Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") executed by and between XXXXXXXX
RESOURCES, INC., a Nevada corporation (the "Company") with principal offices at
0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, and M. Xxx Xxxxxxx
("Employee"), an individual residing at #3 Post-N-Paddock, Xxxxxx, Xxxxx 00000.
1. Employment. The Company hereby agrees to employ Employee, and Employee
hereby agrees to render his exclusive service to the Company, in his current
capacity of President and Chief Executive Officer of the Company, with such
duties as may be assigned to him from time to time by the Board of Directors for
a period of time commencing on May 11, 1998 (the effective date of this
Agreement) and ending on May 10, 1999 (the "Employment Period"), subject to
earlier termination as hereinafter provided. Upon termination of Employee's
employment for any reason except for death, disability or for good cause,
including termination of the Employment Period, the Company shall assign to the
Employee ownership of any life insurance policies owned by the Company insuring
the Employee's life.
2. Place of Employment. Unless otherwise agreed by the Company and
Employee, throughout the term of this Agreement, Employee's business office
shall be located in Dallas, Texas, at such location as may be specified by the
Board of Directors of the Company.
3. Base Compensation. Employee shall be compensated by the Company at a
minimum base rate of $20,416.67 per month, payable semimonthly on the fifteenth
and final days of each month during the period of Employee's employment under
this Agreement, subject to such increases and additional payments as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion. Such compensation shall be in addition to any group insurance,
pension, profit sharing, and other employee benefits, which are extended from
time to time to Employee in the discretion of the Board of Directors of the
Company and for which Employee is eligible. Subject to such rules and procedures
as are from time to time specified by the Company, the Company shall also
reimburse Employee for all reasonable expenses incurred by him on behalf of the
Company.
4. Performance of Services. Employee shall devote his full working time to
the business of the Company; provided, however, Employee shall be excused from
performing any services for the Company hereunder during periods of temporary
incapacity and during vacations conforming to the Company's standard vacation
policy, without thereby in any way affecting the compensation to which he is
entitled hereunder.
5. Continuing Obligations. In order to induce the Company to enter into
this Agreement, the Employee hereby agrees that all documents, records,
techniques, business secrets and other information which have come into his
possession from time to time during his employment by the Company or which may
come into his possession during his employment hereunder, shall be deemed to be
confidential and proprietary to the Company and the Employee further agrees to
retain in confidence any confidential information known to him concerning the
Company and it's subsidiaries and their respective businesses so long as such
information is not publicly disclosed. In the event of a breach or threatened
breach by the Employee of the provisions of this Paragraph 5, the Company shall,
in addition to any other available remedies, be entitled to an injunction
restraining Employee from disclosing, in whole or in part, any such information
or from rendering any services to any person, firm or corporation to whom any of
such information may have been disclosed or is threatened to be disclosed.
6. Property of Company. All data, drawings, and other records and written
material prepared or compiled by Employee or furnished to Employee while in the
employ of the Company shall be the sole and exclusive property of the Company,
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and none of such data, drawings or other records, or copies thereof, shall be
retained by Employee upon termination of his employment. Notwithstanding the
foregoing, Employee shall be under no obligation to return public information.
7. Surviving Provisions. The provisions of Paragraphs 5 and 6 of this
Agreement shall continue to be binding upon Employee in accordance with their
terms, notwithstanding termination of Employee's employment hereunder for any
reason.
8. Termination for Good Cause. It is agreed and understood that the Company
cannot terminate the employment of the Employee under this Agreement except for
good cause, and that, without prejudice to the generality of the right to
terminate for good cause, each of the following contingencies shall be good
cause:
(a) Should Employee by reason of injury or illness become incapable
for more than one hundred fifty (150) consecutive days of satisfactorily
performing his duties as an employee under this Agreement;
(b) Should Employee for reasons other than illness or injury absent
himself from his duties without the consent of the Company (which consent shall
not be unreasonably withheld) for more than twenty (20) consecutive days;
(c) Should Employee be convicted of a felony involving moral
turpitude;
(d) Should Employee during the period of his employment by the Company
engage in any activity that would in the opinion of the Board of Directors of
the Company constitute a material conflict of interest with the Company;
provided that termination for cause based on this subparagraph (d) shall not be
effective unless the Employee shall have received written notice from the Board
of Directors of the Company of such activity (which notice shall also include a
demand for the Employee to cease the activity giving rise to the conflict of
interest) fifteen (15) days prior to his termination and the Employee has failed
after receipt of such notice to cease all activities creating the conflict of
interest; or
(e) Should Employee be grossly negligent in the performance of his
duties hereunder, or materially in breach of his duties and obligations under
this Agreement; provided that termination for cause based on this subparagraph
(e) shall not be effective unless the Employee shall have received written
notice from the Board of Directors of the Company (which notice shall include a
description of the reasons and circumstances giving rise to such notice) fifteen
(15) days prior to his termination and the Employee has failed after receipt of
such notice to satisfactorily discharge the performance of his duties hereunder
or to comply with the terms of this Agreement, as the case may be.
The Company may for good cause terminate Employee's employment under this
Agreement without advance notice, except as otherwise specifically provided for
in subparagraphs (d) and (e) above. Termination shall not affect any of the
Company's other rights and remedies.
9. Payment of Certain Costs of Employee. If a dispute arises regarding the
interpretation or enforcement of this Agreement, all legal fees and expenses
incurred by the Employee in seeking to obtain or enforce any right or benefit
provided for in this Agreement or in otherwise pursuing his claim will be paid
by the Company, to the extent permitted by law. The Company further agrees to
pay prejudgment interest on any money judgment obtained by the Employee
calculated at the First National Bank of Chicago N.A. prime interest rate in
effect from time to time from the date that payment(s) to him should have been
made under this Agreement.
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10. Mitigation. The Employee is not required to mitigate the amount of any
payments to be made by the Company pursuant to this Agreement by seeking other
employment or otherwise.
11. Successors.
(a) Except as may otherwise be provided under any other
written agreement between the Company and the Employee with
respect to the terms of Employee's employment in the event
of a change of control of the Company, the Company will
require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement. As used in
this Agreement, "Company" shall mean the Company as
hereinbefore defined any successor to its business and/or
assets as aforesaid which executes and delivers the
agreement provided for in this Paragraph 11 or which
otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Employee
should die during the term hereof, the Company shall pay an
amount equal to any amounts than payable to Employee
hereunder, plus an amount equal to six months' annualized
total compensation (considering Employee's base pay and his
most recent annual bonus, if any), with all such amounts to
be paid to Employee's devisee, legatee or other designee or,
if there be no such designee, to his estate.
12. No Inconsistent Obligations. Employee represents and warrants that he
has not previously assumed any obligations inconsistent with those of this
Agreement.
13. Modification. This Agreement shall be in addition to all previous
agreements, written or oral, relating to Employee's employment by the Company,
and shall not be changed orally, but only by a written instrument to which the
Company and the Employee are both parties.
14. Binding Effect. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Company by merger or consolidation or any assignee of
all or substantially all of its properties.
15. Bankruptcy. Notwithstanding anything in this Agreement to the contrary,
the insolvency or adjudication of bankruptcy of the Company, whether voluntary
or involuntary, shall terminate this Agreement and the rights and obligations of
Company and Employee hereunder shall be of no further force or effect.
16. Law Governing. This Agreement made, accepted and delivered in Dallas
County, Texas, is performable in Dallas County, Texas, and it shall be construed
and enforced according to the laws of the State of Texas. Venue shall lie in
Dallas County, Texas for the purpose of resolving and enforcing any dispute
which may arise under this Agreement and the parties agree that they will submit
themselves to the jurisdiction of the competent State or Federal Court situated
in Dallas County, Texas.
17. Invalid Provision. In case any one or more of the provisions contained
in this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be impaired thereby.
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18. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Employee:
M. Xxx Xxxxxxx
#3 Post-N-Paddock
Xxxxx, Xxxxx 00000
If to the Company:
Xxxxxxxx Resources, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
EXECUTED and effective as to this 11th day of May 1998.
XXXXXXXX RESOURCES, INC.
/s/XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Senior Vice President
EMPLOYEE:
/s/M. XXX XXXXXXX
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M. Xxx Xxxxxxx
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