SALARY DEFERRAL AGREEMENT
THIS
AGREEMENT is made effective
July 25, 2009, by and between Big Cat Energy Corporation, a
Nevada corporation
(the “Company” or “Big Cat”), and Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx (individually and/or collectively the “Officers”).
RECITALS:
|
A.
|
The
Officers presently serve in various capacities with Big Cat as compensated
officers and employees of the Company and each of the Officers present
receives an annual salary of
$125,000.
|
|
B.
|
Each
Officer makes a valuable contribution to the business and management of
the Company and the Company desires to retain the services of the
Officers, however due to present cash flow constraints, the Company is
unable to continue to pay the full salaries of the
Officers.
|
|
C.
|
In
consideration of the promises made herein, each of the Officers have
agreed to continue his employment with the Company and to accept a
deferral of a portion of his salary on the terms and conditions provided
herein.
|
Now, Therefore, in
consideration of the mutual promises and consideration herein described, the
parties agree as follows:
|
1.
|
Deferral. Commencing
July 25, 2009 payment of a portion of the $125,000 salary of each of the
Officers in an amount equal to $2,083.33 for July and $3,333.33 per month
beginning August 1, 2009 shall be deferred for an indefinite
period. The remaining portion of the salary,
effective August 1, 2009, ($7,083.33 per month) shall continue to be paid
to each Officer on the same basis as in the
past.
|
|
2.
|
Due Date of Deferred
Amounts. All amounts deferred under this agreement
shall be immediately due and payable by Big Cat to an Officer (or their
executors or heirs) upon the earliest to occur of the
following: (a) the resignation, removal, death,
disability, or retirement of the Officer; or (b) a notice sent
to the Company not earlier than 12 months from the date of this Agreement,
from the Officer to the effect that he is terminating the deferral
arrangement and establishing a payment date for payment of all deferred
amounts to the Officer, which date shall be not less than three months
after the date of notice.
|
|
3.
|
Termination of
Deferral as to Ongoing Salary
Payments. An Officer may terminate the
deferral arrangement as to his ongoing salary payments at any time
commencing 12 months after the date of this agreement by a notice to the
Board of Directors advising the Board of his election to again require the
full payment of his salary without deferral beginning at his next pay
day.
|
|
4.
|
Security
Agreement. Payment of all amounts deferred hereunder and
all amounts of any other unpaid salary owing to Officers, shall be secured
by a Security Agreement of even date herewith, a copy of which is attached
hereto as Exhibit A.
|
|
5.
|
Rights of
Termination. Nothing herein create a term certain
of employment of an Officer nor shall it abrogate such common law and/or
statutory rights of the Company to terminate the employment of the
Officers as permitted by law. However at the time of any
such termination all deferred amounts shall become due and payable and the
Security Agreement between the parties shall remain in full force and
effect.
|
OFFICER: BIG
CAT ENERGY CORPORATION:
__/s/______________________________ By:
___/s/_________________________________
Xxxxxxx
Xxxxxxx
Xxxxxxx Xxxxxxxxx
Its: Vice
President
OFFICER:
__/s/______________________________
Xxxxxxx
Xxxxxx
OFFICER:
__/s/______________________________
Xxxxxxx
X. Xxxxxx
SECURITY
AGREEMENT
THIS SECURITY AGREEMENT (the “Security
Agreement”) is made and entered into as of July 25, 2009, by and between Big Cat
Energy Corporation (“Debtor”), and Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxxx
X. Xxxxxx, individuals having a business address of 000 X. Xxxxxx Xxxxxx, XX Xxx 000,
Xxxxx, XX 00000 (collectively the “Secured Party”).
The Debtor, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
in order to secure the performance of those contractual obligations of the
Debtor to the Secured Party pursuant to and as set forth in the Salary Deferral
Agreement dated August 1, 2009 (the “Agreement”), does hereby grant and pledge
to the Secured Party a security interest in all of Debtor’s right, title and
interest, whether presently existing or hereafter acquired, in the following
(collectively, the “Collateral”):
1- Trademark: ARID
Xxxx
Drawing Code: (4) Standard Character
Xxxx
Serial
Number 77220414
Filing
Date July
2, 2007
2- Patent
applications - See Exhibit A incorporated herein by reference
The
Debtor represents and warrants that the security interest granted in the
Collateral pursuant to the foregoing, upon the filing of the appropriate
financing statements relating thereto, shall be a first priority security
interest in the Collateral. This security interest is granted in
conjunction with the Agreement. The rights and remedies of Secured
Party with respect to the security interest granted hereby are in addition to
those set forth in the Agreement, and those that are now or hereafter available
to Secured Party as a matter of law or equity. Each right, power and
remedy of Secured Party provided for herein, or now or hereafter existing at law
or in equity, shall be cumulative and concurrent and shall be in addition to
every right, power or remedy provided for herein and the exercise by Secured
Party of any one or more of the rights, powers or remedies provided for in this
Security Agreement or now or hereafter existing at law or in equity, shall not
preclude the simultaneous or later exercise by any person, including Secured
Party, of any or all other rights, powers or remedies.
The
enforcement of this Security Agreement in the event of default, and the rights
of the parties hereunder, shall be governed in all particulars by Article 9 of
the Uniform Commercial Code, as adopted by the State of Wyoming, as amended from
time to time, and by any applicable federal law.
If any
action relating to this Security Agreement is brought by either party hereto
against the other party, the prevailing party shall be entitled to recover
reasonable attorneys’ fees, costs and disbursements. To the extent
that any provision of this Security Agreement conflicts with any provision of
the Agreement, the provision giving Secured Party greater rights or remedies
shall govern, it being understood that the purpose of this Security Agreement is
to add to, and not detract from, the rights granted to Secured Party under
the Agreement.
This
Security Agreement shall be governed by the laws of the State of Wyoming,
without regard for choice of law provisions. The rights of the
Secured Party hereunder shall inure to the benefit of its successors and
assigns. This Security Agreement may be executed in
counterparts.
DEBTOR:
BIG CAT
ENERGY
CORPORATION SECURED
PARTY:
By: __/s/___________________ ___/s/____________________
Its: Xxxxxxx
Xxxxxxx
___/s/_____________________
Xxxxxxx
Xxxxxx
___/s/_____________________
Xxxxxxx X. Xxxxxx
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT is made effective
as of July 27, 2009, by and between Big Cat Energy Corporation, a
Nevada corporation
(the “Company” or “Big Cat”), and Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx (individually and/or collectively the “Secured Party”).
RECITALS:
A. Secured
Party and Big Cat have agreed to a deferred salary agreement of even date (the
“Salary Deferral Agreement”) pursuant to which Secured Party has agreed to make
certain salary deferrals to the Company.
B. It
is a condition precedent to Secured Party’s acceptance of the Salary Deferral
Agreement that Big Cat shall simultaneously have entered into this Security
Agreement (“Agreement”)
granting Secured Party a continuing security interest in the collateral
described in this Agreement.
Now, Therefore, in
consideration of the covenants and conditions herein contained, the parties
agree as follows:
SECTION
1. DEFINITIONS.
As used
herein, the following terms shall have the meanings set forth
below:
“Collateral” shall mean an
assignment and security interest granted to Secured Party covering all of the
Patents, trademarks and intellectual property of the Company relating to the
ARID system and technology (such patents/trademarks/intellectual may be more
specifically described on Exhibit A attached hereto and incorporated herein by
reference) and Collateral shall also mean
the ARID tool inventory held by the Company.
“Lien or Encumbrance” and “Liens and Encumbrances”
mean, respectively, each and all of the following: (i) any lease or other right
to use; (ii) any assignment as security, conditional sale or other title
retention agreement or arrangement, grant in trust, lien (statutory or other),
mortgage, deed of trust, pledge, security interest, hypothecation, preference,
priority, or other security agreement or preferential arrangement, charge, or
encumbrance of any kind or nature whatsoever and any other interest or right
securing the payment of money or the performance of any other liability or
obligation, whether voluntarily or involuntarily created and whether arising by
agreement, document, or instrument, under any law, ordinance, regulation, or
rule (federal, state, or local), or otherwise; (iii) any option, right of first
refusal, other right to acquire, or other interest or right, and (iv) any
financing lease having substantially the same economic effect as
any of
the foregoing, and the filing of any financing statement under the UCC or
comparable law of any jurisdiction to evidence any of the
foregoing.
“Obligations” means any and
all unpaid salaries, accrued and/or deferred salaries, indebtedness, liabilities
and/or obligations of Big Cat to Secured Party relating to or arising under the
Salary Deferral Agreement, and any and all extensions and renewals thereof in
whole or in part, and or any supplement hereto or thereto, whether now existing
or hereafter arising, whether direct or indirect, absolute or contingent, joint
or several, due or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, original, renewed or extended, and whether arising
directly or acquired from others (including, without limitation, participations
or interests in such obligations to others) and including, without limitation,
Secured Party’s interest, and attorneys fees and costs chargeable to
Big Cat in connection with all of the foregoing.
“UCC” means the Uniform
Commercial Code in effect in the state or jurisdiction where any applicable
portion of the Collateral is located, as the same may be amended and modified
from time to time.
|
SECTION
2.
|
GRANT
OF SECURITY INTEREST.
|
For value
received, and as security for the prompt performance, observance and payment in
full of all Obligations, Big Cat hereby assigns to Secured Party the right to
collect and hold payment of all proceeds received by the Company in the future
from any commercial use of the Collateral not to exceed the total amounts owing
under the Salary Deferral Agreement, and also hereby grants to Secured Party, a
continuing security interest in, lien upon and right of setoff against the
Collateral.
|
SECTION
3.
|
BIG
CAT’S REPRESENTATIONS, WARRANTIES AND GENERAL
COVENANTS.
|
3.1 Big
Cat represents, warrants and agrees as follows (which shall survive the
execution and delivery of this Agreement and the truth and accuracy of which,
and compliance with, being a condition of the Secured Party’s
continuing service as a director, officer and/or employee of Big
Cat, pursuant to the Salary Deferral Agreement):
(a) Big
Cat is and shall be, with respect to the Collateral, the owner of such
Collateral free from any Lien or Encumbrance except those granted herein, in
Secured Party’s favor. Big Cat will defend its title to the
Collateral against the claims of all persons. There are no Form UCC-1 financing
statements now filed or recorded covering any of the Collateral or in which Big
Cat is named or has signed as debtor as to the Collateral, except financing
statements related to this Agreement.
(b) Big
Cat will not directly or indirectly sell, lease, transfer, abandon or otherwise
dispose of all or any substantial portion of Big Cat’s property or assets,
without prior written notice to Secured Party. Provided, however that
Big Cat may sell or lease items of its its inventory of the ARID tool for
adequate consideration in the ordinary course of business and all sales of such
inventory when fully paid shall be free and clear of the liens and encumbrances
created hereunder.
(c) Big
Cat shall promptly notify Secured Party in writing of the details of any loss,
damage, investigation, action, suit, proceeding or claim relating to the
Collateral or which would result in any material adverse change in Big Cat’s
business, properties, assets, goodwill or condition, financial or
otherwise.
(d) At
Secured Party’s option, upon the occurrence of an Event of Default hereunder,
Secured Party shall apply any insurance monies received at any time to the cost
of repairs to or replacement for the Collateral and/or to payment of any of the
Obligations, whether or not due, in any order and in such manner as Secured
Party, in Secured Party’s sole discretion, may determine.
(e)
Big Cat shall not waste or destroy the Collateral or any part thereof or any
document or record evidencing the same. In addition, Big Cat shall
not misuse, cancel or in any way use or dispose of any of the Collateral
unlawfully or contrary to the provisions of this Agreement.
(f) Big
Cat shall, at Big Cat’s own expense, protect the Collateral and maintain it at
all times for the benefit of Secured Party. Big Cat shall use the
Collateral for lawful purposes only and in conformity with applicable laws,
ordinances and regulations.
(g) The
Collateral is and shall be used in Big Cat’s business and not for personal,
family, or household use.
(h) The
security interest granted in the Collateral is in good faith believed to be (i)
legal, valid, binding, and enforceable, (ii) once filed, a perfected security
interest in the Collateral, and (iii) a first priority security
interest.
3.2 Except
as otherwise provided in this Agreement, Big Cat will not permit the Collateral
to be removed from Big Cat’s possession, will not permit the Collateral to be
attached or other process to be levied thereon nor create nor permit to be
created any lien or encumbrance or adverse claim of any character whatsoever in
Collateral, whether justified or unjustified, and will not sell, transfer,
assign or attempt to assign Big Cat’s right, title or interest in the Collateral
or this Agreement in contravention of the security interests granted
herewith.
3.3 Big
Cat shall duly execute and deliver, or shall cause to be duly executed and
delivered, such further agreements, instruments and documents, including,
without limitation, additional security agreements, collateral assignments, Form
UCC-1 financing statements or amendments or continuations thereof, consents to
the exercise by Secured Party of all Secured Party’s rights and remedies
hereunder, under any supplement hereto or applicable law with respect to the
Collateral, and do or cause to be done such further acts as may be necessary or
proper in Secured Party’s opinion to evidence, perfect, maintain and enforce
Secured Party’s security interest and the priority thereof in the Collateral and
to otherwise effectuate the provisions or purposes of this Agreement or any
supplement hereto. Where authorized by law, Big Cat hereby authorizes Secured
Party to execute and file one or more Form UCC-1 financing statements signed
only by Secured Party. Big Cat hereby authorizes Secured Party, upon
the occurrence of an Event of Default hereunder, at Secured Party’s option to
send written notice to any and all customers of Big Cat or other parties who may
be obligated to pay Big Cat any consideration for the commercial use of the ARID
system, technology or inventory or other Collateral, to advise such parties that
Secured Party claims a security interest in such proceeds .
3.4
Big Cat assumes all responsibility and liability arising from or relating to Big
Cat’ use, sale or other disposition of the Collateral.
SECTION
4. SECURED
PARTY’S RIGHT TO PROTECT COLLATERAL.
Secured
Party may, in the Event of Default by Big Cat, pay taxes, assessments, liens,
fees, charges or encumbrances, or spend any amounts necessary to maintain the
Collateral in Big Cat’s exclusive possession and in good condition and repair,
and all amounts expended by Secured Party shall, with interest thereon at the
Default Interest Rate, constitute an Obligation of Big Cat to Secured Party
secured by the Collateral and by the terms of this Agreement and shall be
immediately due and payable, but no such act or expenditure by Secured Party
shall relieve Big Cat from the consequences of such default.
SECTION
5. EVENTS
OF DEFAULT.
Any one
of the following shall constitute an “Event of Default”:
(a) Big
Cat fails to pay any monetary amount, including any or all salary or deferred
salary of Secured Party, when due, and fails to cure such default within ten
(10) days after written notice from Secured Party.
(b) Big
Cat fails to perform an obligation not involving the payment of money, or to
comply with any other term or condition applicable to Big Cat under this
Agreement or the Salary Deferral Agreement, and fails to cure such
default within thirty (30) days after written notice from Secured
Party.
(c) Big
Cat (i) fails to pay when due any monetary obligation, whether such obligation
be direct or contingent, to any person in excess of Twenty Five Thousand and
No/100 Dollars ($25,000), (ii) makes a general assignment for the benefit of
creditors, or (iii) applies for, consents to, or acquiesces in, the appointment
of a trustee, receiver, or other custodian for Big Cat or the property of Big
Cat or any part thereof, or in the absence of such application, consent, or
acquiescence, a trustee, receiver, or other custodian is appointed for Big Cat
or the property of Big Cat or any part thereof.
(d) Commencement
of any case under the Bankruptcy Code, Title 11 of the United States Code, or
commencement of any other bankruptcy arrangement, reorganization, receivership,
custodianship, or similar proceeding under any federal, state, or foreign law by
or against any of the Big Cat.
(e) All
or any part of the Collateral is attached, levied upon, or otherwise seized by
legal process, and such attachment, levy, or seizure is not quashed, stayed, or
released within twenty (20) days of the date thereof.
(f) The
occurrence of any Event of Default under the Salary Deferral Agreement or this
Agreement.
(g) Big
Cat abandons any material portion of the Collateral; or
(h) Any
material portion of the Collateral is lost, stolen, suffers substantial damage
or destruction, or declines materially in value.
SECTION
6. RIGHTS
AND REMEDIES.
6.1 Upon
the happening of any Event of Default, and after any applicable cure period,
Secured Party shall have (in addition to any other rights Secured Party may have
under this Agreement, any supplement hereto or otherwise) the rights, options,
duties and remedies of a secured party, and Big Cat shall have the rights and
duties of a debtor, under the UCC; and without limitation thereto, Secured Party
shall have the following specific rights:
(a) To
declare any or all of the Obligations to be immediately due and payable,
whereupon such Obligations shall be immediately due and payable;
(b) As
a matter of right and without notice to Big Cat or anyone claiming under Big
Cat, Secured Party shall be entitled to orders of replevin by a court of any or
all Collateral from time to time;
(e) At
its option, Secured Party may send written notice to any and all customers of
Big Cat or other parties who may be obligated to pay Big Cat any
consideration
for the commercial use of the Patents, to advise such parties that Secured Party
claims a security interest in such proceeds and demand that they pay any such
amounts owing Big Cat directly to Secured Party.
(f) At
its sole option, to take possession of and/or retain the Collateral in
satisfaction of the obligations secured hereunder by sending written notice of
such election to Big Cat; but, unless such written notice is sent by Secured
Party as aforesaid, possession or retention of said Collateral shall not be in
satisfaction of any obligation hereunder;
(g) To
apply the proceeds realized from disposition of the Collateral according to
law;
(h) To
exercise any and all other rights and remedies of a secured party.
6.2 The
enumeration of the foregoing rights and remedies is not intended to be
exclusive, and such rights and remedies are in addition to and not by way of
limitation of any other rights or remedies Secured Party may have under the UCC
or other applicable law. Secured Party shall have the right, in Secured Party’s
sole discretion, to determine which rights and remedies, and in which order any
of the same, are to be exercised, and in which order, and the exercise of any
right or remedy shall not preclude the exercise of any others, all of which
shall be cumulative.
6.5 No
act, failure or delay by Secured Party shall constitute a waiver of any of
Secured Party’s rights and remedies. No single or partial waiver by Secured
Party of any provision of this Agreement or any supplement hereto, or breach or
default thereunder, or of any right or remedy which Secured Party may have shall
operate as a waiver of any other provision, breach, default, right or remedy or
of the same provision, breach, default, right or remedy on a future
occasion.
6.6 Big
Cat waives presentment, notice of dishonor, protest and notice of protest of all
instruments included in or evidencing any of the Obligations or the Collateral
and any and all notices or demands whatsoever (except as expressly provided
herein). Secured Party may in its discretion, proceed directly against Big Cat
to enforce payment of the Obligations and shall not be required to proceed
solely against the Collateral.
SECTION
7. SETOFF.
Upon the
occurrence of an Event of Default, or, if in the commercially reasonable
judgment of Secured Party, Secured Party deems itself insecure, any indebtedness
owing from Secured Party to Big Cat may be set off and applied by Secured Party
on any indebtedness or liability, secured or unsecured, of Big Cat to Secured
Party at any time and from time to time, and without demand upon or notice to
anyone.
SECTION
8. APPLICATION
OF PROCEEDS.
All
Collateral and all proceeds of Collateral received by Secured Party, before or
after an Event of Default, will be applied by Secured Party to the Obligations,
whether or not due, subject to any requirements of law. Any Collateral and any
balance of such proceeds remaining after payment of the Obligations in full will
be paid to Big Cat, its successors or assigns, or as the law or a court of
competent jurisdiction may direct. Any proceeds of Collateral in the form of a
check shall be credited against the Obligations only upon clearance or payment
thereof.
SECTION
10. LOAN
DOCUMENTS.
This
Agreement is subject to certain terms and provisions in the Salary Deferral
Agreement, to which reference is made for a statement of such terms and
provisions.
SECTION
11. CHOICE
OF LAW/SEVERABILITY.
This
Agreement and all transactions hereunder shall be deemed to be consummated in
the State of Wyoming and shall be governed by, and interpreted in accordance
with the laws of that State. If any part or provision of this Agreement is
invalid or in contravention of any applicable law or regulation, such part or
provision shall be severable without affecting the validity of any other part or
provision of this Agreement.
SECTION
12. GENERAL.
12.1 Time
is of the essence of this Agreement. The acceptance by Secured Party of partial
payments shall not in any manner modify the terms of this Agreement, and such
acceptance shall not be construed as a waiver of any subsequent defaults on Big
Cat’ part nor shall it waive the "time is of the essence”
provision.
12.2 Waiver
of any default shall not constitute waiver of any subsequent
default.
12.3 Reserved
12.4 This
instrument is intended to provide a security interest to more than one Secured
Party under the Salary Deferral Agreement and the obligations of Big Cat shall
be joint and several as to all such Secured Parties. All words used herein shall
be construed to be of such gender and number as the circumstances require and
all references herein to Big Cat shall include all other persons primarily or
secondarily liable.
12.5 Secured
Parties or any Secured Party may file a Financing Statement with respect to this
Agreement and any true and correct photographic or other reproductive copy of
this Agreement may be filed or recorded as a Financing Statement.
12.6 This
Agreement and all obligations of Big Cat hereunder shall be binding upon the
successors and assigns of Big Cat and Secured Party, and shall, together with
the rights and
remedies
of Big Cat and Secured Party hereunder, inure to the benefit of Big Cat and
Secured Party, respectively and each party’s respective successors and
assigns.
12.7 THIS
AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE
SUBJECT MATTER HEREOF AND MAY NOT BE ALTERED OR AMENDED EXCEPT BY A WRITING
SIGNED BY ALL PARTIES.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
SECURED
PARTY: BIG
CAT ENERGY CORPORATION:
/s/
Xxxxxxx
Barritt_______________ By:
_/s/ Xxxxxxx Stockdale___________
Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxxxx
Its: Vice President
SECURED
PARTY:
/s/ Xxxxxxx
Murphy_____________
Xxxxxxx
Xxxxxx
SECURED
PARTY:
/s/ Xxxxxxx
X. Stifel_______________
Xxxxxxx
X. Xxxxxx
