0XXXXXXX.XXX, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made and
entered into this 1st day of February, 1999, by and between Xxxxxxx
X. Xxxxxxxxxxx (hereinafter referred to as "Employee"), and
0XxxXxxx.xxx, Inc., an Oklahoma corporation, (hereinafter referred
to as "Company") with reference to the following facts and objectives:
RECITALS
A. Employee has been providing services as the President, COO,
Secretary and related activities as an Employee of the Company.
B. Company is a corporation organized and in good standing under
the laws of the State of Oklahoma and desires to employ Employee
under the terms and conditions of this Agreement.
NOW, THEREFORE, in reliance on the foregoing Recitals, and in
consideration of the mutual promises and covenants contained herein,
Company and Employee hereby agree as follows:
1. Employment. During the term hereof, Company hereby employs
Employee and Employee hereby accepts and agrees to furnish Company
with all the Employee's skills and abilities under the designation
as the President, Chief Operating Officer and Secretary of the
Company.
2. Duties. During the term of the Agreement, Employee shall
devote all of Employee's services, best efforts, and all reasonable
work time (excluding vacation and personal time) toward his
employment with the Company, to further Company's interests and to
perform diligently and in good faith such duties as are or may be,
from time to time, required by Company in connection with his
employment hereunder. The Employee shall, at all times, comply with
the policies and procedures promulgated by the Company. The making
of passive and personal investments and conducting private business
affairs not inconsistent with the Agreement by the Employee shall
not be prohibited under this Agreement.
3. Company's Authority. Employee shall perform in proper form
orders, directions, and policies by the Company to the Employee
periodically not inconsistent with the provisions of this Agreement.
Employee agrees to accept the decisions of the Company in the
establishment and amendment of working facilities, conditions, and
hours of employment, including all fringe benefits, not otherwise
agreed upon herein.
4. Term. The term of this Agreement shall begin on February 1,
1999 (the "Effective Date") and shall be for a period of five (5)
years, with automatic renewal terms of equal length subject to the
Company's prior written notification of one hundred eighty (180)
days before
the expiration of the original term of its decision not
to renew this Agreement, beginning on the Effective Date of this
Agreement.
5. Compensation.
(a) Base Salary. In consideration of the faithful
performance of the above duties and responsibilities to and
on behalf of the Company, the Company agrees to pay the
Employee during the period of Employee's employment with
Company a base annual salary of $150,000.00 (the "Base
Salary"), increasing to an annual salary of $200,000 on
July 1, 1999 . The Base Salary shall be due and payable
semimonthly or on a more frequent basis and reviewed at the
Employee's anniversary date by the Board of Directors of
Company; provided, however, that such Base Salary shall in
any event be increased as of January 1 of
each calendar year at a rate greater than the percentage
increase in the National Consumer Price Index, as reported
by the United States Department of Labor for the immediately
preceding calendar year, or as otherwise determined by the
Board of Directors (or Compensation Committee, if any) of
the Company.
(b) Bonus. As further compensation, the Company may pay
the Employee such bonus or bonuses and stock options as may,
from time to time, be awarded or granted to the Employee by the
Company exercising its sole and absolute discretion.
(i) Bonus on Opening of Web Site. Upon the opening of
the Company's Web Site it is developing (the "Web
Site"), Employee shall be paid a bonus as determined by
the Company.
(c) Employment Taxes. Unless otherwise provided by law,
all compensation paid to the Employee shall be subject to
the customary withholding tax, other employment taxes and
withholding amounts as required with respect to compensation
paid by the Company to the Employee.
6. Split Dollar Life Insurance. The Company agrees to fund a life
insurance policy insuring the life of Employee in the face amount of
$1,000,000.00 wherein the Employee or his designee is owner and
beneficiary of such policy under a split dollar insurance
arrangement. Employee agrees to report the P.S. 58 costs associated
with such an arrangement as compensation for federal income tax
purposes.
7. Health Insurance. The Company shall provide, at its expense,
complete family health insurance coverage for the Employee and his
family. The Employee will be eligible to participate in any other
benefit program or plan offered to
similarly situated employees, subject to any limitations or
restrictions associated with said program or plan (such as waiting
periods, vesting schedules, and pre-existing condition limitations).
8. Business Expenses. Business Expenses of the Employee incurred
in the performance of his duties, including the costs of attending
meetings, promotion, and entertainment
expenses shall be borne by
the Company and reimbursable to Employee upon presentation of
appropriate documentation by the Employee to the Company and
compliance with Company's established practices and procedures.
9. Automobile and Office. During the term of this Agreement,
Company shall furnish Employee with an automobile and related
expenses (i.e. insurance, maintenance, repairs and gas) for
Employee's business use and other equipment, facilities, and
ancillary services for the performance of Employee's duties.
10. Other Company Benefits. Employee shall be entitled to
participate in all employee benefit programs made available to
Company's executives or salaried employees generally, as such
programs may be offered from time to time.
11. Absences. The Employee shall be entitled to four (4) weeks
away from work for paid vacation. Company may, from time to time,
allow Employee additional time away from employment in the Company's
sole discretion. The parties acknowledge that such exercise of
discretion in one event shall not create a right to additional time
away from employment hereunder. Employee shall also be permitted
reasonable numbers of days away from work for sick days or leaves of
absences.
12. Death or Disability. Except as otherwise provided in this
Paragraph 12, in the event of Employee's death or "Disability" (as
hereinafter defined) occurring during the term of this Agreement,
Employee or his estate, as the case may be, shall be entitled to:
(i) that portion of any unpaid salary together with the benefits
accrued and earned by Employee hereunder up to and including the
last day of the month in which the death or the Disability occurs,
as the case may be, (ii) any death or disability-related benefits
pursuant to the insurance program set forth above and any employee
benefit plan to which Employee or his beneficiary may be entitled
hereunder; (iii) any unpaid Bonus Amount earned by the Employee for
the prior fiscal year of the Company and approved by Company if such
approval is required hereunder shall be prorated based upon the
length of Employee's service during the applicable year over 365
days; and (iv) a payment equal to one year's Base Salary then in
effect for Employee if the remaining term of this Agreement is less
than one year, or, if more than one year remains under the
Agreement, the Estate may elect to continue to receive the payments
due under the Agreement specified as salary. A "Disability" shall
be deemed to have occurred if Employee shall have been unable to
discharge his normal duties and job description under this Agreement
for a period of ninety (90) days in the aggregate during any
consecutive four (4) month period, by reason of his physical or
mental disability of illness. In the event that Employee is unable
to resume a normal work schedule at the end of said four (4) month
period, his employment shall thereupon terminate at the end of the
calendar month in which such period ends.
13. Termination. Employee's employment with the Company shall be
terminate if any of the following occur:
(a) At the expiration of the term of this Agreement if
Company gives written notice of its intention not to renew
this Agreement one hundred eighty (180) days prior to the
expiration of the term;
(b) On the death of the Employee;
(c) Whenever the Employee shall fail to cure or rectify a
material breach of any of the terms, covenants and
conditions of this Agreement within thirty (30) days after
Employee receives written notice from the Company to cure
such default (except when terminated for those causes that
allow immediate termination as described in Section 14(b));
(d) For "Cause" as defined in Paragraph 14 below; or
(e) Upon the Disability of the Employee as set forth in
Paragraph 12 above.
14. Definition of "Cause".
(a) For the purposes of this Agreement, the term "Cause"
shall include:
(i) incompetence, failure, inability, or refusal to
perform assigned duties;
(ii) gross negligence, willful misconduct or
breach of fiduciary duty;
(iii) being under the influence of, or use,
sale, distribution, or possession of unauthorized or
illegal drugs or intoxicating beverages while on duty
or on the Company's or a subsidiary's premises;
(iv) willful destruction or defacement of Company's or
a subsidiary's, a customer's, or an employee's
property;
(v) unauthorized disclosure of confidential
information; and
(vi) continued and unexplained absences from work.
(b) For the purposes of this Agreement, Employee shall be
immediately terminated without notice for the following
Causes:
(i) unauthorized entry into Company's secured
non-public areas;
(ii) falsifying or altering the Company's or a
subsidiary's records;
(iii)theft, embezzlement, fraud or forgery;
(iv) any act which results or was intended to
result in significant gain or personal enrichment to
the Employee at the Company's expense.
15. Confidential and Secret Information/Company Property. Employee
acknowledges that he will have access to items used in the Company's
business which the Company deems to be secret, confidential, unique
and valuable; were developed by Company at a great cost and over a
long period of time; and that disclosure of any of these items to
anyone other than Company's officers, directors, agents or
authorized employees will cause Company irreparable injury.
Employee agrees that upon termination of this Agreement, he will
return any and all documentary information or written documents to
Company. Such items and information shall be held in strict
confidence by the Employee and shall not be revealed to any third
party unless otherwise required by law. All other material and
property that may be furnished to employee during the course of his
employment with the Company such as customer lists, customer
tracking, automobiles, books and records shall be and remain the
Company's property and shall be returned to the Company at any time
upon demand.
16. Severance Pay. In the event Company terminates Employee's
employment hereunder, Company shall pay to Employee a sum equivalent
to the balance of the salary due to be paid under this Agreement or
300% of the Base Salary (excluding bonuses and other compensation),
whichever is greater.
17. Change of Control. Immediately upon a Change of Control, if
Executive's employment with Company is terminated within twenty-four
(24) months following such Change of Control, either without cause
or pursuant to this Agreement, in addition to any other compensation
or benefits payable pursuant to this Agreement, Executive shall be
entitled to: Payment in cash equal to four times his Base Salary,
plus immediate vesting of 100% of all Employee's stock; stock
options or other awards to the Executive under any of the Company's
incentive plans. The Executive's rights upon a Change of Control to
benefit under programs, plans and policies of the Company shall be
determined according to the terms and provisions of such programs,
plans and policies.
18. Arbitration. Any and all disputes, controversies or claims
arising under or in connection with this Agreement other than the
right to injunctive relief as set forth in Paragraph 14 above,
including without limitation, the general validity or enforceability
of this Agreement, shall be governed by the laws of the State of
California, without giving effect to its conflict of law provisions
and shall be submitted to binding arbitration rules of the American
Arbitration Association conducted in Orange County, California. All
expenses of any arbitration shall be borne equally by the parties.
The award to the arbitrator,
including any award of attorney's fees, shall be final and
enforceable in the courts of California. All costs of enforcing a
judgment following the arbitration are to be borne by the losing
party. In reaching his or her decision, the
arbitrator shall have no authority to change or modify any provision
of this Agreement. Each party shall have the right to discovery in
accordance with the California Rules of Civil Procedure.
20. Modification. This Agreement shall not be modified, amended,
supplemented, or extended except by written consent executed by both
the Company and Employee, except as expressly provided herein to the
contrary.
21. Assignment. Neither the Employee nor the Company shall
voluntarily subcontract or assign any of their respective rights,
duties, or obligations hereunder without first obtaining the other
party's written consent.
22. Notice. Except as expressly provided to the contrary herein,
any notices or other communications required, permitted, or made
necessary by the terms of this Agreement may be given to the
respective representatives of the Company and the Employee
designated herein by written communication. Written notices shall
be personally delivered to the Company's representative or the
Employee as appropriate or sent by the United States registered or
certified mail, postage prepaid, return receipt requested, addressed
to the Company to its principal corporate office and to the Employee
at the Employee's residential address. Notices sent by mail shall
be deemed made, delivered, and received on the date of the United
States' postmark thereon. Upon receipt of notice Employee shall
have thirty (30) days to cure or rectify all items described in the
Notice. Federal Express and similar services shall be considered
personal service or delivery. Personal delivery of written notice
hereunder may also be give by facsimile or other electronic
transmission (provided that the sender of a telephone facsimile or
other electronic transmission has received a facsimile confirmation
report showing the number to which the facsimile was transmitted).
Either party may change its address for notice by giving notice of
such change to the other party in the manner specified in this section.
23. No Waiver. No waiver of any breach or default in any of the
terms and provisions of this Agreement shall be deemed to constitute
or be construed as a waiver of the subsequent breach of default of
the same, similar, or dissimilar nature.
24. Choice of Law and Invalidity. The validity, construction,
performance and effect of this Agreement shall be governed by the
laws of the State of California. In case any one or more of the
provisions contained herein shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provisions of this Agreement, but this Agreement shall be construed
as if such invalid, illegal, or unenforceable provision has never
been contained herein. If any one or more provisions contained
herein shall, for any reason, be held to be excessively broad as to
time, duration, geographical scope, activity or subject, said
provision shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the then applicable law,
it being the intent of the parties hereto to give the maximum
permitted effect to the restrictions set forth herein.
25. Interpretation. If necessary to give effect to the terms and
provisions hereof, the masculine, feminine, and neuter gender in the
singular and plural number shall each be deemed to include the other
whenever the context so indicates. To the unenforceable, it is
agreed that the essential terms of this Agreement shall be and
remain enforceable against the parties.
26. Headings. Headings in this Agreement are inserted convenience
and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent, or intent of this
Agreement or any provision hereof.
27. Counterparts. This Agreement may be executed in any number of
counterparts, any of which may be constituted in the agreement
between the parties hereto.
28. Time. Time is of the essence for all obligations contemplated
in this Agreement.
29. Entire Agreement. This Agreement, and any schedules and
exhibits attached thereto contain and set forth the entire Agreement
between the parties with respect to the subject matter hereof. All
prior negotiations and agreements between the parties with respect
to the scope of this Agreement are mutually rescinded, replaced, and
superseded hereby.
30. Authority. The Company warrants and represents that it is a
corporation organized and existing under the laws of the State of
Oklahoma, that the undersigned is authorized to execute this
Agreement on behalf of the Company; that the employment of the
Employee under the terms of this Agreement has been duly authorized
by the Company.
31. Inurement. Each covenant and condition in this Agreement shall
be binding on, and shall inure solely to the benefit of the parties
to it, their respective heirs, legal representatives, successors,
and assigns.
32. Presumption. This Agreement or any section of this Agreement
shall not be construed against any party due to the fact that the
Agreement or any section of it was drafted by said party.
IN WITNESS WHEREOF, the parties to this Employment Agreement have
duly executed it on the day and year first above written.
EMPLOYEE: COMPANY:
0XXXXXXX.XXX, INC., AN OKLAHOMA
CORPORATION
By:/s/Xxxxxxx X. Xxxxxxxxxxx By:/s/Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxxx Xxxxxx X. Xxxxxx,
000 Xxxxxxxx Xxxxxx Chairman of the Board
Xxx Xxxxx, Xxxxxx 00000 00000 Xxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
