EMPLOYMENT AGREEMENT BETWEEN CONCENTRIC ENERGY CORP. AND BONITA BOGAERT
BETWEEN
AND
XXXXXX
XXXXXXX
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”), is dated as of November 2, 2007 (the “Execution Date”) and is
entered into by and between Concentric Energy Corp., a Nevada corporation (the
“Company”), and Xxxxxx Xxxxxxx (the “Executive”), collectively referred to
herein as the “parties”.
WHEREAS,
the
Company wishes to employ the Executive as of November 2, 2007 to serve as its
VP
Health, Safety and Environmental Compliance as well as to perform other duties
on behalf of the Company, as determined by the Chief Executive Officer.
NOW,
THEREFORE,
for and
in consideration of the mutual promises and conditions made herein and for
other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows.
ARTICLE
I
EMPLOYMENT
AND TERM OF EMPLOYMENT
1.1. Employment
and Term.
The
Company hereby employs Executive to render full-time services to the Company,
subject to Section 2.2 of this Agreement, and except during vacation periods
and
reasonable periods of absence due to sickness, personal injury or other
disability, upon the terms and conditions set forth below, from the Effective
Date of this Agreement until the employment relationship is terminated in
accordance with the provisions of this Agreement. This Agreement is for a term
of two (2) years from the Effective Date (the “Stated Term”) unless renewed or
terminated earlier as provided for herein (the “Employment Term”).
1.2. Renewal.
This
Agreement will be automatically renewed for an additional one (1) year period
(without any action by either party) at the end of the Stated Term and on each
anniversary thereof (the “Renewal Period”), unless one party gives to the other
written notice 60 days in advance of the beginning of any of the Renewal Period
that this Agreement is to be terminated.
1.3. Acceptance.
Executive hereby accepts employment with the Company and agrees to devote her
best efforts, subject to Section 2.2 of this Agreement, to rendering the
services described below. The Executive shall accept and follow the direction
and authority of the CEO in the performance of her duties, and shall comply
with
all existing and future regulations applicable to employees of the Company
and
to the Company’s business.
1.4. Termination
of Prior Agreements. Upon
execution of this Agreement, all prior employment and/or consultant agreements
between Executive and the Company or its subsidiaries shall be deemed terminated
and there shall be no right to severance or other related benefits thereunder;
provided, however, that the foregoing will not apply to any obligation of the
Company or any of its subsidiaries to indemnify Executive against any losses,
costs, damages or expenses.
ARTICLE
II
DUTIES
OF EMPLOYEE
2.1. General
Duties.
Executive shall serve as VP Health, Safety and Environmental Compliance and
shall perform such duties as may be reasonably assigned to her from time to
time
by the CEO, which such duties shall include but not be limited to those set
forth on Exhibit
A
to this
Agreement. To the extent consistent with the Company’s Articles of
Incorporation, as amended (“Articles”) and Bylaws, as amended (“Bylaws”),
Executive shall have all powers, duties and responsibilities necessary to carry
out her duties, and such other powers and duties as the CEO may prescribe
consistent with the Company’s Articles and Bylaws.
2.2. Exclusive
Services.
Except
as set forth on Exhibit
B
hereto,
it is understood and agreed that the Executive may not engage in any other
business activity during the Employment Term, whether or not for profit or
other
remuneration, without the prior written consent of the Company; provided,
however,
that
the Executive may (i) manage personal and family investments (ii) engage in
charitable, philanthropic, educational, religious, civic and similar types
of
activities to the extent that such activities do not materially hinder or
otherwise interfere with the business of the Company or any affiliate or
subsidiary of the Company, or the performance of the Executive’s duties under
this Agreement and (iii) subject to the approval of the Board of Directors,
serve as a director or as a member of an advisory board of another business
enterprise.
2.3. Reporting
Obligations.
In
connection with the performance of her duties hereunder, the Executive shall
report directly to, and take direction from, the CEO.
ARTICLE
III
COMPENSATION
AND BENEFITS OF EMPLOYEE
3.1. Annual
Base Salary. The
Company shall pay the Executive salary for the services to be rendered by her
during the Employment Term at the monthly rate of eleven thousand, one hundred
seventeen ($11,117) (the “Base Salary”), subject to increases, if any, as the
Board of Directors ("Board") may determine in its sole discretion after periodic
review of the Executive’s performance of her duties hereunder not less
frequently than annually. Such Base Salary shall be payable in periodic
installments in accordance with the terms of the Company’s regular payroll
practices in effect from the time during the term of this Agreement, but in
no
event less frequently than once each month.
3.2. Bonuses
and Perquisites.
The
Executive shall be entitled to participate in the bonus and perquisite
arrangements shown on Exhibit
C.
The
executive is considered to have an initial employment date of November 2, 2007.
3.3. Expenses.
The
Company shall pay or reimburse the Executive for all reasonable, ordinary and
necessary business expenses actually incurred or paid by the Executive in the
performance of Executive’s services under this Agreement in accordance with the
expense reimbursement policies of the Company in effect from time to time during
the Employment Term, upon presentation of proper expense statements or vouchers
or such other written supporting documents as the Company may reasonably
require.
3.4. Vacation.
The
Executive shall be entitled to four (4) weeks paid vacation for each calendar
year (prorated for any portion of a year, as applicable), of which two (2)
shall
be vested upon execution of this Agreement, with two (2) vested at the six
month
anniversary of this Agreement. Thereafter, four (4) weeks of vacation shall
vest
on each following employment anniversary. Unused vacation shall not be retained
past the annual anniversary.
2
3.5. General
Employment Benefits.
Except
as noted on Exhibit
C,
the
Executive shall be entitled to participate in, and to receive the benefits
under, any pension, health, life, accident and disability insurance plans or
programs and any other employee benefit or fringe benefit plans that the Company
makes available generally to its employees, as the same may be in effect from
time to time during the Employment Term.
3.6. Liability
Insurance.
The
Company shall maintain liability insurance coverage covering the Executive,
in
her capacity as an officer of the Company and any other capacity in which the
Executive serves at the request of the Company, in amounts customary for
similarly situated companies and with insurers reasonably acceptable to the
Executive. The obligations of this Section 3.6 shall survive for a period of
three (3) years following the Executive’s termination of employment with the
Company.
3.7. Indemnity.
In the
event Executive or her estate or executors becomes a party, or is threatened
to
be made a party, to any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of Company, and whether civil,
criminal, administrative, investigative or otherwise, by reason of Executive's
performance of Executive's duties hereunder or the fact that Executive is or
was
a director, officer, employee, agent or fiduciary of the Company, or is or
was
serving at the partnership, joint venture, trust or other enterprise, the
Company shall, to the maximum extent permitted by applicable law, hold the
Executive harmless from and against any claim, loss or cause of action arising
from or relating thereto; provided, however, that the indemnity provided under
this Section 3.7 shall not apply with respect to any liability or matter arising
from acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, for any breach of the Executive’s duty of loyalty
to the Company, or for any transaction from which the Executive derived an
improper personal benefit. If any claim is asserted against the Executive for
which the Executive reasonably believes in good faith he is entitled to be
indemnified hereunder, the Company shall, at its option and to the maximum
extent permitted by applicable law, (i) assume the defense thereof or (ii)
pay
the Executive’s reasonable legal expenses (or cause such expenses to be paid) on
a quarterly basis, if the Company does not so assume the defense; provided,
that
the Executive shall reimburse the Company for such amounts if the Executive
shall be found by a final, non-appealable order of a court of competent
jurisdiction or any arbitrator not to be entitled to indemnification hereunder.
Executive shall cooperate as reasonably requested by the Company in the defense
of any such threatened or pending action, suit or proceeding. The Company's
indemnity obligations and duties as set forth in this Section 3.7 shall survive
indefinitely the termination or expiration of this Agreement; provided,
however,
that
the Company’s indemnity obligations and duties as set forth in this Section 3.7
shall terminate upon any felony conviction of the Executive at any time.
ARTICLE
IV
TERMINATION
OF EMPLOYMENT
4.1. Termination.
This
Agreement may be terminated earlier as provided for in this Article IV, or
extended as set forth herein.
4.2. Termination
For Cause.
The
Company reserves the right to terminate this Agreement for cause immediately
upon: (a) Executive’s willful and continued failure to substantially perform her
duties with the Company (other than such failure resulting from her incapacity
due to physical or mental illness), (b) Executive’s willful engagement in gross
misconduct, as determined by the Board in good faith, which is materially and
demonstrably injurious to the Company; (c) breach of this Agreement, or (d)
Executive’s commission of a felony, or an act of fraud against the Company or
its affiliates; provided,
however,
the
Company may not terminate the Executive’s employment for cause in the case of
Section 4.2(a), unless the Company has first provided Executive with
written notice, specifying in detail the act or acts alleged to constitute
cause, and provided the Executive with a period of not less than 15 calendar
days to cure the failure in the manner specified in such notice. Executive
shall
not be entitled to any severance benefits, or vesting of unvested stock options
and equity incentives of the Company granted to Executive upon termination
for
cause under Sections 4.2(c) or 4.2(d).
3
4.3. Termination
Without Cause.
Notwithstanding anything to the contrary in this Agreement, the Company reserves
the right to terminate this Agreement at any time upon 30 days’ written notice
to Executive, without cause, subject to the express terms and provisions set
forth in Sections 4.5 and 4.6.
4.4. Voluntary
Termination by Executive.
Notwithstanding anything to the contrary in this Agreement, Executive may
terminate this Agreement at any time upon 30 days’ written notice to the
Company, subject to the terms and provisions below.
Except
in
the case of a termination for “good reason”, as set forth in Section 4.7 of this
Agreement, the Company shall not be obligated to pay any severance benefit
to
Executive if Executive terminates this Agreement pursuant to this Section
4.4.
4.5. Severance.
In the
event that during the Employment Term the Executive is terminated by the Company
“without cause” (as set forth in Section 4.3), or the Executive terminates her
employment for “good reason” (as set forth in Section 4.7), the Executive shall
be provided or promptly be paid (i) any accrued but unpaid salary, accrued
but
unused vacation time, un-reimbursed expenses which otherwise would be reimbursed
in the normal course and vested benefits under any of the Company’s benefit plan
in which the Executive is a participant, (ii) any bonus previously declared
but
not yet paid, and (iii) a cash payment equal to 24 months of Executive’s
Base Salary as provided for in Section 3.1 of this Agreement, paid in 24 equal
monthly installments, less any taxes that must be withheld. In addition, upon
a
termination under this Section 4.5, any portion of any of stock or options
of
the Company granted to the Executive but unvested shall be vested.
4.6. Change
of Control.
In the
event that during the Employment Term the Executive is terminated by the Company
or the Executive terminates her employment for “good reason,” as set forth in
Section 4.7 of this Agreement, within 12 months following a “change of
control” (as defined below) occurs after the Effective Date (a “Change of
Control Termination”), the Executive shall promptly be paid (i) any accrued but
unpaid salary, accrued but unused vacation time, un-reimbursed expenses which
otherwise would be reimbursed in the normal course and vested benefits under
any
of the Company’s benefit plan in which the Executive is a participant, (ii) any
bonus previously declared but not yet paid, and (iii) a cash payment equal
to 24 months of Executive’s Base Salary as provided for in Section 3.1 of this
Agreement, paid in 24 equal monthly installments, less any taxes that must
be
withheld. In addition, upon a Change of Control Termination, any portion of
any
of the stock or options granted to the Executive but unvested shall be vested.
A
“Change in Control Termination” will also include a termination of the Executive
by the Company without cause or a termination by the Executive of her employment
for “good reason,” as set forth in Section 4.7 of this Agreement, in either
case, following the commencement of any discussion with a third person that
ultimately results in a “change in control” (as defined below).
4
For
purposes of this Section 4.6, a “change of control” shall mean an event
involving one transaction or a series of related transactions in which (i)
the
Company issues securities representing more than 50% of the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Securities Exchange
Act
of 1934, as amended (“the “Exchange Act”), or any successor provision) of the
outstanding voting power of the then outstanding securities entitled to vote
generally in the election of directors (“Voting Stock”) of the Company to any
individual, firm, partnership, or other entity, including a “group” within the
meaning of Section 13(d)(3) of the Exchange Act (ii) the Company issues
securities representing more than 50% voting stock of the Company in connection
with a merger, consolidation or other business combination (other than for
purposes of reincorporation), (iii) the Company is acquired in a merger or
other
business combination transaction in which the Company is not the surviving
corporation (other than a reincorporation), (iv) more than 50% of the Company’s
consolidated assets or earning power are sold or transferred, or (v) the Board
of the Company determines, in its sole and absolute discretion, that there
has
been a change in control of the Company; provided, however, that clauses (ii),
(iii) and (iv), above, will constitute a “change in control” only if all or
substantially all of the individuals and entities who were the beneficial owners
of Voting Stock of the Company immediately prior to such merger, consolidation
or other business combination or sale or transfer of earning power or assets
(each, a “Business Combination”) beneficially own less than 50% of the combined
voting power of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination (including, without limitation, an
entity which as a result of such transaction owns the Company or all or
substantially all of the Company’s earning power or assets either directly or
through one or more subsidiaries).
4.7. Good
Reason.
The
Executive may terminate her employment for “good reason” after giving the
Company detailed written notice thereof, if the Company shall have failed to
cure the event or circumstance constituting “good reason” within ten (10)
business days after receiving such notice. Good reason shall mean the occurrence
of any of the following without the written consent of the Executive: (i) the
assignment to the Executive of duties inconsistent with this Agreement or a
change in her reporting obligations, positions, titles or authority; (ii) any
failure by the Company to comply with Article III hereof in any material way;
(iii) the failure of the Company to comply with and satisfy Section 6.2 of
this
Agreement; (iv) the relocation of the principal place where the Executive
regularly performs services for the Company outside of the Phoenix, Arizona
area; (v) any change in Board membership prior to an initial public offering
not
agreed to by the Executive in writing (vi) any material breach of this Agreement
by the Company; (vii) any demand by the Board that would cause the Executive,
if
the demand were honored, to incur material liability with respect to civil
or
criminal statutes or with respect to local, state or federal regulatory
practice.. The Executive’s continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act constituting
“good reason” hereunder.
4.8. Disability.
If
Executive becomes permanently and totally disabled, this Agreement shall be
terminated. Executive shall be deemed permanently and totally disabled if he
is
unable to engage in the activities required by this Agreement by reason of
any
medically determinable physical or mental impairment, as confirmed by three
independent physicians, which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than
12
months. Upon termination due to disability, the Executive shall promptly be
paid
(i) any accrued but unpaid salary, accrued but unused vacation time,
unreimbursed expenses which otherwise would be reimbursed in the normal course
and vested benefits under any of the Company’s benefit plans in which the
Executive is a participant, (ii) any bonus previously declared but not yet
paid,
and (iii) a lump sum payment equal to 24 months of Base Salary, as contained
in
Section 3.1 of this Agreement, or Executive’s then current rate of compensation,
whichever is greater. In addition, upon termination due to disability, any
portion of any of the stock or options granted to the Executive that is not
then
vested shall vest. This Section 4.8 will not limit the entitlement of the
Executive to any other benefits then available to the Executive under any plan
or program of the Company. Upon termination due to disability, the Executive
shall be entitled to continuation of health care benefits for one year.
5
4.9. Death.
If
Executive dies during the term of this Agreement, this Agreement shall be
terminated on the last day of the calendar month of her death subject to the
express terms and provisions below. Upon termination due to death, the
designated beneficiary, as provided in Section 6.8 below, or the estate or
representative of Executive, shall promptly be paid (i) any accrued but unpaid
salary, accrued but unused vacation time, unreimbursed expenses which otherwise
would be reimbursed in the normal course and vested benefits under any of the
Company’s benefit plans in which the Executive is a participant, (ii) any
bonus previously declared but not yet paid, and (iii) a lump sum payment equal
to 24 months of Executive’s Base Salary, as contained in Section 3.1 of this
Agreement, or Executive’s then current rate of compensation, whichever is
greater. In addition, upon termination due to death, any portion of any of
the
stock or options granted to the Executive that is not then vested shall become
vested. This Section 4.9 will not limit the entitlement of the Executive’s
estate or beneficiaries to any death or other benefits then available to the
Executive under any life insurance, stock ownership, stock options, or other
benefit plan or policy that is maintained by the Company for the Executive’s
benefit. For a period of two years following the Executive’s death, the Company,
at the Company’s expense, shall provide the Executive’s eligible dependents,
spouse and children under age of 21, with all health care benefits currently
in
place or to be established by the Company.
4.10. Effect
of Termination.
Except
as expressly provided for in this Agreement, the termination of employment
shall
not impair any obligation that accrued prior to termination, nor shall it excuse
the performance of any obligation which is required or contemplated hereunder
to
be performed after termination, and any such obligation shall survive the
termination of employment and this Agreement.
ARTICLE
V
COVENANTS
AND REPRESENTATIONS OF EMPLOYEE
5.1. Unfair
and Non-Competition.
The
Executive acknowledges that he will have access at the highest level to, and
the
opportunity to acquire knowledge of, the Company’s business plans, trade secrets
and other confidential and proprietary information from which the Company may
derive economic or competitive advantage, and that he is entering into the
covenants and representations in this Article V in order to preserve the
goodwill and going concern value of the Company, and to induce the Company
to
enter into this Agreement. The Executive agrees not to compete with the Company
or to engage in any unfair competition with the Company during the Employment
Term. For purposes of this Agreement, the phrase “compete with the Company,” or
the substantial equivalent thereof, means that Executive, either alone or as
a
partner, member, director, employee, shareholder or agent of any other business,
or in any other individual or representative capacity, directly or indirectly
owns, manages, operates, controls, or participates in the ownership, management,
operation or control of, or works for or provides consulting services to, or
permits the use of her name by, or lends money to, any business or activity
which is or which becomes, at the time of the acts or conduct in question,
directly or indirectly competitive with the development, financing and/or
marketing of the products, proposed products or services of the Company except
where approved by the Board. During the Employment Term, Executive shall not
directly or indirectly acquire any stock or interest in any corporation,
partnership, or other business entity that competes, directly or indirectly,
with the business of the Company without obtaining the prior written consent
of
the Company. Notwithstanding the foregoing, this Section 5.1 shall not apply
to
the ownership or acquisition of stock or an interest representing less than
a 5%
beneficial interest in a corporation that is obligated to file reports with
the
Securities and Exchange Commission pursuant to the Exchange Act and to those
companies listed in Exhibit
B
to this
Agreement, or to such Companies added to Exhibit
B
to this
Agreement as expressly permitted by the Company.
In
addition, Executive agrees to treat the Company respectfully and professionally
and not disparage the Company (or the Company’s party’s officers or directors)
in any manner likely to be harmful to the Company or its business, business
reputation or personal reputation. Furthermore, the Executive agrees not to
interfere with any of the Company’s contractual obligations.
6
5.2. Confidential
Information.
During
the Employment Term and thereafter, Executive agrees to keep secret and to
retain in the strictest confidence all material confidential matters which
relate to the Company or its “affiliate” (as that term is defined in the
Exchange Act), including, without limitation, trade secrets, business plans,
financial projections and reports, business strategies, internal operating
procedures, and other confidential business information from which the Company
derives an economic or competitive advantage, or from which the Company might
derive such advantage in its business, whether or not it is labeled “secret” or
“confidential” or some similar term, and not to intentionally disclose any such
information to anyone outside of the Company, whether during or after the
Employment Term, except in connection with pursuing in good faith the interests
and business of the Company. The foregoing restrictions and obligations under
this Section 5.2 will not apply (i) to any confidential information
that is or becomes generally available to the public or generally known to
persons engaged in businesses similar to or related to that of the Company,
other than as a result of a disclosure by Executive, (ii) if the Executive
is required by law to make disclosure, or (iii) to disclosure to any
director of the Company. The Company may waive application of the foregoing
restrictions and obligations in its sole discretion from time to time. The
Executive will use only such confidential information for purposes of performing
its duties under this Agreement.
5.3. Non-Solicitation
of Employees.
The
Executive and any entity controlled by her or with which he is associated (as
the terms “control” and “associate” are defined in the Exchange Act) shall not,
during the Employment Term and for a term of two (2) years thereafter, directly
or indirectly solicit, interfere with, offer to hire or induce any person who
is
or was an officer or employee of the Company or any affiliate (as the term
“affiliate” is defined in the Exchange Act) (other than secretarial personnel)
to discontinue her relationship with the Company or an affiliate of the Company,
in order to accept employment by, or enter into a business relationship with,
any other entity or person. (These acts are hereinafter referred to as the
“prohibited acts of solicitation.”) The foregoing restriction, however, shall
not apply to any business with which Executive may become associated after
the
Employment Term.
5.4. Return
of Property.
Upon
termination of employment, and at the request of the Company, the Executive
agrees to promptly deliver to the Company all Company or affiliate memoranda,
notes, records, reports, manuals, drawings, designs, computer files in any
media, and any other documents (including extracts and copies thereof) relating
to the Company or its affiliates, and all other property of the Company. Upon
termination, the Executive shall cease to use all such materials and information
set forth under Section 5.2.
5.5. Inventions.
Unless
otherwise provided on Exhibit B, all processes, inventions, patents, copyrights,
trademarks, and other intangible rights that may be conceived or developed
by
the Executive, either alone or with others, during the Employment Term, whether
or not conceived or developed during Executive’s working hours, and with respect
to which the equipment, supplies, facilities or trade secret information of
the
Company was used, or that relate at the time of conception or reduction to
practice of the invention to the business of the Company, or to the Company’s
actual or demonstrably anticipated research or development, or that result
from
any work performed by Executive for the Company, shall be the sole property
of
the Company. Upon the request of the Company, Executive shall disclose to the
Company all inventions or ideas conceived during the Employment Term, whether
or
not the property of the Company under the terms of this provision, provided
that
such disclosure shall be received by the Company in confidence. Upon the request
of the Company, Executive shall execute all documents, including patent
applications and assignments, required by the Company to establish the Company’s
rights under this provision.
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5.6. Representations.
The
Executive represents and warrants to the Company that he has full power to
enter
into this Agreement and perform her duties hereunder, and that her execution
and
delivery of this Agreement, he has no outstanding agreement, whether oral or
written or any obligation that is or may be in conflict with any of the
provisions of this Agreement or that would preclude Executive from complying
with the provisions of this Agreement, and the performance of her duties shall
not result in a breach of, or constitute a default under, any agreement or
understanding, whether oral or written, including, without limitation, any
restrictive covenant or confidentiality agreement, to which he is a party or
by
which he may be bound. Executive further represents and warrants that he has
not
misappropriated any confidential information and/or trade secrets of any third
party that he intends to use in the performance of her duties under this
Agreement. Executive further agrees that he will not enter into any conflicting
agreement.
5.7. Non-Payment
Upon Non-Compliance.
Should
the Company believe that the Executive has breached any one of the covenants
set
forth in this Article V, the Company shall have recourse to binding arbitration
undertaken within 300 miles of Company headquarters under the rules of the
American Arbitration Association in order to seek stop payment under the
benefits described in Sections 4.5 and 4.6 above, in addition to all other
rights and remedies the Company may have available at law or in equity. The
Company shall provide written notice to Executive, ten (10) days prior to an
expected payment, of the breach of a covenant and the ensuing non-payment
thereof; provided, however, that if the Company learns of the breach without
sufficient time to provide ten (10) days notice, the Company shall provide
written notice as soon thereafter as practicable but may not, in any event,
suspend payments to the Executive pursuant to this section except by written
mutual agreement, or by recourse with respect to 4.5 and 4.6 above to binding
arbitration, or apart from 4.5 and 4.6 above by recourse to other remedies
at
law.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
6.1. Notices.
All
notices to be given by either party to the other shall be in writing and may
be
transmitted by personal delivery, facsimile transmission, overnight courier
or
mail, registered or certified, postage prepaid with return receipt requested;
provided,
however,
that
notices of change of address or telex or facsimile number shall be effective
only upon actual receipt by the other party. Notices shall be delivered at
the
following addresses, unless changed as provided for herein.
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To
the Executive:
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Xxxxxx
Xxx Xxxxxxx
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0000
Xxxxxxxx Xxxxx
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Xxxxxx,
XX 00000
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To
the Company:
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Board
of Directors
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0000
Xxxxx Xxxxx Xxxx, Xxxxx 0
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Xxxxxxxxxx,
XX 00000
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Facsimile
(000) 000-0000
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With
a copy to:
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Xxxxx
Xxxxxx
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Xxxxxx
Brand Attorneys LLP
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000
Xxxxxxx Xxxx
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Xxxxxxxxxx,
XX 00000
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Facsimile
(000) 000-0000
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6.2. No
Assignment, In General. Except
as
provided below, this Agreement, and the rights and obligations of the parties,
may not be assigned by either party without the prior written consent of the
other party. Notwithstanding the foregoing, this Agreement may be assigned
to
the entity that is the successor of the Company resulting from a change in
control as defined in Section 4 hereof.
8
6.3. Entire
Agreement.
This
Agreement and the documents delivered pursuant hereto supersedes any and all
other agreements or understandings of the parties, either oral or written,
with
respect to the employment of the Executive by the Company, and contains the
complete and final agreement and understanding of the parties with respect
thereto. The Executive acknowledges that no representation, inducements,
promises, or agreements, oral or otherwise, have been made by the Company or
any
of its officers, directors, employees or agents, which are not expressed herein,
and that no other agreement shall be valid or binding on the
Company.
6.4. Amendments
and Modifications.
This
Agreement may be amended or modified only by writing
signed by both parties hereto.
6.5. Withholding
Taxes.
All
amounts payable under this Agreement, whether such payment is to be made in
cash
or other property, including without limitation stock of the Company, shall
be
subject to withholding for Federal, state and local income taxes, employment
and
payroll taxes, and other legally required withholding taxes and contributions
to
the extent appropriate in the determination of the Company, and the Executive
agrees to report all such amounts as ordinary income on her personal income
tax
returns and for all other purposes, as called for.
6.6. Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by any
judgment of a tribunal of competent jurisdiction, the remaining provisions
and
terms of this Agreement shall not be affected by such judgment, and this
Agreement shall be carried out as nearly as possible according to its original
terms and intent and, to the full extent permitted by law, any provision or
restrictions found to be invalid shall be amended with such modifications as
may
be necessary to cure such invalidity, and such restrictions shall apply as
so
modified, or if such provisions cannot be amended, they shall be deemed
severable from the remaining provisions and the remaining provisions shall
be
fully enforceable in accordance with law.
6.7. Effect
of Waiver.
The
failure of either party to insist on strict compliance with any provision of
this Agreement by the other party shall not be deemed a waiver of such
provision, or a relinquishment of any right thereunder, or to affect either
the
validity of this Agreement, and shall not prevent enforcement of such provision,
or any similar provision, at any time.
6.8. Designation
of Beneficiary.
If the
Executive shall die before receipt of all payments and benefits to which he
is
entitled under this Agreement, payment of such amounts or benefits in the manner
provided herein shall be made to such beneficiary as he shall have designated
in
writing filed with the Secretary of the Company or, in the absence of such
designation, to her estate or personal representative.
6.9. Attorneys
Fees.
In any
proceeding brought to enforce any provision of this Agreement, or to seek
damages for a breach of any provision hereof, or when any provision hereof
is
validly asserted as a defense, the prevailing party will be entitled to receive
from the other party all reasonable attorney’s fees and costs in connection
therewith.
6.10. Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of Nevada, without regard to its conflict of laws principles.
6.11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which, shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument. For the purpose of proving the authenticity of this Agreement,
facsimile signature shall be treated the same as original
signatures.
9
IN
WITNESS WHEREOF, the
parties have executed and delivered this Agreement as of the date first above
written.
|
COMPANY:
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
|
|
Xxxxxx
X. Xxxxx Xx., Chief Executive Officer
|
||
|
EXECUTIVE:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxx
|
||
EXHIBIT
A
Duties
Primary
responsibilities will be to act as VP Health, Safety and Environmental
Compliance of Concentric Energy Corp. including:
Develop
Corporate Policy related to employee and community health and safety with the
goal of ensuring a level of compliance consistent with industry best practice.
Provide
support for the implementation of corporate health and safety policy. Report
quarterly to the CEO and Board of Directors on the status of compliance with
corporate health and safety policy.
Develop
Corporate Policy related to environmental compliance with the goal of ensuring
a
level of environmental stewardship consistent with industry best
practices.
Provide
support for the implementation of environmental compliance policy. Report
quarterly to the CEO and Board of Directors on the status of the Company’s
environmental stewardship. Prior to the start-up of operating properties the
Vice President of Health, safety and Environmental Compliance will co-lead,
with
the Vice President of Permitting and Governmental Relations, the development
and
implementation of a comprehensive plan to acquire all necessary permits and
licenses for the operation of the Xxxxxxxx Mine in Yavapai County,
Arizona.
Other
assignments as deemed necessary by the CEO, including corporate development
and
communication.
EXHIBIT
B
List
of
Companies excluded from Section 5.1:
EXHIBIT
C
Options
and shares:
|
Options
|
||||
|
0
|
50,000
|
(1)
|
||
(1)
The
terms of the options are as follows: exercise price of $7.00, vesting 50% at
the
execution of this Agreement and 50% on the first anniversary of this Agreement,
subject to Executive's continued employment with Employer; vested options shall
be exercisable until fifth anniversary of the execution of this Agreement.
