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EXHIBIT 10.16
AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of this 22nd day of December,
2000, is made by and between OCEANIC EXPLORATION COMPANY, a Delaware corporation
("Oceanic") and XXXXXXX XXXXXXXX ("Employee").
RECITALS
WHEREAS, Oceanic desires to employ Employee and to enter into an
agreement with Employee embodying the terms of that relationship, and
WHEREAS, Employee is willing to accept such employment by Oceanic on
the terms set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, Oceanic and
Employee hereby agree as follows:
1. Employment Period. Employment Period shall mean the period
commencing January 1, 2001 (the "Effective Date") and ending on December 31,
2003 (the "Term Date"). Oceanic shall provide to Employee ninety (90) days
written notice of either its intention to allow this agreement to expire on the
Term Date or to renegotiate a continuation or extension of this agreement.
2. Employment. Subject to the terms and conditions provided herein,
Oceanic hereby agrees, during the Employment Period to employ Employee as the
President of Alliance Staffing Associates, ("Division"), a division of Oceanic.
Employee hereby agrees to accept such employment during the Employment Period.
3. Employee's Position and Duties. During the Employment Period,
Employee shall have such executive and business development responsibilities and
other similar duties as are assigned to Employee by Oceanic. During the
Employment Period, but excluding any periods of vacation and sick leave,
Employee agrees to devote all her business attention, skill and time to the
business and affairs of Division and to the best of her ability to perform
faithfully and efficiently the duties and responsibilities assigned to Employee
under this Section 3. Among other things, Employee will be responsible for all
aspects of the day to day operations of Division and will act as President of
such Division.
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4. Employee's Compensation and Benefits.
4.1 Base Salary. During the Employment Period, Oceanic shall
pay Employee a base salary of One Hundred Fifty Thousand Dollars ($150,000) per
annum, payable bi-weekly.
4.2 Business Expenses. Oceanic will reimburse Employee for
customary and reasonable expenses incurred in the normal course of Division's
business including, but not limited to, the IRS standard mileage rate for car
usage in connection with Division business.
4.3 Other Benefits. Oceanic will reimburse Employee up to $200
per month for the first three (3) months of 2001 for medical and dental COBRA
costs. Commencing April 1, 2001, and continuing during the Employment Period,
Employee will be eligible to participate in each Division benefit plan or
program (including without limitation, savings, four (4) weeks vacation, life
insurance, medical and dental plans or programs), if any, generally applicable
to employees of Division.
5. Bonus. During the Employment Period, Employee shall be eligible for
a quarterly bonus to be paid as follows:
5.1 For the period commencing January 1, 2001 and so long as
Division is in a net loss position, the bonus will be twenty percent (20%) of
the improvement in the net loss between the most recent quarter and the quarter
just ended.
5.2 For any quarter that Division is no longer in a net loss
position, the bonus will be twenty-five percent (25%) of the pretax net profit
of Division for such quarter.
5.3 Once Division has become profitable all bonuses will be
calculated pursuant to 5.2 above.
5.4 Bonuses will be paid thirty (30) days after the end of
each calendar quarter, except at year end. The final payment for each year will
be paid ninety (90) days after year end or when the annual audit of Oceanic is
completed whichever is earlier.
5.5 Notwithstanding payment schedules set forth in paragraph
5.4, above, Employee's quarterly bonus is 100% vested on the last day of the
calendar quarter for which it is calculated.
6. Termination of Employment.
6.1 Death. The Employment Period shall terminate automatically
upon Employee's death.
6.2 Cause. During the Employment Period, Oceanic may terminate
Employee's employment hereunder for "Cause." For purposes of this Agreement,
"Cause"
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means: (i) an act or acts of material personal dishonesty taken by, or committed
at the request of, Employee and intended to result in the personal enrichment of
Employee at the expense of Oceanic or one of its affiliates, (ii) failure of
Employee to perform her duties hereunder which failure has not been cured within
21 days after a written notice setting forth such failure has been given to
Employee, (iii) repeated willful violations by Employee of Employee's
obligations under this Agreement, or (iv) the conviction (which shall include a
plea of nolo contendere) of Employee of a felony.
6.3 Without Cause. During the Employment Period, Oceanic or
Employee may terminate Employee's employment hereunder other than for Cause,
upon thirty (30) days' written notice given by one party to the other.
7. Obligations of company Upon Termination of Employment.
7.1 Death. If Employee's employment is terminated by reason of
Employee's death, The Employment Period shall terminate on the date of death,
and Employee's base salary through the date of her death shall be paid to
Employee's legal representative in a lump sum in cash within thirty (30) days
after the date of Employee's death.
7.2 Cause; Voluntary. If Employee's employment is terminated
for Cause by Oceanic or by Employee voluntarily, the Employment Period shall
terminate on the date of such termination of employment, and Oceanic shall pay
Employee's base salary through the date of such termination. Oceanic shall have
no further financial obligations hereunder.
7.3 Without Cause. If during the Employment Period, Oceanic
terminates Employee's employment without cause, Oceanic will pay Employee six
months base salary as severance pay, unless such termination is due to a sale of
Division in which event Oceanic will pay Employee one year base salary as
severance, payable in bi-weekly payments as during the Employment Period,
provided Employee executes a Separation and Release Agreement with Oceanic.
8. Obligations of Employee Prior to and Upon Termination of Employment.
8.1. Unfair Competition. Employee hereby acknowledges and
agrees that the sale, misappropriation, unauthorized use or disclosure of any
Confidential Information constitutes unfair competition. Employee hereby
promises and agrees not to engage in any unfair competition with Oceanic and
Division at any time, whether during the Employment Period or at any time
thereafter.
For purposes of this Agreement, "Confidential Information"
shall mean any and all trade secrets or proprietary or confidential information,
knowledge, documents or data (including, without limitation, information
concerning customers; names of customers and their contact information; customer
lists; customers' business operations, habits or practices; current
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products or services; any future or proposed products or services; the fact that
those products or services are planned, under consideration or in production, as
well as any descriptions of the features of those products or services; prices
at which the products or services are sold; manufacturing or sales costs;
operation and marketing methods or strategies and related data; independent
contractors, consultants, vendors or suppliers; compensation paid to employees,
independent contractors or consultants and other terms or employment or
engagement; lists or other written records used in connection with the business;
or any other proprietary or confidential information, knowledge, documents or
data of any kind, nature or description) relating or belonging to Division
and/or its affiliates or subsidiaries, including Division, and its businesses.
Furthermore, trade secrets shall refer to information, knowledge, documents or
data, including, without limitation, a formula, pattern, compilation, program,
customer list, device, method, technique or process, which (i) derives
independent economic value, actual or potential, from not being generally known
to the public or to persons or entities who can obtain economic value from its
disclosure or use and (ii) is the subject of efforts which are reasonable under
the circumstances to maintain its secrecy.
8.2. Confidential Information; Trade Secrets. Employee shall
not at any time, whether during or after the Employment Period, unless
specifically consented to in writing by the President of Oceanic either directly
or indirectly, reveal, use, divulge, disclose or communicate to any person or
entity, in any manner whatsoever, any Confidential Information. The parties
hereto hereby stipulate and agree that strict and full compliance with the
provisions of this Section 8.2 is critical and material to the successful
conduct and operation of Division's business, to its goodwill, and to the
protection of Division's trade secrets and proprietary and confidential
information, knowledge, documents or data, and that any breach of any terms of
this Section 8.2 is a material breach under this Agreement.
8.3 Restrictions on Use of Trade Secrets and Records. In the
course of Employee's employment with Oceanic and her providing of services to
Division, on the condition of confidence, Employee will have access to and
become acquainted with various Confidential Information, all of which is owned
by Oceanic and Division and regularly used in the conduct and operation of
Division's business. All files, books, records, documents, drawings,
specifications, equipment, customer lists and other items relating to the
customers or business of Division or its affiliates or subsidiaries, whether
they are prepared by Employee or come to Employee's possession in any other way
and whether or not they contain or constitute trade secrets belonging to
Division, are and shall remain the sole and exclusive property of Division and
shall not be removed from the premises of Division under any circumstances
whatsoever without the prior written consent of Oceanic. Employee hereby
promises and agrees that she shall not, directly or indirectly, reveal, use,
divulge, misappropriate, disclose or communicate any of the Confidential
Information at any time, whether during or after the Employment Period, except
during the Employment Period only to the extent required in the course of her
employment with Division.
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8.4 Competing Business. At any time during the Employment
Period, Employee shall not, directly or indirectly, either as an employee,
employer, consultant, independent contractor, agent, partner, shareholder,
officer, director, member, manager or principal or in any individual or
representative capacity, own an interest in, operate, join, control, engage or
participate in, or render services of a business, commercial or professional
nature to any corporation, limited liability company, partnership,
proprietorship, firm, association, person or other entity, whether for
compensation or otherwise, which or who is in competition in any manner
whatsoever with the employee placement business of Division. The parties hereto
acknowledge and agree that strict and full compliance with the provisions of
this section 8.4 is necessary and appropriate in order to avoid any conflict,
whether actual or apparent, of interest and to protect the Confidential
Information.
At any time after the Employment Period, Employee shall not
undertake, engage or participate in any activity, whether individually or as an
employee, employer, consultant, independent contractor, agent, partner,
shareholder, officer, director, member, manager or principal of any person or
entity, if such undertaking, engagement or participation requires, necessitates
or results in Employee to reveal, use, divulge, misappropriate, disclose or
communicate to any person or entity, in any manner whatsoever, any Confidential
Information.
8.5 Solicitation of Business. At any time, whether during or
after Employee's employment with Oceanic, and for one (1) year after termination
of employment with Oceanic, Employee shall not, directly or indirectly, or by
action in concert with other person or entity, cause, induce or influence, or
seek to cause, induce or influence, any employee, agent, representative,
consultant, independent contractor or other business affiliate or associate of
Oceanic to terminate his, her or its employment and/or relationship with
Division. Furthermore, for a one (1) year period following the termination of
Employee's employment with Oceanic for any reason, whether voluntary or
involuntary, Employee shall not, directly or indirectly, reveal, use, divulge,
misappropriate, disclose or communicate to any person or entity, in any manner
whatsoever, the names or addresses (and other contact information) of any of the
customers of Division or any other information pertaining to them, or call on,
take away, or attempt to call on, solicit or take away any of the Customer
Accounts (as defined below) using any Confidential Information. As used herein,
"Customer Accounts" shall mean all accounts of Division and its affiliates,
subsidiaries, licensees and business affiliates or associates, whether now
existing or hereafter developed or acquired, including any and all accounts
developed or acquired by or through the efforts of Employee.
8.6 Business Planning. At any time during the Employment
Period, Employee shall not (i) undertake, engage or participate in planning for,
or organization of, any business, commercial or professional activity
competitive with the business of Division, or (ii) combine or conspire with any
person, including, without limitation, employees, agents, representatives,
consultants, independent contractors or other business affiliates or associates
of Division, for the purpose of organizing any business, commercial or
professional activity which is competitive with the business of Division or
which requires, necessitates or results in Employee to reveal, use, divulge,
misappropriate, disclose or communicate any Confidential Information.
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8.7 Third Party Confidential Information and Trade Secrets. In
the course of Employee's employment with Oceanic, on the condition of
confidence, Employee will have access to and become acquainted with various
trade secrets or proprietary or confidential information, knowledge, documents
or data belonging to third parties which Oceanic may receive from time to time
from such third parties in connection with the services or products provided by
Oceanic to such third parties and/or their designates (hereafter, "Third Party
Information"). Employee hereby acknowledges and agrees that the sale,
misappropriation, unauthorized use or disclosure of any Third Party Information
is strictly prohibited at any time, whether during or after the Employment
Period. Furthermore, Employee shall not at any time, whether during or after the
Employment Period, unless specifically consented to in writing by the President
of Oceanic, either directly or indirectly, reveal, use, divulge, disclose or
communicate to any person or entity, in any manner whatsoever, any Third Party
Information. The parties hereto hereby stipulate and agree that strict and full
compliance with the provisions of this Section 8.7 is critical and material to
the successful conduct and operation of Oceanic's business, to its reputation
and goodwill, and to the protection of its customers' and other business
affiliates' or associates' trade secrets and proprietary and confidential
information, knowledge, documents or data, and that any breach of any terms of
this Section 8.7 is a material breach under this Agreement.
8.8 Ownership of Books, Records and Papers. All books and
records of Division, including, without limitation, the books and records of the
accounts of customers and any books and records relating in any manner
whatsoever to the customers or business of Division, or its affiliates or
subsidiaries, customer lists, credit reports or memoranda, reports of
transactions, equipment, notebooks, documents, memoranda, reports, computer
based data, files, samples, books, correspondence, lists and all other written
and graphics records affecting or relating to the customers and business of
Division, all documents and instruments relating to any Confidential Information
prepared, used, constructed, observed or possessed by Employee; and demographic,
financial or economic data obtained or discovered by Employee in the course of
Employee's employment with Division, whether prepared by Employee or otherwise
coming into Employee's possession or control, shall be and remain the sole
exclusive property of Oceanic, regardless of who actually paid for or obtained
the books, records, documents, instruments or data. If Employee pays for or
obtains any book, record, document, instrument or data or any similar or other
item to be used in connection with Employee's employment with Division, Employee
shall immediately notify Oceanic thereof.
8.9 Delivery of Documents and Data on Termination of
Employment. Immediately upon termination of Employee's employment with Oceanic
for any reason, whether voluntary or involuntary, Employee shall immediately and
without request, deliver to Division all property, books, records, documents,
instruments and data pertaining to (i) Division or its customers or business
(including, without limitation, those referenced herein) or (ii) Employee's
employment with Division any of the Confidential Information or any of the Third
Party Information, whether prepared by Employee or otherwise coming into her
possession or control, which are in the possession, or under direct or indirect
control, of Employee. Employee will not
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retain any written or other tangible material containing any information
concerning or disclosing any of the Confidential Information or the Third Party
Information.
8.10 Survival and Injunctive Relief. Employee agrees that the
provisions of Section 8 of this Agreement shall survive the termination of this
Agreement, the Employment Period and Employee's employment with Oceanic.
Employee acknowledges that Oceanic has no adequate remedy at law and would be
irreparably harmed if Employee breaches or threatens to breach any of the
provisions of Section 8 of this Agreement, and, therefore, agrees that Oceanic
shall be entitled to injunctive relief to prevent any such breach or threatened
breach thereof and to specific performance of the terms of such sections (in
addition to any other legal or equitable remedy Oceanic may have.)
8.11 Restrictions Reasonable. Employee agrees that the
restrictions imposed by Section 8 are reasonable in business scope, geographic
scope and duration. Employee understands that the provisions of Section 8 may
affect or limit Employee's ability to earn a livelihood in a business similar to
the business of Division but Employee agrees that Employee shall receive (or
shall have received) sufficient consideration, remuneration and other benefits
from Oceanic to make enforceable the restrictions and limitations contained in
Section 8 of this Agreement.
9. Miscellaneous.
9.1 Severability. All of the provisions of this Agreement
including without limitation Section 8, are intended by the parties hereto as
separate and divisible provisions and, if, for any reason, any one of them (or
part thereof) is held to be invalid or unenforceable, neither the validity nor
the enforceability of any other provision (or part thereof) shall be affected
thereby. To the extent that any covenant shall be determined to be judicially
unenforceable in any one or more county, or state, or foreign sovereign, that
covenant shall be construed as independent.
9.2 Remedies. Each and all of the several rights and remedies
provided for in this Agreement shall be cumulative. No one right or remedy shall
be exclusive of the others or of any right or remedy allowed in law or in
equity. No failure or delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege hereunder
preclude any further exercise thereof or the exercise of any other right, power
or privilege. Oceanic shall not be required to give notice to Employee to
enforce strict and full adherence to all terms of this Agreement
9.3 Material Conditions/Reasonableness of Agreement. Employee
hereby acknowledges and agrees that the protections set forth in this Agreement
are a material condition to her employment and continued employment with, and
compensation by, Oceanic. Employee hereby acknowledges and agrees that the
obligations which Employee is accepting under this
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Agreement are fair, reasonable and valid and understands that the strict and
full compliance with the provisions is a material condition to Employee's
employment with Oceanic.
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9.4 Survival of Obligations. Employee hereby acknowledges and
agrees that Employee's obligations under this Agreement will continue following
Employee's employment with Oceanic whether or not Employee's employment with
Oceanic is terminated voluntarily or involuntarily or with or without cause.
9.5 Judicial Restatement. If for any reason any court of
competent jurisdiction shall find the provisions of Section 8, or any other
section of this Agreement, unreasonable, Employee and Oceanic agree that the
restrictions and limitations contained in Section 8, or any other section of
this Agreement, shall be restated so that they are effective and enforceable to
the fullest extent allowed or allowable under the applicable law of any such
jurisdiction.
9.6 Successors. This Agreement is personal to the Employee and
shall not be assignable by the Employee. This Agreement shall be assignable by
Oceanic.
9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference in the principles of conflict of laws thereunder.
9.8 Construction, Amendment, Notice, Taxes. The captions of
this Agreement are not part of the provisions hereof and shall not have any
force or effect. This Agreement may not be amended or modified otherwise than by
a written agreement executed by the parties hereto or their respective
successors and legal representatives. All notices and other communications
hereunder shall be in writing and shall be given by facsimile transmission,
hand-delivery to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
EMPLOYEE: Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx, #X
Xxx Xxxxx, XX 00000
COMPANY: Oceanic Exploration Company
0000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Any such notice or communication shall be
effective when actually received by the addressee. Oceanic may withhold from
Employee any amounts payable under this Agreement any such federal, state or
local taxes as shall be required by to withheld pursuant to any applicable law
or regulation. This Agreement contains the entire understanding of Oceanic and
Employee with respect to the subject matter hereof.
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THIS AGREEMENT RESTRICTS EMPLOYEE'S ABILITY TO DISCLOSE OR USE PROPRIETARY OR
CONFIDENTIAL INFORMATION DURING AND AFTER EMPLOYEE'S EMPLOYMENT WITH OCEANIC.
EMPLOYEE HEREBY CONFIRMS AND ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS AGREEMENT
CAREFULLY AND COMPLETELY AND UNDERSTANDS ITS PROVISIONS. EMPLOYEE HEREBY
ACKNOWLEDGES THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT.
IN WITNESS WHEREOF, Employee and Oceanic have hereunto caused
this Agreement to be executed in their names and on their behalf, as of the day
and year first above written.
EMPLOYEE OCEANIC EXPLORATION COMPANY
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxx
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Xxxxxxx Xxxxxxxx Xxxxxxx X. Xxxx President
