EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(the
“Agreement”) is
made in Sarasota, Florida effective as of January 23, 2007, by and between
FALCON
NATURAL GAS CORP.,
a Nevada
corporation (the “Company”),
and
XXXX
XXXXXX DEUTSCH,
an
individual residing in Brooklyn, New York (the “Executive”),
who
hereby agree as hereinafter provided.
Section 1. Definitions.
As used
herein, the following terms shall have the meanings set forth
below.
“Agreement”
shall
have the meaning set forth in the introductory paragraph hereof.
“Base
Compensation”
shall
have the meaning set forth in Section 5(a).
“Board
of Directors”
means
the incumbent directors of the Company as of the point in time reference thereto
is made in this Agreement.
“Cause”
shall
have the meaning set forth in Section 10(b).
“COLA
Adjustment”
means
the cost of living adjustment, which shall correspond to the percent rise in
prices for the preceding year as measured by the Consumer Price Index for all
Urban Consumers (CPI-UC),
All
City Average, all Items (base year 1982-1984 = 100) published by the United
States Department of Labor, Bureau of Labor Statistics (the “Index”).
The
COLA Adjustment shall be determined by multiplying the amount or figure to
be
adjusted by a fraction, the numerator of which is the Index published for the
month in which occurs the date of adjustment and the denominator of which is
the
Index published for the same month of the preceding year.
“Company”
shall
have the meaning set forth in the introductory paragraph of this Agreement,
and
shall include Subsidiaries where appropriate.
“Competitive
Business”
shall
have the meaning set forth in Section 9(a).
“Confidential
Information”
shall
have the meaning set forth in Section 9(c).
“Disability”
of
the
Executive means that, as a result of the Executive’s incapacity due to physical
or mental illness, the Executive shall have been absent from his duties on
a
full time basis for six (6) consecutive months, or for an aggregate of nine
(9) months in any consecutive twelve (12) month period, and a
physician selected by the Executive is of the opinion that (a) he is
suffering from “total disability” as defined in the Company’s disability
insurance program or policy and (b) he will qualify for Social Security
Disability Payments and (c) within thirty (30) days after written
notice thereof is given by the Company to the Executive (which notice may be
given at any time after the end of such six (6) or twelve (12) month
periods) the Executive shall not have returned to the performance of his
duties on a full-time basis. (If the Executive is prevented from performing
his
duties because of Disability, upon request by the Company, the Executive shall
submit to an examination by a physician selected by the Company, at the
Company’s expense, and the Executive shall also authorize his personal physician
to disclose to the selected physician all of the Executive’s medical
records).
“Employment
Commencement Date”
means
January 23, 2007.
“Employment
Period”
means
that period commencing on the Employment Commencement Date and ending on the
Employment Termination Date.
“Employment
Termination Date”
means
the date the Employment Period terminates as provided in
Section 10.
“Executive”
shall
have the meaning set forth in the introductory paragraph of this
Agreement.
“Fiscal
Year”
means
the fiscal year of the Company ending December 31 or as such fiscal year as
may be amended by the Board of Directors.
“Incentive
Bonus Compensation”
shall
have the meaning set forth in Section 5(b).
“Notice
of Termination”
shall
have the meaning set forth in Section 10(a)(1).
“Restricted
Period”
shall
have the meaning set forth in Section 9(a).
“Scheduled
Employment Termination Date”
means
the day immediately preceding the first (1st) anniversary of the Employment
Commencement Date.
“Subsidiaries”
means
wholly owned subsidiaries of the Company.
Section 2. Employment
and Term.
The
Company hereby employs the Executive, and the Executive hereby accepts such
employment by the Company, for the purposes and upon the terms and conditions
contained in this Agreement. The term of such employment shall be for the
Employment Period.
Section 3. Employment
Capacity and Duties.
The
Executive shall be employed throughout the Employment Period as the Chief
Financial Officer of the Company. The Executive shall have the duties and
responsibilities incumbent with the positions of Chief Financial Officer of
the
Company and such other duties as reasonably determined by the Chief Executive
Officer and the Board of Directors of the Company. The Company agrees that
it
will not, without the Executive’s written consent, require the Executive to be
based anywhere other than New York City, New York, except for required travel
on
the Company’s business to an extent substantially consistent with present travel
obligations.
Section 4. Executive
Performance Covenants.
The
Executive accepts the employment described in Section 3 and agrees to
devote significant working time and efforts (except for absences due to
illness and appropriate vacations) to the business and affairs of the
Company as is reasonably required for the performance of the aforesaid duties
and responsibilities. Nothing in this Agreement shall preclude the Executive
from devoting a reasonable amount of his time and efforts to civic, community,
charitable, professional and trade association affairs and matters and such
other activities as may be disclosed to the Board of Directors.
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Section 5. Compensation.
The
Company shall pay to the Executive for his services hereunder, the compensation
hereinafter provided in this Section 5. Such compensation shall be paid to
the Executive at the time and in the manner as provided below. The Executive
agrees to accept the compensation to be made to him under this Agreement as
full
and complete compensation for the services required to be performed by, and
the
covenants of, the Executive under this Agreement.
(a) Base
Compensation.
The
Executive shall be paid “Base
Compensation”
for
each Fiscal Year at an annual rate of $192,000, which Base Compensation (less
applicable withholding and other employment taxes) shall be paid. The Base
Compensation (i) may be increased (but may not be decreased) at any
time or from time to time by action of the Board of Directors or any committee
thereof, and (ii) shall be increased by the COLA Adjustment annually as of
the beginning of each Fiscal Year, commencing with the Fiscal Year beginning
January 1, 2008. The Base Compensation shall be pro-rated for any Fiscal
Year hereunder which is less than a full Fiscal Year.
(b) The
Executive shall be paid $1,000 per month for each calendar month the Executive
serves as a member of the Board of Directors.
(c) Incentive
Bonus Compensation.
The
Executive shall be eligible for incentive bonus compensation for each Fiscal
Year in an amount to be determined by the Board of Directors or any committee
thereof (“Incentive
Bonus Compensation”).
Section 6. Payment
of Expenses.
The
Company shall pay the Executive’s reasonable expenses incurred in providing
services to the Company, including expenses for travel, entertainment and
similar items, in accordance with the Company’s expense policies as determined
from time to time by the Board of Directors. If there is a dispute as to the
eligibility of an expense for payment in accordance with the Company’s expense
policies, then such expense shall be determined to be payable by the Company
if
approved by a majority of the Board of Directors.
Section 7. Employee
Benefits; Vacations.
During
the Employment Period, the Executive shall receive the benefits and enjoy the
perquisites described below:
(a) Benefit
Plans.
The
Executive shall be entitled to participate in any perquisite, benefit or
compensation plan (in addition to the compensation provided for in
Section 5) including any profit sharing plan and 401(k) plan,
medical insurance plan, life insurance plan, health and accident plan and
disability plan which are generally applicable to all salaried employees of
the
Company (collectively referred to as the “Benefit
Plans”).
All
such Benefit Plans shall be maintained by the Company, or the Company shall
maintain plans providing substantially similar benefits; provided, however,
that
the Company may make modifications in the Benefit Plans so long as such
modifications (i) are generally applicable to all salaried employees of the
Company and (ii) do not discriminate against the Executive or other
highly-compensated employees of the Company.
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(b) Life
Insurance.
Notwithstanding anything herein to the contrary, during the term of the
Employment Period, the Company shall provide the Executive, at the Company’s
sole expense, insurance on the life of the Executive, for the benefit of the
Executive, in an amount not less than One Million Dollars ($1,000,000) in the
aggregate.
(c) Vacations.
The
Executive shall be entitled in each Fiscal Year to a vacation of
fifteen (15) working days, during which time his compensation shall be
paid in full, and such holidays and other nonworking days as are consistent
with
the policies of the Company for executives generally.
Section 8. Company
Life Insurance; Medical Examinations.
At any
time during the Employment Period, the Company may, in its discretion, apply
for
and procure as owner and for its own benefit, insurance on the life of the
Executive, in such amounts and in such form or forms as the Company may
determine. The Executive shall have no right to any interest in any such policy
or policies, but he shall, at the request of the Company, submit to such medical
examinations, supply such information and execute such applications, instruments
and other documents as reasonably may be required by the insurance company
or
companies to whom the Company has applied for such insurance.
If
requested by the Company, the Executive shall submit to at least one medical
examination during each Fiscal year at such reasonable time and place and by
a
physician or physicians determined and selected by the Company. All the costs
and expenses of said medical examination, including transportation of the
Executive to the place of examination and return, shall be paid by the
Company.
The
Executive shall be entitled to a copy of all reports and other information
provided to the Company in connection with any examination referred to in this
Section 8. Any failure to pass any such medical examination or to meet any
health criteria or medical standard shall not of itself be cause for termination
of the Employment Period by the Company.
Section 9. Certain
Company Protection Provisions.
The
below provisions of this Section 9 apply for the protection of the Company
and shall survive the termination of this Agreement.
(a) Noncompetition.
Except
for Executive’s participation in activities disclosed to the Board of Directors,
during the Restricted Period (as hereinafter defined), the Executive shall
not
directly or indirectly compete with the Company by owning, managing, controlling
or participating in the ownership, management or control of, or be employed
or
engaged by or otherwise affiliated or associated with, any Competitive Business
in any location in which the Company is doing business as of the Employment
Termination Date. As used herein, the term “Restricted
Period”
means
the Employment Period and a period of two (2) years thereafter and means
the Employment Period if the Company terminates the Executive without
“Cause” (as defined in Section 10(b)) or the Executive terminates
his employment for “Good Reason” (as defined in Section 10(e)). As
used herein, a “Competitive
Business”
is
any
other corporation, partnership, proprietorship, firm, association or other
business entity which is engaged in any business from which the Company derives
five percent or more of its consolidated revenues during the twelve
(12) months preceding the Employment Termination Date or in which the
Company has invested five percent (5%) or more of its total assets as of
the time in question, provided, however, that ownership of not more than five
percent (5%) of the stock of any publicly traded company shall not be
deemed a violation of this provision.
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(b) Non-Interference.
During
the Restricted Period, the Executive shall not induce or solicit any employee
of
the Company or any person doing business with the Company to terminate his
or
her employment or business relationship with the Company or otherwise interfere
with any such relationship.
(c) Confidentiality.
The
Executive agrees and acknowledges that, by reason of the nature of his duties
as
an officer and employee, he will have or may have access to and become informed
of confidential and secret information which is a competitive asset of the
Company (“Confidential
Information”),
including, without limitation, any lists of customers or suppliers, financial
statistics, research data or any other statistics and plans contained in profit
plans, capital plans, critical issue plans, strategic plans or marketing or
operation plans or other trade secrets of the Company and any of the foregoing
which belong to any person or company but to which the Executive has had access
by reason of his employment relationship with the Company. The Executive agrees
faithfully to keep in strict confidence, and not, either directly or indirectly,
to make known, divulge, reveal, furnish, make available or use (except for
use
in the regular course of his employment duties) any such Confidential
Information. The Executive acknowledges that all manuals, instruction books,
price lists, information and records and other information and aids relating
to
the Company’s business, and any and all other documents containing Confidential
Information furnished to the Executive by the Company or otherwise acquired
or
developed by the Executive, shall at all times be the property of the Company.
Upon termination of the Employment Period, the Executive shall return to the
Company any such property or documents which are in his possession, custody
or
control, but his obligation of confidentiality shall survive such termination
of
the Employment Period until and unless any such Confidential Information shall
have become, through no fault of the Executive, generally known to the trade.
The obligations of the Executive under this SubSection are in addition to,
and not in limitation or preemption of, all other obligations of confidentiality
which the Executive may have to the Company under general legal or equitable
principles.
(d) Remedies.
It is
expressly agreed by the Executive and the Company that these provisions are
reasonable for purposes of preserving for the Company its business, goodwill
and
proprietary information. It is also agreed that if any provision is found by
a
court having jurisdiction to be unreasonable because of scope, area or time,
then that provision shall be amended to correspond in scope, area and time
to
that considered reasonable by a court and as amended shall be enforced and
the
remaining provisions shall remain effective. In the event of any breach of
these
provisions by the Executive, the parties recognize and acknowledge that a remedy
at law will be inadequate and the Company may suffer irreparable injury. The
Executive acknowledges that the services to be rendered by him are of a
character giving them peculiar value, the loss of which cannot be adequately
compensated for in damages; accordingly the Executive consents to injunctive
and
other appropriate equitable relief upon the institution of proceedings therefor
by the Company in order to protect the Company’s rights. Such relief shall be in
addition to any other relief to which the Company may be entitled at law or
in
equity.
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Section 10. Termination
of Employment.
(a) Notice
of Termination; Employment Termination Date.
(1) Any
termination of the Executive’s employment by the Company or the Executive shall
be communicated by written Notice of Termination to the other party thereto.
For
purposes of this Agreement, a “Notice of Termination” shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon
and shall set forth in reasonable detail the facts and circumstances claimed
to
provide a basis for termination under the provision so indicated. Furthermore,
either the Executive or the Company may give a Notice of Termination to the
other party for the purpose of terminating this Agreement on the Scheduled
Employment Termination Date. Such Notice of Termination shall have the effect
of
terminating this Agreement on the Scheduled Employment Termination
Date.
(2) “Employment
Termination Date”
shall
mean the date on which the Employment Period and the Executive’s right and
obligation to perform employment services for the Company shall terminate
effective upon the first to occur of the following, it being understood that
in
no event may the Employment Period be terminated other than as the result of
one
of the following events:
(A) If
the
Executive’s employment is terminated for Disability, the date which is thirty
(30) days after Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a full-time basis
during such thirty (30) day period);
(B) If
the
Executive’s employment is terminated by the Executive for Good Reason or
otherwise by voluntary action of the Executive (see Section 10(e)), the
date specified in the Notice of Termination, which date (except with the written
consent of the Company to the contrary) shall not be more than
sixty (60) days after the date that the Notice of Termination is
given;
(C) The
death
of the Executive;
(D) The
Scheduled Employment Termination Date;
(E) If
the
Executive’s employment is terminated by the Company for Cause (see
Section 10(b)(1)), the date on which a Notice of Termination is given;
provided that if within thirty (30) days after any Notice of Termination is
given the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Employment Termination
Date shall be the date on which the dispute is finally determined, either by
mutual written agreement of the parties, by a binding and final arbitration
award or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected); and
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(F) If
the
Executive’s employment is terminated by the Company other than for Cause,
Disability or death of the Executive (see Section 10(f)), the date
specified in the Notice of Termination which date (except with the written
consent of the Executive to the contrary) shall not be more than sixty
(60) days after the date that the Notice of Termination is
given.
(b) Termination
for Cause:
(1) The
Company may terminate the Executive’s employment and the Employment Period for
Cause. For the purposes of this Agreement, the Company shall have “Cause”
to
terminate employment hereunder only (A) if termination shall have been the
result of an act or acts of willful misconduct materially injurious to the
Company, monetarily or otherwise, or (B) upon the willful and continued
failure by the Executive substantially to perform his duties with the Company
(other than any such failure resulting from incapacity due to mental or physical
illness) after a demand in writing for substantial performance is delivered
by the Board of Directors, which demand specifically identifies the manner
in
which the Board believes that the Executive has not substantially performed
his
duties, and such failure results in demonstrably material injury to the Company.
The Executive’s employment shall in no event be considered to have been
terminated by the Company for Cause if such termination took place as the result
of (i) bad judgment or negligence, or (ii) any act or omission without
intent of gaining therefrom directly or indirectly a profit to which the
Executive was not legally entitled, or (iii) any act or omission believed
in good faith to have been in or not opposed to the interest of the Company,
or
(iv) any act or omission in respect of which a determination is made that
the Executive met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses under the Articles
of
Incorporation of the Company or the laws of the State of Nevada, in each case
as
in effect at the time of such act or omission. The Executive shall not be deemed
to have been terminated for Cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote
of
not less than two-thirds of the entire membership of the Board of Directors
at a
meeting of the Board of Directors called and held for the purpose (after not
less than thirty (30) days’ written notice to the Executive and an
opportunity for him together with his counsel, to be heard before the Board
of
Directors, such notice of meeting to indicate the specific termination provision
of this Agreement relied upon and specify in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision
so
indicated), of finding that in the good faith opinion of the Board of Directors
the Executive was guilty of conduct set forth above in clauses (A) or
(B) of the second sentence of this paragraph and specifying the particulars
thereof in detail.
(2) If
the
Executive’s employment shall be terminated for Cause, the Company shall pay the
Executive within ten (10) days of such termination, his unpaid Base
Compensation through the Employment Termination Date at the rate in effect
at
the time Notice of Termination is given, plus (2) any expenses incurred in
accordance with Section 6 hereof.
(c) Termination
for Disability.
The
Company may terminate the Executive’s employment because of the Disability of
the Executive and thereafter shall pay to the Executive (or his
successors) (1) his unpaid Base Compensation through the sixth
(6th) full
month following the Employment Termination Date at his then effective Base
Compensation rate; plus (2) any accrued but unpaid Incentive Compensation,
plus (3) any expenses incurred in accordance with Section 6
hereof.
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(d) Termination
Upon Executive’s Death.
In the
event of the Executive’s death, the Company shall pay to the Executive’s estate
(1) any unpaid amount of Base Compensation through the date of death at the
then effective Base Compensation rate, plus (2) any accrued but unpaid
Incentive Compensation, plus (3) any expenses incurred in accordance with
Section 6 hereof. All previously granted stock options, rights, warrants
and awards shall fully vest on the death of the Executive, except that the
provisions of the Company’s Stock Incentive Plan and any other Benefit Plan
shall control the benefits and awards covered thereby.
(e) Termination
of Employment by the Executive.
(1) The
Executive may terminate his employment for Good Reason and receive the payments
and benefits specified in Section 10(f) in the same manner as if the
Company had terminated his employment without Cause. For purposes of this
Agreement, “Good
Reason”
will
exist if any one or more of the following occur:
(A) Failure
by the Company to honor any of its obligations under this Agreement, including,
without limitation, its obligations under Section 3 (Employment
Capacity and Duties).
Section 4 (Executive
Performance Covenants).
Section 5 (Compensation).
Section 6 (Reimbursement
of Expenses).
Section 7 (Employee
Benefits, Vacations).
Section 11 (Indemnification) and
Section 13 (Successors
and Assigns);
or
(B) Any
purported termination by the Company of the Executive’s employment that is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 10(a) above and, for purposes of this Agreement, no such
purported termination shall be effective; or
(C) If
there
is a Change in Control of the Company (as defined below) and the employment
of the Executive is concurrently or subsequently terminated (i) by the
Company without Cause, (ii) by service of a Notice of Termination or
(iii) by the resignation of the Employee because he has reasonably
determined in good faith that his titles, authorities, responsibilities, salary,
bonus opportunities or benefits have been materially diminished, or that a
material adverse change in his working conditions has occurred or the Company
has breached this Agreement. For the purpose of this Agreement, a “Change
in Control”
of the
Company has occurred when: (x) any person (defined for the purposes of this
Section 10 to mean any person within the meaning of
Section 13(d) of the Securities Exchange Act of 1934 (the
“Exchange
Act”)),
other than the Company, or an employee benefit plan established by the Board
of
Directors of the Company, acquires, directly or indirectly, the beneficial
ownership (determined under Rule 13d-3 of the regulations promulgated by the
Securities and Exchange Commission under Section 13(d) of the Exchange
Act) of securities issued by the Company having fifty
percent (50%) or more of the voting power of all of the voting
securities issued by the Company in the election of directors at the meeting
of
the holders of voting securities to be held for such purpose; or (y) a
majority of the directors elected at any meeting of the holders of voting
securities of the Company are persons who were not nominated for such election
by the Board of Directors of the Company or a duly constituted committee of
the
Board of Directors of the Company having authority in such matters; or
(z) the Company merges or consolidates with or transfers substantially all
of its assets to another person.
8
(2) The
Executive shall have the right voluntarily to terminate his employment other
than for Good Reason prior to the Scheduled Employment Termination Date, and
if
the Executive shall so terminate his employment, he shall be entitled only
to
payment of the amounts which would be payable under
Section 10(b)(2) had he been terminated for Cause.
(f) Compensation
Upon Termination Other Than for Cause.
(1) If
the
Company shall terminate the Executive’s employment other than for Cause,
Disability or death, or if the Executive shall terminate his employment for
Good
Reason pursuant to Section 10(e)(1) (but not a termination voluntarily
by the Executive other than for Good Reason under Section 10(e)(2)), then
the Company shall pay to the Executive the following amounts:
(A) (1) His
unpaid Base Compensation through the Employment Termination Date at his then
effective Base Compensation, plus (2) any accrued but unpaid Incentive
Bonus Compensation, plus (3) any expenses incurred in accordance with
Section 6 hereof.
(B) In
addition, the Company shall pay to the Executive promptly in a single lump
sum
in cash an amount equal to the lesser of (i) his unpaid Base Compensation
through the Scheduled Employment Termination Date, or (ii) the product of
two (2), multiplied by one hundred percent (100%) of the aggregate
total amount which would have been payable to Executive under Section 5 for
the entire Fiscal Year in which occurs the Employment Termination Date as if
his
employment had not been terminated (and without deduction or offset for any
amounts actually paid for such Fiscal Year on account of Base Compensation
or
Incentive Bonus Compensation, under Section 5, this Section 10 or
otherwise), and assuming for purposes of calculating (x) the Base
Compensation, one hundred percent (100%) of the amount thereof at the
annual rate payable for such Fiscal Year pursuant to Section 5(a) and
(y) the Incentive Bonus Compensation, an amount equal to the Incentive
Bonus Compensation paid to the Executive in the previous Fiscal Year.
(C) The
Company shall also pay all legal fees and expenses incurred as a result of
such
termination (including all such fees and expenses, if any, incurred in
contesting or disputing any such termination, in seeking to obtain or enforce
any right or benefit provided by this Agreement, or in interpreting this
Agreement). The Company agrees, in the event the Executive desires to relocate
within one year after the Employment Termination Date, to pay for (or
reimburse) all reasonable moving expenses incurred relating to a change of
principal residence in connection with such relocation and to indemnify the
Executive in connection with any loss he may sustain in the sale of his primary
residence.
(D) The
Executive shall be under no obligation to seek other employment and there shall
be no offset against any amounts due the Executive under this Agreement on
account of any remuneration attributable to any subsequent employment that
the
Executive may obtain (any amounts due under Section 10(f) are in the
nature of severance payments, or liquidated damages, or both, and are not in
the
nature of a penalty).
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(2) Unless
Executive is terminated for Cause, the Company shall maintain in full force
and
effect, for the Executive’s continued benefits through the Scheduled Employment
Terminate Date, all active and retired Benefit Plans and other benefit programs
or arrangements in which he was entitled to participate immediately prior to
the
Scheduled Employment Terminate Date (except as specified in
Section 7(a) of this Agreement), provided that continued participation
is possible under the general terms and provisions of such plans and programs.
In the event that participation in any such plan or program is barred, the
Company shall arrange to provide him with benefits substantially similar to
those which he is entitled to receive under such plans and
programs.
(g) Compensation
Upon Disability.
During
any period that the Executive fails to perform his duties hereunder as a result
of incapacity due to physical or mental illness, he shall continue to receive
his full Base Compensation at the rate then in effect and his full Incentive
Bonus Compensation until this Agreement is terminated pursuant to
Section 10(c) hereof. Thereafter, his benefits shall be determined in
accordance with the Company’s Benefit Plans.
Section 11. Indemnification.
As an
employee, officer and director of the Company, the Executive shall be
indemnified against all liabilities, damages, fines, costs and expenses by
the
Company in accordance with the indemnification provisions of the Company’s
Articles of Incorporation as in effect on the date hereof, and otherwise to
the
fullest extent to which employees, officers and directors of a corporation
organized under the laws of Nevada may be indemnified pursuant to Sections
78.037(1) and 78.751 of the Nevada General Corporation Law, as the same may
be amended from time to time (or any subsequent statute of similar tenor and
effect), subject to the terms and conditions of such statute.
Section 12. Arbitration.
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Houston, Texas, in accordance with
the
rules of the American Arbitration Association then in effect; provided that
all
arbitration expenses shall be borne by the Company. Notwithstanding the pendency
of any dispute or controversy concerning termination or the effects thereof,
the
Company will continue to pay the Executive his full compensation in effect
immediately before any Notice of Termination giving rise to the dispute was
given (including, but not limited to, Base Salary and Incentive
Compensation) and continue him as a participant in all compensation,
benefit and insurance plans in which he was then participating, until the
dispute is finally resolved. Judgment may be entered on the arbitrators’ award
in any court having jurisdiction; provided, however, that the Executive shall
be
entitled to seek specific performance of his right to be paid until the
Employment Termination Date during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
Section 13. Successors
and Assigns.
Except
as hereinafter expressly provided, the agreements, covenants, terms and
provisions of this Agreement shall bind the respective heirs, executors,
administrators, successors and assigns of the parties. Specifically, and not
by
way of limitation of the foregoing, the Executive shall be bound by the terms
and conditions of this Agreement to any successor assignee of the Company’s
rights and obligations hereunder as a result of any merger, consolidation or
sale or lease of all or substantially all of the Company’s business sand assets.
If any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of
the Company fails, concurrently with the effectiveness of any such succession,
to agree in writing in form and substance reasonably satisfactory to the
Executive expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
if
no such succession had taken place, then the Executive shall have the right,
effected by notice to such successor not later than ninety (90) days after
the effectiveness of such succession, to terminate the Employment Period under
Section 10(e) as though such failure was an uncured breach by the
Company of a material covenant or agreement of the Company contained in this
Agreement.
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If
the
Executive should die while any amounts are payable to him hereunder, or if
by
reason of his death payments are to be made to him hereunder, then this
Agreement shall inure to the benefit of and be enforceable by the Executive’s
executors, administrators, heirs, distributees, devisees and legatees and all
amounts payable hereunder shall then be paid in accordance with the terms of
this Agreement to the Executive’s devisee, legatee or other designee or, if
there is no such designee, to his estate.
This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, except as hereinbefore provided in this Section 14.
Without limiting the foregoing, the Executive’s right to receive payments
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by his will or by
the
laws of descent or distribution, and in the event of any attempted assignment
or
transfer contrary to this paragraph the Company shall have no liability to
pay
to the purported assignee or transferee any amount so attempted to be assigned
or transferred.
As
used
in this Agreement, the “Company”
shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in the first paragraph of this Section 13 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
Section 14. Notices.
Any
notice or other communication required or desired to be given hereunder shall
be
in writing and shall be deemed sufficiently given when personally delivered
or
when mailed by first class certified mail, return receipt requested and postage
prepaid, addressed to the parties at their respective addressed set forth under
their respective signatures below or such other person or addresses as shall
be
given by notice of any party.
Section 15. Waiver;
Remedies Cumulative.
No
waiver of any right or option hereunder by any party shall operate as a waiver
of any other right or option, or the same right or option as respects any
subsequent occasion for its exercise, or of any legal remedy. No waiver by
any
party of any breach of this Agreement or of any agreement or covenant contained
herein shall be held to constitute a waiver of any other breach or a
continuation of the same breach. All remedies provided by this Agreement are
in
addition to all other remedies by it or as provided by law.
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Section 16. Governing
Law; Severability.
This
Agreement is made and is expected to be performed in Nevada and
the
various terms, provisions, covenants and agreements, and the performance
thereof, shall be construed, interpreted and enforced under and with reference
to the laws of the State of Nevada, unless otherwise indicated herein. It is
the
intention of the Company and the Executive to comply fully with all laws and
matters of public policy relating to employment agreements and restrictive
covenants, and this Agreement shall be construed consistently with such laws
and
public policy to the extent possible. If and to the extent any one or more
covenants, agreements, terms and provisions of this Agreement or any portion
or
portions thereof shall be held invalid or unenforceable by a court of competent
jurisdiction, then such covenants, agreements, terms and provisions (or portions
thereof) shall be deemed separable from the remaining covenants,
agreements, terms and provisions of this Agreement and such holding shall in
no
way affect the validity or enforceability of any of the other covenants,
agreements, terms and provisions hereof.
Section 17. Miscellaneous.
This
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof. This Agreement may not be modified,
changed or amended except in a writing signed by each of the parties hereto.
This Agreement may be signed in multiple counterparts, each of which shall
be
deemed an original hereof. The captions of the several sections and subsections
of this Agreement are not a part of the context hereof, are inserted only for
convenience in locating such sections and subsections and shall be ignored
in
construing this Agreement.
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IN
WITNESS WHEREOF,
the
Company and the Executive have executed multiple counterparts of this
Agreement.
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By:
/s/Xxxx Xxxxxx
Deutsch
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Name:
Xxxx Xxxxxx Deutsch
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Title:
Director
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EXECUTIVE:
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/s/
Xxxx Xxxxxx
Deutsch
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Xxxx
Xxxxxx Deutsch
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