NATURAL GAS SYSTEMS, INC.
Employment Agreement
THIS AGREEMENT ("Agreement") is entered into as of June 23, 2005, by
and between Xxxxx X. Xxxxxxxx (the "Executive") and Natural Gas Systems, Inc., a
Nevada corporation (the "Company"). The Agreement supercedes any and all prior
agreements, written or oral, including the Company's offer letter, dated June
2005.
1. Duties and Scope of Employment.
(a) Position. For the term of his employment under
this Agreement (the "Employment"), the Company agrees to employ the
Executive in the position of Vice President of Operations. The
Executive shall report to the Company's President, or to such other
person as the Company subsequently may determine.
(b) Obligations to the Company. During the term of
employment under this Agreement, Executive shall devote his full
business efforts and time to the Company. The foregoing shall not
preclude the Executive from engaging in appropriate civic, charitable
or religious activities or from devoting a minor amount of time to
private investments or from serving on the boards of directors of other
entities, as long as such activities and/or services do not interfere
or conflict with his/her responsibilities to the Company. The Executive
shall comply with the Company's policies and rules, as they may be in
effect from time to time during his Employment.
(c) No Conflicting Obligations. The Executive
represents and warrants to the Company that he is under no obligations
or commitments, whether contractual or otherwise, that are inconsistent
with his obligations under this Agreement.
2. Cash and Incentive Compensation. For clarification, it is
understood by all parties that other than as specified herein, the Company is
not obligated to award any future grants of stock options or other form of
equity compensation to Executive during Executive's employment with the Company.
(a) Salary. The Company shall pay the Executive as
compensation for his services a base salary at a gross annual rate of
$155,000.00, effective the first date of employment hereunder, which
may be increased annually at the election and sole discretion of the
board of directors. Such salary shall be payable in accordance with the
Company's standard payroll procedures. The annual compensation
specified in this Subsection (a), together with any increases in such
compensation that the Company may grant from time to time, is referred
to in this Agreement as "Base Salary.")
(b) Incentive Bonuses. The Executive shall be
eligible to be considered for an annual incentive bonus of up to 75% of
base salary based on objective or subjective criteria established by
President after consultation with the Compensation Committee of the
Board of Directors. The determinations of the President and the
Compensation Committee with respect to such bonus, if any, shall be
final and binding. The Executive shall not be entitled to an incentive
bonus if he is not employed by the Company on the date when such bonus
is payable.
(c) Stock Options. The Company shall grant the
Executive a stock option covering Three Hundred Fifty Thousand
(350,000) shares of the Company's Common Stock. Such option shall be
granted as soon as reasonably practicable after the date of this
Agreement. The exercise price of such option shall be equal to the fair
market value of such stock on the date of grant or this agreement. The
term of such option shall be 10 years, subject to earlier expiration in
the event of the termination of the Executive's Employment. The
Executive shall vest in the option shares in equal quarterly
installments of 1/16th per quarter over the next four years of
continuous service. The grant of such option shall be subject to the
other terms and conditions set forth in the Company's 2004 Stock Plan
and in the Stock Option Agreement, attached hereto as Exhibits A and B,
respectively.
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(d) Revocable Warrants. Subject to the approval of
the Board and the Compensation Committee of the Board, the Company
shall grant the Executive warrants aggregating Two Hundred Thousand
(200,000) shares of the Company's Common Stock. The grant of such
warrants shall be subject to the terms and conditions set forth in the
Warrant Agreement, attached hereto as Exhibit C.
(e) Sign-on Bonus. Subject to the approval of the
Board and the Compensation Committee, the Company shall grant Executive
a sign-on bonus of Ten Thousand Dollars ($10,000) on his first day of
employment and Twenty Five Thousand (25,000) shares of restricted
common stock, vesting monthly over a 12 month period, and registered on
Form S-8, subject to the terms and conditions set forth in the Stock
Grant Agreement, attached hereto as Exhibit E.
3. Vacation and Executive Benefits. Executive shall be
entitled to fifteen (15) days of vacation and five (5) personal days per year,
to be taken in such amounts and at such times as shall be mutually convenient
for Executive and the Company. Any vacation days exceeding five (5) days not
taken by Executive in one year shall be forfeited and not carried forward to
subsequent years. During his Employment, the Executive shall be eligible to
participate in the employee benefit plans maintained by the Company, subject in
each case to the generally applicable terms and conditions of the plan in
question and to the determinations of any person or committee administering such
plan.
4. Business Expenses. During his Employment, the Executive
shall be authorized to incur necessary and reasonable travel, entertainment and
other business expenses in connection with his duties hereunder. The Company
shall reimburse the Executive for such expenses upon presentation of an itemized
account and appropriate supporting documentation, all in accordance with the
Company's generally applicable policies.
5. Term of Employment.
(a) Termination of Employment. The Company may
terminate the Executive's Employment at any time and for any reason (or
no reason), and with or without Cause, by giving the Executive ten
day's notice in writing. The Executive may terminate his Employment by
giving the Company ten days' advance notice in writing. The Executive's
Employment shall terminate automatically in the event of his death. The
termination of the Executive's Employment shall not limit or otherwise
affect his obligations under Section 7.
(b) Employment at Will. The Executive's Employment
with the Company shall be "at will," meaning that either the Executive
or the Company shall be entitled to terminate the Executive's
Employment at any time and for any reason, with or without Cause. Any
contrary representations that may have been made to the Executive shall
be superseded by this Agreement. This Agreement shall constitute the
full and complete agreement between the Executive and the Company on
the "at will" nature of the Executive's Employment, which may only be
changed in an express written agreement signed by the Executive and a
duly authorized officer of the Company.
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(c) Constructive Termination. The term "Constructive
Termination" shall mean any of the following: (i) any breach by the
Company of any material provision of this Agreement, including, without
limitation, the assignment to the Executive of duties inconsistent with
his position specified in Section 1(a) hereof or any breach by the
Company of such Section, which is not cured within 45 days after
written notice of same by Executive (except that such cure period shall
be fifteen days with respect to any breach of Section 10(h) hereof
unless such breach is due to the actions or inactions of the
Executive), describing in detail the breach asserted and stating that
it constitutes notice pursuant to this Section 5(c); or (ii) relocation
of Executive's offices in excess of 20 miles from its current location;
or (iii) a substantial reduction of the responsibilities, authority or
scope of work of Executive.
(d) Rights Upon Termination. Except as expressly
provided in Section 6, upon the termination of the Executive's
Employment, the Executive shall only be entitled to the compensation,
benefits and expense reimbursements that the Executive has earned under
this Agreement before the effective date of the termination. The
payments under this Agreement shall fully discharge all
responsibilities of the Company to the Executive.
6. Termination Benefits.
(a) General Release. Any other provision of this
Agreement notwithstanding, Subsections (b) and (c) below shall not
apply unless the Executive (i) has executed a general release of all
claims (in a form prescribed by the Company) and (ii) has returned all
property of the Company in the Executive's possession.
(b) Severance Pay. If the Company terminates the
Executive's Employment for any reason other than Cause or Permanent
Disability, or if the Executive subject to a Constructive Termination,
then the Company shall pay the Executive his Base Salary and maintain
and pay his medical benefit and long-term disability coverage for a
period of six (6) months following the termination of his Employment
(the "Continuation Period"). Such Base Salary shall be paid at the rate
in effect at the time of the termination of Employment and in
accordance with the Company's standard payroll procedures.
(c) Definition of "Cause." For all purposes under
this Agreement, "Cause" shall mean:
(i) An unauthorized use or disclosure by the
Executive of the Company's confidential information or trade secrets,
which use or disclosure causes material harm to the Company;
(ii) A material breach by the Executive of any
agreement between the Executive and the Company;
(iii) A material failure by the Executive to comply
with the Company's written policies or rules;
(iv) The Executive's conviction of, or plea of
"guilty" or "no contest" to, a felony under the laws of the United
States or any state thereof;
(v) The Executive's gross negligence or willful
misconduct; or
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(vi) A continued failure by the Executive to perform
assigned duties after receiving written notification of such failure
from the Board of Directors.
(d) Definition of "Permanent Disability." For all
purposes under this Agreement, "Permanent Disability" shall mean the
Executive's inability to perform the essential functions of the
Executive's position, with or without reasonable accommodation, for a
period of at least 90 consecutive days because of a physical or mental
impairment.
(e) Change in Control. In the event that a Change in
Control of the Company occurs as a result of a sale or merger of the
Company and the Executive is terminated or is subject to a Constructive
Termination within one year following such event, then the Executive
shall be paid an additional severance payment equal to six months of
Base Salary, paid in monthly increments, (the "Change in Control
Payment"), provided that if the Executive obtains similar employment
before the end of the six months, then the remaining amount of the
Change in Control Payment will be reduced by half. "Change in Control"
shall mean: (1) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate
reorganization, if persons who were not controlling stockholders of the
Company immediately prior to such merger, consolidation or other
reorganization own immediately after such merger, consolidation or
other reorganization 50% or more of the voting power of the outstanding
securities of each of (A) the continuing or surviving entity and (B)
any direct or indirect parent corporation of such continuing or
surviving entity; OR (2)The sale, transfer or other disposition of all
or substantially all of the Company's assets. A Change in Control shall
not occur if its sole purpose is to change the state of the Company's
incorporation or to create a holding company that will be owned in
substantially the same proportions by the persons who held the
Company's securities immediately before such transaction.
7. Proprietary Information and Inventions Agreement. The
Executive shall be bound by the provisions of the Proprietary Information and
Inventions Agreement, attached hereto as Exhibit D.
8. Successors.
(a) Company's Successors. This Agreement shall be
binding upon any successor (whether direct or indirect and whether by
purchase, lease, merger, consolidation, liquidation or otherwise) to
all or substantially all of the Company's business and/or assets. For
all purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and/or assets that becomes bound by
this Agreement.
(e) Executive's Successors. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees.
9. Arbitration.
(a) Scope of Arbitration Requirement. The parties
hereby waive their rights to a trial before a judge or jury and agree
to arbitrate before a neutral arbitrator any and all claims or disputes
arising out of this Agreement, and any of the agreements referenced in
the attached Exhibits, and any and all claims arising from or relating
to the Executive's Employment, including (but not limited to) claims
against any current or former employee, director or agent of the
Company, claims of wrongful termination, retaliation, discrimination,
harassment, breach of contract, breach of the covenant of good faith
and fair dealing, defamation, invasion of privacy, fraud,
misrepresentation, constructive discharge or failure to provide a leave
of absence, or claims regarding commissions, stock options or bonuses,
infliction of emotional distress or unfair business practices.
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(b) Procedure. The arbitrator's decision shall be
written and shall include the findings of fact and law that support the
decision. The arbitrator's decision shall be final and binding on both
parties, except to the extent applicable law allows for judicial review
of arbitration awards. The arbitrator may award any remedies that would
otherwise be available to the parties if they were to bring the dispute
in court. The arbitration shall be conducted in accordance with the
National Rules for the Resolution of Employment Disputes of the
American Arbitration Association. The arbitration shall take place in
Houston, Texas.
(c) Costs. The parties shall share the costs of
arbitration equally. Both the Company and the Executive shall be
responsible for their own attorneys' fees. Notwithstanding the
forgoing, the non-prevailing party shall reimburse the prevailing party
for arbitration costs and reasonable attorney's fees.
(d) Applicability. This Section 9 shall not apply to
(i) workers' compensation or unemployment insurance claims or (ii)
claims concerning the validity, infringement or enforceability of any
trade secret, patent right, copyright or any other trade secret or
Confidential Information held or sought by either the Executive or the
Company.
10. Miscellaneous Provisions.
(a) Notice. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed
to have been duly given when personally delivered or when mailed by
U.S. registered or certified mail, return receipt requested and postage
prepaid. In the case of the Executive, mailed notices shall be
addressed to him at the home address that he most recently communicated
to the Company in writing. In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
(b) Modifications and Waivers. No provision of this
Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by
the Executive and by an authorized officer of the Company (other than
the Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) Whole Agreement. This Agreement, and the
agreements referenced herein, supersedes any previous offer letter or
employment agreement. No other agreements, representations or
understandings (whether oral or written and whether express or implied)
which are not expressly set forth in this Agreement have been made or
entered into by either party with respect to the subject matter hereof.
This Agreement and the exhibits and agreements referenced herein
contain the entire understanding of the parties with respect to the
subject matter hereof.
(d) Withholding Taxes. All payments made under this
Agreement shall be subject to reduction to reflect taxes or other
charges required to be withheld by law.
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(e) Choice of Law and Severability. This Agreement
shall be interpreted in accordance with the laws of the State of Texas
(except their provisions governing the choice of law). If any provision
of this Agreement becomes or is deemed invalid, illegal or
unenforceable in any applicable jurisdiction by reason of the scope,
extent or duration of its coverage, then such provision shall be deemed
amended to the minimum extent necessary to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so
amended without materially altering the intention of the parties, then
such provision shall be stricken and the remainder of this Agreement
shall continue in full force and effect. If any provision of this
Agreement is rendered illegal by any present or future statute, law,
ordinance or regulation (collectively the "Law"), then such provision
shall be curtailed or limited only to the minimum extent necessary to
bring such provision into compliance with the Law. All the other terms
and provisions of this Agreement shall continue in full force and
effect without impairment or limitation.
(f) No Assignment. This Agreement and all rights and
obligations of the Executive hereunder are personal to the Executive
and may not be transferred or assigned by the Executive at any time.
The Company may assign its rights under this Agreement to any entity
that assumes the Company's obligations hereunder in connection with any
sale or transfer of all or a substantial portion of the Company's
assets to such entity.
(g) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
(h) Indemnification. As an officer of the Company,
Executive will be protected by the indemnification provisions of
Article VIII of the Company's Certificate of Incorporation. In
addition, the Company has purchased and currently maintains insurance
protecting its officers and directors against certain losses arising
out of actual or threatened actions, suits or proceedings to which such
persons may be made or threatened or be made parties ("D&O Insurance").
The Company covenants to continue D&O Insurance coverage at current
levels for the duration of Executive's service and for two (2) years
thereafter.
IN WITNESS WHEREOF, each of the parties has executed this employment
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
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Xxxxx X. Xxxxxxxx
NATURAL GAS SYSTEMS, INC.
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By: Xxxxxx X. Xxxxxx
Title: CEO and President
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