AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement, effective as of August 8th, 2001
(the "Agreement"), is entered into by and between MAXXON, INC., a Nevada
corporation (the "Company"), the principal offices of which are located at 0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx, 00000, and XXXXXX XXXXXXX
("Xxxxxxx"). This Amended Employment Agreement is intended to amend the original
Employment Agreement between Xxxxxxx and Maxxon dated January 3, 2001. In
consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree to the following:
WITNESSETH
Whereas, the Employee has agreed to perform services for and on behalf
of the Company, as well as to devote her time, attention and energies to the
business of the Company during the term of this Agreement; and
Whereas, the Company and the Employee have mutually agreed upon the
remuneration the Employee shall receive from the Company as an employee during
the term of this Agreement; and
Whereas, the Company and the Employee have agreed it is in their best
interest to set forth in this Agreement the specific manner in which such
remuneration is to be paid the Employee by the Company; and
Whereas, the Parties hereby recognize that the Employee has served
without pay or other non-equity compensation since the Company's inception in
August of 1996. The fair market value of these services has been estimated by
management of the Company and recognized as a capital contribution.
Whereas, it is the intention of both the Company and the Employee that
this Agreement be entered into with strict adherence to the definition of
Employee Benefit Plan as set forth in Rule 405 of the Securities Act of 1933, as
amended;
Whereas the parties agree that any portion of this Agreement which
conflicts with the Company's Articles of Incorporation or Bylaws shall be void
and the rest of this Agreement shall remain effective.
Whereas, the Company represents that by executing this contract that
they have taken all necessary steps to have the legal authority to bind the
Company;
The Company hereby agrees to employ Xxxxxxx as its Employee, and
Xxxxxxx agrees to be employed by the Company upon the terms and conditions
hereinafter set forth.
ARTICLE 1
DUTIES AND COMPENSATION
1.01 Term of Employment and Duties. The Company and Xxxxxxx agree that for
the period commencing on January 3rd, 2001 and terminating on January
3, 2002 (the "Termination Date"), the Company shall employ Xxxxxxx and
Xxxxxxx shall perform duties ("duties") for the Company as Financial
Reporting Manager of the Company as set forth in the Company's
Articles of Incorporation and Bylaws and shall report to the
President.
1.02 Commitment to the Company. During the term of this Agreement, Xxxxxxx
shall devote such working time, attention and energies to the business
of the Company, as is necessary or appropriate for the performance of
her duties as Financial Reporting Manager of the Company.
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However, this commitment shall not be construed as preventing Xxxxxxx
from participating in other businesses or from investing Vincent's
personal assets in such form or manner as may occasionally require
substantial time on the part of Xxxxxxx in the management,
conservation and protection of such investments and provided that such
investments or business cannot be construed as being competitive or in
conflict with the business of the Company.
1.03 Renewal of Term. Upon each Termination Date this Agreement shall renew
and continue in effect for an additional two-year period, and each
successive Termination Date shall thereafter be designated as the
"Termination Date" for all purposes under this Agreement.
1.04 (a) Compensation. Xxxxxxx shall receive a salary of $100,000.00 per
year, payable in 24 semi-monthly installments. Each January the
President shall review Vincent's salary and shall make such increases
in salary, as it considers appropriate. Vincent's salary during the
term of this Agreement shall never be less than $100,000.00 per year.
Effective at the beginning of each calendar year Xxxxxxx shall be
entitled to at least an increase in salary that is equal to the
percentage increase in the Consumer Price Index during the previous
calendar year.
(b) Bonus. During the term of this Agreement Xxxxxxx shall be entitled
to participate in all bonuses, as the President, in its sole
discretion, shall determine.
(c) Fringe Benefits. During the term of this Agreement the Company
shall provide to Xxxxxxx each of the following: (i) all reasonable and
customary executive "fringe benefits," including, but not limited to,
participation in pension plans, profit-sharing plans, employee stock
ownership plans, stock option plans (whether statutory or not), stock
appreciation rights plans, hospitalization insurance, medical
insurance, dental insurance, disability insurance, life insurance, and
such other benefits that are granted to or provided for executives now
in the employ of the Company or that may be granted to or provided for
them during the term of Vincent's employment under this Agreement; and
(ii) paid vacation and sick leave, as determined by the President.
(d) Reimbursement of Expenses. (i) During the term of this Agreement
the Company shall pay directly or reimburse Xxxxxxx for all reasonable
and necessary travel, entertainment, or other related expenses
incurred by her in carrying on her duties and responsibilities under
this Agreement. In addition, the Company shall xxxxxxx Xxxxxxx with a
cellular telephone and suitable office space and facilities for the
performance of her duties. (ii) During the term of this Agreement the
Company shall pay for Vincent's membership dues in professional
organizations and for any seminars and conferences related to Company
business.
1.05 Assistance of Xxxxxxx. Xxxxxxx agrees to assist the Company during any
and all investigative matters, threatened or pending litigation during
and after her employment. After employment assistance shall not be
required in matters to which she is personally a party or which she
has written opinion and advise of counsel that the same would be
personally damaging.
1.06 (a) Indemnification. Xxxxxxx shall be indemnified by the Company for
all legal expenses and all liabilities incurred in connection with any
proceeding involving her by reason of her being or having been an
officer, director, employee, or agent of the Company to the fullest
extent permitted by the laws of the State of Nevada.
(b) Payment of Expenses. In the event of any action, proceeding or
claim against Xxxxxxx arising out of her serving or having served in a
capacity specified in Section 1.01 above, which in Vincent's sole
judgment requires her to retain counsel (such choice of counsel to be
made by
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Xxxxxxx with the prior consent of the Company, which may not
unreasonably withhold its consent) or otherwise expend her personal
funds for her defense in connection therewith, the Company shall pay
for or reimburse Xxxxxxx for all reasonable attorney's fees and
expenses and other costs associated with Vincent's defense of such
action as such fees and costs are incurred.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.01 Termination Procedure. Either party to this Agreement may terminate
Vincent's employment under this Agreement by giving the other party
written notice of the intent to terminate at least thirty days prior
to the proposed termination date except as set out in section 2.02. A
decision by the Company to terminate Vincent's employment under this
Agreement shall require an affirmative vote of more than 66-2/3% of
the Board except as set out in Section 2.02.
2.02 Death. This Agreement shall terminate on the date of Vincent's death.
If this Agreement is terminated as a result of Vincent's death, the
Company shall pay to Vincent's estate, not later than the 30th day
following her death, a lump sum severance payment consisting of (1)
Vincent's salary and accrued salary through the date of her death, (2)
all amounts Xxxxxxx would have been entitled to upon termination of
her employment under the Company's employee benefit plans and (3) a
pro rata amount of bonus Xxxxxxx was eligible to receive under any
Company bonus plan.
2.03 Disability. The Company shall have the right to terminate this
Agreement if Xxxxxxx incurs a permanent disability during the term of
her employment under this Agreement. For purposes of this Agreement,
"Permanent Disability" shall mean inability of Xxxxxxx to perform the
services required hereunder due to physical or mental disability which
continues for either (i) a total of 180 working days during any
12-month period or (ii) 150 consecutive working days. In the event
that either party disputes whether Xxxxxxx has a permanent disability,
such dispute shall be submitted to a physician mutually agreed upon by
Xxxxxxx or her legal guardian and the Company. If the parties are
unable to agree on a mutually satisfactory physician, each shall
select a reputable physician, who, together, shall in turn select a
third physician whose determination of Vincent's ability to perform
her job duties shall be conclusive and binding to the parties.
Evidence of such disability shall be conclusive notwithstanding that a
disability policy or clause in an insurance policy covering Xxxxxxx
shall contain a different definition of "permanent disability." If
Vincent's employment under this Agreement is terminated by the Company
because she has a permanent disability, the Company shall pay Xxxxxxx,
not later than the 30th day following the date of termination, a lump
sum severance payment consisting of (1) Vincent's salary through the
date of her termination, (2) all amounts Xxxxxxx is entitled to upon
termination of employment under the Company's employee benefit plans,
(3) Vincent's undiscounted salary through the Termination Date, or if
greater for a period of 24 months, and (4) a pro rata amount of bonus
she is eligible to receive under any Company bonus program.
2.04 Termination With Cause. The Company shall have the right to terminate
this Agreement for cause. For purposes of this Agreement, "for cause"
shall exclusively be defined to mean (a) conviction of a felony which
is materially detrimental to the Company, (b) proof beyond a
reasonable doubt of the gross negligence or willful misconduct which
is materially detrimental to the Company, or (c) proof beyond a
reasonable doubt of a breach of a fiduciary duty which is materially
detrimental to the Company. If the Company terminates Vincent's
employment "for cause" the Company shall pay Xxxxxxx, not later than
the 30th day following the date of termination, a lump sum severance
payment consisting of (1) Vincent's salary and accrued salary
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through the date of her termination and (2) all amounts Xxxxxxx is
entitled to upon termination of employment under the Company's
employee benefits plans.
2.05 Termination Without Cause. If the Company terminates Vincent's
employment for any reason other than for cause as that term is defined
in section 2.04, the Company shall pay Xxxxxxx, not later than the
30th day following the date of termination, a lump sum severance
payment consisting of (1) Vincent's salary and accrued salary through
the date of her termination, (2) all amounts Xxxxxxx is entitled to
upon termination of employment under the Company's employee benefits
plans, (3) Vincent's undiscounted salary through the Termination Date,
or if greater for a period of 24 months, and (4) a pro rata amount of
bonus she is eligible to receive under any Company bonus program.
2.06 Resignation. If Xxxxxxx resigns from her employment under this
Agreement other than for a reason of change of control as defined in
section 2.07, the Company shall pay Xxxxxxx, not later than the 30th
day following the effective date of her resignation, a lump sum
severance payment consisting of (1) Vincent's salary through the date
of her termination, (2) all amounts Xxxxxxx is entitled to upon
termination of employment under the Company's employee benefit plans,
(3) Vincent's undiscounted salary for a period of 90 days after her
resignation and (4) a pro rata amount of bonus she is eligible to
receive under any Company bonus program. Xx. Xxxxxxx'x accrued salary
shall be paid within thirty days if the Company has available funds,
if the Company does not have said funds then the accrued salary shall
be paid in a reasonable time after her severance in no case shall that
time period extend over six months.
2.07 Change of Control. Xxxxxxx shall have the right to resign from her
employment under this Agreement if there is a change of control. For
purposes of this Agreement a Change of Control shall be deemed to have
occurred if any of the following occur: (i) at any time during any
period of 12 consecutive months, at least a majority of the directors
serving on the Board ceases to consist of individuals who have served
continuously on such Board since the beginning of such 12 month
period, unless the election of directors during such period, or
nomination for election by the shareholders of the Company, was
approved by a vote of at least two-thirds of the members of such Board
at such time still in office and who shall have served continuously on
such Board since the beginning of such 12-month period by reason of
death or disability; or (ii) a merger or consolidation occurs to which
the Company is a party unless following such merger or consolidation
(A) more than 50% of the then outstanding shares of voting capital
stock of the corporation surviving such merger or resulting from such
consolidation is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the
beneficial owners of the outstanding voting capital stock of the
Company immediately prior to such merger or consolidation in
substantially the same proportions as their ownership, immediately
prior to such merger or consolidation, of the outstanding voting
capital stock of the Company, and (B) at least a majority of the
members of the Board surviving such merger or resulting from such
consolidation were members of the Board immediately prior to such
merger or consolidation; or (iii) the sale of all, or substantially
all, of the assets of the Company; or (iv) a person or entity who is
not an owner of voting capital stock of the Company as of the date of
this Agreement acquires more than 50% of the voting capital stock of
the Company. Notwithstanding the foregoing, however, a Change of
Control shall not be deemed to have occurred upon the consummation of
an Initial Public Offering of the capital stock of the Company. If
Xxxxxxx exercises her right to terminate her employment following a
Change of Control, she shall receive, not later than the 30th day
following the date of termination, a lump sum severance payment
consisting of (1) Vincent's salary through the date of her
termination, (2) all amounts Xxxxxxx is entitled to upon termination
of employment under the Company's employee benefits plans, (3)
Vincent's undiscounted salary through the Termination Date, or if
greater for a period of 24 months, and (4) a pro rata amount of bonus
she is eligible to receive under any Company bonus program.
2.08 Mitigation. Xxxxxxx shall have no obligation to mitigate any damages
or payments made to her under Article II of this Agreement.
2.09 Excess Parachute Payments. In the event that payment of the amounts
this Agreement requires the Company to pay Xxxxxxx would cause Xxxxxxx
to be the recipient of an excess parachute payment (within the meaning
of Section 280G(b) of the Internal Revenue Code of 1986), the amount
of the payments to be made to Xxxxxxx pursuant to this Agreement shall
be reduced to an amount equal to one dollar less than the amount that
would cause the payments hereunder to be excess parachute payments.
The manner in which such reduction occurs, including the items of
payment and amounts thereof to be reduced, shall be agreed to by
Xxxxxxx and the Company.
ARTICLE III
RESTRICTIONS DURING AND AFTER EMPLOYMENT
3.01 Company Records and Documents. All Company-related records and
documents are considered to be the exclusive property of the Company.
Upon the termination of Vincent's employment by the Company for any
reason, she shall promptly return to the Company all such records and
documents in her possession or under her control. Xxxxxxx shall have
the right to retain copies of Company records and documents that she
believes are reasonably necessary for her to retain to be able to
exercise her rights under the Indemnification Provisions of this
Agreement.
ARTICLE IV
MISCELLANEOUS
4.01 Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail
by the Company to the residence of Xxxxxxx, or by Xxxxxxx to the
Company's principal office.
4.02 Further Assurances. Each party agrees to perform any further acts and
to execute and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
4.03 Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by
any court of competent jurisdiction, the validity and enforceability
of the remaining provisions or portions thereof, shall not be affected
thereby.
4.04 Construction. Whenever used herein, the singular number shall include
the plural, and the plural number shall include the singular.
4.05 Headings. The headings contained in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning
of any of the provisions contained herein.
4.06 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
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4.07.1 Governing Law. This Agreement has been executed in and shall be
governed by the laws of the State of Oklahoma.
4.07.2 Assignment. This Agreement shall be assignable and binding upon any
purchasers or successors in interest of the Company.
4.08 Inurement. Subject to the restrictions against transfer or assignment
as herein contained, the provisions of this Agreement shall inure to
the benefit of, and shall be binding on, the assigns, successors in
interest, personal representatives, estates, heirs and legatees of
each of the parties hereto.
4.09 Waivers. No waiver of any provision or condition of this Agreement
shall be valid unless executed in writing and signed by the party to
be bound thereby, and then only to the extent specified in such
waiver. No waiver of any provision or condition of this Agreement
shall be construed as a waiver of any other provision or condition of
this Agreement, and no present waiver of any provision or condition of
this Agreement shall be construed as a future waiver of such provision
or condition.
4.10 Amendment. This Agreement may be amended only by a written document
signed by the parties and stating that the document is intended to
amend this Agreement.
4.11 Disputes. In any dispute or proceeding to construe this Agreement,
the parties expressly consent to the exclusive jurisdiction of state
and federal courts in Tulsa County, Oklahoma, the principal place of
business for Maxxon. The prevailing party in any suit brought to
interpret this Agreement shall be entitled to recover reasonable
attorney's fees and expenses in addition to any other relief to which
it is entitled.
4.12 Payment of Vincent's Attorney's Fees and Expenses in Advance in
Connection with this Agreement. If the Company brings a suit against
Xxxxxxx in connection with this Agreement or if Xxxxxxx brings suit
against the Company in connection with this Agreement, the Company
shall pay Vincent's reasonable attorney's fees and expenses as
incurred as limited by Nevada law. If a determination is made in a
court of competent jurisdiction in favor of the Company, then the
Company shall be entitled to be reimbursed by Xxxxxxx for her
attorney's fees and expenses, which were paid by the Company.
4.13 Execution. Each party to this Agreement hereby represents and
warrants to the other party that such party has full power and
capacity to execute, deliver and perform this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective this 8th day of August, 2001.
XXXXXX XXXXXXX MAXXON, INC.
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Xxxxxx Xxxxxxx, an Individual By: Xxxxxxx X. Xxxxx
Chief Executive Officer & President
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