EXECUTIVE EMPLOYMENT AGREEMENT
This
Employment Agreement ("Agreement") is made by and between Barnabus Energy,
Inc.
dba Open Energy Corporation (the "Company") and Xxx Xxxxxx ("Employee")
(individually, a "party" and together, the "parties"). This Agreement shall
be
effective once signed by all parties.
1. Position.
Employee will begin employment with the Company on April 1, 2006, as Chief
Operating Officer. Employee will report directly to the CEO of the Company.
Employee's overall responsibilities shall initially include the overall
management of the California operation, including development and implementation
of an operating plan, hiring and oversight of all personnel, and profit &
loss performance of the division. Employee's precise responsibilities and job
description are subject to change at any time in the sole and absolute
discretion of Company. Employee shall devote substantially full time and
attention to the business of the Company during the term of this Agreement
and
shall perform all duties as may be required of Employee.
2. Term.
The
initial term of this Agreement will begin on April 1, 2006 and shall terminate
on March 31, 2009 unless sooner terminated (“Initial Term”). If employment
continues beyond the Initial Term, Employee will be employed on an at-will
basis. In other words, if employment continues beyond the Initial Term, the
Company and the Employee may terminate employment at any time, for any reason,
without cause. In addition, if employment continues beyond the Initial Term,
the
Company
retains
the
right to transfer, demote, suspend or administer discipline with or without
cause and with or without notice, at any time. This is the entire understanding
with regard to the at-will relationship. The
at-will nature of the employment relationship may only be modified in a writing
signed by Employee and the Company's President.
3. Compensation.
Employee's compensation shall consist of an annual salary, discretionary
bonuses, benefits, and stock grants.
2.1.1 Annual
Salary.
The
Company shall pay to Employee a base salary of $131,000. As with all
compensation, the salary will be subject to standard employment and income
tax
withholding taxes.
2.0.0 Bonuses.
The
Company may, in its sole and absolute discretion, pay Employee a bonus payment
as may be determined by the Board of Directors. The fact and the amount of
the
bonus will be in the Company's sole and absolute discretion and based upon
the
Company's performance as well as whether Employee meets performance objectives
as defined at the beginning of each year.
2.1.2 Stock
Grant.
The
Company hereby agrees to provide the Employee with 150,000 shares (the "Stock
Grant") of the Company's common stock ("Common Stock"), which shares shall
be
issued incrementally to Employee quarterly as each increment of shares vests
in
accordance with Exhibit A. Upon each incremental vesting, the stock issued
shall
be duly authorized, legally issues, fully paid and non-assessable. Subject
to
the provisions of Exhibit A, Employee shall have no right to any unvested shares
should Employee's employment terminate before the entire Stock Grant is
vested.
4.0.0 Benefits.
Employee shall be eligible to participate in the standard fringe benefits
package and incentive compensation plans generally made available to the
executive management employees of the Company, as such benefits may be
determined, changed, or rescinded from time to time by the Company's Board
of
Directors.
5.0.0 Expenses.
The
Company shall reimburse Employee for any and all expenses reasonably incurred
by
the Employee incurred in the course and scope of Employee's duties and which
are
substantiated in accordance with Company's reasonable policies and
procedures.
4. Termination.
1.0 By
the
Company for Cause.
1.0.0 Definition
of for Cause.
Company
may terminate Employee's employment immediately at any time for Cause. In this
Agreement, the term "Cause" means: (A) the commission of an act or omission
which would constitute a felony; (B) negligence or malfeasance; (C) breach
of
fiduciary duties to Company, (D) neglect of duties or (E) any other action
or
omission which could reasonably be expected to adversely affect the Company's
business, financial condition, prospect or reputation or the Employee's
performance of his duties.
2.0.0 Effect
of Termination for Cause.
If
Employee is terminated for Cause, this Agreement shall immediately and without
notice terminate on the date of termination of employment and Employee shall
be
entitled to receive only the Base Salary then in effect, through the date of
termination. All other obligations to Employee pursuant to this Agreement will
become automatically terminated and completely extinguished. Any failure of
the
Company to exercise its right to terminate the employment of Employee as a
result of the existence of any Cause shall not constitute or be construed as
a
waiver of its right to terminate such employment and this Agreement for such
Cause or for another Cause.
2.0 Death
or Disability of Employee.
This
Agreement shall terminate automatically in the event of the death or Disability
of Employee. Employee (or Employee's heirs) shall be entitled to receive only
the Base Salary then in effect through the date of termination. All other
Company obligations to Employee pursuant to this Agreement will become
automatically terminated and completely extinguished. As used herein, the term
"Disability" shall mean Employee's inability to perform the essential functions
of the position, with or without reasonable accommodation, as a result of a
mental or physical disability or where the reasonable accommodation would result
in undue hardship to the Company. In the event of a Disability, the termination
date will be the date on which the Board of Directors, makes such a
determination.
3.0 Termination
Without Cause.
The
Company may in its sole and absolute discretion terminate Employee's employment
without cause and at any time, immediately upon delivery of written notice
to
Employee. If the Company terminates Employee's employment without cause during
the Initial Term, the Company agrees to pay Employee an amount equal to the
Base
Salary on the regularly scheduled pay periods following the date of termination
through the end of the Initial Term. If the Company terminates employee's
employment after the end of the Initial Term, the Company shall only be required
to pay Employee base salary through the date of termination.
4.0 Employee’s
Right to Terminate.
During
the Initial Term, Employee may terminate this Agreement upon 60 days written
notice by Employee to the Company. Upon receiving notice of termination, the
Company may elect to accelerate the effective date of termination, provided
that
Employee shall be paid the base salary through the end of such sixty (60) day
notice period or the end of the term of this Agreement, whichever comes first.
After the Initial Term, Employee may terminate this Agreement at any time,
with
or without notice.
5. Nondisclosure
of Confidential Information. The protection of confidential information is
essential to the Company. To protect such information, Employee shall not,
during the term of this Agreement or at any time thereafter, impart to anyone
or
use any confidential information or trade secrets Employee may acquire in the
performance of Employee's duties, except as required by law.
6. No
Solicitation. Employee agrees that during Employee's employment and for a one
year period after the termination of said employment, Employee will not solicit
for hire any current employees of the Company.
7. Assignment
of Inventions. Employee
agrees that all inventions that (a) are developed using equipment, supplies,
facilities or trade secrets of the Company, (b) result from work performed
by
Employee for the Company, or (c) relate to the Company's business or current
or
anticipated research and development (collectively “Inventions”), will be the
sole and exclusive property of the Company and are hereby irrevocably assigned
by Employee to the Company.
8. Assignment
of Other Rights. In addition to the foregoing assignment of Inventions to the
Company, Employee hereby irrevocably transfers and assigns to the Company:
(a)
all worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Invention; and (b) any
and
all "Moral Rights" (as defined below) that Employee may have in or with respect
to any Invention. Employee also hereby forever waives and agrees never to assert
any and all Moral Rights Employee may have in or with respect to any Invention,
even after termination of employment behalf of the Company. "Moral Rights"
mean
any rights to claim authorship of an invention to object to or prevent the
modification of any Invention, or to withdraw from circulation or control the
publication or distribution of any Invention, and any similar right, existing
under judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or generally
referred to as a "moral right."
9. Work
for
Hire. Employee acknowledges and agrees that any copyrightable works prepared
by
Employee within the scope of employment are "works for hire" under the Copyright
Act and that the Company will be considered the author and owner of such
copyrightable works.
10. Human
Resources Policy and Procedures. Employee agrees to review and abide by
personnel policies as well as any Employee Handbook issued by Company. Employee
understands that Company has the right to modify or rescind any policies and
procedures for any reason and without notice, except the policy regarding
at-will employment.
11. General
Provisions.
1.0 Governing
Law and Forum.
This
Agreement shall be governed in accordance with the laws of the State of
California. Any disputes arising out of Employee's employment or this Agreement
shall be brought in San Diego County, California.
2.0 Severability.
If any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any
way.
2.2 Entire
Agreement.
This
Agreement contains all of the terms agreed upon by the parties with respect
to
the subject matter of this Agreement, and supersedes any and all prior
agreements, arrangements, communications, understandings, documents or rules,
either oral or in writing, between the parties for the employment of Employee,
and contain all of the covenants and agreements between the parties for such
employment in any manner whatsoever. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party or anyone acting on behalf of any party
which are not embodied in this Agreement. Any modification of this Agreement
will be effective only if in writing signed by Employee and Company's
President.
|
Dated:
|
Barnabus
Energy, Inc. dba Open Energy Corporation
|
|
By:
Xxxxx
Xxxxxxx
Its:
President
|
|
|
Dated:
|
Xxx
Xxxxxx
|
Exhibit
A
Stock
Grant Vesting Provisions
Provided
that the Agreement has not earlier been terminated, on each December 31, March
31, June 30 and September 30 commencing April 1, 2006 and ending on December
31,
2008, 12,500
shares
shall vest as set forth in the following table:
|
Date
of Vesting
|
Stock
Vesting on Date
|
Aggregate
Stock Vested Through Date
|
Stock
Remaining Unvested
|
|||
|
150,000
|
||||||
|
April
1, 2006
|
12,500
|
12,500
|
137,500
|
|||
|
June
30, 2006
|
12,500
|
25,000
|
125,000
|
|||
|
September
30, 2006
|
12,500
|
37,500
|
112,000
|
|||
|
December
31, 2006
|
12,500
|
50,000
|
100,000
|
|||
|
March
31, 2007
|
12,500
|
62,500
|
87,500
|
|||
|
June
30, 2007
|
12,500
|
75,000
|
75,000
|
|||
|
September
30, 2007
|
12,500
|
87,500
|
62,500
|
|||
|
December
31, 2007
|
12,500
|
100,000
|
50,000
|
|||
|
March
31, 2008
|
12,500
|
112,500
|
37,500
|
|||
|
June
30, 2008
|
12,500
|
125,000
|
25,000
|
|||
|
September
30, 2008
|
12,500
|
137,500
|
12,500
|
|||
|
December
31, 2008
|
12,500
|
150,000
|
0
|
In
addition to the foregoing vesting milestones, all stock vests immediately upon
(i) a termination of this Agreement due to the death or Disability of the
Employee in accordance with Section 4.2 of the Agreement, or (ii) a termination
of this Agreement by the Company without Cause pursuant to Section
4.3.
All
share
amounts in this Exhibit A shall be adjusted for increases in authorized shares,
stock splits, consolidations, reorganizations and similar transactions. All
section references herein are to sections of the Agreement of which this Exhibit
is a part.
