EXHIBIT 10.13
EMPLOYMENT AGREEMENT
XXXXX XXXX
TEREX ENERGY CORPORATION
THIS AGREEMENT is effective as of the 1st day of November 2014 between Terex
Energy Corporation, a Colorado Corporation (hereinafter referred to as
"Employer") and Xxxxx Xxxx ( hereinafter referred to as " Executive") a resident
of Nebraska.
WHEREAS, Employer and Executive desire to formalize an Employment relationship
as outlined herein, effective as of November 1, 2014.
NOW THEREFORE, the parties for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged hereby agree as follows:
1. EMPLOYMENT. The Employer agrees to employ the Executive and the Executive
accepts such employment by the Employer on the terms and conditions set forth
herein.
2. TERM. This Agreement is effective as of the 1st day of November 2014 and the
term of the Executive's employment hereunder shall be for three years.
3. DUTIES. Employer shall employ Executive initially as Vice President of
Operations and Director or such other job title during the term to perform such
duties as are normal and customary in the conduct of Employer's business and
Executive will devote his best efforts to implement and/or conduct the business
of the Employer and make available to office and the Employer shall provide the
necessary staff, equipment, computers, services, facilities, furniture and
support for Executive to properly carry out and complete the duties of his
employment. Both Employer and Executive will maintain complete and accurate
records, reports and other documentation that is necessary for the conduct of
Employer's business.
4. COMPENSATION. Employer agrees to pay Executive a Base Salary of $150,000.00
per year for the first year payable monthly. The salary shall be adjusted
annually by the Board of Directors in the anniversary of this agreement.
Executive shall also be entitled to receive an annual bonus as determined by the
board.
5. BENEFITS. At its cost, Employer shall furnish to Executive comprehensive
medical health insurance, disability income insurances and other such benefits
at the level afforded the same level Executives of the Employer. Executive shall
be entitled to participate in any Incentive Stock Option plan.
Executive shall be entitled to four (4) weeks of paid vacation & sick leave,
without reduction in salary, beginning the 1st and ending after the last
calendar year of employment and for each calendar year during the term of this
Agreement. Vacation shall be at a mutually agreed upon time, such agreement not
to be unreasonably withheld. Paid vacation and sick leave shall be fully earned
the first and last calendar years of employment.
6. BUSINESS EXPENSES. Employer shall reimburse Executive for all reasonable and
necessary business expenses incurred by him in carrying out his duties under
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this Employment Agreement so long as such expenses are properly documented in
accordance with the Employer's policies for expense reimbursement.
7. EMPLOYER RESOURCES. As a matter of convenience, Executive will have limited
use of Employer's resources for personal purposes, including telephone, copy
machine, vehicles, staff and such other resources as the parties may agree.
Employer will also furnish Executive with a cell phone, a personal computer for
office and home use, and such other equipment as the parties may agree in
accordance with the Employer's usual practice.
Upon termination of this Agreement the Employee may retain the cell phone and
computer.
8. OTHER SOURCES OF INCOME/EARNINGS. The Employer understands that the Executive
has other sources of income and earnings through consultancy, or positions in
associations, companies, enterprises or ventures where the Executive had or has
an existing relationship; And that these relationships will continue and that
new and additional relationships and sources of income may be established in the
future. The Employer agrees that these relationships and sources of income may
continue as long as the Executive fulfills his duties and responsibilities and
as long as the Executive hereby warrants that there is no current relationship
that constitutes even the perception of a conflict of interest or that would
preclude the Executive from the fulfillment of duties and responsibilities. The
Executive further agrees not to enter into any relationship where there is even
the perception of a conflict of interest or that would prevent the Executive
from fulfilling duties and responsibilities.
9. TERMINATION. The following shall apply:
(A). DEATH. In the event of Executive's death during the Executive's
employment hereunder, this Agreement shall terminate.
(B). ILLNESS OR INCAPACITY. If, during any term of this Agreement,
Executive shall become unable to perform his duties by reason of
illness or incapacity, then Employer, may, at its option, terminate
this Agreement. In such event, the notice period shall be not less
than the applicable elimination period in any employee disability plan
of the Employer in which Executive participates. It is agreed that the
determination of illness or incapacity shall be made upon the basis of
qualified medical evidence and if, during the notice period, Executive
returns to work and is capable of carrying out his duties, then
Employer's right to terminate for illness or incapacity is suspended.
(C) FOR CAUSE. Upon thirty (30) days written notice, the Executive's
employment hereunder may be terminated without further liability on
the part of the Employer for Cause. Only the following shall
constitute "Cause" for such:
(i) Conviction of a felony, a crime or moral turpitude or commission
of an act of embezzlement or fraud against the Employer or any
subsidiary or affiliate thereof:
(ii) Deliberate dishonesty of the Executive resulting in damages to
the Employer or any subsidiary or affiliate thereof;
(iii) Dereliction of duty, misfeasance or malfeasance.
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In the event of a termination for cause the Executive shall not be entitled to
the benefits of any bonus for the period preceding the termination nor will the
company be required to repurchase any of the shares owned by the Executive as
hereinafter provided.
(D) TERMINATION AT WILL BY THE COMPANY. The Company may terminate this
agreement at will upon 60 days written notice. If the Company decides to
terminate this agreement, the company shall repurchase fifty percent of the
Executives shares up to one million shares at a price equal to ninety
percent of the average trading price over the 60 days preceding the notice
of termination or a price as determined by independent qualified evaluation
in the event the stock is not trading at the time of termination. The
Company shall pay fifty percent of the repurchase price within 30 days of
termination and the balance within 60 additional days.
(E) RESIGNATION BY EXECUTIVE. The Executive may resign and terminate this
agreement on 60 days written notice and he shall not be required to render
any further services to the Employer.
(F) SET-OFF. In accordance with 9 above, The Employer shall not be entitled to
any set off against any cash compensation to be provided to the Executive under
this Agreement, or any and all compensation received by the Executive while he
was also receiving compensation from any other employer, unless a Conflict of
Interest arises. In such case, the Executive shall inform the Employer of any
such amounts of cash compensation pertaining to the conflict of interest and
shall refund to the Employer any related amounts paid by the Employer.
Should Executive terminate this with or without Good Reason, he agrees to assist
Employer for a period of time not less than thirty (30) days in order to effect
a smooth transition, unless otherwise requested by Employer.
10. CHANGE IN CONTROL
In a Change of control event, the Corporation shall treat this Agreement as
terminated by Corporation without cause in which event Corporation shall be
obligated to provide the Employee with a severance payment in lieu of notice.
Such severance payment shall be payable on the 15th day following the date on
which the Corporation notifies the Employee of his termination and shall consist
of the following amounts:
1. The Employee's full salary through the date of termination specified
in the notice of termination at the rate in effect at the time notice
of termination was given, plus an amount equal to the amount, if any,
of any awards previously made to the Employee which have not been
paid.
2. In lieu of further salary and benefits for periods subsequent to the
date of termination, an amount which shall be equal to the salary and
benefits which would otherwise have been payable to or paid on behalf
of the Employee for the (6) month period following the date of
termination.
3. Any remaining or outstanding stock grants, options or awards shall
fully vest with a cashless option provision.
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11. RESTRICTIONS. A separate Non-Solicitation and Confidentiality/Non-Disclosure
Agreement has been signed by Executive, the terms of which are incorporated
herein by reference, and which provides certain Restrictions.
12. NO CONFLICT. The Executive hereby represents and warrants that: (i) he is
not subject to any covenants against competition or similar covenants which
would prohibit or impede the performance of his obligations hereunder; (ii) the
execution of this Agreement and the performance of his obligations hereunder
will not cause him to breach or be in conflict with any other agreement to which
he is a party or by which he is bound; and (iii) the execution of this Agreement
and the performance of his obligations hereunder will not cause him to breach
any fiduciary or other duty.
13. OFFICER & DIRECTORS INSURANCE. In addition to regular benefits provided
senior executives, Employer will provide and pay for Executive's D&O (Directors
& Officers) insurance at standard levels for similar commercial enterprises.
14. NOTICES. All communications and notices made pursuant to this Employment
Agreement shall be in writing and sent by certified mail, return receipt
requested, as follows:
(A) EXECUTIVE: XXXXX XXXX
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(B) EMPLOYER: TEREX ENERGY CORPORATION
Xxxxx 000
000 Xxxx Xx.
Xxxxxxxxxx, XX 00000
Or such other address as is provided in writing to the other.
15. MODIFICATION. This Agreement may be amended only in writing, and mutually
executed by both parties to this Agreement. This Employment Agreement
constitutes the entire contract between the parties hereto with respect to
employment, and the parties shall not be bound in any manner related to
employment by any warranties, representations or guarantees, except as
specifically set forth in the Employment Agreement.
16. ASSIGNMENT. This Agreement shall be binding upon the parties hereto, their
respective heirs, legal representatives, successors, and assignees, but this
Employment Agreement may not be assigned by any party without the express
written consent of both parties. In the event of the merger, reorganization,
business combination or consolidation of the Employer with any other corporation
or corporations, or any other corporate re-organizations involving Employer,
this Agreement shall be assigned and transferred to such Successor in interest
and in such event Executive shall continue to perform his duties and obligations
pursuant to the terms of this Agreement; however, Employer will remain liable as
the Guarantor of the obligations and duties of the Assignee Employer of this
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Agreement. Employer must give the Executive ninety (90) days notice of the
consummation of any such the merger, consolidation or reorganization as set
forth above. Executive reserves the exclusive right to terminate his duties
pursuant to this Employment Agreement in the event of such by giving seven (7)
days written notice to the original Employer.
17. WAIVER. The waiver by the Employer or Executive of any breach of the
provisions of this Employment Agreement by either party shall not operate or be
construed as a waiver of any subsequent breach of the other.
18. SEVERABILITY. Invalidity, illegality, or unenforceability of any provision
shall not affect in any manner the other provisions contained herein, which
remain in full force and effect. It is the intent of and specifically
acknowledged by Executive and Employer that all Restrictive Covenants shall
survive termination of this Agreement.
19. GOVERNING LAW AND CHOICE OF FORUM. This Agreement is a Colorado contract,
and shall be construed and enforced according to the laws of the State of
Colorado. In connection with any dispute arising under this Agreement, the
parties agree to submit themselves and all such disputes to the jurisdiction of
any state or federal court having subject matter jurisdiction of the dispute,
located in Colorado.
20. ENTIRE AGREEMENT. This Employment Agreement contains the entire
understanding between the parties, and may not be changed orally, but only by
agreement in writing signed by both parties hereto.
21. RIGHT TO INDEPENDENT COUNSEL. The Executive has reviewed the contents of
this Agreement and fully understands its terms. The Executive acknowledges that
he is fully aware of his right to the advice of counsel independent from that of
the Employer. The Executive further acknowledges that no representations have
been made with respect to the income or estate tax or other consequences of this
Agreement to him and that he has been advised of the importance of seeking
independent advice of counsel with respect to such consequences.
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IN WITNESS WHEREOF, the parties hereunto have caused this Employment Agreement
to be executed as of the day and year stated herein.
TEREX ENERGY CORPORATION
BY: BY:
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CEO EXECUTIVE
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