KEN CLEVELAND EMPLOYMENT AGREEMENT
Exhibit
10.89
XXX
XXXXXXXXX EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
"Agreement") is made and entered into effective as of the 24th day of September,
2008, by and between New Century Energy Corp., a Colorado corporation, with its
principal place of business at 0000 Xx. Xxxxx
Xxxxx , Xxxxx 000, Xxxxxxx, XX. 77056, Houston, Texas (the
"Company") and Xxx Xxxxxxxxx, who resides at 0000 Xxxxxxx Xxxxxxx Xx. Xxxxxxxx,
Xxxxx 00000 (the "Employee")
W I T N E S S E T
H:
R E C I T A L
S:
WHEREAS, the Company is engaged in the
business of exploring for and producing oil and natural gas; and
WHEREAS, Company desires to retain the
services of the Employee as an employee of the Company and the Employee desires
employment with the Company upon the following terms and
conditions.
NOW, THEREFORE, in consideration of the
mutual covenants and premises, the receipt and sufficiency of such mutual
consideration if hereby acknowledged and confessed by the Company and Employee,
and to induce Company to hire the Employee on the terms and conditions
hereinafter form, the Company and Employee hereby agree as follows:
A G R E E M E N T
S:
ARTICLE
1
EMPLOYMENT
AND TERM
1.01 Employment. The
Company hereby employs the Employee on a part time basis, and the Employee
accepts such employment with the Company, to serve the Company as Chief
Financial Officer.
1.02 Employment
Term. Employee’s employment hereunder shall be for a term of six (6) months
commencing as of August 1, 2008, unless earlier terminated pursuant to Article
5 hereof. If on the expiration date of the Employment Term the
Employee is still employed by the Company, this Agreement, upon mutual written
consent, may be extended for successive one (1) month terms, subject to being
earlier terminated pursuant to Article 5. The term "Employment Term" shall mean
the term stated herein and all renewals and extensions of Employee’s employment
hereunder.
ARTICLE
2
DUTIES OF
EMPLOYEE
2.01 Duties. During
the Employment Term, Employee shall render such services as Chief Financial
Officer to the Company and its Affiliates (as defined in section 4.07 below) as
are reasonably required by the Board of Directors of the Company (hereinafter
"Board of Directors" or the "Board") and may be required by virtue of the
office(s) and positions held by Employee.
ARTICLE
3
COMPENSATION
3.01 Base
Salary. As compensation for services hereunder and in
consideration for the protective covenants set forth in Article 5 hereof, the Employee shall be paid a
monthly salary of $12,694.00 beginning August 1, 2008,
paid twice monthly in accordance with the Company’s standard payroll
procedures.
ARTICLE
4
PROTECTIVE
COVENANTS
4.01 General. Employee
expressly acknowledges and agrees that he will be given access to and become
familiar with business methods, trade secrets, and other proprietary information
developed at the Company’s expense, which is valuable, unique, and essential to
the performance of Employee’s duties hereunder, as well as being essential to
the overall continued success and business goodwill of the
Company. Employee expressly acknowledges and agrees that the Trade
Secrets (as hereinafter defined) are proprietary and confidential and if any of
the Trade Secrets was imparted to or became known by any persons, including
Employee, engaging in a business in any way competitive with that of the
Company’s, such would result in hardship, loss, irreparable injury and damage to
the Company, and that the measurement of which would be difficult, if not
impossible, to determine. Accordingly, Employee expressly agrees that
(I) the Company has a legitimate interest in protecting the Trade Secrets and
its business goodwill, (ii) it is necessary for the Company to protect its
business from such hardship, loss, irreparable injury and damage, (iii) the
following covenants are a reasonable means by which to accomplish that purpose,
and (iv) violation of any of the protective covenants contained herein shall
constitute a breach of trust and is grounds for immediate dismissal and for
appropriate legal action for damages, enforcement and/or
injunction.
4.02 Trade
Secrets. It is understood that during the course of his
employment hereunder and for all time thereafter,
the Employee will have access to and become familiar with certain proprietary
and confidential information of the Company which is not generally known to the
public (the "Trade Secrets’’), which includes, by way of illustration and not by
way of limitation:
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(a)
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Lists
containing the names of past, present and prospective customers,
employees, principals, clients and
suppliers;
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(b)
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The
past, present and prospective methods, procedures and techniques utilized
in identifying prospective markets, subscribers, customers, clients and
suppliers, and in soliciting the business
thereof;
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(c)
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The
past, present and prospective methods, procedures and techniques used in
the operation of the Company’s business, including marketing plans and
objectives and the methods, procedures and techniques utilized in selling,
pricing, applying and delivering the Company’s products and services;
and
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(d)
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Compilations
of data, information, databases, computer programs, publications, reports,
maps, surveys, contracts and records which are owned or developed by the
Company and/or which are used in the operation of the business of the
Company, including, without limitation, electronically stored
information.
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Employee
acknowledges that the Trade Secrets give the Company an advantage over its
competitors, and that the same is not available to or known by the Company’s
competitors or the general public. Employee further acknowledges that
the Company has devoted substantial time, money, and effort in the development
of the Trade Secrets and in maintaining the proprietary and confidential nature
thereof. Employee further acknowledges his position with the Company
is one of the highest trust and confidence by reason of Employee’s knowledge of,
access to, and contact with the Trade Secrets. Employee agrees to use
his best efforts and exercise utmost diligence to protect and safeguard the
Trade Secrets. Employee covenants that, during the term of this
Agreement and for all time thereafter regardless of which party terminates this
Agreement he will not disclose, disseminate or distribute to another, nor induce
any other person to disclose, disseminate or distribute, any Trade Secrets of
the Company, directly or indirectly, either for Employee’s own benefit or for
the benefit of another, whether or not acquired, learned, obtained or developed
by Employee alone or in conjunction with others, nor will Employee use or cause
to be used any Trade Secrets in any way except as is required in the course of
his employment with the Company. Employee acknowledges and covenants
that all Trade Secrets relating to the business of the Company, whether prepared
by Employee or otherwise coming into his possession, shall remain the exclusive
property of the Company, shall not be copied or otherwise reproduced in whole or
in part, and shall not be removed from the premises of the Company, under any
circumstances whatsoever without the prior written consent of the
Company. Employee further covenants that all Company equipment,
machinery, computer hardware and software, and all other memoranda, data,
information, notes, records, drawings or other documents made, compiled,
acquired or received by Employee during the term of this Agreement which are in
his possession or under his control at the termination of his employment
hereunder, concerning any Company activity, including, but not limited to,
information, databases, computer programs, reports, maps, surveys, contracts,
lists of customers and clients, lists of suppliers, data, processes, techniques
and applications developed and/or used by the Company, management techniques,
names of suppliers and customers, marketing and sales techniques, and product
and service pricing information, shall together with all copies, be delivered,
in good condition, to the Company immediately upon Employee’s termination
(whether or not so requested by the Company), or at any time upon the Company’s
request.
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4.03 Remedies for
Breach. Employee acknowledges that the legal
remedies for breach of the protective covenants hereunder are inadequate and
therefore agrees that, in addition to all of the remedies available to the
Employee in the event of a breach or a threatened breach of any covenant
contained in this Article 4, the Company may:
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(a)
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Obtain
temporary, preliminary, and permanent injunctions against any and all such
actions; and
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(b)
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Seek
to recover from Employee monetary damages to the Company arising from such
breach or threatened breach and all costs and expenses (including
attorneys, fees) incurred by the Company in the enforcement of such
protective covenants.
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4.04 Intent of
Parties. Employee recognizes and agrees that this Agreement is
necessary and essential to protect the business of the Company and to realize
and derive all the benefits, rights; and expectations of conducting the
Company’s business; that the area and duration of the protective covenants
herein are in all things reasonable; and that good and valuable consideration
exists for Employee’s agreement to be bound by such protective
covenants.
4.05 Affiliates of the
Company. The protective covenants in Article 4 shall also
benefit the business and Trade Secrets of the Company’s Affiliates (as
hereinafter defined) and these covenants shall be enforceable against Employee
by each of such Affiliates as third party beneficiaries. An
"Affiliate" of the Company is any person or entity that directly or indirectly
through one or may intermediaries, controls or is controlled by, or is under
common control with, the Company.
ARTICLE
5
TERMINATION
OF EMPLOYMENT
5.01 Termination by the
Company. The Company may terminate Employee’s employment at
any time and for any reason, with or without cause and without any liability
whatsoever. Employee may voluntarily terminate his employment with
the Company at any time, for any reason, without any liability
whatsoever. In the event the Company or Employee terminates
employment, the terminating party shall provide the other party with thirty (30)
days written notice. Should Employee engage in any dishonest,
unethical, fraudulent or felonious act relating to Employee’s duties to the
Company, then the Company is not required to provide Employee with the thirty
(30) days termination notice. The Company, at its sole discretion,
may determine whether the Employee’s actions constitute dishonest, unethical,
fraudulent or felonious conduct.
5.02 Authority to Modify
.. Employee acknowledges and agrees that no manager or representative
of the Company, other than a Director, has any authority to enter into any
agreement of employment with Employee for any specific period of time, or to
make any agreement contrary to the foregoing.
5.03 Effect of Termination on
Compensation. In the event of the termination of this Agreement, the
Employee shall be entitled to his base salary earned prior to the date of
termination as provided for in this Agreement computed pro-rata up to and
including the date of termination.
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ARTICLE
6
ASSIGNMENT
OF CONTRACT
6.01 Assignment by the
Company. Employee understands and agrees that the Company may
assign all of its rights and delegate all of its duties under this Agreement
upon notice to Employee.
6.02 Assignment by
Employee. Employee understands that this Agreement is personal
to him and that he may not assign his rights or delegates his duties under this
Agreement, or any portion thereof, to any other person or entity without the
prior written approval of the Company.
ARTICLE
7
GENERAL
PROVISIONS
7.01 Indemnification. Employee
shall indemnify and hold each of the Company and its Affiliates harmless against
any and all losses, claims, damages, obligations, penalties, judgments,
liabilities, costs, expenses, and disbursements and any and all actions, suits,
proceedings, and investigations in respect thereof, and any and all legal and
other costs, expenses, and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise, including, without limitation,
the costs, expenses, and disbursements, as and when incurred, of investigating,
preparing, or defending any such action, suit, proceeding, or investigation
(whether or not in connection with litigation in which the Company or the any of
its Affiliates is a party), as and when incurred by the Company or any of its
Affiliates, which are directly or indirectly, caused by, relating to, based
upon, arising out of, or in connection with:
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(a)
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Any
material breach of any covenant by Employee contained in this Agreement;
and/or
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(b)
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Employee’s
gross negligence, recklessness, willful neglect, or willful
misconduct.
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The
provisions of this Section 8.02 shall survive the termination of this
Agreement.
7.02 Attorneys’ Fees and
Costs. If any action at law or in equity is necessary to
enforce or interpret any of the rights or obligations under this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees, costs, and
necessary disbursements in addition to any other relief to which the prevailing
party may be entitled.
7.03 Miscellaneous.
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(a) Amendments or
Modifications. This Agreement may be amended or modified from
time to time but only by a written instrument executed by all parties hereto,
except the Company, upon written notice to the Employee, may make unilateral
modifications to Employee’s salary, commission structure, expense reimbursement
policies and procedures, duties and assigned territories and
accounts.
(b) Severability. 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, such provision shall not
affect any of the other provisions hereof and this Agreement shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein. The remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
(c) Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the undersigned parties and their respective heirs, executors,
legal representatives, administrators and assigns.
(d) Statutory
Provisions. Any statutory or regulatory provision referenced
in this Agreement shall include a reference to all amendments thereto and any
successor to such statute or regulation and/or revision thereof.
(e) Governing Law. This
Agreement shall be construed under and in accordance with the laws of the State
of Texas, and all obligations of the parties created hereunder are preferable in
Xxxxxx County, Texas.
(f) Headings. The
headings used throughout this Agreement have been used for convenience only and
do not constitute matter to be considered in interpreting this
Agreement.
(g) Exhibits. The
exhibits attached hereto, if any, are made a part hereof by reference as fully
as if copied and set forth in the body hereof.
(h) Number and Gender.
Whenever required by the context, singular numbers shall include the plural,
plural numbers shall include the singular and the gender of any pronoun shall
include the other genders.
(i) Counterparts. This
Agreement may be executed in any number of counterparts, all of which shall, for
all purposes, constitute one agreement binding on the parties hereto,
notwithstanding that all parties hereto may not be signatory to the same
counterpart.
(j) Further
Assurances. In connection with this Agreement as well as all
transactions contemplated by this Agreement, the parties hereto agree to execute
and deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out, and
perform all of the terms, provisions and conditions of this Agreement and all
such transactions.
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(k) Supersedes. This
Agreement supersedes and replaces all prior agreements, oral or written, between
the Company and Employee.
(l) Employee’s
Authority. Employee does not have the authority to authorize
any capital expenditures or to enter into any arrangement, contract or agreement
for or on behalf of the Company without the express written consent of the Board
of Directors or the Employee’s immediate supervisor.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement effective as of
the date first written above.
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EMPLOYEE:
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COMPANY:
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XXX
XXXXXXXXX
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/s/
Xxx Xxxxxxxxx
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/s/
Xxxxxx X. XxXxxxxxx
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