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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of this 31st day of March,
2000, is made by and between OCEANIC EXPLORATION COMPANY, a Delaware corporation
("Oceanic") and XXXXXX X. XXXXXX ("Employee").
RECITALS
WHEREAS, Employee since 1992 has provided services to Alliance Staffing
Associates, Inc., a Delaware Corporation ("Alliance") (the business of which has
been acquired by and is a division of Oceanic, called Alliance Staffing
Associates ("Division")); and
WHEREAS, Oceanic desires to employ Employee on the terms set forth
herein; and
WHEREAS, Employee is willing to accept employment by Oceanic on the
terms set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, Oceanic and
Employee hereby agree as follows:
1. Employment Period. Employment Period shall mean the period
commencing March 31, 2000 (the "Effective Date") and ending on March 31, 2003
(the "Term Date").
2. Employment. Subject to the terms and conditions provided herein,
Oceanic hereby agrees, during the Employment Period to employ Employee as the
President of Division. Employee hereby agrees to accept such employment during
the Employment Period.
3. Employee's Position and Duties. During the Employment Period,
Employee shall have such executive and business development responsibilities and
other similar duties as are assigned to Employee by Oceanic. During the
Employment Period, but excluding any periods of vacation and sick leave,
Employee agrees to devote all her business attention, skill and time to the
business and affairs of Division and to the best of her ability to perform
faithfully and efficiently the duties and responsibilities assigned to Employee
under this Section 3. Among other things, Employee will act as President of
Division.
4. Employee's Compensation and Benefits.
4.1 Base Salary. During the Employment Period, Oceanic shall
pay Employee a base salary of One Hundred Sixty Thousand Dollars ($160,000) per
annum, payable bi-weekly, net of statutory withholding.
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4.2 Business Expenses. Oceanic will reimburse Employee for
customary and reasonable expenses incurred in the normal course of Division's
business, provided that any single expenses in excess of $500 must be approved
by the President of Oceanic.
4.3 Other Benefits. During the Employment Period, Employee
will be eligible to participate in each Division benefit plan or program
(including without limitation, savings, six (6) weeks vacation, life insurance,
medical, dental, disability, and severance plans or programs), if any, generally
applicable to employees of Division and in each Division special compensation
plan or program (including without limitation bonus programs) to the extent
provided by the terms and conditions of each such plan or program.
5. Bonus. During the Employment Period, Employee shall be eligible for
an annual bonus to be paid as follows:
5.1 For the period April 1, 2000 through December 31, 2000,
Employee shall be eligible for a bonus (which Employee may at her option share
as an incentive pool with other Division employees) of
i) $25,000 if the Division's net loss before taxes for the
period April 1, 2000 - December 31, 2000 is not greater than $29,182; plus
ii) $25,000 if the Division's revenues for the period April 1,
2000 - December 31, 2000 are at least $4,394,850; and
5.2 For annual periods after December 31, 2000, Oceanic will
establish an employee bonus pool substantially similar to the Alliance Staffing
Associates, Inc. Long-Term Incentive Pool Plan attached hereto as Exhibit A and
Employee shall determine which employees shall be participants in the pool.
6. Termination of Employment.
6.1 Death. The Employment Period shall terminate automatically
upon Employee's death.
6.2 Cause. Oceanic may during the Employment Period terminate
the Employee's employment for "Cause". For purposes of this Agreement, "Cause"
means: (i) an act or acts of material personal dishonesty taken by, or committed
at the request of, Employee and intended to result in the personal enrichment of
Employee at the expense of Oceanic or one of its affiliates, or (ii) the
conviction (which shall include a plea of nolo contendere) of Employee of a
felony.
6.3 Without Cause. During the Employment Period, Oceanic or
Employee may terminate Employee's employment hereunder other than for Cause,
upon sixty (60) days' written notice given by one party to the other.
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7. Obligations of Oceanic Upon Termination of Employment.
7.1 Death. If Employee's employment is terminated by reason of
Employee's death, the Employment Period shall terminate on the date of her
death, and Employee's base salary through the date of her death shall be paid to
Employee's legal representative in a lump sum in cash within thirty (30) days
after the date of Employee's death.
7.2 Cause; Voluntary. If Employee's employment is terminated
for Cause by Oceanic or by Employee voluntarily, the Employment Period shall
terminate on the date of such termination of employment and Oceanic shall pay
Employee's base salary through the date of such termination. Oceanic shall have
no further financial obligations hereunder.
7.3 Without Cause. If during the Employment Period, Employee's
employment is terminated by Oceanic without Cause, Oceanic will pay Employee six
(6) months base salary as severance pay, payable in a lump sum within thirty
(30) days after termination of employment, provided Employee executes a standard
separation and release agreement with Oceanic, in which Employee releases
oceanic from any claims relating to the employment or termination of employment.
8. Obligations of Employee Prior To and Upon Termination of Employment.
8.1 Unfair Competition. Employee hereby acknowledges and
agrees that the sale, misappropriation, unauthorized use or disclosure of any
Confidential Information constitutes unfair competition. Employee hereby
promises and agrees not to engage in any unfair competition with Oceanic and
Division at any time, whether during the Employment Period or at any time
thereafter.
For purposes of this Agreement, "Confidential Information" shall mean
any and all trade secrets or proprietary or confidential information, documents
or data (including, without limitation, information concerning customers; names
of customers and their contact information; customer list; customers' business
operations, habits or practices; current products or services; any future or
proposed products or services; the fact that those products or services are
planned, under consideration or in production, as well as any descriptions of
the features of those products or services; prices at which the products or
services are sold; manufacturing or sales costs; operation and marketing methods
or strategies and related data; independent contractors, consultants, vendors or
suppliers; compensation paid to employees, independent contractors or
consultants and other terms of employment or engagement; lists or other written
records used in connection with the business; or any other proprietary or
confidential information, documents or data of any kind, nature or description)
relating or belonging to Oceanic and/or its affiliates or subsidiaries,
including Division, and its businesses. Furthermore, trade secrets shall refer
to information, documents or data, including, without limitation, a formula,
pattern, compilation, program, customer list, device, method, technique or
process, which (i) derives independent economic value, actual or potential, from
not being generally known to the public or to persons or entities who can obtain
economic value from its disclosure or use and (ii) is the subject of efforts
which are reasonable under the circumstances to maintain its secrecy.
"Confidential Information" shall not include any information
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or material of the type described herein to the extent that such material is or
becomes publicly known through no action on Employee's part.
8.2 Confidential Information; Trade Secrets. Employee shall
not at any time, whether during or after the Employment Period, unless
specifically consented to in writing by the President of Oceanic either directly
or indirectly, reveal, use, divulge, disclose or communicate to any person or
entity, in any manner whatsoever, any Confidential Information. The parties
hereto hereby stipulate and agree that strict and full compliance with the
provisions of this Section 8.2 is critical and material to the successful
conduct and operation of Oceanic's business, to its goodwill, and to the
protection of Oceanic's trade secrets and proprietary and confidential
information, documents or data, and that any breach of any terms of this Section
8.2 is a material breach under this Agreement.
8.3 Restrictions on Use of Trade Secrets and Records. In the
course of Employee's employment with Oceanic, and her provision of services to
Division on the condition of confidence, Employee will have access to and become
acquainted with various Confidential Information, all of which is owned by
Oceanic and Division and regularly used in the conduct and operation of
Division's business. All files, books, records, documents, drawings,
specifications, equipment, customer lists and other items relating to the
customers or business of Division or its affiliates or subsidiaries, whether
they are prepared by Employee or come into Employee's possession in any other
way and whether or not they contain or constitute trade secrets belonging to
Division, are and shall remain the sole and exclusive property of Division and
shall not be removed from the premises of Division under any circumstances
whatsoever without the prior written consent of Division, except during the
Employment Period only to the extent required by her employment. Employee hereby
promises and agrees that she shall not, directly or indirectly, reveal, use,
divulge, misappropriate, disclose or communicate any of the Confidential
Information at any time, whether during or after the Employment Period, except
during the Employment Period only to the extent required in the course of her
relationship with Division.
8.4 Competing Business. At any time during Employee's
employment with Oceanic, Employee shall not, directly or indirectly, either as
an employee, employer, consultant, independent contractor, agent, partner,
shareholder, officer, director, member, manager or principal or in any
individual or representative capacity, own an interest in, operate, join,
control, engage or participate in, or render services of a business, commercial
or professional nature to any corporation, limited liability company,
partnership, proprietorship, firm, association, person or other entity, whether
for compensation or otherwise, which or who is in competition in any manner
whatsoever with the employee placement business of Oceanic and Division. The
parties hereto acknowledge and agree that strict and full compliance with the
provisions of this Section 8.4 is necessary and appropriate in order to avoid
any conflict, whether actual or apparent, of interest and to protect the
Confidential Information.
At any during Employee's employment with Oceanic, Employee shall not
undertake, engage or participate in any activity, whether individually or as an
employee, employer, consultant, independent contractor, agent, partner,
shareholder, officer, director, member, manager or principal of any person or
entity, if such undertaking, engagement or participation requires, necessitates
or
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results in Employee to reveal, use, divulge, misappropriate, disclose or
communicate to any person or entity, in any manner whatsoever, any Confidential
Information.
8.5 Solicitation of Business. At any time, whether during or
after Employee's employment with Oceanic, and for one (1) year after termination
of employment with Oceanic, Employee shall not, directly or indirectly, or by
action in concert with other person or entity, cause, induce or influence, or
seek to cause, induce or influence, any employee, agent, representative,
consultant, independent contractor or other business affiliate or associate of
Division to terminate his or her employment and/or relationship with Division.
Furthermore, for a one (1) year period following the termination of Employee's
relationship with Division for any reason, whether voluntary or involuntary,
Employee shall not, directly or indirectly, reveal, use, divulge,
misappropriate, disclose or communicate to any person or entity, in any manner
whatsoever, the names or addresses (and other contact information) of any of the
customers of Division or any other information pertaining to them, or call on,
take away, or attempt to call on, solicit or take away any of the Customer
Accounts (as defined below) using any Confidential Information. As used herein,
"Customer Accounts" shall mean all accounts of Division and its affiliates,
subsidiaries, licensees and business affiliates or associates, whether now
existing or hereafter developed or acquired, including any and all accounts
developed or acquired by or through the efforts of Employee.
8.6 Business Planning. At any time during Employee's
employment with Oceanic, Employee shall not (i) undertake, engage or participate
in planning for, or organization of, any business, commercial or professional
activity competitive with the business of Division or (ii) combine or conspire
with any person, including, without limitation, employees, agents,
representatives, consultants, independent contractors or other business
affiliates or associates of Division, for the purpose of organizing any
business, commercial or professional activity which is competitive with the
business of Division or which requires, necessitates or results in Employee to
reveal, use, divulge, misappropriate, disclose or communicate any Confidential
Information.
8.7 Third Party Confidential Information and Trade Secrets. In
the course of Employee's relationship with Oceanic, on the condition of
confidence, Employee will have access to and become acquainted with various
trade secrets or proprietary or confidential information, knowledge, documents
or data belonging to third parties which Oceanic may receive from time to time
from such third parties in connection with the services or products provided by
Oceanic to such third parties and/or their designates (hereafter, "Third Party
Information"). Employee hereby acknowledges and agrees that the sale,
misappropriation, unauthorized use or disclosure of any Third Party Information
is strictly prohibited at any time, whether during or after the Employment
Period. Furthermore, Employee shall not at any time, whether during or after the
Employment Period, unless specifically consented to in writing by the President
of Oceanic, either directly or indirectly, reveal, use, divulge, disclose or
communicate to any person or entity, in any manner whatsoever, any Third Party
Information. The parties hereto hereby stipulate and agree that strict and full
compliance with the provisions of this Section 8.7 is critical and material to
the successful conduct and operation of Division's business, to its reputation
and goodwill, and to the protection of its customers' and other business
affiliates' or associates' trade secrets and proprietary and confidential
information, documents or data, and that any breach of any terms of this Section
8.7 is a material breach under this Agreement.
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8.8 Ownership of Books, Records, and Papers. All books and
records of Division, including, without limitation, the books and records of the
accounts of customers and any books and records relating in any manner
whatsoever to the customers or business of Division, or its affiliates or
subsidiaries, customer lists, credit reports or memoranda, reports of
transactions, equipment, notebooks, documents, memoranda, reports, computer
based data, files, samples, books, correspondence, lists, and all other written
and graphics records affecting or relating to the customers and business of
Division, all documents and instruments relating to any Confidential Information
prepared, used, constructed, observed or possessed by Employee; and demographic,
financial or economic data obtained or discovered by Employee in the course of
Employee's relationship with Division, whether prepared by Employee or otherwise
coming into Employee's possession or control, shall be and remain the sole
exclusive property of Division, regardless of who actually paid for or obtained
the books, records, documents, instruments or data. If Employee pays for or
obtains any book, record, document, instrument or data or any similar or other
item to be used in connection with Employee's relationship with Division,
Employee shall immediately notify Division thereof.
8.9 Delivery of Documents and Data on Termination of
Employment. Immediately upon termination of Employee's relationship with
Division for any reason, whether voluntary or involuntary, Employee shall
immediately and without request, deliver to Division all property, books,
records, documents, instruments and data pertaining to (i) Division or its
customers or business (including, without limitation, those referenced herein)
or (ii) Employee's relationship with Division. Employee will not retain any
written or other tangible material containing any information concerning or
disclosing any of the Confidential Information or the Third Party Information,
whether prepared by Employee or otherwise in her possession or control.
8.10 Survival and Injunctive Relief. Employee agrees that the
provisions of Section 8 of this Agreement shall survive the termination of this
Agreement, the Employment Period and Employee's employment with Oceanic.
Employee acknowledges that Oceanic has no adequate remedy at law and would be
irreparably harmed if Employee breaches or threatens to breach any of the
provisions of Section 8 of this Agreement, and, therefore, agrees that the
Oceanic shall be entitled to injunctive relief to prevent any such breach or
threatened breach thereof and to specific performance of the terms of such
sections (in addition to any other legal or equitable remedy Oceanic may have).
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9. Indemnification.
9.1 Oceanic hereby agrees to indemnify and hold harmless
Employee from and against any and all claims, suits, actions, damages,
liabilities, investigations, administrative proceedings, fines, penalties and
expenses (collectively "Claims") arising either directly or indirectly from this
Agreement, or the Agreement of Purchase and Sale of Assets dated March 31, 2000,
executed between Oceanic on the one hand, and Alliance Staffing Associates,
Inc., Alliance Services Associates, Inc., and the shareholders of Alliance
Staffing Associates, Inc., which Claims are filed or pursued by any individual,
corporation, partnership, joint venture, or other entity, or by any governmental
or regulatory agency, including, but not limited to, shareholders of Oceanic or
Division or its shareholders. In addition, Oceanic shall, at its sole expense,
upon notice from Employee, defend Employee by retaining legal counsel
satisfactory to Employee, and shall, in addition, pay all of Employee's
out-of-pocket costs, reasonable attorneys' fees, expenses and liabilities
incurred as a direct or indirect result of any such Claims.
9.2 In any lawsuit or action involving the enforcement, breach
or interpretation of Section 9, the non-prevailing party shall pay all costs,
including, but not limited to, reasonable attorneys' fees, incurred by the party
prevailing in such lawsuit or action.
9.3 Employer agrees that the provisions of Section 9 of this
Agreement shall survive the termination of this Agreement, whether or not the
employment is terminated voluntarily or involuntarily or with or without cause.
10. Miscellaneous.
10.1 Severability. All of the provisions of this Agreement
including without limitation Section 8, are intended by the parties hereto as
separate and divisible provisions and, if, for any reason, any one of them (or
part thereof) is held to be invalid or unenforceable, neither the validity nor
the enforceability of any other provision (or part thereof) shall be affected
thereby. To the extent that any covenant shall be determined to be judicially
unenforceable in any one or more county, or state, or foreign sovereign, that
covenant shall be construed as independent. Employee agrees that the
restrictions imposed by Section 8 are reasonable in business scope, geographic
scope and duration.
10.2 Remedies. Each and all of the several rights and remedies
provided for in this Agreement shall be cumulative. No one right or remedy shall
be exclusive of the others or of any right or remedy allowed in law or in
equity. No failure or delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege hereunder
preclude any further exercise thereof or the exercise of any other right, power
or privilege.
10.3 Material Conditions/Reasonableness of Agreement. Employee
hereby acknowledges and agrees that the protections set forth in this Agreement
are a material condition to her employment and continued employment with, and
compensation by, Oceanic. Employee hereby acknowledges and agrees that the
obligations which Employee is accepting under
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this Agreement are fair, reasonable and valid and understands that the strict
and full compliance with the provisions is a material condition to Employee's
employment with Oceanic.
10.4 Survival of Obligations. Employee hereby acknowledges and
agrees that Employee's obligations under Section 8 of this Agreement, where
applicable, will continue following the termination of Employee's employment
with Oceanic, whether or not the employment is terminated voluntarily or
involuntarily or with or without cause.
10.5 Judicial Restatement. If for any reason any court of
competent jurisdiction in California shall find the provisions of Section 8, or
any other section of this Agreement, unreasonable, Employee and Oceanic agree
that the restrictions and limitations contained in Section 8, or any other
section of this Agreement, shall be restated so that they are effective and
enforceable to the fullest extend allowed or allowable under the applicable law
of any such jurisdiction.
10.6 Successors. This Agreement is personal to the Employee
and shall not be assignable by the Employee. This Agreement shall be assignable
by Oceanic. The provisions of Section 9 shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, representatives,
successors and assigns.
10.7 Governing Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without reference in the principles of conflict of laws thereunder.
10.8 Construction, Amendment, Notice, Taxes. The captions of
the Agreement are not part of the provisions hereof and shall not have any force
or effect. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives. All notices and other communications hereunder shall
be in writing and shall be given by facsimile transmission, hand-delivery to the
other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
EMPLOYEE: Xxxxxx X. Xxxxxx
00000 Xxxxxxxxx Xx.
Xxx Xxxxx, XX 00000
OCEANIC: Oceanic Exploration Company
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Any such notice or communication shall be
effective when actually received by the addressee. Oceanic may withhold from
Employee any amounts payable under this Agreement any such federal, state or
local taxes as shall be required by to withheld pursuant to any applicable law
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or regulation. This Agreement contains the entire understanding of Oceanic and
Employee with respect to the subject matter hereof.
THIS AGREEMENT RESTRICTS EMPLOYEE'S ABILITY TO DISCLOSE OR USE PROPRIETARY OR
CONFIDENTIAL INFORMATION DURING AND AFTER EMPLOYEE'S RELATIONSHIP WITH OCEANIC.
EMPLOYEE AND OCEANIC EACH HEREBY CONFIRM AND ACKNOWLEDGE THAT EMPLOYEE AND
OCEANIC HAVE READ THIS AGREEMENT CAREFULLY AND COMPLETELY AND UNDERSTAND ITS
PROVISIONS. EMPLOYEE AND OCEANIC EACH HEREBY ACKNOWLEDGE THAT EMPLOYEE AND
OCEANIC EACH HAVE RECEIVED A COPY OF THIS AGREEMENT.
IN WITNESS WHEREOF, Employee and Oceanic have hereunto caused this
Agreement to be executed in their names and on their behalf, as of the day and
year first above written.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
EMPLOYEE
By: /s/ Xxxxxxx X. Xxxx
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[Name] Xxxxxxx X. Xxxx
[Title] President
OCEANIC
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