Exhibit 10.1
GUAR GLOBAL LTD.
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of May 7th, 2013
(the "Effective Date"), by and between Guar Global LTD., a Nevada corporation
located at 0000 Xxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (the
"Company"), and XXXXXXX XXXXXX, an individual with an address at 0000 Xxxx Xxxx
Xxxx, Xxxxxxxxxxx, Xxxxx 00000 (the "Executive").
WHEREAS, the Company and Executive desire to provide for the employment of
Executive by the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and Executive hereby agree as follows:
1. Employment.
1.1 Position. The Company hereby employs the Executive, and the Executive
hereby accepts employment, as the Chief Executive Officer of the Company, on the
terms and conditions hereinafter set forth
1.2 Duties. The Executive shall serve as the Company's Chief Executive
Officer and Chairman of the Board of Directors of the Company (the "Board"), and
shall perform the customary duties and responsibilities implied by such position
including, without limitation, being responsible for the general management of
the affairs of the Company, subject to the power and authority of the Board to
overrule actions of officers of the Company. In such capacities the Executive
shall report directly to the Board. These positions, duties, and
responsibilities can be modified as reasonably required to suit the specific
requirements and needs of the Company, provided that the same shall be
commensurate with the Executive's experience and expertise and shall not result
in the Executive having duties and responsibilities substantially less senior
and more onerous to the Executive.
1.3 Time and Effort. During the Term, the Executive shall, except for
vacation periods as provided for herein and reasonable periods of illness or
disability, devote between thirty and seventy percent (30%-70%) of the
Executive's working time, attention, abilities, skill, labor and efforts to the
performance of the Executive's obligations hereunder. The Executive shall not,
during the Term of this Agreement (as herein defined), engage in any other
business activity or conduct, whether or not such business activity or conduct
is pursued for gain, profit or other pecuniary advantage, which activity or
conduct adversely affects in any material respect the Executive's ability to
perform his obligations hereunder, except with the prior written consent of the
Board. Notwithstanding the foregoing, the parties recognize and agree that
Executive may engage in any other business activity or conduct that is not in
competition with the business of the Company and in personal investments and
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other business, civic or charitable activities that do not conflict with the
business and affairs of the Company or interfere in any material respect with
Executive's performance of his duties hereunder. The Executive will at all times
perform all of the duties and obligations required of the Executive by the terms
of this Agreement in a loyal and conscientious manner and to the best of the
Executive's ability and experience. Executive agrees to comply in all material
respects with (i) the policies and directives of the Company (including the
Company's code of ethics and xxxxxxx xxxxxxx policy), and (ii) with all
applicable laws and regulations of the countries in which the Company operates,
all as in effect from time to time.
1.4 Travel. Executive will undertake appropriate business travel as
reasonably required by the Company.
2. Term. The term (the "Term") of this Agreement shall commence on the
Effective Date and shall continue for a period of two years. Executive
understands and acknowledges that during the Probation Period (defined under
Section 6.2(c)), either party may terminate this Agreement at any time for any
reason or no reason, and after the Probation Period, either party may terminate
this Agreement for any reason or no reason upon thirty (30) days prior written
notice.
3. Compensation.
3.1 Base Salary. The Company agrees to pay the Executive, and Executive
agrees to accept, a base cash salary (the "Base Salary"), in accordance with the
Company's normal payroll procedures applicable to executives, payable at least
bi-weekly after the period worked. The Base Salary shall initially be payable at
the rate of $7,000 per month for the first six (6) months, after which the
Board, in good faith and at its sole discretion, will review the Base Salary to
determine any changes to the monthly amount. All compensation payments to be
made to the Executive will be subject to required withholding of federal, state
and local income and employment taxes.
3.2. Annual Review. During the month preceding each anniversary of the
Effective Date, or at such other time as the Company may establish in its
discretion, the Board will review the Executive's compensation and the Company's
financial circumstances and needs and determine in good faith, at the Board's
sole discretion, if any change is merited based upon Executive's performance and
the total cash compensation paid by comparable companies to executives with
comparable experience and responsibilities.
3.3 Compensation From Other Sources. Any proceeds that Executive receives
by virtue of qualifying for disability insurance, disability benefits, or health
or accident insurance shall belong exclusively to Executive.
3.4 Restricted Stock. The Company and Executive will negotiate and agree to
terms relating to a restricted stock award plan within sixty (60) days of the
Effective Date.
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4. Expenses. The Company will pay or reimburse Executive for all necessary
out-of-pocket transportation, hotel, and other expenses reasonably incurred by
Executive in the conduct of the business of the Company upon submission of such
itemized vouchers, receipts or other documentation with respect to any such
expenses as shall be reasonably requested by the Company, and, in any event, in
accordance with the guidelines of the Company, if any, published from time to
time.
5. Benefits. During the Term, the Company shall provide the Executive at
the Company's expense, with all benefits currently in place or subsequently
established by the Company. Executive shall be entitled to (i) paid vacation in
each calendar year, and (ii) paid days off for illness, religious observance and
personal reasons (which shall, in any event, be at least three days), all in
accordance with the Company's policy in effect from time to time. The timing of
such vacation and personal days shall be scheduled in a reasonable manner by
Executive and shall not interfere with the operations of the Company.
6. Termination.
6.1 Termination Events. The Term shall terminate on the earliest to occur
of the following:
(i) upon the expiration of this Agreement if not renewed;
(ii) upon written notice by either the Company or Executive;
(iii) the death of the Executive;
(iv) upon thirty days' written notice from the Company in the event of the
Executive's Disability (as used herein, "Disability" means (A) the physical or
mental disability which prevents the Executive from performing his obligations
under this Agreement in substantially the same manner as performed immediately
before the applicable event for a period of six consecutive months or an
aggregate of 180 days during any period of 365 consecutive days) or (B) a
written determination by a licensed medical doctor selected by the Company and
reasonably acceptable to the Executive that the Executive has incurred a
physical or mental disability from which he will not be able to recover
sufficiently to return to full-time active employment hereunder within 365 days
of the determination (a "Permanent Disability"). The Executive shall cooperate
with and permit examination by any licensed medical doctor retained by the
Company to evaluate whether he has suffered a Permanent Disability (but in no
event shall Executive be required to submit to any invasive or painful
procedures); or
(v) upon written notice from the Company to Executive that Executive's
employment is being terminated for Cause, as herein defined, the giving of which
notice shall be authorized by majority vote of the Board or by a majority vote
of the issued and outstanding capital stock of the Company. As used herein,
"Cause" shall be limited to the Executive's: (A) embezzlement or willful
misappropriation of funds of the Company, (B) conduct that causes material harm
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to the Company or willful misconduct by Executive; (C) conviction or commission
of, or plea of nolo contendere by, Executive of any felony, misdemeanor or other
illegal conduct involving an act of moral turpitude or otherwise relating
directly or indirectly to the business or reputation of the Company; (D)
habitual drug or other substance abuse that interferes in any material respects
with the performance of Executive's duties under this Agreement; (E) debarment
by any federal agency that would limit or prohibit Executive from serving in his
prescribed capacity for the Company under this Agreement; (F) continuing failure
to communicate and fully disclose any and all information related to the
business, operations, management and accounting of the Company to the Board, the
failure of which would adversely impact the Company or may result in a violation
of state or federal securities laws; (G) continuing willful and intentional
failure to perform his duties as stated herein or as reasonably requested by the
Board; or (I) dishonesty towards, fraud upon, or deliberate injury or attempted
injury to the Company.
6.2 Termination Payments.
(a) Upon termination of Executive's employment hereunder for any reason,
the Company's obligations to Executive shall terminate, subject to prompt
payment within thirty (30) days of all monies due hereunder up to the date of
termination including unpaid Base Salary and reimbursement of reasonable
business expenses as well as continuation of any applicable benefits as required
by laws of the State of Nevada, USA. All non-vested equity awards shall be
deemed canceled as of the date of termination.
(b) In the event this Agreement is terminated by the Company for no Cause,
the Company shall also pay the Executive, his Base Salary then in effect for an
additional one hundred twenty (120) day period unless Executive has materially
breached any restrictive covenant under this Agreement (the "Severance
Payment"). Notwithstanding the foregoing, if Executive's employment terminates
pursuant to Sections 6.1(i), (iii), (iv) or (v), Executive will not be entitled
to the Severance Payment.
(c) The first ninety (90) days of the Term will be a probationary period
(the "Probation Period") during which if Executive is terminated for any reason,
whether for Cause or no Cause, Executive will not be entitled to receive the
Severance Payment.
(d) Upon termination of this Agreement, the provisions of Sections 6.2, 7,
8, 9, 10 and 11 shall survive the termination of this Agreement for a period of
five (5) years.
7. Proprietary Information; Confidentiality.
7.1 Confidential Information. Executive, during the course of his duties,
will be handling business, financial, accounting, statistical, marketing and
personnel information of the Company and/or its customers or other
third-parties. All such information is confidential and shall not be disclosed,
directly or indirectly, or used by Executive in any way, either during the term
of this Agreement or at any time thereafter except as required in the course of
Executive's employment with the Company. Executive agrees not to disclose to any
others, or take or use for Executive's own purposes or purposes of any others,
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during the term of this Agreement, any of the Company's Confidential Information
(as defined below). Executive agrees that these restrictions shall also apply to
(1) Confidential Information belonging to third parties in the Company's
possession, and (2) Confidential Information conceived, originated, discovered
or developed by Executive during the term of this Agreement. "Confidential
Information" means any Company proprietary information, trade secrets or
know-how (of any kind, type or nature, whether written, stored on magnetic or
other media, or oral), including, but not limited to, research and development,
crop yield, property pricing, plans, services, customer and vendor lists,
computer programs, marketing, finances or other business information that has
been compiled, prepared, devised, developed, designed, discovered, or otherwise
learned by Executive during the course of his employment and/or disclosed to
Executive by the Company, either directly or indirectly, in writing, orally, or
by observation of any business conduct. Confidential Information does not
include any of the foregoing items that has become publicly known and made
generally available through no wrongful act of Executive. Executive further
agrees not to use improperly or disclose or bring onto the premises of the
Company any trade secrets of another person or entity during the term of this
Agreement.
7.2 Return of Property. Executive agrees that upon termination of
employment with the Company, Executive will deliver to the Company all devices,
records, data, disks, computer files, notes, reports, proposals, lists,
correspondence, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by Executive pursuant to
employment with the Company or otherwise belonging to the Company, its
successors or assigns.
7.3 Employment Information. Executive represents and warrants to the
Company that information provided by Executive in connection with his employment
and any supplemental information provided to the Company is complete, true and
materially correct in all respects. Executive has not omitted any information
that is or may reasonably be considered necessary or useful to evaluate the
information provided by Executive to the Company. Executive shall immediately
notify the Company in writing of any change in the accuracy or completeness of
all such information.
7.4 Other Agreements. Executive represents that the performance of all the
terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by Executive in confidence or in trust prior to
employment with the Company. Executive has not and shall not: (i) disclose or
use in the course of his employment with the Company, any proprietary or
trade-secret information belonging to another; or (ii) enter into any oral or
written agreement in conflict with this Agreement.
8. Unfair Competition; Non-Solicitation.
8.1 Unfair Competition. During the term of this Agreement, Executive has a
duty of loyalty and a fiduciary duty to the Company. Executive shall not,
directly or indirectly, whether as a partner, employee, creditor, stockholder,
or otherwise, promote, participate, or engage in any activity or other business
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which is directly competitive to the current operations of the Company or the
currently contemplated future operations of the Company. The obligation of
Executive not to compete with the Company shall not prohibit Executive from
owning or purchasing more than a five percent (5%) beneficial interest in any
securities that are regularly traded on a recognized stock exchange or on the
over-the-counter market subject to relevant federal and state securities laws.
To the fullest extent permitted by law, upon the termination of Executive's
employment with the Company for any reason, Executive shall not use any of the
Company's confidential, proprietary or trade secrets information to directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or any other individual or
representative capacity, engage or participate in any business, wherever
located, that is in direct competition with the business of Employer. Should any
portion of this Section be deemed unenforceable because of the scope, duration
or territory encompassed by the undertakings of the Executive hereunder, and
only in such event, then the Executive and the Company consent and agree to such
limitation on scope, duration or territory as may be finally adjudicated as
enforceable by a court of competent jurisdiction after the exhaustion of all
appeals.
8.2 Non-Solicitation of Customers. While employed by the Company, Executive
shall not divert or attempt to divert (by solicitation or other means), whether
directly or indirectly, the Company's customers for the purpose of inducing or
encouraging them to sever their relationship with the Company or to solicit them
in connection with any product or service competing with those products and
services offered and sold by the Company. Also, to the fullest extent
permissible under applicable law, following termination of Executive's
employment with the Company for any reason, Executive agrees not use any of the
Company's confidential, proprietary or trade secrets information to directly or
indirectly divert or attempt to divert (by solicitation or other means) the
Company's customers for the purpose of inducing or encouraging them to sever
their relationship with the Company or to solicit them in connection with any
product or service competing with those products and services offered and sold
by the Company.
8.3 Non-Disparagement. Upon termination of Executive's employment with the
Company, Executive agrees to not make any disparaging remarks about the Company,
or any officers, directors, employees, consultants or independent contractors of
or to any of the foregoing.
9. Trade Secrets. Executive shall not disclose to any others, or take or
use for Executive's own purposes or purposes of any others, during the Term or
at any time thereafter, any of the Company's trade secrets, including without
limitation, Confidential Information, customer and vendor lists, computer
programs, applications or software or intellectual property of the Company.
Executive agrees that these restrictions shall also apply to (i) trade secrets
belonging to third parties in Company's possession and (ii) trade secrets
conceived, originated, discovered or developed by Executive during the Term of
this Agreement relating to the affairs of the Company.
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10. Inventions; Ownership Rights. Executive agrees that all ideas,
techniques, inventions, systems, formulas, designs, discoveries, technical
information, programs, prototypes and similar developments ("Inventions")
developed, created, discovered, made, written or obtained by Executive in the
course of or as a result of performance of his duties hereunder, and all related
industrial property, trademarks, service marks, copyrights, patent rights, moral
rights, trade secrets and other forms of protection thereof, shall be and remain
the sole property of the Company and its assigns. Executive shall promptly
disclose to Company, or any persons designated by it, all Inventions, made or
conceived or reduced to practice or learned by Executive, either alone or
jointly with others, during the Term which are related to or useful in the
business of the Company, or result from tasks assigned to Executive by the
Company, or result from use of premises owned, leased or contracted by the
Company. Such disclosure shall continue for one year after termination of
employment with respect to anything that would be an Invention if made,
conceived, reduced to practice or learned prior to termination of employment.
Executive agrees to execute or cause to be executed such assignments and
applications, registrations and other documents and to take such other action as
may be reasonably requested by the Company to enable the Company to protect its
rights to any such Inventions. If the Company requires Executive's assistance in
executing or causing to be executed such assignments and applications,
registrations and other documents under this Section (all of which shall be
prepared at the expense of the Company) after termination of this Agreement,
Executive shall do so at mutually convenient times and places and be compensated
for his time actually spent in providing such assistance at a reasonable hourly
rate as agreed upon by the parties and be reimbursed for any necessary expenses,
including reasonable attorney's fees, reasonably incurred in doing so. In the
event that the Company is unable for any reason whatsoever to secure Executive's
signature to any lawful and necessary document required to apply for or execute
any such documents with respect to Inventions (including renewals, extension,
continuations, divisions or continuations in part thereof), Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents, as Executive's agents and attorneys-in-fact to act for and in his
behalf and instead of him, to execute and file any such application and document
and to do all other lawfully permitted acts with respect thereto with the same
legal force and effect as if executed by Executive. As a matter of record
Executive has identified beneath his signature hereto a complete list of all
inventions or improvements relevant to the subject matter of his employment by
the Company which have been made or conceived or first reduced to practice by
him alone or jointly with others prior to his employment by the Company ("Prior
Inventions") which Executive desires to remove from the operation of this
Agreement; and Executive covenants that such list is complete. Executive agrees
and acknowledges that in further consideration of his employment under this
Agreement, in the absence of such list of Prior Inventions, all Prior Inventions
shall be the sole and exclusive property of the Company and Executive agrees to
execute or cause to be executed such assignments and applications, registrations
and other documents and to take such other action as may be reasonably requested
by the Company to enable the Company to protect its rights to any such Prior
Inventions.
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11. Miscellaneous.
11.1 Assignment. It is hereby agreed that Executive's rights and
obligations under this Agreement are personal and may not be delegated or
assigned. No assignment by the Company shall be effective unless the assignee
expressly agrees in writing to become bound by the terms and conditions hereof.
11.2 Binding Effect. The obligations of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, the parties hereto,
their legal representatives, administrators, executors, heirs, legatees,
distributees, successors and permitted assigns, and upon transferees by
operation of law, whether or not any such person or entity shall have signed
this Agreement.
11.3 Notices. Any notice permitted, required or given hereunder shall be in
writing and shall be delivered (i) personally, (ii) by any prepaid overnight
courier delivery service then in general use, (iii) mailed, by registered or
certified mail, return receipt requested, or (iv) transmitted by fax and then
confirmed within three business days by any other method set forth above, to the
addresses designated on the first page hereof or at such other address as may be
designated by notice duly given hereunder. A notice provided in the manner
required herein shall be deemed given: (i) if delivered personally, upon
delivery; (ii) if sent by overnight courier, on the first business day after it
is sent; (iii) if mailed, three business days after mailing; and (iv) if sent by
fax, upon actual receipt of the fax or confirmation thereof (whichever is
first).
11.4 Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver, file, record and publish such certificates, instruments,
agreements and other documents, and to take all such further action as may be
required by law or which either party deems reasonably necessary or useful in
furtherance of the purposes and objectives and intentions underlying this
Agreement and not inconsistent with its terms.
11.5 Entire Agreement. This Agreement incorporates the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, whether written or oral,
with respect to its subject matter.
11.6 Amendments; Waiver. Except as expressly provided herein, neither this
Agreement nor any provision hereof may be terminated, modified or amended unless
in writing signed by both parties hereto. No waiver by any party, whether
express or implied, of any provision of this Agreement, or of any breach or
default, shall constitute a waiver of a breach of any similar or dissimilar
provision or condition or shall be effective unless in writing signed by the
party against whom enforcement is sought.
11.7 Severability; Captions. If any provision of this Agreement or the
application thereof to any person or circumstances shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other parties or circumstances shall not be affected
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thereby and shall be enforced to the greatest extent permitted by law. The
headings in this Agreement are inserted for convenience and identification only.
11.8 Actions Contrary to Law. Nothing contained in this Agreement shall be
construed to require the commission of any act contrary to law, and whenever
there is any conflict between any provision of this Agreement and any statute,
law, ordinance, or regulation, contrary to which the parties have no legal right
to contract, then the latter shall prevail; but in such event, the provisions of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
11.9 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Nevada, USA without giving
effect to its principles of conflicts of law. The parties irrevocably agree to
submit to the jurisdiction of the federal and state courts within the State of
Nevada, USA, and waive any defense based on forum non convenes or improper venue
with respect thereto. Each party shall pay their own attorney's fees and costs.
No remedy conferred in this Agreement upon the Executive or the Company is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy conferred
herein or now or hereafter existing at law or in equity or by statute or
otherwise.
11.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and together shall
constitute a single document.
11.11 Tax Advice. The Executive acknowledges that the Executive has not
relied and will not rely upon the Company or the Company's counsel with respect
to any tax consequences related to the terms and conditions of this Agreement.
The Executive assumes full responsibility for all such consequences and for the
preparation and filing of all tax returns and elections which may or must be
filed in connection with this Agreement.
11.12 Representation. The parties to this Agreement, and each of them,
acknowledge, agree, and represent that it: (a) has directly participated in the
negotiation and preparation of this Agreement; (b) has read the Agreement and
has had the opportunity to discuss it with counsel of its own choosing; (c) it
is fully aware of the contents and legal effect of this Agreement; (d) has
authority to enter into and sign the Agreement; and (e) enters into and signs
the same by its own free will.
11.13 Drafting. The parties to this Agreement acknowledge that each of them
have participated in the drafting and negotiation of this Agreement. For
purposes of interpreting this Agreement, each provision, paragraph, sentence and
word herein shall be deemed to have been jointly drafted by both parties. The
parties intend for this Agreement to be construed and interpreted neutrally in
accordance with the plain meaning of the language contained herein, and not
presumptively construed against any actual or purported drafter of any specific
language contained herein.
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IN WITNESSETH WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Guar Global LTD.
By:
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Name:
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Title: Chairman of Board of Directors
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XXXXXXX XXXXXX
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