EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is executed and effective on June 30,
2009, by and between Pinnacle Energy Corp., a Nevada corporation (the “Company”)
and Xxxxx Xxxxxxx, a resident of Laguna Niguel, California, (the
“Executive”).
Recitals
A. The
Company and Executive desire to enter into an agreement pursuant to which
Executive will be employed as the Chairman of the Board and Chief Executive
Officer of the Company on the terms and conditions set forth in this
Agreement.
B. Certain
definitions are set forth in Section 4 of this
Agreement.
Agreement
The
parties hereto agree as follows:
1. Employment. The Company hereby
engages Executive to serve as the Chairman of the Board and Chief Executive
Officer of the Company, and Executive agrees to serve the Company, during the
Service Term (as defined in Section 1(f) hereof)
in such capacities, subject to the terms and conditions set forth in this
Agreement.
(a) Services. During the Service
Term, Executive, as Chairman of the Baord and Chief Executive Officer of the
Company, shall have all the duties and responsibilities customarily rendered by
the Chairman of the Board and Chief Executive Officer of companies of similar
size and nature and as may be reasonably assigned from time to time by the
Board. Executive will report directly to the Board.
(b) Salary, Bonus and
Benefits.
i. Salary
and Bonus.
During the Service Term, the Company will pay Executive an annual base salary
(the “Annual Base Salary”) of One Hundred Eighty
Thousand Dollars ($180,000); provided, however, that the
Annual Base Salary shall be subject to review annually (at the end of each of
fiscal year of the Company) by the Board for upward increases thereon. The
Company will pay Executive an initial bonus (the “Initial Bonus”) of 500,000 shares of the
Company’s restricted common stock and Executive will be eligible to receive an
annual bonus at the discretion of the Board of Directors.
ii. Benefits. During the Service
Term, Executive shall be entitled to: (A) participate in
and shall receive all benefits under pension benefit plans provided by the
Company (including without limitation participation in any Company incentive,
savings and retirement plans, practices, policies and programs) to the extent
applicable generally to other peer executives of the Company. In addition,
during the Service Term, the Executive and/or the Executive’s family shall be
entitled to participate and shall receive all benefits under welfare plans
provided by the Company (including without limitation medical prescriptions,
dental, disability, employee life, group life, accidental life and travel
accident insurance plans and plans) to the extent and on the same basis
applicable generally to other peer executives of the Company; (B) be reimbursed
for customary travel and other expenses, subject to standard and reasonable
documentation requirements; and (C) receive four weeks paid vacation per
annum. Any unused vacation time during each fiscal year shall be
rolled-over to the following fiscal year to the extent permitted by the
Company’s policies for other senior executives of the Company.
(c) Termination.
i. Events of
Termination. Executive’s employment
with the Company shall cease upon:
(A) Executive’s
death;
(B) Executive’s
voluntary retirement;
(C) Executive’s
permanent disability, which means his incapacity due to physical or mental
illness such that he is unable to perform the essential functions of his
previously assigned duties for a period of thirty (30) days in any twelve (12)
month period and such permanent incapacity has been determined to exist by
either (x) the Company’s disability insurance carrier or (y) by the Board in
good faith based on competent medical advice in the event that the Company does
not maintain disability insurance on Executive;
(D) Termination
by the Company by the delivery to Executive of a written notice from the Board
that Executive has been terminated (“Notice of Termination”) with or without
Cause. “Cause” shall mean:
(1) Executive’s
(a) conviction of a felony; (b) Executive’s commission of any other material act
or omission involving dishonesty or fraud with respect to the Company or any of
its Affiliates or any of the customers, vendors or suppliers of the Company or
its Subsidiaries; (c) Executive’s misappropriation of material funds or assets
of the Company for personal use; or (d) Executive’s engagement in unlawful
harassment or other discrimination with respect to the employees of the Company
or its Subsidiaries;
(2) Executive’s
continued substantial and repeated neglect of his duties, after written notice
thereof from the Board, and such neglect has not been cured within thirty (30)
days after Executive receives notice thereof from the Board;
(3) Executive’s
willful misconduct in the performance of his duties hereunder that is materially
injurious to the Company;
|
|
|
(4) Executive’s
engaging in conduct constituting a breach of Sections 2 or 3 hereof that is not
cured in full within fifteen (15) days after notice of default thereof,
from the Company; or
|
|
|
(E) Executive’s
voluntary resignation by the delivery to the Company and the Board of at least
thirty (30) days written notice from Executive that Executive has resigned with
or without Good Reason. “Good Reason” shall mean Executive’s resignation
from employment with the Company within 30 days after the occurrence of any one
of the following:
(1) the
failure of the Company to pay an amount owing to Executive hereunder after
Executive has provided the Company and the Board with written notice of such
failure and such payment has not thereafter been made within fifteen (15) days
of the delivery of such written notice;
(2) the
relocation of Executive from the corporate headquarters metropolitan area
(as of the date of this agreement) without his consent.
|
|
|
|
|
|
ii. Date of
Termination. Date of Termination means (i) if the employment is
terminated for Cause, or by Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be, (ii) if the
employment is terminated other than for Cause or Disability, the Date of
Termination shall be the date on which the Employer notifies the Employee of
such termination and (iii) if the Employee’s employment is terminated by reason
of death or disability, the date of Termination shall be the date of death or
the disability effective date, as the case may be.
|
|
|
iii. Rights on
Termination.
(A) In the
event that termination is by the Company without Cause or by Executive with Good
Reason, the Company will continue, for a period of six (6) months commencing on
the effective date of the termination (the “Severance Period”), to pay Executive a monthly
or bi-weekly portion of the Annual Base Salary on regular salary payment
dates. The payments of Annual Base Salary in accordance with this Section 1(c)(iii)(A)
are referred to as “Severance Payments.” This Section 1(c)(iii)(A)
shall not apply unless the Company and Executive have executed a contingent
mutual release in a form mutually acceptable to both the Company and Executive
and is subject to paragraph (e)
below. In addition, the Company will pay to Executive in a lump sum any
accrued but unused vacation time.
(B) If the
Company terminates Executive’s employment for Cause, or if Executive resigns
without Good Reason (including by operation of the last paragraph of Section 1(c)(i)(E)),
or if Executive’s employment is terminated by the expiration of this Agreement,
the Company’s obligations to pay any compensation or benefits under this
Agreement (other than accrued but unused vacation time which shall be paid to
Executive in a lump sum payment) and all vesting under all stock options held by
Executive will cease effective as of the date of termination. Executive’s
right to receive any other health or other benefits, if any, will be determined
under the provisions of applicable plans, programs or other
coverages.
|
|
|
(C) If
Executive’s employment terminates because of Executive’s death or
permanent disability, then Executive or his estate shall be entitled to any
disability income or life insurance payments from any insurance policies (other
than any key man life insurance policy) paid for by the Company. In
addition, if such death or disability occurs while Executive is employed
hereunder, for a period of six (6) months commencing on the date of such death
or such disability is established, Executive or his estate shall be entitled to
payment of his monthly or bi-weekly portion of the Annual Base Salary on regular
salary payment dates.
|
|
|
Notwithstanding
the foregoing, the Company’s obligation to Executive for severance pay or other
rights under either subparagraphs (A) or
(B) above (the
“Severance Pay”) shall
cease if Executive is found by a court of law to be in material violation of the
provisions of Sections
2 or 3 hereof. Until such time as Executive has received all of his
Severance Payments, he will be entitled to continue to receive any health, life,
accident and disability insurance benefits provided by the Company to Executive
under this Agreement.
(d) Mitigation. The Company’s obligation to
continue to provide Executive with the Severance Payments pursuant to Section 1(c)(iii)(A)
above and the benefits pursuant to the second sentence of Section 1(c)(iii)(C)
above shall cease if Executive becomes employed as a senior executive by a third
party.
(e) Liquidated
Damages. The
parties acknowledge and agree that damages which will result to Executive for
termination by the Company without Cause shall be extremely difficult or
impossible to establish or prove, and agree that the Severance Payments shall
constitute liquidated damages for any breach of this Agreement by the Company
through the Date of Termination. Executive agrees that, except for such
other payments and benefits to which Executive may be entitled as expressly
provided by the terms of this Agreement or any applicable Benefit Plan, such
liquidated damages shall be in lieu of all other claims that Executive may make
by reason of termination of his employment or any such breach of this Agreement
and that, as a condition to receiving the Severance Payments, Executive will
execute a contingent mutual release of claims in a form reasonably satisfactory
to both the Company and Executive.
(f) Term of
Employment.
Unless Executive’s employment under this Agreement is sooner terminated as a
result of Executive’s termination in accordance with the provisions of Section 1(c) above,
Executive’s employment under this Agreement shall commence on June 30, 2009, and
shall terminate on June 29, 2010 (the “Service Term”).
2. Confidential Information;
Proprietary Information, etc.
(a) Obligation
to Maintain Confidentiality. Executive acknowledges that any Proprietary
Information disclosed or made available to Executive or obtained, observed or
known by Executive as a direct or indirect consequence of his employment with or
performance of services for the Company or any of its Affiliates during the
course of his performance of services for, or employment with, any of the
foregoing Persons (whether or not compensated for such services) and during the
period in which Executive is receiving Severance Payments, are the property of
the Company and its Affiliates. Therefore, Executive agrees that he will
not at any time (whether during or after Executive’s term of employment)
disclose or permit to be disclosed to any Person or, directly or indirectly,
utilize for his own account or permit to be utilized by any Person any
Proprietary Information or Records for any reason whatsoever without the Boards
consent, unless and to the extent that (except as otherwise provided in the
definition of Proprietary Information) the aforementioned matters become
generally known to and available for use by the public other than as a direct or
indirect result of Executive’s acts or omissions to act. Executive agrees to
deliver to the Company at the termination of his employment, as a condition to
receipt of the next or final payment of compensation, or at any other time the
Company may request in writing (whether during or after Executive’s term of
employment), all Records which he may then possess or have under his control.
Executive further agrees that any property situated on the Company’s or its
Affiliates premises and owned by the Company or its Affiliates, including disks
and other storage media, filing cabinets or other work areas, is subject to
inspection by Company or its Affiliates and their personnel at any time with or
without notice. Nothing in this Section 2(a) shall be
construed to prevent Executive from using his general knowledge and experience
in future employment so long as Executive complies with this Section 2(a) and the
other restrictions contained in this Agreement.
(b) Ownership
of Property.
Executive acknowledges that all inventions, innovations, improvements,
developments, methods, processes, programs, designs, analyses, drawings, reports
and all similar or related information (whether or not patentable) that
relate to the Company’s or any of its Affiliates actual or anticipated business,
research and development, or existing or future products or services and that
are conceived, developed, contributed to, made, or reduced to practice by
Executive (either solely or jointly with others) while employed by the Company
or any of its Affiliates (including any of the foregoing that constitutes any
Proprietary Information or Records) (“Work Product”) belong to the Company or
such Affiliate and Executive hereby assigns, and agrees to assign, all of the
above Work Product to the Company or such Affiliate. Any copyrightable
work prepared in whole or in part by Executive in the course of his work for any
of the foregoing entities shall be deemed a work made for hire under the
copyright laws, and the Company or such Affiliate shall own all rights therein.
To the extent that any such copyrightable work is not a work made for hire,
Executive hereby assigns and agrees to assign to Company or such Affiliate all
right, title and interest, including without limitation, copyright in and
to such copyrightable work. Executive shall promptly disclose such Work
Product and copyrightable work to the Board and perform all actions reasonably
requested by the Board (whether during or after Executive’s term of employment)
to establish and confirm the Company’s or its Affiliates ownership (including,
without limitation, execution of assignments, consents, powers of attorney and
other instruments). Notwithstanding anything contained in this Section 2(b) to the
contrary, the Company’s ownership of Work Product does not apply to any
invention that Executive develops entirely on his own time without using the
equipment, supplies or facilities of the Company or its Affiliates or
Subsidiaries or any Proprietary Information (including trade secrets), except
that the Company’s ownership of Work Product does include those inventions
that: (a) relate to the business of the Company or its Affiliates or
Subsidiaries or to the actual or demonstrably anticipated research or
development relating to the Company’s business; or (b) result from any work that
Executive performs for the Company or its Affiliates or
Subsidiaries.
(c) Third
Party Information.
Executive understands that the Company and its Affiliates will receive
from third parties confidential or proprietary information (“Third Party
Information”) subject to a duty on the Company’s and its Affiliates part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. During the term of Executive’s employment and
thereafter, and without in any way limiting the provisions of Sections 2(a) and
2(b) above,
Executive shall hold Third Party Information in the strictest confidence and
shall not disclose to anyone (other than personnel of the Company or its
Affiliates who need to know such information in connection with their work for
the Company or its Affiliates) or use, except in connection with his work for
the Company or its Affiliates, Third Party Information unless expressly
authorized by a member of the Board in writing.
(d) Use of
Information of Prior Employers, etc. Executive will abide by
any enforceable obligations contained in any agreements that Executive has
entered into with his prior employers or other parties to whom Executive has an
obligation of confidentiality.
(e) Compelled
Disclosure. If
Executive is required by law or governmental regulation or by subpoena or other
valid legal process to disclose any Proprietary Information or Third Party
Information to any Person, Executive will immediately provide the Company with
written notice of the applicable law, regulation or process so that the Company
may seek a protective order or other appropriate remedy. Executive will
cooperate fully with the Company and the Company’s Representatives in any
attempt by the Company to obtain any such protective order or other
remedy. If the Company elects not to seek, or is unsuccessful in
obtaining, any such protective order or other remedy in connection with any
requirement that Executive disclose Proprietary Information or Third Party
Information, and if Executive furnishes the Company with a written opinion of
reputable legal counsel acceptable to the Company confirming that the disclosure
of such Proprietary Information or Third Party Information is legally required,
then Executive may disclose such Proprietary Information or Third Party
Information to the extent legally required; provided, however, that
Executive will use his reasonable best efforts to ensure that such Proprietary
Information is treated confidentially by each Person to whom it is
disclosed.
3. Nonsolicitation.
(a) Nonsolicitation. As long as
Executive is an employee of the Company or any Affiliate thereof, and for twelve
(12) months thereafter, Executive shall not directly or indirectly through
another entity: (i) induce or attempt to induce any employee of the Company or
any Affiliate to leave the employ of the Company or such Affiliate, or in any
way interfere with the relationship between the Company or any Affiliate and any
employee thereof; (ii) hire or employ any person who was an employee of the
Company or any Affiliate at any time during the nine (9) month period
immediately preceding the date of such Executive’s termination, (iii) solicit,
divert, or endeavor to entice away from the Company or any entity controlled by
the Company, or otherwise engage in any activity intended to terminate, disrupt,
or interfere with, the Company's or any of its affiliates’ business
relationships or opportunities or otherwise adversely affect the Company's or
any of its affiliates' business relationships or opportunities, or (iv) publish
or make any statement critical of the Company or any shareholder or affiliate of
the Company or in any way adversely affect or otherwise malign the business or
reputation of any of the foregoing persons.
(b) Acknowledgment. Executive acknowledges that
in the course of his employment with the Company and its Affiliates, he has and
will become familiar with the trade secrets and other Proprietary Information of
the Company and its Affiliates. It is specifically recognized by Executive that
his services to the Company and its Subsidiaries are special, unique and of
extraordinary value, that the Company has a protectable interest in prohibiting
Executive as provided in this Section 3, that
money damages are insufficient to protect such interests, that there is adequate
consideration being provided to Executive hereunder, that such prohibitions are
necessary and appropriate without regard to payments being made to Executive
hereunder and that the Company would not enter this Agreement with Executive
without the restriction of this Section 3. Executive
further acknowledges that the restrictions contained in this Section 3 do not
impose an undue hardship on him and, since he has general business skills which
may be used in industries other than that in which the Company and its
Subsidiaries conduct their business, do not deprive Executive of his
livelihood. Executive further acknowledges that the provisions of this
Section 3 are
separate and independent of the other sections of this Agreement.
(c) Enforcement,
etc. If, at
the time of enforcement of Section 2 or 3 of this Agreement,
a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum duration,
scope or geographical area reasonable under such circumstances as determined by
the court shall be substituted for the stated period, scope or area.
Because Executive’s services are unique, because Executive has access to
Proprietary Information and for the other reasons set forth herein, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, without limiting the generality of Section 7(g), in the
event of a breach or threatened breach of this Agreement, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof.
(d) Submission
to Jurisdiction. The parties hereby:
(i) submit to the jurisdiction of any state or federal court sitting in
California in any action or proceeding arising out of or relating to Section 2 and/or
3 of this
Agreement; (ii) agree that all claims in respect of such action or proceeding
may be heard or determined in any such court; and (iii) agree not to bring any
action or proceeding arising out of or relating to Section 2 and/or
3 of this
Agreement in any other court. The parties hereby waive any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that might be required of any other
party with respect thereto. The parties hereby agree that a final judgment in
any action or proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law.
GENERAL
PROVISIONS
4. Definitions.
“Affiliate”
of any Person means any other Person which directly or indirectly controls, is
controlled by or is under common control with such Person.
“Board”
means the Company’s board of directors or the board of directors or similar
management body of any successor of the Company.
“Proprietary Information”
means any and all data and information concerning the business affairs of the
Company or any of its Affiliates and not generally known in the industry in
which the Company or any of its Affiliates is or may become engaged, and any
other information concerning any matters affecting or relating to the Company’s
or its Affiliates businesses, but in any event Proprietary Information shall
include, any of the Company’s and its Affiliates past, present or prospective
business opportunities, including information concerning acquisition
opportunities in or reasonably related to the Company’s or its Affiliates
businesses or industries, customers, customer lists, clients, client lists, the
prices the Company and its Affiliates obtain or have obtained from the sale of,
or at which they sell or have sold, their products, unit volume of sales to past
or present customers and clients, or any other information concerning the
business of the Company and its Affiliates, their manner of operation, their
plans, processes, figures, sales figures, projections, estimates, tax records,
personnel history, accounting procedures, promotions, supply sources, contracts,
know-how, trade secrets, information relating to research, development,
inventions, technology, manufacture, purchasing, engineering, marketing,
merchandising or selling, or other data without regard to whether all of the
foregoing matters will be deemed confidential, material or important.
Proprietary Information does not include any information which Executive has
obtained from a Person other than an employee of the Company, which was
disclosed to him without a breach of a duty of confidentiality.
“Records” means (i) any and
all procedure manuals, books, records and accounts; (ii) all property of the
Company and its Affiliates, including papers, note books, tapes and similar
repositories containing Proprietary Information; (iii) all invoices and
commission reports; (iv) customer lists partial and/or complete; (v) data
layouts, magnetic tape layouts, diskette layouts, etc.; (vi) samples; (vii)
promotional letters, brochures and advertising materials; (viii) displays and
display materials; (ix) correspondence and old or current proposals to any
former, present or prospective customer of the Company and its Affiliates; (x)
information concerning revenues and profitability and any other financial
conditions of the Company and its Affiliates; (xi) information concerning the
Company and its Affiliates which was input by Executive or at his direction,
under his supervision or with his knowledge, including on any floppy disk,
diskette, cassette or similar device used in, or in connection with, any
computer, recording devices or typewriter; (xii) data, account information or
other matters furnished by customers of the Company and its Affiliates; and
(xiii) all copies of any of the foregoing data, documents or devices whether in
the form of carbon copies, photo copies, copies of floppy disks, diskettes,
tapes or in any other manner whatsoever.
“Person” means an individual,
a partnership, a limited liability company, a corporation, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
“Subsidiary”
means any corporation of which the Company owns securities having a majority of
the ordinary voting power in electing the board of directors directly or through
one or more subsidiaries.
5. Notices. Any notice provided for in
this Agreement must be in writing and must be either personally delivered,
mailed by first class United States mail (postage prepaid, return receipt
requested) or sent by reputable overnight courier service (charges prepaid) or
by facsimile to the recipient at the address below indicated:
If to Executive:
Xxxxx Xxxxxxx
If to the Company:
________________________
________________________
________________________
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending party.
6. Executive’s
Representations and Warranties. Executive represents
and warrants that he has full and authority to enter into this Agreement and
fully to perform his obligations hereunder, that he is not subject to any
non-competition agreement, and that his past, present and anticipated future
activities have not and will not infringe on the proprietary rights of others,
including, but not limited to, proprietary information rights or interfere with
any agreements he has with any prior employee. Executive further
represents and warrants that he is not obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, which
would conflict with or result in a breach of this Agreement or which would in
any manner interfere with the performance of his duties for the
Company.
7. General
Provisions.
(a) Expenses. Each party shall bear his or
its own expenses in connection with the negotiation and execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement.
(b) Severability. Whenever possible,
each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained
herein.
(c) Complete
Agreement. This
Agreement, those documents expressly referred to herein and other documents of
even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(d) Counterparts;
Facsimile Transmission. This Agreement may be
executed in separate counterparts, each of which is deemed to be an original and
all of which taken together constitute one and the same agreement. Each party to
this Agreement agrees that it will be bound by its own telecopied signature and
that it accepts the telecopied signature of each other party to this
Agreement.
(e) Successors
and Assigns; Merger or Sale of Assets. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by Executive, the Company and their respective successors and assigns; provided that the rights and
obligations of Executive under this Agreement shall not be assignable and, provided further that, the
rights and obligations of the Company may be assigned to any Affiliate of the
Company. In the event of a merger or the sale of all or substantially all of the
assets of the Company, the acquiring company shall be bound by the terms of this
Agreement.
(f) Choice of
Law; Jurisdiction. All questions concerning the
construction, validity and interpretation of this Agreement and the exhibits
hereto will be governed by and construed in accordance with the internal laws of
the State of California, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of California or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of California. The parties hereby: (i) submit to the
jurisdiction of any state or federal court sitting in California in any action
or proceeding arising out of or relating to Agreement; (ii) agree that all
claims in respect of such action or proceeding may be heard or determined in any
such court; and (iii) agree not to bring any action or proceeding arising out of
or relating to this Agreement in any other court. Executive hereby waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety or other security that might be required of
any other party with respect thereto. The parties hereby agrees that a final
judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by
law.
(g) Remedies. Each of the parties to this
Agreement will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorneys fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(h) Amendment
and Waiver. The
provisions of this Agreement may be amended or and waived only with the prior
written consent of the Company and the Executive.
(i) Business
Days. If any time
period for giving notice or taking action hereunder expires on a day which is a
Saturday, Sunday or holiday in the state in which the Company’s chief executive
office is located, the time period shall be automatically extended to the
business day immediately following, such Saturday, Sunday or
holiday.
(j) Termination. Sections 2 and 3 of this
Agreement shall survive the termination of Executive’s employment with the
Company and shall remain in full force and effect after such
termination.
(k) No
Waiver. A waiver
by any party hereto of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which such party would
otherwise have on any future occasion. No failure to exercise nor any
delay in exercising on the part of any party hereto, any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided are cumulative and may be exercised singly or concurrently, and
are not exclusive of any rights or remedies provided by law.
(l) Insurance. The Company, at its
discretion, may apply for and procure in its own name for its own benefit life
and/or disability insurance on Executive in any amount or amounts considered
available. Executive agrees to cooperate in any medical or other examination,
supply any information, and to execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and constitute
such insurance. Executive hereby represents that he has no reason to believe
that his life is not insurable at rates now prevailing for healthy men of his
age.
(m) Offset. Whenever the Company
or any of its Subsidiaries is obligated to pay any sum to Executive or any
Affiliate or related person thereof pursuant to this Agreement, any bona fide
debts that Executive or such Affiliate or related person owes to the Company or
any of its Subsidiaries may be deducted from that sum before
payment.
(n) Indemnification
and Reimbursement of Payments on Behalf of Executive. The Company and its
Subsidiaries shall be entitled to deduct or withhold from any amounts owing from
the Company or any of its Subsidiaries to Executive any federal, state,
provincial, local or foreign withholding taxes, excise taxes, or employment
taxes (“Taxes”) imposed with respect to Executive’s compensation or other
payments from the Company or any of its Subsidiaries or Executive’s ownership
interest in the Company, including, but not limited to, wages, bonuses,
dividends, the receipt or exercise of stock options and/or the receipt or
vesting of restricted stock.
(o) Insurance
and Indemnification. For the period from the date of this Agreement
through at least the third anniversary of the Employees termination of
employment from the Employer, the Employer shall maintain the Employee as an
insured party on all directors and officers insurance maintained by the Employer
for the benefit of its directors and officers on at least the same basis as all
other covered individuals and provide the Employee with at least the same
corporate indemnification as it provides to the peer executives of the
Employer. The Company’s obligations under this Section 7(o)
shall terminate upon termination of Executive’s employment for Cause, or if
Executive resigns without Good Reason.
SIGNATURES
ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the date first written
above.
Executive:
/s/ XXXXX
XXXXXXX
Xxxxx Xxxxxxx
Company:
By:/s/ W. XXXXX
XXXXXX
Its:
CEO
