EMPLOYMENT AGREEMENT
Exhibit
10.38
THIS
EMPLOYMENT AGREEMENT ("Agreement") is entered into effective the 1st day of
March,
2007, between Daybreak Oil and Gas Inc., a Washington corporation ("Daybreak,
Employer, Company") and Xxxx X. Xxx, ("Employee").
It
is
agreed as follows:
1.
Employment. Employer employs Employee, and Employee accepts employment,
upon the terms and conditions set forth in this Agreement.
2.
Term. This Agreement begins on March 1, 2007, and continues until May
31, 2007, unless terminated earlier by either party in compliance with this
Agreement's provisions governing termination. After May 31, 2007, employment
will be month to month subject to approval each month, by the Daybreak Board
of
Directors.
3.
Compensation.
a.
Salary. Employer will pay Employee a monthly salary of Ten Thousand
Five Hundred ($10,500) dollars during the term of this Agreement. The salary
will be paid in accordance with Employer's existing payroll policies for
comparable employees. Employee's compensation will be subject to prospective
review by Employer in its sole discretion.
b.
Fringe Benefits. Employee may receive bonuses during the term of
employment as determined by Employer, in its sole discretion. Employee will
be
entitled to participate in all other fringe benefit programs applicable to
comparable employees of Employer. Employer may amend, eliminate, or add to
the
existing fringe benefit programs in its sole discretion.
4.
Duties. Employee will be employed initially as Chief Executive Officer
(CEO) of Daybreak, and in such additional or other capacities and offices as
may
be assigned by the Board of Directors from time to time. The Employee warrants
and represents that he is duly qualified to perform the duties hereunder and
further covenants that in performing his duties hereunder, he will not engage
in
any activity that is in violation of applicable security laws or subject the
Corporation to liability thereunder.
It
shall
be expressly understood that the Employee shall have no power to bind the
Company to any contract or obligation on behalf of Daybreak in any manner
without approval of the Board of Directors.
5.
Other Employment. Without the prior consent of Daybreak, Employee is
prohibited from directly or indirectly, during the term of this Agreement,
rendering services of a business, professional, or commercial nature to any
other person, firm or corporation, whether or not the services are rendered
for
compensation.
6.
Vacation Benefits. Employee is entitled to vacation periods with full
pay in accordance with established Daybreak policy. Vacation will be scheduled
by mutual agreement; however, Employee will be allowed sufficient discretion
in
scheduling to assure the vacation benefit may be used.
7.
Expenses. During the term of employment, Employee is entitled to
reimbursement for reasonable business expenses incurred on behalf of Daybreak
in
accordance with the standard practice for the reimbursement policies and
procedures established by Employer. All out-of-pocket expenses submitted for
reimbursement, shall be done in a timely manner. Such timely manner shall be
defined as the expense reimbursement request shall be received by Employer
no
later than sixty (60) days after the date of the expense receipt or the
occurrence of such expense. Any expense receipt dated sixty (60) days earlier
than the expense reimbursement request is received shall not be eligible for
reimbursement by Daybreak. If any receipt for a charge on a Company credit
card
is not submitted to Employer within sixty (60) days of the transaction date,
the
transaction amount can be charged back to the Employee or be deducted from
the
Employee’s next payroll check. Compensation provided Employee under this
Agreement takes into account Employee's personal obligation to incur and pay
certain additional expenses required of Employee as an employee of Employer
for
which Daybreak is under no obligation to reimburse Employee.
8.
Employment at Will. This is an agreement for employment of indefinite
duration. The employment relationship may be terminated at will by either party.
Termination by either party must be made by written notice to the other party
given at least 7 days in advance of the termination date. Upon termination,
Employee will be paid accrued unpaid salary prorated in accordance with
Employer's general policies and procedures.
9.
Employer Business. All business revenues and fees produced or
transacted through the efforts of Employee are the sole property of Daybreak.
Employee will have no right to the business or to share in any revenues or
fees
resulting from the conduct of the business other than the compensation provided
for in this Agreement.
10.
Confidential Information.
a.
Disclosure Prohibited. Employee acknowledges that, in the course of
this employment, Employee will become acquainted with confidential information
belonging to Daybreak. Employee may not, at any time during the period of
Employee's employment or thereafter, except as authorized in writing by
Daybreak, directly or indirectly, use, disclose, reproduce, or in any other
way
publicly or privately disseminate any "Confidential Information" as
defined.
b.
Definition. "Confidential Information" means all information not
generally known to the public, which relates to the business of Daybreak or
any
third parties doing business with Daybreak. By way of example, confidential
information includes, but is not limited to, information relating to oil and
gas
plays, development information on oil and gas prospects, fundraising plans,
customers and customer lists, pricing, contracts, costs and other financial
information, merchandising and marketing techniques, inventions, plans
specifications, and products disclosed to or known by Employee in connection
with his employment by Employer.
11.
Protection of Daybreak Property. All records, files, manuals, lists of
customers, blanks, forms, materials, supplies, computer programs, and other
materials furnished to Employee by Daybreak, used on its behalf, or generated
or
obtained during the course of this employment remain the property of Daybreak.
Employee is only a holder of this property for the sole use and benefit of
Employer and will safely keep and preserve such property, except as consumed
in
the normal business operation of Employer. Upon termination of this employment,
Employee will immediately deliver to Daybreak, or its authorized representative,
all of Daybreak's property, including all copies, remaining in Employee's
possession or control.
12.
Remedies. The parties recognize that irreparable injury will result to
Daybreak and its business and property if Employee breaches the covenant of
confidentiality contained in Section 10 of this Agreement. It is agreed that
if
Employee breaches the covenant of confidentiality, Daybreak will be entitled
to
an injunction to restrain further breach of that covenant by Employee or any
of
Employee's partners, agents, employers and employees, or any persons acting
for
or with Employee, in addition to any other remedies Daybreak may
have.
13.
Assignability. These contractual obligations of Employee are personal
and neither the rights nor obligations under this Agreement may be assigned
or
transferred by Employee to any other person. This Agreement will bind and
benefit any successor of Employer, whether by merger, sale of assets,
reorganization or other form of business acquisition, disposition, or business
reorganization.
14.
Amendment. This Agreement contains the entire understanding of the
parties. This Agreement may be changed only by a written document signed by
Employee and Daybreak.
15.
Notices. All notices and other communications required or permitted to
be given by this Agreement must be in writing and must be given and will be
deemed received if and when either hand-delivered and a signed receipt is given,
or mailed by registered or certified U.S. mail, return receipt requested,
postage prepaid, and if to Employer to:
Daybreak
Oil and Gas, Inc.
000
X.
Xxxx Xxxxxx Xxxxx 0000
Xxxxxxx,
XX 00000
And,
if
to Employee to:
Xxxx
X.
Xxx
0000
Xxxxx Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Either
party may change the address to which notice to it is to be addressed by
notifying the other party of the change.
16.
Enforcement. This Agreement is to be construed in accordance with the
laws of the State of Washington. Any action arising in connection with this
Agreement must be brought in Spokane County Superior Court, Spokane, Washington.
By this Agreement, the parties confer jurisdiction over the subject matter
of
and parties to this Agreement. The party who prevails in any such action will
be
entitled to an award of the reasonable costs and attorneys' fees incurred in
the
action.
IN
WITNESS WHEREOF, the parties have executed this Agreement.
| "EMPLOYER" | “EMPLOYEE” | ||||
| Daybreak Oil and Gas Inc., | |||||
| a Washington corporation | |||||
| By: |
/s/
Xxxxxx X.
Xxxxxxxxx
|
/s/
Xxxx X.
Xxx
|
|||
| Its: |
Treasurer
|
Xxxx
X.
Xxx
|
|||
|
|
