EMPLOYEE EMPLOYMENT AGREEMENT
EMPLOYEE
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
dated
April 12, 2007 and effective as of the 1st
day of
December, 2006, is entered into by and between Malibu Minerals, Inc., a Nevada
corporation (the “Company”),
and
Xxxxx Xxxxx (“Employee”).
The
Company desires to employ the Employee, and the Employee wishes to accept such
employment with the Company, upon the terms and conditions set forth in this
Agreement.
NOW
THEREFORE, in consideration of the foregoing facts and mutual agreements set
forth below, the parties, intending to be legally bound, agree as
follows:
1. Employment.
The
Company hereby agrees to employ Employee, and Employee hereby accepts such
employment and agrees to perform Employee’s duties and responsibilities in
accordance with the terms and conditions hereinafter set forth.
1.1 Duties
and Responsibilities.
During
the Employment Term, Employee is hereby employed as set forth in Exhibit A.
During the Employment Term, Employee shall perform all duties and accept all
responsibilities incident to such positions and other appropriate duties as
may
be assigned to Employee by the Company’s Chief Executive Officer, the board of
directors of the Company (the “Board of Directors”), or such other person as
determined by the Company from time to time. The Company shall retain full
direction and control of the manner, means and methods by which Employee
performs the services for which he is employed hereunder and of the place or
places at which such services shall be rendered. During the Employment Term,
Employee shall report directly to the Company’s Board of Directors or such other
person as determined by the Company. In furtherance of the foregoing, Employee
shall, subject to the direction and instruction of the Board of Directors:
(a)
devote such amount of hours per week as required by the Board of Directors
or
such other person as determined by the Company from time to time, and will
diligently and to the best of Employee’s ability perform all duties incident to
Employee’s employment hereunder; (b) use Employee’s best efforts to promote the
interests of the Company; and (c) perform such other duties as the Company
may
from time to time direct.
1.2 Employment
Term.
The
initial term of Employee’s employment under this Agreement shall commence on
December 1, 2006 (the “Effective Date”) and shall continue for 12 months, up to
and until November 30, 2007 (the “Employment Term”), and subject to renewal as
set forth in this Section 1.2, the subsequent term of Employee’s employment
hereunder shall commence on the Renewal Date and shall continue for 12 months
or
such other period as mutually determined in writing by the Company and the
Employee, unless earlier terminated in accordance with Section 4 hereof the
(“Subsequent Employment Term”). The term of Employee’s employment shall be
subject to renewal at the Company’s sole option for successive one (1) year
periods if the Company delivers to the Employee a written notice of its intent
to renew the Employment Term, which written notice shall be given no later
then
fifteen (15) days prior to the expiration of the then-effective Employment
Term.
“Renewal Date” shall mean the date on which the Company and the Employee shall
mutually agree to in writing as the commencement date of any Subsequent
Employment Term.
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1.3 Extent
of Service.
During
the Employment Term, Employee agrees to use Employee’s best efforts to carry out
the duties and responsibilities under Section 1.1 hereof.
1.4 Monthly
Salary;
Base
Salary;
Consulting
Fees.
(i) The
Company shall pay Employee during the Employment Term a salary at the monthly
rate of $4,000 (U.S.) for the initial 4 months, and subsequently, a salary
at
the monthly rate of $2,500, for each month there after up to and until November
30, 2007 (the “Monthly Salary”), which shall be paid on the last business day of
each month during the Employment Term. Subject to renewal as set forth in
Section 1.2, during the Subsequent Employment Term, the Company and Employee
shall mutually agree to in writing of the amount of the base salary that the
Company shall pay to Employee, and Employee shall agree to accept, which shall
be paid monthly on the last business day of each month during the Employment
Term, or as otherwise agreed to by the parties (the “Base Salary”). The Monthly
Salary and the Base Salary shall be subject to all state, federal, and local
payroll tax withholding and any other withholdings required by law.
(ii) The
Company and Employee acknowledge that any form of compensation due to Employee
as set forth in this Agreement, including in Sections 1.4 through 1.6, does
not
include any fees for professional services to be provided to the Company by
Employee’s consulting company, amount, terms and payment of which shall be
agreed to separately in writing by the Company and Employee.
1.5 Restricted
Stock;
Retirement
of Restricted Stock.
(i) In
addition to the Monthly Salary and Base Salary, effective as of August 4, 2006,
Employee has received a one-time payment of 10,000,000 shares of restricted
common stock, $0.001 par value per share (the “Common Stock”), of the Company
(the “Shares”)
in
consideration of the Employee being the sole founder of the Company. The parties
acknowledge that as of the date of this Agreement, Employee owns only 5,000,000
Shares.
(ii) In
consideration of the covenants, payments, and agreements set forth in this
Agreement and in consideration of the Company proceeding with Completion (as
defined in the Acquisition Agreement) of the Acquisition Agreement dated
December 29, 2006, entered into by and among the Company, Flex Fuels Energy
Limited (“Flex Fuels”), the
shareholders of Flex Fuels and the individuals signatories thereto (the
“Acquisition Agreement”), receipt of which is hereby acknowledged, Employee
hereby irrevocably agrees to before Completion to enter into a stock retirement
agreement with the Company in order to retire 4,900,000 Shares of Employee’s
holdings, such that immediately before Completion the Employee shall own 100,000
Shares, unless otherwise agreed to mutually in writing by the Company and
Employee (“Retirement of Stock”). Notwithstanding, any Retirement of Stock shall
be null and void in the event the Completion does not take place as contemplated
under the Agreement.
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1.6 Reimbursement
of Expenses; Vacation; Sick Days and Personal Days.
Employee shall be provided with reimbursement of expenses related to Employee’s
employment by the Company on a basis no less favorable than that which may
be
authorized from time to time by the Board, in its sole discretion, for senior
level Employees as a group. Subject to renewal as set forth in Section 1.2,
during the Employment Term Employee shall be entitled to vacation and holidays
in accordance with the Company’s normal personnel policies for senior level
Employees, but not less than three (3) weeks of vacation per calendar year,
provided Employee shall not utilize more than seven (7) consecutive business
days without the express consent of the majority of the members of the Board
of
Directors. Unused vacation time will be forfeited as of December 31 of each
calendar year of the Employment Term. Employee shall be entitled to no more
than
an aggregate of ten (10) sick days and personal days per calendar
year.
1.7 No
Other Compensation.
Except
as expressly provided in Sections 1.4 through 1.6, Employee shall not be
entitled to any other compensation or benefits.
2. Confidential
Information.
Employee recognizes and acknowledges that by reason of Employee’s employment by
and service to the Company before, during and, if applicable, after the
Employment Term and/or Subsequent Employment Term, Employee will have access
to
certain confidential and proprietary information relating to the Company’s
business, which may include, but is not limited to, trade secrets, trade
“know-how,” product development techniques and plans, formulas, customer lists
and addresses, financing services, funding programs, cost and pricing
information, marketing and sales techniques, strategy and programs, computer
programs and software and financial information (collectively referred to as
“Confidential Information”). Employee acknowledges that such Confidential
Information is a valuable and unique asset of the Company and Employee covenants
that he will not, unless expressly authorized in writing by the Company, at
any
time during the course of Employee’s employment use any Confidential Information
or divulge or disclose any Confidential Information to any person, firm or
corporation except in connection with the performance of Employee’s duties for
the Company and in a manner consistent with the Company’s policies regarding
Confidential Information. Employee also covenants that at any time after the
termination of such employment, directly or indirectly, he will not use any
Confidential Information or divulge or disclose any Confidential Information
to
any person, firm or corporation, unless such information is in the public domain
through no fault of Employee or except when required to do so by a court of
law,
by any governmental agency having supervisory authority over the business of
the
Company or by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction to order Employee to divulge, disclose
or
make accessible such information. All written Confidential Information
(including, without limitation, in any computer or other electronic format)
which comes into Employee’s possession during the course of Employee’s
employment shall remain the property of the Company. Except as required in
the
performance of Employee’s duties for the Company, or unless expressly authorized
in writing by the Company, Employee shall not remove any written Confidential
Information from the Company’s premises, except in connection with the
performance of Employee’s duties for the Company and in a manner consistent with
the Company’s policies regarding Confidential Information. Upon termination of
Employee’s employment, the Employee agrees to return immediately to the Company
all written Confidential Information (including, without limitation, in any
computer or other electronic format) in Employee’s possession. As a condition of
Employee’s continued employment with the Company and in order to protect the
Company’s interest in such proprietary information, the Company may require
Employee’s execution of a Confidentiality Agreement and Inventions
Agreement.
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3. Non-Competition;
Non-Solicitation.
3.1 Non-Compete.
The
Employee hereby covenants and agrees that during the Employment Term and
Subsequent Employment Term, if any, of this Agreement and for a period of one
year following the end of the Employment Term and one year following the end
of
the Subsequent Employment Term, if any, the Employee will not, without the
prior
written consent of the Company, directly or indirectly, on his own behalf or
in
the service or on behalf of others, whether or not for compensation, engage
in
any business activity, or have any interest in any person, firm, corporation
or
business, through a subsidiary or parent entity or other entity (whether as
a
shareholder, agent, joint venturer, security holder, trustee, partner,
consultant, creditor lending credit or money for the purpose of establishing
or
operating any such business, partner or otherwise) with any Competing Business
in the Covered Area. For the purpose of this Section 3.1, (i) “Competing
Business” means the business of the Company or any of its subsidiaries, whether
partially or whole owned, directly or indirectly related to mineral exploration,
constructing, owning and managing seed processing facilities, refineries
producing bio diesel products (and associated power generation facilities if
commercially desirable) and engaging in the business of selling supplying and
distributing bio diesel products, and (ii) “Covered Area” means all geographical
areas of the Xxxxxx Xxxxxx, xxx Xxxxxx Xxxxxxx, Xxxxxx and other foreign
jurisdictions where Company then has offices and/or engages in mineral
exploration, constructs, owns or manages seed processing facilities, refineries
producing bio diesel products (and associated power generation facilities if
commercially desirable) or engage in the business of selling supplying and
distributing bio diesel products. Notwithstanding the foregoing, the Employee
may own shares of companies whose securities are publicly traded, so long as
such securities do not constitute more than five percent (5%) of the outstanding
securities of any such company.
3.2 Non-Solicitation.
The
Employee further agrees that as long as the Agreement remains in effect and
for
a period of one (1) year from its termination, the Employee will not divert
any
business of the Company and/or its affiliates or any customers or suppliers
of
the Company and/or the Company’s and/or its affiliates’ business to any other
person, entity or competitor, or induce or attempt to induce, directly or
indirectly, any person to leave his or her employment with the
Company.
3.3 Remedies.
The
Employee acknowledges and agrees that his obligations provided herein are
necessary and reasonable in order to protect the Company and its affiliates
and
their respective business and the Employee expressly agrees that monetary
damages would be inadequate to compensate the Company and/or its affiliates
for
any breach by the Employee of his covenants and agreements set forth herein.
Accordingly, the Employee agrees and acknowledges that any such violation or
threatened violation of this Section 3 will cause irreparable injury to the
Company and that, in addition to any other remedies that may be available,
in
law, in equity or otherwise, the Company and its affiliates shall be entitled
to
obtain injunctive relief against he threatened breach of this Section 3 or
the
continuation of any such breach by the Employee without the necessity of proving
actual damages.
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4. Termination;
Cooperation
with the Company after Termination.
4.1 By
Company.
The
Company, by action of the Chief Executive Officer or acting by duly adopted
resolutions of the Board of Directors, may, in its discretion and at its option,
terminate the Employee’s employment with or without Cause, and without prejudice
to any other right or remedy to which the Company or Employee may be entitled
at
law or in equity or under this Agreement. In the event the Company desires
to
terminate the Employee’s employment without Cause, the Company shall give the
Employee not less than sixty (60) days advance written notice. Termination
of
Employee’s employment hereunder shall be deemed to be “for Cause” in the event
that Employee violates any provisions of this Agreement, is guilty of any
criminal act other than minor traffic violations, is guilty of willful
misconduct or gross neglect, or gross dereliction of his duties hereunder or
refuses to perform his duties hereunder after notice of such refusal to perform
such duties or directions was given to Employee by the Chief Executive Officer
or Board of Directors.
4.2 By
Employee’s Death or Disability.
This
Agreement shall also be terminated upon the Employee’s death and/or a finding of
permanent physical or mental disability, such disability expected to result
in
death or to be of a continuous duration of no less than six (6) months, and
the
Employee is unable to perform his usual and essential duties for the
Company.
4.3 Compensation
on Termination.
In the
event the Company terminates Employee’s employment, all payments under this
Agreement shall cease, except for the Monthly Salary and the Base Salary to
the
extent already accrued. In the event of termination by reason of Employee’s
death and/or permanent disability, Employee or his executors, legal
representatives or administrators, as applicable, shall be entitled to an amount
equal to Employee’s Base Salary accrued through the date of termination. Except
during the Employment Term, upon termination of Employee, if Employee executes
a
written release, substantially in the form attached hereto as Exhibit “B” (the
“Release”), of any and all claims against the Company and all related parties
with respect to all matters arising out of Employee’s employment by the Company
(other than Employee’s entitlement under any employee benefit plan or program
sponsored by the Company in which Employee participated), unless the Employment
Term expires or termination is for Cause, the Employee shall receive, in full
settlement of any claims Employee may have related to his employment by the
Company, Base Salary for 30 calendar days from the date of termination, provided
Employee is in full compliance with the provisions of Sections 2 and 3 of this
Agreement.
4.4 Voluntary
Termination.
Employee may voluntarily terminate the Employment Term upon sixty (60) days
prior written notice for any reason; provided, however, that no further payments
shall be due under this Agreement in that event except that Employee shall
be
entitled to any benefits due under any compensation or benefit plan provided
by
the Company for Employees or otherwise outside of this Agreement.
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4.5 Following
termination of this Agreement for any reason (with or without cause), Employee
shall fully cooperate with the Company in all matters relating to the winding
up
of Employee’s Services and the orderly transfer of such matters to any person
designated by the Company and shall promptly return to the Company all of the
property of the Company and any other materials or information related to the
Company, including all work product, whether finished or unfinished, prepared
or
produced by Employee for the benefit of the Company under this
Agreement.
5. Investment
Representations.
(i) Employee
Bears Economic Risk.
Employee
must bear the economic risk of this investment indefinitely unless the Shares
are registered pursuant to the Securities Act of 1933, as amended (the
“Securities
Act”),
or an
exemption from registration is available. Employee also understands that there
is no assurance that any exemption from registration under the Securities Act
of
1933 will be available and that, even if available, such exemption may not
allow
Employee to transfer all or any portion of the shares of the common stock of
the
Company to be received by Employee pursuant to this Agreement under the
circumstances, in the amounts or at the times Employee might
propose.
(ii) Acquisition
for Own Account.
Employee
is acquiring the Shares to be received by Employee pursuant to this Agreement
for its own account for investment only, and not with a view towards
distribution.
(iii) Employee
Can
Protect His Interest.
Employee
represents that by reason of his business or financial experience, Employee
has
the capacity to protect his own interests in connection with the transactions
contemplated by this Agreement. Further, Employee is aware of no publication
of
any advertisement in connection with the transactions contemplated by this
Agreement.
(iv) Company
Information.
Employee
has had an opportunity to discuss the Company’s business, management and
financial affairs with directors, officers and management of the Company and
has
had the opportunity to review the Company’s operations and facilities. Employee
has also had the opportunity to ask questions of and receive answers from the
Company and its management regarding the terms and conditions of this
investment.
(v) Transfer
Restrictions. Employee
will not sell or otherwise transfer the Shares without registration under the
Securities Act or unless an exemption from registration is available.
(vi) Rule
144.
Employee
acknowledges and agrees that the Shares to be received by Employee pursuant
to
this Agreement must be held indefinitely unless it is subsequently registered
under the Securities Act or an exemption from such registration is available.
Employee is aware that the Shares are “restricted securities,” as such term is
defined in Rule 144 promulgated under the Securities Act. Employee has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act as in effect from time to time, which permits limited resale
of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things: the availability of certain current
public information about the Company, the resale occurring following the
required holding period under Rule 144 and the number of shares being sold
during any three-month period not exceeding specified limitations.
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(vii) No
Representations or Warranties.
No
representations or warranties have been made to Employee by the Company or
any
officer, director, employee, agent, affiliate or subsidiary of the Company
other
than those contained herein, and in accepting shares of common stock of the
Company, Employee is not relying on any representations other than those
contained herein.
(viii) Legend. Employee
understands and acknowledges that any shares of common stock of the Company
to
be received by Employee pursuant to this Agreement shall bear a legend
substantially as follows until such time as (a) such securities shall have
been
registered under the Securities Act, or (b) in the opinion of counsel for the
Company such securities may be sold without registration under the Securities
Act as well as any applicable state securities laws:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OR ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD OR TRANSFERRED UNLESS REGISTERED AND QUALIFIED UNDER THE SECURITIES ACT
AND, IF APPLICABLE, STATE SECURITIES LAWS, OR IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY SUCH REGISTRATION AND QUALIFICATION
ARE
NOT REQUIRED.”
5. General
Provisions.
5.1 Modification:
No Waiver.
No
modification, amendment or discharge of this Agreement shall be valid unless
the
same is in writing and signed by all parties hereto. Failure of any party at
any
time to enforce any provisions of this Agreement or any rights or to exercise
any elections hall in no way be considered to be a waiver of such provisions,
rights or elections and shall in no way affect the validity of this Agreement.
The exercise by any party of any of its rights or any of these elections under
this Agreement shall not preclude or prejudice such party from exercising the
same or any other right it may have under this Agreement irrespective of any
previous action taken.
5.2 Notices.
All
notices and other communications required or permitted hereunder or necessary
or
convenient in connection herewith shall be in writing and shall be deemed to
have been given when hand delivered or mailed by registered or certified mail
as
follows (provided that notice of change of address shall be deemed given only
when received):
|
If
to the Company, to:
|
Xxxxx
000 - 000 Xxxx Xxxxxxxx Xxxxxx
Vancouver
British
Columbia
Canada
A1 V6C 2W2
Attention:
Xxxxx Xxxxx
Telephone:
Facsimile:
|
7
|
With
a copy to:
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
If
to Employee, to:
|
Mr.
Xxxxx Xxxxx
______________________
______________________
Telephone:
Facsimile:
|
Or
to
such other names or addresses as the Company or Employee, as the case may be,
shall designate by notice to each other person entitled to receive notices
in
the manner specified in this Section.
5.3 Governing
Law.
This
Agreement and (unless otherwise provided) all amendments hereof and waivers
and
consents hereunder shall be governed by the internal law of the State of New
York, without regard to the conflicts of law principles thereof.
5.4 Further
Assurances.
Each
party to this Agreement shall execute all instruments and documents and take
all
actions as may be reasonably required to effectuate this Agreement.
5.5 Severability.
Should
any one or more of the provisions of this Agreement or of any agreement entered
into pursuant to this Agreement be determined to be illegal or unenforceable,
then such illegal or unenforceable provision shall be modified by the proper
court or arbitrator to the extent necessary and possible to make such provision
enforceable, and such modified provision and all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
shall be given effect separately from the provisions or portion thereof
determined to be illegal or unenforceable and shall not be affected
thereby.
5.6 Successors
and Assigns.
Employee may not assign this Agreement without the prior written consent of
the
Company. The Company may assign its rights without the written consent of the
Employee, so long as the Company or its assignee complies with the other
material terms of this Agreement. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company, and the Employee’s rights under
this Agreement shall inure to the benefit of and be binding upon his heirs
and
executors. The Company’s subsidiaries and controlled affiliates shall be express
third party beneficiaries of this Agreement.
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5.7 Entire
Agreement.
This
Agreement supersedes all prior agreements and understandings between the
parties, oral or written. No modification, termination or attempted waiver
shall
be valid unless in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced.
5.8 Counterparts;
Facsimile.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original, and all of which taken together shall
constitute one and the same instrument. This Agreement may be executed by
facsimile with original signatures to follow.
[Rest
of page left intentionally blank]
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IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed
this Agreement as of the date first written above.
|
MALIBU
MINERALS, INC.
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| |
|
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| By: | /s/ Xxxxx Xxxxx | |
|
Name: Xxxxx Xxxxx |
||
|
Title:
Chief Executive Officer
|
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|
EMPLOYEE:
|
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| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Xxxxx Xxxxx |
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EXHIBIT
A
Employee
is hereby employed as the Chief Executive Officer, President, acting Chief
Financial Officer, Secretary and Treasurer.
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