EMPLOYMENT AGREEMENT
Exhibit
10.31
THE
EMPLOYMENT AGREEMENT (“Agreement”) is entered into on August 2, 2010 (“Effective
Date”), by and between:
CASPIAN
SERVICES, INC., a Nevada corporation (the “Employer”), and
Xx.
XXXXXX XXXXX, an individual residing in Salt Lake City, Utah
(“Executive”).
PREAMBLE
The Employer and the Executive desire
the Executive's employment with the Employer, and the Executive wishes to accept
such employment, upon the terms and conditions set forth in this
Agreement.
Subject to the approval of this
Agreement by the Employer’s Board of Directors, the parties agree as
follows:
AGREEMENT
1.
Employment.
(a)
Employment. The
Company hereby employs Executive as President to serve as the Employer’s Chief
Executive Officer (CEO), and Executive hereby accepts such employment and agrees
to perform all duties and accept all responsibilities incident to the position
of the President as required by the Company Articles, Charter and Bylaws and
from time to time may be assigned to him by the Board of Directors (the
“Board”). Executive shall devote his full time, best efforts, knowledge,
and experience in discharging the duties under the
Agreement as maybe related to the Company and all of its subsidiaries, joint
ventures, and partnerships without limitation.
(b)
Duties. The Executive
will devote his entire business time, attention, skill, and energy exclusively
to the business of the Employer, including business of all of Employer’s
subsidiaries and affiliates (the “Employer’s business”), will use his best good
faith efforts to promote the success of the Employer's business, and will
cooperate fully with the Board of Directors in the advancement of the best
interests of the Employer.
Executive
agrees to perform certain incidental administrative, clerical and managerial
duties related to management of the Salt Lake City and Almaty administrative
offices of the Employer.
Executive
may be required to serve on the board of directors, supervisory board, audit
committee or similar governing or supervisory bodies of the Employer, its
subsidiaries, and its affiliates. Executive agrees to accept such appointments,
however if the employment is terminated for any reason Executive agrees to
promptly resign from all positions he may hold with the Employer or any of its
subsidiaries and affiliates. If the Executive is elected or appointed to serve
as a director of the Employer or as a director or officer of any of its
subsidiaries or affiliates, the Executive will fulfill his duties as such
director or officer without additional compensation.
(c)
Location. The
employment shall be based in the Salt Lake City, Utah, USA (Employment location)
however, Executive will be required to travel extensively to other Employer’s
business location in the Republic of Kazakhstan and the USA. All reasonable
business travel costs, including transportation, feeding and accommodation at
other Employer locations will be reimbursed by the Employer in accordance with
the Employer’s standard procedures.
2.
Compensation.
(a)
Base salary.
The Executive will be paid an annual salary of $ 220,000.00 (two
hundred and twenty thousand US dollars) payable in twelve equal periodic
installments according to the Employer's customary payroll practices at the
Employment location, but not less frequently than monthly (Monthly base salary).
At the Effective Date the Executive will be issued restricted stock representing
0.85% of the Employer’s total shares issued and outstanding on the annual basis
for the duration of the Term, vesting over period of 3 year commencing from the
Effective date, however all stock shall become fully vested upon an event of
Change of Control. The Executive will not be entitled to merit increment of the
Base salary till year 2012, thereafter Executive’s salary will be reviewed by
the Employer’s Board of Directors not less frequently than annually, and may be
adjusted upward or downward in the sole discretion of the Board of Directors, at
the election of the Employer’s Board of Directors the Executive’s Base salary
maybe paid in the Republic of Kazakhstan but in no event will the Monthly base
salary be less than $ 13,500.00 (thirteen thousand five hundred dollars) per
month, received by the Executive net of all employee taxes and mandatory pension
fund contribution withheld by the Employer in accordance with the statutory
requirements in the Republic of Kazakhstan.
(b)
Benefits. The
Executive will, during the Term of the Agreement, be permitted to participate in
such pension, profit sharing, bonus, incentive, life insurance, hospitalization,
medical, and other employee benefit plans of the Employer that may be in effect
at the Employment location from time to time, to the extent the Executive is
eligible under the terms of those plans (collectively, the
"Benefits").
(c)
Incentive Compensation and
Bonus. Executive shall be eligible on the Board of Directors’ sole
discretion for performance bonuses in accordance with terms specified by the
Board of Directors.
(d)
Expenses. The
Employer will reimburse Executive for all reasonable expenses incurred by him in
the course of performing his duties under the Agreement which are consistent
with the Employer’s policies in effect at the Employment location from time to
time with respect to travel, entertainment and other business expenses and to
the Employer’s requirements with respect to reporting and documentation of such
expenses.
(e)
Vacation. The
Executive will be entitled to twenty-four (24) business days of vacation
annually in accordance with the vacation policies of the Employer in effect at
the Employment location for its executive officers from time to time. Vacation
must be taken by the Executive at such time or times as approved by the
Employer’s Chairman of Board. The Executive will also be entitled to the paid
holidays and other paid leave set forth in the Employer's policies in effect at
the Employment location. The Executive may be granted up to five days of
personal leave, but only upon prior approval of Chairman.
(f)
Severance benefits.
In case Executive employment with the Employer is terminated or its Term
is not renewed by the Employer for any reason other than for cause in
accordance with Section 4 (b) and 4 (c) or due to Resignation in accordance with
Section 4 (d), for the greater of (i) ten consecutive months period, or (ii) the
period until the end of the Term, the Employer must pay Executive’s base salary
and continue Executive’s benefits and stock vesting in accordance with this
Agreement, provided however, that any statutory termination, loss of employment
or other social benefits the Executive may otherwise be entitled for in
accordance with the statutory regulation in the Employment location shall be
reduced for the amount of severance paid or provided in accordance with this
Agreement.
3.
Term.
(a)
Term of Employment.
Subject to the provisions of Section 4 of this Agreement, the term of the
Executive's employment under this Agreement is three (3) years, beginning on the
Effective Date and ending on the third anniversary of the Effective Date
(“Term”). If at the third anniversary of the Effective date the Executive
continues to perform his duties and do not receive a notice of termination from
the Employer’s Board of Directors the Term will automatically continue for a
consecutive one-year period after the initial Term unless terminated by either
party before the beginning of a new Term.
4. Termination.
(a)
Termination by the
Employer. Notwithstanding the provisions of Section 3 of the Agreement,
at the Employer’s option, it may terminate the Executive’s employment on or
before the end of the Term and request that Executive immediately cease
performing his duties, however, Employer must pay Executive’s Base salary though
the date of termination, and severance benefits in accordance with Section 2 (f)
of the Agreement, and incentive compensation and bonus, if any, for the
Employer’s fiscal year during which such termination occurs, prorated to the
month during which termination occurs unless termination is for cause as defined
in accordance with this Agreement.
(b)
Termination for
Cause. Employer may terminate the Agreement at any time for Cause (as
defined below) immediately and automatically upon giving Executive written
notice of such termination. If the Agreement is terminated for Cause all rights
of Executive under the Agreement (including, without limitation, rights to any
compensation, severance or other benefits under Section 2 of the Agreement)
shall cease as of the effective date of such termination. If the Employer
terminates this Agreement for cause, the Executive will be entitled to receive
his Salary only through the date such termination is effective, but will not be
entitled to any severance benefits, incentive compensation, other benefits or
bonus for the Fiscal Year during which such termination occurs or any subsequent
Fiscal Year.
(c)
Definition of Cause.
As used in the Agreement, “Cause” shall mean any of the following
events:
(i)
the
Executive's breach of this Agreement or failure to perform any duties assigned
to the Executive in a complete and skillful manner and in accordance with all
applicable legal and professional standards; or
(ii)
the
Executive's failure to adhere to any written Employer policy if the Executive
has been given a reasonable opportunity to comply with such policy or cure his
failure to comply (which reasonable opportunity must be granted during the
ten-day period preceding termination of this Agreement); or
(iii)
the
Executive’s appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer; or
(iv)
the
Executive's contravention of specific written lawful directions related to a
material duty or responsibility which is directed to be undertaken from the
Employer’s Board of Directors which is not cured during the ten-day
period preceding termination of this Agreement; or
(v)
the
Executive’s conviction of, the indictment for (or its procedural equivalent), or
the entering of a guilty plea or plea of no contest with respect to, a crime
with respect to which imprisonment is a possible punishment.
(d)
Resignation. The
Agreement shall terminate automatically upon Executive’s voluntary termination
of employment, other than in accordance with Section 4 (g) (For Good Reasons) of
the Agreement, his decision to retire or otherwise not to renew the Term at the
Executive’s election, and all Executive’s rights under the Agreement (including,
without limitation, rights to any compensation, severance or other benefits
under Section 2 of the Agreement) shall cease as of the date of such voluntary
termination, retirement or decision not to renew the Term at the Executive’s
election. If the
Executive resigns (except For Good Reasons), he will only be entitled to receive
his Base salary through the date of such termination, and incentive compensation
and bonus, if any, for the Employer’s fiscal year during which such termination
occurs, prorated to the month during which termination occurs.
(e)
Termination due to
Disability. The Agreement shall terminate automatically upon Executive’s
Disability and all of his rights under the Agreement (including, without
limitation, rights to any compensation, severance or other benefits under
Section 2 of the Agreement) shall cease as of the date of such termination;
provided, however, that, if he becomes Disabled after he delivers a Notice of
Termination (as defined in Section 4(g) of the Agreement), Executive shall
nevertheless be absolutely entitled to receive all of the compensation and
benefits provided to the Executive upon termination for Good Reasons in
accordance with Section 4 (g). The Employer shall provide to Executive not less
than thirty (30) days prior written notice of its intent to terminate his
employment for Disability. If this Agreement is terminated by either party as a
result of the Executive's disability, as determined under Section 4 (f), the
Employer will pay the Executive his Base salary through the remainder of the
calendar month during which such termination is effective and for the lesser of
(i) six (6) consecutive months thereafter, or (ii) the period until
disability insurance benefits commence, if any, under disability insurance
coverage furnished by the Employer or the Executive.
(f)
Definition of
Disability. For purposes of the Agreement, “Disability” shall mean a
mental or physical disability, illness or incapacity of Executive which renders
Executive unable to perform a substantial portion of his duties as an employee
of the Employer for a period of ninety consecutive days or an
aggregate period of one hundred and eighty days in any eighteen
(18) month period or that renders Executive unable to earn a
livelihood as an employee of a business comparable to the Employer’s business,
unless further time is required under applicable employee protection legislation
at the Employment location.
(g)
Termination by Executive for
Good reasons. The Agreement shall terminate following a thirty-day
Executive’s notice of intention to terminate for Good reasons, delivered to the
Employer’s Board of Directors, if the reasons of such termination are not cured
by the Employer. If the Agreement is terminated by the Executive for Good
reasons, Employer must pay Executive’s Base salary though the date of
termination, and severance benefits in accordance with Section 2 (g) of the
Agreement, and incentive compensation and bonus, if any, for the Employer’s
fiscal year during which such termination occurs, prorated to the month during
which termination occurs unless termination is for cause as defined in
accordance with this Agreement. Executive’s right to terminate employment for
Good reason shall be subject to the following conditions: (i) any amounts
payable upon a Good reason termination shall be paid only if Executive actually
terminates employment within one year following the initial existence of the
Good reason event, and (ii) Executive must provide written notice to the
Employer of the Good reason event within ninety (90) days of the initial
existence of the event and the Employer must be given at least thirty (30) days
to remedy such situation.
(h)
Definition of Good
reasons. Executive shall be considered to have terminated employment for
“Good reasons” if such termination occurs, in either case without the
Executive's consent, as a result of:
(i) a reduction in Executive’s annual
base salary except for a across-the-board salary reductions similarly affecting
all salaried employees of the Employer or a across-the-board salary reductions
similarly affecting all senior executive officers of the Employer;
or
(ii) the Employer's material breach
of this Agreement; or
(iii) the assignment of the Executive
without his consent to a position, responsibilities, or duties of a materially
lesser status or degree of responsibility than his position, responsibilities,
or duties at the Effective Date; or
(iv) the requirement by the
Employer that the Executive be based anywhere other than the Employer's
Employment location, or
(v) the substantial increase in
Executive’s travel requirements than those established under this Agreement at
the Effective date, or
(vi) the event of the Change of
Control.
(i)
Termination upon
death. The Agreement shall terminate automatically upon Executive’s
death, and all of his rights under the Agreement (including, without limitation,
rights to any compensation, severance or other benefits under Section 2 of the
Agreement) shall cease as of the date of such termination. If this Agreement is
terminated because of the Executive's death, the Executive or his estate will be
entitled to receive his Base salary through the end of the calendar month in
which his death occurs, and that part of the Executive's incentive compensation
and bonus, if any, for the Fiscal Year during which Executive’s death occurs,
prorated through the end of the calendar month during which the Executive’s
death occurs, and Executive’s severance in accordance with Section 2 (g) of this
Agreement.
(j)
Termination due to Change of
Control. If the Executive’s employment is terminated for any reason or
Executive in his discretion elects to resign and give Employer a written notice
of his intention to terminate employment due to Change of Control during 90 days
period preceding actual or anticipated event of Change of Control or during 360
days following event of Change of Control, the Executive shall become entitled
for the total of: i) Executive’s one time annual Base salary, and ii) total Base
salary due to the Executive for a period until the end of the Term, payable to
the Executive at the termination date in lump sum.
(k)
Definition of Change of
Control. A Change of Control shall means one or more of the following:
the consummation of any reorganization, merger, share exchange, consolidation,
or sale or disposition of assets of the Employer or any its major subsidiaries
with another person, or any acquisition of the Employer or any of its major
subsidiaries by any person or group of persons, acting in concert, equal to
fifty percent (50%) or more of the outstanding stock of the Employer or any of
its major subsidiaries, or the sale of forty percent (40%) or more of the assets
of the Employer or any of its major subsidiaries, or one (1) person or more than
one person acting as a group, acquires fifty percent (50%) or more of the total
voting power of the stock of the Employer, or Individuals who constitute the
Incumbent Board cease for any reason to constitute at least a majority of the
Board; and for this purpose, any individual who becomes a member of the Board
after the date of this Agreement whose election, or nomination for election by
holders of the Company's Voting Securities, was approved by the vote of at least
a majority of the individuals then constituting the Incumbent Board shall be
considered a member of the Incumbent Board, or the Company's shareholders
approve a complete liquidation or dissolution of the Company, or a
reorganization, merger, share exchange, consolidation, or sale or disposition of
all or substantially all of the assets of the Company unless, the Persons who or
which Beneficially Own the Voting Securities of the Company immediately before
that transaction Beneficially Own, directly or indirectly, immediately after the
transaction, at least 75% of the Voting Securities of the Company or any other
corporation or other entity resulting from or surviving the transaction
(including a corporation or other entity which, as the result of the
transaction, owns all or substantially all of Voting Securities of the Company
or all or substantially all of the Company's assets, either directly or
indirectly through one or more subsidiaries) in substantially the same
proportion as their respective ownership of the Voting Securities of the Company
immediately before that transaction
5.
Requirement of
Release.
Notwithstanding
anything in the Agreement to the contrary, Executive’s entitlement to any
payments under the Agreement other than his accrued but unpaid base compensation
and any accrued but unpaid or otherwise vested benefits under any benefit or
incentive plan determined at the time of his termination of employment, shall be
contingent upon his prior agreement with and signature to a complete release and
hold harmless agreement (in the form satisfactory to the Employer) which shall
completely release the Employer, its parent, affiliates, subsidiaries, officers,
directors and employees (collectively the “Released Parties” and individually a
“Released Party”) and which shall forever waive all claims of any nature that
Executive may have against any Released Party, including without limitation all
claims arising out of his employment within the Employer or any of its
subsidiaries or the termination of that employment.
6.
Restrictive
Covenants.
(a)
During Executive’s employment with the
Employer and for a period of one (1) year thereafter:
(i)
Executive
shall not directly for himself or any third party, become engaged in any
business or activity which is directly in competition with any services or
products sold by, or any business or activity engaged in by, the Employer or any
of its affiliates within the Republic of Kazakhstan; provided, however, that the
provision shall not restrict Executive from owning or investing in an
institution (including venture, partnership, or entity) so long as his aggregate
holdings in any such institution do not exceed 10% of the outstanding capital
stock of such institution.
(ii)
Executive
shall not solicit any person who was a customer of the Employer or any of its
affiliates, or solicit potential customers who are or were identified through
leads developed during the course of employment with the Employer, or otherwise
divert or attempt to divert any existing business of the Employer or any of its
affiliates; and
(iii)
Executive
shall not, directly for himself or any third party, solicit, induce, recruit or
cause another person in the employment of the Employer or any of its affiliates
to terminate such employee’s employment for the purposes of joining,
associating, or becoming employed with any business or activity which is in
competition with any services or products sold, or any business or activity
engaged in, by the Employer or any of its affiliates.
(b)
Executive agrees that he will not,
while employed with the Employer or at any time thereafter for any reason, in
any fashion, form or manner, either directly or indirectly, divulge, disclose or
communicate to any person, firm, corporation or other business entity, in any
manner whatsoever, any confidential information or trade secrets concerning the
business of the Employer, including, without limiting the generality of the
foregoing, any customer lists or other customer identifying information, the
techniques, methods or systems of the Employer’s operation or management, any
information regarding its financial matters, or any other material information
concerning the business of the Employer, its manner of operation, its plan or
other material data. The provisions of the Section 9(b) shall not apply to (i)
information that is public knowledge other than as a result of disclosure by
Executive in breach of the Section 9(b), (ii) information disseminated by the
Employer to third parties in the ordinary course of business, (iii) information
lawfully received by Executive from a third party who, based upon inquiry by
him, is not bound by a confidential relationship to the Employer, or (iv)
information disclosed under a requirement of law or as directed by applicable
legal authority having jurisdiction over Executive.
(c)
Executive agrees that he will not,
while employed with the Employer or at any time thereafter for any reason, in
any fashion, form or manner, either directly or indirectly, disparage or
criticize the Employer, or otherwise speak of the Employer, in any negative or
unflattering way to anyone with regard to any matters relating to his employment
by the Employer or the business or employment practices of the Employer. The
Employer agrees that it will not, in any fashion, form or manner, either
directly or indirectly, disparage or criticize Executive or otherwise speak of
Executive in any negative or unflattering way to anyone with regard to any
matters relating to his employment with the Employer. The Section shall not
operate as a bar to (i) statements reasonably necessary to be made in any
judicial, administrative or arbitral proceeding, or (ii) internal communications
between and among the employees of the Employer with a job-related need to know
about the Agreement or matters related to the administration of the
Agreement.
(d)
Executive understands that in the event
of a material violation of any provision of the Section 6 as determined in good
faith by the Employer’s Board of Directors, the Employer shall have the right to
seek injunctive relief, in addition to any other existing rights provided in the
Agreement or by operation of law, without the requirement of posting bond.
Following such determination the Employer may also suspend future payments of
the severance payments and benefits provided under the Agreement, provided,
however, that the Employer shall provide him with written notice of such
suspension at least fifteen (15) days prior to the date of such suspension. The
remedies provided in the Section 6(d) shall be in addition to any legal or
equitable remedies existing at law or provided for in any other agreement
between Executive and the Employer or any of its affiliates, and shall not be
construed as a limitation upon, or as an alternative or in lieu of, any such
remedies. If any provisions of Section 6 shall be determined by a court of
competent jurisdiction to be unenforceable in part by reason of it being too
great a period of time or covering too great a geographical area, it shall be in
full force and effect as to that period of time or geographical area determined
to be reasonable by the court.
(e)
Executive agrees that the provisions of
Section 6 shall extend to any offices or facilities of any Employer business
that becomes an affiliate of or successor to the Employer or any of its
affiliates.
7.
Additional Covenants of
Executive.
(a)
Employee Work.
All written and graphic materials, computer software, inventions,
discoveries, patents, patent applications developed, authored, prepared,
conceived or made by Executive during the term of his employment hereunder and
which are related to or are the product of the tasks, assignments and
performance by him of the duties of his employment and relate to the Business
(defined below) of the Employer or any of its affiliates (collectively,
“Employee Work”) shall be the sole property of the Employer and, to the extent
applicable, shall be “work made for hire” under and as defined in the Copyright
Act of 1976, 17 U.S.C. §1 et seq. For
purposes of the subsection (a), the term “Business” shall mean providing and/or
developing of Employer’s business. Executive hereby agrees to disclose
promptly to the Employer all Employee Work and hereby agrees to assign to the
Employer all right, title and interest in and to such Employee Work and shall
execute all such documents and instruments as the Employer may reasonably
determine are necessary or desirable in order to give effect to the subsection
or to preserve, protect or enforce the Employer’s rights with respect to any
Employee Work.
(b)
Return of Employer
Property. Promptly after termination of Executive’s employment
hereunder for any reason, Executive or his personal representative shall return
to the Employer all property of the Employer then in his possession, including
without limitation papers, documents, computer disks, vehicles, keys, credit
cards and confidential information, and shall neither make nor retain copies of
the same.
8.
Representations and
Warranties of Executive.
Executive
hereby represents and warrants to the Employer that he is not a party to or
otherwise subject to or bound by any contract, agreement, understanding, legal
proceeding, order, judgment, or otherwise which would limit or otherwise
adversely affect his ability to serve as CEO or to otherwise perform his duties
hereunder or which would be breached or violated by his execution and delivery
of the Agreement or by the performance of his duties hereunder. Executive
further represents and warrants that his employment by the Employer will not
require him to disclose or use any confidential information belonging to prior
employers or other persons or entities.
9.
Notice.
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when:
(i) delivered by hand (with
written confirmation of receipt),
(ii) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or
(iii) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to
Employer:
Attention:
Mirgali Kunayev, Chairman of the Board
Caspian Services,
Inc.
Facsimile
No.: + 1 801 746 3701
With a
copy to: Caspian Services Inc.,
Attc: Corporate
Secretary
000 X 000 X XXX
000
Xxxx Xxxx Xxxx, Xxxx,
00000
If to
Executive: by mailing to the last known address delivered to the
Employer by the Executive in writing.
10.
Arbitration and
Jurisdiction.
The
parties hereby specifically agree that any controversy or claim arising out of
or relating to the Employment Agreement, or the breach thereof, shall
be finally resolved by arbitration administered by the American Arbitration
Association under its Employment Dispute Resolution Rules, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. There shall be three arbitrators, named in
accordance with such rules. Absent the agreement between the Employer
and Executive at the time of such dispute, arbitration shall be conducted in
English language in Salt Lake City, Utah in accordance with the Unites States
Arbitration Act and the arbitrators shall decide the dispute in accordance with
the substantive law of the State of Utah, however, application of the Labor Code
of Republic of Kazakhstan, dated May 15, 2007 as amended at the Effective Date
shall be given a full due consideration where applicable under this Agreement.
Any action or proceeding seeking to enforce arbitration under Section 10 or
enforce any arbitration award under Section 10, may be brought against either of
the parties in the courts of the State of Utah, County of Salt Lake, or, if it
has or can acquire jurisdiction, in the United States District Court for the
District of Utah, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.
Process
in any action or proceeding referred to in the preceding sentence may be served
on either party anywhere in the world.
11.
Miscellaneous.
The
validity or enforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision. The Agreement embodies
the entire Agreement between the parties hereto and supersedes any and all prior
or contemporaneous, oral or written understandings, negotiations, or
communications on behalf of such parties. The Agreement may be executed in
several counterparts, each of which shall be deemed original, but all of which
together shall constitute one and the same instrument. The Agreement may
be delivered by telefax, and such telefax copy shall be as effective as delivery
of a manually executed counterpart. The waiver by either party of any
breach or violation of any provision of the Agreement shall not operate or be
construed as a waiver of any subsequent breach or violation hereof. All
compensation and benefits provided in the Agreement shall, to the extent
required by law, be subject to federal, state, and local tax withholding.
The Agreement is executed in and shall be governed by and construed in
accordance with the laws of the State of Utah without giving effect to any
conflict of laws provision. The Agreement shall be amended only by written
agreement of both parties hereto.
Executive
to the extent allowable by law, waives any right to claim in addition to the
compensation and severance provided in accordance with this Agreement, any
additional compensation, reimbursement, benefits, social insurance, unemployment
or termination benefits or any other benefits that he may otherwise become
entitled to as a matter of law or contract due to him at a Employer’s subsidiary
or from any Employee affiliate during the Term of this Agreement.
Executive
agrees that any statutory termination, unemployment, loss of employment social
security benefits, and/or any other similar benefits the Executive may otherwise
be entitled in accordance with the statutory regulations in the Employment
location shall be reduced by the amount of compensation and severance paid or
provided to the Executive in accordance with this Agreement.
In the
event the Executive initiates any action arising out of or relating to his
employment with the Employer or seeks any remedy, other than provided under this
Agreement, such action and remedy shall be deemed to be an exclusive election by
the Executive and no other or additional right or remedy will available to the
Executive under the terms of this Agreement.
Executive
agrees that a final judgment or award in any claim brought under this Agreement
or under employment with the Employer or with any Employer subsidiaries by
Executive against the Employer or any of its subsidiaries in the Republic of
Kazakhstan will serve as a complete defense against any concurring, future or
subsequent claims brought by the Executive or on his behalf under this Agreement
in any other jurisdiction or country, including the United States of America
without limitation.
12.
Survival.
Notwithstanding the termination of the Agreement, the provisions which
specify continuing obligations, compensation and benefits, and rights shall
remain in effect until such time as all such obligations are discharged, all
such compensation and benefits are received, and no party or beneficiary has any
remaining actual or contingent rights under the Agreement.
13.
Successors; Binding
Agreement.
(a)
The
Employer will require any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
businesses or assets of the Employer to expressly assume and agree to perform
the Agreement in the same manner and to the same extent that the Employer would
be required to perform it if no such succession had taken place. Failure
by the Employer to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute a breach of the Agreement.
As used in the Agreement, the “Employer” shall mean the Employer as
defined previously and any successor to its respective businesses or assets as
aforesaid which assumes and agrees to perform the Agreement by operation of law
or otherwise.
(b)
The
Agreement shall inure to the benefit of, and be enforceable by, Executive and
the Employer, and their respective personal or legal representatives, executors,
administrators, heirs, distributors, devisees, legatees, successors and
permitted assigns. If Executive should die after a Notice of Termination
is delivered by him, or following termination of his employment without Cause,
and any amounts would be payable to Executive under the Agreement if he had
continued to live, all such amounts shall be paid in accordance with the terms
of the Agreement to Executive’s devisee, legatee, or other designee, or, if
there is no such designee, to Executive’s estate.
14.
Assignment.
The
Agreement shall not be assignable by either party hereto, except by the Employer
to any successor in interest to the business of the Employer, provided that the
Employer (if it remains a separate entity) shall remain fully liable under the
Agreement for all obligations, payments and otherwise.
15.
No Mitigation or
Offset.
In the
event of termination of Executive’s employment, he will be under no obligation
to seek other employment and there will be no offset against any payment or
benefit provided for in the Agreement on account of any remuneration or benefits
from any subsequent employment that he may obtain.
16.
Legal Fees.
The
Employer shall reimburse Executive for all reasonable legal fees and expenses
incurred by him in attempting to obtain or enforce rights or benefits provided
by the Agreement, if, with respect to any such right or benefit, he is
successful in obtaining or enforcing such right or benefit (including by
negotiated settlement).
17.
Recovery of Bonuses and
Incentive Compensation.
(a)
Notwithstanding anything in the
Agreement to the contrary, all bonuses and incentive compensation paid hereunder
(whether in stock or in cash) shall be subject to recovery by the Employer in
the event that such bonuses or incentive compensation is based on materially
inaccurate financial statements (which includes, but is not limited to,
statements of earnings, revenues, or gains) or other materially inaccurate
performance metric criteria; provided that a determination as to the recovery of
a bonus or incentive compensation shall be made within twelve (12) months
following the date such bonus or incentive compensation was paid.
(b)
In the event that the Board determines
by at least a majority vote that a bonus or incentive compensation payment to
Executive is recoverable, Executive shall reimburse all or a portion of such
bonus or incentive compensation, to the fullest extent permitted by law, as soon
as practicable following written notice to him by the Employer of the
same.
SIGNATURES
|
CASPIAN
SERVICES, INC.
|
By:
_________________
Name:
Mirgali Kunayev
Title:
Chairman of the Board
EMPLOYEE:
By:
________________
Name:
Xxxxxx Xxxxx
