EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of the ________ day of November, 2001 (the "Effective Date"), by
and between EXCALIBUR HOLDINGS, INC., a Texas corporation (hereafter referred to
as the "Company"), and XXXX XXXXX (hereafter referred to as "Executive"). The
Company and Executive may sometimes hereafter be referred to singularly as a
"Party" or collectively as the "Parties."
W I T N E S S E T H:
1. EMPLOYMENT AND DUTIES OF EXECUTIVE
On the terms and subjects to the conditions hereinafter set forth, and
beginning as of the Effective Date, the Company employs Executive as its Vice
President of Operations, and the Executive will serve as the Company's employee
in that position. Executive shall perform such duties, and have such power,
authority, functions, and responsibilities for the Company and corporations
and/or other entities affiliated with the Company (e.g., Excalibur Services,
Inc., an Oklahoma corporation, Excalibur Aerospace, Inc., an Oklahoma
corporation, and Excalibur Steel, Inc., an Oklahoma corporation) as are
commensurate and consistent with his employment as the Company's Vice President
of Operations. Executive shall also have such additional powers, authority,
functions, duties, and responsibilities as may be assigned to him, from time to
time, by the President/Chief Executive Officer, the Chief Operating Officer,
and/or by the Board of Directors of the Company (the "Board"). Executive shall
report to the Chief Operating Officer.
2. PLACE OF EMPLOYMENT
The required duties of Executive under this Agreement shall be
performed by Executive at the Company's offices in Tulsa and Sand Springs,
Oklahoma areas, and in such other place or places to which Company may, from
time to time, request Executive to travel in connection with the duties of
Executive under this Agreement; provided, however, that Executive shall not,
whether by a change in the scope or location of performance of Executive's
duties, be required to change his place of residence from the _________,
Oklahoma area.
3. TIME TO BE DEVOTED TO CONTRACTUAL
DUTIES OF EXECUTIVE
Executive shall give his best efforts and endeavors, on a full time
basis, to the discharge of his duties under this Agreement and shall not, at any
time during the Term (hereafter defined), engage in any business activity other
than the business activities permitted or required hereunder, or enter into the
services of or be employed in any capacity or for any purpose by any individual,
firm, association, organization, partnership (general or limited), corporation,
limited liability company, or other party or legal entity other than the Company
(or any affiliate of the Company), on a fee or salary or other compensatory
basis, it being the intention of the Company and Executive that the capacity in
which Executive is hired by the Company under this Agreement represents a
1
full-time duty and responsibility. The foregoing shall not be interpreted to
prohibit Executive from engaging in recreational, charitable, religious, or
community service activities outside the scope of Executive's employment under
this Agreement, or from making passive investments in businesses or enterprises,
so long as (i) such activities or investments, individually or in the aggregate,
do not interfere or require services on the part of Executive that interfere
with Executive's performance of his duties and obligations under this Agreement;
(ii) such activities or investments do not involve or relate to any activities
or business in competition with the business of the Company or any affiliates of
the Company, and (iii) Executive has complied with Paragraph 10 of this
Agreement with respect to each such activity and investment.
4. TERM OF EMPLOYMENT
The term of the Company's employment of Executive shall be for a period
of three (3) years from the date hereof (such period being referred to as the
"Initial Term"). After the expiration of the Initial Term, the employment of
Executive shall continue for successive three (3) month periods. The Initial
Term PLUS any period or periods of time during which the employment of Executive
continues with the Company after the expiration of the Initial Term is sometimes
referred to as the "Term."
5. COMPENSATION OF EXECUTIVE
A. As compensation for the services and duties performed and to be
performed by Executive as provided in this Agreement, the Company agrees to pay
Executive a salary in the amount of ONE HUNDRED TWENTY FIVE THOUSAND AND
NO/100THS DOLLARS ($125,000.00) per annum, less applicable withholding,
F.I.C.A., and other lawful deductions, such salary to be payable semi-monthly,
in equal installments, in arrears, and otherwise in accordance with the
Company's payroll policies in effect from time to time. The Board will review
Executive's compensation annually to consider possible upward adjustments (it
being agreed that the base salary shall not be reduced during the Initial Term).
B. Executive shall be entitled to a minimum annual bonus of TWENTY FIVE
THOUSAND AND NO/100THS DOLLARS ($25,000.00), less applicable withholding,
F.I.C.A., and other lawful deductions, payable monthly, in equal installments,
in arrears, and otherwise in accordance with the Company's payroll policies in
effect from time to time. Executive may also receive additional bonuses, from
time to time, depending upon Executive's performance and achievement of specific
goals, which bonuses may be payable in cash, options, and common stock of the
Company, in the discretion of the Board. [XXXX???] Additional bonuses of up to
fifty percent (50%) of Executive's base salary may be determined by the
President/Chief Executive Officer, and any additional bonus in excess of fifty
percent (50%) of Executive's base salary shall be determined only by authority
of the Board.
C. Executive shall be authorized to incur, and shall be entitled to
receive prompt reimbursement for, all reasonable expenses incurred by Executive
in performing his duties and carrying out the responsibilities hereunder,
including business meals, entertainment, and travel expenses, provided that
Executive complies with all of the applicable policies, practices and procedures
of the Company related to the submission of expense reports, receipts, or
similar documentation of those expenses. The Company shall either pay directly,
or reimburse Executive for such expenses in accordance with Company policies.
Executive shall be entitled to a corporate credit card issued by the Company,
which shall be used for the sole purpose of incurring the expenses referenced in
this Paragraph C.
2
D. In addition to the amounts set forth above, for the term of
Executive's employment, the Company agrees to provide to Executive, at the
Company's sole expense, health insurance coverage for Executive (with any such
coverage for Executive's dependents, if desired by Executive, to be provided at
the Company's sole expense) under the health insurance plan maintained by the
Company from time to time. [XXXX???] The Company shall also provide, at the
Company's sole expense, life insurance coverage on Executive's life in a face
amount at least equal to three (3) times Executive's base salary, and shall also
provide Executive with both long term and short term disability insurance for
Executive in amounts and under terms acceptable to the Company, all at the
Company's sole cost and expense. Also, Executive shall have the option to
participate in any salary deferral, 401(k), SEP, or savings plan or other
similar plan which the Company or its successors or assigns makes available to
its employees. Executive shall be required to comply with the conditions
attendant to coverage by such plans and shall comply with and be entitled to
benefits only in accordance with the terms and conditions of such plans as they
may be amended from time to time.
E. Executive shall also be entitled to purchase up to 290,000 shares of
the Company's common stock at a price of $0.90 per share, as evidenced by a
separate Stock Option Agreement, to be executed between the Company and
Executive. [XXXX???]
F. Executive shall also receive an automobile allowance of $800.00 per
month, payable by the Company on or before the first (1st) day of each month,
which may be used by Executive towards the purchase or lease of an automobile,
which automobile may be used by Executive for both business purposes and for
Executive's personal use. [XXXX???]
G. The Company shall also pay for Executive's membership [XXXX:
CORPORATE MEMBERSHIP?] at the Tulsa Country Club, such amounts not to exceed
$_____________ for initial club membership fee, and not to exceed $__________
per month for membership dues.
H. During the Term, Executive shall be entitled to four (4) weeks of
annual vacation time determined in accordance with the vacation policies of the
Company from time to time in effect.
I. No additional compensation (above the compensation referred to in
this Section 5) shall be due or payable by Company to Executive under this
Agreement, but nothing in this Agreement shall prohibit the Company from paying
Executive any additional amount as a bonus or otherwise, as the Company may
determine from time to time.
3
6. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF EXECUTIVE
A. Executive covenants, agrees, and promises that during the Term: (a)
except as permitted under this Agreement, Executive will not engage, directly or
indirectly, in any business other than the business of the Company, except at
the direction of or with the prior written approval of the Company; (b)
Executive will truthfully and accurately make, maintain, and preserve all
records and reports that the Company may from time to time request or require;
(c) Executive will fully account for all money, records, goods, wares,
merchandise, and other property belonging to the Company and/or to the Company's
clients of which Executive has custody, and will pay over and/or deliver same
promptly whenever and however Executive may be directed to do so; (d) Executive
will (i) obey all rules, regulations, and special instructions applicable to him
and (ii) be loyal and faithful to the Company at all times; (e) Executive agrees
that upon termination of his employment hereunder for any reason he will
immediately surrender and turn over to the Company all books, records, forms,
mailing lists, client lists, potential client lists, specifications, formulae,
data, processes, papers, and writings related to the Company's business and all
other property belonging to the Company together with, except as hereinafter set
forth, all copies of the foregoing, it being understood and agreed that the same
are the Company's sole property.
B. Executive hereby represents and warrants to Company that (a)
Executive is experienced in the subject matter of this Agreement and fully
competent to exercise and discharge his duties and obligations under this
Agreement; (b) Executive has all requisite licenses and permits, if any,
required to perform his duties and obligations under this Agreement; (c) except
as otherwise set forth on EXHIBIT "A" attached hereto, Executive has never been
a defendant in any lawsuit or the subject of any complaint relating to
Executive's services, nor, to the best of Executive's knowledge, has Executive
or any entity by whom Executive has been employed or in whom Executive had an
ownership interest ever been the target of any investigation by any state,
federal, or other regulatory agency; and (d) the execution of this Agreement by
Executive does not violate the terms or conditions of any prior employment
agreements to which Executive has been a party, and at the time of execution of
this Agreement, Executive is not a party to any other employment or consulting
agreement.
7. TERMINATION
A. The employment of Executive may be terminated upon the occurrence of
any one of the following events:
(a) BUSINESS REASON. The Company may, at its election, and for
any reason (i.e., any lawful reason other than Cause) and effective immediately
(or such longer period as determined by the Company in its sole discretion), may
terminate Executive's employment upon written notice to Executive. Executive,
effective no less than ninety (90) days after written notice thereof to the
Company, may resign his employment with the Company.
(b) WITH CAUSE. The Company may, upon written notice effective
immediately, terminate the employment of Executive at any time during the Term
for "Cause." For purposes of this Agreement, "Cause" shall mean the following:
(i) if Executive should be convicted of or pleads NOLO CONTENDRE to any felony
offense or to a crime of moral turpitude (whether or not a felony); (ii) if
Executive should become Disabled (hereafter defined) for a period of thirty (30)
4
consecutive days in any twelve (12) month period, or one hundred twenty (120)
days during any twelve (12) month period, whether or not such days are
consecutive (as used herein, "Disabled" shall mean the inability of Executive,
on account of a mental, physical, or other condition, to perform his normal job
functions as determined by at least two of three medical physicians or by
agreement of the Company and Executive or his designee (if the determination is
to be made by medical physicians, the Executive or his designee shall appoint
one such physician, the Company shall appoint one, and the two so appointed
shall appoint the third medical physician); (iii) if Executive should commit
misconduct in connection with the performance of any of Executive's duties,
including, without limitation, (1) misappropriation of funds or property of the
Company, or of any affiliate of the Company, (2) securing or attempting to
secure personally any profit in connection with any transaction entered into on
behalf of the Company or of any affiliate of the Company, or (3) making any
misrepresentation to the Company or any affiliate of the Company; (iv) if
Executive fails to comply with any of his duties and obligations under this
Agreement and such failure continues for fifteen (15) days after written notice
to Executive from the Company of such failure; (v) if Executive fails to comply
with the Conflict of Interest Guidelines attached as EXHIBIT "B" to this
Agreement, and such failure continues for five (5) days after notice to
Executive; (vi) if Executive shall give notice of resignation under Paragraph
7.A(a); or (vii) if Executive commits an act involving moral turpitude,
dishonesty, theft, or unethical business conduct, or conduct that impairs or
injures the reputation of, or xxxxx, the Company or any affiliate of the
Company.
(c) DEATH OF EXECUTIVE. This Agreement will terminate
automatically on the death of the Executive.
B. In the event of the termination of the employment of Executive,
Executive shall be entitled to compensation under Paragraph 5.A earned by him
prior to the date of termination as provided herein. Additionally, if during the
Initial Term, the Company terminates Executive's employment with the Company for
ANY REASON other than under Paragraph 7.A(b)(i), 7.A.(b)(iii), or 7.A.(b)(iv),
or if during the Initial Term, Executive's employment with the Company is
terminated due to Executive's death under Paragraph 7.A(c), then Executive (or
his estate, as applicable) shall be entitled to and shall receive, as his or its
sole and exclusive remedy (Executive hereby waiving all other rights or remedies
in the event of such a termination), a severance payment equal to six (6)
months' of Executive's base salary (computed using the annual compensation then
payable to Executive under Paragraph 5.A) for six (6) months, which shall be
paid monthly following the termination of employment for the balance of the
Initial Term. If: (i) Executive resigns from his employment with the Company
under Paragraph 7.A(a) at any time; or (ii) during the Initial Term, the Company
terminates the employment of Executive pursuant to Paragraph 7.A(b)(i),
7.A(b)(iii), or 7.A(b)(iv); or (iii) subsequent to the Initial Term, the Company
terminates the employment of Executive pursuant to any provision of Paragraph
7.A(b); or (iv) subsequent to the Initial Term, Executive's employment with the
Company is terminated due to Executive's death under Paragraph 7.A(c), then the
Company shall have the obligation to pay to Executive all amounts earned under
Paragraph 5.A prior to the termination of employment, but the Company shall have
no obligation to pay Executive any amount otherwise coming due and payable under
this Agreement after the date of such termination and Executive shall be
entitled to no other or further compensation as of the date of termination of
his employment or thereafter. Additionally, if. after the Initial Term, the
Company (but NOT Executive) terminates Executive's employment under Paragraph
5
7.A(a), Executive shall be entitled, as his sole and exclusive remedy (Executive
hereby waiving all other rights or remedies in the event of such a termination)
a severance payment equal to three (3) month's salary (based on the annual
compensation payable to Executive under Paragraph 5.A), which shall be paid
monthly for six (6) months following the termination of employment; provided,
however, if Executive becomes employed or otherwise earns income from sources
other than the Company during such six (6) month period, then the Company's
obligation to pay such severance payment shall be reduced dollar for dollar by
each dollar received by Executive during such six (6) month period.
8. CONFIDENTIAL INFORMATION; IDEAS
A. Executive acknowledges that in the course of his employment under
this Agreement, he will receive certain trade secrets, know-how, mailing lists,
clients lists, potential client lists, employee records, and other sensitive,
proprietary, or confidential information and knowledge concerning the business
of the Company, and/or affiliates of the Company (hereafter collectively
referred to as "Confidential Information") which the Company desires to protect.
Executive understands that such Information is sensitive, proprietary, or
confidential, and he agrees that he will not, at any time (and whether during or
after Executive's employment with the Company), reveal such Confidential
Information to anyone outside the Company. The term "Confidential Information,"
as used in this Agreement, shall not include information that (a) is already
known to Executive from sources other than the Company; (b) is or becomes
generally available to the public other than as a result of a disclosure by
Executive; (c) is disclosed to Executive by a person or entity who is not bound
by any agreement regarding the confidential nature of such information; or (d)
is required to be disclosed by law or by regulatory or judicial process. The
provisions of this Paragraph 8 shall survive any termination or expiration of
this Agreement, and the termination of Executive's employment with the Company
(for whatever cause or reason).
B. Executive agrees that all ideas, improvements, inventions,
discoveries, systems, techniques, formulas, devices, methods, processes,
programs, designs, models, prototypes, copyrightable works, mask works,
trademarks, service marks, trade dress, software programs, hardware
improvements, business slogans, and other things of value conceived, reduced to
practice or made or learned by Executive, either alone or with others, while
employed by the Company and for twelve (12) months thereafter that relate to the
Company's business and/or the business of affiliates of the Company (hereinafter
collectively referred to as the "Ideas") belong to and shall remain the sole and
exclusive property of the Company forever. Further, Executive agrees to promptly
and fully disclose to the Company's President such Ideas in writing. In
addition, Executive agrees, without additional compensation, to cooperate and do
any and all lawful things requested by Company necessary or useful to ensure
that the ownership by the Company of such Ideas is protected. This cooperation
includes, but is not limited to, executing all documents required by the
Company, and otherwise assisting Company to vest title of such Ideas in Company
and to obtain, maintain and enforce for Company's benefit, any patents,
copyrights, mask work registration, trade and service xxxx registrations, or
other legal protection for any Ideas in any and all countries, during or after
employment with Company. Executive will continue to assist Company as provided
in the preceding sentence even after termination of Executive's employment with
Company, but Company shall compensate Executive at a reasonable rate after his
termination for the time actually spent by Executive in response to a written
request by Company. If Company is unable for any reason to secure Executive's
signature on any document needed in connection with the actions specified in the
preceding paragraph, Executive hereby irrevocably designates and appoints
Company and its duly authorized officers and agents as Executive's agent and
6
attorney-in-fact to act for and on Executive's behalf to execute, verify, and
file any such documents and to do all other lawfully permitted acts to further
the purposes of the preceding paragraph with the same legal force and effect as
if executed by Executive. Executive hereby waives and quitclaims to Company any
and all claims, of whatever nature, which Executive has or may have later for
infringement of any proprietary rights assigned by Executive to Company.
Executive hereby assigns to the Company all of Executive's right, title, and
interest in and to all such Ideas and all patents, trademarks, copyrights, other
registrations, and applications which may be obtained as a result of the Ideas,
throughout the United States and all foreign countries. Executive agrees that no
Ideas shall be regarded as having been conceived, reduced to practice, made, or
learned by Executive prior to Executive's employment. Executive's obligations
under this Agreement shall continue after his termination of employment with the
Company. This Agreement shall inure to the benefit of Company, its successors
(including by merger) and assigns, and is binding upon the assigns, executors,
and administrators and other legal representatives of Executive.
9. ARBITRATION
A. Any legal or equitable dispute or controversy arising under, out of,
or in connection with or in relation to this Agreement; or arising out of, or
related to the employment of Executive, the terms and conditions of employment,
or the termination of Executive by the Company (other than worker's compensation
claims), shall be resolved exclusively by binding arbitration. This agreement
applies to the following allegations, disputes, and claims for relief, but is
not limited to those listed: wrongful discharge under statutory law and common
law; employment discrimination based on federal, state, or local statute,
ordinance, or governmental regulations; retaliatory discharge; compensation
disputes; tortious conduct; contractual violations; ERISA violations; FLSA (wage
and hour) violations; and other statutory and common law claims and disputes.
This provision shall apply to any such disputes or controversies involving
Executive and the Company and/or its shareholders, directors, officers,
managers, supervisors and other employees.
B. The arbitration proceedings shall be conducted in the city in which
Executive's employment is based (unless Executive and the Company agree to
another location) in accordance with the Employment Dispute Resolution Rules
("EDR Rules") of the American Arbitration Association ("AAA") in effect at the
time a demand for arbitration is made. Executive is entitled to representation
by an attorney throughout the proceedings at Executive's own expense; however,
the Company agrees not to use an attorney in the arbitration hearing if
Executive agrees to the same.
C. One arbitrator shall be used and shall be chosen by mutual agreement
of the parties. If, within thirty (30) days after either party notifies the
other party of an arbitrable dispute, no arbitrator has been chosen, an
arbitrator shall be chosen by AAA pursuant to its EDR Rules. The arbitrator must
be an attorney licensed to practice law in the jurisdiction in which the
arbitration is to be conducted. The arbitrator shall be required to determine
the rights of the parties in accordance with federal law and the state law of
the forum with the most substantial relationship to the conduct at issue. The
arbitrator shall have the authority to consider and grant a motion to dismiss
and motion for summary judgment applying the standards governing such motions
under the Federal Rules of Civil Procedure. The arbitrator shall coordinate, and
limit as appropriate, all pre-trial arbitral discovery, which shall include
7
document production, information requests, and depositions. The arbitrator shall
issue a written decision and award, which shall explain the basis of the
decision. The decision and award shall be exclusive, final, and binding on both
Executive and the Company, and all heirs, executors, administrators, successors,
and assigns. The costs and expenses of the arbitration shall be borne by the
Company, except that if Executive initiates the arbitration, Executive will pay
up to $150 towards the administrative fees charged by AAA, except that this
requirement will be waived upon a showing of financial hardship under the same
standards used in federal district court.
D. Both Executive and the Company understand that, by agreeing to
arbitration, they are agreeing to substitute one legitimate dispute resolution
forum (arbitration) for another (litigation), and thereby are waiving the right
to have disputes resolved in court. However, Company and Executive have the
right to pursue injunctive relief for breach of paragraph 4 of this Agreement
through the judicial process without waiving the right to arbitration. This
substitution involves no surrender, by Executive or the Company, of any
statutory or common law benefit, protection, or defense.
10. RESTRICTIVE COVENANTS
A. As an inducement for Company's agreement to employ Executive, to
provide Executive with trade secrets and other Confidential Information, and to
enter into this Agreement, Executive hereby agrees that during the Term, and for
a period of twenty-four (24) full calendar months after (i) the expiration of
the Term (as the same may be extended) or (ii) the termination of Executive's
employment with the Company for whatever reason or cause (whichever may occur
later), or for the maximum period of time permitted by law, whichever is less,
Executive shall not, whether for profit or not, whether on his own behalf or on
behalf of any person or firm in any capacity whatsoever, engage in the
"Prohibited Activity" (as hereinafter defined) within the "Relevant Geographical
Area" (as hereinafter defined). Serving as a partner, member, trustee, receiver,
custodian, manager, stockholder, officer, director, owner, joint venturer,
associate, employee, consultant, adviser or in any other capacity whatsoever
with respect to any person or firm engaged in the Prohibited Activity within the
Relevant Geographical Area shall be conclusively deemed engagement in the
Prohibited Activity within the Relevant Geographical Area regardless of whether
such service is for profit or not or whether such person or firm engages in the
Prohibited Activity for profit or not. For purposes hereof, the phrase
"Prohibited Activity" shall mean, directly or indirectly: (i) soliciting the
Company's customers; or (ii) working independently or for any person or firm
involved in any business engaged in by the Company and/or by any of its
subsidiaries or affiliates (e.g., Excalibur Services, Inc., an Oklahoma
corporation, Excalibur Aerospace, Inc., an Oklahoma corporation, and Excalibur
Steel, Inc., an Oklahoma corporation) during the Term, including, without
limitation, steel fabrication and the design and manufacture of aerospace
products. For purposes hereof, the phrase "Relevant Geographical Area" shall
mean the area within political boundaries of the State of Oklahoma and any and
all other areas in which the Company or any of its subsidiaries or affiliates
(e.g., Excalibur Services, Inc., an Oklahoma corporation, Excalibur Aerospace,
Inc., an Oklahoma corporation, and Excalibur Steel, Inc., an Oklahoma
corporation) transact business; provided, however, if the aforesaid geographic
area exceeds the maximum geographic area permitted by law or for any other
reason does not state a geographic area within which the provisions of this
Paragraph 10 are enforceable, then the provisions of this Paragraph 10 shall
apply within the maximum geographic area permitted by law in which such
provisions are enforceable.
8
B. As an inducement for Company's agreement to employ Executive, to
provide Executive with trade secrets and other Confidential Information, and to
enter into this Agreement, Executive hereby agrees that during the Term, and for
a period of thirty-six (36) full calendar months after: (i) the expiration of
the Term (as the same may be extended) or (ii) the termination of Executive's
employment with the Company for whatever reason or cause (whichever may occur
later), or for the maximum period of time permitted by law, whichever is less,
Executive shall not induce or attempt to influence or persuade any employee of
Company or any of its affiliates to terminate his employment with the Company
(or with the applicable affiliate).
C. In addition to all other remedies at law and in equity which the
Company might have for Executive's breach of the covenants set forth in this
Paragraph 10, the Parties agree that in the event of any breach or attempted or
threatened breach of any such covenant, the Company shall also have the right to
obtain a temporary restraining order, temporary injunction and permanent
injunction against Executive prohibiting such breach or attempted or threatened
breach, merely by proving the existence of such breach, or attempted or
threatened breach (by a preponderance of the evidence) and without the necessity
of proving either inadequacy of legal remedy or irreparable harm.
D. Executive's covenants set forth in this Paragraph 10 are independent
and severable from every other provision of this Agreement; and the breach of
any other provision of this Agreement by the Company or any other agreement
between Executive and the Company shall not affect the validity of the
provisions of this Paragraph 10 or constitute a defense of Executive in any suit
or action brought by the Company to enforce the provisions of this Paragraph 10
or to seek any relief from Executive's breach thereof.
E. Each of the Parties agree and stipulate that: (i) the agreements and
covenants not to compete contained in this Paragraph 10 are fair and reasonable
in light of all of the facts and circumstances of the relationship between
Executive and the Company; (ii) the consideration provided by the Company is not
illusory; and (iii) the consideration given by the Company under this Agreement
gives rise to the Company's interest in restraining and prohibiting Executive
from engaging in the Prohibited Activity within the Relevant Geographical Area
as provided under this Paragraph 10 and the covenants not to engage in the
Prohibited Activity within the Relevant Geographical Area pursuant to this
Paragraph 10 are designed to enforce such consideration. The Parties are aware,
however, that in certain circumstances, courts have refused to enforce certain
agreements not to compete. Therefore, in furtherance of and not in derogation of
the provisions of the preceding sentence, the Parties agree that if a court
should decline to enforce the any of the provisions of this Paragraph 10, such
affected provisions shall be deemed to be modified to restrict competition with
the Company to the maximum extent, in both time and geography, which the court
shall find enforceable. The provisions of this Paragraph 10 shall survive any
termination or expiration of this Agreement, and the termination of Executive's
employment with the Company (for whatever cause or reason).
11. NOTICE
Any and all notices permitted or required to be given under the terms
of this Agreement shall be in writing and may be served by certified mail, with
return receipt requested and proper postage prepaid, addressed to the Party to
be notified at the appropriate address specified below, or by delivering the
9
same in person to such Party, or by prepaid telegram addressed to the Party to
be notified at said address, or by Federal Express or another nationally
recognized courier service addressed to the Party to be notified at said
address. Notice given by certified mail as aforesaid shall be deemed given and
received three (3) days after mailing, whether or not actually received. Any
notice given in any other above authorized manner shall be deemed received upon
actual receipt; but shall also be deemed received upon attempted delivery if
such delivery is not accepted. The addresses of the parties are as follows:
If to the Company: Excalibur Holdings, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
If to Executive: Mr. Xxxx Xxxxx
-----------------------------------
-----------------------------------
The address of any Party may be changed by notice given in the manner
provided in this Paragraph.
12. GENERAL PROVISIONS
A. This Agreement may not be assigned by Executive. This Agreement may
be assigned in whole or in part by the Company. Executive expressly agrees to
honor and accept such assignment or other transfer and, upon the consummation
thereof, to attorn to the Company's assignee and to perform his duties and
obligations hereunder for the benefit of the Company's assignee as if the
Company's assignee were the Company named herein. Executive further agrees that,
upon the consummation of such assignment or other transfer, all references
herein to the Company shall become and shall be deemed to be references to the
Company's assignee and the Company shall be relieved of all obligations
hereunder.
B. This Agreement shall be governed by, construed, and enforced in
accordance with the internal, local laws of the State of Texas (without regard
to conflicts of law rules) and the obligations of the Company and Executive
shall be performable in Xxxxxx County, Texas.
C. This Agreement contains the entire agreement between the Parties
relative to the subject matter hereof and supersedes and replaces all prior
communications and agreements (oral or written) between Executive and the
Company. No variation, modification, or change of this Agreement shall be
binding upon either Party hereto unless set forth in a document duly executed by
both Parties.
D. This Agreement is intended to express the Parties' mutual intent,
and irrespective of the Party preparing this document, no rule of construction
shall be applied against such Party, as both Parties have actively participated
in the preparation and negotiation of this Agreement.
10
E. No consent or waiver, express or implied, by a Party to or of any
breach or default by the other Party in the performance by the other Party of
its obligations under this Agreement shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other Party of the same or any other obligation of such Party under this
Agreement (e.g., any waiver or consent from the Company with respect to any term
or provisions of this Agreement or any other aspect of Executive's conduct or
employment shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of frequency given,
to be a further or continuing waiver or consent and the failure or delay of the
Company at any time or times to require performance of, or to exercise any of
its powers, rights, or remedies with respect to any term or provision of this
Agreement or any other aspect of Executive's conduct or employment in no manner
[except as otherwise expressly provided herein] shall affect the Company's right
at a later time to enforce any such term or provision). Failure on either
Party's part to complain of any act or failure to act of the other Party or to
declare the other Party in default, irrespective of how long such failure or
default continues, shall not constitute a waiver by such Party of such Party's
rights under this Agreement.
F. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
G. This Agreement shall inure to the benefit of and be binding upon the
undersigned Parties and their respective permitted successors and permitted
assigns. Whenever, in this instrument, a reference to any Party is made, such
reference shall be deemed to include a reference to such Party's permitted
successors and permitted assigns; however, neither this Paragraph 12.G nor any
other portion of this Agreement shall be interpreted to constitute a consent to
any assignment or other transfer of this Agreement or any part hereof other than
pursuant to and in accordance with this Agreement's other provisions.
H. The prevailing Party in any dispute between the Parties to this
Agreement, arising out of the interpretation, application, or enforcement of any
provision of this Agreement, shall be entitled to recover all of its reasonable
attorneys' fees and costs, whether suit be filed or not, including, without
limitation, costs and attorneys' fees related to or arising out of any
arbitration or trial or appellate proceedings or petition for review before any
other court.
I. Executive agrees to diligently adhere to the Conflict of Interest
Guidelines attached hereto as EXHIBIT "B."
[SIGNATURE PAGE TO FOLLOW]
11
EXECUTED, IN MULTIPLE COUNTERPARTS, each of which shall have the force
and effect of an original, on the Effective Date.
EXCALIBUR HOLDINGS, INC., an Texas corporation
By: /S/ XXXX XXXXX
------------------------------------ -------------------------------
Name: XXXX XXXXX
----------------------------------
Title:
---------------------------------
"Company" "Executive"
12
LIST OF EXHIBITS
Exhibit "A" - List of Complaints and Lawsuits
Exhibit "B" - Conflict of Interest Guidelines
13
EXHIBIT "A"
TO EMPLOYMENT AGREEMENT
NONE
EXHIBIT "B"
TO EMPLOYMENT AGREEMENT
EXCALIBUR HOLDINGS, INC.
CONFLICT OF INTEREST GUIDELINES
1. It is the policy of Excalibur Holdings, Inc. (the "Company") to
conduct its affairs in strict compliance with the letter and spirit of the law
and to adhere to the highest principles of business ethics. Accordingly, all
officers, employees, and independent contractors must avoid activities which are
in conflict, or give the appearance of being in conflict, with these principles
and with the interests of the Company. The following are potentially
compromising situations which must be avoided. Any exceptions must be reported
to the Company's Board of Directors and written approval for continuation must
be obtained.
A. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended.
B. Accepting or offering substantial gifts, excessive
entertainment, favors, or payments which may be deemed to constitute undue
influence.
C. Participating in civic or professional organizations that
involves divulging the Company's confidential information.
D. Initiating or approving any form of personal or social
harassment of employees in violation of any laws.
E. Execution of transactions involving insurance products or
services or other products or services not approved by the Company's Board of
Directors or permitted pursuant to any existing employment agreement.
F. Improperly using or disclosing to the Company any
proprietary information or trade secrets of any former employer or other person
or entity with whom obligations of confidentiality exist.
G. Unlawfully discussing prices, costs, customers, sales, or
markets with competing companies or their employees.
H. Violation of any applicable law, rule and/or regulation,
state and/or federal.
I. Improperly using or authorizing the use of any inventions
which are the subject of patent claims of any other person or entity.
J. Engaging, directly or indirectly, in any business other
than performance of employee's duties under this Agreement except at the
direction of or with the prior written approval of the Company's Board of
Directors.
2. Each officer, employee, and independent contractor must take every
necessary action to ensure compliance with these guidelines and to bring problem
areas to the attention of higher management for review. Violations of this
conflict of interest policy may result in discharge without warning.
