Exhibit 10.13
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of ____________, 2007 (this
"Agreement"), by and between Sonterra Resources, Inc., a Delaware corporation
f/k/a River Capital Group, Inc. (the "Company"), and Xxxxxxx X. Xxxxxxx (the
"Employee").
RECITAL
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The Company desires to engage Employee's services, and Employee desires
to perform such services, upon the terms, and subject to the conditions, set
forth herein.
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the compensation and benefits received by the Employee from
the Company and the access given the Employee to the Company's confidential
information and the Company's customers, and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, and
with the Company's recognition of the knowledge and expertise provided by the
Employee being acknowledged, the Company and the Employee hereby agree as
follows:
1. Term of Employment.
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Subject to the termination provisions set forth herein, the initial
term of this Agreement and the Employee's employment hereunder will be for a
term of two (2) years from the date of this Agreement (the "Initial Term"). This
Agreement shall thereafter be automatically extended for additional successive
one (1) year term unless either party gives written notice of termination to the
other party not less than ninety (90) days prior to the end of any term (in
which event this Agreement shall terminate effective as of the close of the then
existing Employment Term). The Initial Term of this Agreement and any additional
terms as extended in accordance with this Section 1 are collectively referred to
in this Agreement as the "Employment Term."
2. Position and Duties.
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(a) During the Employment Term, the Employee shall serve
as [Chief Executive Officer and President]. The Employee shall have such duties,
functions, responsibilities, and authority as are from time to time delegated to
the Employee by the Board of Directors of the Company (the "Board") or are
otherwise consistent with the duties, responsibilities and authority of the
executive office held by the Employee; provided that with respect to any
specifically delegated duties, functions, responsibilities and authority, such
duties, functions, responsibilities, and authority are reasonable and customary
for a person serving in the office/position of a public company comparable to
the Company. The Chief Executive Officer and President shall report and be
accountable to the Board of Directors of the Company.
(b) During the Employment Term, the Employee will: (i)
devote substantially all of his time during normal business hours to the
business of the Company, fulfill his duties and obligations under this Agreement
and use his best efforts, judgment and energy to perform, improve and advance
the business and interests of the Company in a manner consistent with the duties
of his position; provided however that Employee is not prevented from serving as
a member of the board of directors of a corporation if the Company determines
that such membership is not adverse to its interests; (ii) not engage in any
business activities that are directly or indirectly competitive with any
business conducted by the Company or any of its subsidiaries or affiliates;
(iii) observe and carry out such reasonable rules, regulations, policies,
directions and restrictions as may be established from time to time by the
Board, including but not limited to, the standard policies and procedures of the
Company as in effect from time to time; and (iv) do such traveling as may be
required in connection with the performance of such duties and responsibilities.
(c) The Employee acknowledges that this Agreement
contains a non-disclosure of proprietary information and non-competition
provisions, and the Employee agrees to comply with these provisions. The
Employee understands that entering into and complying with these provisions is a
condition to the Employee's continued employment with the Company and that
failure to comply with the terms of these provisions may result in immediate
termination from employment.
(d) In connection with the Employee's employment by the
Company under this Agreement, the Employee shall be based at the principal
executive offices of the Company in San Antonio, Texas, except for such
reasonable travel as the performance of the Employee's duties in the business of
the Company may require. Notwithstanding the foregoing, the Board may in its
reasonable discretion determine to relocate the principal offices of the Company
for any necessary business purpose and doing so shall not be a breach of this
Agreement.
3. Hours of Work.
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The Employee's normal days and hours of work shall coincide with the
Company's regular business hours. The nature of the Employee's employment with
the Company requires flexibility in the days and hours that the Employee must
work, and may necessitate that the Employee work on other or additional days and
hours. The Company reserves the right to require the Employee, and the Employee
agrees, to work during other or further days or hours than the Company's normal
business hours.
4. Compensation and Benefits.
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(a) Base Salary. During the Employment Term, the Company
shall pay to the Employee for his services hereunder a base salary ("Base
Salary") at the rate of $200,000.00. per year, payable in installments in
accordance with the general payroll practices of the Company, or as otherwise
mutually agreed upon, but no less often than twice monthly. The Employee's Base
Salary may be subject to such adjustments as may be determined from time to time
by the Board in its sole discretion; provided, however, in no event shall the
Employee's salary be reduced unless such reduction is part of a salary reduction
applicable to all employees of the Company based upon the Company's financial
condition.
(b) Incentive Stock Options. The Employee shall be
eligible to receive awards of options ("Options") to purchase common stock of
the Company pursuant to and in accordance with the terms and conditions set
forth in any incentive option plan adopted by the Board in its sole discretion
(the "Option Plan"). The decision whether or not to award stock options under
the Option Plan, if adopted, to the Employee, and the amount of any such award,
shall be within the sole discretion of the Company. The definitive terms and
conditions of the Options shall be set forth in a separate option agreement to
be entered into by the Employee and the Company (the "Option Agreement"). To the
extent there is any inconsistency or conflict between the terms of the Option
Agreement and the terms of the Option Plan, the terms of the Option Plan shall
govern and control. Upon the execution of this Agreement, the Company shall
grant to the Employee options under the Company's Option Plan to acquire shares
of the Company's Common Stock having an exercise price, vesting and term, all as
described on Exhibit A attached hereto.
(c) Employee Benefits. During the Employment Term, the
Employee shall be entitled to participate in all employee benefit plans
(including executive bonus plans, cash bonus awards and long-term incentive
plans), programs and arrangements that are generally made available by the
Company to its senior executives. In addition to the rights of the Employee set
forth in the preceding sentence, the Company shall provide health, dental,
disability and life insurance for the Employee under such group health, dental,
disability and life insurance plans maintained by the Company for its full-time,
salaried employees. Nothing herein shall require the Company to adopt or
maintain any type of benefit plan or policy; provided, however, the Company
shall provide health insurance for the Employee and his family at all times
during the Employment Term. The Employee acknowledges that any such plan or
policy will be subject to deductibles and co-pay requirements
(d) Expenses. During the Employment Term, the Employee
shall be entitled to receive reimbursement upon a timely basis (according to the
then-current practices of the Company) for all reasonable and necessary
out-of-pocket expenses incurred by the Employee in connection with performing
his duties and responsibilities hereunder, which are reimbursable in accordance
with the Company's policies from time to time in effect, upon the presentation
by the Employee of an itemized monthly accounting of such expenditures,
including receipts where required by Company policy or federal income tax
regulations.
5. Vacation.
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The Employee shall be entitled to accrue, pro rata, fifteen (15)
vacation days for each annual period during the Employment Term. Vacation days
shall be used during the applicable annual period in which they are accrued. The
Employee shall be entitled to carry over up to five (5) accrued vacation days
from one annual period to the next and all the rest of the accrued vacation time
that the Employee does not use during the applicable annual period in which they
were accrued will be forfeited unless the Company shall have requested the
Employee, in writing, to modify or postpone a previously planned vacation.
6. Termination of Employment.
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(a) For Cause. The Company may terminate the Employee's
employment at any time hereunder for Cause (as defined below) (a "For Cause
Termination") upon written notice to the Employee. For purposes of this
Agreement, "Cause" shall mean any of the following:
(i) dishonesty by the Employee in the
performance of his duties and obligations to the Company;
(ii) the Employee's conviction of, or entering a
plea of guilty, nolo contendere or comparable plea to, any felony or to any
misdemeanor involving moral turpitude;
(iii) any willful act or omission by the Employee
that is, or is likely to be, materially injurious to the financial condition or
business reputation of the Company, as determined by the Board of the Company or
an independent committee of the Board of the Company;
(iv) a breach by the Employee of any material
covenant contained in this Agreement which is to be observed or performed by the
Employee, or any of the written policies of the Company the result of which is,
or is likely to be, materially injurious to the Company, as determined by the
Board of the Company or an independent committee of the Board of the Company;
(v) any appropriation by the Employee of a
corporate opportunity or a material corporate asset;
(vi) the Company being unable to register its
securities with the United States Securities and Exchange Commission or listed
on a stock exchange due to the failure of the Employee to make a disclosure with
respect to the Employee's background; or
(vii) the failure or refusal by the Employee to
comply with a written lawful directive by the Board or any committee of the
Board that is not inconsistent with the terms hereof.
(b) Without Cause. The Company may in its sole and
absolute discretion terminate Employee's employment hereunder at any time
without Cause for any or no reason. For purposes of this Agreement, a "Without
Cause Termination" shall mean a termination by the Company of Employee's
employment hereunder other than pursuant to a For Cause Termination.
(c) Death. The Employee's employment hereunder shall
terminate automatically upon his death.
(d) Disability. If the Disability (as defined below) of
the Employee occurs during the Employment Term, the Company may notify the
Employee of the Company's intention to terminate the Employee's employment
hereunder for Disability. In such event, the Employee's employment hereunder
shall terminate effective on the 30th day following the date such notice of
termination is received by the Employee (the "Disability Effective Date"). For
purposes of this Agreement, the "Disability" of the Employee shall be deemed to
have occurred at such time as the Board determines, in its reasonable
discretion, (i) that despite any reasonable accommodation required by law, the
Employee is unable to perform the essential functions of his position hereunder
as a result of his physical or mental incapacity and (ii) that such inability
has existed or is likely to exist for a period of ninety (90) days or more in
any twelve (12) month period or for sixty (60) consecutive days.
(e) Termination By The Employee.
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For Good Reason. The Employee may terminate his
employment hereunder if (i) there occurs a material breach by the Company of any
material provision of this Agreement by the Company, which breach is not cured
within thirty (30) days after notice by the Employee to the Company of such
breach; (ii) the Board, in its reasonable discretion, determines to relocate the
principal offices of the Company out of San Antonio, Texas, for any necessary
business purpose; or (iii) the Employee's Base Salary is reduced pursuant to the
terms of Section 4(a) hereof and is not fully restored to the original amount
set forth in Section 4(a) hereof within ninety (90) days from the date of such
reduction.
(f) Notice of Termination. Any termination of the
Employee's employment hereunder by the Company or by the Employee (other than a
termination pursuant to Section 6(c)) shall be communicated by a Notice of
Termination (as defined below) to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
in the case of a termination for Disability or a For Cause Termination or a Good
Reason Termination, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's employment under
the provision so indicated, and (iii) specifies the Employment Termination Date
(as defined in Section 6(g) below). The failure by the Company or Employee, as
applicable, to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Disability, Cause or Good Reason shall not
waive any right of the Company or Employee hereunder or preclude the Company or
Employee from asserting such fact or circumstance in enforcing the Company's or
Employee's rights hereunder.
(g) Employment Termination Date. For purposes of this
Agreement, "Employment Termination Date" shall mean the effective date of
termination of the Employee's employment hereunder, which date shall be (i) if
the Employee's employment is terminated by his death, the date of his death,
(ii) if the Employee's employment is terminated because of his Disability, the
Disability Effective Date, (iii) if the Employee's employment is terminated by
the Company pursuant to a For Cause Termination, the date specified in the
Notice of Termination, (iv) if the Employee's employment is terminated by the
Company pursuant to a Without Cause Termination, the date specified in the
Notice of Termination and (iv) if the Employee's employment is terminated by the
Employee pursuant to a Good Reason Termination, the date on which the Notice of
Termination is given.
(h) Resignation. In the event of termination of the
Employee's employment hereunder for any reason whatsoever other than the death
of the Employee, the Employee agrees that if at such time he is a member of the
Board of Directors or officer of the Company or a director or officer of any of
the Company's subsidiaries, he will promptly deliver to the Company his written
resignation from all such positions, such resignation to be effective as of the
Employment Termination Date.
7. Company Obligations Upon Termination of Employment.
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(a) Death. If the Employee's employment hereunder is
terminated by reason of the Employee's death, the Company shall pay to the
Employee's estate, in a lump sum in cash within thirty (30) days after the
Employment Termination Date, a sum equal to the Employee's accrued and unpaid
Base Salary, reimbursable expenses and vacation accrued but unpaid in each case
through the Employment Termination Date, and thereafter the Company shall have
no further obligation to the Employee under the Agreement.
(b) Disability. If the Employee's employment hereunder is
terminated by reason of the Employee's Disability, the Company shall pay to the
Employee, in a lump sum in cash within thirty (30) days after the Employment
Termination Date, a sum equal to reimbursable expenses and vacation accrued but
unpaid in each case through the Employment Termination Date and thereafter the
Company shall have no further obligation to the Employee under the Agreement,
except as provided in the immediately following sentence. In addition, the
Company shall continue to provide at its expense group medical and dental
insurance, as in effect on the Employment Termination Date, to the Employee and
to the Employee's immediate family for a period of six (6) months after the
Employment Termination Date.
(c) For Cause Termination. If the Employee's employment
hereunder is terminated pursuant to a For Cause Termination, the Company shall
pay to the Employee, in a lump sum in cash within thirty (30) days after the
Employment Termination Date, the Employee's accrued and unpaid Base Salary,
reimbursable expenses and vacation accrued but unpaid in each case through the
Employment Termination Date, to the extent not theretofore paid, and,
thereafter, the Company shall have no further obligations to the Employee under
this Agreement.
(d) Without Cause Termination and Good Reason
Termination. If the Employee's employment hereunder is terminated by reason of a
Without Cause Termination or a Good Reason Termination pursuant to Section
6(e)(i), the Company shall pay to the Employee the Employee's Base Salary for a
period of six (6) months, at the regularly scheduled payment intervals following
the Employment Termination Date, and shall pay within thirty (30) days following
the Employment Termination Date all reimbursable expenses and vacation accrued
but unpaid in each case through the Employment Termination Date and shall
continue to provide group medical and dental insurance at the Company's expense,
as in effect on the Employment Termination Date, to the Employee and to the
Employee's immediate family for such six (6) month period after the Employment
Termination Date and thereafter the Company shall have no further obligation to
the Employee under this Agreement. If the Employee's employment hereunder is
terminated by reason of a Good Reason Termination pursuant to either Section
6(e)(ii) or Section 6(e)(iii) hereof, the Company shall pay to the Employee, in
a lump sum in cash within thirty (30) days after the Employment Termination
Date, the Employee's accrued and unpaid Base Salary, reimbursable expenses and
vacation accrued but unpaid in each case through the Employment Termination
Date, to the extent not theretofore paid, and, thereafter, the Company shall
have no further obligations to the Employee under this Agreement; provided that
the Employee shall not be subject to Section 12 hereof after his termination
pursuant to either Section 6(e)(ii) or Section 6(e)(iii).
(e) Sole Remedy. The receipt of payments provided for
under Section 7(d) shall be the Employee's sole and exclusive remedy for the
termination of his employment hereunder and shall be in lieu of any claim that
he might otherwise have against the Company arising from such termination. All
payments that are to be made by, and/or benefits that are to be provided, the
Company to the Employee following the Employment Termination Date shall be
subject to the Employee complying with any covenants hereunder to be observed or
performed by the Employee following termination of the Employee's employment
hereunder including, without limitation, Sections 10, 11, 12 and 13 hereof.
(f) Release. Any severance payments due to Employee under
Section 7(d) shall be contingent upon Employee executing a full and general
release of any and all claims against the Company, the Board of Directors and
officers of the Company and any affiliates and representatives of the Company
arising out of Employee's employment with the Company or this Agreement in a
form acceptable to the Company.
(g) No Duty to Mitigate. Employee's rights and privileges
under the first sentence of Section 7(d) shall be considered severance pay in
consideration of his past service and his past service to the Company, and his
entitlement thereto shall neither be governed by any duty to mitigate his
damages by seeking further employment nor offset by any compensation that he may
receive from future employment unless such employment is a violation of Section
12 hereof.
8. Compliance With Other Agreements. The Employee represents and
warrants to the Company that the execution, delivery, and performance by the
Employee of this Agreement do not and will not conflict with or result in a
violation of any provision of, or constitute a default under, any contract,
agreement, instrument, or obligation to which the Employee is a party or by
which the Employee is bound.
9. Employee's Compliance With Company Policies And The Law. The
Employee shall comply fully with all Company policies, procedures and rules, as
determined, promulgated and modified by the Company from time to time,
including, without limitation, the Company's policies, procedures and rules
prohibiting discrimination and harassment, and concerning email and Internet
use, and the Company's Xxxxxxx Xxxxxxx Policy and Procedures. The Company
reserves the right to add, delete or modify any Company policy, procedure or
rule in its respective sole discretion. The Employee shall also comply fully
with all, and with all applicable U.S. federal, state and local laws,
regulations and ordinances, including, without limitation the Xxxxxxxx-Xxxxx Act
of 2002.
10. Nondisclosure of Confidential and Proprietary Information
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During the Employment Term, the Employee agrees to the following:
(a) The Employee acknowledges that during the Employment
Term, the Employee will have access to and possession of trade secret,
confidential information, and proprietary information (collectively, as defined
more extensively below, "Confidential Information") of the Company, its parents,
subsidiaries and affiliates and their respective customers, suppliers and other
third party that do business with them. The Employee recognizes and acknowledges
that this Confidential Information is valuable, special and unique to the
Company's business, is owned solely by and is the exclusive property of the
Company, is to be used only for the Company's benefit, and that access to and
knowledge thereof are essential to the performance of the Employee's duties to
the Company. During Employment Term and thereafter, the Employee will keep
secret and will not use or disclose, reveal, transfer, reproduce, sell,
capitalize upon or take advantage of such Confidential Information relating to
the Company, its customers, suppliers or other third party that do business with
it except at the request of the Company, and in addition, Employee shall
exercise all reasonable efforts and precautions to protect such disclosure,
breach of confidentiality, or other conduct or action inconsistent with the
Employee's rights; provided, however, that Confidential Information may be
disclosed to the extent (i) required by law or court order or (ii) generally
available to the public other then by unauthorized disclosure.
(b) The term "Confidential Information", means
information in whatever form be it written, digital, graphic, electronically
stored, orally transmitted or memorized concerning:
(i) the Company's business or operations plans,
strategies, portfolio, prospects or objectives;
(ii) the Company's structure, products, product
development, technology, distribution, sales, services, support and marketing
plans, practices, and operations;
(iii) the prices, costs, and details of the
Company's services;
(iv) research and development, new products,
licenses, operations or plans;
(v) trade secrets, proprietary information,
trade and service marks, inventions, mask works, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
discoveries, developments, designs, schematics, manuals, drawings, computer
disks and programs, techniques, employee suggestions, development tools,
computer printouts, and improvements (hereinafter referred to as "Inventions");
(vi) customers and customer lists, including
present and potential customers, prospects or targets (including without
limitation, the identities of customers, names, addresses, contact, persons and
the customers' business status or needs), customer files and records;
(vii) information regarding the skills,
compensation and benefits of other employees of the Company;
(viii) financial records, unpublished financial
statements, financial condition, results of the Company's operations and related
information about the Company;
(ix) any other financial, commercial, business or
technical information related to any of the products or services made, developed
or sold by the Company or its customers.
(c) The Employee further recognizes that the Company has
received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the Employment Term and thereafter,
the Employee will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with work for the Company, Third Party Information unless expressly
authorized by the Company in writing.
(d) The Employee further agrees to store and maintain all
Confidential Information in a secure place. On the termination of employment,
Employee agrees to deliver all records, data, information, and other documents
produced or acquired during the Employment Term, and all copies thereof, to the
Company. Such material at all times will remain the exclusive property of the
Company, unless otherwise agreed to in writing by the Company. Upon termination
of the employment, the Employee agrees to make no further use of any
Confidential Information on his or her own behalf or on behalf of any other
person or entity other than the Company.
(e) During the Employment Term and thereafter, the
Employee will not improperly use or disclose any confidential information or
trade secrets, if any, of any former employer or any other person to whom the
Employee has an obligation of confidentiality, and will not bring onto the
premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom the Employee has an obligation
of confidentiality unless consented to in writing by that former employer or
person.
11. Assignment of Inventions and Intellectual Property
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(a) The term "Proprietary Rights" will mean all trade
secret, trademark, service xxxx, patent, copyright, mask work and other
intellectual property rights throughout the world. The term "Inventions" shall
mean all trade secrets, trade and service marks, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, technology,
writings, software programs, other works of authorship, know how, discoveries,
developments, designs, techniques or any claim of rights (or any related
improvements or modifications to the foregoing).
(b) In consideration of the Employee's employment, the
Employee hereby assigns and agrees to assign in the future (when any such
Inventions or Proprietary rights are first reduced to practice or first fixed in
an tangible medium, as applicable) to the Company all right, title and interest
in and to any and all Inventions (and all Proprietary Rights with respect
thereto) whether or not patentable or registrable under copyright or similar
statutes, made or conceived or reduced to practice or learned by the Employee,
either alone or jointly with others, during or at any time before or after the
period of employment with the Company, which (i) relate to methods, apparatus,
designs, products, processes or devices sold, leased, used or under construction
or development by the Company or any subsidiary or otherwise relate to or
pertain to the actual or anticipated business, functions, operations, research
or development of the Company or any subsidiary, (ii) arise (wholly or partly)
from the Employee's efforts during any time that the Employee is either
physically present on the Company's premises or utilizing any physical or
intellectual property owned or leased by the Company, or (iii) is based on any
information or knowledge gained by the Employee through his or her employment
with the Company. Inventions assigned to the Company, or to a third party as
directed by the Company pursuant to this Section, are hereinafter referred to as
"Company Inventions."
(c) During the Employment Term and for eighteen (18)
months thereafter, the Employee will promptly disclose to the Company, fully and
in writing, all Inventions authored, conceived or reduced to practice by the
Employee, either alone or jointly with others. In addition, the Employee will
promptly disclose to the Company all patent applications filed by the Employee
or on behalf of the Employee within eighteen (18) months after termination of
employment. At the time of each such disclosure, the Employee will advise the
Company in writing of any Inventions that he or she believes fully qualifies for
protection under the Law; and the Employee will at that time provide to the
Company in writing all evidence necessary to substantiate that belief.
(d) The Employee also agrees to assign all right, title
and interest in and to any particular Company Invention to a third party, as
directed by the Company.
(e) The Employee will assist the Company in every proper
way to obtain, and from time to time enforce the Company's Proprietary Rights
relating to Company Inventions in any and all countries. To that end the
Employee will execute, verify and deliver such documents and perform such other
acts (including appearances as a witness) as the Company may reasonably request
for use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such Proprietary Rights and the assignment thereof. In addition, the
Employee will execute, verify and deliver assignments of such Proprietary Rights
to the Company or its designee. The Employee's obligation to assist the Company
with respect to Proprietary Rights relating to such Company Inventions in any
and all countries will continue beyond the termination of employment and the
Company will provide compensation at a reasonable rate after termination for the
time actually spent by me at the Company's request on such assistance.
(f) In the event the Company is unable for any reason,
after reasonable effort, to secure the Employee's signature on any document
needed in connection with the actions specified in the preceding paragraph, the
Employee hereby irrevocably appoints the Company and its duly authorized
officers and agents as the Employee's agent and attorney in fact to act for and
in his or her behalf to sign, execute, verify and file any and all documents and
to do all other lawfully permitted acts to further the purposes of the preceding
paragraph with the same legal force and effect as if executed by the Employee.
The Employee hereby waives any quitclaims to the Company any and all claims, of
any nature whatsoever, which the Employee now or may hereafter have for
infringement of any proprietary rights assigned to the Company.
(g) Notwithstanding the foregoing, the Employee shall not
be prohibited by this Section 11 from using, after the Employment Term, ideas,
data, technology, know how or techniques, which are acquired or generated from
the general knowledge of the industry that the Company is engaged in.
12. Non-Competition.
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(a) Employee will, as a result of his employment with the
Company, be involved with and exposed to substantial business resources and
assets of the Company and certain of its affiliates and will develop additional
contacts and relationships with numerous individuals and companies, which are
also involved in the business of the Company or businesses related thereto. Such
individuals and organizations will have business and contractual relationships
with the Company and/or its affiliates that will be a valuable asset thereof.
The Employee also recognizes and agrees with the Company that the services which
the Employee will render during the term of employment are unique, special and
of extraordinary character, that the Company will be substantially dependent
upon such services to develop and market its products and to earn a profit, and
that the application of the Employee's knowledge and services to any competitive
business would be substantially detrimental to the Company. Accordingly, in
consideration for employment by the Company and compensation and other benefits,
including any compensation the Employee may receive after his or her employment
is terminated pursuant to this Agreement, the Employee will not, directly or
indirectly (whether as an employee, officer, executive, director, manager,
stockholder, member, lender, consultant or any other capacity), during the
period of his or her employment with the Company, and for a period of six (6)
months after termination of employment hereunder for any reason whatsoever,
engage in any business or activity or otherwise compete anywhere in the United
States, with any business or activity that is competitive with any business or
activity engaged in by the Company or any of its subsidiaries or affiliates or
contemplated to be engaged in (as of the time of the termination of employment)
by the Company or any such subsidiary or affiliate; provided, however, that the
foregoing sentence shall not be applicable in the event the Employee is
terminated pursuant to Section 6(e)(ii) or Section 6(e)(iii) hereof or if the
Employee or the Company terminates this Agreement at the end of the Initial Term
or any additional term pursuant to Section 1. In addition, for a period of two
(2) years from the end of Employment Term the Employee will not induce or
attempt to induce any person or entity that is engaged in any business activity
or relationship with the Company or any subsidiary or affiliate of the Company
to terminate that activity or relationship to reduce such activity or
relationship.
(b) The term "compete" as used herein means to engage,
directly or indirectly, either as a proprietor, partner, employee, commissioned
salesperson, agent, consultant, director, officer, stockholder or in any other
capacity or manner whatsoever. The provisions of this Section will not prevent
the Employee from investing any assets in securities of any corporation,
provided that such investments do not, directly or indirectly, result in the
Employee, his spouse or his children collectively (i) owning beneficially at any
time five percent (5%) or more of the equity securities of any publicly traded
corporation engaged in a business competitive with the Company, or (ii)
otherwise being able to control or actively participate in the business
decisions of such competing business
13. Non-Solicitation.
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For the period of his employment by the Company and for two (2) years
after the date of the conclusion of such employment, the Employee will not (i)
induce, solicit or seek to influence, either directly or indirectly, any
employee of, or any person under written contract with, the Company or any of
its affiliates, to enter into any employment agreement, independent contractor
arrangement, or any other arrangement whereby such individual would perform
services for compensation, either directly or indirectly, for any person, firm,
corporation or other entity engaged in business in competition with the Company
or any of its affiliates. any Employee of the Company to leave the employ of the
Company or any subsidiary, or division thereof or other company of the Company,
or (ii) solicit any customer of the Company or any of its affiliates, or any
identified prospect or identified potential customer to which a marketing
proposal or presentation was made during the 12 month period immediately
preceding termination of the Employment Term (other than on behalf of the
Company) for any business of the type conducted by the Company (including any
form of electronic or internet commerce).
14. No Conflicting Obligations.
--------------------------
The Employee represents and warrants that the Employee has the full
right and authority to enter into this Agreement and to render the services as
required under this Agreement, and that by executing this Agreement the Employee
is not breaching any contract or legal obligation the Employee owes to any third
party, including any agreement to keep in confidence information acquired by the
Employee in confidence or in trust prior to employment by the Company. The
Employee shall not enter into any agreement or business relationship or incur
any obligations to any third party following the Effective Date that may
conflict with, or interfere with the Employee's abilities to perform, the
Employees duties and responsibilities pursuant to this Agreement.
Notwithstanding anything to the contrary set forth herein, the Company
acknowledges that the Employee providing services to BOSS Operating Company,
LLC, or affiliates thereof, pursuant to a short-term transition services
agreement or other arrangements between the Company and BOSS Operating Company,
LLC shall not be a breach of any of the covenants of the Employee set forth
herein.
15. Return of Company Property.
--------------------------
When the Employee leaves the employ of the Company, the Employee will
deliver to the Company (and will not keep in his possession, recreate or deliver
to anyone else) any and all devices, records, recordings, data, notes, reports,
proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, computer materials, equipment, other documents or property,
together with all copies thereof (in whatever medium recorded), belonging to the
Company, its successors or assigns. The Employee further agrees that any
property situated on the Company's premises and owned by the Company, including
computer disks and other digital, analog or hard copy storage media, filing
cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice. Prior to leaving, the Employee will cooperate
with the Company in completing and signing the Company's termination statement
for technical and management personnel.
16. Notification of New Employer.
----------------------------
In the event that the Employee leaves the employ of the Company, the
Employee hereby agrees to notify his new employer of those of the Employee's
obligations which are continuing under this Agreement after the termination
hereof.
17. Remedies.
--------
(a) The Company shall be entitled to equitable relief,
including injunctive relief and specific performance as against the Employee and
his agents, for the Employee's or his agent's threatened or actual breach of
Sections 8, 9, 10 and 11 of this Agreement, as money damages for a breach
thereof would be incapable of precise estimation, uncertain, and an insufficient
remedy for an actual or threatened breach of Sections 8, 9, 10 and 11 of this
Agreement. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available for such breach or threatened breach of
Sections 8, 9, 10 and 11 of this Agreement, including the recovery of damages.
(b) The prevailing party in any legal actions arising
under this Agreement shall be reimbursed in full the legal fees for enforcement
in favor of such prevailing party.
18. Public Statements.
-----------------
Employee agrees that he will not make any speeches, publish articles,
appear as a guest or a commentator on any television or radio show or issue
statements to the press regarding that in anyway pertain to the Company or to
Employee's employment with same without Company's prior approval unless pursuant
to the Employee's duties to the Company. Violation of this provision by Employee
is a material breach of this Agreement.
19. Notices.
-------
Any notices, requests, demands or other communications required or
permitted under this Agreement will be in writing and will be deemed to have
been given when delivered personally or three (3) days after being mailed by
certified mail, return receipt requested, addressed to the party being notified
at the address of such party first set forth above, or at such other address as
such party may hereafter have designated by notice; provided, however, that any
notice of change of address will not be effective until its receipt by the party
to be charged therewith.
20. Miscellaneous.
-------------
(a) Telephones, stationery, postage, e-mail, the internet
and other resources made available to the Employee by the Company, are solely
for the furtherance of the Company business.
(b) All construction and interpretation of this Agreement
shall be governed by and construed in accord with the internal laws of the State
of Texas, without giving effect to that State's principles of conflicts of law.
(c) The Employee and the Company agree that any provision
of this Agreement deemed unenforceable or invalid by any court of competent
jurisdiction, such provision shall be reformed and modified to make such
provision valid and to permit enforcement of the objectionable provision to the
fullest permissible extent. It is the intent of the Company and the Employee
that this Agreement be enforced to the fullest extent permitted by applicable
law. Any provision of this Agreement deemed unenforceable after modification
shall be deemed stricken from this Agreement, with the remainder of the
Agreement being given its full force and effect. If any term or other provision
of this Agreement is determined by a court of competent jurisdiction to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms, provision and conditions of this Agreement shall
nevertheless remain in full force and effect.
(d) Any waiver granted by a party of any breach of or
failure to comply with any provision or condition of this Agreement by the other
party shall not be construed as, or constitute, a continuing waiver of such
provision or condition, or a waiver of any other breach of, or failure to comply
with, any other provision or condition of this Agreement, any such waiver to be
limited to the specific matter and instance for which it is given. No waiver of
any such breach or failure or of any provision or condition of this Agreement
shall be effective unless in a written instrument signed by the party granting
the waiver.
(e) The Employee and the Company independently have made
all inquiries regarding the qualifications and business affairs of the other
which either party deems necessary. The Employee affirms that the Employee is
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, and has read and fully understands this Agreement's
meaning and legally binding effect. The Employee further affirms that, prior to
assenting to the terms of this Agreement, the Employee had been provided with a
reasonable time to review it, consult with counsel of the Employee's own choice,
and to negotiate at arm's length with the Company as to the contents of the
Agreement. The Employee further affirms that the provisions in this Agreement
represent accurately the expression of the parties' mutual intent, and that the
Employee has entered into this Agreement freely and voluntarily and without
pressure or coercion from anyone. Each party assumes the risk of any
misrepresentation or mistaken understanding or belief relied upon by either
party in entering into this Agreement. In resolving any dispute or construing
any term or provision in this Agreement, there shall be no presumption made or
inference drawn because of the inclusion of a provision not contained in a prior
draft or the deletion of a provision contained in a prior draft. The parties
acknowledge and agree that this Agreement was negotiated and drafted with each
party being represented by competent counsel of its choice and with each party
having an opportunity to participate in the drafting of the provisions hereof
and shall therefore be construed as if drafted jointly by the parties.
(f) The Company and the Employee agree that the
Employee's obligations to the Company during the Employee's employment with the
Company, as well as any other obligation of the Employee under this Agreement,
may be assigned to any successor in interest to the Company or any division or
affiliate of the Company in its sole discretion and without additional
consideration or prior notice to the Employee, but that nothing requires the
Company to do so. The Employee's obligations under this Agreement are personal
in nature and may not be assigned by the Employee to any other person or entity.
(g) Entire Agreement; Amendment. This Agreement contains
the entire understanding and agreement of the parties relating to the subject
matter hereof and supersedes all prior and/or contemporaneous understandings and
agreements of any kind and nature (whether written or oral) among the parties
with respect to such subject matter, all of which are merged herein. This
Agreement may not be modified, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto.
(h) Counterparts. This Agreement and any amendments
hereto may be executed and delivered in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement, and shall become effective when
counterparts have been signed by each party hereto and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart. In the event that any signature to this Agreement or any amendment
hereto is delivered by facsimile transmission or by e-mail delivery of a ".pdf"
format data file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or ".pdf" signature page were an
original thereof. At the request of any party each other party shall promptly
re-execute an original form of this Agreement or any amendment hereto and
deliver the same to the other party. No party hereto shall raise the use of a
facsimile machine or e-mail delivery of a ".pdf" format data file to deliver a
signature to this Agreement or any amendment hereto or the fact that such
signature was transmitted or communicated through the use of a facsimile machine
or e-mail delivery of a ".pdf" format data file as a defense to the formation or
enforceability of a contract, and each party hereto forever waives any such
defense.
(i) Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
SONTERRA RESOURCES, INC.
By: _____________________________________
Name:
Title:
EMPLOYEE:
_________________________________________
Xxxxxxx X. Xxxxxxx
