AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.22
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of May 15, 2013, but shall be effective as of the 1st day of January, 2013, by and between American Sands Energy Corp., a Delaware corporation (the "Company") and Xxxxxx Xxxxxxx (the "Executive").
Whereas, the Company and Executive previously entered into an Employment Agreement effective as of January 1, 2012, as amended by an Amendment to Employment Agreement dated as of January 14, 2013 (“collectively, the “Original Agreement”); and
(a) "Accrued Benefits" shall mean the amount payable not later than ten (10) days following an applicable Termination Date and which shall be equal to the sum of the following amounts:
(i) All compensation earned or accrued through the Termination Date;
(ii) Reimbursement for any and all monies advanced in connection with the Executive's employment for reasonable and necessary expenses incurred by the Executive through the Termination Date;
(b) "Board" shall mean the Board of Directors of the Company;
(c) "Cause" shall mean any of the following:
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(i) The engaging by the Executive in fraudulent conduct, as evidenced by a determination in a binding and final judgment, order or decree of a court or administrative agency of competent jurisdiction, in effect after exhaustion or lapse of all rights of appeal, in an action, suit or proceeding, whether civil, criminal, administrative or investigative, which the Board determines by a majority vote, has a significant adverse impact on the Company in the conduct of the Company's business;
(ii) Conviction of a felony, as evidenced by a binding and final judgment, order or decree of a court of competent jurisdiction, in effect after exhaustion or lapse of all rights of appeal, which the Board determine by a majority vote, has a significant adverse impact on the Company in the conduct of the Company's business;
(iii) Neglect or refusal by the Executive to perform the Executive's duties or responsibilities (unless significantly changed without the Executive's consent); or
(iv) A significant violation by the Executive of the Company's established policies and procedures;
Notwithstanding the foregoing, Cause shall not exist under Sections 1(c)(iii) and (iv) herein unless the Company furnishes written notice to the Executive of the specific offending conduct and the Executive fails to correct such offending conduct within the thirty (30) day period commencing on the receipt of such notice.
(d) "Notice of Termination" shall mean the notice described in Section 11 herein;
(e) "Person" shall mean any individual, partnership, joint venture, association, trust, corporation or other entity, other than an employee benefit plan of the Company or an entity organized, appointed or established pursuant to the terms of any such benefit plan;
(f) "Termination Date" shall mean:
(i) The Executive's date of death;
(ii) Upon receipt of the Termination Notice if the termination is by the Company for Cause;
(iii) Thirty (30) days after the delivery of the Notice of Termination if the Executive's employment is terminated by the Executive voluntarily; or
(iv) Thirty (30) days after the delivery of the Notice of Termination if the Executive's employment is terminated by the Company for any reason other than death or Cause;
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6. COMPENSATION AND RELATED MATTERS.
(a) Salary. The Company shall pay to the Executive $175,000, as his annualized base salary (subject to adjustment as provided herein) in equal monthly installments (as nearly as practicable), in accordance with the Company's standard payroll policy (as in effect from time to time). Such annualized base salary may be increased from time to time in accordance with normal business practices of the Company. The annualized base salary of the Executive shall not be decreased below its then existing amount during the term of this Agreement. The Executive’s salary will be paid as follows:
(i) The Executive’s salary will accrue until a minimum of $2 million of gross proceeds has been raised by the Company (whether from debt, equity, a combination of debt and equity, or through a single financing or series of financings), at which time his salary shall be paid in equal monthly installments. Salary accrued from January 1 through such financing event will be paid up to four months in cash.
(ii) If there is any salary remaining unpaid following a financing of $2 million, the remaining salary will convert into the same type of security (debt or equity) and on the same terms and conditions of a financing of $5 million or more. If a financing is closed by the Company of $5 million or more prior to the closing of a financing of $2 million as described in 6(a)(i) above, Executive shall be paid accrued salary as set forth therein, and shall convert the remaining salary as set forth above. Executive shall have the flexibility to determine and set the conversion date; provided, however, that the conversion ratio will be set as of the closing date of such financing.
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(b) Bonus. The Executive shall be entitled to receive bonuses, when and as declared by the Board of Directors.
(c) Payment of Accrued Salary. Upon closing of a financing of $2 million or more, the Company shall pay to Executive his accrued 2012 salary of $10,000.
(d) Expenses. The Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in performing services hereunder, including all expenses for travel and living expenses while away from home on business or at the request of and in the service of the Company, provided that such expenses are incurred and accounted for in accordance with the policies and procedures established from time to time by the Company.
(e) Vacations. The Executive shall be entitled to the number of vacation days in each calendar year, and to compensation in respect of earned but unused vacation days, determined in accordance with the Company's vacation plan, but in no event less than fifteen (15) business days. The Executive shall also be entitled to all paid holidays given by the Company to its executives
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(a) The Notice of Termination shall indicate the date the termination is to be effective and the reason for the termination;
(b) Any Notice of Termination by the Company shall be approved by a resolution duly adopted by a majority of the directors of the Company then in office;
(a) "Proprietary Information" shall mean any and all methods, inventions, improvements or discoveries, whether or not patentable or copyrightable, and any other information of a similar nature related to the business of the Company disclosed to the Executive or otherwise made known to him as a consequence of or through his engagement by the Company (including information originated by the Executive) in any technological area previously developed by the Company or developed, engaged in, or researched, by the Company during the term of the Executive's engagement, including, but not limited to, trade secrets, processes, products, formulae, apparatus, techniques, know-how, marketing plans, data, improvements, strategies, forecasts, customer lists, and technical requirements of customers, unless such information is in the public domain to such an extent as to be readily available to competitors;
(b) The Executive acknowledges that the Company has exclusive property rights to all Proprietary Information and the Executive hereby assigns all rights he might otherwise possess in any Proprietary Information to the Company. Except as required in the performance of his duties to the Company, the Executive will not at any time during or after the term of his engagement, which term shall include any time in which the Executive may be retained by the Company as a consultant, directly or indirectly use, communicate, disclose or disseminate any Proprietary Information or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company, its products, customers, processes and services, including information relating to testing, research, development, manufacturing, marketing and selling;
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(c) All documents, records, notebooks, notes, memoranda and similar repositories of, or containing, Proprietary Information or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company or its operations and activities made or compiled by the Executive at any time or made available to him or her prior to or during the term of his engagement by the Company, including any and all copies thereof, shall be the property of the Company, shall be held by him or her in trust solely for the benefit of the Company, and shall be delivered to the Company by him or her on the termination of his or her engagement or at any other time on the request of the Company; and
(d) The Executive will not assert any rights under any inventions, copyrights, discoveries, concepts or ideas, or improvements thereof, or know-how related thereto, as having been made or acquired by him or her prior to his or her being engaged by the Company or during the term of his engagement if based on or otherwise related to Proprietary Information.
(a) For purposes of this Section 14, the term "Inventions" shall mean discoveries, concepts, and ideas, whether patentable or copyrightable or not, including but not limited to improvements, know-how, data, processes, methods, formulae, and techniques, as well as improvements thereof or know-how related thereto, concerning any past, present or prospective activities of the Company which the Executive makes, discovers or conceives (whether or not during the hours of his engagement or with the use of the Company's facilities, materials or personnel), either solely or jointly with others during his or her engagement by the Company or any affiliate and, if based on or related to Proprietary Information, at any time after termination of such engagement. All Inventions shall be the sole property of the Company, and Executive agrees to perform the provisions of this Section 14 with respect thereto without the payment by the Company of any royalty or any consideration therefor other than the regular compensation paid to the Executive in the capacity of an employee or consultant.
(b) The Executive hereby assigns to the Company all of his rights to such Inventions, and to applications for United States and/or foreign letters patent or copyrights and to United States and/or foreign letters patent or copyrights granted upon such Inventions.
(c) The Executive shall acknowledge and deliver promptly to the Company, without charge to the Company, but at its expense, such written instruments (including applications and assignments) and do such other acts, such as giving testimony in support of the Executive's inventorship, as may be necessary in the opinion of the Company to obtain, maintain, extend, reissue and enforce United States and/or foreign letters patent and copyrights relating to the Inventions and to vest the entire right and title thereto in the Company or its nominee. The Executive acknowledges and agrees that any copyright developed or conceived of by the Executive during the term of Executive's employment which is related to the business of the Company shall be a "work for hire" under the copyright law of the United States and other applicable jurisdictions.
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(d) No provisions of this Section shall be deemed to limit the restrictions applicable to the Executive under Section 13.
(e) No provisions of this Section shall be deemed or construed to require the Executive to assign to the Company any rights or intellectual property with respect to any invention which (i) is created by the Executive entirely on his own time, (ii) does not constitute an "employment invention" as defined in the Utah Employment Inventions Act, and (iii) is not exempted from the application of the Utah Employment Inventions Act.
15. REMEDIES AND JURISDICTION.
(a) The Executive hereby acknowledges and agrees that a breach of the agreements contained in this Agreement will cause irreparable harm and damage to the Company, that the remedy at law for the breach or threatened breach of the agreements set forth in this Agreement will be inadequate, and that, in addition to all other remedies available to the Company for such breach or threatened breach (including, without limitation, the right to recover damages), the Company shall be entitled to injunctive relief for any breach or threatened breach of the agreements contained in this Agreement.
(b) All claims, disputes and other matters in question between the parties arising under this Agreement, shall, unless otherwise provided herein, be decided by arbitration in Salt Lake City, Utah, in accordance with the Model Employment Arbitration Procedures of the American Arbitration Association (including such procedures governing selection of the specific arbitrator or arbitrators), unless the parties mutually agree otherwise. The Company shall pay the costs of any such arbitration. The award by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any state or Federal court having jurisdiction thereof.
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22. VENUE; GOVERNING LAW. This Agreement and the Executive's and Company's respective rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Utah without giving effect to the provisions, principles, or policies thereof relating to choice or conflicts of laws.
Company: | American Sands Energy Corp. 0000 X. Xxxxxxxx Xx. Xxx 000 Xxxx Xxxx Xxxx, XX 00000 Facsimile: (000) 000-0000 |
Executive: | Xxxxxx Xxxxxxx 000 Xxx Xxxxxxx Xxxxx Xxxxxxxxx Xxx Xxxxxxx, XX 00000 Facsimile: (000) 000-0000 |
or to such other address as the Company shall have given to the Executive or, if to the Executive, to such address as the Executive shall have given to the Company.
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"COMPANY" | |
American Sands Energy Corp. | |
By: /s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx, Chairman and Chief Executive Officer | |
"EXECUTIVE" | |
/s/ Xxxxxx Carlson______ | |
Xxxxxx Xxxxxxx | |
Chief Financial Officer |
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