EMPLOYMENT AGREEMENT
This Employment Agreement, effective as of January 3, 2001 (the "Agreement"), is
entered into by and between MAXXON, INC., a Nevada corporation (the "Company"),
the principal offices of which are located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"). In consideration of the
mutual covenants and conditions contained in this Agreement, the parties agree
to the following:
ARTICLE 1
DUTIES AND COMPENSATION
1.01. Term of Employment and Duties. The Company and ▇▇▇▇▇▇ agree that for
the period commencing on January 3, 2001, and terminating on January 3,
2002 (the "Termination Date"), the Company shall employ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ shall perform duties ("duties") for the Company as
Administrative Manager and shall report to the Company's President.
1.02. Commitment to the Company. During the term of this Agreement, ▇▇▇▇▇▇
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 Administrative Manager of the Company. However, this
commitment shall not be construed as preventing ▇▇▇▇▇▇ from
participating in other businesses or from investing ▇▇▇▇▇▇'▇ personal
assets in such form or manner as may require occasional or incidental
time on the part of ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ shall receive a salary of $100,000.00 per
year, payable in 24 semi-monthly installments. Each January the
President shall review ▇▇▇▇▇▇'▇ salary and shall make such increases in
salary as he considers appropriate. ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ for all reasonable
and necessary travel, entertainment, or other related expenses incurred
by her in carrying on her duties and responsibilities under this
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Agreement. In addition, the Company shall furnish ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ membership dues in professional
organizations and for any seminars and conferences related to Company
business.
1.05 (a) Indemnification. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ arising out of her serving or having served in a
capacity specified in Section 1.01 above, which in ▇▇▇▇▇▇'▇ sole
judgment requires her to retain counsel (such choice of counsel to be
made by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ for all reasonable attorney's fees and expenses
and other costs associated with ▇▇▇▇▇▇'▇ 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
▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇'▇ death. If
this Agreement is terminated as a result of ▇▇▇▇▇▇'▇ death, the Company
shall pay to ▇▇▇▇▇▇'▇ estate, not later than the 30th day following her
death, a lump sum severance payment consisting of (1) ▇▇▇▇▇▇'▇ salary
and accrued salary through the date of her death, (2) all amounts
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ was eligible to receive under any Company bonus plan.
2.03. Disability. The Company shall have the right to terminate this
Agreement if ▇▇▇▇▇▇ incurs a permanent disability during the term of
her employment under this Agreement. For purposes of this Agreement,
"Permanent Disability" shall mean inability of ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ has a permanent disability,
such dispute shall be submitted to a physician mutually agreed upon by
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ shall contain
a different definition of "permanent disability." If ▇▇▇▇▇▇'▇
employment under this Agreement is terminated by the Company because
she has a permanent disability, the Company shall pay ▇▇▇▇▇▇, not
later than the 30th day following the date of termination, a lump sum
severance payment consisting of (1) ▇▇▇▇▇▇'▇ salary through the date
of her termination, (2) all amounts ▇▇▇▇▇▇ is entitled to upon
termination of employment under the
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Company's employee benefit plans, (3) ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇'▇
employment "for cause" the Company shall pay ▇▇▇▇▇▇, not later than
the 30th day following the date of termination, a lump sum severance
payment consisting of (1) ▇▇▇▇▇▇'▇ salary and accrued salary through
the date of her termination and (2) all amounts ▇▇▇▇▇▇ is entitled to
upon termination of employment under the Company's employee benefits
plans.
2.05. Termination Without Cause. If the Company terminates ▇▇▇▇▇▇'▇
employment for any reason other than for cause as that term is defined
in section 2.04, the Company shall pay ▇▇▇▇▇▇, not later than the 30th
day following the date of termination, a lump sum severance payment
consisting of (1) ▇▇▇▇▇▇'▇ salary and accrued salary through the date
of her termination, (2) all amounts ▇▇▇▇▇▇ is entitled to upon
termination of employment under the Company's employee benefits plans,
(3) ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, not later than the 30th day
following the effective date of her resignation, a lump sum severance
payment consisting of (1) ▇▇▇▇▇▇'▇ salary and accrued salary through
the date of her termination, (2) all amounts ▇▇▇▇▇▇ is entitled to upon
termination of employment under the Company's employee benefit plans,
(3) ▇▇▇▇▇▇'▇ 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.
2.07. Change of Control. ▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇ 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) ▇▇▇▇▇▇'▇ salary through the date of her
termination, (2) all amounts ▇▇▇▇▇▇ is entitled to upon termination of
employment under the Company's employee benefits plans, (3) ▇▇▇▇▇▇'▇
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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ would cause ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇ 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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, or by ▇▇▇▇▇▇ 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.
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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.
4.07. Governing Law. This Agreement has been executed in and shall be
governed by the laws of the State of Oklahoma.
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 extend 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 ▇▇▇▇▇▇'▇ Attorney's Fees and Expenses in Advance in
Connection with this Agreement. If the Company brings a suit against
▇▇▇▇▇▇ in connection with this Agreement or if ▇▇▇▇▇▇ brings suit
against the Company in connection with this Agreement, the Company
shall pay ▇▇▇▇▇▇'▇ reasonable attorney's fees and expenses as incurred.
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 ▇▇▇▇▇▇ 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.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
effective this 3rd day of January, 2001.
▇▇▇▇▇ ▇▇▇▇▇▇ MAXXON, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, an Individual By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
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