0XXXXXXX.XXX, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
0XXXXXXX.XXX, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made and
entered into this 1st day of February, 1999, by and between
Xxxxxx X. Xxxxxx (hereinafter referred to as "Employee"), and
0XxxXxxx.xxx, Inc., an Oklahoma corporation, (hereinafter
referred to as "Company") with reference to the following facts
and objectives:
RECITALS
A. Employee has been providing services as the Chairman of the
Board and Chief Executive Officer and related activities as an
Employee of the Company.
B. Company is a corporation organized and in good standing
under the laws of the State of Oklahoma and desires to employ
Employee under the terms and conditions of this Agreement.
NOW, THEREFORE, in reliance on the foregoing Recitals, and in
consideration of the mutual promises and covenants contained
herein,Company and Employee hereby agree as follows:
1. Employment. During the term hereof, Company hereby employs
Employee and Employee hereby accepts and agrees to furnish
Company with all the Employee's skills and abilities under the
designation as the Chairman of the Board and Chief Executive
Officer of the Company.
2. Duties. During the term of the Agreement, Employee shall
devote all of Employee's services, best efforts, and all
reasonable work time (excluding vacation and personal time)
toward his employment with the Company, to further Company's
interests and to perform diligently and in good faith such duties
as are or may be, from time to time, required by Company in
connection with his employment hereunder. The Employee shall, at
all times, comply with the policies and procedures promulgated by
the Company. The making of passive and personal investments and
conducting private business affairs not inconsistent with the
Agreement by the Employee shall not be prohibited under this
Agreement.
3. Company's Authority. Employee shall perform in proper form
orders, directions, and policies by the Company to the Employee
periodically not inconsistent with the provisions of this
Agreement. Employee agrees to accept the decisions of the
Company in the establishment and amendment of working facilities,
conditions, and hours of employment, including all fringe
benefits, not otherwise agreed upon herein.
4. Term. The term of this Agreement shall begin on February 1,
1999 (the "Effective Date") and shall be for a period of five (5)
years, with automatic renewal terms of equal length subject to
the Company's prior written notification of one hundred eighty
(180)days before
the expiration of the original term of its
decision not to renew this Agreement, beginning on the Effective
Date of this Agreement.
5. Compensation.
(a) Base Salary. In consideration of the faithful
performance of the above duties and responsibilities to and
on behalf of the Company, the Company agrees to pay the
Employee during the period of Employee's employment with
Company a base annual salary of $150,000.00 (the "Base
Salary"), increasing to an annual salary of $200,000 on July
1, 1999 . The Base Salary shall be due and payable
semimonthly or on a more frequent basis and reviewed at the
Employee's anniversary date by the Board of Directors of
Company; provided, however, that such Base Salary shall in
any event be increased as of January 1 of each calendar year
at a rate greater than the percentage increase in the
National Consumer Price Index, as reported by the United
States Department of Labor for the immediately preceding
calendar year, or as otherwise determined by the Board of
Directors (or Compensation Committee, if any) of the
Company.
(b) Bonus. As further compensation, the Company may pay
the Employee such bonus or bonuses and stock options as may,
from time to time, be awarded or granted to the Employee by
the Company exercising its sole and absolute discretion.
(i) Bonus on Opening of Web Site. Upon the opening of
the Company's Web Site it is developing (the "Web
Site"), Employee shall be paid a bonus as determined by
the Company.
(c) Employment Taxes. Unless otherwise provided by law,
all compensation paid to the Employee shall be subject to
the customary withholding tax, other employment taxes and
withholding amounts as required with respect to compensation
paid by the Company to the Employee.
6. Split Dollar Life Insurance. The Company agrees to fund a
life insurance policy insuring the life of Employee in the face
amount of $1,000,000.00 wherein the Employee or his designee is
owner and beneficiary of such policy under a split dollar
insurance arrangement. Employee agrees to report the P.S. 58
costs associated with such an arrangement as compensation for
federal income tax purposes.
7. Health Insurance. The Company shall provide, at its
expense, complete family health insurance coverage for the
Employee and his family. The Employee will be eligible to
participate in any other benefit program or plan offered to
similarly situated employees, subject to any limitations or
restrictions associated with said program or plan (such as
waiting periods, vesting schedules, and pre-existing condition
limitations).
8. Business Expenses. Business Expenses of the Employee
incurred in the performance of his duties, including the costs of
attending meetings, promotion, and entertainment
expenses shall be borne by the Company and reimbursable to Employee upon
presentation of appropriate documentation by the Employee to the
Company and compliance with Company's established practices and
procedures.
9. Automobile and Office. During the term of this Agreement,
Company shall furnish Employee with an automobile and related
expenses (i.e. insurance, maintenance, repairs and gas) for
Employee's business use and other equipment, facilities, and
ancillary services for the performance of Employee's duties.
10. Other Company Benefits. Employee shall be entitled to
participate in all employee benefit programs made available to
Company's executives or salaried employees generally, as such
programs may be offered from time to time.
11. Absences. The Employee shall be entitled to four (4) weeks
away from work for paid vacation. Company may, from time to
time, allow Employee additional time away from employment in the
Company's sole discretion. The parties acknowledge that such
exercise of discretion in one event shall not create a right to
additional time away from employment hereunder. Employee shall
also be permitted reasonable numbers of days away from work for
sick days or leaves of
absences.
12. Death or Disability. Except as otherwise provided in this
Paragraph 12, in the event of Employee's death or "Disability"
(as hereinafter defined) occurring during the term of this
Agreement, Employee or his estate, as the case may be, shall be
entitled to: (i) that portion of any unpaid salary together with
the benefits accrued and earned by Employee hereunder up to and
including the last day of the month in which the death or the
Disability occurs, as the case may be, (ii) any death or
disability-related benefits pursuant to the insurance program set
forth above and any employee benefit plan to which Employee or
his beneficiary may be entitled hereunder; (iii) any unpaid Bonus
Amount earned by the Employee for the prior fiscal year of the
Company and approved by Company if such approval is required
hereunder shall be prorated based upon the length of Employee's
service during the applicable year over 365 days; and (iv) a
payment equal to one year's Base Salary then in effect for
Employee if the remaining term of this Agreement is less
than one year, or, if more than one year remains under the
Agreement, the Estate may elect to continue to receive the
payments due under the Agreement specified as salary. A
"Disability" shall be deemed to have occurred if Employee shall
have been unable to discharge his normal duties and job
description under this Agreement for a period of ninety (90) days
in the aggregate during any consecutive four (4) month period, by
reason of his physical or mental disability of illness. In the
event that Employee is unable to resume a normal work schedule at
the end of said four (4) month period, his employment shall
thereupon terminate at the end of the calendar month in which
such period ends.
13. Termination. Employee's employment with the Company shall
be terminate if any of the following occur:
(a) At the expiration of the term of this Agreement if
Company gives written notice of its intention not to renew
this Agreement one hundred eighty (180) days prior to the
expiration of the term;
(b) On the death of the Employee;
(c) Whenever the Employee shall fail to cure or rectify a
material breach of any of the terms, covenants and
conditions of this Agreement within thirty (30) days after
Employee receives written notice from the Company to cure
such default (except when terminated for those causes that
allow immediate termination as described in Section 14(b));
(d) For "Cause" as defined in Paragraph 14 below; or
(e) Upon the Disability of the Employee as set forth in
Paragraph 12 above.
14. Definition of "Cause".
(a) For the purposes of this Agreement, the term "Cause"
shall include:
(i) incompetence, failure, inability, or refusal to
perform assigned duties;
(ii) gross negligence, willful misconduct or
breach of fiduciary duty;
(iii) being under the influence of, or use,
sale, distribution, or possession of unauthorized or
illegal drugs or intoxicating beverages while on duty
or on the Company's or a subsidiary's premises;
(iv) willful destruction or defacement of Company's or
a subsidiary's, a customer's, or an employee's
property;
(v) unauthorized disclosure of confidential
information; and
(vi) continued and unexplained absences from work.
(b) For the purposes of this Agreement, Employee shall be
immediately terminated without notice for the following
Causes:
(i) unauthorized entry into Company's secured
non-public
areas;
(ii) falsifying or altering the Company's or a
subsidiary's records;
(iii)theft, embezzlement, fraud or forgery;
(iv) any act which results or was intended to
result in significant gain or personal enrichment to
the Employee at the Company's expense.
15. Confidential and Secret Information/Company Property.
Employee acknowledges that he will have access to items used in
the Company's business which the Company deems to be secret,
confidential, unique and valuable; were developed by Company at a
great cost and over a long period of time; and that disclosure of
any of these items to anyone other than Company's officers,
directors, agents or authorized employees will cause Company
irreparable injury. Employee agrees that upon termination of this
Agreement, he will return any and all documentary information or
written documents to Company. Such items and information shall
be held in strict confidence by the Employee and shall not be
revealed to any third party unless otherwise required by law.
All other material and property that may be furnished to employee
during the course of his employment with the Company such as
customer lists, customer tracking, automobiles, books and records
shall be and remain the Company's property and shall be returned
to the Company at any time upon demand.
16. Severance Pay. In the event Company terminates Employee's
employment hereunder, Company shall pay to Employee a sum
equivalent to the balance of the salary due to be paid under this
Agreement or 300% of the Base Salary (excluding bonuses and other
compensation), whichever is greater.
17. Change of Control. Immediately upon a Change of Control, if
Executive's employment with Company is terminated within
twenty-four (24) months following such Change of Control, either
without cause or pursuant to this Agreement, in addition to any
other compensation or benefits payable pursuant to this
Agreement, Executive shall be entitled to: Payment in cash equal
to four times his Base Salary, plus immediate vesting of 100% of
all Employee's stock; stock options or other awards to the
Executive under any of the Company's incentive plans. The
Executive's rights upon a Change of Control to benefit under
programs, plans and policies of the Company shall be
determined according to the terms and provisions of such
programs, plans and policies.
18. Arbitration. Any and all disputes, controversies or claims
arising under or in connection with this Agreement other than the
right to injunctive relief as set forth in Paragraph 14 above,
including without limitation, the general validity or
enforceability of this Agreement, shall be governed by the laws
of the State of California, without giving effect to its conflict
of law provisions and shall be submitted to binding arbitration
rules of the American Arbitration Association conducted in Orange
County, California. All expenses of any arbitration shall be
borne equally by the parties. The award to the arbitrator,
including any award of attorney's fees, shall be final and
enforceable in the courts of California. All costs of enforcing
a judgment following the arbitration are to be borne by the
losing party. In reaching his or her decision, the
arbitrator shall have no authority to change or modify any
provision of this Agreement. Each party shall have the right to
discovery in accordance with the California Rules of Civil
Procedure.
20. Modification. This Agreement shall not be modified,
amended, supplemented, or extended except by written consent
executed by both the Company and Employee, except as expressly
provided herein to the contrary.
21. Assignment. Neither the Employee nor the Company shall
voluntarily subcontract or assign any of their respective rights,
duties, or obligations hereunder without first obtaining the
other party's written consent.
22. Notice. Except as expressly provided to the contrary
herein, any notices or other communications required, permitted,
or made necessary by the terms of this Agreement may be given to
the respective representatives of the Company and the Employee
designated herein by written communication. Written notices
shall be personally delivered to the Company's representative or
the Employee as appropriate or sent by the United States
registered or certified mail, postage prepaid, return receipt
requested, addressed to the Company to its principal corporate
office and to the Employee at the Employee's residential address.
Notices sent by mail shall be deemed made, delivered, and
received on the date of the United States' postmark thereon.
Upon receipt of notice Employee shall have thirty (30) days to
cure or rectify all items described in the Notice. Federal
Express and similar services shall be considered personal service
or delivery. Personal delivery of written notice hereunder may
also be give by facsimile or other electronic transmission
(provided that the sender of a telephone facsimile or
other electronic transmission has received a facsimile
confirmation report showing the number to which the facsimile was
transmitted). Either party may change its address for notice by
giving notice of such change to the other party in the manner
specified in this section.
23. No Waiver. No waiver of any breach or default in any of the
terms and provisions of this Agreement shall be deemed to
constitute or be construed as a waiver of the subsequent breach
of default of the same, similar, or dissimilar nature.
24. Choice of Law and Invalidity. The validity, construction,
performance and effect of this Agreement shall be governed by the
laws of the State of California. In case any one or more of the
provisions contained herein shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision
has never been contained herein. If any one or more provisions
contained herein shall, for any reason, be held to be excessively
broad as to time, duration, geographical scope, activity or
subject, said provision shall be construed by limiting and
reducing it so as to be enforceable to the extent compatible with
the then applicable law, it being the intent of the parties
hereto to give the maximum permitted effect to the restrictions
set forth herein.
25. Interpretation. If necessary to give effect to the terms
and provisions hereof, the masculine, feminine, and neuter gender
in the singular and plural number shall each be deemed to include
the other whenever the context so indicates. To the
unenforceable, it is agreed that the essential terms of this
Agreement shall be and remain enforceable against the parties.
26. Headings. Headings in this Agreement are inserted
convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent, or intent
of this Agreement or any provision hereof.
27. Counterparts. This Agreement may be executed in any number
of counterparts, any of which may be constituted in the agreement
between the parties hereto.
28. Time. Time is of the essence for all obligations
contemplated in this Agreement.
29. Entire Agreement. This Agreement, and any schedules and
exhibits attached thereto contain and set forth the entire
Agreement between the parties with respect to the subject matter
hereof. All prior negotiations and agreements between the
parties with respect to the scope of this Agreement are mutually
rescinded, replaced, and superseded hereby.
30. Authority. The Company warrants and represents that it is a
corporation organized and existing under the laws of the State of
Oklahoma, that the undersigned is authorized to execute this
Agreement on behalf of the Company; that the employment of the
Employee under the terms of this Agreement has been duly
authorized by the Company.
31. Inurement. Each covenant and condition in this Agreement
shall be binding on, and shall inure solely to the benefit of the
parties to it, their respective heirs, legal representatives,
successors, and assigns.
32. Presumption. This Agreement or any section of this
Agreement shall not be construed against any party due to the
fact that the Agreement or any section of it was drafted by said
party.
IN WITNESS WHEREOF, the parties to this Employment Agreement have
duly executed it on the day and year first above written.
EMPLOYEE: COMPANY:
0XXXXXXX.XXX, INC., AN OKLAHOMA
CORPORATION
By:/s/Xxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxxxx,
0000 X. Xxxxxxxxxx Xxxx. Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 00000 Xxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
