitled to the following protection, which
Executive agrees is reasonable: Executive agrees that during the Term and
for a
period of one (1) year following the termination of his employment, which
period
shall automatically be extended by a period of time equal to any period
in which
Executive is in breach of any obligations under Section 5 of this Agreement,
Executive will not, on his own behalf or on behalf of any person, firm,
partnership, association, corporation, or other business organization,
entity or
enterprise, use any Company Confidential Information to call on any of
the
customers of the Employer for the purpose of soliciting or inducing any
of such
clients to take away or to divert or direct their business to Executive
or any
other person or entity by or with which the Employee is employed, associated,
affiliated or otherwise related.
1 Section
2870 provides: (a) Any provision in an employment agreement which provides
that
an employee shall assign, or offer to assign, any of his or her rights
in an
invention to his or her employer shall not apply to an invention that
the
employee developed entirely on his or her own time without using the
employer's
equipment, supplies, facilities, or trade secret information except for
those
inventions that either: (1) Relate at the time of conception or reduction
to
practice of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or (2) Result from
any work
performed by the employee for the employer. (b) To the extent a provision
in an
employment agreement purports to require an employee to assign an invention
otherwise excluded from being required to be assigned under subdivision
(a), the
provision is against the public policy of this state and is
unenforceable.
6
5.5.2. Non-Solicitation
of Employees.
During
the Term, and for one (1) year following the date of termination for any
reason,
which period shall automatically be extended by a period of time equal
to any
period in which Executive is in breach of any obligations under Section
5 of
this Agreement, Executive shall not solicit, hire or attempt to hire any
employee of Company or any person who was an employee of Company at any
time
during the six (6) months immediately prior to the termination date of
Employee’s employment, assist in such hiring by any other Person, encourage any
such employee to terminate his or her relationship with Company.
5.5.3. Promise
to Discuss Proposed Actions in Advance.
To
prevent the inevitable use or disclosure of Confidential Information, Executive
promises that, before Executive discloses or uses Confidential Information
and
before Executive commences employment, solicitations, or any other activity
that
could possibly violate the promises Executive has made, Executive shall
discuss
Executive’s proposed actions with the Member Committee, who shall advise
Executive in writing whether Executive’s proposed actions would violate these
promises.
5.6. Survival
Provisions and Certain Remedies.
The
provisions of this Section 5 will survive the termination of this Agreement.
Executive acknowledges that (a) Executive’s services are of a special, unique
and extraordinary character and it would be very difficult or impossible
to
replace them, (b) this Section’s terms are reasonable and necessary to protect
Company’s legitimate interests, (c) this Section’s restrictions shall not
prevent Executive from earning or seeking a livelihood, (d) this Section’s
restrictions shall apply wherever permitted by applicable law and (e)
Executive’s violation of any of this Section’s terms would irreparably harm
Company. Accordingly, Executive agrees that, if Executive violates any
of the
provisions of this Section, Company shall be entitled to, in addition to
other
remedies available to it, an injunction to be issued by any court of competent
jurisdiction restraining Executive from committing or continuing any such
violation, without the need to prove the inadequacy of money damages or
post any
bond or for any other undertaking. Executive may also bring action for
injunction related to enforcement or interpretation of this Section 5.
The
covenants in this Section 5 will be construed as separate covenants and
to the
extent any covenant will be judicially unenforceable, it will not affect
the
enforcement of any other covenant.
6. General
Provisions.
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6.1. Notices.
Any
notices or other communications required or permitted to be given under
this
Agreement must be in writing and addressed to Company or Executive at the
addresses below, or at such other address as either Party may from time
to time
designate in writing. Any notice or communication that is addressed as
provided
in this Section will be deemed given (a) upon delivery, if delivered personally
or via certified mail, postage prepaid, return receipt requested; or (b)
on the
first business day of the receiving Party after the transmission if by
facsimile
or after the timely delivery to the courier, if delivered by overnight
courier.
Other methods of delivery will be acceptable only upon proof of receipt
by the
Party to whom notice is delivered.
|
To
Company:
Stratos
Renewables Corporation
0000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Fax
No.: 000-000-0000
Attention:
Secretary
|
|
|
To
Executive:
Xxxxx
Xxxxxx
0000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Fax
No.: 000-000-0000
|
6.2. Choice
of Law and Forum.
Except
as expressly provided otherwise in this Agreement, this Agreement will
be
governed by and construed in accordance with the laws of the State of California
and both Parties consent to the personal jurisdiction of the courts of
the State
of California. Each Party further agrees that personal jurisdiction over
it may
be effected by service of process by any means of delivery provided in
Section
6, and that when so made shall be as if served upon it personally.
6.3. Entire
Agreement; Modification and Waiver.
This
Agreement supersedes any and all other agreements, whether oral or in writing,
between the Parties with respect to the employment of Executive by Company
and
contains all covenants and agreements between the Parties relating to such
employment in any manner whatsoever. Each Party to this Agreement acknowledges
that no representations, inducements, promises, or agreements, oral or
written,
have been made by any Party, or anyone acting on behalf of any Party, that
are
not embodied herein, and that no other agreement, statement, or promise
not
contained in this Agreement will be valid or binding. Any modification
of this
Agreement will be effective only if it is in writing signed by the Party
to be
charged. No waiver of any of the provisions of this Agreement will be deemed,
or
will constitute, a waiver of any other provision, whether or not similar,
nor
will any waiver constitute a continuing waiver. No waiver will be binding
unless
executed in writing by the Party making the waiver.
6.4. Assignment.
This
Agreement may not be assigned in whole or in part by Executive without
the prior
written consent of Company. Company may assign its rights under this Agreement
without the consent of Executive in the event Company shall hereafter effect
a
reorganization, consolidate with or merge into any other Person, or transfer
all
or substantially all of Company’s properties or assets to any other Person.
Subject to the foregoing limitation, this Agreement will be binding on,
and will
inure to the benefit of, the Parties and their respective heirs, legatees,
executors, administrators, legal representatives, successors and
assigns.
8
6.5. Severability.
All
sections, clauses and covenants contained in this Agreement are severable,
and
in the event any of them shall be held to be invalid by any court, this
Agreement shall be interpreted as if such invalid sections, clauses or
covenants
were not contained herein. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any
other
provision of this Agreement, which shall remain in full force and
effect.
6.6. Representation
by Counsel; Interpretation.
Company
and Executive acknowledge that each Party to this Agreement has had the
opportunity to be represented by counsel in connection with this Agreement
and
the matters contemplated by this Agreement. Accordingly, any rule of law
or
decision which would require interpretation of any claimed ambiguities
in this
Agreement against the Party that drafted it has no application and is expressly
waived. In addition, the term “including” and its variations are always used in
the non-restrictive sense (as if followed by a phrase such as “but not limited
to”). The provisions of this Agreement will be interpreted in a reasonable
manner to affect the intent of the Parties.
6.7. Corporate
Authority.
Company
represents and warrants as of the Effective Date that Company’s execution and
delivery of this Agreement to Executive and the carrying out of the provisions
of the Agreement have been duly authorized by Company’s Board of Directors and
authorized by Company’s shareholders as appropriate.
6.8. Expenses
of this Agreement.
Each
party shall be responsible for its respective costs and expenses incurred
by
such party in connection with the preparation and review of this Agreement;
provided, however, that, upon the receipt by Company of invoices, Company
shall
reimburse Executive for reasonable attorneys’ fees up to a sum of Five Thousand
Dollars ($5,000) incurred by Executive in connection with the negotiation
and
documentation of this Agreement and other benefits granted to Executive
in
connection with this Agreement.
6.9. Binding
Arbitration.
Executive and Company mutually consent to the resolution by final and binding
arbitration of all claims or controversies that they have against each
other to
the extent permitted by law, including disputes concerning this Agreement
or any
aspect of the employment relationship or relating to termination (“Claims”).
6.9.1. The
parties will resolve all Claims by binding arbitration before a single
neutral
arbitrator pursuant to the provisions of this Section. The Claims covered
by
this Agreement include Claims for wages or other compensation due; Claims
for
breach of any contract or covenant (express or implied); tort Claims; Claims
for
discrimination and/or harassment (including race, sex, religion, national
origin, age, marital status or medical condition, disability, or sexual
orientation); Claims for benefits (except where an employee benefit or
pension
plan specifies that its Claims procedure shall culminate in an arbitration
procedure different from this one); and Claims for violation of any public
policy, federal, state or other governmental law, statute, regulation or
ordinance, except as set forth below.
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6.9.2. This
Agreement to arbitrate excludes (i) claims for workers’ compensation (excluding
discrimination claims under workers’ compensation statutes) or unemployment
compensation benefits are not covered by this Agreement; and (ii) claims
by
either party for injunctive and/or other equitable relief for unfair competition
and/or the use and/or unauthorized disclosure of trade secrets or confidential
information, which will be brought in a court of competent
jurisdiction.
6.9.3. The
Parties may initiate arbitration by serving or mailing a written notice
to the
other Party. The notice shall identify and describe the nature of all Claims
asserted and the facts upon which such Claims are based. The written notice
shall be served or mailed within the applicable statute of limitations
period
set forth by applicable federal or state law.
6.9.4. After
demand for arbitration has been made by serving written notice under the
terms
of this Agreement, the party demanding arbitration will file a demand for
arbitration with either JAMS or ADR. The parties may select an arbitrator
mutually agreeable to each party. If the parties cannot agree on an arbitrator
within thirty (30) days of the demand for arbitration, the parties shall
request
from the selected arbitration association a list of five names drawn from
its
panel of arbitrators (who are familiar with employment, healthcare related
issues and physician contracts) and each party shall strike arbitrators
pursuant
to the strike procedures of that organization. Such arbitration shall be
conducted in Los Angeles County, California, before a single arbitrator
selected
by the parties and subject to the rules of the arbitration association
then in
effect. Discovery shall be allowed and conducted pursuant to the then applicable
arbitration rules for the arbitration of employment disputes.
6.9.5. The
arbitrator shall apply the substantive law of the State of California,
or
federal law, or both, as applicable to the Claim(s) asserted. Either party
may
file a motion for summary judgment with the arbitrator under the Federal
Rules
of Civil Procedure. The arbitrator is entitled to resolve some or all of
the
claimant’s Claims through such a motion.
6.9.6. The
arbitrator’s decision will be in writing, setting forth the basis for his
decision and shall be final and binding. Company will pay all costs that
are
unique to arbitration, including the costs of the selected arbitration
association and the arbitrator. Each party shall pay for its own other
costs
that are not unique to the arbitration (i.e., costs that each party might
incur
if the Claim(s) were litigated in a court or agency of competent jurisdiction),
including, for example, costs to subpoena witnesses and/or documents, costs
to
take depositions and purchase deposition transcripts, costs to copy, facsimile
or messenger documents, et cetera. Any dispute whether a cost is unique
to
arbitration shall be exclusively resolved by the Arbitrator.
6.9.7. Any
party
may bring an action in any court of competent jurisdiction to compel arbitration
under this Agreement and/or to enforce an arbitration award.
6.9.8. Executive
and Company expressly waive any constitutional or other right to have any
dispute between them covered by the terms of this Agreement decided by
a court
of law and/or by a jury in a court proceeding and/or by any administrative
agency, other than those Claims subject to Section 6.9.2.
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6.10. Attorneys’
Fees.
In any
action at law or in equity or arbitration to enforce or construe any provisions
or rights under this Agreement, the unsuccessful party or parties to such
litigation, as determined by the courts pursuant to a final judgment or
decree,
will pay the successful Party or parties all costs, expenses, and reasonable
attorneys’ fees incurred by such successful Party or parties (including such
costs, expenses, and fees on any appeals), and if such successful party
or
parties will recover judgment in any such action or proceedings, such costs,
expenses, and attorneys’ fees.
6.11. Section
409A Compliance.
Unless
otherwise expressly provided, any payment of compensation by Company to
Executive, whether pursuant to this Agreement or otherwise, shall be made
on or
before the fifteenth (15th) day of the third (3rd) month after the later
of the
end of the calendar year or the end of Company’s fiscal year in which
Executive’s right to such payment vests (i.e., is not subject to a “substantial
risk of forfeiture” for purposes of Code Section 409A of the Code and the
regulations thereunder (“Section 409A”)). To the extent that any severance
payments (including payments on termination for “Good Reason”) come within the
definition of “involuntary severance” under Section 409A, such amounts up to the
lesser of two times Executive’s annual compensation for the year preceding the
year of termination as determined under Section 409A or two times the limit
under Code Section 401(a)(17) for the year of termination, shall be excluded
from “deferred compensation” as allowed under Section 409A, and shall not be
subject to the Section 409A compliance requirements in the following paragraph.
All
payments of “nonqualified deferred compensation” (within the meaning of Section
409A) by Company to Executive are intended to comply with the requirements
of
Section 409A, and shall be interpreted consistent therewith. Neither party
individually or in combination may accelerate any such deferred payment,
except
in compliance with Section 409A, and no amount shall be paid prior to the
earliest date on which it is permitted to be paid under Section 409A. In
the
event that Executive is determined to be a “key employee” (as defined in Code
Section 416(i) (without regard to paragraph (5) thereof)) of Company at
a time
when its stock is deemed to be publicly traded on an established securities
market for purposes of Section 409A, payments determined to be “nonqualified
deferred compensation” payable following termination of employment shall be made
no earlier than the earlier of (i) the last day of the sixth (6th) complete
calendar month following such termination of employment, or (ii) Executive’s
death, consistent with the provisions of Section 409A. Any payment delayed
by
reason of the prior sentence shall be paid out in a single lump sum at
the end
of such required delay period in order to catch up to the original payment
schedule. Notwithstanding anything herein to the contrary, no amendment
may be
made to this Agreement if it would cause the Agreement or any payment hereunder
not to be in compliance with Section 409A. It is the intent that the parties
that the Agreement be interpreted to comply in all respects with Code Section
409A, however, Company shall have no liability or further obligation to
Executive in the event taxes or excise taxes may ultimately be determined
to be
applicable to any payment under this agreement.
6.12. Taxes.
Company
shall withhold taxes from payments it makes pursuant to this Agreement
as it
determines to be required by applicable law.
6.13. Headings
and Captions.
Headings and captions are included for purposes of convenience only and
are not
a part of the Agreement.
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6.14. Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which will be deemed an original, but all of which together will constitute
one
instrument. This Agreement may be executed and delivered by facsimile and/or
PDF
signature which will be valid and binding.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date
first written above.
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COMPANY:
STRATOS
RENEWABLES CORPORATION
By:
/s/ Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Corporate secretary
|
|
|
EXECUTIVE:
/s/ Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, an individual
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