EMPLOYMENT AGREEMENT
Exhibit 10.34
This Employment Agreement (“Agreement”) is entered into this 1st day of December 2011,
by and between Xxxxxxxxx Energy, Inc. (“Employer”), 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000 and Xxxxx X. Xxxxxx (“Xxxxxx”), 000 Xxxxxxxxx Xxxxxx Xx. Xxxxxxxx, Xx. 00000.
In consideration of the mutual covenants and promises contained herein, and other good and
valuable consideration, the adequacy and receipt of which are hereby acknowledged, Employer and
Xxxxxx hereby agree as follows.
1. Duties and Position. Xxxxxx shall be employed as the Vice President of
Information Technology of Employer and shall report to Employer’s President. Xxxxxx shall have such
duties as are customarily performed by persons serving in similar capacities in other businesses
similar to Employer’s business. Xxxxxx shall devote his full working time, attention, and best
efforts to performing all reasonably assigned responsibilities. Xxxxxx shall not, while employed by
Employer, engage in any other business or employment without the prior written approval of
Employer’s President or Board of Directors (the “Board”). Notwithstanding the foregoing, nothing
herein is intended or shall be construed as preventing Xxxxxx from engaging in such civic,
charitable, or political activities as do not interfere with the performance of Xxxxxx’x duties
hereunder.
2. Term of Employment.
2.1 On-Going Term. Xxxxxx’x employment under this agreement shall be for one year
commencing on the date set forth above. However, the term of Xxxxxx’x employment under this
Agreement shall automatically extend for additional one (1) year terms until such time, if any, as
Employer or Xxxxxx give written notice to the other that such automatic extension shall cease, the
same of which shall be given with no less than sixty (60) days notice prior to the expiration of
the then current term.
2.2 Exemption. Notwithstanding the foregoing, Xxxxxx’x employment
hereunder may be earlier terminated in accordance with the terms of Section 6 of this Agreement.
3. Compensation.
3.1 Base Salary Compensation. Employer shall pay Xxxxxx an initial annual base
salary of One Hundred Eighty Thousand Dollars ($180,000.00) (the “Salary Compensation”), which
Employer’s President or Board may elect to adjust, in their sole discretion and without any
requirement that they do so, on each anniversary of the date first written above. Xxxxxx’x Salary
Compensation shall be payable in equal periodic installments according to Employer’s customary
payroll practices, but no less frequently than bi-monthly. During the term of his employment as
defined herein, Xxxxxx shall also be entitled to an annual
target bonus of 35% of the then annual salary. Such bonus shall be based upon the
achievement of performance criteria established by the Company and to be awarded at the discretion
of the Company’s President or Board of Directors.
3.2 Withholding. All payments under this Section 3 shall be less such amounts as are
required to be withheld by law or as otherwise authorized by Xxxxxx in writing.
4. Benefits.
Xxxxxx shall be eligible to participate in such benefits as may be authorized and
adopted from time to time by the Board for Employer employees including, without limitation, any
pension plan, profit-sharing plan, or other qualified retirement plan and any group insurance
plan. Employer shall reimburse Xxxxxx for normal and reasonable business expenses incurred in
performance of his responsibilities as determined in the sole discretion of Employer. During each
calendar year Xxxxxx shall be entitled to the vacation as Employer employees would be entitled to
under Employer’s standard vacation policy. Employer may furnish such other benefits to Xxxxxx as
it shall determine, from time to time, within its discretion, to be in the best interests of
Employer and Xxxxxx. Nothing herein is intended or shall be construed as precluding Employer from
modifying or discontinuing any benefit plan, policy or program.
5. Termination of Employment. Xxxxxx’x employment with Employer under this
Agreement shall terminate:
5.1 Cause. For “Cause” immediately upon notice from Employer to Xxxxxx. As used
herein, “Cause” shall mean:
X. Xxxxxx’x failure substantially to perform his duties hereunder in a manner
satisfactory to Employer, as determined in good faith by Employer, provided that Employer
has given Xxxxxx written notice of the action(s) or omission(s) which are claimed to
constitute such failure and Xxxxxx does not fully remedy such failure within ten (10)
calendar days after receipt of the written notice;
X. Xxxxxx has engaged in gross misconduct, dishonest, disloyal, illegal or unethical
conduct, or any other conduct which has or could reasonably have a detrimental impact on
Employer or its reputation, all facts to be determined in good faith by Employer;
X. Xxxxxx has acted in a dishonest or disloyal manner, or breached any fiduciary duty
to Employer, that, in either case, results or was intended to result in personal profit to
Xxxxxx at the expense of Employer or any of its customers;
X. Xxxxxx has been convicted of, pleads guilty, or enters a nolo plea, Xxxxxx plea or
plea or no contest to any felony.
X. Xxxxxx has one or more physical or mental impairments which have substantially
impaired his ability to perform the essential functions of his job under
2
this Agreement. Any dispute as to whether Xxxxxx has been so impaired shall be
determined by Employer in consultation with a physician appointed by Employer;
X. Xxxxxx’x death;
G. Any breach by Xxxxxx of his obligations under Sections 7-11 or 13 of this Agreement;
or
X. Xxxxxx resigns under circumstances where a termination for “Cause” was
impending or could have reasonably been foreseen.
5.2 Change in Control. Upon the occurrence of a “Change in Control,” provided
Xxxxxx’x employment with Employer or an acquiring entity is terminated, other than for Cause,
within twelve (12) months of an event constituting a Change in Control. As used herein, “Change
in Control” means:
A. any purchase or other acquisition by an individual or group of person(s) (including
entity(ies)) acting in concert, which results in persons who are shareholders of Employer as
of the date first written above no longer being the legal and beneficial owners of fifty-one
percent (51%) or more of the outstanding equity in Employer, excluding any affiliates,
parents, subsidiaries or related parties of Employer;
B. consummation of a reorganization, merger, recapitalization, consolidation,
or any other transaction, in each case with respect to which persons who were shareholders
of Employer as of the date first written above do not, immediately thereafter, legally and
beneficially own fifty-one percent (51%) or more of the equity in the newly-organized,
merged, recapitalized, consolidated, or other resulting entity; or
C. the sale of all or substantially all of the assets of Employer in a transaction
approved by the Board.
5.3 Without Cause. Upon notice from Employer to Xxxxxx.
5.4 For Good Reason. For “Good Reason” immediately upon written notice from Xxxxxx
to Employer’s Board of Directors or at such later time as such notice may specify, which date shall
not be more than fourteen (14) calendar days after the date on which Employer is deemed to receive
such notice. As used herein, “Good Reason” shall mean a material demotion or reduction, without
Xxxxxx’x consent, in Xxxxxx’x duties.
5.5 Miscellaneous. Employer may pay Xxxxxx in lieu of having him work during all or
part of any notice period under this Section 5. Following any notice of termination, Xxxxxx shall
fully cooperate with Employer in all matters relating to the winding up of his pending work on
behalf of Employer and the orderly transfer of any such pending work to such others as may be
designated by Employer. To that end Employer shall be entitled to such full- time or part-time
services of Xxxxxx as Employer may reasonably require during all or any part of the period from the
time of giving any such notice until the effective date of such termination.
3
6. Separation Package
6.1 Cause. In the event Employer terminates Xxxxxx’x employment for Cause,
Xxxxxx shall not be entitled to any compensation or benefits beyond his termination date.
6.2 Without Cause; For Good Reason. In the event Employer terminates Xxxxxx’x
employment without Cause, or Xxxxxx terminates his employment for Good Reason, Employer shall:
A. continue, for twelve (12) months following such termination, Xxxxxx’x Salary
Compensation at the same rate as such Salary Compensation was set hereunder on the day prior
to Xxxxxx’x termination, plus pay any accrued but unpaid Bonus as of the date of such
termination;
B. pay, for twelve (12) months, the premiums for Xxxxxx and his dependents to continue
group health insurance under such group policy(ies), if any, on the same terms as Employer
provides to Employer employees, provided such payments may cease earlier than twelve (12)
months following termination if:
(i) the applicable group policy does not permit continuation coverage
beyond the maximum time periods established by applicable law for
continuation coverage, in which case payments shall cease when the
applicable maximum period is reached for each covered individual; or
(ii) Xxxxxx and/or any covered dependent(s) advise Employer that
Xxxxxx and/or any covered dependent(s) have obtained other satisfactory
group health coverage in which case coverage shall cease only for such
individuals who have obtained such other group coverage; and
(iii) Employer ceases to provide any group health policy to any
employees.
6.3 Change in Control. In the event of a termination under Section 5.2, Employer
shall provide Xxxxxx with the benefits on the terms described in Section 6.2(B) for twelve (12)
months following termination. In addition, Employer shall, promptly following such termination, pay
Xxxxxx a lump sum payment equal to one (1) times Xxxxxx’x Salary Compensation at the time of his
termination plus one (1) year’s bonus in an amount equal to 1/2 of Xxxxxx’x then existing Salary
Compensation. To the extent Xxxxxx has received any restricted stock or similar inventive awards
from the Company, such awards shall vest in accordance with the terms of the agreement(s) pursuant
to which they were awarded and nothing in this Agreement shall be deemed to modify or amend the
terms of those awards.
6.4 Miscellaneous. Any payments under this Section 6 shall be subject to such
deductions as may be required by law. In addition, in the event Xxxxxx violates any of the terms of
Section 7 or 9-11 of this Agreement, as determined in good faith by Employer, any payments and
benefits otherwise due under this Section 6 shall immediately cease and Xxxxxx shall be required to
repay to Employer any amounts already paid to him under this Section 6. Any payments under this
agreement associated with termination of employment are conditional
4
upon Xxxxxx’x execution of an appropriate release of all future claims against Employer or its
successors.
7. Confidential Information and Relationships. Xxxxxx acknowledges and agrees that,
in the course of his employment with Employer, he has and will continue to come into possession of
technical, financial and/or business information pertaining to Employer which is not published or
readily available to the public, including, but not limited to: financing opportunities; market
research and analyses; customer contact information, specifications, needs and histories; contract
terms; sales figures, reports and projections; marketing concepts and plans; cost and pricing
information; plans for future developments including product and market expansion; and lists of and
other information pertaining to and/or received from customers, suppliers and/or employees
(“Confidential Information”). Xxxxxx also acknowledges and agrees that he has received training
regarding Employer’s business and shall have contact with Employer’s customers and suppliers.
Such contacts will enable Xxxxxx to establish and maintain, at Employer’s expense, favorable
relationships and goodwill with such person/entities, and to influence with whom such
persons/entities do business. Xxxxxx acknowledges that Confidential Information and such
relationships and goodwill are important to and will greatly affect the success of Employer. Xxxxxx
agrees that during employment with Employer and at all times thereafter, regardless of how, when
and why employment may end, he shall hold in the strictest confidence, and shall not disclose,
duplicate and/or use for himself or any other person or entity any Confidential Information without
the prior written consent of Employer, or unless required to do so in order to perform his
responsibilities while employed by Employer. Xxxxxx also agrees that at all times during his
employment with Employer, he shall comply with all of Employer’s policies and procedures relating
to the protection and confidentiality of Confidential Information.
8. No Other Contract. Xxxxxx warrants that he is not bound by any other agreement,
oral or written, which would limit or preclude him from performing any responsibility
reasonably assigned by Employer hereunder. Xxxxxx also agrees not to disclose to Employer or seek
to induce Employer to use, any confidential information, material or trade secret belonging to any
other person or entity.
9. Work Product. Any and all designs, plans, inventions, products, improvements,
programs, specifications, methods, reports, notebooks, databases, notes, analyses, memoranda,
files, correspondence, rolodexes, and other embodiments of work conceived, made, discovered and/or
produced by Xxxxxx during his employment by Employer, either solely or jointly with others: (A) in
the course of performing any duties for Employer, (B) which are based, in whole or part, upon
Confidential Information, the supplies, facilities or business, financial or technical information
of Employer, or (C) which relate to the business of Employer (“Work Product”), shall be the sole
property of Employer or its designee and available to Employer or its designee at all times. Xxxxxx
agrees promptly to disclose and hereby assigns in perpetuity to Employer or its designee, without
royalty or other additional consideration, any and all of his rights to any and all Work Product.
Xxxxxx further agrees that during his employment by Employer and after that employment ends,
regardless of how, when and why, he shall, upon request from the Chairman of the Board or his
designee: (i) execute any and all applications for copyright, patent, trademark or other
intellectual or proprietary right relating to Work Product which may be prepared for his
5
signature, (ii) assign to Employer or its designee any and all such applications, copyrights,
patents, trademarks or other intellectual or proprietary rights relating thereto, and (iii) assist
Employer or its designee, as Employer or its designee deems necessary, in order for Employer or
its designee to apply for, defend or enforce any copyright, patent, trademark or other
intellectual or proprietary right or otherwise protect its interests in Work Product. Employer or
its designee shall pay all expenses of preparing, filing and prosecuting any such application and
of obtaining such copyrights, patents, trademarks or other intellectual or proprietary right.
10. Return of Property. All documents, records, reports, lists, databases, software,
analyses, notes and similar items relating to Employer’s business that Xxxxxx has or may prepare or
receive in the course of his employment are and shall remain Employer’s property. At such times as
Employer may request, and upon separation from employment with Employer, regardless of how, when
and why employment may end, Xxxxxx shall immediately deliver to Employer all Confidential
Information, Work Product and other property of Employer in his possession or control, including,
but not limited to, all records, documents, notes and disks (including copies), containing,
excerpting or relating, in whole or in part, to Confidential Information.
11. Non-Competition. Xxxxxx recognizes that Employer will or has spent substantial
money, time and effort to develop and maintain its relationships with its customers, suppliers and
employees, Employer is paying Xxxxxx to, among other things, develop and preserve business
information, methods of doing business and goodwill, and Employer has agreed to employ or continue
employing Xxxxxx based on his assurances and promises not to divert or misuse Employer’s
Confidential Information, Work Product or goodwill or to put himself in a position following
employment with Employer in which the confidentiality of Confidential Information or Work Product
might somehow be comprised. Therefore, Xxxxxx agrees that while employed by Employer and for twelve
(12) months following termination of that employment, regardless of how, when or why employment may
end, he shall not in any manner or in any capacity, directly or indirectly, for himself or any
other person or entity, actually or attempt:
A to acquire any interest in, be employed by or otherwise associated or affiliated
with any person or entity which offers any product or service which competes or operates in
any coal producing region in which Employer or its affiliates, parent companies, subsidiary
companies or related entities also operate;
B. to solicit, interfere with, divert or take away from Employer any business with or
from any person or entity who/that was a customer or prospective customer of Employer:
(i) in the case of Xxxxxx’x on-going employment,
during all or part of the twelve (12) months immediately preceding any
dispute under this Section 11; and
(ii) in the case of employment having ended, during
all or part of the twelve (12) months preceding termination of
Xxxxxx’x employment.
6
A prospective customer shall mean any person/entity who/that, within the relevant period
described in subsection (B)(i) and (ii) above, was in negotiation with Employer or received
a written proposal from Employer; or
C. to hire or solicit for work any employee of Employer or otherwise to induce any
employee of Employer to leave employment with Employer.
Xxxxxx further agrees that if he has any question regarding the scope of activities restricted by
this Section 11, he shall submit the question in writing to Employer. Xxxxxx also agrees to keep
Employer advised of the identity of any employer (including, without limitation, any contractors
or consulting arrangements), his work location and general responsibilities during the twelve (12)
month post-employment period covered by this Section 11.
12. Securities. Notwithstanding the terms of Sections 1 and 11 above, nothing in this
Agreement is intended or shall be construed as limiting Xxxxxx’x right, as an investor, to hold or
acquire the stock of any business that is registered on a national securities exchange or regularly
traded on a generally recognized over-the-counter market, so long as his interest in any such
business does not exceed five percent (5%) of the ownership of that business.
13. Remedies. The parties agree that the terms of Sections 7 and 9-11 of this
Agreement are intended and shall be construed not as personal services but as terms governing the
ownership and use of property, including Confidential Information and goodwill. Xxxxxx agrees
that the covenants in Sections 7 and 9-11 of this Agreement are reasonable and necessary to protect
the legitimate business interests of Employer, that any violation by Xxxxxx of any such covenant
would result in great damage and irreparable injury to Employer, and that his experience, knowledge
and skills are such that enforcement of Sections 7 and 9-11 by way of injunction would not cause
him unreasonable hardship or prevent him from earning a living. Xxxxxx further acknowledges and
agrees that if he were to violate the terms of Section 11, the unauthorized disclosure or use of
Confidential Information, goodwill and/or Work Product would be inevitable. Xxxxxx, therefore,
agrees that, in the event of actual or threatened violation of any of the covenants in Sections 7
or 9-11 of this Agreement, in addition to whatever other legal and/or equitable remedies allowed by
law, Employer shall be entitled to enforce the terms of this Agreement by way of injunction and/or
specific performance. In addition, Xxxxxx and Employer agree that any dispute or controversy
arising between/among them relating to this Agreement shall be brought in the Missouri or federal
court with jurisdiction in the County of St. Louis, State of Missouri (the “Courts”), and that the
Courts shall have exclusive jurisdiction over any such dispute or controversy. Furthermore, each of
the parties hereby voluntarily consents to the jurisdiction of the Courts and stipulates that the
Courts are not an unreasonable forum within which to litigate any dispute or controversy related to
this Agreement. Xxxxxx further agrees that if there is any question as to the enforceability of any
of the covenants in Sections 7 or 9-11 of this Agreement, he shall not engage in any conduct
inconsistent with or contrary to any such covenant until after the question has been resolved by a
final judgment of the Courts. In the event Employer has to consult with or retain any attorney to
enforce the terms of this Agreement, Xxxxxx agrees that he shall pay Employer for all costs,
expenses and attorneys’ fees Employer incurs in enforcing this Agreement, whether or not litigation
is commenced.
14. Binding Effect.
7
X. Xxxxxx may not sell, assign or transfer this Agreement or any of his rights,
interests or obligations under this Agreement, in whole or in part, by operation of law or
otherwise.
B. Employer may sell, assign or transfer any of its rights and/or interests under
Sections 7, 9-11 and 13-21 of this Agreement without any additional consent of or notice to
Xxxxxx. In such event, said Sections shall remain in full force after such sale, assignment
or other transfer, shall inure to the benefit of and may be enforced by (i) any successor,
assignee, or transferee of all or any part of Employer’s business as fully and completely as
it would inure to the benefit of and it could be enforced by Employer if no such sale,
assignment or transfer had occurred, and (ii) Employer in the case of any sale, assignment or
other transfer of a part, but not all, of the business.
C. Whether or not Employer assigns any of its rights and/or interests under Sections 7,
9-11 and 13-21 of this Agreement, the parties intend and agree that any successor or
transferee of all or part of Employer’s business shall be a third party beneficiary of the
terms of said Sections. The parties further intend and agree that, in the event of any sale,
merger or other change in the ownership or structure of Employer, in whole or in part, the
resulting entity shall step into the place of Employer under Sections 7, 9-11 and 13-21 of
this Agreement, without any additional consent of or notice to Xxxxxx, as if the term
“Employer” were defined in this Agreement to include such person/entity. In addition, the
parties agree that, in the event Employer sells, transfers or merges part, but not all, of
its business, the terms of Sections 7, 9-11 and 13-21 shall be enforceable by both Employer
and the successor or transferee of part of Employer’s business. As used herein, a “successor”
or “transferee” includes any person/entity which, at any time, merges with, or purchases all
or substantially all of the stock or assets of Employer.
15. Severability/Interpretation. The parties acknowledge and agree that the terms of
Sections 7, 9-11 and 13-21 are severable from the remainder of this Agreement and supported by
adequate consideration. In the event any one or more whole or partial provisions of this
Agreement shall be adjudicated to be invalid or unenforceable in any respect, the validity and
enforceability of the remaining whole or partial provisions shall not be affected, and such
adjudication shall not affect the validity or enforceability of such whole or partial provision in
any other jurisdiction. The parties further agree that if any whole or partial restrictive
covenant in this Agreement is deemed invalid or unenforceable because overly broad in geographic
scope, activity or time duration, this Agreement shall be interpreted as if such invalid or
unenforceable whole or partial provision were not contained herein; provided, however, if, under
applicable law, such whole or partial provision may be modified or interpreted so as to be
enforceable, that provision shall be so modified or interpreted so as to be enforceable to the
maximum extent permitted by applicable law.
16. Preservation of Rights. Xxxxxx agrees that termination of his employment with
Employer, regardless of how, when or why employment may end, shall in no manner affect his promises
contained in Sections 7, 9-11 and 13-21 of this Agreement. In order to preserve its rights
hereunder, Employer may advise any third party with whom Xxxxxx may consider,
8
establish or contract a relationship of the existence of this Agreement and its terms, and
Employer shall have no liability for so acting.
17. Notice. Any written notice required under this Agreement shall be deemed given on
the date of hand delivery, the calendar day following the day sent by a next day. mail or delivery
service, and two (2) calendar days following the date postmarked by U.S. mail, all postage or
delivery charges prepaid. Any such notice shall be given:
to Employer, addressed to its President at:
|
7733 Forsyth Suite 1625. | |
| Xx. Xxxxx, Xx. 00000 | ||
to Xxxxxx at:
|
____________ | |
| ____________ |
or such other address as specified in notice given in accordance with the foregoing.
18. Entire Agreement. This Agreement contains the entire agreement between Xxxxxx
and Employer and supersedes any prior oral or written agreement between them pertaining to the
subject matter of this Agreement. Each party warrants that, in entering into this Agreement, it is
not relying on any representation or promise other than those set forth in this Agreement. This
Agreement may be modified only by a writing signed by Xxxxxx and Employer.
19. Waiver of Breach. Failure of either party to exercise any right under this
Agreement, in the event the other party breaches this Agreement, shall not be construed as a waiver
of such breach or prevent the non-breaching party from later enforcing strict compliance with the
terms of this Agreement. Waiver of any right by Employer hereunder must be in writing signed by
Employer.
20. Choice of Law. The parties agree that this Agreement shall be governed and
construed in accordance with the laws of the State of Missouri without giving effect to any choice
of law or conflict of law rule or principle that would cause application of the law of a
jurisdiction other than the State of Missouri.
21. Miscellaneous. The headings of each Section herein are for convenience only and
shall have no significance in the interpretation of this Agreement. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an original but all of which
together will constitute but one instrument.
22. Acknowledgment. Xxxxxx acknowledges and agrees that, to the extent desired, he has
discussed this Agreement with the advisors of his choice, he has read, fully understands and
intends to comply with all of the provisions of this Agreement, and he is voluntarily signing it
below.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
xxxxxxxxx
energy, inc.
/s/ Xxxxxx X. Xxxxxx
|
||
/s/Xxxxx X. Xxxxxx
|
10
