Exhibit 10.26 -- OFFICER AND DIRECTOR AGREEMENT - XXXXX XXXXXXX XX
This Agreement (this "Agreement") is entered into by and between Trezac
Holdings Corporation, a Texas corporation (the "Company") Xxxxx Xxxxxxx, Xx.
("Director") as of this day of Wednesday, February 12, 2003 replaces and
supercedes the previous agreement that Xxxxx Xxxxxxx has with the Company
The Company and Xxxxx Xxxxxxx are sometimes referred to herein individually
as a "Party" and together as the "Parties."
WHEREAS, the Board of Directors desires to hire Xxxxxxx to serve as the
Director for the Company and its subsidiaries under the terms and conditions
set forth herein; and
WHEREAS, Xxxxxxx desires to be engaged as a Director for the Company under
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1) TERM. The Company hereby engages Xxxxxxx as Director to the Company and each
of its subsidiaries and Xxxxxxx accepts such engagement commencing on January 9,
2003 and continuing for a term of three (3) years thereafter (the "Term").
The Term may be extended by agreement of the Parties on mutually acceptable
terms and conditions.
Duties: During the Term, Xxxxxxx shall oversee and direct all activities
related to the Auditing and Accounting processes of the Holding Company, as
well as oversight of all Auditing and Accounting processes in the Company's
subsidiaries.
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2) SALARY /COMPENSATION /BONUS
o The base salary of $110,000 per year by payment of $110,000 of
compensation in cash payable in installments according to the Company's
regular payroll schedule.
x Xxxxxxx shall have irrevocable eligibility for annual increases of the
base salary to a maximum of 3% per year, but not decreases, at the
discretion of the Board.
x Xxxxxxx'x annual bonus is equal to maximum of 400% of the annual salary
at the discretion of the Board.
o The Company agrees to pay to Xxxxxxx 1,917,074 common shares
restricted under rule 144 upon the completed acquisition of Millagro SRL.
o The Company agrees to compensate Xxxxxxx with common stock upon any
subsequent acquisitions to a maximum of 6% of each acquisition price when
paid in stock, or stock to the value of a maximum of 6% in each occurrence
if acquisition is paid for in cash.
3) BENEFITS
o Holidays. Xxxxxxx will be entitled to at least ten (10) paid holiday
days and (10) personal days each calendar year.
o Company will notify Gullatton or about the beginning of each calendar
year with respect to the holiday schedule for the coming year.
o Personal holidays, if any, will be scheduled in advance subject to
requirements of the Company. Such holidays must be taken during the
calendar year and cannot be carried forward into the nets year.
o Sick Leave. Xxxxxxx shall be entitled to sick leave and emergency
leave according to the regular policies and procedures of the Company.
Additional sick leave or emergency leave over and above paid leave provided
by the Company, if any, shall be unpaid and shall be granted at the
discretion of the Board of Directors of the Company.
o Medical and Group Life Insurance. The Company agrees to include
Xxxxxxx, Spouse, present and future children in the group medical and
hospital plan of the Company and provide group life insurance for Gullattat
no charge to Xxxxxxx in the amount of ten times the annual salaried income
during this Agreement. Xxxxxxx shall be responsible for payment of any
federal or state income tax imposed upon these benefits.
o D&O Insurance. The Company will provide D&O insurance commensurate with
$10,000,000 of risk.
o Pension and Profit Sharing Plans. Xxxxxxx shall be entitled to
participate in any pension or profit sharing plan or other type of plan
adopted by the Company for the benefit of its officers and/or regular
employees.
o Expense Reimbursement. Xxxxxxx shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred by
Xxxxxxx in the performance of duties. Xxxxxxx will maintain records and
written receipts as required by the Company's policy and reasonably
requested by the Board of Directors to substantiate such expenses.
4) TERMINATION.
a. Notwithstanding anything to the contrary herein, in the event
Xxxxxxx intentionally breaches a material provision of this Agreement
(for purposes hereof, the covenants in Sections 6, 7 and 8 shall be
deemed to be material provisions), the Company shall have the right to
terminate this Agreement by giving Xxxxxxx written notice thereof (and
such termination shall be effective upon the date of such notice).
b. On or after Term of contract, either Party may terminate this Agreement
at any time by giving written notice to the other (and such termination
shall be effective ten (10) business days after the date of such notice,
unless otherwise agreed to by the Parties).
c. The Company's right of termination shall be in addition to and shall not
affect its rights and remedies under Sections 6, 7, 8 and 9 hereof, and
such rights and remedies under such Sections shall survive termination
of this Agreement.
d. In the event of termination of this Agreement pursuant to the terms
hereof, Xxxxxxx shall have the right to receive all compensation for any
period subsequent to the date of such termination, except for any pro
rated amounts earned prior to such termination, and all rights of
Xxxxxxx to receive compensation for any period subsequent to the date of
such termination shall be effective in their entirety.
e. In the event of termination for cause or not for cause, all stock held
by Xxxxxxx will be deemed fully vested under rule 144 and the Company
will provide a legal opinion at the Company's expense stateing such 144
stock held by Xxxxxxx is fully vested, and remove legend accordingly.
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5) NON-COMPETITION AGREEMENTS.
Without the prior consent of the Company, Xxxxxxx shall not, for a
period extending from the date hereof and continuing for so long as
Xxxxxxx is receiving payments from the Company for services
provided hereunder, directly or indirectly, be employed in any
capacity by, serve as an employee, agent, officer or director of,
serve as advisor to, or otherwise participate in the management or
operation of, any person, firm, corporation or other entity of any
kind (collectively, a "Person") which engages in any facet of the
business of Moldovian industry.
6) CONFIDENTIALITY. Xxxxxxx shall not, at any time, divulge to any
Person (as defined in Section 6 above), other than to employees of
the Company and its affiliates who have a need to know such
information in connection with the performance of their duties on
behalf of the Company and except as required by law, any
confidential, proprietary or privileged information to which
Xxxxxxx becomes privy during the Term, including, without
limitation, information relating to the financial condition,
business, operations, or method of business of the Company or its
affiliates, customer and supplier information, independent
contractor information, know-how, trade-secrets, procedures,
litigation or other confidential information regarding the affairs
of the Company, or any of its officers, directors, stockholders,
subsidiaries, affiliates, customers or suppliers ("Confidential
Information").
Confidential Information does not include any information that (i)
is or becomes generally available to the public other than as a
result of a disclosure by Xxxxxxx or anyone to whom Xxxxxxx
transmits the Confidential Information in accordance with this
Agreement, or (ii) becomes available to Xxxxxxx on a non-
confidential basis from a source other than the Company or its
affiliates.
7) NONSOLICITATION OF EMPLOYEES. Xxxxxxx shall not, for a period
extending from the date hereof and continuing for so long as
Xxxxxxx is receiving payments from the Company for services
provided hereunder, directly or indirectly, solicit, interfere
with, employ or retain in any other capacity any employee of the
Company or any of its affiliates, nor permit, encourage or allow
any entity in which the Xxxxxxx owns, directly or indirectly, more
than a 5% equity or proprietary interest or the right or option,
legally or beneficially, directly or indirectly, to acquire or own
any stock or other proprietary or equity interest, to solicit,
interfere with, employ or retain in any other capacity any employee
of the Company or any of its affiliates.
8) REMEDIES. Xxxxxxx acknowledges and agrees that (a) the covenants contained
in Sections 6, 7 and 8 hereof are reasonable in content and scope, are entered
into by Xxxxxxx in partial consideration for the compensation to be paid to
Xxxxxxx hereunder and are a necessary and material inducement to the Company to
go forward with the engagement contemplated by this Agreement, and (b) the
services and agreements to be performed hereunder by Xxxxxxx are of a unique,
special and extraordinary character, and that a breach by Xxxxxxx of any
covenants contained in Sections 6, 7 and 8 above would result in irreparable
damage to the Company and its affiliates which may be unascertainable.
Accordingly, Xxxxxxx agrees that, in the event of any breach or threatened
breach of any of the covenants contained in Sections 6, 7 and 8, the Company
and its affiliates shall be entitled, in addition to money damages and
reasonable attorneys' fees and the right, in the Company's sole and absolute
discretion, to terminate this Agreement, to seek an injunction or other
appropriate equitable relief to prevent such breach or any continuation
thereof in any court of competent jurisdiction.
9) INDEMNIFICATION. The Company shall indemnify and hold harmless
Xxxxxxx from and against any claims, judgments, liabilities,
obligations, expenses (including reasonable attorneys' fees) and
costs incurred by Xxxxxxx that arise from the performance by
Xxxxxxx of services for the Company in accordance with the terms
hereof, to the extent that (i) Xxxxxxx acted in good faith and in a
manner which Xxxxxxx reasonably believed to be in, or not opposed
to, the best interests of the Company, and (ii) with respect to any
criminal proceeding, Xxxxxxx had no reasonable cause to believe the
conduct was unlawful.
10) NOTICES. All notices or other communications in connection
with this Agreement shall be in writing and may be given by
personal delivery or mailed, certified mail, return receipt
requested, postage prepaid or by a nationally recognized overnight
courier to the Parties at the addresses set forth below (or at such
other address as one Party may specify in a notice to the other
Party):
XXXXX XXXXXXX XX
11) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
12) ATTORNEYS' FEES. The Parties agree that, if any action is
instituted to enforce this Agreement, the Party not prevailing
shall pay to the prevailing Party all costs and expenses, including
reasonable attorneys' fees, incurred by such prevailing party in
connection with such action. If both Parties prevail in part in
such action, the court or arbitrator(s) shall allocate the
financial responsibility for such costs and expenses.
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13) ENTIRE AGREEMENT; AMENDMENTS. This Agreement represents the entire
agreement between the Parties with respect to the matters addressed herein and
supersedes all prior negotiations, representations or agreements between the
Parties, either written or oral, on the subject matter hereof. This Agreement
may not be amended, modified, altered or rescinded except upon a written
instrument designated as an amendment to this Agreement and executed by both
Parties hereto.
14) SEVERABILITY. If any provision of this Agreement, or part
thereof, is held invalid, void or voidable as against public policy
or otherwise, the invalidity shall not affect other provisions, or
parts thereof, which may be given effect without the invalid
provision or part. If any provisions of this Agreement shall be
held to be excessively broad as to duration, geographical scope,
activity or subject, such provisions shall be construed by limiting
or reducing the same so as to render such provision enforceable to
the extent compatible with applicable law.
15) WAIVER. Failure on the part of the Company to exercise any
right or option arising out of a breach of this Agreement shall not
be deemed a waiver of any right or option with respect to
subsequent or different breach, or the continuation of any existing
breach.
16) COUNTERPARTS; TELECOPIED SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed
an original but all of which when taken together shall constitute
one and the same agreement. Signatures may be exchanged by
telecopy and the originals shall be exchanged by overnight mail.
Each of the Parties agrees that it will be bound by it telecopied
signature and that it accepts the telecopied signature of the other
Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and date first above written.
By _____________________
Xxxxx Xxxxxxx Xx
By ________________________
Xxxx Xxxxxx
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