EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.12
I, Xxxxxxx X. Xxxxx, agree to the terms and conditions of employment with Inner Mongolia
Production Company LLC (“Company”) set forth in this Employment Agreement (“Agreement”). This
Agreement supercedes all previous agreements, promises, representations, understandings and
negotiations between the parties, whether written or oral, with respect to the subject matter
hereof.
1. Nature of Employment Relationship. My employment under this Agreement commenced on
September 29, 2006, and shall continue for an indefinite period until terminated by either the
Company or me as provided in Section 5 of this Agreement, in which case I will be entitled to the
compensation specified in that Section.
2. Nature of Duties. I shall be the Company’s Vice President and Chief Financial Officer. As
such, I shall work exclusively for the Company and shall have all of the customary powers and
duties associated with this position, including day-to-day operational control of the Company. I
shall devote my full business time and effort to the performance of my duties for the Company,
which I shall perform faithfully and to the best of my ability. I shall be subject to the
Company’s policies, procedures and approval practices, as generally in effect from time-to-time.
Notwithstanding the foregoing, it shall not be a violation of this Agreement for me (A) at any time
to (i) serve on corporate, civic or charitable boards or committees, (ii) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (iii) manage personal investments, so
long as such activities do not significantly interfere with the performance of my responsibilities
as an officer of the Company in accordance with this Agreement.
3. Place of Performance. I shall be based in either California or New York, at my option,
except for required travel on the Company’s business.
4. Compensation and Related Matters.
(a) Base Salary. The Company shall pay me a base salary at an annual rate of one hundred
fifty thousand dollars ($150,000). My base salary shall be paid in conformity with the Company’s
salary payment practices generally applicable to Company executives. I will be eligible for pay
increases as determined by the Company’s Board of Managers (the “Board”). Any increase to the
abovementioned base salary will be considered the new base salary. The salary as specified above
shall commence on the first day of the month following the date the minimum subscription condition
as outlined and defined in the private placement memorandum being considered by the Company and
Advanced Drilling Services LLC is satisfied. Until the commencement of such new salary, my base
salary shall be as specified in the consulting Agreement dated November 8, 2005 (as amended) and
signed between myself and the Company.
(b) Bonuses and Long Term Incentive Compensation. I will be eligible for bonus compensation
in an amount to be determined by the Board based on the Company’s achievement of financial
performance and other objectives established by the Board each year. In addition, I will be
eligible for long-term incentive compensation, such as additional options to purchase shares of the
Company’s membership Units (as
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defined in the Company’s Operating Agreement), on such terms as established by the Board.
Notwithstanding the foregoing, the Company will pay me an annual bonus of between twenty percent
(20%) and thirty percent (30%) of my base salary (the “Annual Target Bonus”) based upon my
performance as determined by the Board, which bonus shall be payable within 30 days of the end of
each fiscal year, commencing for the 2007 fiscal year. Any bonus payable for 2006, shall be at the
discretion of the Board. Notwithstanding the foregoing, the Annual Target Bonus paid may be less,
as approved by the Board, based on my performance and the performance of the Company.
(c) Equity Options. Upon the commencement of my employment under this Agreement, I will be
granted an option (“Option”) to purchase 9,200 Class A Units, as such term is defined in the
Company’s Operating Agreement, at $9.50 per Class A Unit; I shall become vested in the right to
exercise this Option with respect to 40% of the Class A Units on the first anniversary of the
Option grant and an additional 20% of the Class A Units on each subsequent anniversary of the
Option grant for the next three years of employment; provided, that additional vesting shall
terminate upon the date of any termination of my employment under this Agreement for Cause or with
Good Reason and all vesting shall be accelerated upon any termination of my employment under this
Agreement without Cause, without Good Reason or upon Death or Disability. The Option shall expire
on the tenth anniversary of the Option grant date. The Option shall be subject to all additional
terms of the option agreement between me and the Company evidencing the Option, if any. I shall
also be eligible to receive such additional option or Unit awards as may be approved by the Board
from time to time.
(d) Standard Benefits. During my employment, I (and my family) shall be entitled to
participate in all employee benefit plans and programs, including, without limitation, savings and
retirement plans, medical, prescription, dental, disability, salary continuance, employee life
insurance, group life insurance, accidental death and travel accident insurance, to the same extent
generally available to Company executives and their families, in accordance with the terms of those
plans and programs. The Company shall have the right to terminate or change any such plan or
program at any time.
(e) Vacation. I shall be entitled to paid vacation to the same extent generally available to
Company executives in accordance with Company policy, but not less than four weeks vacation per
annum.
(f) Fringe Benefits. I shall be entitled to participate in all fringe benefits and
perquisites available to Company executives in accordance with Company policy.
(g) Expense Reimbursement. I shall be entitled to receive prompt reimbursement for all
reasonable and customary travel and business expenses I incur in connection with my employment, but
I must incur and account for those expenses in accordance with the policies and procedures
established by the Company.
(h) Xxxxxxxx-Xxxxx Act Loan Prohibition. To the extent that any Company benefit, program,
practice, arrangement or this Agreement would or might otherwise result in my receipt of an illegal
loan (“Loan”), the Company shall use
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reasonable efforts to provide me with a substitute for the Loan that is lawful and of at least
equal value to me. If this cannot be done, or if doing so would be significantly more expensive to
the Company than making the Loan, the Company need not make the Loan to me or provide me a
substitute for it.
5. Termination.
(a) Rights and Duties. If my employment is terminated, I shall be entitled to the amounts or
benefits shown in the applicable row in the following table, subject to the balance of this Section
5. The Company and I shall have no further obligations to each other, except the Company’s ongoing
indemnification obligation under Section 14, my confidentiality and other obligations to the
Company, and our mutual arbitration obligations under Section 8, or as set forth in any agreement I
subsequently enter into with the Company.
DISCHARGE FOR CAUSE
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Payment or provision when due of (1) any unpaid base salary, expense reimbursements, and vacation days accrued but not used prior to termination of employment, and (2) other unpaid vested amounts or benefits under Company compensation, incentive and benefit plans. | |
DISABILITY
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Same as for “Discharge for Cause,” EXCEPT that I also shall be potentially eligible for disability benefits under any Company-provided disability plan in which I then participate, and if no such plan is then provided, in exchange for my execution of a general release document in a form provided by and reasonably acceptable to the Company, my base salary payments at my annual salary rate at the time, but not my employment, shall continue for 12 months. In addition, I shall be entitled to accelerated vesting of all equity options I have been granted that, as of the date of such disability, remain unexercised and unvested, to the extent permissible by law. |
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DISCHARGE OTHER THAN FOR CAUSE OR DISABILITY |
Same as for “Discharge for Cause,” EXCEPT that, in exchange for my execution of a general release document in a form provided by and reasonably acceptable to the Company; | |
| (1) the Company shall pay me, within 30 days after the date of discharge, an amount equal to the product of (A) my Annual Target Bonus established by the Board for the year of such discharge, or if no such target annual bonus has been established, the Annual Target Bonus for the preceding year or thirty percent (30%) of my base salary, whichever is greater, and (B) a fraction, the numerator of which is the number of days in the current calendar year through the date of discharge and the denominator of which is 365; | ||
| (2) (A) my base salary payments at my annual salary rate at the time, but not my employment, shall, where there has been no Change In Control (as defined below), continue for 36 months, or (B) where there has been a Change in Control in the preceding one (1) year, the Company shall pay me, within 30 days after the date of discharge, an amount equal to the sum of my base salary for 48 months; | ||
| (3) I will be entitled to accelerated vesting of all equity options I have been granted that, as of the date of such discharge Other Than for Cause, remain unexercised and unvested, to the extent permissible by law; and | ||
| (4) for 24 months, or where there has been a Change in Control in the preceding one (1) year, for 36 months, following such discharge the Company shall continue to me and/or my family all benefits described in Section 4(d) above at least equal to those then provided to peer executives or, if more favorable, as in effect at any time thereafter with respect to peer executives; provided that if I become reemployed with another employer and am eligible for any of such benefits under such new employer’s plan or plans, the benefits described herein shall be secondary to those provided to my new employer. | ||
RESIGNATION WITHOUT GOOD REASON |
Same as for “Discharge for Cause.” | |
RESIGNATION WITH GOOD REASON |
Same as for “Discharge Other Than for Cause or Disability.” |
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DEATH
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Same as for “Disability,” EXCEPT that payments shall be made to the person or entity prescribed by me or Company policies. |
(b) Change in Control. “Change in Control” means (i) the acquisition of more than 50% of the
outstanding voting securities of the Company by an individual person or an entity or a group of
individuals or entities acting in concert, directly or indirectly, through one transaction or a
series of related transactions; (ii) a merger or consolidation of the Company with or into another
entity after which the Members of the Company immediately prior to such transaction hold less than
50% of the voting securities of the surviving entities; or (iii) a sale of all or substantially all
of the assets of the Company.
(c) Discharge for Cause. The Company may terminate my employment at any time if it believes
in good faith that it has Cause to terminate me. “Cause” shall include, but not be limited to:
(i) my refusal to follow lawful directions or my material failure to perform my duties (other
than by reason of physical or mental illness, injury, or condition), in either case, after I have
been given notice of my default and a reasonable opportunity to cure it;
(ii) my willful and continued failure to substantially comply with any material Company
policy;
(iii) conviction of a felony or the entering of a plea of nolo contender to a felony, in
either case having significant adverse effect on the business and affairs of the Company; or
(iv) my accepting a position with another business enterprise or venture without the Company’s
written consent at any time before I have resigned from the Company or been discharged.
No act or failure to act on my part will be considered “willful” unless it is done, or omitted to
be done, by me in bad faith or without reasonable belief that such action or omission was in the
best interests of the Company. Any act or failure to act that is based on authority given pursuant
to a resolution duly passed by the Board, or the advice of counsel to the Company, shall be
conclusively presumed to be done, or omitted to be done, in good faith and in the best interests of
the Company. If I am discharged for Cause, I will only receive the benefits to which I am entitled
under Section 5(a).
(d) Termination for Disability. The Company may terminate my employment on account of
Disability, or may transfer me to inactive employment status, which shall have the same effect
under this Agreement as a termination for Disability. “Disability” means a physical or mental
illness, injury, or condition that prevents me from performing substantially all of my duties under
this Agreement for at least 90 consecutive calendar days or for at least 120 calendar days, whether
or not consecutive,
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in any 365 calendar day period, or is likely to do so, as certified by a physician selected by
the Company or the Board.
(e) Discharge Other Than for Cause or Disability. The Company may terminate my employment at
any time for any reason, and without advance written notice, and I will receive the same benefits
as specified for “Discharge for Cause” in Section 5(a), above. If I am terminated by the Company
other than for Cause or for Disability, I will receive the payments described for a no Cause
discharge in the chart in Section 5(a) only if I sign a general release form furnished to me by the
Company within 60 days after my employment ends, and I do not thereafter properly revoke the
release, if it provides for revocation.
(f) Resignation. I may resign my employment with or without “Good Reason” at any time. If I
provide notice, the Company may advance the effective date of my resignation if it does not need
the amount of notice I provide. If I resign without Good Reason, I will receive the same payments
as a “Discharge for Cause,” as described in the chart in Section 5(a). If I resign with Good
Reason, I will receive the same payments as a “Discharge Other Than for Cause or Disability,”
described in the chart in Section 5(a), if I sign a general release form furnished to me by the
Company and I do not thereafter properly revoke the release, if it provides for revocation.
Following a Change of Control, my determination that an act or failure to act constitutes Good
Reason shall be conclusively presumed to be valid unless such determination is decided to be
unreasonable by an arbitrator pursuant to Section 5 hereof. “Good Reason” means that, without my
express written consent, one or more of the following events occurred after I sign this Agreement:
(i) Demotion. My duties or responsibilities are substantially and adversely diminished from
those in effect immediately before the change in my position, other than merely as a result of the
Company ceasing to be a public company, a change in my title, or my transfer to an affiliated
company that assumes this Agreement.
(ii) Salary Reduction. My annual base salary is reduced, other than as part of
across-the-board salary reductions affecting all executives of similar status employed by the
Company or any entity in control of the Company.
(iii) Discontinuance of Compensation Plan Participation. The Company fails to continue, or
continue my participation in, any compensation plan in which I participated immediately before the
event causing my resignation, which discontinuance is material to my total compensation, unless an
equitable substitute arrangement has been adopted or made available on a basis not materially less
favorable to me than the plan in effect immediately before the event causing my resignation, both
as to the benefits I receive and my level of participation relative to other participants.
(iv) Successors to the Company. Any failure of the Company to comply with Section 12 of this
Agreement.
(v) Breach of this Agreement. Any other material breach of this Agreement by the Company that
is either not taken in good faith or, even if taken in
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good faith, is not remedied by the Company promptly after receipt of notice thereof from me.
However, an event that is or would constitute Good Reason shall cease to be Good Reason if: (i) I
do not terminate employment within 45 days after the event occurs; (ii) before I terminate
employment, the Company reverses the action or cures the default that constitutes Good Reason
within 10 days after I notify it in writing that Good Reason exists; or (iii) I was a primary
instigator of the Good Reason event and the circumstances make it inappropriate for me to receive
Good Reason resignation benefits under this Agreement (e.g., I agree temporarily to relinquish my
position on the occurrence of a merger transaction I negotiate).
(g) Death. If I die while employed under this Agreement, the payments required by Section
5(a) in the event of my death shall be made.
(h) Transfers to Affiliates or Successors. My transfer to an affiliate or successor of the
Company shall not be deemed a termination of my employment under this Agreement, unless the
affiliate or successor refuses to assume this Agreement, in which case I will receive the continued
salary payments described in Section 5(a) for “Discharge Other Than for Cause or Disability,” if I
sign a general release form provided to me by the Company and I do not thereafter properly revoke
the release, if it provides for revocation.
(i) Offset. Any amounts payable to me under this Section 5 shall first be offset against any
amounts I owe the Company at the time of termination.
6. Confidentiality. I acknowledge that I currently possess or will acquire secret,
confidential, or proprietary information or trade secrets concerning the operations, future plans
and business methods of the Company (“Confidential Information”).
(a) Promise Not to Disclose. I promise never to use or disclose any Confidential Information
before it has become generally known within the industry through no fault of my own. I agree that
this promise shall never expire.
(b) Promise Not to Solicit. To prevent me from inevitably breaking this promise, I further
agree that, while this Agreement is in effect and for 24 months after its termination: (i) as to
any customer or supplier of the Company with whom I had dealings or about whom I acquired
Confidential Information during my employment, I will not solicit or attempt to solicit (or assist
others to solicit) the customer or supplier to do business with any person or entity other than the
Company; and (ii) I will not solicit or attempt to solicit (or assist others to solicit) for
employment any person who is, or within the preceding 6 months was, an officer, manager, employee
or consultant of the Company.
(c) Promise Not to Engage in Certain Employment. I agree that, while this Agreement is in
effect and for 24 months after its termination, I will not accept any employment or engage in any
activity, without the written consent of the Board, if the loyal and complete fulfillment of my
duties in such employment would inevitably
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require me to reveal or utilize Confidential Information, as reasonably determined by the
Board.
(d) Return of Information. When my employment with the Company ends, I will promptly deliver
to the Company, or, at its written instruction, will destroy, all documents, data, drawings,
manuals, letters, notes, reports, electronic mail, recordings, and copies of such materials, of or
pertaining to the Company or any of its affiliated entities which are in my possession or control.
In addition, during my employment with the Company, and thereafter, I agree to meet with Company
personnel as reasonably requested by the Board, and, based on knowledge or insights I gained during
my employment with the Company, answer any question they may have related to the Company’s business
and operations.
(e) Intellectual Property. Intellectual property (including such things as all ideas,
concepts, inventions, plans, developments, software, data, configurations, materials (whether
written or machine-readable), designs, drawings, illustrations and photographs that may be
protectable, in whole or in part, under any patent, copyright, trademark, trade secret, or other
intellectual property law), developed, created, conceived, made or reduced to writing or practice
during my employment with the Company, except intellectual property that has no relation to the
Company or any of its customers that I developed purely on my own time and at my own expense, shall
be the sole and exclusive property of the Company, and I hereby assign all my rights, title and
interest in any such intellectual property to the Company.
(f) Enforcement of this Section. This Section shall survive the termination of this Agreement
for any reason. I acknowledge that (i) my services are of a special, unique and extraordinary
character and it would be very difficult and impossible to replace them, (ii) this Section’s terms
are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s
restrictions will not prevent me from earning or seeking a livelihood, (iv) this Section’s
restrictions shall apply wherever permitted by law, and (v) my violation of any of this Section’s
terms would irreparably harm the Company. Accordingly, I agree that, if I violate any of the
provisions of this Section the Company or any of its affiliated entities shall be entitled to, in
addition to other remedies available to it, an injunction to be issued by any court of competent
jurisdiction restraining me from committing or continuing any such violation, without the need to
prove the inadequacy of money damages or post any bond or for any other undertaking.
7. Notice.
(a) To the Company. I will send all communications to the Company in writing, addressed as
follows (or in any other manner the Company notifies me to use):
| If Mailed: | Inner Mongolia Production Company LLC Attn: President 00 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx 00000 |
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| If Faxed: | Inner Mongolia Production Company LLC Attn: President Fax: 000-000-0000 Tel.: 000-000-0000 |
(b) To Me. All communications from the Company to me relating to this Agreement must be sent
to me in writing at my Company office or in any other manner I notify the Company to use.
(c) Time Notice Deemed Given. Notice shall be deemed to have been given when delivered or, if
earlier (1) when mailed by United States certified or registered mail, return receipt requested,
postage prepaid, or (2) faxed with confirmation of delivery, in either case, addressed as required
in this Section.
8. Arbitration of Disputes. If any legally actionable dispute arises which cannot be resolved
by mutual discussion between the Company and me, we each agree to resolve that dispute by binding
arbitration before an arbitrator experienced in employment law. Said arbitration will be conducted
in accordance with the rules applicable to employment disputes of Judicial Arbitration and
Mediation Services or such other arbitration service as we agree upon, and the law of the State of
California. The Company will be responsible for paying any filing fee and the fees and costs of
the arbitrator, unless I initiate the claim, in which case I will contribute an amount equal to the
filing fee for a claim initiated in a court of general jurisdiction in the State of California.
The Company and I agree that this promise to arbitrate covers any disputes that the Company may
have against me, or that I may have against the Company and/or its related entities and/or their
owners, directors, officers and employees, arising out of or relating to this Agreement, the
employment relationship or termination of employment, including any claims concerning the validity,
interpretation, effect or violation of this Agreement; discrimination, harassment or retaliation in
violation of any federal, state or local law; and any other aspect of my compensation, training, or
employment. The Company and I further agree that arbitration as provided in this Section shall be
the exclusive and binding remedy for any such dispute and will be used instead of any court action,
which is hereby expressly waived, except for any request by either of us for temporary or
preliminary injunctive relief pending arbitration in accordance with applicable law, or an
administrative claim with an administrative agency. The Company and I also agree that any such
arbitration shall be conducted in San Francisco, California, unless otherwise mutually agreed.
9. Amendment. No provisions of this Agreement may be modified, waived, or discharged except
by a written document signed by me and a duly authorized Company officer. Thus, for example,
promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this
Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall
not be deemed a waiver of such conditions or provisions at any other time.
10. Interpretation and Exclusive Forum. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of California (excluding
any that mandate the use of another jurisdiction’s laws). Any arbitration (unless otherwise
mutually agreed), litigation or similar proceeding with
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respect to such matters only may be brought within California, and all parties to this
Agreement consent to California’s jurisdiction.
11. Department of Homeland Security Verification Requirement. I agree to timely file all
documents required by the Department of Homeland Security to verify my identity and lawful
employment in the United States. Notwithstanding any other provision of this Agreement, if I fail
to meet any such requirements promptly after receiving a written request from the Company to do so,
I agree that my employment shall terminate immediately and that I shall not be entitled to any
compensation from the Company of any type.
12. Successors. This Agreement shall be binding upon, and shall inure to the benefit of, me
and my estate, but I may not assign or pledge this Agreement or any rights arising under it, except
to the extent permitted under the terms of the benefit plans in which I participate. This
Agreement shall be binding upon, and shall inure to the benefit of, the Company and its successors
and assigns. The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or assets of
the Company (a “Successor”) to assume expressly and agree to perform this Agreement and the
Indemnification Agreement (defined below) in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place, after which any
reference to the “Company” in this Agreement shall be deemed to be a reference to the successor and
any reference to the “Board” in this Agreement shall be deemed to be a reference to the board of
directors or managers of the successor. The Company will also require any Successor to either (i)
assume each outstanding equity option granted to me pursuant to Section 4(c) or the Company’s
equity incentive plan, with appropriate adjustment of (a) the amount of equity securities of the
Successor available for purchase under the Option as assumed and (b) the exercise price thereof, in
each case to reflect the price per Class A Unit or rate of conversion of the Successor’s equity for
Class A Units in any such succession, as the case may be, or (ii) grant to me substantially similar
awards/options to purchase equity securities of the Successor.
13. Validity. The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
14. Indemnification/Insurance. The Company shall obtain and maintain Directors and Officers
Insurance in order to hold me harmless from any criminal or civil litigation arising from the
performance of my duties and responsibilities on behalf of the Company; provided, that if I am
terminated for Cause, such insurance coverage shall not apply to the action or actions that
materially supported the termination for Cause. The duration of such insurance shall include my
term of employment and a period consistent with standard industry practice for similarly-situated
development stage companies following the termination of my employment pursuant to Section 5 above.
In addition, the Company shall provide corporate indemnification to me pursuant to the terms of
the Indemnification Agreement by and between me and the Company, dated September 29, 2006, as
amended (the “Indemnification Agreement”).
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15. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute the same instrument.
16. Entire Agreement. All oral or written agreements or representations, express or implied,
with respect to the subject matter of this Agreement are set forth in this Agreement.
I ACKNOWLEDGE THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME
RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT AND THAT
I HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY
PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT ITSELF.
I FURTHER ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I
UNDERSTAND ALL OF IT, AND THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS
THIS AGREEMENT WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT
OPPORTUNITY TO THE EXTENT I WISHED TO DO SO. I UNDERSTAND THAT BY SIGNING THIS
AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL.
| Date: September 29, 2006 | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| INNER MONGOLIA PRODUCTION COMPANY LLC |
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| Date: September 29, 2006 | By: | /s/ Xxxxx X. Xxxxxxxxxx | ||
| Its: President and CEO | ||||
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