EMPLOYMENT AGREEMENT
EXHIBIT
10.5
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) dated April 6, 2006 (the “Effective
Date”), between Foothills Resources, Inc., a Delaware corporation with
its
principal place of business located at X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxxxxxxx
00000, its affiliates, subsidiaries, successors and assigns (the “Company”), and
Xxxx X. Xxxxx, an individual residing at 00000 Xxxxxxxx Xx., Xxxxxxxxxxx,
Xxxxxxxxxx 00000 (the
“Executive”).
WHEREAS,
the Company and the Executive (collectively, the “Parties”) wish to memorialize
the terms and conditions of the Executive’s employment by the Company and to
continue the Executive’s services for the Company on the terms and conditions
set forth herein.
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Parties agree as follows:
1. Employment
Period.
The
Company shall employ the Executive, and the Executive agrees to be employed
by
the Company in the position of President in accordance with the terms and
subject to the conditions of this Agreement, commencing on the Effective Date
and continuing until such employment is terminated in accordance with the
provisions of paragraph 11, in which case the provisions of paragraph 11 shall
control (the “Term”).
The
Executive affirms that no obligation exists between the Executive and any other
entity which would prevent or impede the Executive’s immediate and full
performance of every obligation of this Agreement.
2. Position
and Duties.
During
the Term, the Executive shall serve in, and assume duties and responsibilities
consistent with, the position of President, unless and until otherwise
instructed by the Company. During the Term, the Executive agrees to devote
his working
time, as
set
forth in Paragraph 4 hereof, using his skill, energy and best business efforts
on behalf of the Company. During the Term, Executive shall not engage in any
other employment, consulting or other business activity without the prior
written consent of the Company, which consent shall not be unreasonably
withheld.
3. No
Conflicts.
The
Executive covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every business opportunity
related to the business of the Company of which he becomes aware, and that
he
will not, directly or indirectly, exploit any such opportunity for his own
account, nor will he render any services to any other person or business,
acquire any interest of any type in any other business or engage in any
activities that conflict with the Company’s best interests or which is in
competition with the Company.
4. Days/Hours
of Work and Work Week.
The
Executive shall normally work 5 days per week and his hours of work shall be
appropriate with the nature of the Executive’s duties and responsibilities with
the Company, it being recognized that such duties and responsibilities require
flexibility in the Executive’s work schedule.
5. Location.
The
locus of the Executive’s employment with the Company shall be the Company’s
corporate headquarters located in Bakersfield, California.
6. Compensation.
(a) Base
Salary.
During
the Term, the Company shall pay, and the Executive agrees to accept, in
consideration for the Executive’s services hereunder, pro
rata
semi-monthly payments of the annual salary of One Hundred Ninety Thousand
Dollars ($190,000.00), less all applicable taxes and other appropriate
deductions. In
addition, the Board shall review the Executive’s base salary annually and shall
determine whether upward adjustment is appropriate given the Company’s operating
performance over the relevant Term.
(b) Annual
Bonus.
During
the Term of this Agreement, the Executive
shall be eligible to receive an annual bonus in an amount to be determined
by
the Board for each
calendar year (or pro-rata
portion
thereof in the case of a period of less than twelve (12) months)
to be
awarded and paid in the Board’s sole discretion based on its review of
the
operating performance of the Company during the fiscal year to which the bonus
pertains. Such review by the Board shall be based on an evaluation of the
Company’s results of operations relative to the Company’s achievement of certain
milestones established for the Company’s operational performance, and milestones
established for the Executive’s performance, that shall be agreed to
by
the
Executive and the Board from time to time. Each annual bonus shall be paid
by
the Company to the Executive promptly after
the
first meeting of the Board following the previous calendar year,
but
in no case later than March 30th of each year
7. Expenses.
During
the Term, the Executive shall be entitled to payment for or 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. All requests by the Executive for payment for or reimbursement of
such
expenses shall be supported by appropriate invoices, vouchers, receipts or
such
other supporting documentation in such form and containing such information
as
the Company may from time to time reasonably require, evidencing that the
Executive, in fact, incurred or paid such expenses.
8. Vacation.
During
the Term of this Agreement, the Executive shall be entitled to accrue twenty
five (25) vacation days per year.
9. Stock
Options.
(a) Grant
of Options.
The
Company shall issue to the Executive an option to acquire three hundred thousand
(300,000) shares of the Company’s common stock (the “Common Stock”), pursuant to
the Company’s then current stock option plan (the
“Plan”). The
exercise
price of the option to be granted pursuant to this paragraph 9(a) shall be
equal
to the fair market value per share of the Common Stock on the date of
grant.
(b) Vesting
and Exercise of Options.
The
option to be granted pursuant to paragraph 9(a) shall vest as follows: 25%
of
the shares of Common Stock underlying such option will vest on the date of
grant, and the remaining 75% of the shares of Common Stock underlying the option
will vest in equal annual on the first, second and third anniversaries of the
date of grant.
10. Other
Benefits.
(a) During
the Term, the Company shall purchase term life insurance, the beneficiary of
which shall be the Executive’s estate, with a benefit amount equal to or greater
than One Million Dollars ($1,000,000.00), subject to the insurability of the
Executive over the Term.
-2-
(b) During
the Term, the Executive shall be eligible to participate in Company-sponsored
benefit plans (collectively, the “Benefit Plans”) all in accordance with the
Company’s policies as in effect from time to time and in substantially the same
manner and at
substantially the same levels as the Company makes
such
opportunities available to the Company’s employees.
11. Termination
of Employment.
(a) Death.
In the
event that during the Term, the Executive dies, 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 Executive’s heirs,
administrators or executors any earned but unpaid base salary and vacation
pay,
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.
(b) Disability.
In
the
event that, during the Term, the Executive shall be prevented from performing
his duties and responsibilities hereunder to the full extent required by the
Company by reason of a Disability (as defined below), 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 the Executive’s heirs,
administrators or executors any earned but unpaid base salary and vacation
pay,
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.
For
purposes of this Agreement, “Disability” shall mean a physical or mental
disability that, in the Board’s discretion, based upon the medical opinions of
two qualified physicians specializing in the area or areas of the Executive’s
affliction, one of whom shall be chosen by the Board and one of whom shall
be
chosen by the Executive, prevents the performance by the Executive, with or
without reasonable accommodation, of his duties and responsibilities hereunder
for a continuous period of not less than six consecutive months.
(c) Cause.
(i) At
any
time during the Term, the Company may terminate this Agreement and the
Executive’s employment hereunder for Cause. For purposes of this Agreement,
“Cause” shall mean:
(a)
the
willful and continued failure of the Executive to perform substantially his
duties and responsibilities for the Company (other than any such failure
resulting from a Disability) after a written demand by the Board for substantial
performance is delivered to the Executive by the Company, which specifically
identifies the manner in which the Board believes that the Executive has not
substantially performed his duties and responsibilities, which willful and
continued failure is not cured by the Executive within thirty (30) days of
his
receipt of such written demand; (b) the
conviction of, or plea of guilty or nolo
contendere
to a
felony, after the exhaustion of all available appeals; or (c) fraud,
dishonesty, competition with the Company, unauthorized use of any of the
Company’s or any of its subsidiary’s trade secrets or confidential
information, or
gross
misconduct which is materially and demonstratively injurious to the Company.
Termination under sections 11(c)(i)(b) and 11(c)(i)(c) above shall not be
subject to cure.
-3-
(ii) Termination
of the Executive for Cause pursuant to paragraph 11(c)(i)(a) shall be made
by
delivery to the Executive of a copy of the written demand referred to in
paragraph 11(c)(i)(a), or pursuant to paragraphs 11(c)(i)(b) or (c) by delivery
to the Executive of a written notice from the Board, either of which shall
specify the basis of such termination, the conduct justifying such termination,
and the particulars thereof and finding that in the reasonable judgment of
the
Board, the conduct set forth in paragraph 11(c)(i)(a), 11(c)(i)(b) or
11(c)(i)(c), as applicable, has occurred and that such occurrence warrants
the
Executive’s termination of employment. Upon receipt of such demand or notice,
the Executive, shall be entitled to appear before the Board for the purpose
of
demonstrating that Cause for termination does not exist or that the
circumstances which may have constituted Cause have been cured in accordance
with the provisions of paragraph 11(c)(i)(a). No termination shall be final
until the Board has reached a determination regarding “Cause” following such
appearance.
(iii) Upon
termination of this Agreement for Cause, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter, except for
the
obligation to pay the Executive any earned but unpaid base salary and vacation
pay, 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.
(d) Good
Reason.
(i) At
any
time during the Term, subject to the conditions set forth in paragraph
11(d)(iii) below, the Executive may terminate this Agreement and the Executive’s
employment with the Company for Good Reason. For purposes of this Agreement,
for
“Good Reason” shall mean the occurrence, without the Executive’s consent, of
(i) a
material diminishment of the Executive’s job assignment, duties,
responsibilities or reporting relationships which is inconsistent with his
initial position hereunder or any later agreed upon amendment of that
position; (ii) a
reduction in the Executive’s base compensation or total compensation package,
including
benefit plans and programs; (iii) a
breach
of
the
terms
of this Agreement by the
Company, or any permitted successor or assignee; or (iv) a Change of
Control (as defined herein).
(ii) For
purposes of this Agreement, “Change of Control” shall
mean the occurrence of any one or more of the following: (i) the accumulation,
whether
directly, indirectly, beneficially or of record,
by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended) of Fifty Percent (50%)
or
more of the shares of the outstanding Common Stock of the Company, (ii) a
merger or consolidation of the Company in which the Company does not survive
as
an independent public company or upon the consummation of which the holders
of
the Company’s outstanding equity securities prior to such merger or
consolidation own less than Fifty Percent (50%) of the outstanding equity
securities of the Company after such merger or consolidation, (iii) a sale
of all or substantially all of the assets of the Company, (iv) a voluntary
or involuntary proceeding against the Company under any applicable federal,
state or foreign bankruptcy or similar law, (v) the appointment of a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for the Company, or (vi) the ordering of the winding up,
dissolution or liquidation of the affairs of the Company; provided,
however,
that
the following acquisitions shall not constitute a Change of Control for the
purposes of this Agreement: (A) any acquisitions of Common Stock or securities
convertible into Common Stock directly from the Company, or (B) any acquisition
of Common Stock or securities convertible into Common Stock by any employee
benefit plan (or related trust) sponsored by or maintained by the
Company.
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(iii) The
Executive shall be entitled to terminate this Agreement and his employment
with
the Company for Good Reason provided that he has delivered written notice to
the
Company of his intention to terminate this Agreement and his employment with
the
Company for Good Reason within 5 business days after either (a) the date on
which the Executive receives written notice from the Company of the occurrence
of any event included within the meaning of Good Reason under paragraph
11(d)(ii) or (b) the date on which the Executive obtains actual knowledge of
the
occurrence of any event included within the meaning of Good Reason under
paragraph 11(d)(ii). Such notice, if given by the Executive pursuant to
subparagraph 11(d)(iii)(b) hereof, shall specify in reasonable detail the
circumstances claimed to provide the basis for such termination for Good Reason.
Notwithstanding the foregoing, the Executive shall not be entitled to terminate
this Agreement and his employment with the Company if the Company has eliminated
the circumstances constituting “Good Reason” within 30 days of its receipt from
the Executive of the written notice described in this paragraph 11(d)(iii).
(iv) 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 and vacation pay, 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;
(b)
a
severance payment in an amount equal to 2 years of the Executive’s base salary;
(c) for 2 years, continuation on behalf of the Executive and the Executive’s
dependents and beneficiaries of life insurance, disability, medical, dental,
hospitalization and long-term care benefits, provided, however, that the
Company’s obligation hereunder with respect to the foregoing benefits shall be
limited to the extent that the Executive obtains any such benefits pursuant
to a
subsequent employer’s benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive hereunder
as
long as the aggregate coverages and benefits of the combined benefits plans
are
no less favorable to the Executive than the coverages and benefits required
to
be provided hereunder; and (d) to the extent the Executive holds any unvested
portion of the option granted to the Executive pursuant to paragraph 9(a),
the
portion of the option so granted that would otherwise vest following the date
of
termination of the Executive’s employment with the Company will as of the date
of termination become fully vested. The Company shall deduct, from all payments
made hereunder, all applicable taxes, including income tax, FICA and FUTA,
and
other appropriate deductions.
(v) At
the
Executive’s option, the amount described in paragraph 11(d)(iv)(b) shall be paid
to the Executive in the same manner as they would have been paid, in accordance
with the provisions of paragraph 6(a), had the Executive remained employed
by
the Company. To exercise such option, the Executive shall deliver to the Company
written notice electing such option within 10 business days after the
Executive’s last day of employment with the Company. If the Executive fails to
deliver such written notice within 10 business days after his last date of
employment with the Company, the Executive shall be entitled to receive the
amounts described in paragraphs 11(d)(iv)(b) in a lump sum within 45 days of
his
last date of employment with the Company.
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(e) Without
Cause.
(i) At
any
time during the Term, the Parties shall be entitled to terminate this Agreement
and the Executive’s employment with the Company without cause, by providing
prior written notice of at least 30 days to the other party. Upon the Company’s
termination of this Agreement and the Executive’s employment with the Company
pursuant to this paragraph 11(e)(i), the Company shall have no further
obligations to the Executive or his heirs, administrators or executors with
respect to compensation and benefits thereafter, except for the obligation
to
pay or provide to the Executive (a) any earned but unpaid base salary and
vacation pay, 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,
(b) a
severance payment in an amount equal to two years of the Executive’s base salary
plus any bonus earned or accrued through the date of such termination, (c)
for 2
years, continuation on behalf of the Executive and the Executive’s dependents
and beneficiaries of life insurance, disability, medical, dental,
hospitalization and long-term care benefits, provided, however, that the
Company’s obligation hereunder with respect to the foregoing benefits shall be
limited to the extent that the Executive obtains any such benefits pursuant
to a
subsequent employer’s benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive hereunder
as
long as the aggregate coverages and benefits of the combined benefits plans
are
no less favorable to the Executive than the coverages and benefits required
to
be provided hereunder and (d) to the extent the Executive holds any unvested
portion of the option granted to the Executive pursuant to paragraph 9(a),
the
portion of the option so granted that would otherwise vest following the date
of
termination of the Executive’s employment with the Company will as of the date
of termination become fully vested. Upon the Executive’s termination of this
Agreement and the Executive’s employment with the Company pursuant to this
paragraph 11(e)(i), the Company shall have no further obligations to the
Executive or his heirs, administrators or executors with respect to compensation
and benefits thereafter, except for the obligation to pay to the Executive
(a)
any earned but unpaid base salary and vacation pay, 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.
(ii) At
the
Executive’s option, the amounts described in paragraph 11(e)(i) shall be paid to
the Executive in the same manner as they would have been paid, in accordance
with the provisions of paragraph 6(a), had the Executive remained employed
by
the Company. To exercise such option, the Executive shall deliver to the Company
written notice electing such option within 10 business days after his last
day
of employment with the Company. If the Executive fails to deliver such written
notice within 10 business days after his last day of employment with the
Company, the Executive shall be entitled to receive the amounts described in
paragraph 11(e)(i) in a lump sum within 45 days of his last day of employment
with the Company.
12. Confidential
Information/Ownership and Assignment of Inventions. The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, (i) he has been exposed, and will be exposed,
to the trade secrets, business and/or financial secrets and confidential and
proprietary information of the Company, its affiliates and/or its clients or
customers (“Confidential Information”) and (ii) he and/or other employees of the
Company working with him, without him or under his supervision, may create,
conceive of, make, prepare, work on or contribute to the creation of, or may
be
asked by the Company or its affiliates to create, conceive of, make, prepare,
work on or contribute to the creation of, without limitation, lists, business
diaries, business address books (except
for business addresses and business address books not related to the Company),
documentation, ideas, concepts, inventions, designs, works of authorship,
computer programs, audio/visual works, developments, proposals, works for hire
or other materials. Therefore, the Executive agrees to execute and abide by
the
terms of the Assignment of Invention and Non-Disclosure Agreement attached
hereto as Exhibit A. Additionally,
the Executive affirms that he does not possess and will not rely upon the
protected trade secrets or confidential or proprietary information of his prior
employer(s) in providing services to the Company.
-6-
13. Non-Competition
and Non-Solicitation.
The
Executive agrees and acknowledges that the Confidential Information that the
Executive has already received and will receive are valuable to the Company,
its
affiliates and/or its clients or customers, and
that
its protection and maintenance constitutes a legitimate business interest of
Company, its
affiliates and/or its clients or customers
to be
protected by non-competition restrictions. Therefore, the Executive agrees
to
execute and abide by the terms of the Non-solicitation Agreement attached hereto
as Exhibit B and the Executive agrees and acknowledges that the non-competition
restrictions set forth therein are reasonable and necessary and do not impose
undue hardship or burdens on the Executive.
14. Xxxxxxx
Xxxxxxx Policy/Public Disclosure.
As a
result of the potential liability for both the Company and the Executive for
“xxxxxxx xxxxxxx” under the securities laws, the Board has adopted an Xxxxxxx
Xxxxxxx and Public Disclosure Policy attached hereto as Exhibit C. The Executive
agrees to bound by and comply with such policy and to evidence such agreement
by
executing and delivering to the Company the Xxxxxxx Xxxxxxx and Disclosure
Policy Acknowledgement contained in Exhibit C.
15. Indemnification.
The
Company hereby covenants and agrees to indemnify the Executive to the fullest
extent permitted by law and the Company’s charter documents and to hold the
Executive harmless fully, completely, and absolutely against and in any respects
to any and all actions, suits, proceedings, claims, demands, judgments, costs,
expenses (including attorneys’ fees), losses, and damages resulting from the
Executive’s good faith performance of his job duties pursuant to this Agreement.
The Company also hereby agrees to use its best efforts to purchase, maintain
and
cover the Executive under a directors’ and officers’ liability insurance policy.
16. Dispute
Resolution.
The
Parties agree that any dispute or claim, whether based on contract, tort,
discrimination, retaliation, or otherwise, relating to, arising from, or
connected in any manner with this Agreement or the Executive’s employment with
the Company shall be resolved exclusively through final and binding arbitration
under the auspices of the American Arbitration Association (“AAA”). The
arbitration shall be held in the State of New York. The arbitration shall
proceed in accordance with the National Rules for the Resolution of Employment
Disputes of the AAA in effect at the time the claim or dispute arose, unless
other rules are agreed upon by the parties. The arbitration shall be conducted
by one arbitrator who is a member of the AAA, unless the parties mutually agree
otherwise. The arbitrators shall have jurisdiction to determine any claim,
including the arbitrability of any claim, submitted to them. The arbitrators
may
grant any relief authorized by law for any properly established claim. The
interpretation and enforceability of this paragraph of this Agreement shall
be
governed and construed in accordance with the United States Federal Arbitration
Act, 9. U.S.C. §1, et
seq.
More
specifically, the parties agree to submit to binding arbitration any claims
for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, and any other federal, state, or local law,
regulation, or ordinance, and any common law claims, claims for breach of
contract, or claims for declaratory relief. The Executive acknowledges that
the
purpose and effect of this paragraph is solely to elect private arbitration
in
lieu of any judicial proceeding he might otherwise have available to him in
the
event of an employment-related dispute between him and the Company. Therefore,
the Executive hereby waives his right to have any such employment-related
dispute heard by a court or jury, as the case may be, and agrees that his
exclusive procedure to redress any employment-related claims will be
arbitration.
-7-
Notwithstanding
this agreement to arbitrate, the Parties agree that any violation of paragraphs
12, 13 or 14 of this Agreement and the Assignment of Invention and
Non-Disclosure Agreement attached hereto as Exhibit A, the Non-solicitation
Agreement attached hereto as Exhibit B and the Xxxxxxx Xxxxxxx and Public
Disclosure Policy attached hereto as Exhibit C may be restrained by the issuance
of an injunction or other equitable relief by a court of competent jurisdiction,
in addition to other remedies provided by law or this Agreement.
In
the
event of any legal action or other proceeding arising out of or related to
or
for the enforcement of this Agreement, the prevailing party shall be entitled
to
recover its reasonable attorneys’ fees, costs and expenses incurred in that
action or proceeding, including attorneys’ fees, costs and expenses incurred on
appeal, if any, in addition to any other relief to which such party may be
entitled, from the non-prevailing party.
The
Company shall pay all legal fees and related expenses incurred by the Executive
as a result of (a) the Executive’s termination of employment, or (b) the
Executive seeking to obtain or enforce any right or benefit provided by this
Agreement or by any other plan or arrangement maintained by the Company under
which the Executive is or may be entitled to receive benefits; provided,
however, that the circumstances set forth in clauses (a) and (b) occurred on
or
after a Change in Control, and provided, however, that the Executive prevails
in
any such dispute or proceeding.
17. Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement or contemplated hereby shall be in writing and shall be deemed
to
have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service or when mailed United States Certified
or
registered mail, return receipt requested, postage prepaid, and addressed as
follows or at such other address provided in writing by the Executive to the
Company:
If
to the
Company:
Foothills
Resources, Inc.
X.X.
Xxx
0000
Xxxxxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxxx X. Tower, Chief Executive Officer
Facsimile:
(000) 000-0000
with
a
copy to:
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
-8-
and
with
a copy to:
W.
Xxxx
Xxxxxx
00000
Xxxxxx Xxx Xxxxx,
Xxxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
If
to the
Executive:
Xxxx
X.
Xxxxx
00000
Xxxxxxxx Xx.
Xxxxxxxxxxx,
Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
18. Miscellaneous.
(a) Telephones,
stationery, postage, e-mail, the internet and other resources made available
to
the Executive by the Company, are solely for the furtherance of the Company’s
business.
(b) All
issues and disputes concerning, relating to or arising out of this Agreement
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed by
and
construed in accordance with the internal laws of the State of New York, without
giving effect to that State’s principles of conflicts of law.
(c) The
Parties agree that any provision of this Agreement deemed unenforceable or
invalid may be reformed to permit enforcement of the objectionable provision
to
the fullest permissible extent. Any provision of this Agreement deemed
unenforceable after modification shall be deemed stricken from this Agreement,
with the remainder of the Agreement being given its full force and
effect.
(d) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of paragraphs 12, 13 and 14 of this Agreement and
the
Assignment of Invention and Non-Disclosure Agreement attached hereto as Exhibit
A, the Non-solicitation Agreement attached hereto as Exhibit B and the Xxxxxxx
Xxxxxxx and Public Disclosure Policy attached hereto as Exhibit C,
as
money damages for a breach thereof would be incapable of precise estimation,
uncertain, and an insufficient remedy for an actual or threatened breach of
paragraphs 12, 13 and 14 of this Agreement and
the
Assignment of Invention and Non-Disclosure Agreement attached hereto as Exhibit
A, the Non-solicitation Agreement attached hereto as Exhibit B and the Xxxxxxx
Xxxxxxx and Public Disclosure Policy attached hereto as Exhibit C.
The
Parties agree that any pursuit of equitable relief in respect of paragraphs
12,
13 and 14 of this Agreement and
the
Assignment of Invention and Non-Disclosure Agreement attached hereto as Exhibit
A, the Non-solicitation Agreement attached hereto as Exhibit B and the Xxxxxxx
Xxxxxxx and Public Disclosure Policy attached hereto as Exhibit C shall
have no effect whatsoever regarding the continued viability and enforceability
of paragraph 16 of this Agreement.
(e) Any
waiver or inaction by the Company or the Executive for any breach of this
Agreement shall not be deemed a waiver of any subsequent breach of this
Agreement.
(f) The
Parties independently have made all inquiries regarding the qualifications
and
business affairs of the other which either party deems necessary. The Executive
affirms that he fully understands this Agreement’s meaning and legally binding
effect. Each party has participated fully and equally in the negotiation and
drafting of this Agreement.
(g) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity. This
Agreement shall be enforceable by the
Company
and its
parents, affiliates, successors and assigns, and the Company shall require
any
successors and assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required
to
perform it if no such succession or assignment had taken place.
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(h) This
instrument constitutes the entire Agreement between the Parties regarding its
subject matter. When signed by each of the Parties, this Agreement supersedes
and nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may be amended only by a writing signed by the
Parties.
(i) This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The Parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES. IT
IS UNDERSTOOD, AGREED, AND ACCEPTED BY SUCH PERSONS WHOSE NAMES APPEAR ON THE
SIGNATURE PAGE HERETO.
-10-
IN WITNESS WHEREOF, the Executive and the Company have caused this Employment Agreement to be executed as of the date first above written.
|
Executive
|
Foothills
Resources, Inc.
|
|
|
/s/
Xxxx X. Xxxxx
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By:
/s/ Xxxxxx X. Tower
|
|
|
Xxxx
X. Xxxxx
|
Name:
Xxxxxx X. Tower
|
|
|
Title: Chief
Executive Officer
|
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