June 29, 2001 Glenn Smith President Access Power, Inc. 10033 Sawgrass Dr W Ponte Vedra Beach, FL 32082 Dear Glenn: Please allow this letter and the attached Schedules A & B to serve as the entire agreement between Access Power, Inc. (the Company),...
Exhibit 10
June 29, 2001
Xxxxx Xxxxx
President
Access Power, Inc.
00000 Xxxxxxxx Xx X
Xxxxx Xxxxx Xxxxx, XX 00000
Dear Xxxxx:
Please allow this letter and the attached Schedules A & B to serve as the entire agreement between Access Power, Inc. (the Company), Xxxxxx X. Xxxxxx (the Employee), and Xxxxx CFO Partners, LLP (Xxxxx CFO).
This letter creates an employment relationship between the Employee and the Company. This is for the benefit of the Company and to ensure its absolute control of the Employee in the exercise of his or her employment.
For the services of the Employee, the Company agrees to pay $7,200.00 per month plus any earned bonus(es), as set forth in Schedule A, which also includes other related employment terms.
Xxxxx CFO’s obligation is to make the Employee available to the Company and to make our resources available to the Employee. Since we do not have a direct relationship with the Company and the Company controls and directs the Employee, Xxxxx CFO cannot and does not assume the same risks we might assume if we directly supervised the Employee. Schedule B sets forth provisions dealing with the limitation of liability of Xxxxx CFO. This allows Xxxxx CFO to provide this unique relationship that offers the value of a traditional employment relationship and the resources and benefits of our national CFO firm.
The Company may for any reason and with 30 days prior written notice to the Employee and Xxxxx CFO, terminate the Employee "at will". Likewise, Xxxxx CFO or the Employee may terminate this letter agreement for any reason with 30 days prior written notice to the Company, and immediately if the Company has not remained current in its obligations under this letter or if the Company engages in or asks the Employee to engage in illegal or unethical conduct.
Any disputes between the Company and Xxxxx CFO (whether or not it includes the Employee as a party) shall be resolved by binding arbitration in Orlando, FL under the rules of the American Arbitration Association and governed by Florida law.
The terms of this letter agreement are severable and may not be amended except in a writing signed by the parties. Please sign below and return a signed copy of this letter to indicate your agreement with its terms and conditions.
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We look forward to continue to serve you.
Sincerely yours,
| XXXXX CFO PARTNERS, LLP /s/ Xxxxxxx X. Xxxxxx (Signature) Xxxxxxx X. Xxxxxx (Print name) Area Partner For XXXXX CFO PARTNERS, LLP |
EMPLOYEE /s/ Xxxxxx X. Xxxxxx (Signature) Xxxxxx X. Xxxxxx (Print name) |
Acknowledged and agreed by:
Access Power, Inc.
By: /s/ Xxxxx X. Xxxxx
Its: President
Date: 7-11-01
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SCHEDULE A
- Term of Employment
- Costs
- Payments
- Incentive Cash Bonus, Stock, or Warrants/Options
- Survival of Bonus Provisions
- Employee Benefits
Employee will work two days per Week beginning July 1, 2001("Effective Date").
Employee will be paid a Monthly Salary ("Salary") of $6,000.00 and Xxxxx CFO will be paid a Resource Fee ("Fee") of $1,200.00.
Salary and Fee for the first month will be prorated based upon the number of normal workdays remaining in the month.
The rate for additional days (beyond the designated number of days per week or month) is $1,000.00 as Salary and $200.00 as Fee.
The Salary and Fee shall be subject to adjustment annually or at the time the Company makes any adjustments or if the Company does not do so, at the time Xxxxx CFO makes its rate adjustments.
The Salary will be processed through payroll and paid at the same time as other employees.
Xxxxx CFO will invoice the Fee and it will be due by the 10th day of the month for which amounts are invoiced.
The Employee will be granted Stock Options at least on par with the other members of the executive team, such as the CEO and COO.
The provisions concerning the bonus in this Schedule A will survive any cancellation of this Agreement.
The Employee will be eligible for vacation and holidays consistent with the Company’s policy as it applies to senior management and the Employee will be exempt from any delay periods required for eligibility.
The Company will promptly reimburse the Employee for all out-of-pocket business expenses.
The Employee elects not to participate in the Company’s employee retirement plan or any other employee benefit plan, and waives any coverage that may otherwise exist. The Company will not include Employee as a participant in any such plan, unless required to do so by law for plan qualification. However, notwithstanding the foregoing, Employee may participate in the Company’s 401(k) plan at the Company’s option.
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- Termination
- Cancellation
- Other Terms
If the Salary and Fee are structured on a monthly basis (versus daily or weekly), upon termination, the Salary and Fee shall be prorated based on the number of days Employee provided services in the month of termination.
If Employee is terminated within 90 days of the Effective Date, the following amounts shall be due to Employee and Xxxxx CFO, respectively, 10 days after the last day of Employee’s employment.
Salary $6,000.00
Fee $1,200.00
In the event this Agreement is canceled: After 6 months of employment, the Employee and Xxxxx CFO will receive payments equal to one month’s Salary and one month’s Fee, respectively. After 12 months of employment, the Employee and Xxxxx CFO will receive payments equal to two months’ salary and two month’s Fee, respectively. For every additional period of 6 months’ employment, the Employee and Xxxxx CFO will receive an additional month’s Salary and Fee payment, respectively, provided that the payment will be limited to a maximum of 6 months’ Salary and Fee.
For Employee’s protection, the following shall apply:
The Employee and Xxxxx CFO must receive written evidence that the Company maintain adequate director and officer insurance to cover the Employee at no additional cost to the Employee or Xxxxx CFO.
Employee may sign federal or state securities filings and reps and warranties on behalf of the Company, but only if Employee and Xxxxx CFO receives written evidence that, in signing such filings, reps and warranties, he or she is covered by applicable adequate insurance (whether director and officer insurance or a special policy) maintained by the Company at no additional cost to Employee or Xxxxx CFO.
If the Company requests, Employee will serve as an officer of the Company, but only if (i) Employee is duly elected as an officer by the Company’s Board of Directors and (ii) Employee and Xxxxx CFO has received written evidence that he or she is covered as an officer by the director and officer insurance maintained by the Company at no additional cost to Employee or Xxxxx CFO.
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SCHEDULE B
The following provisions are aimed exclusively at limiting the liability of Xxxxx CFO for the reasons stated in the first page of this letter agreement. Note that these provisions do not affect any traditional employer remedies against an employee.
- Xxxxx CFO does not make any representations or warranties concerning
Employee’s services. The Company is solely responsible for directing
Employee as it would any other employee and for evaluating, managing and using
Employee’s services. Xxxxx CFO makes no representation or warranty as to the
accuracy or reliability of reports, projections and/or forecasts and will not
be held liable for any claims of reliance on such reports, projections and/or
forecasts. Xxxxx CFO will not be liable for any non-compliance with federal,
state or local laws or regulations.
- The Company may pursue against Employee any remedies the Company may have
under this letter agreement or at law for breach by Employee of his or her
duties to the Company. The Company agrees that, absent Xxxxx CFO’s breach of
express obligations under this letter agreement, Xxxxx shall have no liability
to the Company or third parties based on Employee’s breach of duties that
Employee owes to the Company or third parties.
- The Company agrees to indemnify Xxxxx CFO to the full extent permitted by
law for any losses, costs, damages and expenses, including reasonable
attorneys’ fees, as such are incurred, in connection with (i) any cause of
action, suit or other proceeding arising in connection with Xxxxx CFO’s
engagement by the Company under this letter agreement, Employee’s employment
with the Company or the provision of services by Employee, and (ii) any legal
proceeding in which Xxxxx CFO may be required or agree to participate, but in
which Xxxxx CFO is not a party.
- If the Company and Xxxxx CFO are defendants in any action, suit, or other
proceeding, the defense of Xxxxx CFO will be represented by counsel selected
by the Company, unless upon advice of Xxxxx CFO’s counsel, Xxxxx CFO will
not be adequately represented by the Company’s counsel because of a conflict
of interest or inability to present a defense that would otherwise be
available to us if separately represented, in which case Xxxxx CFO may be
represented by counsel of its own choosing.
- The Company agrees that with respect to any claims the Company may assert
against Xxxxx CFO in connection with this letter agreement or the relationship
arising hereunder, Xxxxx CFO’s total liability, including with respect to
its indemnification obligations, shall not exceed: (i) for claims based on
events arising during the first six months from the Effective Date, two months
of Fees earned by Xxxxx CFO; and (ii) for claims based on events arising after
the first six months from the Effective Date, four months of Fees earned by
Xxxxx CFO.
- As a condition for recovery of any liability, the Company must give Xxxxx
CFO written notice of the alleged basis for liability within 30 days of
discovering the circumstances giving rise to such alleged liability.
- Xxxxx CFO shall not be liable in any event for incidental or consequential damages, including without limitation, any interruption of business or loss of business, profit, or goodwill.
