EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.8
This EXECUTIVE EMPLOYMENT
AGREEMENT (this "Agreement")
is made and entered into as of the 1st day of May, 2008 (the"Effective Date"),
by and between IX ENERGY, INC., a Delaware corporation with offices at 000 Xxxxx
Xxxxxx., Xxx Xxxx 00000 (the "Corporation"),
and Xxxxx Xxxxxxx, an individual residing at 00 Xxxxxxxxxxxx Xx Xxxxxxx XX 00000
("Executive").
WITNESSETH:
WHEREAS, the Executive
desires to be employed by the Company as its Chief Executive Officer and
Chairman and the Company wishes to employ Executive in such
capacity:
NOW, THEREFORE, in
consideration of the foregoing recitals and the respective covenants and
agreements of the parties contained in this document, the Company and Executive
hereby agree as follows:
1. Employment
and Duties. The Company agrees to employ and Executive agrees to serve as
the Company's Executive Officer (CEO) and Chairman of Board. The duties,
responsibilities and authority of Executive shall include such duties,
responsibilities and authority commensurate and consistent with Executive's
position, as may be, from time to time, assigned to him by the Board of
Directors of the Company.
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
and to the diligent and faithful performance of the duties and responsibilities
duly assigned to him pursuant to this Agreement.
2. Term.
The term of this Agreement shall commence on the Effective Date and shall
continue for a period of Two years and shall be automatically renewed for
successive one year periods thereafter unless either party provides the other
party with written notice of his or its intention not to renew this Agreement at
least three months prior to the expiration of the initial term or any renewal
term of this Agreement. "Employment Period" shall mean the initial two year term
plus renewals, if any.
3. Place
of Employment. Executive's services shall be performed at the executive
residence, New York City location, or West coast offices. The current corporate
location in New York, NY may serve as a reporting corporate office in which the
executive may be required on an as needed basis be present. In such occurrences
employee will be given 4-day notice and would be during normal business hours.
The parties acknowledge, however, that Executive may be required to travel in
connection with the performance of his duties hereunder.
4. Base
Salary. For all services to be rendered by Executive pursuant to this
Agreement, the Company agrees to pay Executive during the Employment Period an
initial base salary (the"Base Salary") at an annual rate of $225,000. The Base
Salary shall be paid in periodic installments in accordance with the Company's
regular payroll practices. In addition the Executive shall receive a
compensation of $80,000.00 for recouped of unpaid salary in year 2008, and
outstanding expenses upon the Company's sale of debt and or equity securities in
one transaction or series of related transactions that result in gross proceeds
to the Company of at least $2.5 million.
The Compensation Committee
(the "Compensation Committee") of the Board (or by the independent members of
the Board (the "Independent Directors"), if there is no Compensation Committee)
shall review the Executive's Base Salary annually after the conclusion of the
initial two year term and shall make a recommendation to the Board as to whether
such Base Salary should be increased but not decreased, which decision shall be
within the Board's sole discretion.
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5. Bonuses.
During the term of this Agreement, the Executive shall be entitled to an annual
bonus during term of employment. Bonuses shall be decided by the Compensation
Committee (or by the Independent Directors if there is no Compensation
Committee) based on gross revenue and performance during such year of
employment. Each annual bonus shall be paid by the Company to the Executive
promptly after determination that the relevant targets have been met, it being
understood that the attainment of any financial targets shall be determined
after the results are known.
6. Expenses.
Executive shall be entitled to reimbursement by the Company for all reasonable
ordinary and necessary travel, entertainment, and other expenses incurred by
Executive while employed (in accordance with the policies and procedures
established by the Company for its senior executive officers) in the performance
of his duties and resonsibilities under this Agreement; provided, that Executive
shall properly account for such expenses in accordance with Company policies and
procedures. The executive shall also be entitled to a car allowance of $750 per
month during the term of this Agreement.
7. Other
Benefits. During the term of this Agreement, the Executive shall be
eligible to participate in incentive, savings, retirement (401(k)), and welfare
benefit plans, including, without limitation, health, medical, dental, vision,
life (including accidental death and dismemberment) and disability insurance
plans (collectively, "Benefit plans"), in substantially the same manner and at
substantially the same levels as the Company makes such opportunities available
to the Company's managerial or salaried executive employees. The Company shall
bear the sole cost of insuring Executive and his family under the health,
medical, dental and vision insurance plans.
8. Vacation.
During the term of this Agreement, the Executive shall be entitled to accrue, on
a pro rata basis, 15 paid vacation days per year. Vacation shall be taken at
such times as are mutually convenient to the Executive and the Company and no
more than 10 consecutive days shall be taken at any one time without Company
approval in advance. The Executive shall be entitled to carry over any accrued,
unused vacation days from year to year.
9. Stock
Options. The Executive shall be eligible for a multi-year grant of IX
non-qualified options, the amount of which will be equal to 6% of the total
common shares outstanding after taking effect for the planned reverse merger,
vesting 1/3 each year with the first third vesting on the Effective Date. The
options will be priced at $.50 per share on the grant date. The next scheduled
option grants will be three years from this initial grant. Any such options
shall be vested if this Agreement is terminated by the Executive or the Company.
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10. Termination
of Employment.
(a) Death. If Executive
dies during the Employment Period, this Agreement and the Executive's employment
with the Company shall automatically terminate and the Company shall have no
further obligations to the Executive or his heirs, administrators or executors
with respect to compensation and benefits accruing thereafter, except for the
obligation to pay to the Exective's heirs, administrators or executors any
earned by unpaid base Salary and vacation pay, unpaid pro
rata annual bonus through the date of death and reimbursement of any and
all reasonable expenses paid or incurred by the Executive in conneciton with and
related to the performance of his duties and responsibilities for the Company
during the period ending on the termination date. The Company shall deduct from
all payments made hereunder, all applicable taxes, including income tax. FICA
and FUTA, and other appropriate deductions. In addition, the Executive's spouse
shall be entitled to continued coverage for a period of one year following the
termination of employment, at the Company's expense, under all health, medical,
dental and vision insurance plans in which the Executive was a participant
immediately prior to his last date of employment with the Company.
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assets are of the Company
are sold or if "change of control" occurs as described under the agreement, then
all stock options immediately vest.
(e) Good
Reason.
(1) At any time during the
term of this Agreement, subject to the conditions set forth in Section 10(e)(2)
below, the Executive may terminate this Agreement and the Executive's employment
with the Company for "Good Reason." For purposes of this Agreement, "Good
Reason" shall mean the occurence of any of the following events; (A) the
assignment, without the Executive's consent, 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; (B) the assignment, without the
Executive Officer; (C) any termination of the Executive's employment by the
Company within 12 months after a Change of Control, other than a
termination for Cause, death or Disability; or (D) material breach by the
Company of this Agreement.
(2) The Executive shall
not be entitled to terminate this Agreement for Good Reason unless and until he
shall have delivered written notice to the Company of his intention to terminate
this Agreement and his employment with the Company for Good Reason, which notice
specifies in reasonable detail the circumstances claimed to provide the basis
for such termination for Good Reason, and the Company shall not have eliminated
the circumstances constituting Good Reason within 30 days of its receipe from
the Executive of such written notice.
(3) In the event that the
Executive terminates this Agreement and his employment with the Company for Good
Reason, the Company shall pay or provide to the Executive (or, following his
death, to the Executive's heirs, administrators or executors); (A) any earned
but unpaid Base Salary, unpaid annual bonus and unused vacation days for that
annual year through the Executive's last day of employment with the Company; (B)
continued coverage, at the Company's expense, under all Benefits Plans in which
the Executive and his spouse was a participant immediately prior to his last
date of employment with the Company, or, in the event that any such Benefit
Plans do not permit coverage of the Executive or his spouse following
Executive's last date of employment with the Company, under benefit plans that
provide no less coverage than such Benefit Plans, for a period of one year
following the termination of employment; (C) reimbursement of any and all
reasonable expenses paid or incurred by the Executive in connection with the
related to the performance of his duties and responsibilities for the Company
during the period ending on the termination date; and (D) the Base Salary, as in
effect immediately prior to the Executive's termination hereunder, and any
bonuses earned, during the remainder of the Employment Period year. All payments
due hereunder shall be payable according to the Company's standard payroll
procedures. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(f) Without
"Good Reason" by Executive or Without "Cause" by the
Company.
(1) By
the Exectuive. At any time during the term of this Agreement, the
Executive shall be entitled to terminate this Agreement and the Executive's
employment with the Company without Good Reason by providing prior written
notice of at least 30 days to the Company. Upon termination by the Executive of
this Agreement and the Executive's employment with the Company without Good
Reason, the Company shall have no further obligations or liability to the
Executive or his heirs, administators or executors with respect to compensation
and benefits thereafter, execept for the obligation to pay the Executive any
earned but unpaid Base Salary, unused vacation days accrued through the
Executive's last day of employment with the Company and reimbursement of any and
all reasonable expenses paid or incurred by the Executive in connection with and
related to the performance of his duties and responsibilities for the Company
during the period ending on the termination date. The Company shall deduct, from
all payments made hereunder, all applicable taxes, including income tax, FICA
and FUTA, and other appropriate deductions.
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(b) The
Executive affirms that he does not posses and will not rely upon the protected
trade secrets or confidential or proprietary information of any prior
employer(s) in providing services to the Company.
(c) In
the event that the Executive's employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies, including those in electronic or digital formats, of
Confidential information.
12. Non-Competition
and Non-Solicitation.
(a) The
Executive agrees and acknowledges that the Confidential Information that the
Executive has already received and will receive is valuable to the Company and
that its protection and maintenance constitutes a legitimate business interest
of the Company, to be protected by the non-competition restrictions set xxxx
herein. The Executive agrees and acknowledges that the non-competition
restrictions set forth herein are reasonable and necessary and do not impose
undue hardship or burdens on the Executive. The Executive also acknowledges that
the products and services developed or provided by the Company, its affiliates
and or its clients or customers are or are intended to be sold, provided,
licensed and or distributed to customers and clients in and throughout the
United States (the "Territory")
(to the extent to the Company comes to operate, either directly or through the
engagement of a distributor or joint or co-venturer, or sell a significant
amount of its products and services to customers located, in areas other than
the United States during the term of the Employment Period, the definition of
Territory shall be automatically expanded to cover such other areas), and that
the Territory, scope of prohibited competition, and time duration set forth in
the non-competition restrictions set forth below are reasonable and necessary to
maintain the value of the Confidential Information of, and to protect the
goodwill and other legitimate business interests of, the Company, its affiliates
and or its clients or customers.
(b) The
Executive hereby agrees and covenants that he shall not, without the prior
written consent of the Company, directly or indirectly, in any capacity
whatsoever, including, without limitation, as an employee, employer, consultant,
principal, partner, shareholder, officer, director or any other individual or
representative capacity (other than a holder or less than two percent (2%) of
the outstanding voting shares of any publicly held company), or whether on the
Executive's own behalf or on behalf of any other person or entity or otherwise
howsoever, during the Employment Period and thereafter to the extent described
below, within the Territory;
(1) Engage, own, manage,
operate, control, be employeed by, consult for, participate in, or be connected
in any manner with the ownership, management, operation or control of any
business in competition with the business of the Company;
(2) Recruit, solicit or
hire, or attempt to recruit, solicit or hire, any employee, or independent
contractor of the Company to leave the employment (or independent contractor
relationship) thereof, whether or not any such employee or independent
contractor is party to an employment agreement.
(3) Attempt in any manner
to solicit or accept from any customer of the Company, with whom the Company had
significant contact during Executive's employment by the Company (whether under
this Agreement or otherwise), business of the kind or competitive with the
business done by the Company 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 might do with the Company,
or if any such customer elects to move its business to a person other than the
Company, provide any services (of the kind of competitive with the Business of
the Company) for such customer, or have any discussions regarding any such
service with such customer, on behalf of such other person; or
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(4) Interfere with any
relationship, contractual or otherwise, between the Company and any other party,
including, without limitation, any supplier, distributor, co-venturer or joint
venturer of the Company to discontinue or reduce its business with the Company
or otherwise interfere in any way with the Business of the Company.
With respect to the
activities described in Paragraphs
(2), (3)
and (4)
above, the restrictions of this Section
12(b) shall continue beyond the Employment Period until one year
following the termination of this Agreement or of the Executive's employment
with the Company, whichever occurs later. Furthermore, if the Company terminates
Executive's employment for Cause or if Executive terminates his employment
without Good Reason, then the restrictions of this Section
12(b) shall continue with respect to the activities described in Paragraph
(1), above, beyond the Employment Period until one year following the
termination of this Agreement or of the Executive's employment with the Company,
whichever occurs later.
13. Miscellaneous.
(a) The
Executive acknowledges that the services to be rendered by him under the
provisions of this Agreement are of a special, unique and extraordinary
character and that it would be difficult or impossible to replace such services.
Furthermore, the parties acknowledge that monetary damages alone would not be an
adequate remedy for any breach by the Executive of Section
11 or Section
12 of this Agreement. Accordingly, the Executive agrees that any breach
or threatened breach by him of Section
11 or Section
12 of this Agreement shall entitle the Company, in addition to all other
legal remedies available to it, to apply to any court of competent jurisdiction
to seek to enjoin such breach or threatened breach. The parties understand and
intend that each restriction agreed to by the Executive hereinabove shall be
constructed as separable and divisble from every other restriction, that the
unenforceability of any restriction shall not limit the enforceability, in whole
or in part, of any other restriction, and that one or more or all or such
restrictions may be enforced in whole or in part as the circumstances warrant.
In the event that any restriction in this Agreement is more restrictive than
permitted by law in the jurisdiction in which the Company seeks enforcement
thereof, such restriction shall be limited to the extent permitted by law. The
remedy of injunctive relief herein set forth shall be in addition to, and not in
lieu of, any other rights or remedies that the Company may have at law or in
equity.
(b) Neither
the Executive nor the Company may assign or delegate any of their rights or
duties under this Agreement without the express written consent of the other;
provided,
however, that the Company shall have the right to delegate its obligation
of payment of all sums due to the Executive hereunder, provided that such
delegation shall not relieve that Company of any of its obligations
hereunder.
(c) This
Agreement constitutes and embodies the full and complete understanding and
agreement of the parties with respect to the Executive's employment by the
Company, supersedes all prior understandings and agreements, whether oral or
written, between the Executive and the Company, and shall not be amended,
modified or changed except by an instrument in writing executed by the party to
be charged. The invalidity or partial invalidity of one or more provisions of
this Agreement shall not invalidate any other provision of this Agreement. No
waiver by either party of any provision or condition to be performed shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
time or any prior or subsequent time.
(d) This
Agreement shall inure to the benefit of, be binding upon and enforceable
against, the parties hereto and their respective successors, heirs,
beneficiaries and permitted assigns.
(e) The
headings contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
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(f) All
notices, requests, demands and other communications required or permitted to be
given hereunder shall be in writing and shall be deemded to have been duly given
when personally delivered, sent by registered or certified mail, return receipt
requested, postage prepaid, or by reputable national overnight delivery service
(e.g. Federal Express) for overnight delivery to the party at the address set
forth in the preamble to this Agreement, or to such other address as either
party may hereafter given on the sooner of the date actually received or the
third business day after deposited in the mail or one business day after
deposited with an overnight delivery service for overnight
delivery.
(g) This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without reference to principles of conflicts of
laws and each of the parties hereto irrevocably consents to the jurisdiction and
venue of the federal and state courts located in the County and State of New
York.
(h) This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one of the same instrument. The parties hereto have executed this Agreement as
of the date set forth above.
(i) The
Executive represents and warrants to the Company, that he has the full power and
authority to enter into this Agreement and to perform his obligations hereunder
and that the execution and delivery of this Agreement and the performance of his
obligations hereunder will not conflict with any agreement to which Executive is
a party.
[Signature
page follows immediately]
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IN WITNESS WHEREOF, the
Executive and the Company have caused this Executive Employment Agreement to be
executed as of the date first above written.
| /s/ Xxxxx Xxxxxxxx | |||
| Xxxxx Xxxxxxxx | |||
|
IX
ENERGY, INC.
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | |||
| Title: Chairman & CEO | |||
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