EXECUTIVE EMPLOYMENT AGREEMENT
THIS
AGREEMENT is effective as of the 1st day of January, 2007, by and between,
Metalline Mining Company, a Nevada corporation (the "Employer" or "Company")
and
Xxxxx Xxxxxxxx (the "Executive"). In consideration of the mutual covenants
contained in this Agreement, the Employer agrees to employ the Executive and
the
Executive agrees to be employed by the Employer upon the terms and conditions
hereinafter set forth.
ARTICLE
1
TERM
OF EMPLOYMENT
1.1 Initial
Term.
The
initial term of employment hereunder shall commence as of the effective day
first written above ("Commencement Date") and shall continue for a period of
one
year from that date.
1.2 Renewal;
Non- Renewal Benefits to Executive.
At the
end of the initial term of this Agreement, and on each anniversary thereafter,
the term of Executive's employment shall be automatically extended one
additional year unless, at least 90 days prior to such anniversary, the
Executive shall have delivered to the Employer written notice that the term
of
the Executive's employment hereunder will not be extended. The Employer’s shall
have the right to provide such non-renewal notice to Executive, on the same
terms and conditions.
ARTICLE
2
DUTIES
OF THE EXECUTIVE
2.1 Duties.
The
Executive shall be employed with the title of Executive Vice President with
responsibilities and authorities as are customarily performed by such officer
including, but not limited to those duties as may from time to time be assigned
to Executive by the Board of Directors of Employer. Executive’s responsibilities
and authorities for operating policies and procedures,
are
subject to the general direction and control of the President of the Company.
2.2 Extent
of Duties.
Executive shall devote all of his working time, efforts, attention and energies
to the business of the Employer.
ARTICLE
3
COMPENSATION
OF THE EXECUTIVE
3.1 Salary.
As
compensation for services rendered under this Agreement, the Executive will
receive a salary of $187,000 per year, which shall be his base compensation.
Executive’s salary is payable in accordance with Employer’s normal business
practices.
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3.2 Benefits.
Executive shall be entitled to vacation and holidays as customarily extended
to
executive employees, which shall be a minimum of 25 days. Executive shall be
entitled to participate in all of Employer's employee benefit plans and employee
benefits, including any retirement, pension, profit-sharing, stock option,
insurance, hospital or other plans and benefits which now may be in effect
or
which may hereafter be adopted, it being understood that Executive shall have
the same rights and privileges to participate in such plans and benefits as
any
other executive employee during the term of this Agreement. Participation in
any
benefit plans shall be in addition to the compensation otherwise provided for
in
this Agreement.
3.3 Expenses.
Executive shall be entitled to prompt reimbursement for all reasonable expenses
incurred by Executive in the performance of his duties hereunder.
ARTICLE
4
NON-COMPETITION;
CONFIDENTIALITY
4.1 During
the term of this Agreement, the Executive will offer to the Employer any
investment or other opportunity generally in the business in which the Company
operates, of which he may become aware. If after 30 days the Board of Directors
of the Employer refuses the opportunity to participate in the investment or
venture, the Executive may do so as permitted by Section 4.2 hereof and
otherwise only if Executive obtains a consent to do so from a majority of the
directors.
4.2 The
Executive may make passive investments in companies involved in industries
in
which the Company operates, provided any such investment does not exceed a
5%
equity interest, unless Executive obtains a consent to acquire an equity
interest exceeding 5% by a vote of a majority of the directors.
4.3 Except
as
provided in Sections 4.1 and 4.2 hereof, the Executive may not participate
in
any business or other areas of business in which the Company is engaged during
the term of this Agreement except through and on behalf of the
Company.
4.4 During
the term of this Agreement, the Executive shall not own, manage, operate,
control, be employed by, participate in, or be connected in any manner with
the
ownership, management, operation or control of any business which is engaged
in
the type of business conducted by the Employer at the time this Agreement
terminates. In the event of the Executive's actual or threatened breach of
this
paragraph, the Employer shall be entitled to a preliminary restraining order
and
injunction restraining the Executive from violating its provisions. Nothing
in
this Agreement shall be construed to prohibit the Employer from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from the Executive.
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4.5 a. The
Executive recognizes and acknowledges that the information, business, list
of
the Employer's customers and any other trade secret or other secret or
confidential information relating to Employer's business as they may exist
from
time to time are valuable, special and unique assets of Employer's business.
Therefore, Executive agrees as follows:
(1) That
Executive will hold in strictest confidence and not disclose, reproduce, publish
or use in any manner, whether during or subsequent to this employment, without
the express authorization of the Board of Directors of the Employer, any
information, business, customer lists, or any other secret or confidential
matter relating to any aspect of the Employer's business, except as such
disclosure or use may be required in connection with Executive's work for the
Employer.
(2) That
upon
request or at the time of leaving the employ of the Employer the Executive
will
deliver to the Employer, and not keep or deliver to anyone else, any and all
notes, memoranda, documents and, in general, any and all material relating
to
the Employer's business.
(3) That
the
Board of Directors of Employer may from time to time reasonably designate other
subject matters requiring confidentiality and secrecy which shall be deemed
to
be covered by the terms of this Agreement.
b. In
the
event of a breach or threatened breach by the Executive of the provisions of
this paragraph 4.5, the Employer shall be entitled to an injunction (i)
restraining the Executive from disclosing, in whole or in part, any information
as described above or from rendering any services to any person, firm,
corporation, association or other entity to whom such information, in whole
or
in part, has been disclosed or is threatened to be disclosed; and/or (ii)
requiring that Executive deliver to Employer all information, documents, notes,
memoranda and any and all other material as described above upon Executive's
leave of the employ of the Employer. Nothing herein shall be construed as
prohibiting the Employer from pursuing other remedies available to the Employer
for such breach or threatened breach, including the recovery of damages from
the
Executive.
ARTICLE
5
TERMINATION
OF EMPLOYMENT
5.1 Termination.
The
Executive's employment hereunder may be terminated without any breach of this
Agreement only under the following circumstances:
1. By
Executive.
Upon
the occurrence of any of the following events, this Agreement may be terminated
by the Executive by written notice to Employer:
(1) if
Employer makes a general assignment for the benefit of creditors, files a
voluntary bankruptcy petition, files a petition or answer seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law, or there shall have been filed any petition
or
application for the involuntary bankruptcy of Employer, or other similar
proceeding, in which an order for relief is entered or which remains undismissed
for a period of thirty days or more, or Employer seeks, consents to, or
acquiesces in the appointment of a trustee, receiver, or liquidator of Employer
or any material part of its assets;
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(2) the
sale
by Employer of substantially all of its assets;
(3) a
decision by Employer to terminate its business and liquidate its
assets.
2. Death.
This
Agreement shall terminate upon the death of Executive.
3. Disability.
The
Employer may terminate this Agreement upon the permanent disability of the
Executive. Executive shall be considered disabled (whether permanent or
temporary) if: (i) he is disabled as defined in a disability insurance policy
purchased by or for the benefit of the Executive; or (ii) if no such policy
is
in effect, he is incapacitated to such an extent that he is unable to perform
substantially all of his duties for Employer that he performed prior to such
incapacitation.
4. Cause.
The
Employer may terminate the Executive's employment hereunder for Cause. For
purposes of this Agreement, the Employer shall have "Cause" to terminate the
Executive's employment hereunder upon the following: (i) the continued failure
by the Executive substantially to perform his duties hereunder (other than
any
such failure resulting from the Executive's incapacity due to physical or mental
illness), after demand for substantial performance is delivered by the Employer
and Executive fails to substantially perform in the 30 days following receipt
of
Employer's demand; or (ii) misconduct by the Executive which is materially
injurious to the Employer, monetarily or otherwise; or (iii) the willful
violation by the Executive of the provisions of this Agreement. For purposes
of
this Section, no act, or failure to act, on the part of the Executive shall
be
considered "willful" unless done, or omitted to be done, not in good faith
and
without reasonable belief by him that his action or omission was in the best
interest of the Employer.
5.2 Notice
of Termination.
Any
termination of the Executive's employment by the Employer or by the Executive
(other than termination pursuant to subsection 5.1.2 above) shall be
communicated by written Notice of Termination to the other party.
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5.3 Date
of Termination.
"Date
of Termination" shall mean (i) if the Executive's employment is terminated
by
his death, the date of his death; (ii) if the Executive's employment is
terminated for Cause, the date on which a Notice of Termination is received
by
the Executive; and (iii) if the Executive's employment is terminated for any
other reason stated above, the date specified in a Notice of Termination by
Employer or Executive, which date shall be no less than 30 days following the
date on which Notice of Termination is given.
5.4 Compensation
Upon Termination.
1. Following
the termination of this Agreement pursuant to Sections 5.1.1, the Executive
shall be entitled to compensation only through the Date of
Termination.
2. Following
the termination of this Agreement pursuant to Section 5.1.2, Employer shall
pay
to Executive's estate the compensation which would otherwise be payable to
Executive to the end of the month in which his death occurs. This payment shall
be in addition to life insurance benefits, if any, paid to Executive's estate
under policies for which the Employer pays all premiums and Executive's estate
is the beneficiary.
3. In
the
event of permanent disability of the Executive as described in Section 5.1.3,
if
Employer elects to terminate this Agreement, Executive shall be entitled to
receive compensation and benefits through the Date of Termination; any such
payment, however, shall be reduced by disability insurance benefits, if any,
paid to Executive under policies (other than group policies) for which Employer
pays all premiums and Executive is the beneficiary.
4. If
Executive is terminated by Employer for any reason other than Death, Disability
or Cause as set forth in this Article 5, then Executive is entitled to a
severance payment equal to twelve months salary under this
Agreement.
5. If
Employer has a Change in Control and this Agreement is not renewed for the
calendar year following the calendar year in which the Change in Control occurs,
then Executive is entitled to a severance payment equal to twelve months salary
following the expiration of this Agreement. For purposes of this Section 5.4(5),
“Change in Control” means the occurrence of any of the following:
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(i)
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the
acquisition, by whatever means, by a person (or two or more persons
who in
such acquisition have acted jointly or in concert or intend to exercise
jointly or in concert any voting rights attaching to the securities
acquired), directly or indirectly, of the beneficial ownership of
such
number of voting securities or rights to voting securities of the
Company,
which together with such person's then owned voting securities and
rights
to voting securities, if any, represent (assuming the full exercise
of
such rights to voting securities) more than 30% of the combined voting
power of the Company's then outstanding voting securities and such
person's previously owned rights to voting securities;
or
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(ii)
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the
amalgamation, consolidation or merger of the Company with any other
corporation pursuant to which the shareholders of the Company immediately
prior to such transaction do not own voting securities of the successor
or
continuing corporation which would entitle them to cast more than
30% of
the votes attaching to shares in the capital of the successor or
continuing corporation which might be cast to elect directors of
that
corporation;
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(iii)
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the
sale, lease or transfer by the Company of all or substantially all
of the
assets of the Company to any Person other than a Related Corporation;
or
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(iv)
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approval
by the shareholders of the Company of the liquidation, dissolution
or
winding-up of the Company; or
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(v)
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the
election at a meeting of the Company's shareholders, as directors
of the
Company, of a number of persons, who were not included in the slate
for
election as directors proposed to the Company's shareholders by the
Company's prior Board of Directors, and who would represent a majority
of
the Board of Directors, or the appointment as directors of the Company,
of
a number of persons which would represent a majority of the Board
of
Directors, nominated by any holder of voting shares of the Company
or by
any group of holders of voting shares of the Company acting jointly
or in
concert and not approved by the Company's prior Board of
Directors.
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5.5 Remedies.
Any
termination of this Agreement shall not prejudice any other remedy to which
the
Employer or Executive may be entitled, either at law, equity, or under this
Agreement.
ARTICLE
6
INDEMNIFICATION
To
the
fullest extent permitted by applicable law, Employer agrees to indemnify, defend
and hold Executive harmless from any and all claims, actions, costs, expenses,
damages and liabilities, including, without limitation, reasonable attorneys'
fees, hereafter or heretofore arising out of or in connection with activities
of
Employer or its employees, including Executive, or other agents in connection
with and within the scope of this Agreement or by reason of the fact that he
is
or was a director or officer of Employer or any affiliate of Employer. To the
fullest extent permitted by applicable law, Employer shall advance to Executive
expenses of defending any such action, claim or proceeding. However, Employer
shall not indemnify Executive or defend Executive against, or hold him harmless
from any claims, damages, expenses or liabilities, including attorneys' fees,
resulting from the gross negligence or willful misconduct of Executive. The
duty
to indemnify shall survive the expiration or early termination of this Agreement
as to any claims based on facts or conditions which occurred or are alleged
to
have occurred prior to expiration or termination.
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ARTICLE
7
GENERAL
PROVISIONS
7.1 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Colorado.
7.2 Arbitration.
Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof shall be settled by arbitration in the City and County of Denver,
Colorado in accordance with the rules then existing of the American Arbitration
Association and judgment upon the award may be entered in any court having
jurisdiction thereof.
7.3 Entire
Agreement.
This
Agreement supersedes any and all other Agreements, whether oral or in writing,
between the parties with respect to the employment of the Executive by the
Employer. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by
either party, or anyone acting on behalf of any party, that are not embodied
in
this Agreement, and that no agreement, statement, or promise not contained
in
this Agreement shall be valid or binding.
7.4 Successors
and Assigns.
This
Agreement, all terms and conditions hereunder, and all remedies arising
herefrom, shall inure to the benefit of and be binding upon Employer, any
successor in interest to all or substantially all of the business and/or assets
of Employer, and the heirs, administrators, successors and assigns of Executive.
Except as provided in the preceding sentence, the rights and obligations of
the
parties hereto may not be assigned or transferred by either party without the
prior written consent of the other party.
7.5 Notices.
For
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
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Executive:
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Xxxxx
Xxxxxxxx
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0000
XX Xxxxxx
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Xxxxxxx,
XX 00000
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Employer:
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Metalline
Mining Company
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Attn:
President
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0000
X. Xxxxxxxx Xxxxxx
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Coeur
d’Xxxxx, XX 00000
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With
a copy to:
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Xxxxxxx X. Xxxxxxxxx |
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Xxxxx,
Figa & Will, P.C.
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0000
Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxx
Xxxxxxx, XX 00000
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or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
7.6 Severability.
If any
provision of this Agreement is prohibited by or is unlawful or unenforceable
under any applicable law of any jurisdiction as to such jurisdiction, such
provision shall be ineffective to the extent of such prohibition without
invalidating the remaining provisions hereof.
7.7 Section
Headings.
The
section headings used in this Agreement are for convenience only and shall
not
affect the construction of any terms of this Agreement.
7.8 Survival
of Obligations.
Termination of this Agreement for any reason shall not relieve Employer or
Executive of any obligation accruing or arising prior to such
termination.
7.9 Amendments.
This
Agreement may be amended only by written agreement of both Employer and
Executive.
7.10 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
only one legal instrument. This Agreement shall become effective when copies
hereof, when taken together, shall bear the signatures of both parties hereto.
It shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
7.11 Fees
and Costs.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees, costs and necessary disbursements in addition to any other relief to
which
that party may be entitled.
IN
WITNESS WHEREOF, Employer and Executive enter into this Executive Employment
Agreement effective as of the date first set forth above.
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Metalline
Mining Company - "EMPLOYER"
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| By | /s/ Xxxxxx Xxxxxxx | |
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Xxxxxx Xxxxxxx, President |
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Xxxxx
Xxxxxxxx - "EXECUTIVE"
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| Signed | /s/ Xxxxx Xxxxxxxx | |
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Xxxxx Xxxxxxxx, Individually |
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