EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made to be effective as of the
1st day of April, 2006 (the “Commencement Date”), by and between American Eagle Services, Inc., a
Texas corporation, (including all affiliates and subsidiaries hereinafter called the “Company”),
TBX Resources, Inc., a Texas corporation (“TBX”) and Xxxx X’Xxxxxxx (hereinafter called the
“Executive”).
W I T N E S E T H.
WHEREAS, the Executive desires to enter into an executive employment relationship with
the Company; and.
WHEREAS, both the Company and Executive have read and understood the terms and provisions set
forth in this Agreement and have been afforded a reasonable opportunity to review this Agreement
with their respective advisors;
NOW, THEREFORE, in consideration of the mutual promises of each, and other good and valuable
consideration, the parties hereby covenant and agree as follows:
1. SERVICES AND DUTIES
(a) Positions. The Executive shall serve as the Vice President of Operations of
the Company, act as a Principal for the Company’s subsidiary Broker-Dealer, Euro America
Capital Corporation and act as Vice President-Investor Relations for TBX. The Executive
shall report to the President and Board of Directors of the Company and shall perform all
duties consistent with this position and such duties generally consistent therewith, as such
duties shall be prescribed and/or amended from time to time by the President.
(b) Devotion of Time. As of the Commencement Date (as defined above), the
Executive shall devote his full time and attention to the Company and TBX. However, it is
understood that the Executive has certain other business activities in which he is free to
engage, conditioned that such other business activities are disclosed to the Company, do not
interfere with the accomplishment of his duties, and are not directly competitive so as to be
corporate opportunities of the Company.
(c) No Joint Venture. The provisions of this Agreement, and especially the
compensation provisions, are not intended to create any relationship between the Parties
other than that of employer and employee contracting with each other solely for the purpose
of effecting the provisions of this Agreement, and this Agreement shall not be construed as
creating a partnership or joint venture between the parties.
2. TERM
This Agreement shall begin on the Commencement Date and end on the one (1) year anniversary
after the Commencement Date (the “Original Term”). Thereafter, this Agreement shall automatically
renew for successive one (1) year terms unless otherwise terminated as provided herein.
3. COMPENSATION AND RELATED MATTERS
(a) Base Salary. From and after the Commencement Date, the Executive shall
receive an initial base salary (the “Base Salary”) paid by American Eagle Services, Inc. of
$10,000 per month, payable bi-monthly.
(b) Shares. The Executive will be entitled to issuance of certain common stock
of TBX. Upon execution of this Agreement, 100,000 shares of TBX common stock will be issued
to Executive. At the beginning of each calendar quarter of employment, for a period of three
years, the Executive will be awarded an option to purchase 25,000 shares of TBX common stock
at an exercise price equal to the ending bid price of the last market day prior to the date
of the option award. The option exercise period for each option will be one year from its
date
of issuance, at which time the option will expire. In the event of a change in
ownership, all unexercised options will be accelerated to the current monthly period. The
common stock issued to Executive will bear the following legend:
These shares are not registered under the Securities Act of 1933.
No sale or transfer of these shares may be accomplished without
the shares being registered or exempt from registration. If an
exemption is claimed, shareholder must supply the Company with a
written legal opinion stating the basis for any claimed exemption
and said opinion will be subject to approval by the Company and
its legal counsel. The shares of stock herein will not be deemed
earned or vested in the named shareholder unless the shareholder
is still an employee of the Company, one year from the date of
issue hereof. Should shareholder’s employment terminate, for any
reason, prior to the date specified, then this Certificate will
be automatically canceled by the Company.
(c) Expenses. During his employment hereunder, the Executive shall be entitled
to receive prompt reimbursement for all reasonable business and entertainment expenses
incurred by him in performing services hereunder, provided that the Executive properly
accounts therefor to the Company.
(d) Other Benefits. The Executive shall be entitled to participate in other
benefit plans to which he is eligible pursuant to Company policy, which may be amended from
time to time in the Company’s discretion, and the applicable plan documents (the “Standard
Benefit Plans”).
(e) Vacations. The Executive shall be entitled to reasonable vacation
consistent with his position and the Company’s vacation policy.
4. TERMINATION
The Executive’s employment hereunder is “at will” and may be terminated by the Company or the
Executive, under the following circumstances:
(a) Mutual Agreement. Termination by mutual written agreement between the
Executive and the Company.
(b) Death. Employment shall terminate upon the death of the Executive.
(c) Disability. Termination will result if the Executive is unable to perform
his duties on a full-time basis because of Executive’s inability to perform his duties under
this Agreement, with or without reasonable accommodation, for a period of more than ten (10)
days (“Disability”).
(d) Termination of the Executive’s employment for “Cause.” For purposes of this
Agreement, the Company shall have “Cause” to terminate the Executive’s employment hereunder
only upon:
(i) the failure by the Executive to substantially perform his duties as
outlined hereunder or to follow the reasonable directions of the Board after demand
for substantial performance is delivered by the Board;
(ii) the engaging by the Executive in conduct that is materially injurious to the
Company, monetarily or otherwise;
(iii) the engaging by the Executive in criminal conduct or conduct constituting
moral turpitude;
(iv) the engaging by the Executive in employment practices which violate federal,
state or local law.
(v) The engaging in conduct by the Executive which results in an action against
him by the Securities and Exchange Commission or any similar state regulatory agency
or loss of his ability to act as a Principal/licensed representative of an NASD
licensed broker-dealer.
(e) Termination Without Cause. Notwithstanding any provisions of this
Agreement to the contrary, the Company may terminate the Executive’s employment for any
reason other than those specified in the foregoing paragraphs (a), (b), (c) or (d) (or for no
reason) at any time effective upon delivery of ten (10) days written notice by the Board.
(f) Voluntary Resignation. The Executive may terminate this Agreement
(“Voluntary Resignation”) at any time effective upon thirty (30) days written notice to the
Board.
5. COMPENSATION AND PAYMENTS UPON TERMINATION
The Executive shall be entitled to the following compensation from the Company (in lieu of all
other sums payable to the Executive hereunder) upon the termination of Executive’s employment.
(a) Mutual Agreement. If the Executive’s employment is terminated as a result
of mutual agreement, the Company shall pay the Executive’s Base Salary, plus the
accrued Net Profits Interest to date of termination, plus a lump sum payment for the
value of all accrued, earned and unused benefits under the Standard Benefit Plans through the
date of termination, and the Executive will be entitled to receive any vested pension and
retirement benefits (for all purposes of this Agreement, all such accrued, earned and unpaid
items through the applicable date of termination are referred to as the “Earned Amounts”).
(b) Death. If the Executive’s employment is terminated as a result of death,
the Company will pay to the Executive’s estate the Earned Amounts.
(c) Disability. If the Executive’s employment is terminated as a result of
Disability (as defined in Section 4(c) above), the Executive will be provided long term
disability benefits to which he may be eligible (if any) in accordance with the Company’s
then existing Standard Benefit Plans, and the Company shall pay to the Executive the Earned
Amounts.
(d) Termination “Without Cause,” or by the Executive. If the Executive’s
employment is terminated Without Cause, or in the event the Executive voluntarily elects to
terminate this Agreement, the Company shall pay the Executive the Earned Amounts and the
Company shall have no further obligation to the Executive.
(e) Termination for Cause. If the Executive’s employment is terminated for
Cause, the Company shall pay the Executive the Earned Amounts except for the accrued Net
Profits Interest and the Company shall have no further obligation to the Executive.
6. NON-DISCLOSURE
(a) Confidential Information. By virtue of his employment with the Company, the
Executive will have access to confidential, proprietary, and highly sensitive information
relating to the business of the Company and which is a valuable, competitive and unique asset
of the Company (“Confidential Information”), the confidentiality of which is essential to the
Company’s ability to differentiate its products and services. Such Confidential Information
includes all information which relates to the business of the Company, which is or has been
disclosed to the Executive orally or in writing by the Company or obtained by virtue of work
performed for the Company, is or was developed by the Company, and is not generally available
to or known by individuals or entities within the industry in which the Company is or may
become engaged or readily accessible by independent investigation. The Confidential
Information sought to be protected includes, without limitation, information pertaining to:
(i) the identities of customers and clients with which or whom the Company does or seeks to
do
business, as well as the point of contact persons and decision-makers at these customers
and clients, including their names, addresses, e-mail addresses and positions; (ii) the past
or present purchasing history and the past and/or current job requirements of each past
and/or existing customer and client; (iii) the volume of business and the nature of the
business relationship between the Company and its customers and clients; (iv) the pricing of
the Company’s services, including any deviations from its standard pricing for particular
customers and clients; (v) the Company’s business plans and strategy, including customer or
client assignments and rearrangements, sales and administrative staff expansions, marketing
and sales plans and strategy, proposed adjustments in compensation of sales personnel,
revenue, expense and profit projections, industry analyses, and any proposed or actual
implemented technology changes; (vi) information regarding the Company’s employees, including
their identities, skills, talents, knowledge, experience, and compensation; (vii) the
Company’s financial results and business condition; and (viii) computer programs and software
developed by the Company and tailored to the Company’s needs by its employees, independent
contractors, consultants or vendors; (ix) information relating to the Company’s architects,
designers, contractors, or persons likely to become architects, designers, or contractors;
(x) any past or present merchandise or supply sources in the future; (xi) technical and
non-technical information including patent, copyright, trade secret, proprietary information,
methods, ideas, concepts, designs, inventions, know-how, processes, software programs,
software source documents and formulae related to the current, future and proposed products
and services of the Company including research, experimental work, development, design
details and specifications and engineering, financial statements, forecasts, plans (whether
business, strategic, marketing or other), client lists, prospective client lists, sales data,
sales analysis, equipment and other assets, prices, costs, sources of supplies, pricing
methods, personnel, marketing research, and business relationships, whether or not marked
“Confidential” or “Proprietary”. Confidential Information may be contained on the Company’s
computer network, in computerized documents or files, or in any written or printed documents,
including any written reports summarizing such information.
(b) Non-Disclosure of Confidential Information. The Executive acknowledges that
the Company’s Confidential Information will be disclosed to the Executive throughout his
employment at the Company in order to enable the Executive to perform his duties for the
Company. The Executive further acknowledges that, prior to his employment at the Company,
Executive was either unfamiliar with the Company’s Confidential Information or Executive
developed such Confidential Information for the benefit of the Company and was otherwise
compensated for such services outside of the terms of this Agreement. Finally, Executive
acknowledges that the unauthorized disclosure of Confidential Information could place the
Company at a competitive disadvantage. Consequently, Executive agrees (i) not to use,
publish, disclose or divulge, directly or indirectly, at any time, any Confidential
Information for his own benefit and for the benefit of any person, entity, or corporation
other than the Company, to any person who is not a current employee of the Company, without
the express, written consent of the Company and except in the performance of the duties
assigned to him by the Company; (ii) not to make copies of Confidential Information without
the prior written consent of the Company; (iii) to take reasonable precautions to protect
against the inadvertent disclosure of such Confidential Information or theft or
misappropriation by others; and (iv) not to use such Confidential Information except in
connection with the specific duties of the Executive in connection with his employment.
(c) Notwithstanding the foregoing, the confidentiality and nondisclosure provisions
contained herein with respect to any portion of the Confidential Information shall terminate
when the Executive can document that the Confidential Information:
(i) was in the public domain at the same time it was communicated to the
Executive by the Company;
(ii) entered the public domain subsequent to the time it was communicated to the
Executive by the Company through no fault of the Executive;
(iii) was in the Executive’s possession free of any obligation of confidence at
the time it was communicated to the Executive by the Company;
(iv) was rightfully communicated to the Executive free of any obligation of
confidence subsequent to the time it was communicated to the Executive by the Company;
(v) was developed by the Executive independently of and without any reference to
any information communicated to the Executive by the Company; or
(vi) was communicated in response to a valid subpoena or order by a court or by a
governmental body, provided that the Executive complies with the provisions of Section
6(e) below.
(d) Survival of Executive’s Obligations. Executive understands and agrees
that his obligations under this Section shall survive the termination of this Agreement
and/or his employment with the Company. Executive further understands and agrees that his
obligations under this Section are in addition to, and not in limitation or preemption of,
all other obligations of confidentiality which he may have to the Company under general legal
or equitable principles, or other policies implemented by the Company.
(e) Certain Disclosures. In the event that the Executive receives a request to
disclose all or any part of the Confidential Information under the terms of a subpoena or
order issued by a court or by a governmental body, the Executive agrees (i) to notify the
Company immediately of the existence, terms, and circumstances surrounding such request, (ii)
to consult with the Executive on the advisability of taking legal available steps to resist
or narrow such request, and (iii) if disclosure of such Confidential Information is required
to prevent the Executive from being held in contempt or subject to other penalty, to furnish
only such portion of the Confidential Information as, in the opinion of counsel to the
Executive, it is legally compelled to disclose and to exercise its best efforts to obtain an
order or other reliable assurance that confidential treatment will be accorded to the
disclosed Confidential Information.
7. RETURN OF COMPANY PROPERTY
Executive acknowledges that all memoranda, notes, correspondence, databases, computer discs,
computer files, computer equipment and/or accessories, pagers, telephones, passwords or pass codes,
records, reports, manuals, books, papers, letters, CD Roms, keys, Internet database access codes,
client profile data, job orders, client and customer lists, contracts, software programs,
information and records, drafts of instructions, guides and manuals, and other documentation
(whether in draft or final form), and other sales, financial or technological information relating
to the Company’s business, and any and all other documents containing Confidential Information
furnished to Executive by any representative of the Company or otherwise acquired or developed by
him in connection with his association with the Company (collectively, “Recipient Materials”) shall
at all times be the property of the Company. Within twenty-four (24) hours of the termination of
his employment for any reason, Executive will return to the Company any Recipient Materials which
are in his possession, custody or control.
8. NON-SOLICITATION OF CUSTOMERS/CLIENTS
(a) Access to Confidential Information. Executive acknowledges that the special
relationship of trust and confidence between him, the Company, and its clients and customers
creates a high risk and opportunity for Executive to misappropriate the relationship and
goodwill existing between the Company and its clients and customers. Executive further
acknowledges and agrees that it is fair and reasonable for the Company to take steps to
protect itself from the risk of such misappropriation. Executive further acknowledges that,
at the outset of his employment with the Company and/or throughout his employment with the
Company, Executive has been or will be provided with access to and informed of the Company’s
Confidential Information, which will enable him to benefit from the Company’s goodwill and
know-how.
(b) Inevitable Disclosure. Executive acknowledges that it would be inevitable
in the performance of his duties as a director, officer, employee, investor, agent or
consultant of any person, association, entity, or company which competes with the Company, or
which intends to or may compete with the Company, to disclose and/or use the Company’s
Confidential Information, as well as to misappropriate the Company’s goodwill and
know-how, to or for the benefit of such other person, association, entity, or company.
Executive also acknowledges that, in exchange for the execution of the non-solicitation
restriction set forth in this Section 8(b), he has received substantial, valuable
consideration, including the consideration set forth in Sections 3 and 5 above. Executive
further acknowledges and agrees that this consideration constitutes fair and adequate
consideration for the execution of the non-solicitation restriction set forth in this
Section.
(c) Non-Solicitation of Customers. Ancillary to the enforceable promises set
forth in this Agreement including, without limitation, the promises contained in Sections 3,
6 and 7, as well as to protect the vital interests described in those Sections, Executive
agrees that, while he is employed by the Company and for a period of twelve (12) months
following the termination of his employment with the Company, regardless of the reason for
such termination, Executive will not, without the prior written consent of the Company,
directly or indirectly, alone or for his own account, or as owner, partner, investor, member,
trustee, officer, director, shareholder, employee, consultant, distributor, advisor,
representative or agent of any partnership, joint venture, corporation, trust, or other
business organization or entity, (i) contact, solicit sales of, or sell, deliver or place any
product, service or system of the kind and character sold, provided, distributed or placed by
Executive on behalf of the Company to any person, association, corporation or other business
organization or entity that Executive contacted, solicited, called upon, or served, or that
he directed others to solicit, call upon, or serve, on behalf of the Company, during his
employment at the Company; or (ii) contact, solicit, or seek to divert the business or
patronage of any person, association, corporation, or other business organization or entity
with whom or which Executive had business relations on behalf of the Company or with whom or
which he met or communicated, or with whom or which he directed others to meet or
communicate, for the purpose of offering to sell or place or solicit for sale or placement
any product, service, or system of the kind and character sold, provided or distributed by
him, on behalf of the Company, during his employment at the Company.
(d) Reasonable Restrictions. Executive agrees that the restriction set forth
above is ancillary to an otherwise enforceable agreement, is supported by independent
valuable consideration, and that the limitations as to time, geographical area, and scope of
activity to be restrained by this Section are reasonable and acceptable, and do not impose
any greater restraint than is reasonably necessary to protect the goodwill and other business
interests of the Company. Executive agrees that if, at some later date, a court of competent
jurisdiction determines that the non-solicitation agreement set forth in this Section does
not meet the criteria set forth in Tex. Bus. & Comm. Code Xxx. 15.50(2), this Section may be
reformed by the court and enforced to the maximum extent permitted under Texas law.
(e) Breach. If Executive is found to have violated any of the provisions of
this Section, Executive agrees that the restrictive period of each covenant so violated shall
be extended by a period of time equal to the period of such violation by him. Executive
understands that his obligations under this Section shall survive the termination of his
employment with the Company and shall not be assignable by him.
9. NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS
Executive acknowledges that, as part of his employment or association with the Company, he
will become familiar with the salary, pay scale, capabilities, experiences, skill and desires of
the Company’s employees. In order to protect the confidentiality of such information, Executive
agrees that, for a period of twelve (12) months following the termination of his employment with
the Company, whether such termination occurs at the insistence of Executive or the Company,
Executive shall not recruit, hire, solicit, or attempt to recruit, hire or solicit, directly or by
assisting others, any other employees or consultants employed by or associated with the Company,
nor shall he contact or communicate with any other employees or consultants of the Company for the
purpose of inducing other employees or consultants to terminate their employment or association
with the Company. For purposes of this covenant, “other employees or consultants” shall refer to
permanent employees, temporary employees, or consultants who were employed by, doing business with,
or associated with the Company within six (6) months of the time of the attempted recruiting,
hiring or solicitation. Executive’s obligations under this Section 9 shall survive the termination
of this Agreement and Executive’s employment with the Company.
10. REMEDIES
In the event that Executive violates any of the provisions set forth in Sections 6, 7, 8, or 9
of this Agreement, he acknowledges that the Company will suffer immediate and irreparable harm
which cannot be accurately calculated in monetary damages. Consequently, Executive acknowledges
and agrees that the Company shall be entitled to immediate injunctive relief, either by temporary
or permanent injunction, to prevent such a violation. Executive further acknowledges and agrees
that this injunctive relief shall be in addition to any other legal or equitable relief, including
monetary damages, to which the Company would be entitled.
11. INVENTIONS, IDEAS/PATENTABLE INVENTIONS
(a) Inventions. Any discovery, invention, design, improvement, concept or other
intellectual properties, either patentable or not, made, developed or conceived by the
Executive during the term of the Agreement, and for one year after termination thereof, which
relate to or are useful in the business or activities in which the Company is or may become
engaged, and which may or may not also constitute Confidential Information (the
“Inventions”), shall be the exclusive property of the Company and its successors.
(b) Disclosure to the Company. The Executive agrees to disclose promptly, in
writing, if so requested, to the Company, any Inventions that the Executive may make, develop
or conceive during the term of this Agreement by the Company or its successors.
(c) Work for Hire. The Executive agrees that the Inventions shall be deemed
“work made for hire” and hereby assigns, and agrees to assign, to the Company all the
Executive’s rights, title and interest in any such Inventions, whether or not during the term
of this Agreement such Inventions may be reduced to practice, and to execute all patent
applications, copyright applications, assignments and other documents, and to take all other
steps necessary (but all at the Company’s expense), to vest in the Company the entire right,
title and interest in and to those Inventions and in and to any patents or copyrights
obtainable therefor in the United States and in foreign countries.
(d) Obligation to Assign Inventions to the Company. The Executive shall not be
obligated to assign to the Company any Invention made by him during the Relationship or after
termination of this Agreement which does not relate to any business or activity in which the
Company is or may become engaged, except that the Executive is so obligated if the same
relates to or is based on Confidential Information to which the Executive shall have had
access during and by virtue of his employment or arises out of work assigned to him by the
Company; nor shall the Executive be obligated to assign any Inventions which relate to or
would be useful in any business or activities in which the Company is engaged if such
Invention was conceived and reduced by practice by the Executive prior to this Agreement with
the Company, provided that all such Inventions are listed on Exhibit A attached
hereto and made known to the Company.
12. SUCCESSORS; BINDING AGREEMENT
This Agreement shall be binding upon, and inure to the benefit of, the Company, Executive, and
their respective successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable. Without limiting the
generality of the foregoing, the Company may assign this Agreement (or the same may remain with the
Company as a subsidiary of a larger institution), without the consent of Executive, with such
assignee being required to perform the obligations of the Company hereunder, to any successor of
the Company.
13. COMPLETE AGREEMENT
This Agreement sets forth the entire agreement among the Company and Executive concerning the
subject matter hereof, and supersedes all prior written or oral understandings of the parties.
14. NOTICE
For purposes of this Agreement, notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been duly given when (i) delivered
personally; (ii) sent by telecopy or similar electronic
device and confirmed; (iii) delivered by
overnight express; or (iv) sent by registered or certified mail, postage prepaid, addressed as
follows:
| If to the Executive: | Xxxx X’Xxxxxxx | |||||
| 0000 Xxxxxxxxx Xxxxx | ||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| If to the Company: | American Eagle Services, Inc. | |||||
| 0000 XXX Xxxxxxx, Xxxxx 0000 | ||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Attention: Xxx Xxxxxxxxx, CEO | ||||||
| If to TBX : | TBX Resources, Inc. | |||||
| 0000 XXX Xxxxxxx, Xxxxx 0000 | ||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Attention: Xxx Xxxxxxxxx, CEO |
or to such other address as any 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.
15. MISCELLANEOUS
No provision of this Agreement may be modified, waived, or discharged unless such waiver,
modification, or discharge is agreed to in writing, signed by the Executive and the Company. No
waiver by either party hereto of, or compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Either party hereof has made no
agreements or representations, oral or otherwise, express or implied, with respect to the subject
matter, which are not set forth expressly in this Agreement.
16. GOVERNING LAW AND VENUE
This Agreement is being made and is intended to be performed in the State of Texas, and shall
be governed, construed, interpreted, and enforced in accordance with the substantive laws of the
State of Texas and venue for any matter in connection with or arising from this Agreement shall be
in Dallas County, Texas.
17. ATTORNEY FEES
All legal fees and costs incurred in connection with the resolution of any dispute or
controversy under or in connection with this Agreement shall be borne by the non-prevailing party.
18. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall be deemed to be an
original, but all of which together will constitute one and the same agreement.
19. VOLUNTARY AGREEMENT
The parties acknowledge that each has had an opportunity to consult with an attorney or other
counselor concerning the meaning, import, and legal significance of this Agreement, and each has
read this Agreement, as signified by their respective signatures hereto, and each is voluntarily
executing the same after, if sought, advice of counsel for the purposes and consideration herein
expressed.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date and year
first above written.
| COMPANY: | ||||||
| AMERICAN EAGLE SERVICES, INC. | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Name: Xxx Xxxxxxxxx | ||||||
| Title: President | ||||||
| EXECUTIVE: | ||||||
| /s/ Xxxxxxx Xxxx X’Xxxxxxx | ||||||
| Xxxx X’Xxxxxxx | ||||||
| TBX RESOURCES, INC. | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Name: Xxx Xxxxxxxxx | ||||||
| Title: President | ||||||
