Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered into as of November 1,
2005, by and between Barnabus Energy, Inc. (incorporated as
Barnabus Enterprises Ltd.), a Nevada corporation (hereinafter
called the “Corporation”), and Cheryl J. Bostater
(hereinafter called the “Executive”).
WITNESSETH
In consideration of the compensation payable to
Executive by the Corporation pursuant to this Agreement, and the
mutual promises, covenants, representations and warranties
contained herein, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows
1.
Employment and Position . The Corporation hereby employs the
Executive as Chief Financial Officer of the Corporation, and the
Executive hereby accepts said employment and agrees to render such
services to the Corporation on the terms and conditions set forth
in this Agreement. During the term of this Agreement, the Executive
shall report directly to the Chief Executive Officer of the
Corporation and shall have such executive responsibilities to and
shall perform such executive services for the Corporation as may be
consistent with her title.
2.
Term . Subject to the provisions for extension and
termination set forth in this Agreement, the initial term of this
Agreement will begin on November 1, 2005 and shall terminate on
October 31, 2008 unless sooner terminated (“Initial
Term”), provided that the term of this Agreement and the
Executive’s employment hereunder shall be deemed to be
automatically extended for additional terms of one-year each (each,
an “Additional Term”) commencing on the day after the
expiration of the Initial Term or the previous Additional Term
unless either party elects to terminate this Agreement at the end
of the Initial Term or any Additional Term by giving the other
party written notice of such termination election at least ninety
(90) days before the expiration thereof. The Initial Term and all
Additional Terms shall be referred to collectively as the
“Term.”
3.
Compensation . As compensation for all services to be
performed by the Executive under this Agreement, the Corporation
shall compensate Executive as follows:
(a)
Base Compensation . The Corporation shall pay the Executive
base compensation (“Base Salary”) equal to One Hundred
Fifty Thousand Dollars ($150,000) per annum, which may be increased
from time to time in such amounts as are determined by the Board of
Directors of the Corporation and shall not be decreased without the
Executive’s written consent. The term “Base
Salary” shall refer to the Base Salary as so increased. The
Base Salary will be payable in installments bimonthly. The Base
Salary and all other remuneration paid to the Executive shall be
subject to applicable employment and income tax withholding
taxes.
(b)
Bonus . During the term of this Agreement, the
Corporation may pay the Executive such bonus payments as may be
determined by the Board of Directors of the Corporation based upon
the Corporation’s achievement of the goals set forth in the
Corporation’s business plan as in effect from time to
time.
(c)
Stock Options
. On November 1, 2005, the
Corporation shall issue to Executive options (the "Options") to
purchase one million four hundred seven thousand eight hundred five
(1,407,805) shares (the “Stock Option Grant”) of the
Corporation’s common stock (“Common Stock”). The
Options shall have a term of five (5) years and shall have an
exercise price equal to the closing bid price of the Corporation's
common stock on November 1, 2005. The Stock Option Grant shall vest
in accordance with the provisions set forth on Exhibit A. Upon
vesting and the Executive’s exercise of the vested stock
options, the stock underlying the options included in the Stock
Option Grant shall be duly authorized, legally issued, fully paid
and non-assessable.
(d)
Benefits . During the Term of this Agreement, the
Executive shall be eligible to participate in the standard fringe
benefits package and incentive compensation plans generally made
available to the executive management employees of the Corporation,
as such benefits may be determined or changed from time to time by
the Board of Directors of the Corporation. The fringe benefits, at
the Corporation’s expense, will include at a minimum
reasonable hospital and major medical insurance for Executive and
the family of the Executive, and three weeks vacation time. The
Corporation shall reimburse the Executive for Cobra medical
insurance costs until a company group medical plan can be put in
place.
(e)
Expenses . During the Term of this Agreement, the
Corporation shall reimburse the Executive for any and all expenses
reasonably incurred by the Executive incident to the performance of
the duties imposed upon Executive hereunder and which are
substantiated in accordance with reasonable policies and procedures
of the Corporation in effect from time to time.
(f)
Auto Allowance
. During the Term of this Agreement,
the Corporation shall pay to the Executive an automobile allowance
of Two Hundred Fifty Dollars ($250) a month in addition to the
Executive’s Base Salary.
4.
Professional Dues and Education. The
Corporation will pay Executive’s annual dues associated with
any financial related professional organizations. The Executive is
required to attend continuing education courses and conferences as
part of membership in such professional organizations and she is
currently working on obtaining her CPA designation. The Corporation
will pay for any educational courses or conferences related to
these activities.
5.
Directors’ and Officers’
Insurance. The Corporation shall maintain a fully paid and valid
Directors’ and Officers’ Insurance policy with an A+
rated insurance company during the Term of this Agreement with $5
million of coverage.
6.
Outside Activities. The Board of
Directors is aware that Executive is a significant shareholder and
officer of Customatrix, Inc., a financial consulting company.
Executive will
continue to perform her duties as such for
Customatrix on a part-time basis in addition to her full-time
duties as Chief Financial Officer for the Company. Executive will
disclose to the Board of Directors any customers or activities that
she is aware of that may pose a conflict of interest with the
Company. Notwithstanding the foregoing, the Company may enter into
a Consulting Agreement with Customatrix, Inc. to provide
accounting, financial, or ERP system implementation consulting
services if it so chooses. Any and all consulting services provided
under such Consulting Agreement will be approved by the CEO or
Board of Directors. The terms and conditions of the Consulting
Contract will be on similar terms offered to other clients of
Customatrix, Inc.
(a)
Death or disability
. This Agreement shall terminate
automatically upon the Executive’s death.
The Corporation shall be entitled to
terminate this Agreement because of the Executive’s
disability during the Term. Such termination shall only become
effective if (i) one hundred and eighty (180) days shall elapse
after the date on which the Corporation gives the Executive written
notice of its intention to effect such a termination, and (ii)
during such 180-day period the Executive shall not have returned to
full-time performance of the Executive’s duties.
(b)
Termination by the
Corporation . The
Corporation may terminate this Agreement for Cause at any time
during the Term, at which time the Term shall end. The Corporation
shall give the Executive written notice of such termination,
setting forth in reasonable detail the specific conditions that it
considers to constitute Cause, and termination shall be effective
thirty (30) days after the delivery of such notice.
For purposes of this Agreement, the
term “Cause” shall mean, when used with respect to the
termination of this Agreement by the Corporation, the conviction of
the Executive by a court of competent jurisdiction of a felony
involving a crime of fraud against the Corporation, such as
embezzlement or other theft from the Corporation, or the occurrence
of a Failure to Perform. As used herein, a "Failure to Perform"
shall have occurred if (and only if) the Corporation's Chief
Executive Officer shall have advised the Executive in writing of
deficiencies in her performance of her duties as Chief Financial
Officer, which deficiencies shall be objectively measurable, and
sixty (60) days after the delivery of such writing to the Executive
she shall not have corrected such deficiencies.
(c)
Termination by
Executive . The Executive
may terminate this Agreement for Good Reason at any time during the
Term, at which time the Term shall end. The Executive shall give
the Corporation written notice of such termination, setting forth
in reasonable detail the specific conditions that the Executive
considers to constitute Good Reason, and termination shall be
effective thirty (30) days after the delivery of such
notice.
For purposes of this Agreement, the
term “Good Reason” means (a) any failure by the
Corporation to comply with any provision of the Agreement, other
than an isolated, insubstantial and inadvertent failure that is not
taken in bad faith and is remedied by the Corporation
promptly
after receipt of notice thereof from the
Executive; (b) the assignment to the Executive of any duties or
responsibilities inconsistent in any material respect with those
customarily associated with the positions held by the Executive
duri
