8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of January, 2006 by and between Westside Energy Corporation, a
Nevada corporation (referred to hereinafter as "Employer"), and Xxxxxxx X.
Manner (referred to hereinafter as "Employee").
RECITALS:
WHEREAS, Employer desires to employ Employee, and Employee desires to
be employed by Employer; and
WHEREAS, Employer and Employee desire to set forth the terms and
conditions of Employee's employment with Employer;
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by each
of Employer and Employee, each of Employer and Employee hereby agrees as
follows:
1. Employment. Employer hereby employs Employee, and Employee
hereby accepts such employment, subject in both cases to the
terms, provisions and conditions hereinafter stated. Employer
agrees to provide Employee with all initial specialized
training necessary for Employee to perform Employee's duties
hereunder. Moreover, Employer agrees to provide Employee with
all Confidential Information (as defined hereinafter)
necessary for Employee to perform such duties.
2. Title of Employee. Employee shall have the title of Employer's
Chief Operating Officer.
3. Duties of Employee. Employee shall perform all duties as from
time to time may be assigned to Employer by Employer's Board
of Directors or Employer's Chief Executive Officer.
4. Time Devoted and Exclusivity. Employee shall devote all of
Employee's business time and attention to performing
Employee's duties hereunder. During the term of this
Agreement, Employee agrees to work exclusively for Employer
and to provide the type of services for which Employer is
employing Employee to no person other than Employer; provided,
however, that Employee shall be permitted to devote an amount
of time sufficient to serve on the Boards of Directors of
other corporations, but only to the extent that such service
does not compete with the business of Employer and does not
interfere with Employee's duties hereunder.
5. Standard of Performance. In providing Employee's duties
hereunder, Employee shall use reasonable, and Employee's best,
efforts, and shall perform such duties in a competent,
professional and good xxxxxxx-like manner of the highest
caliber.
6. Place of Performance. Employee shall be based in, or within
five-miles of the city limits of, Dallas, Texas, but shall
undertake such travel at the direction of Employer's Board of
Directors or Employer's Chief Executive Officer as it, he or
she believes necessary or advisable for Employee to perform
Employee's duties hereunder.
7. Compensation and Benefits.
(a) Base Salary. As compensation for services rendered hereunder,
Employee shall be paid an annual salary of $175,000, or such
greater amount as shall be formally set by Employer's Board of
Directors. Such salary shall be paid in accordance with
Employer's payroll policies in effect from time to time.
(b) Sign-On Stock Bonus. Employer hereby agrees to pay to Employee
a sign-on bonus in the form of an issuance of unregistered
shares of Employer's common stock (the "Common Stock"), upon
the terms, conditions and provisions of this Section 7(b).
Pursuant to this Section 7(b), if Employee purchases for cash
directly from Employer shares of Common Stock at any time on
or before March 31, 2006 (shares so purchased are referred to
hereinafter as the "Direct Purchase Shares"), Employee shall
be entitled to be issued a sign-on stock bonus comprised of a
number of shares of unregistered Common Stock equal to one and
one-half times (1.5 times or 150%) the number of Direct
Purchase Shares (the shares comprising the sign-on stock bonus
are referred to hereinafter as the "Bonus Shares"), up to a
maximum of 225,000 Bonus Shares. Of the Bonus Shares,
one-third shall be not restricted (except for restrictions
imposed by applicable securities laws due to the private
nature of the issuance), and a stock certificate representing
them (with appropriate legends) shall be delivered to Employee
as soon as possible after March 31, 2006. The remaining
two-thirds of the Bonus Shares (the "Restricted Bonus Shares")
shall be restricted upon the following terms (in addition to
restrictions imposed by applicable securities laws due to the
private nature of the issuance):
(i) During the period during which the restrictions provided for
herein remain in effect (the "Restriction Period"), Employee
shall not be permitted to sell, transfer, pledge or assign any
Restricted Bonus Shares.
(ii) Except as otherwise provided for herein, Employee shall have,
with respect to the shares of Restricted Bonus Shares, all of
the rights of a stockholder of Employer, including the right
to vote the shares and the right to receive any cash
dividends.
(iii) The restrictions provided for herein with respect to one-half
of the Restricted Bonus Shares shall lapse on January 1, 2007,
provided that Employer has not previously and rightfully
terminated this Agreement. The restrictions provided for
herein with respect to the remaining one-half of the
Restricted Bonus Shares shall lapse on January 1, 2008,
provided that Employer has not previously terminated and
rightfully this Agreement.
(iv) If Employer has rightfully terminated this Agreement during
the Restriction Period, all Restricted Bonus Shares still
subject to restriction shall be forfeited by Employee.
(v) In addition to the stock certificate representing the
unrestricted Bonus Shares, Employee shall be issued two stock
certificates, each representing one-half of the Restricted
Bonus Shares. Each such certificate shall be registered in the
name of Employee and shall bear an appropriate legends
referring to (among other things) the terms, conditions, and
restrictions applicable to such issuance, substantially in the
following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of an employment agreement
between the issuer and the stockholder hereof."
(vi) The stock certificates evidencing Restricted Bonus Shares
shall be held in custody by Employer until the restrictions
thereon shall have lapsed, and that, as a condition of any
Restricted Bonus Shares issuance, Employee shall have
delivered a stock power, endorsed in blank, relating to the
Restricted Bonus Shares. Certificates for Restricted Bonus
Stock without legends (other than those required by
applicable securities laws due to the private nature of the
issuance) shall be delivered to Employee promptly after,
and only after, the period of forfeiture shall have expired
without forfeiture in respect of such Restricted Bonus Shares.
(vii) In the event of special hardship circumstances of Employee,
including death, disability or retirement, or in the event
of an unforeseeable emergency of Employee, Employer's Board
of Directors may, in its sole discretion, when it finds that
a waiver would be in the best interest of Employer, waive
in whole or in part any or all remaining restrictions with
respect to Employee's Restricted Bonus Shares. Additionally,
in the event that Employee terminates Employee's employment
upon a "Change in Control" as provided in Section 10(b)
hereafter, all remaining restrictions with respect to
Employee's Restricted Bonus Shares shall automatically lapse.
(c) Additional Stock Bonuses.
(i) For purposes of this Section 7(c), the following terms shall
have the respective definitions assigned to the immediately
below:
"Market Value" per share of Common Stock at any date shall
mean the average of the daily Closing Price for the Common
Stock for the 30 Trading Days before such date.
"Closing Price" on a given day shall mean the last sale price
regular way or, in case no such reported sales take place on
such day, the average of the last reported bid and ask price,
regular way, in either case on the principal national
securities exchange or the NASDAQ/National Market System on
which the shares of Common Stock are admitted to trading or
listed, or if not so admitted or listed, the representative
closing bid price as reported by NASDAQ or other similar
organization if NASDAQ is no longer reporting such information
or, if not so available, the fair market price as reasonably
determined by Employer's Board of Directors.
"Trading Day" shall mean a day on which the principal national
securities exchange on which shares of Common Stock are listed
or admitted to trading is open for the transaction of business
or, if the shares of such Common Stock are not listed or
admitted to trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday on which
banking institutions in the Borough of Manhattan, City and
State of New York, are not authorized or obligated by law or
executive order to close.
(ii) Employer hereby agrees to pay to Employee additional bonuses
in the form of issuances of unregistered shares of Common
Stock, upon the terms, conditions and provisions of this
Section 7(c). Pursuant to this Section 7(c), Employee may
become entitled to be issued up to six tranches each comprised
of 100,000 shares of unregistered Common Stock, for an
aggregate of up to 600,000 shares of unregistered Common
Stock. One of these tranches comprised of 100,000 shares of
unregistered Common Stock shall be issued to Employee upon
each of the following events:
* when the Market Value relating to the Common Stock
first equals or exceeds $5.00 per share,
* when the Market Value relating to the Common Stock
first equals or exceeds $6.00 per share,
* when the Market Value relating to the Common Stock
first equals or exceeds $7.00 per share,
* when the Market Value relating to the Common Stock
first equals or exceeds $8.00 per share,
* when the Market Value relating to the Common Stock
first equals or exceeds $9.00 per share, and
* when the Market Value relating to the Common Stock
first equals or exceeds $10.00 per share.
(iii) If the outstanding shares of the Common Stock shall be
subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the
figures for the Market Value as stated immediately above
in effect immediately prior to such subdivision or at
the record date of such dividend shall simultaneously
with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately
reduced. If the outstanding shares of Common Stock shall
be combined into a smaller number of shares, the figures
for the Market Value as stated immediately above in effect
immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to
be made in the Market Value, the number of shares comprising
the tranches making up the bonuses to be paid pursuant to
this Section 7(c) shall be changed to the number determined
by dividing (i) an amount equal to the number of shares
comprising the tranches immediately prior to such adjustment,
multiplied by the Market Value in effect immediately prior to
such adjustment, by (ii) the Market Value in effect
immediately after such adjustment.
(iv) In the event that Employee terminates Employee's employment
upon a "Change in Control" as provided in Section 10(b)
hereafter, Employee shall be entitled to be issued immediately
pursuant to this Section 7(c) all of the 600,000 shares of
Common Stock that have not already been issued pursuant to
this Section 7(c).
(d) Benefits. Employee shall be entitled to participate in all plans
that Employer establishes for the benefit of its employees; provided, however,
Employee shall be entitled to participate in such plans only at the time
Employee meets the eligibility criteria established for the plan and shall
receive benefits thereunder based on the terms of the plan. Employee's
eligibility and benefit level shall be determined separately for each plan, and
all determinations shall be made by the parties charged with responsibility for
such determinations in the plan. Employer is under no obligation to establish
any plan or plans to provide benefits for its employees, and this Section 7(e)
shall not be interpreted to require the establishment of any benefit plan. The
terms of any benefit plans existing, established, or provided hereafter do not
constitute a part of this Agreement and are not incorporated herein for any
purpose.
8. Expense Reimbursement. Employer shall reimburse Employee, from time
to time, for all actual, reasonable and necessary business expenses incurred by
Employee on behalf of Employer, to the extent that Employee has presented to
Employer documentary evidence, such as a receipt or a paid xxxx, that states
sufficient information to establish the amount, date, place, and the essential
character of the expenditure for each such expenditure.
9. Term. Subject to Section 10 below, the term of this Agreement shall
begin on the date hereof and shall continue for the period of two years
thereafter.
10. Termination.
(a) By Employer For Cause. Employer may, at its election,
terminate Employee's employment at any time for just cause, which shall mean the
following: (i) Employee shall have failed or refused to faithfully, diligently
and competently perform the duties assigned to Employee under this Agreement or
otherwise to have breached any term or provision contained herein and such
failure, refusal or breach continues for a period of 30 days after written
notice thereof is given by Employer to Employee; (ii) Employee shall be disabled
or otherwise unable for whatever reason to fully perform Employee's duties
hereunder for 60 consecutive days or for more than 120 days in any twelve-month
period; (iii) Employee shall be guilty of fraud, dishonesty, or similar acts of
misconduct; or (iv) Employee shall be finally convicted of a felony or a
misdemeanor involving moral turpitude. At any time after the occurrence of an
event permitting Employer to terminate Employee's employment pursuant to this
Section 10(a), Employer may elect for termination of Employee's employment by
notifying Employee as to Employer's election to terminate, and thereupon
Employee's employment with Employer will terminate on the date specified in the
notice or (if no date is specified) upon the delivery of the notice.
(b) By Employee Upon a Change in Control. Employee may, at his
election, terminate Employee's employment at any time upon a "Change in Control"
after the giving of 15 days written notice, and thereupon Employee's employment
with Employer will terminate 15 days after the giving of the notice or (if
later) on the date specified in the notice. For purposes of this Agreement, a
"Change in Control" shall mean the approval by the stockholders of Employer of:
(I) a merger, consolidation, share exchange or reorganization involving
Employer, unless the stockholders of Employer, immediately before such merger,
consolidation, share exchange or reorganization, own, directly or indirectly
immediately following such merger, consolidation, share exchange or
reorganization, at least 80% of the combined voting power of the outstanding
Voting Securities of the corporation that is the successor in such merger,
consolidation, share exchange or reorganization in substantially the same
proportion as their ownership of the Voting Securities immediately before such
merger, consolidation, share exchange or reorganization; (II) a complete
liquidation or dissolution of Employer; or (III) an agreement for the sale or
other disposition of all or substantially all of the assets of Employer.
(c) Automatic. The term of this Agreement shall automatically
terminate upon Employee's death.
(d) Effect. Upon termination of this Agreement, all rights and
obligations under this Agreement shall cease except for the rights and
obligations under Section 11, 12, and 13 of this Agreement and the rights and
obligations under Section 7 of this Agreement to the extent Employee had not
been compensated for services performed prior to termination (Employee's salary
to be pro rated for the portion of the pay period prior to termination).
11. Confidentiality.
(a) "Confidential Information" means and refers to information
and materials belonging to Employer that are not generally known outside
Employer, including, without limitation, customers and customer lists, pricing
policies, operational procedures, sources of supply, methods, formulae,
processes, software programs, hardware configurations, know-how, computer
programs and access codes, technological information, information relating to
the cost of its products and services, marketing strategies, financial
statements and projections, and any other information which bears a logical
relationship to the Confidential Information described above such that Employee
knows or should logically conclude that Employer regards the information to be
Confidential Information. Confidential Information shall not include any
knowledge or information that Employee already knows as of the date of this
Agreement, that is already known to the general public as of the date of this
Agreement or that becomes known to the general public after the date of this
Agreement through no breach of Employee's confidentiality obligations.
(b) Employee hereby recognizes and acknowledges that Employee
may receive information from, or may develop information on the behalf of,
Employer Confidential Information. In consideration of and ancillary to
Employer's agreement to provide Confidential Information to Employee contained
in Section 1 above, Employee hereby agrees to maintain on a confidential basis
all Confidential Information, and Employee agrees that Employee shall not,
without the prior express written consent of Employer, use for Employee's or
anyone else's benefit or disclose to any other person any Confidential
Information, except in connection with Employee's work on behalf of Employer.
Employee hereby acknowledges that, as between Employer and Employee, Employer
has the complete, sole and full right, title and interest in and to the
Confidential Information, and that Employee has no rights, expressed or implied,
with respect to the foregoing other than those expressly provided for to the
contrary in a writing signed by both Employer and Employee. Employee further
agrees that Employee shall, immediately upon Employer's request, return to
Employer all written Confidential Information and all writings regarding oral
Confidential Information whether such writings were authorized or not. Employee
hereby agrees that the confidentiality agreement provided for hereby shall last
with respect to any Confidential Information for two years after such
Confidential Information is disclosed by Employer to Employee or developed by
Employee on behalf of Employer, as the case may be.
12. Property of Employer. Employee agrees that, upon the expiration or
termination of Employee's employment with Employer, Employee will immediately
surrender to Employer all property, equipment, funds, lists, books, records, and
other materials of Employer or any affiliate thereof in the possession of or
provided to Employee.
13. Law Governing. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF
TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
14. Notices. Any notice or request herein required or permitted to be
given to any party hereunder shall be given in writing and shall be personally
delivered or sent to such party by prepaid mail at the address set forth below
the signature of such party hereto or at such other address as such party may
designate by written communication to the other party to this Agreement. Each
notice given in accordance with this paragraph shall be deemed to have been
given, if personally delivered, on the date personally delivered, or, if mailed,
on the third day following the day on which it is deposited in the United States
mail, certified or registered mail, return receipt requested, with postage
prepaid.
15. Headings. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
16. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
17. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written or
oral, relating to the subject matter hereof.
18. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each party hereto and his, her or its respective
successors, heirs, assigns, and legal representatives, but neither this
Agreement nor any rights hereunder may be assigned by any party hereto without
the consent in writing of the other party.
19. Remedies. No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise. The election of any one or more remedies by any party hereto shall
not constitute a waiver of the right to pursue other available remedies.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of
the first date written above.
"EMPLOYER" "EMPLOYEE"
WESTSIDE ENERGY CORPORATION
(Name of Employer)
By:________________________________ ____________________________________
Xxxxxxx X. Manner
Name:______________________________
Title:_______________________________ Address:____________________________
Address:____________________________ ___________________________________
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