EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”)
is entered into effective as of the 1st day of January, 2008, by and among Platina Energy Group, Inc., a
Delaware corporation (the “Company”), and Xxxxx X. Xxxxxxx (“Merriam”).
EXPLANATORY
STATEMENT
A. The
Company has employed Merriam as its Chief Executive Officer and President and
desires to extend the term of such employment of Merriam as its Chief Executive
Officer and President as provided herein.
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B.
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Merriam
desires to accept such employment.
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NOW, THEREFORE, for and in
consideration of the foregoing Explanatory Statement that is made a substantive
part of this Agreement and the mutual covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company hereby
employs Merriam and Merriam hereby accepts employment with the Company as its
Chief Executive Officer and President upon the terms and conditions hereinafter
set forth.
2. Duties. Merriam will serve the
Company as Chief Executive Officer and President and will faithfully and
diligently perform the services and functions relating to such position or
otherwise reasonably incident to such position, provided that all such services
and functions will be reasonable and within Merriam’s area of expertise.
Merriam’s specific duties shall include those related to (i) formulating and
coordinating all phases of the Company’s operations; (ii) coordination of the
Company’s development; (iii) responsibility for obtaining new properties and
other assets for the Company; (iv) responsibility for attempting to obtain
financing for the Company, as needed; and (vi) such other duties as the
Company’s Board of Directors may reasonably direct. Merriam will, during the
term of this Agreement (or any extension thereof), devote his time, attention
and skills and best efforts as a full time employee to the promotion of the
business of the Company.
3. Term. This Agreement and
Merriam’s employment shall commence on January 1, 2008, (the “Effective Date”) and
shall continue until January 1, 2013 (“Initial Term”) unless
terminated earlier in accordance with this Agreement. The term of this Agreement
may be extended by agreement of the Company and Merriam.
4. Compensation. As compensation
for the services rendered to the Company under this Agreement commencing on the
Effective Date hereof and for term of this Agreement, Merriam will be paid a
base salary of One Hundred Eighty Thousand dollars ($180,000) per year, payable
monthly, in arrears, in bi-monthly installments or in accordance with the then
current payroll policies of the Company or as otherwise agreed to by the parties
(the “Salary”).
At any time and from time to time, the Salary may be increased if so determined
by the Company’s Board of Directors after a review of Merriam’s performance of
his duties hereunder.
Further,
the Company’s Board of Directors may provide bonuses, at its sole discretion, to
Merriam based on the Company’s performance and financial ability.
5. Termination. This Agreement
will terminate and no additional payments of compensation will be due hereunder
upon the occurrence of any of the following events:
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a.
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The
death of Merriam;
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b.
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The
“Total Disability” (as hereinafter defined) of
Merriam;
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c.
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Written
notice to Merriam from the Company of termination for “Cause” (as
hereinafter defined);
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d.
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The
voluntary termination of this Agreement by Merriam upon sixty (60) days
prior written notice;
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e.
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The
later of January 1, 2013 or the date to which this Agreement is extended
in accordance with Section 3 above.
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For
purposes of Section 5b, the term “Total Disability” means physical or
mental disability, or both, determined to be (or reasonably expected to be,
based upon then available medical information) of not less than six (6) months
duration or more. The determination shall rest upon the opinion of the physician
regularly attending Merriam. If the Company disagrees with said physician’s
opinion, the Company may engage at their own expense a physician to examine the
Merriam, and Merriam hereby consents to such examination and to waive, if
applicable any privilege between the physician and Merriam that may arise as a
result of said examination. If after conferring, the two physicians cannot
concur on a final opinion, they shall choose a third consulting physician whose
opinion shall control. The expense of the third consulting physician shall be
borne equally by the Merriam and the Company.
For
purposes of Section 5c, “Cause” means (i) Merriam has failed to
substantially perform his duties as reasonably determined by any Officer of the
Company or the Board of Directors of the Company, (ii) Merriam engages in
poor performance that is not cured within thirty (30) days after counseling by
the Company, (iii) Merriam has failed to comply with the reasonable
directives and policies of the Board of Directors of the Company or of any
Officer of the Company, or (iv) Merriam breaches his fiduciary duty to the
Company or commits any dishonest, unethical, fraudulent, or felonious act in
respect to Merriam’s duties to the Company.
6. Benefits. Merriam shall be
entitled to health insurance paid by the Company and to participate in any other
Company benefits as they become available, if at all, including life insurance,
incentive compensation, deferred compensation, stock option plans or other
Company programs or plans which are offered to other Company
executives.
In addition to the foregoing, Merriam
will be entitled to three (3) weeks vacation during the first year of
employment, four (4) weeks vacation during the second year of employment and
each year thereafter plus one (1) day per month during the Initial
Term of this Agreement as sick or personal days and the Company will pay Merriam
for all such sick and personal days not
used by
Merriam. Further, the Company shall provide an automobile allowance of $600 per
month and reimbursement for automobile insurance for the term of this
Agreement.
7. Business Expenses. Upon
submission of proper documentation, the Company shall pay or reimburse Merriam
for all reasonable and necessary office, telephone, travel and other expenses
which are incurred by Merriam in the pursuit of Merriam’s duties on behalf of
the Company.
8. Confidentiality.
a. Confidentiality.
(1) Merriam
acknowledges that in Merriam’s employment hereunder, Merriam will be making use
of, acquiring and adding to the Company’s trade secrets and its confidential and
proprietary information of a special and unique nature and value relating to
such matters as, but not limited to, the Company’s business operations, internal
structure, financial affairs, programs, software systems, procedures, manuals,
confidential reports, lists of clients and prospective clients and sales and
marketing methods, as well as the amount, nature and type of services, equipment
and methods used and preferred by the Company’s clients and the fees paid by
such clients, all of which shall be deemed to be confidential
information. Merriam acknowledges that such confidential information
has been and will continue to be of central importance to the business of the
Company and that disclosure of it to or its use by others could cause
substantial loss to the Company. In consideration of employment by the Company,
Merriam agrees that during the Initial Term and any renewal term of this
Agreement and upon and after leaving the employ of the Company for any reason
whatsoever, Merriam shall not, for any purpose whatsoever, directly or
indirectly, divulge or disclose to any person or entity any of such confidential
information which was obtained by Merriam as a result of the Merriam’s
employment with the Company or any trade secrets of the Company, but shall hold
all of the same confidential and inviolate.
(2) All
contracts, agreements, financial books, records, instruments and documents;
client lists; memoranda; data; reports; programs; software, tapes; Rolodexes;
telephone and address books; letters; research; card decks; listings;
programming; and any other instruments, records or documents relating or
pertaining to clients serviced by the Company or Merriam, the services rendered
by Merriam, or the business of the Company (collectively, the “Records”) shall
at all times be and remain the property of the Company. Upon
termination of this Agreement and Merriam’s employment under this Agreement for
any reason whatsoever, Merriam shall return to the Company all Records (whether
furnished by the Company or prepared by Merriam), and Merriam shall neither make
nor retain any copies of any of such Records after such
termination.
(3) All
inventions and other creations, whether or not patentable or copyrightable, and
all ideas, reports and other creative works, including, without limitation,
computer programs, manuals and related materials, made or conceived in whole or
in part by Merriam while employed by the Company and within one year thereafter,
which relate in any manner whatsoever to the business, existing or proposed, of
the Company or any other business or research or development effort in which the
Company or any of its subsidiaries or affiliates
engages
during Merriam’s employment by the Company will be disclosed promptly by Merriam
to the Company and shall be the sole and exclusive property of the
Company. All copyrightable works created by Merriam and covered by
this Section 8b (3) shall be deemed to be works for hire. Merriam shall
cooperate with the Company in patenting or copyrighting all such inventions,
ideas, reports and other creative works, shall execute, acknowledge, seal and
deliver all documents tendered by the Company to evidence its ownership thereof
through the world, and shall cooperate with the Company obtaining, defending and
enforcing its rights therein.
b. Certain Claims upon
Termination. Merriam understands that if within one year prior to the
termination of Merriam’s employment with the Company, Merriam has either (i)
committed an act of theft, dishonesty, gross dereliction of duty, fraud,
embezzlement, misappropriation, or breach of fiduciary duty against the Company
or any other act of comparable misconduct against the Company; or (ii) breached
any of his obligations under this Agreement, then the Company shall have the
right to purchase any or all shares of Common Stock of the Company owned by
Merriam at the time of such termination for a purchase price equal to the amount
that Merriam paid for such shares, together with interest thereon at a rate of
ten percent (10%) per annum. If the Company desires to exercise such
right, it shall notify Merriam within 60 days after the date of such termination
and Merriam shall tender the shares being purchased by the Company at the time
and place designated in such notice from the Company upon receipt of the
purchase price for such shares. If Merriam fails to tender such shares, the
shares shall be deemed to be canceled as of the date the Company tenders payment
of the purchase price thereof.
c. Enforceability. In the event
of the breach of the covenants contained in this Section 8, it is understood
that damages will be difficult to ascertain and the Company may petition a court
of law or equity for injunctive relief in addition to any other relief which the
Company may have under the law, this Agreement or any other agreement executed
in connection herewith. In connection with the bringing of any legal or
equitable action for the enforcement of this Agreement, the Company shall be
entitled to recover, whether the Company seeks equitable relief, and regardless
of what relief is afforded, such reasonable attorneys’ fees and expenses as the
Company may incur in prosecution of the Company’s claim for breach
hereof.
It is
hereby agreed that the provisions of this Section 8 are separate and independent
from the other provisions of this Agreement, that these provisions are
specifically enforceable by the Company notwithstanding any claim by Merriam
that the Company has violated or breached this Agreement or any claim that
Merriam is entitled to any offset or compensation.
To induce
the Company to enter into this Agreement, Merriam represents and warrants to the
Company that Section 9 of this Agreement is enforceable by the Company in
accordance with its terms.
The
parties hereto agree that to the extent that any provision or portion of Section
8 of this Agreement shall be held, found or deemed to be unreasonable, unlawful
or unenforceable by a court of competent jurisdiction, then any such provision
or portion thereof shall be deemed to
be
modified to the extent necessary in order that any such provision or portion
thereof shall be legally enforceable to the fullest extent permitted by
applicable law; and the parties hereto do further agree that any court of
competent jurisdiction shall, and the parties hereto do hereby expressly
authorize, request and empower any court of competent jurisdiction to, enforce
any such provision or portion thereof or to modify any such provision or portion
thereof in order that any such provision or portion thereof shall be enforced by
such court to the fullest extent permitted by applicable law.
9. Waiver of Breach. The waiver
by any party hereto of a breach of any provision of this Agreement will not
operate or be construed as a waiver of any subsequent breach by any
party.
10. Notices. Any notices,
consents, demands, request, approvals and other communications to be given under
this Agreement by either party to the other will be deemed to have been duly
given if given in writing and personally delivered, faxed or emailed with proof
of delivery or if sent by mail, registered or certified, postage prepaid with
return receipt requested, as follows:
If to the
Company: Platina
Energy Group, Inc.
0000
Xxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxx, Vice-President
If to
Merriam: Xxxxx
X. Xxxxxxx
0000
Xxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxx,
XX 00000
Notices delivered personally will be
deemed communicated as of actual receipt, notices by fax or emailed shall be
deemed delivered when such notices are faxed or emailed to recipient’s fax
number or email address, respectively, and notices by mail shall be deemed
delivered when mailed.
11. Entire Agreement. This
Agreement and the agreements contemplated hereby constitute the entire agreement
of the parties regarding the subject matter hereof, and supersede all prior
agreements and understanding, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
12. Severability. If any provision
of this Agreement is held to be illegal, invalid, or unenforceable under present
or future laws effective during this Agreement, such provision will be fully
severable and this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision never comprised a part hereof; and the
remaining provisions hereof will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically, as part of this Agreement, a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
13. Governing Law. To the extent
permitted by applicable law, this Agreement and the rights and obligations of
the parties will be governed by and construed and enforced exclusively in
accordance with the substantive laws (but not the rules governing conflicts of
laws) of the State of Wyoming and the State of Wyoming shall have exclusive
jurisdiction regarding any legal actions relating to this
Agreement.
14. Captions. The captions in this
Agreement are for convenience of reference only and will not limit or otherwise
affect any of the terms or provisions hereof.
15. Gender and Number. When the
context requires, the gender of all words used herein will include the
masculine, feminine and neuter, and the number of all words will include the
singular and plural.
16. Counterparts. This Agreement
may be executed in one or more counterparts, each of which will be deemed an
original and all of which will constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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THE
COMPANY:
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MERRIAM:
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Platina
Energy Group, Inc.,
a
Delaware corporation
By: /s/ Xxxxxx
X.
Xxxxxxxx
Xxxxxx
X. Xxxxxxxx, Vice President
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/s/ Xxxxx X. Xxxxxxx
Xxxxx X.
Xxxxxxx
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