Executive Employment Agreement
EXHIBIT
10.5
This Executive Employment Agreement
(“Agreement”) is made as of the _____ day of ___________, 2009 between Xxxx
Wind, Inc (the “Company”) and Xxxx Xxxxx (“Employee”).
WITNESSETH:
WHEREAS, the Company is in the business
of developing, managing and selling wind power projects (the
“Business”);
WHEREAS, Employee is currently the
Chief Financial Officer (“CFO”) of the Company and desires to continue in that
role for the terms hereof to govern his activities with the
Company;
WHEREAS, Company desires to employ
Employee as CFO of the Company and define the terms and nature of their
relationship, and Employee desires to be employed by the Company upon the terms
and conditions stated herein;
WHEREAS, the Company wishes to protect
its Confidential Information (as defined herein) and to restrict certain future
solicitation and competition by Employee;
WHEREAS, Employee's execution of this
Agreement is a requirement of Employee's employment with the Company;
and
WHEREAS,
this Agreement will apply to the Company and to Xxxx Wind Inc. and any successor
companies;
WHEREAS, the parties hereto agree that
this Agreement shall supersede any other agreements regarding Employee’s
provision of services to the Company.
NOW, THEREFORE, in
consideration of the premises, in further consideration of Employee’s employment
by Company, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Company and Employee hereby agree as
follows:
1. Incorporation
of Recitals.
The above recitals are, and shall be
construed to be, an integral part of this Agreement. The parties
hereto acknowledge and agree that this Agreement formalizes in writing certain
understandings and procedures which shall be in effect during the Term of
Employee’s employment with the Company.
2. Term
of Agreement.
The term of this Agreement shall be for
a period of approximately two (2) years and four (4) months commencing on the
date shown above and continuing through December 31, 2011 (“Term”).
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3. Scope
of Employment.
A. Employee’s
commencement of employment with the Company shall be conditioned upon and
subject to the satisfactory completion of a background check and a drug
screening test if elected by the Company, the expense of which shall be borne by
the Company.
B. The
Company agrees that during the Term of this Agreement, the Company shall employ
Employee as CFO to perform the services identified on Exhibit A and such other
duties which are of the type and nature normally assigned to such employees of a
business of the size, stature, and nature of the Company, as the Board of
Directors of the Company may from time to time assign.
C. Employee
hereby accepts such employment and agrees that during the Term of this Agreement
that:
(i) Employee
will perform such duties in the foregoing capacity, and agrees that fiduciary
duties normally applicable to officers, including, without limitation, those of
loyalty and due care, shall be applicable to Employee;
(ii) Employee
will devote his working time and attention, as well as his best efforts and
abilities to the performance of his duties hereunder and to the affairs of the
Company. Employee agrees that any board or committee positions in any
other business or organization must not conflict or interfere with Employee’s
role on behalf of the Company;
(iii) Employee
will not engage in any other activities which conflict, interfere with or
otherwise adversely affect in any way the proper discharge of his duties
hereunder and compliance with the covenants of Employee contained
herein;
(iv) Employee
will not enter into contracts or commitments on behalf of the Company without
the prior written authorization of the Board of Directors or by Company policy
established for such purpose, and Employee acknowledges and agrees that he shall
not have any authority to do so without such prior consent; and
(v) Employee
will comply with all lawful policies which from time to time may be in effect at
the Company or adopted by the Company and conveyed to Employee.
4. Compensation.
As compensation for the services to be
performed by Employee hereunder, the Company agrees to pay to Employee, and
Employee agrees to accept, the following:
A. Salary. The
Company will pay the CFO a monthly salary of Ten Thousand Four Hundred Seventeen
Dollars ($10,417) to be paid on the first day of each month in advance as salary
for that month, pro-rated for any partial months; provided however, that such
salary shall increase to the monthly rate of Twelve Thousand Five Hundred
Dollars ($12,500) upon the earlier of the closing of a $100 million equity fund
for wind projects or the Company’s construction of a second wind
project.
B. Performance
Bonus. The Company will pay the CFO an annual performance bonus
pursuant to the terms of certain goals as established by senior management and
approved by the Board of Directors. The CFO’s Performance Bonus may
equal a maximum of 100% of his annual salary then in effect.
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C. Warrants/Options. The
parties acknowledge that the Employee is in receipt of a stock option grant
dated January 26, 2009 for 100,000 shares of common stock of the Company, with
such exercise price being the closing price on the date of grant. In recognition
of extraordinary efforts provided during Employee’s services since inception of
employment in January 2009, the CFO will be granted an additional stock option
as of the date hereof to purchase up to 150,000 shares of common stock of the
Company at an exercise price equivalent to the closing per share price of common
stock of the Company on August 13, 2009.
D. Employee
Benefits. In addition to Employee’s compensation, the
Company shall make available to such Employee, subject to change at any time by
senior management and approved by the Board of Directors, during the Term
hereof:
(i) Participation
in any plans, to the extent such plans are available to all similarly situated
employees (unless restricted due to Employee’s income level), which are from
time to time offered to the Company’s employees with respect to group health,
life, accident and disability insurance or payment plans, retirement plans,
profit sharing or similar employee benefits, if any, and subject to the
satisfaction of insurance underwriting requirements; provided, however, that the
Company may elect to provide cash compensation to cover individually purchased
benefits in lieu of establishing corporate plans;
(ii) Twenty
days of paid annual vacation, accrued based upon time employed (i.e. accrued at
a rate of 1⅔ days per month), as well as 10 days of personal time, plus paid
holidays designated as such by the Company;
(iii) Automobile
allowance in the amount of $750 per month;
(iv) The
Company shall reimburse Employee for all reasonable and necessary business
expenses incurred by Employee in connection with Employee’s performance of
services hereunder as soon as practicable in accordance with the Company’s
reimbursement policy following submission to the Company by Employee of a
written itemized account of such expenditures, together with receipts therefore,
all in accordance with the Company’s policy and with applicable law, rules and
regulations governing deductibility of such amounts under the Internal Revenue
Code of 1986, as amended; and
(v) Other
fringe benefits regularly provided to the similarly situated employees of the
Company.
5. Termination.
A. Termination
by the Company with Cause. The Company may terminate Employee’s
employment with “Cause” as hereafter defined in this section upon written
notice. “Cause” shall mean Employee’s: (i) conviction of, or
indictment for, criminal negligence or criminal acts in the work place or
conviction of a felony, (ii) violation of the Company’s material policies or
procedures that have been made known to Employee, or violation by Employee on
Company premises of any law or material regulation, (iii) material breach or
violation of this Agreement, (iv) commission of any act of theft, fraud,
dishonesty, or falsification of any employment or Company records, (v)
appropriation of a business opportunity or transaction in contravention of
Employee’s duties to the Company, (vi) any improper action by Employee which has
a detrimental effect on the Company’s reputation or business, (vii) failure to
perform the duties assigned or requested by the Board of Directors, or (viii)
gross negligence, incompetence or willful misconduct by Employee in the
performance of Employee’s duties. In the event that Employee is
terminated with “Cause,” Employee shall only be entitled to the payment of
Employee’s then-current accrued, unpaid Compensation and accrued unused
vacation, each prorated through the date of termination. In the case
of an event of Cause under clauses (ii), (iii), (vi) or (vii), with the
exception of any such events of Cause arising from breach of any of the
provisions of Sections (i), (iv), (v) or (viii) hereof, Employee shall be
provided the opportunity to cure such event within a reasonable time following
written notice thereof and not to exceed thirty (30) days following such notice
(the “Cure Period”), and if the Employee desires to effect a cure to same then
Employee shall provide the Company with written notice within five business days
following receipt of notice of Cause of such desire, and in the absence of such
cure by Employee within the Cure Period Employee shall be deemed terminated upon
the expiration of the Cure Period unless otherwise mutually agreed in
writing. However, notwithstanding the foregoing, Employee shall not
be provided the opportunity pursuant to the foregoing sentence to cure
Employee’s repeated or persistent actions, failures or omissions occurring
within a three month period which constitute Cause (in the absence of cure)
hereunder and which would otherwise be curable but for such
reoccurrence.
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B. Termination
by Employee for Good Reason. Employee may terminate his employment
hereunder for Good Reason. “Good Reason” shall mean (i) a
material diminution of Employee’s employment duties without Employee’s consent,
which consent shall not be unreasonably withheld; (ii) a material and persistent
breach by the Company of Section 4 hereof; or (iii) the corporate headquarters
of the Company is relocated outside the geographic region of Minneapolis-Saint
Xxxx, Minnesota. Employee shall provide the Company thirty (30) days
prior written notice of his intention to resign for Good Reason which states his
intention to resign and sets forth the reasons therefor, and any resignation
without delivery of such notice shall be considered to be a resignation for
other than Good Reason. In the event that Employee terminates his
employment pursuant to this section, Employee shall be entitled to (i) payment
of Employee’s then-current accrued, unpaid Compensation and accrued, unused
vacation, each prorated through the date of termination, and (ii) an amount in
respect of individual severance pay equivalent to 90 days of the then current
full year compensation. During the thirty (30) day period following
the delivery of such notice, Employee shall reasonably cooperate with the
Company in locating and training Employee’s successor and arranging for an
orderly transference of his responsibilities.
C. Termination
Due to Employee’s Death or Disability. In the event that this
Agreement and Employee’s employment is terminated due to Employee’s death or
disability, Employee (or Employee’s legal representatives) shall be paid
Employee’s then-current unpaid compensation and accrued, unused vacation, each
prorated through the date of termination. For purposes of this
Agreement, the term “disability” shall mean the mental or physical inability to
perform satisfactorily the essential functions of Employee’s full-time duties,
with or without a reasonable accommodation, as determined by a physician
mutually agreed by the Company and Employee, such agreement not to be
unreasonably withheld; provided, however, that any disability which continues
(subject to any requirements of applicable law) for one hundred and twenty (120)
days (whether or not consecutive) in any twenty-four (24) month period shall be
deemed a total and permanent disability.
6. Representations,
Warranties and Certain Covenants of Employee.
Employee
hereby represents, warrants and covenants to the Company that:
A. Employee
is not subject to any agreement, including any confidentiality,
non-solicitation, non competition, or invention assignment, agreement or other
restrictive covenant, whether oral or written, which would in any way restrict
or prohibit Employee’s ability to execute this Agreement, perform Employee’s
obligations under this Agreement or otherwise comply with the terms of this
Agreement;
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B. Employee
has respected and at all times in the future will continue to respect the rights
of Employee’s previous employer(s) in trade secret and confidential information
in accordance with applicable agreements, if any, and applicable
law;
C. Employee
has left with Employee’s previous employers all proprietary documents, computer
software programs, computer discs, customer lists, and any other material which
is proprietary to Employee’s previous employer(s), has not taken copies of any
such materials and will not remove or cause to be removed any such material or
copies of any such material from such previous employer(s) in violation of
Employee’s agreements, if any, with previous employers;
D. Employee
has not done, and hereafter will not do anything, by contract or otherwise,
which would impair the rights of the Company in and to any Company Developments
(as defined below), the Company Materials (as defined below), or the ability of
Employee to perform Employee's obligations under this Agreement;
E. Employee
shall not, during the term of his employment with the Company, do anything or
authorize any other person or entity to do anything contrary to the material
rights and interests of the Company in contravention of Employee’s obligations
under this Agreement;
F. The
information Employee supplied to the Company in connection with Employee’s
employment is true, correct, and complete; and
G. So
long as Employee remains employed by the Company, any and all business
opportunities from whatever source which Employee may receive or otherwise
become aware of in connection with his employment with the Company relating to
the Business of the Company shall belong to the Company, and unless the Company
specifically, after full disclosure by Employee of each and any such
opportunity, waives its right in writing, the Company shall have the sole right
to act upon any of such business opportunities as the Company deems
advisable.
7. Work
for Hire and Invention Assignment.
A. Employee
agrees that any and all work performed hereunder and any resulting Developments
shall be “work made for hire” within the meaning of the Copyright Act of 1976,
as amended. Employee hereby assigns to the Company Employee’s entire
right, title and interest in said Developments. Furthermore, Employee
shall execute all instruments of assignment and any other documents requested by
Company relating to the Company’s ownership of any and all Developments or to
applications for patents, copyrights and trademarks and the enforcement and
protection thereof.
B. Employee
shall xxxx all Developments with the Company’s copyright or other proprietary
notice as directed by the Company and shall take all actions deemed necessary by
the Company to protect the Company’s rights therein including, without
limitation, the maintenance of such item in confidence to the same degree as
required for Confidential Information (as herein defined) or as otherwise
instructed by the Company. In the event that the Developments shall
be deemed not to constitute works made for hire, or in the event that Employee
should otherwise, by operation of law, be deemed to retain any rights (whether
moral rights or otherwise) to any Developments, Employee agrees to assign to the
Company, without further consideration, Employee’s entire right, title and
interest therein.
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C. Assistance. Employee
further agrees to reasonably assist the Company in every proper way (but at the
Company’s expense) to obtain and from time to time enforce patents, copyrights,
or other rights or registrations with respect to Developments in any and all
countries, and to that end will execute all documents necessary:
(i) to
apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights, or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same;
(ii) to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection; and
(iii) to
cooperate with the Company (but at the Company’s expense) in any enforcement or
infringement proceeding on such letters patent, copyright or other analogous
protection.
8. Confidential
Information
A. Confidential
Information.
Employee
acknowledges and agrees that:
(i) During
the course of Employee's employment with the Company, Employee will learn about,
will help to develop and will develop, and will be entrusted in strict
confidence with (1) confidential and proprietary information and trade secrets
that are or will be owned by the Company and are not available to the general
public or the Company’s competitors concerning the Company, including its sales,
operations, financial condition, financial projections, profit margins,
personnel matters (including the identity of the Company’s top-performing
personnel, hiring criteria, and training techniques), intermediate and long-term
business goals and strategic plans, promotional strategies and techniques,
pricing and cost structure of services, customer identities, customer
relationship histories, customer records, customer service matters, customer
preferences, needs and idiosyncrasies, formal customers and prospects, identity
of vendors and suppliers, special vendor and supplier pricing and delivery
terms, computer programs and codes, research and development, specifications,
algorithms, processes, formulas methods, technical data, know-how,
complications, designs, drawings, photographs, other machine-readable records,
business activity and other confidential aspects of the Company and its business
and operations; (2) information which the Company will be required to keep
confidential in accordance with confidentiality obligations to third parties;
and (3) other matters and materials belonging to or relating to the internal
affairs of the Company, including information recorded on any medium which gives
it an opportunity to obtain an advantage over its competitors which do not know
or use the same or by which the Company derives actual or potential value from
such matter or material not generally being known to other persons or entities
which might obtain economic value from its use or disclosure (all of the
foregoing being hereinafter collectively referred to as the "Confidential
Information");
(ii) It
is imperative that the Employee treat whatever information the Company wants to
protect from disclosure as genuinely “Confidential,” i.e. restricting access by
pass code, stamping hard copies “Confidential,” and restricting access thereto
except by personnel, and the like;
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(iii) The
Company has developed or purchased and will develop or purchase the Confidential
Information at substantial expense in a market in which the Company faces
intense competitive pressure, and the Company has kept and will keep secret the
Confidential Information; and
(iv) The
Company has a legitimate interest in protecting the goodwill, customer
information, customer relationships, and use of Employee’s skills by means of
enforcement of the restrictive covenants set forth in this
Agreement.
B. Confidentiality
Covenants.
In
consideration of Employee’s employment and compensation and other consideration
described herein, Employee acknowledges and agrees that:
(i) To
the extent that Employee developed or had access to Confidential Information
before entering into this Agreement, Employee represents and warrants that he
has not used for his own benefit or for the benefit of any other person or
entity, and he has not disclosed, directly or indirectly, to any other person or
entity, other than the Company, any of the Confidential
Information. Unless and until the Confidential Information becomes
publicly known through legitimate means not involving an act or omission by
Employee or the Company’s other employees or independent
contractors:
(A) The
Confidential Information is, and at all times hereafter shall remain, the sole
property of the Company;
(B) Employee
shall use his best efforts and the diligence to guard and protect the
Confidential Information from disclosure to any competitor, customer or supplier
of the Company or any other person, firm, corporation, or other
entity;
(C) Unless
the Company gives Employee prior express written permission, during his
employment and thereafter, Employee shall not use for his own benefit, or
divulge to or use for the benefit of any competitor or customer or any other
person, firm, corporation, or other entity, any of the Confidential Information
which Employee may obtain, learn about, develop, or be entrusted with as a
result of Employee's employment by the Company; and
(D) Except
in the ordinary course of the Company's Business, Employee shall not seek or
accept any Confidential Information from any former, present, or future
contractor or employee of the Company.
(ii) Employee
also acknowledges and agrees that all documentary and tangible Confidential
Information including, without limitation, such Confidential Information as
Employee has committed to memory, is supplied or made available by the Company
to Employee solely to assist him in performing his duties under this
Agreement. Employee further agrees that upon termination of his
employment with the Company for any reason:
(A) Employee
shall not remove from Company property, and shall immediately return to the
Company, all documentary or tangible Confidential Information in his possession,
custody, or control and not make or keep any copies, notes, abstracts,
summaries, tapes or other record of any type of Confidential Information;
and
(B) Employee
shall immediately return to the Company any and all other Company property
belonging to or within the custody or possession of the Company or as to which
the Company has the right of possession, in his possession, custody or control,
including, without limitation, all internal manuals, customer or client work
papers, data, software, and other written materials (and all copies thereof)
prepared for internal use by the Company or used in connection with the Business
or operations of the Company, any and all keys, security cards, passes, credit
cards, and marketing literature.
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9. Return
of Material.
Upon
termination of employment with Company, and regardless of the reason for such
termination, or upon the Company’s request, Employee will leave with, or
promptly return to Company and its customers all documents, records, notebooks,
magnetic tapes, disks, computers, network hardware, and other materials,
including all copies in his possession or control which contain Confidential
Information of Company and its customers and prospects or any other information
concerning Company and its customers, prospects, products, services or
customers, whether prepared by the Employee or others, including, without
limitation, Company Materials and Developments.
10. Covenants Not To Compete and
Anti-Piracy.
Employee acknowledges that the services
rendered by Employee on behalf of the Company are of a special and unique
character, that Employee is being provided a substantial equity stake in the
Company, and that during the performance of such services, Employee will
acquire, because of the special relationship among the Company, Employee and the
Company’s customers and clients, valuable information, trade secrets, customer
lists, proprietary information, financial information and unique
skills. Accordingly, Employee covenants, in consideration of
Employee’s employment and compensation and other consideration described above,
that while Employee is employed by the Company and for a period of six (6)
months after the termination of Employee’s employment with the Company for any
reason, Employee shall not without the prior written consent of the Company,
directly or indirectly, either on Employee’s own behalf or on behalf of any
other person work as an independent contractor for or be employed by another
company, person, firm, corporation, proprietorship, partnership or other entity
in competition with the Company which is engaged primarily in the
Business. Employee acknowledges that in the event that Employee’s
employment with the Company terminates, Employee will be able to earn a
livelihood without violating the foregoing covenants.
11. Non-Solicitation
of Customers.
In consideration of his employment and
compensation and other consideration described herein, Employee agrees that for
a period of twenty four (24) months immediately following the termination of
Employee’s employment with the Company, Employee will not, either for himself or
on behalf of any other person or entity, directly or indirectly, solicit,
attempt or offer to provide services or provide services, competitive with those
services rendered or products sold by or on behalf of the Company during the
term of this Agreement, to any past or present client of the Company for whom
the Company has performed services or to whom the Company has sold products
during the one (1) year period prior to the termination of Employee’s
employment.
12. Non-Solicitation
of Employees.
In consideration of his employment and
compensation and other consideration described herein, Employee agrees that
Employee will not during both the term of this Agreement and the twelve (12)
months following the termination of Employee's employment, without the written
consent of the Company, for any reason, directly or indirectly, or by action in
concert with others, induce or influence, or seek to induce or influence, any
person who is engaged by the Company as an employee, agent, independent
contractor or otherwise, to terminate his or her employment or engagement, nor
shall Employee prior to the expiration of such period, directly or indirectly,
solicit for employment or engagement, employ or engage, attempt to employ or
engage, or advise or recommend to any other person or entity that such person or
entity employ or engage or solicit for employment or engagement, any person or
entity employed or engaged by the Company.
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13. Equitable
Relief.
Employee acknowledges and agrees that
the Business is highly competitive, and that violation of any of the covenants
and agreements provided for in Sections 8 - 12 of this Agreement would
cause immediate, immeasurable and irreparable harm, loss and damage to the
Company not adequately compensable by a monetary award. Accordingly,
Employee agrees, without limiting any of the other remedies available to the
Company, that any violation of said covenants, or any of them, may be enjoined
or restrained by any court of competent jurisdiction, and that any temporary
restraining order or emergency, preliminary or final injunctions may be issued
by any court of competent jurisdiction, without notice and without
bond. In the event any proceedings are commenced by the Company for
any actual or threatened violation of any of said covenants or agreements or the
Company shall engage legal counsel or incur other costs and expenses related to
the enforcement of said covenants or agreements, Employee shall be liable to the
Company to the extent the Company is the prevailing party in such proceedings
(or in the absence of a proceeding, to the extent the services of attorneys and
the incurrence of such other costs and expenses were reasonably required for the
Company’s enforcement of the provisions of this Agreement, as determined by the
Company’s Board of Directors) for all reasonable costs and expenses of any kind,
including reasonable attorneys' fees, which the Company has incurred in
connection with such proceedings or enforcement activities, including, without
limitation, in connection with the enforcement of the provisions of this
section. Employee acknowledges that in the event that Employee’s
employment with the Company terminates, Employee will be able to earn a
livelihood without violation of the aforesaid covenants of this
Agreement.
14.
Binding Effect and Benefit.
The
provisions hereof shall be binding upon, and shall inure to the benefit of,
Employee, his heirs, executors, and administrators as well as to Company, its
successors, and assigns; however, Employee’s services under this personal
services contract are not assignable by Employee.
15. Waivers.
No delay
on the part of any party in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise or waiver thereof by any
party of any right or remedy shall preclude the exercise or further exercise
thereof or the exercise of any other right or remedy.
16. Waiver of
Conflict.
The law
firm of Synergy Law Group, L.L.C. (“Law Firm”) has disclosed to the parties its
potential conflicts of interest arising from the negotiation of this
Agreement. The Law Firm currently represents or has represented the
Company and the Employee, and the Law Firm has advised the parties that they
have the right to seek independent representation. The Company and
Employee acknowledge that they have been advised of all conflicts of interest
arising from the representation provided to the parties referenced herein by
attorneys from the Law Firm. The parties hereby waive any conflict of
interest resulting from the past, current and future representation provided by
the Law Firm to the Company and the Employee in matters both related and
unrelated to this Agreement.
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17. Severability;
Interpretation.
Whenever
possible, each of the provisions of this Agreement shall be construed and
interpreted in such a manner as to be effective and valid under applicable
law. If any provisions of this Agreement (including but not limited
to Sections 8, 10 through 12) or the application of any provision of this
Agreement to any party or circumstance shall be prohibited by, or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition without invalidating the remainder of such provision, any other
provision of this Agreement, or the application of such provision to other
parties or circumstances. Headings used in this Agreement are for
convenience of reference only.
18. Entire
Agreement.
Any and
all prior discussions, understandings, and agreements, whether written or oral,
express or implied, including, without limitation, any offer letter, held or
made between Employee and the Company are superseded by and merged into this
Agreement, which alone fully and completely expresses the agreement of the
parties with regard to the matters addressed herein, and this Agreement is
entered into with no party relying on any statement or representation made by
any other party which is not contained in this Agreement.
19. Amendments.
This
Agreement may be modified, amended or supplemented only by execution of a
written instrument signed by both Employee and the Company.
20. Survival.
The
provisions of Sections 8, 10 through 12 and 13 through 24 shall survive any
termination of Employee’s employment hereunder and any termination or expiration
of this Agreement.
21. Notice.
Any notices or communications hereunder
will be deemed sufficient if made in writing and hand-delivered, or if sent by
facsimile with confirmation of transmission retained, or if mailed, postage
prepaid, registered or certified mail, return receipt requested, or if sent by
nationally recognized overnight courier, to the following
addresses:
|
If
to the Company:
|
If
to Employee:
|
|
Xxxx
Energy Development, Inc.
|
Xxxx
Xxxxx
|
|
000
000xx
Xxx
|
0000
Xxxxxx Xxxxxxx
|
|
Xxxxxxxxx,
XX 00000
|
Xxxx
Xxxxxxx,
XX 00000
|
or to
such other address as either party may designate for such party by written
notice to the other given from time to time in the manner herein
provided.
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22. Presumptions.
In resolving any dispute or construing
any provision hereunder, there shall be no presumptions made or inferences drawn
because the attorneys for one of the parties drafted the Agreement.
23. Counterparts.
This Agreement may be executed in one
or more counterparts and by transmission of a facsimile or digital image
containing the signature of an authorized person, each of which shall be deemed
and accepted as an original, and all of which together shall constitute a single
instrument.
24. Arbitration/Waiver of
Claims.
The
Parties hereby waive any claim they may have against either party regarding any
affairs between the Parties prior to this Agreement. The Parties agree
that in the event of any and all disagreements and controversies arising from
this Agreement such disagreements and controversies shall be subject to binding
arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association to be held in Chicago,
Illinois before one neutral arbitrator. Either Party may apply to the arbitrator
seeking injunctive relief until the arbitration award is rendered or the
controversy is otherwise resolved. Without waiving any remedy under this
Agreement, either Party may also seek from any court having jurisdiction any
interim or provisional relief that is necessary to protect the rights or
property of that Party, pending the establishment of the arbitral tribunal (or
pending the arbitral tribunal’s determination of the merits of the controversy).
In the event of any such disagreement or controversy, neither Party shall
directly or indirectly reveal, report, publish or disclose any information
relating to such disagreement or controversy to any person, firm or corporation
not expressly authorized by the other Party to receive such information or use
such information or assist any other person in doing so, except to comply
with actual legal obligations of
such Party or unless such disclosure is directly related to an arbitration
proceeding as provided herein, including, but not limited to, the prosecution or
defense of any claim in such arbitration. The costs and expenses of the
arbitration (including attorneys’ fees) shall be paid by the non-prevailing
Party or as determined by the arbitrator. The Parties are hereby waiving
any claims against each other party for any activities or prior business
transactions between the parties to date. This paragraph shall survive the
termination of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
Page
11
IN WITNESS WHEREOF, this
Agreement has been executed and delivered by the parties hereto as of the date
set forth above.
|
XXXX
WIND, INC.
|
EMPLOYEE:
|
||
|
By:
|
____________________________
|
____________________________
|
|
|
Xxxx
Xxxxxx, President
|
Xxxx
Xxxxx
|
||
Caution
to Employee: THIS AGREEMENT AFFECTS IMPORTANT RIGHTS
INCLUDING, WITHOUT LIMITATION, RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL
PROPERTY THAT EMPLOYEE MAY DEVELOP DURING HIS EMPLOYMENT. DO NOT SIGN
IT UNLESS YOU HAVE READ IT CAREFULLY AND ARE SATISFIED THAT YOU UNDERSTAND IT
COMPLETELY.
Page
12
EXHIBIT
A - SERVICES
Employee’s duties for and on behalf of
the Company shall include the following:
|
|
1.
|
To
provide required overall direction for financial operations
including:
|
|
|
·
|
Accounts
Payable and Receivables management
|
|
|
·
|
Billing
administration
|
|
|
·
|
General
Ledger
|
|
|
·
|
Cash
management
|
|
|
·
|
Budgeting
|
|
|
·
|
Cash
Flow projections
|
|
|
·
|
Consolidated
financial statements
|
|
|
·
|
Tax
reporting and management
|
|
|
·
|
Risk
Management
|
|
|
2.
|
To
provide financial analysis and support for wind project
financings:
|
|
|
·
|
Project
Proformas
|
|
|
·
|
Debt
and equity investor support
|
|
|
·
|
Legal
agreement review and support
|
|
|
·
|
Tax
analysis
|
|
|
3.
|
To
implement financial systems and controls for Xxxx and its
subsidiaries:
|
|
|
·
|
Sarbanes
Oxley compliance
|
|
|
·
|
Financial
reporting
|
|
|
·
|
Signing
Authority
|
|
|
·
|
Internal
accounting and administrative
controls
|
|
|
4.
|
To
manage compliance with public company
status
|
|
|
·
|
Annual
and quarterly reporting to the SEC
|
|
|
·
|
Stock
registration
|
|
|
·
|
Current
reports as required
|
|
|
·
|
Transfer
Agent support
|
|
|
·
|
Investor
relations support
|
|
|
5.
|
To
provide leadership and direction of the Human Resources Dept,
including:
|
|
|
·
|
Benefits
programs
|
|
|
·
|
Recruitment
and Retention
|
|
|
·
|
Employment
policy issues
|
