EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
dated
the 1st day of June, 2006
BETWEEN:
RANCHER
ENERGY CORP.,
a
company incorporated under the laws of the State of Nevada, having an office
address of 0000 Xxxx 00xx
Xxxxxx,
Xxxxxxx, Xxxxxxxxxx, XXX, 00000
(hereinafter
referred to as the “Company”)
OF
THE FIRST PART
AND:
XXXX
WORKS,
Businessman, having an address of 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, XXX, 00000
(hereinafter
referred to as the “Employee”)
OF
THE SECOND PART
WHEREAS:
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A.
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The
Employee has expertise in the area of developing, arranging financing
and
managing energy projects and companies and the Company desires to
employ
the Employee as its President, Chief Executive Officer and an Executive
Director to attend to such business and to perform duties as more
particularly described herein;
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B.
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The
Company and the Employee are of the view that it is in the best interest
of each of the parties to have the Employee enter into this Agreement
and
to have the Employee devote his full time and attention to the business
of
the Company;
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C.
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The
parties desire to set out in writing the terms on which the Employee
will
perform services for the Company.
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NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT
in
consideration of the premises and the mutual promises, conditions,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
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1.
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Duties
and Responsibilities
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1.01 The
Company hereby engages and retains the Employee as its President, Chief
Executive Officer and an Executive Director to perform duties and assignments
relating to the business of the Company or its affiliates as may be assigned
to
him by the Board of Directors of the Company (the
"Board")
from time to time, or by the Chairman or other designee, if so empowered by
the
Board. The Employee shall have the authority and responsibility over the
day-to-day operations of the Company and such other rights and responsibilities
as shall be consistent with his position (collectively referred to as the
“Services”). The Employee agrees that he will devote his full employment
energies, interest, abilities and time to the performance of his employment
obligations with the Company and that he will not, without the written consent
of the Company, render to other any service of any kind for compensation, and
will not engage in any activity that conflicts or interferes with the
performance of any employment duties with the Company.
1.02 The
Employee shall be authorized to incur corporate expenditures in connection
with
his duties under this Agreement in the ordinary course of business provided
that
such expenditures do not exceed Thirty Thousand $30,000) per month and, in
the
event funds over Thirty Thousand ($30,000) require to be expended, the Employee
will consult the Company’s Board of Directors for approval prior to any
disbursement of monies.
1.03 The
Consultant will perform the Services in accordance with this Agreement at Xxxxx
0000, 00xx
Xxxxxx,
Xxxxxx, Xxxxxxxx, XXX, 00000 or such other address that is acceptable to both
parties. In addition, the Consultant will perform the Services on the telephone,
via e-mail or other communication device, and at such other places as designated
by the Company in accordance with this Agreement.
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2.
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Term
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Subject
to the terms of this Agreement, the Employee shall perform the Services for
a
period of Two (2) years (the “Term”) commencing on the date of execution of this
Agreement (the “Effective Date”) provided however, that this Agreement shall be
renewed automatically for additional Two (2) year periods on the anniversary
date of the Second (2nd) year (the “Additional Term”) unless:
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(a)
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prior
to the commencement of the Additional Terms, one of the parties gives
the
other party Thirty (30) days written notice that such party desires
to
terminate this Agreement; or
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(b)
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the
parties have been unable to agree upon a mutually-acceptable Fee
for such
Additional Terms.
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3.
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Remuneration
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3.01 For
providing the Services to the Company during the Term, the Employee shall
receive a fee of Twelve Thousand, Five Hundred Dollars ($12,500) per month
(the
“Fee”) commencing on the Effective Date. The Fee will be issued to the Employee
on the first day of each month the Agreement is in effect. The
Employee will be responsible for remitting all withholding tax from his
compensation as may be required by United States and Canadian (as applicable)
federal, provincial, state, and local tax laws.
3.02
In
addition to the Fee, the Company shall pay the Employee, from time to time,
such
bonus payments as may be determined by the Board of Directors of the Company.
The bonus will be based upon the Company’s revenue.
3.03 The
Company shall pay or reimburse the Employee for all out-of-pocket expenses,
including without limitation, all reasonable communications, travel and
promotional expenses payable or incurred by the Employee in connection with
his
duties under this Agreement provided such expenses are, in aggregate, not
exceeding Ten Thousand ($10,000) per month. In the event of expenses over Ten
Thousand ($10,000) per month, the Employee will consult the Company’s Board of
Directors for approval prior to the disbursement of any monies.
3.04 During
the Term of this Agreement, the Employee shall be eligible to participate in
the
standard fringe benefits package and incentive compensation plans generally
made
available to the executive management employees of the Company, as such benefits
may be determined or changed from time to time by the Board of Directors of
the
Company. The fringe benefit programs will include at a minimum reasonable
dental, hospital and major medical insurance coverage for the Employee and
the
family of the Employee. Without limiting the generality of the foregoing, the
Company shall at a minimum reimburse the Employee for the amount of monthly
Blue
Cross, or equivalent, insurance coverage at the time this Agreement is entered
into and shall increase such reimbursement as the cost of such coverage is
increased by the provider thereof from time to time.
3.05 During
the term of this Agreement, the Company shall pay to the Employee an automobile
allowance of Four Hundred Dollars ($400) per month together with a parking
allowance of One Hundred Fifty ($150) per month.
3.06 The
Company will maintain the offices located in Denver, Colorado as set out in
item
1.03 herein or such other office in a location selected by the Employee at
his
discretion from time to time, with a computer and such additional equipment
and
office furnishings as are necessary to carry out the responsibilities of the
office of the President, CEO and Director. At a minimum, the Company agrees
to
pay a monthly rent of Nine Hundred Fifty Dollars ($950), or such other amount
as
may be approved by the Board of Directors of the Company.
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4.
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Share
Compensation
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The
Company shall grant to the Employee the option to purchase up to Four Million
(4,000,000) common shares in the capital stock of the Company at a price of
$0.00001 per share as follows:
(a) One
Million (1,000,000) shares upon the execution of this Agreement;
(b) One
Million (1,000,000) shares for the period June 1, 2006 to May 31, 2007 at a
rate
of Two Hundred
Fifty Thousand (250,000) shares per completed quarter;
(c) One
Million (1,000,000) shares for the period June 1, 2007 to May 31, 2008 at a
rate
of Two Hundred
Fifty Thousand (250,000) shares per completed quarter; and
(d) One
Million (1,000,000) shares for the period June 1, 2008 to May 31, 2009 at a
rate
of Two Hundred
Fifty Thousand (250,000) shares per completed quarter.
All
shares purchased by the Employee will be fully paid and
non-assessable.
In
the
event this Agreement is terminated pursuant to section 5 hereof, the Employee
will be entitled to purchase any shares that have vested as per the above
schedule but will forfeit any right or interest to any shares not yet vested.
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5.
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Termination
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5.01 The
parties hereto may terminate this Agreement at any time by giving the other
party Thirty (30) days written notice. In the event the Company terminates
the
Agreement for Cause at any time during the Term, the Term shall end and the
Company will set forth in reasonable detail the specific conditions that it
considers to constitute Cause, and termination shall be effective thirty (30)
days after the delivery of such notice.
For
purposes of this Agreement, the term “Cause” shall mean, when used with respect
to the termination of this Agreement by the Company: (i) the
Employee's failure or refusal to adequately perform employment duties and
obligations or to comply with the policies, rules, and regulations of the
Company; (ii) any
breach by Employee of this Agreement's provisions; (iii) any illness or
disability resulting in the Employee being unable to perform his duties
hereunder for a period of 30 days or for a cumulative period during any 12
month
period of more than three months; (iv) any alcohol, drug or other substance
abuse by the Employee; (v) the conviction or commission of any felony or any
other criminal offense involving dishonesty or moral turpitude by Employee;
or
(vi) death.
If,
during the Term, the Company terminates this Agreement for Cause, then the
Company shall pay to the Employee (or in the event of termination of employment
by reason of the Employee’s death, his legal representative or his estate if no
representative has been appointed) in a lump sum in cash, within 30 days after
the date of Termination, an amount equal to the accrued but unpaid salary
pursuant to Section 3 plus any unpaid approved expenses and deliver to him,
or
his representative, the shares which have vested and that have been paid for
under Section 4 but not yet delivered.
In
the
event the Company terminates this Agreement other than for Cause, then the
Company shall pay to the Employee, in a lump sum in cash within 30 days after
the date of Termination, an amount equal to Three (3) months salary, or
Thirty-Seven Thousand, Five Hundred Dollars ($37,500), that the Company would
have been obligated to pay the Employee pursuant to Section 3.01 plus the amount
of any unpaid approved expenses and any shares which have vested and that have
been paid for under Section 4 but not yet delivered.
5.02
This
Agreement shall terminate immediately upon the death of the Employee and in
the
event of such death:
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(a)
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The
Company shall pay to the estate of the Employee the Fee otherwise
payable
to the Employee pursuant to Section 3.01 hereof through the last
day of
the calendar month in which the death of the Employee
occurred;
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(b)
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as
expeditiously as possible after the death, the Company shall pay
or
reimburse the estate of the Employee for all reasonable expenses
incurred
prior to the death of the Employee pursuant to Section 3.2 hereof;
and
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(b)
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with
respect to the share option described in Section 4, the legal
representative of the Employee shall have the right, at any time
up to and
including (but not after) one year following the date of death of
the
Employee, to purchase any shares which have not been purchased and
which
had vested prior to the Employee’s
death.
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6.
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Restrictive
Covenants
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6.01 Non-Competition
The
Employee agrees that he shall not, without the prior written consent of the
Company, for a period of two (2) years from the termination of the Employee's
employment with the Company for any reason solicit or attempt to solicit
business that is competitive with the Company, directly or indirectly, from
any
then current customer, client, partner, or investor of the Company.
The
Employee acknowledges that this non-competition covenant is ancillary to or
part
of this enforceable Agreement, and that any limitations as to time, geographic
scope and scope of activity to be restrained as set forth herein are reasonable
and do not impose a greater restraint than is necessary to protect the goodwill
or other business interest of the Company.
6.02 Non-Solicitation
The
Employee agrees that during his employment with the Company and for a period
of
two (2) years after termination of such employment, he shall not, on his own
behalf or on behalf of any other person or business entity, hire, solicit,
seek
to hire, or offer employment to any person who now or later works for the
Company, or who is a current or prospective employee of the Company. The
Employee further agrees that he will not in any other manner attempt, directly
or indirectly, to influence, induce, or encourage any person who now or later
works for the Company, or who is a current or prospective employee of the
Company to leave the employment of the Company.
The
Employee acknowledges that the provisions of covenants 6.01 and 6.02 (the
“Covenants”) have been considered by him and are, with respect to the interests
of the Employee and the interests of the Company, reasonable as to time,
territory and extent.
6.03 The
Employee and the Company agree and recognize that a breach by the Employee
of
any part of the Covenant would result in damages to the Company which could
not
be adequately compensated for by a monetary award. Accordingly, the Employee
agrees that in the event of any such breach, in addition to all other remedies
available to the Company at law or in equity, the Company shall be entitled
as a
matter or right to apply to a court of competent equitable jurisdiction for
such
relief by way of restraining order, injunction, decree or otherwise, as may
be
appropriate to ensure compliance with the provisions of this
Covenant.
The
Employee and the Company agree and recognize that all restrictions in the
Covenants are necessary and fundamental to the protection of the business
carried on by the Company and are reasonable and valid, and all defense to
the
strict enforcement thereof by the Company is hereby waived by the
Employee.
6.04 The
Company agrees that in the event that any Section herein is determined to be
void or unenforceable in whole or in part, such determination shall be deemed
not to affect or impair the validity of enforceability or the remainder of
such
section or any other provisions of this Agreement, and with respect to Section
6
hereof, the parties agree that, in the event that a court of competent
jurisdiction determines that the period of two (2) years specified in such
Section is unreasonable and that such provision would for that reason be void
or
unenforceable, the parties hereby request the court to substitute such shorter
period therefore would provide the maximum protection to the Company with the
enforceability of that provision.
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7.
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Confidentiality
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7.01 During
the Employee's employment under this Agreement, the Company will give the
Employee access to, and the Employee will become familiar with, Confidential
Information. The Employee agrees that all such Confidential Information, and
all
files, records, documents, information, data and similar items relating to
the
Company's business, including all originals and all copies, whether prepared
by
the Employee or otherwise coming into his possession, shall remain the exclusive
property of the Company during the Employee's employment with the Company and
following the termination of the Employee's employment with the Company. The
Employee further agrees that he shall not, without the prior written consent
of
the Company, use or disclose to any third party any of the Confidential
Information described herein, directly or indirectly, either during the
Employee's employment with the Company or at any time following the termination
of the Employee's employment with the Company. The Employee acknowledges that
the Confidential Information and other consideration to be provided to Employee
pursuant to this Agreement give rise to the Company's interest in restraining
the Employee from disclosing the Company's Confidential
Information.
7.02 The
Employee will return to the Company upon the termination of this Agreement
all
plans, drawings, property reports, models, samples, papers, notes, books,
computer disks and files or other documentation belonging to the
Company.
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8.
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Notices
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8.01 Any
notice, direction, or other instrument required or permitted to be given under
this Agreement shall be in writing and shall be given by the delivery of the
same or by the mailing of same by prepaid registered or certified mail or by
sending the same by telegram, telex, telecommunication or other similar for
of
communication, in each case addressed to the intended recipient at the address
of the respective party as follows:
(a) to
the
Company:
0000
Xxxx
00xx
Xxxxxx
Xxxxxxx,
Xxxxxxxxxx
XXX,
00000
Phone:
000-000-0000
Fax:
000-000-0000
(b) to
the
Employee:
XXXX
WORKS
0000
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxx
XXX,
00000
Phone:
000-000-0000
Fax:
000-000-0000
8.02 Any
notice, direction or other instrument aforesaid will, if delivered, be deemed
to
have been given and received on the day it was delivered and, if mailed, be
deemed to have been given and received on the fifth business day following
the
day of mailing, except in the event of disruption of the postal service in
which
event notice will be deemed to be received only when actually received and,
if
sent by telegram, telecommunication or other similar form of communication,
be
deemed to have been given and received on the day it was actually
received.
8.03 Any
party
may at any time give notice in writing to the other of any change of address,
and from and after the giving of such notice, the address therein specified
will
be deemed to be the address of such party for the purpose of giving notice
hereunder.
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9.
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Assignment
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This
Agreement is a personal consulting agreement and may not be assigned by either
party without the prior written consent of the other party.
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10.
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General
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10.01 This
Agreement may not be amended or otherwise modified except by an instrument
in
writing signed by both parties.
10.02 This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Washington and the parties irrevocably attorn to the jurisdiction
of the courts of such State.
Notwithstanding
Section 10.2 hereof, all disputes which may arise under, out of, in connection
with or in relation to this Agreement shall be submitted to and finally settled
by arbitration, which shall be subject to the provisions of the Commercial
Arbitration Act (Washington
or United States of America, whichever is applicable)
in
effect from time to time and be conducted in the English language.
10.03 If
any
one or more of the provisions contained herein should be invalid, illegal or
unenforceable in any respect in any jurisdiction, the validity, legality and
enforceability of such provisions shall not in any way be affected or impaired
thereby in any other jurisdiction and the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected
or
impaired thereby.
10.04 This
Agreement constitutes and contains the entire agreement and understanding
between the parties and supersedes all prior agreements, memoranda,
correspondence, communications, negotiations and representations, whether oral
or written, express or implied, statutory or otherwise, between the parties
or
any of them with respect to the subject matter hereof.
10.05 The
parties hereto covenant and agree to execute and deliver such further and other
documents as may be required to carry out the intent of this
Agreement.
10.06 Time
shall be of the essence in the performance of this Agreement.
10.07 Any
and
all previous agreement, written or oral, between the parties hereto or on their
behalf relating to the retention of the Employee by the Company are hereby
terminated and cancelled and each of the parties hereto hereby releases and
forever discharges the other of and from all manner of actions, causes of
action, claims and demands whatsoever under or in respect of any such
agreement.
10.08 This
Agreement may be executed in counterpart, each of which such counterpart,
whether in original or facsimile form, notwithstanding the date or dates upon
which this Agreement is executed and delivered by any of the parties, shall
be
deemed to be an original and all of which will constitute one and the same
agreement, effective as of the reference date given above.
IN
WITNESS WHEREOF
the
parties hereto are deemed to have executed this Agreement as of the day and
year
first above written.
/s/
Xxxxxx
Xxxxxxxxx
Per:
Xxxxxx Xxxxxxxxx, President
| SIGNED, SEALED and DELIVERED by | ) | |
| XXXX WORKS in the presence of: | ) | |
| ) | ||
| ) | ||
| Name | ) | XXXX WORKS |
| ) | ||
| ) | ||
| Address | ) | |
| ) | ||
| ) | ||
| ) | ||
| Occupation | ) |
