EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
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This employment agreement (the "Agreement") is made and entered into as
of August 1, 2007 by and between XXXXXX MINERALS LTD., a Nevada corporation,
(the "Corporation" or "Employer"), and XXXXXXX X. XXXXXXXX, an individual
("Executive"). This Agreement shall become enforceable upon execution.
RECITALS
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A. The Employer desires Executive's employment with Employer and
Executive desires to accept such employment on the terms and conditions in this
Agreement.
AGREEMENT
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For the promises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties hereby intend to be and agree to be legally bound as follows:
1. TITLE(S) and DUTIES. Executive shall have the title "Treasurer and Director"
of the Corporation. Executive shall have the duties, responsibilities and
authority normally performed and enjoyed of a Treasurer and Director of similar
company within the mineral and mining industry, including but not limited to
corporate leadership, marketing, investor relations, structuring of company
liabilities and assets, oversight of company assets, preparing and filing of
financial forms, and other duties as may be assigned by Employer from time to
time.
Executive shall have other duties vested in him by the Employer from
time to time with his consent and subject to the control and direction of the
Board of Directors of the Corporation.
2. COMPENSATION.
2.1 Salary. In consideration for the services Executive provides as
under this Agreement, Employer shall cause to be paid to Executive a salary of
Three Thousand Dollars ($3,000), payable monthly.
(a) Benefit Packages. Executive shall be eligible to participate in
Employer's retirement, savings, vacation and life and disability insurance
plans, to the extent provided by the terms and conditions of each such plan or
program, if any.
(c) Stock Ownership. Executive's shall receive three hundred thousand
(300,000) shares of restricted common stock, to be issued upon effective date of
this agreement and to be deemed fully earned on December 31, 2007. Should
Executive's employment agreement be terminated prior to December 31, 2007, for
any reason other than fraud, the Executive's stock compensation shall be deemed
earned pro rata up and until date of termination.
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2.2 Expenses. Employer shall reimburse Executive for customary and
reasonable expenses incurred in the normal course of business as determined in
Employer's reasonable discretion. Reimbursement shall be handled in accordance
with Employer's normal practices and policies.
3. TERM; TERMINATION.
3.1 Term. The term of this Agreement (the "Term") shall begin on June
1, 2007 and continue to December 31, 2007. Thereafter, this Agreement shall
remain in effect on a month-to-month basis with a thirty (30) day notice
requirement, of either party, of termination.
3.2 Termination. Executive may not be terminated by Employer during the
term of this Agreement unless such termination is for cause. Termination for
cause shall be only for the following reasons:
(a) Executive's breach of his duty of undivided loyalty in the
execution of his fiduciary duties to Employer, including, but not limited to,
the use of his position of trust to further his private interests, or depriving
Employer of any opportunity to which it is entitled;
(b) Dishonesty of Executive with respect to Employer or any of its
affiliates or subsidiaries;
(c) Willful misfeasance or nonfeasance of duty intended to injure or
having the effect of injuring the reputation, business, or business relationship
of Employer or of any of its subsidiaries or any of their respective officers,
directors or executives;
(d) Conviction of Executive upon a charge of any crime which involves
moral turpitude or which could reflect unfavorably upon Employer or any of its
subsidiaries; or
(e) Material breach by Executive of any of the covenants contained in
this Agreement.
4. NON-COMPETITION AGREEMENT; CONFIDENTIAL INFORMATION; TRADE SECRETS.
(a) Executive, in the course of his employment with Employer, will
frequently come into contact with certain customers, to such an extent he is
likely to be able to control or influence, in whole or in part, the business and
relationships between the Employer and such customers, and might, if allowed to
do so, take with him or otherwise appropriate such business and relationships to
his own benefit or to the benefit of Employer's competitors and potential
competitors. But for his association with Employer, Executive would not have
access or entree to said customers and suppliers of Employer.
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(b) Executive, during the course of his employment, will have frequent
and often close contact with Employer's personnel, and will also make frequent
and often close contacts with prospective customers and perspective executives.
Solely as a result of Executive's position, he will gain detailed confidential
information concerning the aforesaid corporate personnel and of perspective
customers and executives, which information is kept strictly confidential by
Employer and is not generally available to Employer's competitors, or potential
competitors.
(c) Executive, during the course of his employment, will frequently
encounter other employment opportunities. As such, Executive shall not engage in
any other employment opportunities or business ventures without the express
written consent of the Employer. Employer hereby consents to Executive working
with Emco, S.A. and Match Capital, Inc.. Further the Executive may engage in
civic and non-profit activities which do not conflict with or interfere with
Executive's duties as an executive of Employer.
(d) Executive acknowledges that during the course of his employment, he
will have access to certain proprietary and confidential matters belonging to
Employer, none of which Executive would have had access to but for his
employment by Employer. Executive acknowledges that in aggregate, the
confidential matters to which he will have or has had access will give him a
detailed and intimate understanding of the overall methods of operation of
Employer's business and such understanding constitutes confidential knowledge
unavailable to any of Employer's competitors.
(e) Employer has developed the proprietary and confidential information
at great effort and expense. The safeguarding of such information, is necessary
for the continued successful operation of Employer's business and Employer must
be protected from the unauthorized use or divulgence by Executive either
directly or indirectly of any such information. Divulgence of any of such
information would constitute an irrevocable injury to the Employer and its
customers. The parties further acknowledge that the aforesaid information, in
the hands of a competitor, would give such competitor unfair advantage and could
cause irrevocable damage to the Employer's ongoing relationship with its
customers, suppliers, executives, and that the Employer has a protectible
proprietary interest in its relationship with its customers.
(f) Executive acknowledges that he has received additional
consideration and benefits in return for entry into this Agreement; and that he
has voluntarily accepted such consideration and has freely chosen to enter into
the terms of this Agreement because of his desire to take advantage of the
specific and unique employment opportunities available with Employer, including
but not limited to gaining or having continued access to Employer's confidential
information, customers, executives, and other special career opportunities
presented by employment with Employer. Executive acknowledges that his position
is one of great trust and confidence requiring on his part a high degree of
loyalty, trust, honesty and integrity. The parties further agree that the
acknowledgments herein contained shall be deemed to be true; and that such
acknowledgments are an integral part of this Agreement; and such acknowledgments
form part of the mutual considerations exchanged by the parties hereto for the
respective covenants contained herein.
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(g) Independent of any obligation under any other paragraph of this
Agreement, during the term of Executive's employment with Employer, and for a
period of two (2) years following the termination of his employment with
Employer, regardless of who initiated the termination, Executive shall not, in
any market where Employer has business indirectly or directly, invest in (other
than a non-controlling ownership of securities issued by a publicly held
corporation), own, manage, operate, control, participate in, or be connected
with as an officer, partner, agent, consultant, executive or principal, for or
with any person or enterprises which is or intends to be engaged in the business
of Employer, or in such other business as Employer will hereinafter become
involved during Executive's employment; nor shall he solicit business from,
interfere with, or endeavor to entice away from Employer any person, or entity
of any kind whatsoever which was or is a customer or supplier of Employer and
with whom Executive had contact during the one (1) year period immediately prior
to his termination of employment; and the Executive shall not, knowingly
cooperate with the taking of any such action by any other individual person or
entity. This provision is expressly waived for the narrow exception of Emco,
S.A. and Match Capital, Inc. as referenced in subsection (c) above.
(h) Independent of any obligation under any other paragraph of this
Agreement, during the term of Executive's employment with Employer and for a
period of two (2) years following the termination of his employment with
Employer, Executive shall not, directly or indirectly, whether as an individual
for his own account or with any other person, firm, corporation, partnership,
joint venture or entity whatsoever, solicit or endeavor to entice away from
Employer, any person who is employed or had applied for employment with Employer
at any time during Executive's employment by Employer, in order to accept
employment or association with another person, firm, corporation or entity
whatsoever; and Executive shall not, directly or indirectly approach any such
person for any such purpose or authorize or knowingly cooperate with the taking
of any such action by any individual, person or entity of any kind.
Notwithstanding the foregoing, nothing in this Section 4 shall prohibit
Executive from being a passive investor in any publicly traded corporation, so
long as his interest in said corporation does not exceed one percent (1%) of the
voting shares of the corporation.
(i) The parties acknowledge that it is difficult to ascertain exactly
how long the Employer's confidential information would remain accurate and
useful to Employer's competitors and potential competitors subsequent to the
termination of Executive's employment, and that some of Employer's confidential
information may remain accurate and useful to Employer's competitors for long
periods of indefinite duration. The parties further agree that a fair and
reasonable balancing of Employer's interest in protecting its confidential
information with Executive's interest in securing employment, dictates that a
period of two (2) years after Executive's termination constitutes a reasonable
period for prohibiting Executive from disclosing Employer's confidential
information. Therefore, the parties agree, that independent of any obligation
under any other paragraph of this Agreement, the Executive shall not, at any
time during his employment with Employer and for a period of two (2) years after
termination of Executive's employment, regardless of who initiated such
termination, communicate, divulge, or disclose for use by himself or others, any
information or knowledge, disclosed or otherwise obtained by him during his
employment by Employer (including but not limited to information and knowledge
conceived, discovered or developed by whatsoever the information contained in
the foregoing materials); and Executive shall turn over to Employer at the time
of Executive's termination or upon demand by Employer any copies or recordings
of any kind whatsoever containing information derived directly or indirectly
from the aforesaid materials which is not generally known in the Employer's
industry or any other industry which Employer shall be engaged during the term
of Executive's employment, and which relates to the business of the Employer or
the business of the Employer's customers or is in the nature of confidential
information or a trade or business secret of Employer, or Employer's customers.
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(j) Executive represents and acknowledges that the restrictions
contained in this Section 4 will not prevent him from obtaining gainful
employment in his business, occupation or field or expertise or cause him undue
hardship; and that there are numerous other employment opportunities available
to him, for which he is qualified, that are not affected by the foregoing
restrictions. Executive further acknowledges that the foregoing restrictions are
reasonable and necessary in order to protect Employer's legitimate interest, and
that any violation thereof would result in irreparable injury to Employer.
(k) Executive shall make the terms and conditions of this Agreement
known to any business, entity or persons engaged in activities competitive with
Employer's business, with which he becomes associated subsequent to his
termination of his employment with Employer. Employer shall have the right to
make the terms of this Agreement known to third parties.
(l) At the time of Executive's termination, or upon demand by Employer
(whichever is sooner) Executive shall promptly turn over to Employer all
marketing information and plans and strategies, market surveys and analyses,
files, documents, business records, list of customers and potential customers,
invoices, purchase orders, promotion materials, executive and potential
executive names and addresses, customer strategy information, executive manuals,
personnel policy manuals, pricing information and strategies, contracts with
customers, subcontractors and others, customer correspondence, resume's of
existing and potential executives, customer bids and proposals, executive books
and records, other confidential and sensitive information, and any other
records, document writing of any kind whatsoever, all assets of any kind
whatsoever that belong to Employer or Employer's customers. Further, Executive
shall not copy or record in any manner whatsoever the information contained in
the foregoing materials; and Executive shall turn over to Employer any copies or
recordings of any kind whatsoever containing information derived directly or
indirectly from the aforesaid materials.
5. REMEDIES. In the event of any violation of Section 4 above, Employer shall be
authorized and entitled to obtain from any Court of competent jurisdiction
preliminary and permanent injunctive relief as well as equitable accounting of
all profits or benefits arising out of such violation, which rights and remedies
shall be cumulative and in addition to any other rights or remedies to which
Employer may be entitled, including but not limited to, the right to damages
directly, indirectly, or consequentially sustained by Employer. Said damages
shall also include, but shall not be limited to the consequential economic
damages suffered by Employer and future lost profits and business resulting from
the damage to Employer's long term business relationships with its executives
and customers are proximately resulting from Executive's violation of the
aforesaid covenants. Executive further agrees to pay the reasonable attorney's
fees and court costs and litigation expenses incurred by Employer in enforcing
any provisions of this Agreement.
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The parties agree that if the covenants contained in Section 4 above
are found to be unenforceable by a Court of any competent jurisdiction, it is
the intention of the parties that the covenants of such paragraphs be reformed
by such Court in such manner that the executive is restricted from competing
with the aforesaid business of the Employer from the date of execution of this
Agreement to the maximum time permissible (but not exceeding the limits set
forth in said paragraphs) under the laws of the State of Nevada. If in any
judicial proceeding a Court shall refuse to enforce these covenants because the
time limit is to long or if other restrictions were more extensive (whether as
to geographic area, scope of business or otherwise) then necessary to protect
the business of Employer, it is expressly understood and agreed between the
parties hereto for purposes of such proceeding, such time limit or other
restrictions shall be deemed reduced to the extent necessary to permit the
enforcement of these covenants.
6. ASSIGNMENT. The parties agree that this Agreement and the rights, interests,
and benefits hereunder are personal and shall not be assigned, transferred,
pledged or hypothecated in any way by Executive. Employer may assign this
Agreement.
7. GENERAL PROVISIONS.
7.1 Other Rules and Policies. Executive agrees to abide by any other
rules, policies or procedures as communicated by Employer that are generally
applicable to executives of Employer.
7.2 Return of Property. Upon termination of employment, Executive shall
return to Employer all drawings, documents, and other tangible manifestations of
Confidential Information (and all copies and reproductions thereof). In
addition, Executive shall return any other property belonging to Employer
including without limitation: computers, office supplies, money and documents.
7.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, and it is the intention of the
parties that this Agreement and any dispute arising out of this agreement be
governed and construed, by any Court or judicial body, under the laws of Nevada.
Furthermore the parties recognize and declare that Nevada has the most
significant relationship to this Agreement and any dispute that may arise from
it and that any other venue or claimed jurisdiction has no legitimate interest
in this Agreement or any dispute arising from.
7.4 Notices. All notices, demands, requests, consents, approvals or
other communications required or permitted hereunder to any party shall be in
writing and shall be delivered by hand, registered or certified mail with return
receipt requested or by a nationally recognized overnight delivery service, in
each case with all postage or other delivery charge prepaid, and to the address
of the party to whom it is directed as indicated below, or to such other address
as such party may specify by giving notice to the other in accordance with the
terms hereof. Any such notice shall be deemed to be received (i) when delivered,
if by hand, (ii) on the next business day following timely deposit with a
nationally recognized overnight delivery service, or (iii) on the date shown on
the return receipt as received or refused or on the date the postal authorities
state that delivery cannot be accomplished, if sent by registered or certified
mail, return receipt requested.
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If to Employer: Xxxxxx Minerals Ltd.
Attention: Xxx X. Xxxxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxx, XX X0X 0X0
Xxxxxx
If to Executive: Xxxxxxx XxXxxxxx
000 Xxxxxxxx Xxxx, #000
Xxxxxxx Xxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxxxx, Xx., P.C.
0000 X.X. 000xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
7.5 Entire Agreement; Amendment; Waiver. This Agreement constitutes the
entire Agreement between the parties and contains all of the agreements among
the parties with respect to the subject matter hereof, and this Agreement
supersedes any and all other agreements, either oral or in writing, among the
parties hereto with respect to the subject hereof. No change or modification of
this Agreement shall be valid unless the same be in writing and signed by both
parties hereto. No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the person or party to be charged.
7.6 Counterparts; Headings; Exhibits. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, and all of
which shall together constitute one and the same instrument. The section and
subsection headings in this Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement. All
exhibits and attachments to this Agreement are incorporated by reference as
though set forth herein.
7.7 Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
7.8 Severability. If any part of this Agreement or any other Agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
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7.9 Modification. This Agreement may be modified or amended only by an
instrument in writing signed by both parties hereto.
IN WITNESS WHEREOF, Employer and Executive have executed this Agreement
as of the day and year first above written.
EMPLOYER: Xxxxxx Minerals Ltd.
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Chief Executive Officer and President
EXECUTIVE:
/s/ Xxxxxxx XxXxxxxx
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Xxxxxxx XxXxxxxx
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