EMPLOYMENT AGREEMENT
This
Employment Agreement (the “Employment Agreement” or “Agreement”), dated this
4th
day of
September 2007, is by and between Unicorp, Inc., a Nevada corporation, Houston,
Texas (the “Company”), and Xxxxxx X. Xxxx (the “Executive”) an
individual.
WHEREAS,
the Executive is willing to enter into an agreement with the Company upon the
terms and conditions herein set forth.
NOW,
THEREFORE, in consideration of the premises and covenants herein contained,
the
parties hereto agree as follows:
1. Term
of Agreement; Termination of Prior Agreement.
Subject
to the terms and conditions hereof, the term of employment of the Executive
under this Employment Agreement shall be for the period commencing on September
10, 2007 (the “Commencement Date”) and terminating on December 31, 2009, unless
sooner terminated as provided in accordance with the provisions of Section
5
hereof. (Such term of this agreement is herein sometimes called the “Retained
Term”).
2. Employment.
As of
the Commencement Date, the Company hereby agrees to employ the Executive as
President and Chief Executive Officer
(“CEO”)
of the Company with such duties as assigned from time to time by the
Company,
and the
Executive hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder in accordance with the terms and conditions
hereinafter set forth.
3. Duties
and Responsibilities.
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(a)
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Duties.
Executive shall perform such duties as are usually performed by a
CEO
with such duties as assigned from time to time by the Company and
will be consistent
of
a business similar in size and scope as the Company and such other
reasonable additional duties as may be prescribed from time-to-time
by the
Company’s board of directors which are reasonable and consistent with the
Company’s operations, taking into account Executive’s expertise and job
responsibilities. The Executive will be responsible for all duties
required in order to fully comply with all SEC rules and regulations
associated with a publicly traded company. This agreement shall survive
any job title or responsibility change. All actions of Executive
shall be
subject and subordinate to the review and approval of the board of
directors. The board of directors shall be the final and exclusive
arbiter
of all policy decisions relative to the Company’s
business.
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(b)
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Devotion
of Time.
During the term of this agreement, Executive agrees to devote his
exclusive and full-time service during normal business hours to the
business and affairs of the Company (including its subsidiaries)
to the
extent necessary to discharge the responsibilities assigned to Executive
and to use reasonable best efforts to perform faithfully and efficiently
such responsibilities. During the term of this Agreement it shall
not be a
violation of this Agreement for Executive to manage personal investments
or companies in which personal investments are made so long as such
activities do not interfere with the performance of Executive’s
responsibilities with the Company and which companies are not in
direct
competition with the Company.
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(c)
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The
Company agrees that within thirty (30) days of employment, Executive
shall
be elected to the Board of Directors. The Company will use its best
efforts to, within twelve months of employment of Executive, increase
the
size of the Board of Directors to at least five seats, of which two
of the
additional seats shall be filled by individuals (other than Executive)
with industry experience.
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1
4. Compensation
and Benefits During the Employment Term.
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(a)
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Salary.
Executive
will be compensated by the Company at an annual base salary of
$300,000.00, from which shall be deducted income tax withholdings,
social
security, medicare, and other customary Executive deductions in conformity
with the Company’s payroll policy in effect. The Parties agree that
Executive shall receive an annual review wherein the Company will
assess
the performance of Executive, determine any bonus pursuant to Paragraph
4(d) and determine the amount of increase to be made to Executive’s base
salary, if any.
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| (b) |
Vacation.
Executive shall be entitled to four weeks paid vacation each year
beginning on the date of this
Agreement.
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| (c) |
Other
Benefits.
The Executive shall be entitled to a $750 monthly car allowance (no
mileage reimbursement) and participation in the company’s benefit plan to
include major medical health insurance, dental, vision, long-term
disability and 401k.
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| (d) |
Short
Term Incentive Bonus. The
Executive shall be entitled to receive up to 100% of his base salary
based
upon specific goals and targets approved by the board of directors
(Goals
and targets for 2008 will be attached as Exhibit
“B”).
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(e) Sign-on
Bonus. The
Executive shall receive a $100,000.00 sign on bonus. This bonus will be subject
to repayment to the Company if the Executive terminates this contract for any
reason within 12 months from the date hereof.
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(f)
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Stock
Options.
The Executive shall receive an employee option to purchase 4,000,000
shares at the fair market price upon the date of execution of this
agreement. The option shall vest according to the following schedule
provided that on any vesting date set forth below, Executive is still
employed by the Company at such
date:
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(i)
1,000,000 Options will vest 12 months from the date of execution of this
Agreement;
(ii)
1,000,000 Options will vest 24 months from the date of execution of this
Agreement;
(iii)
1,000,000 Options will vest 36 months from the date of execution of this
Agreement; and
(iv)
1,000,000 Options will vest 48 months from the date of execution of this
Agreement;
The
options shall be evidenced by an option agreement, shall expire seven years
from
the date of execution of this Agreement, and shall be subject to the terms
of
the Company’s 2007 Stock Option Plan and such option agreement. Notwithstanding
the expiration date, the option (including all vested and unvested options)
shall automatically terminate 90 days after the Executive ceases to be employed
by the Company, provided that if the Executive is terminated by the Company
for
Cause, the option (including all vested and unvested options) shall
automatically terminate on the date of the Executive’s termination. The parties
acknowledge the existence of vesting provisions lasting longer than the
Employment Term is not meant to extend the Employment Term, and that such
vesting provisions do not require the Company to employ the Executive for any
period of time.
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Notwithstanding
the provisions above, the parties agree that if there is a Change of Control
(as
defined below), all options described herein in Paragraphs 4 and 8 shall vest
immediately on said Change of Control.
The
term
“Change of Control” shall mean: (i) a sale, transfer, or other disposition
through a single transaction or a series of transactions of all or substantially
all of the assets of the Company to another entity; or (ii) any consolidation
or
merger of the Company with or into another entity, unless immediately after
the
consolidation or merger the holders of the common stock of the Company
immediately prior to the consolidation or merger are the beneficial owners
of
securities of the surviving corporation representing at least fifty (50%)
percent of the combined voting power of the surviving corporation’s then
outstanding securities. Notwithstanding the previous sentence, a change of
control will be deemed to have occurred if 50% or more of the fully diluted
voting shares transfer to a single entity or group of shareholders that act
as a
single entity for voting purposes, within a twelve month period, in any manner
other than a primary or secondary public stock offering.
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(g)
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As
additional consideration for entering into this Agreement, Executive
agrees to restrict the amount of shares of Company common stock that
he
can sell, including shares previously acquired in the open market,
through
private transactions, through previous employment agreements, as
well as
shares acquired pursuant to this Agreement, by concurrently entering
into
the Lock-up, Leak-out Agreement attached hereto as Exhibit
“A”.
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5.
Termination.
| (a) |
Executive's
employment under the Agreement may be terminated under any of the
following circumstances:
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(i)
Immediately
by the Company, upon the death of Executive.
(ii)
By
the
Executive at any time, upon 30 days written notice.
(iii)
Immediately,
upon written notice by the Company for Cause which for purposes of the Agreement
shall be defined as (i) Executive's willful and persistent inattention to his
reasonable duties which amounts to gross negligence or willful dishonesty
towards, fraud upon, or deliberate injury or attempted injury to, the Company,
(ii) Executive's willful breach of any term or provision of the Agreement which
breach shall have remained substantially uncorrected for 15 days with an
opportunity to cure following written notice to the Executive; or (iii) the
commission by Executive of any act or any failure by Executive to act involving
criminal conduct, whether or not directly relating to the business and affairs
of the Company.
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Effects
of Termination.
In the event that the Agreement is terminated pursuant to
Section 5(a) or upon expiration of the term of the Agreement, neither
the Executive nor the Company shall have any further obligations
hereunder
except for (a) obligations occurring prior to the date of
termination, and (b) obligations, promises or covenants contained
herein which are expressly made to extend beyond the term of the
Agreement.
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| (c) |
Improper
Termination.
In the event of the Executive's termination by the Company for any
reason
other than for Cause or the death of the Executive, Executive shall
continue to be paid, as severance pay, an amount equal to his salary
at
the time of termination until the later of: (i) the end of twelve
months
from the date of hire, or (ii) 180 calendar days from the date of
the
termination. Except for the severance pay, the Company shall not
have any
further obligations hereunder except for (a) obligations occurring
prior to the date of termination, and (b) obligations, promises or
covenants contained herein which are expressly made to extend beyond
the
term of the Agreement.
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6.
Revealing
of Trade Secrets, etc.
Executive acknowledges the interest of the Company in maintaining the
confidentiality of information related to its business and shall not at any
time
during the Employment Term or thereafter, directly or indirectly, reveal or
cause to be revealed to any person or entity the supplier lists, customer lists
or other confidential business information of the Company; provided, however,
that the parties acknowledge that it is not the intention of this paragraph
to
include within its subject matter (a) information not proprietary to the
Company, (b) information which is then in the public domain through no fault
of
Executive, or (c) information required to be disclosed by law.
7. Indemnification.
In the
event Executive is made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by the Company against Executive, by reason of the fact
that Executive was performing services under this Agreement or that Executive
was or is an officer, director or employee of the Company, then the Company
shall indemnify, hold harmless and defend Executive against all expenses
(including attorneys' fees and expenses), judgements, fines and amounts paid
in
settlement, as actually and reasonably incurred by Executive in connection
therewith, to the maximum permitted by applicable law. The advance of expenses
shall be mandatory to the extent permitted by applicable law. In the event
that
both Executive and the Company are made party to the same third-party action,
complaint, suit or proceeding, the Company agrees to engage counsel, and
Executive consents to use the same counsel, which consent will not be
unreasonable withheld, provided that if counsel selected by the Company shall
have a conflict of interest that prevents such counsel from representing
Executive and the Company at the same time, Executive may engage separate
counsel and the Company shall pay all reasonable attorneys' fees and expenses
of
separate counsel. The Company shall not be required to pay the fees of more
than
one law firm except as described in the preceding sentence. Further, while
Executive is expected to faithfully discharge his duties under this Agreement,
Executive shall not be held liable to the Company for errors or omissions made
in good faith where Executive has not exhibited intentional misconduct or
performed criminal or fraudulent acts. Notwithstanding the above, the Company’s
obligation to indemnify Executive is subject to any prohibitions as a matter
of
law that the company cannot indemnify the executive.
8. Non-Competition
Agreement.
In addition to the compensation and benefits listed in Section 4 hereof, the
Company shall grant the Executive 650,000 vested non-qualified options, pursuant
to the Company’s 2004 Stock Option Plan, to purchase shares of the Company’s
common stock at an exercise price of $0.01, upon such terms and conditions
as
set forth in any such option agreement, and as an additional incentive for
the
Company to enter into this employment relationship, Executive agrees to the
non-competition provisions of this section.
(a)
Termination
for Cause or by the Executive.
If the
Executive is terminated for Cause or upon termination by the Executive pursuant
to Section 5(a)(ii) hereof, Executive hereby agrees that for a period commencing
on the date hereof and ending six (6) months following the termination of
Executive’s employment, he will not, directly or indirectly, as employee, agent,
consultant, stockholder, director, co-partner or in any other individual or
representative capacity, own, operate, manage, control, engage in, invest in
or
participate in any manner in, act as a consultant or advisor to, render services
for, or otherwise assist any person or entity (other than the Company) that
engages in or owns, invests in, operates, manages or controls any venture or
enterprise that engages or proposes to engage in the business of the exploration
and/or exploitation of oil and gas properties in which the Company has a direct
interest or in which the Company has an interest in adjacent properties or
properties in the same field or any prospects in which the Company is developing
or is contemplating investing in, developing or operating. This provision may
be
waived by the unanimous written consent of the board of directors upon the
termination of Executive for any reason.
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(b)
Termination
without Cause.
If Executive is terminated without cause, at any time, then the Executive shall
not be subject to non-competition obligations of this Section 8.
(c)
Restrictions
on Future Employment.
Executive understands that the foregoing restrictions may limit his ability
to
engage in certain businesses during the period provided for above, but
acknowledges that Executive will receive sufficiently high remuneration and
other benefits (e.g.,
high
remuneration during the term of the Agreement and access to certain confidential
and proprietary information and trade secrets) under this Agreement to justify
such restriction. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this section by Executive, and Company
or
any of its subsidiaries or affiliates shall be entitled to enforce the
provisions of this section by terminating any payments then owing to Executive
under this Agreement and/or to specific performance and injunctive relief as
remedies for such breach or any threatened breach, without any requirement
for
the securing or posting of any bond in connection with such remedies. Such
remedies shall not be deemed the exclusive remedies for a breach of this
section, but shall be in addition to all remedies available at law or in equity
to Company or any of its subsidiaries or affiliates, including, without
limitation, the recovery of damages from Executive and his agents involved
in
such breach.
| (d) |
Acknowledgement
by Parties.
It is expressly understood that the restrictions contained in this
section
are related to and result from the agreements of the Company and
Executive
in this section and it is agreed that the Company and Executive consider
the restrictions contained in this section to be reasonable and necessary
to protect the confidential and proprietary information and trade
secrets
of the Company and its subsidiaries and
affiliates.
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9. Non-Solicitation.
During
the Restricted Period, without the prior written consent of the Company, the
Executive shall not, directly or indirectly: (i) contact or solicit any current,
former, or known potential customer of the Company or any of the customer’s
subsidiaries, or affiliates; or (ii) hire or solicit, or cause others to hire
or
solicit, for employment by any person other than the Company or any affiliate
or
successor of the Company, any employee of, or person employed within the two
years preceding the Executive's hiring or solicitation of such person by, the
Company and its affiliates or successors or encourage any such employee to
leave
his or her employment.
10.
Arbitration.
If a
dispute should arise regarding this Agreement, all claims, disputes,
controversies, differences or other matters in question arising out of this
relationship shall be settled finally, completely and conclusively by
arbitration of three arbitrators, which is mutually agreed upon, in Houston,
Texas, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "Rules"). Arbitration shall be initiated by written
demand. If agreement on the composition of the panel is not possible, the rules
of the American Arbitration Association shall prevail. This Agreement to
arbitrate shall be specifically enforceable only in the District Court of Xxxxxx
County, Texas. A decision of the arbitrators shall be final, conclusive and
binding on the Company and the Executive, and judgment may be entered in the
District Court of Xxxxxx County, Texas, for enforcement and other benefits.
On
appointment, the arbitrators shall then proceed to decide the arbitration
subjects in accordance with the Rules. Any arbitration held in accordance with
this paragraph shall be private and confidential. The matters submitted for
arbitration, the hearings and proceedings and the arbitration award shall be
kept and maintained in strictest confidence by Executive and the Company and
shall not be discussed, disclosed or communicated to any persons. On request
of
any party, the record of the proceeding shall be sealed and may not be disclosed
except insofar, and only insofar, as may be necessary to enforce the award
of
the arbitrators and any judgment enforcing an award. The prevailing party shall
be entitled to recover reasonable and necessary attorneys' fees and costs from
the non-prevailing party.
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11. Survival.
In the
event that this Agreement shall be terminated, then notwithstanding such
termination, the obligations of Executive pursuant to Section 6 of this
Agreement shall survive such termination and any obligations of the Company
pursuant to Section 4 of this Agreement shall survive such termination.
12. Contents
of Agreement, Parties in Interest, Assignment, etc.
This
Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are
of
a personal nature shall neither be assigned nor transferred in whole or in
part
by Executive. This Agreement shall not be amended except by a written instrument
duly executed by the parties.
13. Severability;
Construction.
If any
term or provision of this Agreement shall be held to be invalid or unenforceable
for any reason, such term or provision shall be ineffective to the extent of
such invalidity or unenforceability without invalidating the remaining terms
and
provisions hereof, and this Agreement shall be construed as if such invalid
or
unenforceable term or provision had not been contained herein. The parties
have
participated jointly in the negotiation and drafting of this Agreement. In
the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party
by
virtue of the authorship of any of the provisions of this
Agreement.
14. Notices.
Any
notice, request, instruction or other document to be given hereunder by any
party to the other party shall be in writing and shall be deemed to have been
duly given when delivered personally; or five (5) days after dispatch by
registered or certified mail, postage prepaid, return receipt requested; or
one
(1) day after dispatch by overnight courier service; in each case, to the party
to whom the same is so given or made:
If
to the Company addressed to:
Unicorp,
Inc.
0000
Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attn:
Chairman of the Board of Directors
If
to Executive addressed to:
Xxxxxx
X.
Xxxx
______________________
______________________
or
to
such other address as the one party shall specify to the other party in
writing.
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15. Counterparts
and Headings.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all which together shall constitute one and the same
instrument. All headings are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement.
16. Governing
Law; Venue.
This
Agreement shall be construed and enforced in accordance with, the laws of the
State of Texas, without regard to the conflict of laws provisions thereof.
Venue
of any dispute concerning this Agreement shall be exclusively in Xxxxxx County,
Texas.
17. Waiver.
The
failure of either party to enforce any provision of this Agreement shall not
be
construed as a waiver or limitation of that party’s right to subsequently
enforce and compel strict compliance with every provision of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
Executive UNICORP,
INC.
_/s/
Xxxxxx X. Munn_______ _/s/
Xxxxx Casey________________
Xxxxxx
X.
Xxxx Xxxxx
Xxxxx, Chairman of the Board
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EXHIBIT
A
LOCK-UP
AGREEMENT
THIS
LOCK-UP/LEAK-OUT AGREEMENT
(the
“Agreement”) is entered into concurrently with, and in consideration for, the
parties entering into the employment agreement dated the even date hereof
(“Employment Agreement”), as well as other good and valuable consideration, the
receipt of which the parties hereby acknowledge, by and between Unicorp,
Inc.,
a
Nevada corporation (the “Company”), and Xxxxxx X. Xxxx (“Holder”).
WHEREAS,
the
parties agree to restrict Holder’s ability to transfer all shares of Unicorp,
Inc. common stock (“Unicorp Common Stock”) that Holder owns as of the date
hereof or acquires after the date hereof ( either upon exercise of options
pursuant to existing or prior employment agreements or other agreements, or
through open market or private transactions); and
WHEREAS,
the
Holder has agreed to enter into this Agreement and to restrict the sale,
assignment, transfer, conveyance, or hypothecation of the Unicorp Common Stock,
all on the terms set forth below.
NOW,
THEREFORE,
for
consideration of entering into the Employment Agreement and in consideration
of
the foregoing premises and the mutual covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as
follows:
| 1. |
The
Holder may not sell, pledge, hypothecate, transfer, assign or in
any other
manner dispose of any shares of Unicorp, Inc. Common Stock in amounts
in
excess of 10,000 shares per day for the duration of this Agreement,
without the unanimous consent of the board of directors; notwithstanding
this section 1, all sales must comply with Rule
144.
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| 2. |
The
Holder agrees that it will not engage in any short selling of Unicorp
Common Stock
during the term of this
Agreement.
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| 3. |
Except
as otherwise provided in this Agreement or any other agreements between
the parties, the Holder shall be entitled to their respective beneficial
rights of ownership of Unicorp Common Stock, including the right
to vote
the Unicorp Common Stock for any and all
purposes.
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| 4. |
The
Unicorp Common Stock restrictions covered by this Agreement shall
be
appropriately adjusted should Unicorp undergo a forward split or
a reverse
split or otherwise reclassify its shares of Unicorp Common Stock
and the
parties agree that appropriate legends may be placed on the shares
of
Unicorp Common Stock.
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| 5. |
The
resale restrictions on the Unicorp Common Stock set forth in this
Agreement shall be in addition to all other restrictions on transfer
imposed by applicable United States and state securities laws, rules
and
regulations.
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| 6. |
Unicorp
or each Holder who fails to fully adhere to the terms and conditions
of
this Agreement shall be liable to every other party for any damages
suffered by any party by reason of any such breach of the terms and
conditions hereof. Each Holder agrees that in the event of a breach
of any
of the terms and conditions of this Agreement by any such Holder,
that in
addition to all other remedies that may be available in law or in
equity
to the non-defaulting parties, a preliminary and permanent injunction
and
an order of a court requiring such defaulting Holder to cease and
desist
from violating the terms and conditions of this Agreement and specifically
requiring such Holder to perform his/her/its obligations hereunder
is fair
and reasonable by reason of the inability of the parties to this
Agreement
to presently determine the type, extent or amount of damages that
Unicorp
or the non-defaulting Holder may suffer as a result of any breach
or
continuation thereof. In
the event of default hereunder, the non-defaulting parties shall
be
entitled to recover reasonable attorney's fees incurred in the enforcement
of this Agreement.
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| 7. |
This
Agreement sets forth the entire understanding of the parties hereto
with
respect to the subject matter hereof, and may not be amended unless
both
parties agree in writing.
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| 8. |
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of Texas applicable to contracts entered into and to
be
performed wholly within said State; and Unicorp and the Holder agree
that
any action based upon this Agreement may be brought in the United
States
and state courts of Xxxxxx County, Texas only, and each submits
himself/herself/itself to the jurisdiction of such courts for all
purposes
hereunder.
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IN
WITNESS WHEREOF,
the
undersigned have duly executed and delivered this Agreement as of the day and
year first above written.
Date
:September 10, 2007 UNICORP,
INC.
By:
_/s/ Xxxxx Casey___________
Xxxxx Xxxxx, Chairman of the Board
HOLDER
By:
_/s/ Xxxxxx X. Munn_______
Xxxxxx
X. Xxxx
EXHIBIT
B
2008
TARGETS AND GOALS
TO
BE
DETERMINED AND WILL INCLUDE
CASH
FLOW, RESERVES, STOCK PRICE..ETC
