EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between XXXXXXXX
RESOURCES, INC., a Nevada corporation (the "Company") with principal offices at
0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, and Xxxxxx X. Xxxxx
("Employee"), an individual residing at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000.
1. Employment. The Company hereby agrees to employ Employee, and
Employee hereby agrees to render his exclusive service to the Company, in his
current capacity of Senior Vice President, Chief Financial Officer, Secretary
and Treasurer of the Company, with such duties as may be assigned to him from
time to time by the Board of Directors for a period of time commencing on May
15, 1997 (the effective date of this Agreement) and ending on May 14, 1998 (the
"Employment Period"), subject to earlier termination as hereinafter provided.
Upon termination of Employee's employment for any reason except for death,
disability or for good cause, including termination of the Employment Period,
the Company shall assign to the Employee ownership of any life insurance
policies owned by the Company insuring the Employee's life.
2. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Dallas, Texas, at such location as may be specified by the
Board of Directors of the Company.
3. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $11,041.67 per month, payable semimonthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion. Such compensation shall be in addition to any group insurance,
pension, profit sharing, and other employee benefits, which are extended from
time to time to Employee in the discretion of the Board of Directors of the
Company and for which Employee is eligible. Subject to such rules and procedures
as are from time to time specified by the Company, the Company shall also
reimburse Employee for all reasonable expenses incurred by him on behalf of the
Company.
4. Performance of Services. Employee shall devote his full working time
to the business of the Company; provided, however, Employee shall be excused
from performing any services for the Company hereunder during periods of
temporary incapacity and during vacations conforming to the Company's standard
vacation policy, without thereby in any way affecting the compensation to which
he is entitled hereunder.
5. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
come into his possession during his employment hereunder, shall be deemed to be
confidential and proprietary to the Company and the Employee
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further agrees to retain in confidence any confidential information known to him
concerning the Company and it's subsidiaries and their respective businesses so
long as such information is not publicly disclosed. In the event of a breach or
threatened breach by the Employee of the provisions of this Paragraph 5, the
Company shall, in addition to any other available remedies, be entitled to an
injunction restraining Employee from disclosing, in whole or in part, any such
information or from rendering any services to any person, firm or corporation to
whom any of such information may have been disclosed or is threatened to be
disclosed.
6. Property of Company. All data, drawings, and other records and
written material prepared or compiled by Employee or furnished to Employee while
in the employ of the Company shall be the sole and exclusive property of the
Company, and none of such data, drawings or other records, or copies thereof,
shall be retained by Employee upon termination of his employment.
Notwithstanding the foregoing, Employee shall be under no obligation to return
public information.
7. Surviving Provisions. The provisions of Paragraphs 5 and 6 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
8. Termination for Good Cause. It is agreed and understood that the
Company cannot terminate the employment of the Employee under this Agreement
except for good cause, and that, without prejudice to the generality of the
right to terminate for good cause, each of the following contingencies shall be
good cause:
(a) Should Employee by reason of injury or illness become
incapable for more than one hundred fifty (150) consecutive days of
satisfactorily performing his duties as an employee under this Agreement;
(b) Should Employee for reasons other than illness or injury
absent himself from his duties without the consent of the Company (which consent
shall not be unreasonably withheld) for more than twenty (20) consecutive days;
(c) Should Employee be convicted of a felony involving moral
turpitude;
(d) Should Employee during the period of his employment by the
Company engage in any activity that would in the opinion of the Board of
Directors of the Company constitute a material conflict of interest with the
Company; provided that termination for cause based on this subparagraph (d)
shall not be effective unless the Employee shall have received written notice
from the Board of Directors of the Company of such activity (which notice shall
also include a demand for the Employee to cease the activity giving rise to the
conflict of interest) fifteen (15) days prior to his termination and the
Employee has failed after receipt of such notice to cease all activities
creating the conflict of interest; or
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(e) Should Employee be grossly negligent in the performance of
his duties hereunder, or materially in breach of his duties and obligations
under this Agreement; provided that termination for cause based on this
subparagraph (e) shall not be effective unless the Employee shall have received
written notice from the Board of Directors of the Company (which notice shall
include a description of the reasons and circumstances giving rise to such
notice) fifteen (15) days prior to his termination and the Employee has failed
after receipt of such notice to satisfactorily discharge the performance of his
duties hereunder or to comply with the terms of this Agreement, as the case may
be.
The Company may for good cause terminate Employee's employment under this
Agreement without advance notice, except as otherwise specifically provided for
in subparagraphs (d) and (e) above. Termination shall not affect any of the
Company's other rights and remedies.
9. Payment of Certain Costs of Employee. If a dispute arises regarding
the interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in seeking to obtain or enforce any right or benefit
provided for in this Agreement or in otherwise pursuing his claim will be paid
by the Company, to the extent permitted by law. The Company further agrees to
pay prejudgment interest on any money judgment obtained by the Employee
calculated at the First National Bank of Chicago N.A. prime interest rate in
effect from time to time from the date that payment(s) to him should have been
made under this Agreement.
10. Mitigation. The Employee is not required to mitigate the amount of
any payments to be made by the Company pursuant to this Agreement by seeking
other employment or otherwise.
11. Successors.
(a) Except as may otherwise be provided under any other
written agreement between the Company and the Employee with respect to
the terms of Employee's employment in the event of a change of control
of the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Employee, 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 had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined any successor to its
business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Paragraph 11 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
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(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Employee should die during the term hereof, the
Company shall pay an amount equal to any amounts than payable to
Employee hereunder, plus an amount equal to six months' annualized
total compensation (considering Employee's base pay and his most recent
annual bonus, if any), with all such amounts to be paid to Employee's
devisee, legatee or other designee or, if there be no such designee, to
his estate.
12. No Inconsistent Obligations. Employee represents and warrants that
he has not previously assumed any obligations inconsistent with those of this
Agreement.
13. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
14. Binding Effect. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, and shall also bind and inure to the
benefit of any successor of the Company by merger or consolidation or any
assignee of all or substantially all of its properties.
15. Bankruptcy. Notwithstanding anything in this Agreement to the
contrary, the insolvency or adjudication of bankruptcy of the Company, whether
voluntary or involuntary, shall terminate this Agreement and the rights and
obligations of Company and Employee hereunder shall be of no further force or
effect.
16. Law Governing. This Agreement made, accepted and delivered in
Dallas County, Texas, is performable in Dallas County, Texas, and it shall be
construed and enforced according to the laws of the State of Texas. Venue shall
lie in Dallas County, Texas for the purpose of resolving and enforcing any
dispute which may arise under this Agreement and the parties agree that they
will submit themselves to the jurisdiction of the competent State or Federal
Court situated in Dallas County, Texas.
17. Invalid Provision. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be impaired thereby.
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18. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Employee:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
If to the Company:
Xxxxxxxx Resources, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
EXECUTED and effective as to this 15th day of May 1997.
XXXXXXXX RESOURCES, INC.
By:/s/ M. XXX XXXXXXX
M. Xxx Xxxxxxx
President and
Chief Executive Officer
EMPLOYEE:/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
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