ADVENTURE ENERGY, INC. EMPLOYMENT AGREEMENT
Exhibit 10.1
EMPLOYMENT AGREEMENT dated as of April
1, 2009 (this "Agreement"), by and between XXXXX XXXXXXXX (the "Executive"), and
ADVENTURE ENERGY, INC., a Florida Corporation with its principal offices located
at 00 0xx Xxxxxx
X., Xxxxx 000, Xx. Xxxxxxxxxx, XX 00000 (the "Company").
(a) "Affiliate"
of any Person means any stockholder or person or entity controlling, controlled
by under common control with such Person, or any director, officer or key
executive of such Person or any of their respective relatives. For purposes of
this definition, "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings that
correspond to the foregoing.
(b) "Cause"
shall mean (i) the Company being subjected to any criminal liability under any
applicable law as a result of any action or inaction on the part of the
Executive, which the Executive did not, at the time, reasonably believe to be in
the best interests of the Company; (ii) the conviction or admission of the
Executive of, or plea by the Executive of nolo contendre to, a felony or crime
which the Board of Directors concludes is likely to have a material and adverse
effect on the reputation of the Company; (iii) if the Executive is chronically
addicted to any narcotic or other illegal or controlled substance or repeatedly
abuses any alcoholic product or any prescription stimulants or depressant, as
determined by a physician designated by the Company, which in the reasonable
opinion of the Board of Directors of the Company materially interferes with
Executive's performance of his duties and obligations hereunder; (iv) the
Executive committing fraud, or stealing or misappropriating any asset or
property of the Company, including, without limitation, any theft or
embezzlement; or (v) a breach of a material term or provision of this Agreement
by the Executive which is not cured by the Executive within ten (10) business
days after written notice of such breach from the Company is received by the
Executive.
(c) "Change
of Control" shall mean the occurrence of any of the following: (i) a Person or
group of Persons, other than any current member of the Board of Directors,
obtains beneficial ownership of at least thirty percent (40%) of the outstanding
capital stock of the Company; or (ii) a change in the membership of more than
seventy percent (70%) of the current Board of Directors in any twelve (12) month
period.
(d) "Common
Stock" shall mean the common stock, par value $0.001 per share, of the Company,
and any other class of common stock of the Company created after the date of
this Agreement in accordance with the Company's Certificate of Incorporation and
applicable law.
(e) "Competing
Business" shall mean any business, enterprise or other Person that as one of its
businesses or activities, is engaged in the business of manufacturing, selling,
marketing, licensing or distributing wearable computers or the solutions
associated therewith that are provided by the Company.
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(f) "Confidential
and Proprietary Information" shall mean any and all (i) confidential or
proprietary information or material not in the public domain about or relating
to the business, operations, assets or financial condition of the Company or any
Affiliate of the Company or any of the Company's or any such Affiliate's trade
secrets, including, without limitation, research and development plans or
projects; data and reports; computer materials such as programs, instructions
and printouts; formulas; product testing information; business improvements,
processes, marketing and selling strategies; strategic business plans (whether
pursued or not); budgets; unpublished financial statements; licenses; pricing,
pricing strategy and cost data; information regarding the skills and
compensation of executives; the identities of clients and potential clients;
intellectual property strategies and any work on any patents, trademarks and
tradenames, prior to any filing or the use thereof in commerce; pricing, timing,
sales terms, service plans, methods, practices, strategies, forecasts, know-how
and other marketing techniques; and (ii) information, documentation or material
not in the public domain by virtue of any action by or on the part of the
Executive, the knowledge of which gives or may give the Company or any Affiliate
of the Company an advantage over any Person not possessing such information. For
purposes hereof, the term Confidential and Proprietary Information shall not
include any information or material (i) that is known to the general public
other than due to a breach of this Agreement by the Executive or (ii) was
disclosed to the Executive by a Person who the Executive did not reasonably
believe was bound to a confidentiality or similar agreement with the
Company.
(g) "CPI"
shall have the meaning given to that term in Section 4(a) hereof.
(h) "Discretionary
Bonus" shall have the meaning given to that term in Section 4(c)
hereof.
(i) "Employment
Term" shall have the meaning given to that term in Section 2
hereof.
(j) "Good
Reason" shall mean a substantial change to or reduction in the duties or
responsibilities of the Executive such that the responsibilities of the
Executive are no longer commensurate with the Executive's office with the
Company as set forth herein, or the occurrence of Change of Control or a change
in the Executive's office from that President, Treasurer, and Secretary of the
Company which is not concurred in by the Executive within one (1) month of its
occurrence or the breach of a material term or provision of this Agreement by
the Company which is not cured by the Company within ten (10) business days
after written notice of such breach from the Executive is received by the
Company. The failure to renew this Agreement after the expiration of the
Employment Term, shall not constitute Good Reason.
(k) "Incapacity"
shall mean any illness or mental or physical incapacity or disability which
prevents the Executive from performing his duties or obligations hereunder for a
continuous period of one hundred twenty (120) consecutive days or for shorter
periods aggregating one hundred eighty (180) days within any consecutive twelve
(12) month period.
(l) "Inventions"
shall mean inventions, discoveries, concepts and ideas, whether patentable or
not, patents, patent applications, copyrights and other intellectual property,
including, without limitation, processes, methods, formulae and techniques, and
improvements thereof or know-how related thereto, concerning any business
activity of the Company or any Affiliate of the Company, with which the
Executive becomes, directly or indirectly, involved as a result in whole or in
part, directly or indirectly, of the Executive's employment by the Company, or
any Affiliate of the Company, and whether conceived of solely by the Executive
or jointly with the efforts of others.
(m) "Performance
Bonus" shall have the meaning given to that term in Section 4(d)
hereof.
(n) "Person"
shall mean, without limitation, any natural person, corporation, partnership,
limited liability company, joint stock company, joint venture association, trust
or other similar entity or firm.
(o) "Salary"
shall have the meaning given to that term in Section 4(a) hereof.
(p) "Without
Cause" shall mean the termination of the Executive's employment hereunder by the
Company, other than termination by the Company due to the Executive's death or
Incapacity or based upon Cause.
(b) The
Executive shall devote substantially all of his business time, effort, skill and
attention exclusively to the business, operations and affairs of the Company and
to the furtherance of the interests, business and prospects of the Company. The
Executive shall perform the Executive's duties and obligations hereunder
diligently, competently, faithfully and to the best of his ability. The
Executive may serve on the board of directors or other governing boards of other
corporations or businesses or industry organizations; provided that such service
does not materially interfere with the Executive's performance of his duties and
obligations hereunder.
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(b) In
consideration of the Executive's execution and delivery of this Agreement, the
Company shall issue to the Executive options to purchase common stock of the
Company as set forth below. All of the options set forth in this Section 4(b)
shall fully vest upon the occurrence of a Change in Control or upon a
termination of this Agreement by the Executive for Good Reason. The
Company shall use its best efforts to have all shares underlying these options
to be freely trading shares upon exercise of such options and covenants that
failure to do so, or failure to do so within a timely period following execution
of this Agreement, shall constitute “Good Reason” for purposes of this
agreement:
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Number of
Shares
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Strike
Price
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Vesting
Date
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||||
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500,000
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$0.25
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Execution
of this Agreement
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||||
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250,000
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$0.50
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May
1, 2010
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||||
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250,000
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$0.75
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May
1, 2011
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||||
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250,000
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$1.00
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May
1,
2012
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(c) The
Executive shall be entitled to additional options or bonuses in amounts and
under terms as determined by the Board of Directors, or the Compensation
committee if the Company so forms one.
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(d)
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Should
there be a Change of Control of the Company or any other transaction in
which the Company is not the surviving entity during the Employment Term,
then as part of that transaction, the Company shall try in its best
efforts to have the surviving entity modify the Agreement in an equitable
manner to provide the Executive the same type of benefits that he is
entitled to earn pursuant to Section 4(c) of this
Agreement.
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(e)
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Upon
the hiring of a Secretary and/or Treasurer/Chief Financial Officer, either
jointly or separately, by the Company, these titles shall be removed from
the role of the Executive but the Executive’s compensation package shall
not be altered.
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(f)
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In
consideration of the Executive's execution and delivery of this Agreement,
the Company has agreed to pay the executive a sign on bonus of $50,000. If
the Company is not able to pay as a lump sum bonus payment upon execution
of this agreement, the bonus shall be paid over 5 months
($10,000/month).
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(g)
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In
consideration of the Executive's execution and delivery of this Agreement,
the Company has agreed to issue the Executive two (2) million shares of
the Company’s common stock.
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(b) During
each contract year of the Employment Term, the Executive shall be entitled to
four (4) weeks of vacation. The Executive shall take vacation at such time or
times as the Executive desires, subject to the concurrence of the Company based
upon the then-current business needs and activities of the Company. Vacation
shall accrue if unused during the term of employment and shall be payable upon
request of the Executive within 30 days after the end of the year in which the
vacation was accrued and unused.
(c) During
the Employment Term, the Executive shall be eligible to participate in the
profit sharing and other benefit plans that the Company from time to time makes
available to the senior executives of the Company as a group, subject to the
terms, provisions and conditions of such plans, including, without limitation,
any vesting periods and eligibility criteria.
(d) During
the Employment Term, the Company shall pay to the Executive a monthly stipend of
$1,000 to cover the Executive’s automobile payment. The Company shall also pay
for all fuel and repair related costs for any automobile the Executive utilizes
for the commute to and from work or any work related events/trips.
(b) In
the event of the Executive's Incapacity, the Company may, in its sole
discretion, terminate the Executive's employment hereunder upon written notice
to the Executive; provided, however, that the Executive or the Executive's legal
representative, as the case may be, shall be entitled to receive, and the
Company shall pay, (i) any accrued and unpaid Salary for a one (1) year period
from the date of termination, less any amounts received by the Executive under
any disability insurance policy maintained by the Company; and (ii) any
Performance Bonus that would be payable for the one (1) year period after the
Executive's employment is terminated due to Incapacity and reimbursement of
business expenses which are properly owing to the Executive pursuant to Section
6 hereof, through the date of termination;
(c) The
Company shall have the right to terminate the Executive's employment under this
Agreement at any time for Cause upon written notice to the Executive. In the
event the Executive's employment hereunder is terminated by the Company for
Cause, the Company shall only be obligated to pay accrued and unpaid Salary
through the date of termination and the Company shall pay any accrued and
unreimbursed business expenses which are properly owing to the Executive
pursuant to Section 6 hereof through the date of termination.
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(d) The
Company shall have the right to terminate the Executive's employment hereunder
Without Cause at any time upon thirty (30) days' prior written notice to the
Executive. If the Company terminates the Executive's employment hereunder
Without Cause, the Company shall (i) continue to pay Salary to the Executive
provided for hereunder for a period equal to one (1) year from the date of
termination and (ii) pay any unreimbursed business expenses which are properly
owing to the Executive pursuant to Section 6 hereof through the date of
termination. In addition, should the Executive's employment hereunder be
terminated Without Cause, the Company shall pay to the Executive the Performance
Bonus, if any, for the entire contract year in which the termination of the
Executive's employment with the Company hereunder occurs.. The Executive shall
not be under any obligation to mitigate the Company's obligation pursuant to
this Section 7(d) by securing other employment or otherwise.
(e) The
Executive shall have the right to terminate his employment with the Company
hereunder for Good Reason, upon not less than thirty (30) days prior written
notice to the Company. Should the Executive terminate his employment hereunder
for Good Reason, the Company shall be obligated to make the payments to the
Executive provided for in Section 7(d) hereof upon the termination of the
Executive's employment by the Company Without Cause.
(f) The
failure of the Company to continue the employment of the Executive upon
expiration of the entire three (3) year Employment Term shall not be considered
a termination of employment for purposes of this Agreement. The Company's
obligations with respect to the Performance Bonus for the last year of the
Employment Term, if any, shall survive the expiration of this
Agreement.
(a) The
Executive hereby covenants and agrees that, during the Employment Term and
thereafter, unless otherwise authorized by the Company in writing, the Executive
shall not, directly or indirectly, under any circumstance: (i) disclose to any
other Person (other than in the regular course of business of the Company) any
Confidential and Proprietary Information, other than pursuant to applicable law,
regulation or subpoena or with the prior written consent of the Company; (ii)
act or fail to act so as to impair the confidential or proprietary nature of any
Confidential and Proprietary Information; (iii) use any Confidential and
Proprietary Information related to the Company's business other than for the
sole and exclusive benefit of the Company; or (iv) offer or agree to, or cause
or assist in the inception or continuation of, any such disclosure, impairment
or use of any Confidential and Proprietary Information. Following the Employment
Term, the Executive shall return all documents, records and other items
containing any Confidential and Proprietary Information to the Company
(regardless of the medium in which maintained or stored), without retaining any
copies, notes or excerpts thereof, or at the request of the Company, shall
destroy such documents, records and items (any such destruction to be certified
by the Executive to the Company in writing).
(b) The
Executive covenants and agrees that, while the Executive is employed by the
Company and for (6) six months after the Executive ceases to be
employed by the Company, if the Executive (i) voluntarily terminates his
employment with the Company for Good Reason or (ii) is terminated by the Company
for Cause, the Executive shall not, directly or indirectly, manage, operate or
control, or participate in the ownership, management, operation or control of,
or otherwise become interested in (whether as an owner, partner, lender,
consultant, Executive, agent, supplier, distributor or otherwise) any Competing
Business whose operations are in the state of Florida or, directly or
indirectly, induce or influence any customer or other Person that has a business
relationship with the Company, or any Affiliate of the Company, to discontinue
or reduce the extent of such relationship; provided that in the case of a
termination by the Executive pursuant to clause (i) the Company at all times
continues to pay the amounts owing to the Executive pursuant to Section 7(b)
hereof. For purposes of this Agreement, the Executive shall be deemed to be
directly or indirectly interested in a business if he is engaged or interested
in that business as a director, officer, Executive, agent, partner, individual
proprietor, consultant, advisor or otherwise, but not if the Executive's
interest is limited solely to the ownership of not more than 5% of the
securities of any class of equity securities of a corporation or other Person
whose shares are listed or admitted to trade on a national securities exchange
or are quoted on NASDAQ or a similar means if NASDAQ is no longer providing such
information.
(c) While
the Executive is employed by the Company and for (6) six months after the
Executive ceases to be employed by the Company, the Executive shall not,
directly or indirectly, solicit to employ for himself or others any employee of
the Company or any Affiliate of the Company who was an employee of the Company
or any Affiliate of the Company as of the date of the termination of the
Executive's employment with the Company, or to solicit any such employee to
leave such employee's employment or join the employ of another, then or at a
later time; provided that the foregoing shall not apply to any family member of
the Executive who is employed by the Company or any such Affiliate or the
Executive's administrative assistant.
(d) The
parties agree that nothing in this Agreement shall be construed to limit or
negate the common law of torts, confidentiality, trade secrets, fiduciary duty
and obligations where such laws provide the Company with any broader, further or
other remedy or protection than those provided herein.
(e) Because
the breach of any of the provisions of this Section 9 may result in immediate
and irreparable injury to the Company for which the Company may not have an
adequate remedy at law, the Company shall be entitled, in addition to all other
rights and remedies, to a decree of specific performance of the restrictive
covenants contained in this Section 9 and to a temporary and permanent
injunction enjoining such breach, without posting a bond or furnishing similar
security.
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If to the Executive:
Mr. Xxxxx Xxxxxxxx
00 0xx Xxxxxx
X.
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
If to the Company:
00 0xx Xxxxxx
X.
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
or to
such other address as a party may have furnished to the other parties in writing
in accordance herewith. Any notice, consent, direction, approval, instruction,
request or other communication given in accordance with this Section 14 shall be
effective after it is received by the intended recipient.
Section 15. Governing Law;
Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THAT STATE, WITHOUT REGARD OR REFERENCE TO ITS PRINCIPLES OF
CONFLICTS OF LAWS. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED WITHOUT
REGARD TO ANY PRESUMPTION AGAINST THE PARTY CAUSING THIS AGREEMENT TO BE
DRAFTED.
(Remainder
of page intentionally blank)
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/s/
Xxxxx
Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title
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| Adventure Energy, Inc. | ||||
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/s/Xxxxx
Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
President
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