EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (the “Agreement”)
is
entered into as of the 13th day of May 2008, by and between Xx Xxxxxx Energy,
Inc., a Nevada corporation, with a business address of 0000 0xx
Xxxxxx,
Xxxxx 0, Xxxxxxxx, XX 00000 (the “Company”),
and
Xxxxxx Xxxxxxxxx Xxxxxx, an individual with a residence address of Xxxxx ----
Xx
0-00, Xxx 000, Xxxxxx, Xxxxxxxx (the “Executive”).
INTRODUCTION
WHEREAS,
the Company is in the oil and gas exploration business (the
“Business”);
WHEREAS,
the Company wishes to employ the Executive as its President and Chief Executive
Officer pursuant to the terms and conditions set forth herein; and
WHEREAS,
the Executive desires to be employed by the Company pursuant to the terms and
conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, In consideration of the premises and mutual promises herein below
set
forth, the parties hereby agree as follows:
1. Employment
Period.
The
term of the Executive’s employment by the Company pursuant to this Agreement
(the “Employment
Period”)
shall
commence upon receipt of written notice of commencement from the Executive
to be
received by the Company no later than thirty (30) days from the date hereof
(the
“Effective Date”) and shall continue for a period of one year from the Effective
Date. Thereafter, the Employment Period shall automatically renew for successive
periods of one (1) year, unless either party shall have given to the other
at
least thirty (30) days’ prior written notice of their intention not to renew the
Executive’s employment prior to the end of the Employment Period or the then
applicable renewal term, as the case may be. In any event, the Employment Period
may be terminated as provided herein.
2. Employment;
Duties.
(a) General.
Subject
to the terms and conditions set forth herein, the Company hereby employs the
Executive to act as the President and Chief Executive Officer of the Company
during the Employment Period, and the Executive hereby accepts such employment.
The duties assigned and authority granted to the Executive shall be as
determined by the Company’s Board of Directors (the “Board”)
from
time to time. The Executive agrees to perform his duties for the Company
diligently, competently, and in a good faith manner and to use his best efforts
to promote and serve the best interests of the Company. The Executive will
also
serve as a member of the Company’s Board.
(b) Exclusive
Services.
The
Executive shall devote substantially all of his working time and efforts during
the Company's normal business hours to the business and affairs of the Company
and its subsidiaries, including its subsidiary in Bogota, Colombia, Xx Xxxxxx
Energy Colombia E.U. (the “Colombia Subsidiary”, and together with any other
subsidiaries and/ or affiliates of the Company, the “Affiliates”), and to the
diligent and faithful performance of the duties and responsibilities duly
assigned to him by the Board pursuant to this Agreement. However, Executive
may
devote a reasonable amount of his time to civic, community, or charitable
activities and may serve as a director of other corporations (provided that
any
such other corporation is not a competitor of the Company, as determined by
the
Board) and to other types of business or public activities not expressly
mentioned in this paragraph. Additionally, Executive may participate as a
director and/or investor in that certain ethanol project as described by
Executive to the Board (the “Ethanol Project”), so long as Executive’s
responsibilities with respect to the Ethanol project do not conflict or
interfere with the faithful performance of his duties to the Company.
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(c) Place
of Employment. It
is
acknowledged that the Executive's services shall be performed primarily at
the
offices of the Colombia Subsidiary, in Bogota, Colombia. The parties
acknowledge, however, that Executive may be required to travel in connection
with the performance of his duties hereunder.
3. Base
Salary. The
Executive shall be entitled to receive a salary from the Company during the
Employment Period at the rate of Two Hundred Fifty Thousand ($250,000) per
year
(the “Base
Salary”),
payable in substantially monthly installments in accordance with the Company’s
customary payroll practices. Beginning on the anniversary of the Effective
Date,
the Executive’s Base Salary may be increased on each anniversary of the
Effective Date, at the Board’s sole discretion. The parties expressly agree that
what the Executive receives now or in the future, in addition to his regular
Base Salary, whether this be in the form of benefits or regular or occasional
aid/assistance, such as recreation, club memberships, meals, education for
him
or his family, extralegal health benefits, vehicle, lodging or clothing,
occasional bonuses or anything else he receives, during the Employment Period
and any renewals thereof, in cash or in kind, shall not be deemed as salary.
Additionally, the Base salary is “Integral” under the labor laws of Colombia.
4. Bonus. The
Executive shall be eligible to receive an annual cash bonus (the ”Annual Bonus”)
of up to fifty percent (50%) of the then applicable Base Salary, payable in
U.S.
dollars within ten (10) days of the filing with the Securities and Exchange
Commission of the Company’s annual report on Form 10-K. The Executive’s Annual
Bonus (if any) shall be in such amount (up to the limit stated above) as the
Board may determine in its sole discretion, based upon the Executive’s
achievement of certain performance milestones to be established annually by
the
Board in discussion with the Executive (the “Milestones”). For the initial
Employment Period, in the event the Board and the Executive are unable to agree
to Milestones acceptable to both the Board and the Executive, the amount of
the
Executive’s bonus shall be determined by the Board on a discretionary basis. The
Executive shall be eligible to participate in any other bonus or incentive
program established by the Company for executives of the Company.
5. Stock
Options.
(a) Grant
of
Options. As
of the Effective Date, the
Company shall grant the Executive an option to purchase an aggregate of
1,000,000 shares of the Company’s common stock (“Options”) under the Company’s
2008 Equity Incentive Plan (the “2008 Plan”). Such grant shall be evidenced by
an Option Agreement issued by the Company as contemplated by the 2008 Plan
and
approved by the Board. In subsequent years the Executive shall be eligible
for
such grants of Options and/or other permissible awards under the 2008 Plan
as
the Compensation Committee of the Company, if any, or the Board shall
determine.
(b) Option
Price; Term. The
per share exercise price of
the Options shall be the fair market closing price per share of Company common
stock on the date of grant. The term of the Option (i.e., the length of time
during which the Option may be exercised) shall be ten years from the date
of
grant.
(c) Exercise. One
third of the shares of the
Options shall become exercisable on each anniversary of the date of grant (with
333,334 shares becoming eligible for exercise on the first anniversary of the
date of grant, an additional 333,333 shares becoming eligible for exercise
on
the second anniversary of the date of grant and the final 333,333 shares
becoming eligible for exercise on the third anniversary of the date of
grant).
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(d) Payment. The
full consideration for any
shares purchased by the Executive upon exercise of the Options shall be paid
in
cash.
(e) Termination
of
Employment; Accelerated Vesting.
(i) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all Options, whether or not vested, shall immediately expire effective as of
the
date of termination of employment.
(ii) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Options shall immediately
expire effective the date of termination of employment. Vested Options, to
the
extent unexercised, shall expire one month after the termination of
employment.
(iii) If
the
Executive’s employment terminates on account of death or Disability, as defined
below, all unvested Options shall immediately expire effective the date of
termination of employment. Vested Options, to the extent unexercised, shall
expire nine months after the termination of employment.
(iv) If
the
Executive’s employment is terminated (A) in connection with a Change of Control,
as defined below, (B) by the Company without Cause within 12 months of the
Effective Date or (C) by the Executive for Good Reason, all unvested Options
shall immediately vest and become exercisable effective the date of termination
of employment, and, to the extent unexercised, shall expire nine months after
any such event. These acceleration and expiration provisions shall not apply
with respect to a Change of Control following which the Executive remains
President or Chief Executive Officer or continues to perform functions and
be
responsible for duties significantly and substantially similar to those of
one
or both of those positions.
(f) Change
of Control. For
purposes of this Agreement, “Change of Control” means the occurrence of, or a
Board vote to approve, any of the following:
(i) any
consolidation or merger of the Company pursuant to which the stockholders of
the
Company immediately before the transaction do not retain immediately after
the
transaction, in substantially the same proportions as their ownership of shares
of the Company’s voting stock immediately before the transaction, direct or
indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business
entity;
(ii) any
sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company other
than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; or
(iii) the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
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6. Other
Benefits
(a) Insurance
and Other Benefits.
During
the Employment Period, the Executive shall be entitled to participate in the
Company’s insurance programs and any ERISA benefit plans, as the same may be
adopted and/or amended from time to time (the “Benefits”).
The
Executive shall be entitled to paid personal days on a basis consistent with
the
Company’s other senior executives, as determined by the Board. The Executive
shall be bound by all of the policies and procedures established by the Company
from time to time. However, in case any of those policies conflict with the
terms of this Agreement, the terms of this Agreement shall control.
(b) Vacation.
During
the Employment Period, the Executive shall be entitled to an annual vacation
of
such duration consistent with the Company’s policies from time to time, as
determined by the Board.
(c) Expense
Reimbursement.
The
Company shall reimburse the Executive for all reasonable business, promotional,
travel and entertainment expenses ("Reimbursable Expenses") incurred or paid
by
him during
the Employment Period in the performance of his services
under this Agreement, provided that the Executive furnishes to the Company
appropriate documentation required by the Internal Revenue Code in a timely
fashion in connection with such expenses and shall furnish such other
documentation and accounting as the Company may from time to time reasonably
request.
7. Termination;
Compensation Due Upon Termination of Employment.
The
Executive's employment hereunder may terminate as provided in paragraphs (a)
through (e) below. The Executive’s right to compensation for periods after the
date his employment
with the Company terminates shall be determined in accordance with the
provisions of paragraphs (a) through (e) below:
(a) Voluntary
Resignation; Termination without Cause.
(i) Voluntary
Resignation. The
Executive may terminate his employment
at any time upon thirty (30) days prior written notice to the Company. In the
event of the Executive's voluntary termination of employment other than for
Good
Reason (as defined below), the Company shall have no obligation to make payments
to the Executive in accordance with the provisions of Sections 3 or 4, except
as
otherwise required by this Agreement or by Colombia or U.S. law, to provide
the
benefits described in Section 6, for periods after the date on which the
Executive's employment with the Company terminates due to the Executive 's
voluntary resignation, except for the payment of the Executive’s Base Salary
accrued through the date of such resignation.
(ii) Termination
without Cause.
(A) If
the
Executive’s employment is terminated by the Company without Cause at any time
during the twelve month period commencing on the Effective Date, the Company
shall (x) continue to pay the Executive the Base Salary (at the rate in effect
on the date the Executive’s employment is terminated) until the end of the
Severance Period (as defined in Section 7(e) below), (y) to the extent the
Milestones are achieved or, in the absence of Milestones, the Board has, in
its
sole discretion, otherwise determined an amount for the Executive’s bonus for
the initial Employment Period, pay the Executive a pro rata portion of his
Annual Bonus for the initial Employment Period on the date such Annual Bonus
would have been payable to the Executive had he remained employed by the
Company, and (z) pay any other accrued compensation and Benefits. The Executive
shall have no further rights under this Agreement or otherwise to receive any
other compensation or benefits after such termination of employment.
(B) If,
following
a termination of employment without Cause, the Executive breaches the provisions
of Sections 8 through 9 hereof, the Executive shall not be eligible, as of
the date of such breach, for the payments and benefits described in
Section 7(a)(ii), and any and all obligations and agreements of the Company
with respect to such payments shall thereupon cease.
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(b) Discharge
for Cause.
Upon
(i) written notice to the Executive, the Company may terminate the Executive’s
employment for “Cause” if any of the following events shall occur:
(i) any
act
or omission that constitutes a material breach by the Executive of any of his
obligations under this Agreement;
(ii) the
willful and continued failure or refusal of the Executive to satisfactorily
perform the duties reasonably required of him as an employee of the
Company;
(iii) the
Executive’s conviction of, or plea of nolo
contendere
to,
(i) any felony or (ii) a crime involving dishonesty or moral turpitude
or which could reflect negatively upon the Company or otherwise impair or impede
its operations;
(iv) the
Executive’s engaging in any misconduct, negligence, act of dishonesty
(including, without limitation, theft or embezzlement), violence, threat of
violence or any activity that could result in any violation of federal
securities laws, in each case, that is injurious to the Company or any of its
subsidiaries or affiliates;
(v) the
Executive’s material breach of a written policy of the Company or the rules of
any governmental or regulatory body applicable to the Company;
(vi) the
Executive’s refusal to follow the directions of the Board;
(vii) any
other
willful misconduct by the Executive which is materially injurious to the
financial condition or business reputation of the Company or any of its
subsidiaries or affiliates,
or
(viii) the
Executive’s breach of his obligations
under Section 8 or Section 9.
In
the
event Executive is terminated for Cause, the Company shall have no obligation
to
make payments to Executive in accordance with the provisions of Sections 3
or 4,
or, except as otherwise required by law, to provide the benefits described
in
Section 5, for periods after the Executive's employment with the Company is
terminated on account of the Executive's discharge for Cause except for the
Executive’s then applicable Base Salary accrued through the date of such
termination.
(c) Disability. The
Company shall have the right, but shall not be obligated to terminate the
Executive's employment hereunder in the event the Executive becomes disabled
such that he is
unable
to discharge his duties
to
the Company for a period of ninety (90) consecutive days or one hundred twenty
(120) days in any one hundred eighty (180) consecutive day period, provided
longer periods are not required under applicable Colombian labor regulations
(a
"Permanent
Disability").
In
the event of a termination of employment due to a Permanent Disability, then
the
Company shall be obligated to continue to make payments to the Executive in an
amount equal to Executive’s then applicable Base Salary for the Severance Period
(as defined below), payable in the form of salary continuation for the
applicable Severance Period after the Executive’s employment with the Company is
terminated due to a Permanent Disability. A determination of a Permanent
Disability shall be made by a physician satisfactory to both the Executive
and
the Company; provided,
however,
that if
the Executive and the Company do not agree on a physician, the Executive and
the
Company shall each select a physician and those two physicians together shall
select a third physician, whose determination as to a Permanent Disability
shall
be binding on all parties.
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(d) Death. The
Executive's employment hereunder shall terminate upon the death of the
Executive. The Company shall have no obligation to make payments to the
Executive in accordance with the provisions of Sections 3 or 4, or, except
as
otherwise required by law or the terms of any applicable benefit plan, to
provide the benefits described in Section 6, for periods after the date of
the
Executive's death except for then applicable Base Salary earned and accrued
through the date of death, payable to the Executive's beneficiary, as the
Executive shall have indicated in writing to the Company (or if no such
beneficiary has been designated, to Executive’s estate).
(e) Termination
for Good Reason.
The
Executive may terminate this Agreement at any time for Good Reason. In the
event
of termination under this Section 7(e), Company shall pay to the Executive
severance in an amount equal to the Executive’s then applicable Base Salary for
a period equal to 12 months (the “Severance
Period”),
subject to the Executive’s continued compliance with Sections 8 and 9 of this
Agreement, payable in the form of salary continuation for the applicable
Severance Period following the Executive’s termination, and subject to the
Company’s regular payroll practices and required withholdings. Such severance
shall be reduced by any cash remuneration paid to the Executive because of
the
Executive’s employment or self-employment during the Severance Period. The
Executive shall continue to receive all Benefits during the Severance Period.
The
Executive shall have no further rights under this Agreement or otherwise to
receive any other compensation or benefits after such resignation.
For the
purposes of this Agreement, “Good Reason” shall mean any of the following
(without Executive’s express written consent):
(i) the
assignment to the Executive of duties that are significantly different from,
and
that result in a substantial diminution of, the duties that he assumed on the
Effective Date (except with respect to the diminution of duties relating to
the
function of President, it being understood by the Executive that the Company
intends to hire an additional employee to serve in that capacity);
(ii) removal
of
the Executive from his position as Chief Executive
Officer, or the assignment to the Executive of duties that are significantly
different from, and that result in a substantial diminution of, the duties
that
he assumed as Chief Executive
Officer, within twelve (12) months after a Change of Control (as defined above);
(iii) a
reduction
by the Company in the Executive’s then applicable Base Salary or other
compensation, unless said reduction is pari passu with other senior executives
of the Company;
(iv) the
taking of
any action by the Company that would, directly or indirectly, materially reduce
the Executive’s benefits, unless said reductions are pari passu with other
senior executives of the Company; or
(v) a
breach by
the Company of any material term of this Agreement that is not cured by the
Company within 30 days following receipt by the Company of written notice
thereof.
(f) Notice
of Termination. Any
termination of employment by the Company or the Executive shall be communicated
by a written ‘‘Notice of Termination’’ to the other party hereto given in
accordance with Section 14 of this Agreement. In the event of a termination
by the Company for Cause, the Notice of Termination shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the provision so
indicated and (iii) specify the date of termination, which date shall be
the date of such notice. The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes
to
a showing of Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive’s or the
Company’s rights hereunder.
6
(g) Resignation
from Directorships and Officerships. The
termination of the Executive’s employment for any reason will constitute the
Executive’s resignation from (i) any director, officer or employee position
the Executive has with the Company or any of its Affiliates, including the
Colombia Subsidiary, and (ii) all fiduciary positions (including as a
trustee) the Executive holds with respect to any employee benefit plans or
trusts established by the Company. The Executive agrees that this Agreement
shall serve as written notice of resignation in this circumstance, unless
otherwise required by any plan or applicable law.
8. Non-Competition;
Non-Solicitation.
(a) Unless
the Executive terminates this Agreement pursuant to Section 7(a) or the Company
terminates the Executive’s employment for Cause, for the duration of the
Employment Period and during the Severance Period (the “Non-compete
Period”),
the
Executive shall not, directly or indirectly engage or invest in, own, manage,
operate, finance, control or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in
any
manner connected with, lend any credit to, or render services or advice to,
any
business, firm, corporation, partnership, association, joint venture or other
entity that engages or conducts any business the same as or substantially
similar to the Business or currently proposed to be engaged in or conducted
by
the Company and/or any of its Affiliates, including the Colombia Subsidiary,
in
South America or included in the future strategic plan of the Business, anywhere
within the United States of America or South America; provided,
however,
that the
Executive may own less than 5% of the outstanding shares of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) including those engaged in the oil and gas
business, other than any such enterprise with which the Company competes or
is
currently engaged in a joint venture, if such securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934, as amended;
(b) During
the Employment Period and for a period of 12 months following termination of
the
Executive’s employment with the Company, the Executive shall not:
(i) solicit
or
hire, or attempt to recruit, solicit or hire, any employee, or independent
contractor of the Company, or its Affiliates, including the Colombia Subsidiary,
to leave the employment (or independent contractor relationship) thereof,
whether or not any such employee or independent contractor is party to an
employment agreement; or
(ii) attempt
in
any manner to solicit or accept from any customer of the Company or any of
its
Affiliates, including the Colombia Subsidiary, with whom the Company or any
of
its Affiliates had significant contact during the term of the Agreement,
business of the kind or competitive with the business done by the Company or
any
of its Affiliates with such customer or to persuade or attempt to persuade
any
such customer to cease to do business or to reduce the amount of business which
such customer has customarily done or is reasonably expected to do with the
Company or any of its Affiliates or if any such customer elects to move its
business to a person other than the Company or any of its Affiliates, provide
any services (of the kind or competitive with the Business of the Company or
any
of its Affiliates) for such customer, or have any discussions regarding any
such
service with such customer, on behalf of such other person.
7
The
Executive recognizes and agrees that because a violation by him of
his obligations
under this Section 8 will cause irreparable harm to the Company that would
be
difficult to quantify and for which money damages would be inadequate, the
Company shall have the right to injunctive relief to prevent or restrain any
such violation, without the necessity of posting a bond. The Non-compete Period
will be extended by the duration of any violation by the Executive of any of
his obligations
under this Section 8.
The
Executive expressly agrees that the character, duration and scope of the
covenant not to compete are reasonable in light of the circumstances as they
exist at the date upon which this Agreement has been executed. However, should
a
determination nonetheless be made by a court of competent jurisdiction at a
later date that the character, duration or geographical scope of the covenant
not to compete is unreasonable in light of the circumstances as they then exist,
then it is the intention of both the Executive and the Company that the covenant
not to compete shall be construed by the court in such a manner as to impose
only those restrictions on the conduct of the Executive which are reasonable
in
light of the circumstances as they then exist and necessary to assure the
Company of the intended benefit of the covenant to compete.
9. Confidentiality
Covenants.
(a) The
Executive understands that the Company and/or its Affiliates, including the
Colombia Subsidiary, from time to time, may impart to him confidential
information, whether such information is written, oral or graphic.
For
purposes of this Agreement, “Confidential Information” means information, which
is used in the business of the Company or its Affiliates and (i) is
proprietary to, about or created by the Company or its Affiliates,
(ii) gives the Company or its Affiliates some competitive business
advantage or the opportunity of obtaining such advantage or the disclosure
of
which could be detrimental to the interests of the Company or its Affiliates,
(iii) is designated as Confidential Information by the Company or its
Affiliates, is known by the Executive to be considered confidential by the
Company or its Affiliates, or from all the relevant circumstances should
reasonably be assumed by the Executive to be confidential and proprietary to
the
Company or its Affiliates, or (iv) is not generally known by non-Company
personnel. Such Confidential Information includes, without limitation, the
following types of information and other information of a similar nature
(whether or not reduced to writing or designated as confidential):
(i) Internal
personnel and financial information of the Company or its Affiliates,
information regarding oil and gas properties including reserve information,
vendor information (including vendor characteristics, services, prices, lists
and agreements), purchasing and internal cost information, internal service
and
operational manuals, and the manner and methods of conducting the business
of
the Company or its Affiliates;
(ii) Marketing
and
development plans, price and cost data, price and fee amounts, pricing and
billing policies, bidding, quoting procedures, marketing techniques, forecasts
and forecast assumptions and volumes, and future plans and potential strategies
(including, without limitation, all information relating to any oil and gas
prospect and the identity of any key contact within the organization of any
acquisition prospect) of the Company or its Affiliates which have been or are
being discussed;
(iii) Names
of
customers and their representatives, contracts (including their contents and
parties), customer services, and the type, quantity, specifications and content
of products and services purchased, leased, licensed or received by customers
of
the Company or its Affiliates; and
8
(iv) Confidential
and proprietary information provided to the Company or its Affiliates by any
actual or potential customer, government agency or other third party (including
businesses, consultants and other entities and individuals).
The
Executive hereby acknowledges the Company’s exclusive ownership of such
Confidential Information.
(b) The
Executive agrees as follows: (1) only to use the Confidential Information to
provide services to the Company and its subsidiaries and affiliates; (2) only
to
communicate the Confidential Information to fellow employees, agents and
representatives on a need-to-know basis; and (3) not to otherwise disclose
or
use any Confidential Information, except as may be required by law or otherwise
authorized by the Board. Upon demand by the Company or upon termination of
the
Executive’s employment, the Executive will deliver to the Company all manuals,
photographs, recordings and any other instrument or device by which, through
which or on which Confidential Information has been recorded and/or preserved,
which are in the Executive’s possession, custody or control.
10. Executive’s
Representation.
The
Executive hereby represents that his entry
into this Employment Agreement will not violate the terms or conditions of
any
other agreement to which the Executive is a party.
11. Arbitration.
In the
event of any breach arising from the performance of this Agreement, either
party
may request arbitration. In such event, the parties will submit to arbitration
by a qualified arbitrator with the definition and laws of the State of New
York.
Such arbitration shall be final and binding on both parties.
12. Governing
Law/Jurisdiction.
This
Agreement and any disputes or controversies arising hereunder shall be construed
and enforced in accordance with and governed by the internal laws of the State
of New York and, to the extent required by Colombian labor law, the laws of
Colombia.
13. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof and supersedes and cancels
any
and all previous agreements, written and oral, regarding the subject matter
hereof between the parties hereto. This Agreement shall not be changed, altered,
modified or amended, except by a written agreement signed by both parties
hereto.
14. Notices.
All
notices, requests, demands and other communications called for or contemplated
hereunder shall be in writing and shall be deemed to have been given when
delivered to the party to whom addressed or when sent by telecopy (if promptly
confirmed by registered or certified mail, return receipt requested, prepaid
and
addressed) to the parties, their successors in interest, or their assignees
at
the following addresses, or at such other addresses as the parties may designate
by written notice in the manner aforesaid:
(a) to
the
Company at:
Xx
Xxxxxx
Energy, Inc.
0000
0xx
Xxxxxx,
Xxxxx 0
Xxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxx
Fax:
(000) 000-0000
9
with
a
copy to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Attn:
Xxxx X. Xxxxxxxxxx
Fax:
(000) 000-00000
(b) to
the
Executive at:
Xxxxx
---- Xx 0-00, Xxx 000
Xxxxxx,
Xxxxxxxx
Fax:
(___) ___-____
All
such
notices, requests and other communications will (i) if delivered personally
to
the address as provided in this Section 14, be deemed given upon delivery,
(ii)
if delivered by facsimile transmission to the facsimile number as provided
for
in this Section 14, be deemed given upon facsimile confirmation, (iii) if
delivered by mail in the manner described above to the address as provided
for
in this Section 14, be deemed given on the earlier of the third business day
following mailing or upon receipt and (iv) if delivered by overnight courier
to
the address as provided in this Section 14, be deemed given on the earlier
of
the first business day following the date sent by such overnight courier or
upon
receipt (in each case regardless of whether such notice, request or other
communication is received by any other person to whom a copy of such notice
is
to be delivered pursuant to this Section 14). Either party may, by notice given
to the other party in accordance with this Section 14, designate another address
or person for receipt of notices hereunder.
15. Severability.
If any
term or provision of this Agreement, or the application thereof to any person
or
under any circumstance, shall to any extent be invalid or unenforceable, the
remainder of this Agreement, or the application of such terms to the persons
or
under circumstances other than those as to which it is invalid or unenforceable,
shall be considered severable and shall not be affected thereby, and each term
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law. The invalid or unenforceable provisions shall, to the extent permitted
by law, be deemed amended and given such interpretation as to achieve the
economic intent of this Agreement.
16. Waiver.
The
failure of any party to insist in any one instance or more upon strict
performance of any of the terms and conditions hereof, or to exercise any right
or privilege herein conferred, shall not be construed as a waiver of such terms,
conditions, rights or privileges, but same shall continue to remain in full
force and effect. Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement by the other party shall not
be
construed as, or constitute, a continuing waiver of such provision, or waiver
of
any other violation of, breach of or default under any other provision of this
Agreement.
17. Successors
and Assigns.
This
Agreement shall be binding upon the Company and any successors and assigns
of
the Company. Neither this Agreement nor any right or obligation hereunder may
be
assigned by the Executive. The Company may assign this Agreement and its right
and obligations hereunder, in whole or in part.
18. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the
same
instrument.
19. Headings.
Headings in this Agreement are for reference purposes only and shall not be
deemed to have any substantive effect.
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20. Opportunity
to Seek Advice.
The
Executive acknowledges and confirms that he has had the opportunity to seek
such
legal, financial and other advice and representation as he has deemed
appropriate in connection with this Agreement.
21. Withholding
and Payroll Practices.
All
salary, severance payments, bonuses or benefits payments made by the Company
under this Agreement shall be net of any tax or other amounts required to be
withheld by the Company under applicable Colombian law and shall be paid in
the
ordinary course pursuant to the Company’s then existing payroll
practices.
22. Conflict
of Law.
To the
extent there is any conflict between the laws of New York and the laws of
Colombia with respect to any terms of this Agreement, the parties understand
that the laws of Colombia may control.
[the
next page is the signature page]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| XX XXXXXX ENERGY, INC., | ||
| a Nevada corporation | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Name: Xxxxxx Xxxxx |
||
| Title: Chairperson | ||
| Witness: |
|
EXECUTIVE: |
| /s/ Xxxxxxx Xxxx | /s/ Xxxxxx Xxxxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxx |
Name: Xxxxxx Xxxxxxxxx Xxxxxx |
|
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