EXHIBIT 10.53
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of October 1,
2008, is entered into by and between NuState Energy Holdings, Inc., a Nevada
corporation, its affiliates and assigns (the "Company"), and Xxxxx X. Xxxxxx
(the "Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to continue to have the Employee be its
Chief Executive Officer, Principal Financial and Accounting Officer, President,
Treasurer and Secretary and the Employee desires to continue to be so employed;
and
WHEREAS, Employee and the Company desire to set forth in writing all of
their respective duties, rights and obligations with respect to the Employee's
continued employment by the Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment and Term. The Company hereby agrees to continue the
employment of the Employee, and the Employee hereby accepts such
continued employment by the Company, in the capacity and upon the terms
and conditions hereinafter set forth. The term of employment under this
Agreement shall be for the period commencing as of the date first
written above (the "Commencement Date") and ending five years
thereafter on September 30, 2013 unless earlier terminated as herein
provided (the "Term of Employment"). Thereafter, this Agreement shall
be renewed for successive one (1) year terms unless previously
terminated pursuant to Section 5 herein or if either party elects to
terminate this Agreement by written notice to the other party at least
ninety (90) days prior to the expiration of the then-current Term of
Employment. The last day of the Employee's Term of Employment shall be
referred to in this Agreement as the "Date of Termination."
2. Duties. During the Term of Employment, the Employee shall serve as the
Company's Chief Executive Officer, Principal Financial and Accounting
Officer, President, Treasurer and Secretary and shall assume those
responsibilities customarily associated with and incident to these
positions. The Employee shall serve the Company faithfully,
conscientiously and to the best of the Employee's ability and shall
promote the interests and reputation of the Company. Unless prevented
by sickness or disability, the Employee shall devote all of his time,
attention, knowledge, energy and skills, during normal working hours,
and at such other times as the Employee's duties may reasonably
require, to the duties of the Employee's employment. The principal
place of employment of the Employee shall be the Company's principal
executive offices or at such other place(s) to be determined by the
Company and Employee. The Employee acknowledges that in the course of
his employment, Employee may be required, from time to time, to travel
on behalf of the Company at the Company's expense. The Employee's
principal work place shall be in South Florida. In the event the
Company requests the Employee to relocate out of South Florida, the
Employee may choose not to relocate by giving written notice to the
Company within ten (10) days of the date of such request. If the
Company chooses to terminate the Employee as a result of the Employee's
unwillingness to relocate, the Company shall pay the Employee, the
remaining sum due Employee pursuant to the terms of the Agreement. The
Company shall not prohibit Employee from additional opportunities in
his free time as long as there is not a conflict of interest now or in
the future with NuState Energy Holdings, Inc. and its affiliates.
Employee must receive permission in writing from the Board of Directors
to execute additional opportunities.
3. Compensation and Benefits. As full and complete compensation for the
Employee's execution and delivery of this Agreement and performance of
any services hereunder, the Company shall pay, grant or provide the
Employee with the following:
(a) Base Salary. The Company shall pay the Employee a base annual
salary (the "Base Salary") of $150,000 for the first year,
with annual increases of a minimum of twenty (20%) percent per
year on each anniversary of the Commencement Date. Base salary
shall be payable at such times and in accordance with the
standard payroll practices of the Company, but in no event
less than twice per month.
(b) Stock Options. Within ten business days of the Company filing
its quarterly or annual report with the U.S. Securities and
Exchange Commission, the Company's Board of Directors shall
grant Employee a five-year, fully vested option to purchase
that number of shares of common stock such that, following
such issuance, the aggregate number of shares underlying all
of Employee's options shall represent no less than five
percent (5%) of the total issued and outstanding shares of
common stock of the Company as reported in its quarterly or
annual report. This new option shall have an exercise price
equal to the greater of i) the average closing price of the
Company's common stock for the ten trading days immediately
preceding the filing of the quarterly or annual report or ii)
the closing price of the common stock on the tenth trading day
after filing the annual or quarterly report.
(c) Bonus. Upon entering into this Agreement, the Employee shall
earn a bonus of $39,642.86, which the Company shall accrue and
pay when it deems appropriate, to compensate Employee for the
$30,000 annual salary increase due Employee from the date he
became the Company's Chief Executive Officer on June 6, 2007
through the Commencement Date. Also, within ten business days
of the Company filing an annual report with the U.S.
Securities and Exchange Commission ("SEC") in which the
Company reports a net profit before tax for its most recently
completed fiscal year, Employee shall be entitled to receive a
bonus equal to four percent (4.0%) of such net profit before
tax ("Bonus"). Employee shall have the option of receiving the
Bonus in cash or in shares of the Company's common stock. If
Employee elects to receive common stock, then the price per
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share used to calculate the number of shares to be issued to
the Employee shall be the average closing share price for the
ten trading days immediately preceding the filing of the
annual report with the SEC.
(d) Expenses. The Employee shall be entitled to reimbursement of
all reasonable business expenses (in accordance with the
Company's policies for its senior executives, as the same may
be amended from time to time in the Company's sole
discretion), within one week following the Employee's
submission of appropriate receipts and/or vouchers to the
Company.
(e) Employee Benefits. The Company shall afford the Employee the
opportunity to participate during the Term of Employment in
any medical, dental, disability and life insurance,
retirement, savings and any other employee benefits plans or
programs (including perquisites) which the Company maintains
for its other employees or senior executives. Also, Employee
shall receive a car allowance of a minimum of $600 per month
at such time as such benefit is provided to other senior
executives.
(f) Vacations, Holidays or Temporary Leave. The Employee shall be
entitled to take vacations in accordance with the Company's
vacation policy for other senior executives. Such vacation(s)
shall be taken at such time or times, and as a whole or in
increments, as the Employee shall elect, consistent with the
reasonable needs of the Company's business. The Employee shall
further be entitled to the number of paid holidays and leaves
for illness or temporary disability in accordance with the
policies of the Company for its senior executives (as such
policies may be amended from time to time or terminated in the
Company's sole discretion).
4. Restrictive Covenant; Protection of Confidential Information.
(a) The Employee recognizes and acknowledges that certain
confidential business and technical information used by the
Employee in connection with his duties hereunder including,
without limitation, certain confidential and proprietary
information relating to the design, development, construction
and marketing of Internet services, is a valuable, special and
unique asset of the Company, such information, subject to
Section 4(c) below, collectively being referred to as the
"Confidential Information". During and subsequent to the Term
of Employment, the Employee shall not (a) use Confidential
Information or any part thereof other than in connection with
his duties hereunder, (b) disclose such information to any
person, firm, corporation, association or other entity for any
purpose or reason unless directed to do so by the Board of
Directors. Notwithstanding the foregoing, the Employee is
being hired as an expert in the field of logistics and,
therefore, logistic practices are excluded from this
provision.
(b) During the Term of Employment and for all time thereafter, the
Employee shall not, directly or indirectly, furnish or make
accessible to any person, firm, corporation or other business
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entity, whether or not he competes with the business of the
Company, any trade secret obtained by the Employee during his
employment by the Company which relates to the business
practices, methods, processes or other confidential or secret
aspects of the business of the Company without the prior
written consent from the Company (such information being
referred to as the "Company Confidential Information").
(c) Confidential Information and Company Confidential Information
shall not include any information or documents that (a) are,
or become, publicly available without breach by the Employee
of this Section 4, (b) the Employee receives from any third
party who, to the best of the Employee's knowledge upon
reasonable inquiry, is not in breach of an obligation of
confidence with the Company, or (c) is required to be
disclosed by law, statute, governmental or judicial
proceeding; provided, however, that in the event that the
Employee is requested by any governmental or judicial
authority to disclose any Confidential Information, the
Employee shall give the Company prompt notice of such request,
such that the Company may seek a protective order or other
appropriate relief, and in any such proceeding the Employee
shall disclose only so much of the Confidential Information as
is required to be disclosed.
(d) The Employee acknowledges that his services are of a special,
unique and extraordinary character and, his position with the
Company places him in a position of confidence and trust with
the clients and employees of the Company, and in connection
with his services to the Company, the Employee will have
access to Confidential Information vital to the Company's
business. The Employee further acknowledges that in view of
the nature of the business, in which the Company is engaged,
the foregoing confidentiality provision is reasonable and
necessary in order to protect the legitimate interests of the
Company and that violation thereof would result in irreparable
injury to the Company. Accordingly, the Employee consents and
agrees that if the Employee violates or threatens to violate
any of the provisions of Section 4 hereof, the Company would
sustain irreparable harm and, therefore, the Company will be
entitled to obtain from any court of competent jurisdiction,
without posting any bond or other security, preliminary and
permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits and other
benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies in
law or equity to which the Company may be entitled. This being
said the employee is named as a minority position of the
inventor of the process and is documented as part owner of the
Intellectual Properties of the product and or process.
5. Termination of Employment.
(a) The Employee's employment with the Company shall terminate
upon the occurrence of any of the following events:
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(i) The Scheduled Date of Termination;
(ii) The death of the Employee during the Term of Employment;
(iii) The Disability (as defined below) of Employee during the
Term of Employment; or
(iv) Upon written notice to the Employee by the Company of
termination of his employment for Cause (as defined in
5(c)).
(v) Resignation without good reason
(vi) Termination without cause (as defined below)
(b) For purposes of this Agreement, the "Disability" of the
Employee shall mean his inability, because of mental or
physical illness or incapacity, whether total or partial, to
perform his full time duties under this Agreement with
reasonable accommodation for a period aggregating 90 days out
of any 12-month period under circumstances where, in the
opinion of a qualified physician reasonably acceptable to the
Company, it is reasonably certain that the Employee will not
be able to resume his duties on a regular full time basis
within 30 days of the date the Employee receives notice of
termination for Disability.
(c) For purposes of this Agreement, the term "Cause" shall mean
the Employee's i) conviction or entry of a plea of guilty or
nolo contendere, with respect to any felony; (ii) commission
of any act of willful misconduct, gross negligence, fraud or
dishonesty that materially affects the Company as stated in
the Company's Employee Handbook Code of Conduct; or (iii)
violation of any material term of this Agreement or any
material written policy of the Company, provided that the
Company first deliver written notice thereof to the Employee
and the Employee shall not have cured such violation within
thirty (30) days after receipt of such written notice.
6. Payments upon Termination of Employment:
(a) Death or Disability: If the Employee's employment hereunder is
terminated due to the Employee's death or disability pursuant
to Sections 5(a)(ii)(iii), the Company shall pay or provide to
the Employee, his designated beneficiary or his estate (i) all
Base Salary pursuant to Section 3(a) hereof, any expenses
pursuant to Section 3(d), any accrued vacation pursuant to
Section 3(f) and any bonus pursuant to Section 3(c) hereof, in
each case which has been earned but unpaid, or incurred but
not reimbursed, as of the Date of Termination; and (ii) any
benefits to which the Employee may be entitled under any
employee benefits plan or program pursuant to Section 3(e)
hereof in which he is a participant in accordance with the
terms of such plan or program up to and including the Date of
Termination. Should the Company wish to purchase insurance to
cover the costs associated with the Employee's termination of
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employment pursuant to Sections 5(a) (i), (ii), (iii), the
Employee agrees to execute any and all necessary documents
necessary to effectuate said insurance.
(b) Termination for Cause, Resignation Without Good Reason, or
Expiration of Term of Employment: If the Employee's employment
hereunder is terminated due to the termination of the
Employee's employment by the Company for "Cause" pursuant to
Section 5(a)(iv) or due to the Employee's resignation Without
Good Reason pursuant, the Company shall pay or provide to the
Employee (i) all base salary pursuant to Section 3(a) hereof
and any vacation pay pursuant to Section 3(f) hereof, in each
case which has been earned but unpaid as of the Date of
Termination and (ii) any benefits to which the Employee may be
entitled under any employee benefits plan or program pursuant
to Section 3(e) hereof in which he is a participant in
accordance with the terms of such plan or program up to and
including the Date of Termination.
(c) Termination Without Cause: If the Employee's employment
hereunder is terminated due to the termination of the
Employee's employment by the Company Without Cause the
Employee shall be entitled to all compensation for the term of
the Contract to be paid in a lump sum payment within ten (10)
days of termination.
(d) Rights on Change in Control. If within one year after, or 90
days prior to, a Change in Control of the Company, as defined
below but not including any reverse transaction where the
shareholders are the majority, the Company shall terminate the
Employee's employment other than by reason of the Employee's
death or disability or for Cause, the Company shall pay or
provide to the Employee as compensation for services rendered,
not later than the fifth business day after the Date of
Termination:
(i) The Employee's base salary through the Date of
Termination, and any regular benefits and incentive
compensation earned as of the Date of Termination in
accordance with any arrangements then existing with the
Employee; and
(ii) A lump sum severance payment equal to two times
Employee's annual current compensation.
(iii) All unvested stock options previously granted to
Employee shall be deemed vested.
(iv) For purposes of this Agreement, a Change in Control
shall be deemed to have occurred in the event that an
entity or a related group of shareholders or creditors
that, prior to the occurrence of such event, is not a
majority shareholder of the Company, becomes owner of
50% or more of the Company's issued and outstanding
shares through investment, merger, acquisition,
foreclosure or otherwise.
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(e) No Other Payments. Employee shall not be entitled to receive
any other payments or benefits from the Company due to the
termination of his employment, including but not limited to,
any employee benefits under any of the Company's employee
benefits plans or programs (other than at the Employee's
expense under the Consolidated Omnibus Budget Reconciliation
Act of 1985 or pursuant to the terms of any pension plan which
the Company may have in effect from time to time). Upon
termination, all unvested options provided to Employee shall
be deemed null and void unless under the circumstances defined
in 5(a) (vi) or 5(d) (iii). Unvested options shall not vest
after Employee's receipt of a notice of termination pursuant
to Section 5(a)(iv) hereof provided, however, if such notice
was provided pursuant to Section 5(c)(iii) hereof and Employee
cures such breach within the applicable time period,
Employee's options may vest subsequent thereto.
7. No Conflicting Agreements; Indemnification.
(a) The Employee hereby represents and warrants that he is not a
party to any agreement, or non-competition or other covenant
or restriction contained in any agreement, commitment,
arrangement or understanding (whether oral or written), which
would in any way conflict with or limit his ability to
commence work on the first day of the Term of Employment or
would otherwise limit his ability to perform all
responsibilities in accordance with the terms and subject to
the conditions of this Agreement.
(b) The Employee agrees that the compensation provided for in
Section 3 represents the minimum compensation to be paid to
Employee in respect of the services performed or to be
performed for the Company by Employee.
8. Deductions and Withholding. The Employee agrees that the Company shall
withhold from any and all compensation required to be paid to the
Employee pursuant to this Agreement all federal, state, local and/or
other taxes which the Company determines are required to be withheld in
accordance with applicable statutes and/or regulations from time to
time in effect and all amounts required to be deducted in respect of
the Employee's coverage under applicable employee benefit plans.
9. Entire Agreement. This Agreement embodies the entire agreement of the
parties with respect to the Employee's employment and supersedes any
other prior oral or written agreements between the Employee and the
Company, including but not limited to, the Original Employment
Agreement. This Agreement may not be changed or terminated orally but
only by an agreement in writing signed by the parties hereto.
10. Waiver. The waiver by the Company or a breach of any provision of this
Agreement by the Employee shall not operate or be construed as a waiver
of any subsequent breach by the Employee. The waiver by the Employee of
a breach of any provision of this Agreement by the Company shall not
operate or be construed as a waiver of any subsequent breach by the
Company.
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11. Governing Law. This Agreement shall be subject to, and governed by, the
laws of the State of Florida applicable to contracts made and to be
performed in the State of Florida, regardless of where the Employee is
in fact required to work.
12. Jurisdiction. Any legal suit, action or proceeding against any party
hereto arising out of or relating to this Agreement shall be instituted
in a federal or state court in the State of Florida, and each party
hereto waives any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding and each party
hereto irrevocably submits to the jurisdiction of any such court in any
suit, action or proceeding.
13. Assignability. The obligations of the Employee may not be delegated
and, except as expressly provided in Section 6 relating to the
designation of beneficiaries, the Employee may not, without the
Company's written consent thereto, assign, transfer, convey, pledge,
encumber, hypothecate or otherwise dispose of this Agreement or any
interest therein. Any such attempted delegation or disposition shall be
null and void and without effect. The Company and the Employee agree
that this Agreement and all of the Company's rights and obligations
hereunder may be assigned or transferred by the Company to, and may be
assumed by, may become binding upon, and may inure to the benefit of,
any successor to the Company. The term "successor" shall mean, with
respect to the Company, any other corporation or other entity that by
merger, consolidation or purchase, acquires all or a material part of
the assets of the Company. Any assignment by the Company of its rights
and obligations hereunder to any successor shall not be considered a
termination of employment for purposes of this Agreement.
14. Severability. If any provision of this Agreement as applied to either
party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
15. Notices. All notices to the Employee hereunder shall be in writing and
delivered personally or sent by registered or certified mail, return
receipt, to:
Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxx Xxxxx, Xxx. 000
Xxxxx Xxxxx, XX 00000
All notices to the Company hereunder shall be in writing and delivered
personally or sent by registered or certified mail, return receipt
requested, to:
NuState Energy Holdings, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xx. 33487
Attention: Chief Executive Officer
Either party may change the address to which notices shall be sent by
sending written notice of such change of address to the other party.
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16. Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
17. 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 taken together shall constitute one and the same instrument.
18. Attorneys' Fees. In the event that either party hereto commences
litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses
and fees, including reasonable attorneys' fees.
19. Neutral Construction. Each party to this Agreement was represented by
counsel, or had the opportunity to consult with counsel. No party may
rely on any drafts of this Agreement in any interpretation of the
Agreement. Each party to this Agreement has reviewed this Agreement and
has participated in its drafting and, accordingly, no party shall
attempt to invoke the normal rule of construction to the effect that
ambiguities are to be resolved against the drafting party in any
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
NuSTATE ENERGY HOLDINGS, INC.,
a Nevada corporation
By:_________________________________
Xxxxxxx Xxxxx
Chairman of the Board of Directors
EMPLOYEE
By: ________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
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