EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made
as of November 5th, 2009
by and between Xxxxx X. Xxxxxxx, a resident of New York (the “Employee”), Iron
Eagle Group a corporation organized and existing under the laws of the State of
Nevada, (“Iron
Eagle” or the “Company”) and Belle
Haven Partners, LLC, a limited liability company organized and existing under
the laws of the State of Nevada (“Belle
Haven”). Capitalized terms used in this Agreement have the
meanings set forth within this Agreement.
WHEREAS,
the Company is engaged in the business of acquisition of and management of
construction and construction-related companies (the “Business”).
WHEREAS,
the Company desires to employ Employee and Employee desires to be employed by
the Company upon the terms and conditions hereinafter set forth.
WHEREAS,
this Agreement contains the entire understanding of employment with the Company
and supersedes all discussions, proposals or prior agreements, written or oral,
and all other communications relating to the subject matter hereinafter set
forth.
WHEREAS,
the provisions set out in this Agreement are to be interpreted fairly between
Employee and Company and not in favor or against either party.
NOW,
THEREFORE, in consideration of the mutual covenants and obligations contained
herein, and intending to be legally bound, the parties, subject to the terms and
conditions set forth herein, agree as follows:
1.
Confirmation and Description
of Duties
This
Agreement confirms that you are the Chief Financial Officer (“CFO”) and Executive
Vice President (“Exec
VP”) of Iron Eagle as of November 1st, 2009
(the “Start
Date”). Until the company finds a replacement, Employee also will be the
acting Chief Executive Officer (“CEO”) and a Director on the Company’s Board.
Employee’s main office will be in New York, New York, although Employee
acknowledges that Employee may be required to travel frequently. Employee duties
of CFO and Exec VP will be comparable to those at similarly situated companies
including, but not limited to business and financial strategy, projections and
forecasts, internal and external reporting, treasury, capital raising, and
mergers and acquisitions (“Employee’s Duties”).
Employee will report to the CEO and the Board of Directors of the Company
(“Board”). In
addition, Employee will also be responsible for such other duties that may be
assigned to Employee from time to time by the Board.
B. Employee
agrees to devote substantially all of Employee’s business time, attention and
energies to the performance of Employee’s Duties with the Company. This does not
however preclude Employee from engaging in managing Employee’s own investments
or engaging in any other specific activity, provided it does not interfere with
Employee’s Duties. Employee represent that there is no prohibition that
will prevent Employee now or in the future from working for Company as an
employee.
C.
Employee agrees to comply with all Company policies and procedures in effect as
of the Start Date as well as any modifications or additions to those policies
and procedures. This will include by way of example and those contained in an
employee handbook or policy manual. We understand however, that if there is a
conflict between any policy or procedure and any provision contained in this
Agreement, the provisions contained in this Agreement shall
prevail.
2.
Term
The
employment arrangement outlined in this Agreement shall be for a three (3) year
term beginning on the Start Date. Unless terminated in accordance with the
terms set forth in this Agreement, Employee notifies the Company or the Company
notifies Employee within three months of the third anniversary of the Start Date
that one Party does not wish to renew the arrangements, the employment
arrangements set forth in this Agreement shall renew themselves for successive
one (1) year terms in perpetuity.
3.
Termination
A.
By
Company
Company
will be able to terminate the arrangement contained in this Agreement with or
without cause upon written notice. Termination without Cause requires
three months advance written notice. Termination for Cause requires at least 30
days advance written notice with Company specifying the substantial breach and
the Employee has not cured the breach within that 30 day period. With respect to
termination by Company, “Cause” means
conviction or pleading no contest to any felony, use of Company property in
connection with any form of pornography, sexual harassment, assault of any
Company related individual, commission of embezzlement, fraud, substantial
violation of any Company policy or procedure or substantial breach of the
Provisions of this Agreement and such violation causes material financial damage
to Company. Notwithstanding the foregoing, an allegation is an insufficient to
constitute Termination for Cause. Cause will require an actual conviction
or the Company having irrefutable, objective and substantial evidence indicating
certain actions have taken place.
B.
Termination by
Employee
Employee
may terminate Employee’s relationship with Company as an employee with or
without cause upon written notice. Termination without Good Reason requires
three months written notice. Termination for Good Reason can be immediate
following written notice. With respect to termination by Employee, the term
“Good Reason”
means the any substantial breach of the provisions in this
Agreement by the Company, existence of a hostile work environment, or
Employee’s constructive termination prior to any actual termination. In the
event of any breach for Good Reason, Employee will not be able to terminate
until Employee has given the Company at least 30 days advance written notice
specifying the substantial breach and the Company has not cured the breach
within that 30 day period.
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C.
Death or Disability
Termination
Employment
will automatically terminate in the event of Employee’s death or
Employee’s Permanent Disability. For purposes of this Agreement,
“Permanent
Disability” shall mean Employee’s inability to perform any of the
significant aspects of Employee’s job for a period of at least six months as
well as satisfaction of the definition of total disability under the definition
found in the Social Security laws as determined by a licensed physician.
If there is ever any issue relating to Permanent Disability, Employee agrees
upon the request of the Company to be examined by a licensed medical doctor
selected by the Company within fifteen miles of Employee’s residence. The
determination of such professional shall be determinative if Employee has a
Permanent Disability.
D. Return of Property Upon
Termination
Following
termination initiated by Employee or the Company whenever occurring, Employee
agrees Employee will promptly return all Company owned or leased materials,
supplies, and equipment in good condition, less normal wear and tear. This
Agreement contains Employee’s written authorization of such
deductions. Upon termination, Employee agrees Employee will promptly
return all material affecting or relating to the business of Company that is or
was in Employee’s control. Upon termination, other than any accrued and
unpaid compensation and reimbursement of expenses otherwise payable in
accordance with the provisions of this Agreement, there will be no termination
benefits other than what is described below.
4. Termination
Benefits
Upon
termination by the Company for Cause or Employee’s voluntary termination without
Good Reason, other than any accrued and unpaid compensation salary, bonus,
equity and reimbursement of expenses otherwise payable in accordance with the
provisions of this Agreement, there will be no termination
benefits.
5.
Compensation
Notwithstanding
the following paragraphs, Employee and Company agree that Employee’s
compensation will accrue until the Company becomes publicly traded or is
acquired by a publicly traded company. (“Closing”). The
date of the acquisition is the “Closing
Date”.
A. Base Salary. The
Company will pay Employee an annual gross base salary of $200,000.00 (“Base Salary”) payable
at least semi-monthly. The Company agrees to review Employee’s salary at least
annually as of each anniversary of the Start Date and make adjustments upwards
as necessary to reflect increases in the cost of living as well as
performance. The amount of any such increase if any; shall be at the sole
discretion of the Board. Any actual payments of salary or bonuses made to
Employee will be net of any governmental applicable taxes and fees that Company
acting in good faith and its sole discretion determines need to be deducted from
payments to Employee.
B. Cash Bonuses. At the
sole discretion of the Board, Employee will be eligible to receive a cash bonus
of up to 200% of Base Salary each year based upon actual performance of the
Company as determined by the Board. The timing, amount and payment terms
of any such bonus if granted shall be at the sole discretion of the
Board.
C. Options. The Company
will grant to Employee options representing 5% of the Company on a fully-diluted
basis as of Closing Date. The strike price will be consistent with
the conversion price of the KMC convertible note that will be issued currently
with Closing. Options shall vest monthly over a three (3) year period beginning
on the Start Date. In addition, the Board can and will make annual
stock option grant awards pursuant to Company policies and guidelines, based on
Employee’s service to the Company and overall Company performance
criteria.
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6.
Personal Time Off, Holidays
and Employee Benefits
A.
Employee will receive a total of 20 days off each year that includes vacation,
personal time off and sick leave (“PTO”) from Company.
Any vacation shall be scheduled with the approval of the Chief Executive
Officer. Employee will accrue PTO as Employee works, based on a pay period
basis. Any unused PTO will accrue to a maximum of 40 days after which
Employee will not accrue additional PTO until days are used. Upon termination
for any reason including non-renewal, all unused and accrued PTO will be paid
out at Employee’s then prevailing salary. Any unused and therefore accrued
PTO will roll over to the next contract year of service.
B. Employee
shall be eligible to participate in any Company employee benefit or Company
employee welfare plan as such terms are defined under the Employee Retirement
and Income Security Act of 1974 as amended, as well as any stock option or stock
purchase plan offered by the Company to employees provided Employee satisfies
all of the applicable requirements in each respective program. Such
employee benefits and employee welfare plans shall include medical, dental,
vision, flexible spending accounts, life insurance and similar plans the Company
maintains from time to time.
C.
Company makes no representation or warranty that any employee benefit plan, any
employee welfare plan, employee discount or any other employee benefit as in
effect will not be modified or even continued in the future.
8.
Reimbursement of
Expenses and Allowances
A.
The Company will pay Employee $150.00 per month cell phone allowance. This
allowance is in lieu of reimbursement for any cell phone telephone calls and any
other cell phone related expense. We agree that excluding the $150.00, you
will not be reimbursed for any cell phone related expense. Employee will
also be responsible for obtaining Employee’s own cell phone and obtaining
service on that phone.
B.
The Company will provide Employee with a laptop computer and a wireless
card. Employee specifically understands that the use of that laptop will
be subject to any computer usage policy adopted by the Company as modified from
time to time.
C.
Excluding the items described in subparagraphs A to C, Employee will be
reimbursed for all reasonable and appropriately substantiated out-of-pocket
expenses incurred by Employee at the request of, and subject to the
authorization of the Board This will include meal expenses while
staying in the accommodation close to Company location. With respect to
those expenses, Employee agrees that the per meal expense shall be limited to
$15.00 for breakfast, $20.00 for lunch and $40.00 for dinner or a total per diem
amount of $75.00 a day. Any expenses in excess of $1,000.00 will require
advance written authorization as a condition of reimbursement. In order to
receive reimbursement, Employee will be required to submit an expense report
that includes all receipts for expenses incurred over $100.00. Upon
receipt of the expense report, Employee’s expense reimbursement will be
processed in accordance with the Company’s normal accounting procedures as
modified from time to time.
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9.
Modifications
No
modification or alteration of any part of this Agreement will be effective
unless it is made in writing and signed by Employee and the Chairman of the
Board and approved by the Board. The provisions of this Agreement are
binding on all assigns and successors in interest. Since employment
involves personal services, we agree that neither party may assign their rights
or obligations hereunder.
10. Governing
Law
All the
provisions in this Agreement will be governed by and construed in accordance
with the laws of the State of Nevada without giving any force or affect to any
conflict of laws provisions.
11.
Dispute
Resolution
A.
Subject to the exceptions noted in this Paragraph, if Company and Employee are
unable to resolve any dispute on their own, we agree to resolve the dispute in
final and binding arbitration in front of one arbitrator expert in areas
relating to the dispute from the Judicial Arbitration and Mediation Service
(“JAMS”) in
accordance with their then current employment arbitration rules. The venue
for the arbitration shall be New York City, New York.
B.
Excluding any delay caused by JAMS, any arbitration contemplated must be
completed within 90 days of the filing of the arbitration demand with
JAMS. The arbitration hearing must be completed within a single day and
the arbitrator must provide a written opinion specifying the reasons for the
decision in writing within 10 business days of the arbitration
hearing.
C.
This provision is self executing and in the event that either party fails to
appear at any properly noticed arbitration proceeding, an award may be entered
against such party notwithstanding said failure to appear. Any arbitration
award shall be enforceable by any court of competent
jurisdiction.
D.
Notwithstanding the foregoing, any claim relating to the validity of any
Confidential Information or any other proprietary technology or intellectual
property shall not be determined by arbitration, but only by a Federal District
Court located in New York City, New York. We also agree that any breach of
the obligations under this Agreement which relates to proprietary rights or
Confidential Information or which is otherwise not subject to remedy by monetary
damages that will cause irreparable harm will be entitled to injunctive relief
in addition to all other remedies provided in this Agreement or available at
law, in any court of competent jurisdiction.
E.
Each of us will be responsible for our own legal fees and Company will pay for
the actual cost of arbitration.
F.
We both agree that any claim for arbitration must be submitted to arbitration
within the earlier of 12 months of termination of the termination date of
employment or 12 months from the date of discovery. Any claim submitted
beyond this period we agree is void.
G.
Employee agrees that the provisions of this Paragraph will apply if Employee has
any dispute with any current or former Company employee or board member relating
directly or indirectly to Employee’s employment with the Company.
H.
This Paragraph will survive termination of this
Agreement.
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12.
Confidentiality
A.
Employee acknowledges the private and confidential nature of the Confidential
Information Employee has already been exposed to and will be exposed to in the
future.
B.
For purposes of this Agreement, the term “Confidential
Information“ means business information of any kind of Company or any
organization under common ownership or affiliated with Company.
Confidential Information includes all Derivatives that were previously furnished
or may be furnished to Employee in the future. Confidential Information
may be furnished orally, visually, in writing, electronically, in tangible or
intangible form. It includes but is not limited to existing or
potential patents, copyrights, trade secrets, proprietary information, business
plans, financial information, techniques, schematics, blueprints, records,
prototypes, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, software programs, source documents, formulae,
methods, data, descriptions relating to current, future, and proposed products
and services, information concerning research, experimental work, development,
design details, specifications, engineering, procurement requirements,
purchasing, manufacturing, lists of current and potential customers, agents and
suppliers, business forecasts, sales and merchandising, and marketing
plans. Confidential Information of any third party who may disclose it to
Company is also included in the basic definition. Confidential Information does
not include information Employee legally knows at the time of disclosure,
information that is publicly available, information that becomes available on a
non-confidential basis from a person not known by it to be bound by a
confidentiality agreement or who is not prohibited contractually or otherwise
from transmitting the information.
C.
The term “Derivative” referred
to above means (a) for copyrightable or copyrighted material, any translation,
abridgement, revision or other form in which an existing work may be recast,
transformed or adapted; (b) for patentable or patented material, any
improvement; and (c) for material protected by trade secret, any new material
derived there from, including new items protect-able under copyright, patent
and/or trade secret laws.
D.
Employee agrees that, without express written authorization from Company,
Employee will not, either during or following the term of this arrangement,
directly or indirectly, disclose to any person other than the authorized agents
or employees of Company as the case may be with respect to the source of the
Confidential Information or use or convey to another for use, any Confidential
Information.
E. These
confidentiality requirements including the payment of penalties shall survive
termination of all of the provisions contained in this Agreement and continue in
effect as long as any information remains Confidential
Information.
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13.
Proprietary Rights and
Inventions
A.
Employee will be providing Employee’s services under the provisions of this
Agreement on a “Work for Hire” basis. Company will have all rights of
ownership in all deliverables all other works developed or resulting from
services Employee has already provided to Company or will provide to Company in
the future provided the underlying intellectual property relates directly or
indirectly to the Company. This includes by way of example and not limitation
any creation that can be characterized as something that can be protected by a
patent, a copyright, a trademark or a trade secret. We acknowledge that
customer lists and customer prospects developed for the Company as well as the
formula or methodology would be trade secrets of the Company. Employee
will assign Employee’s worldwide right, title and interest in and to any and all
creations, deliverables, modifications, enhancements, improvements, and
derivative works to the Company or its assignee. If any rights are not
assignable for any reason, then Employee agrees to grant the Company or its
assignee a worldwide, perpetual, unrestricted, royalty-free, fully paid up,
exclusive license, including the right to grant and authorize sublicenses, under
all patent rights, copyrights, trade secrets and other intellectual property
rights in or to the non-assignable subject matter to make, have made, use, sell,
offer for sale, and import any and all products, services or components;
practice any method or process; copy, modify, have modified, create and have
created derivative works of the non-assignable subject matter; publicly display
and distribute the non-assignable subject matter and any modifications or
derivative works thereof; and otherwise exploit the non-assignable subject
matter for any and all purposes. This Article will survive
termination.
B.
In connection with the services Employee will provide to Company Employee agrees
not use the Confidential Information of any third party without their written
consent.
E. To
the extent Company seeks to protect any intellectual property by obtaining,
patents, copyrights, trademarks, service xxxx protection or simply protecting
intellectual property as a trade secret, Employee agrees to fully cooperate with
Company and its agents even if Employee is no longer employed by
Company.
14.
Insurance. Upon
the Closing, the CFO is authorized and shall endeavor to cause the
Company to provide directors and officers liability insurance coverage for
Employee acting in his capacity as an officer of the Company and/or any of its
Affiliates. Such insurance shall be at least similar or more
protective of Employee compared to companies that are similarly situated to the
Company.
15.
Restrictions of
Competitive Activities
A.
We agree that Company and Company employees, consultants, clients, customers and
vendors are valuable assets and are difficult to replace. While the
provisions of this Agreement are in effect and for a period of 24 months after
termination, Employee agrees that Employee will not directly or indirectly
solicit services or employment or in any manner persuade any employees,
consultants, vendors or customers of Company or its parent company from
discontinuing that person or entity’s relationship with the Company as an
employee, contractor, vendor or customer.
B.
Employee also agrees that while the provisions of this Agreement are
in effect and for the 12 month period thereafter, Employee will not make any
disparaging comments about, the Company, or former employee, and contractor,
officer, manger, director of such entities or services or products of such
entities.
D.
Notwithstanding the foregoing, Employee may own, directly or in directly, solely
as an investment, up to five percent (5%) of any class of Publicly Traded
Securities of any person or entity which owns a competitive business. For
the purposes of this Agreement, the term "Publicly Traded
Securities" shall mean securities that are traded on a national
securities exchange or listed on the National Association of Securities Dealers
Automated Quotation System
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E.
Non-disparagement.
The Parties acknowledge the importance of maintaining the privacy of Company and
all individuals who have, will have or have had any relationship with such
organizations as a current or former employee, independent contractor, officer
or director or manager of such entities (the “Privacy
Group”). For a period of 24 months after Termination, Employee with
not disparagement the Privacy Group in in connection with interviews, books and
articles appearing in media, or participation on a xxxxxxx xxxxxxxxxx show where
any details other than the length of Employee’s employment and job title are
discussed. Employee agrees to pay all actual damages as well as all
costs Company may incur without limitation in connection with any investigation
related to Employee’s violation of this provision if Employee violates this
provision of this Agreement . Moreover, we both agree that the limitations
and restrictions contained in this subparagraph are part of the bargained for
exchange and are reflected in the consideration of both us under this
Agreement.
F.
This Paragraph will survive termination of this Agreement.
16.
Severability
If a
court or arbitrator finds any provision of this Agreement unenforceable, the
remainder of the Agreement will be unimpaired. Any unenforceable
provisions determined after all appeals are completed, will he replaced by a
mutually acceptable provision that comes closest to the intention at the time
the original provision was agreed upon.
17.
Waiver
Failure
at any time to require strict performance will not waive or diminish rights
thereafter to demand strict compliance. Waiver of any default will not
waive any other or similar default.
18. Notice
Any
notice given under this Agreement shall be in writing and delivered
personally. Written notice shall be sent via next-day delivery or
facsimile and by registered or certified mail, postage prepaid, return receipt
requested. All notices shall be effective when first received at the
following addresses except that any notice of change of address will be deemed
effective only upon receipt by the party to whom it is directed:
If
to Company:
Xx. Xxxx
X. Xxxxxxx
Iron
Eagle Group
000 Xxxx
00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx,
XX 00000
With
a copy to:
Xxxxxxxx
Xxxxxxx, Esq.
Xxxxxxx
Xxxxxx & Xxxx
000 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
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If
to Employee:
Xx. Xxxxx
X. Xxxxxxx
00 Xxxx
00xx
Xxxxxx, Xxx. 00X
XX, XX
00000
19. Facsimiles and
Counterparts
Facsimile
signatures will be treated as original signatures. Employee and Company
acknowledge that there may be two or more executed copies of this
Agreement. Accordingly, Employee and Company each agree to treat each such
copy as if it were the sole original.
The
undersigned on behalf of themselves or on behalf of the party represent agree to
all of the terms and conditions set out in this Agreement of eleven (11) pages
including this acknowledgement pages. In the case of a representative
party, they acknowledge they are authorized to execute this Agreement and bind
their party. The undersigned acknowledge that they have had an opportunity
to review the contents of this Agreement and discuss any questions they may
have. The undersigned further represent that they are signing below
voluntarily.
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IN
WITNESS WHEREOF, the parties have the authority and have caused this Agreement
to be executed as of the day and year first written above.
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By:
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Xxxxx
X. Xxxxxxx, an individual
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Date:
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IN
WITNESS WHEREOF, the parties have the authority and have caused this Agreement
to be executed as of the day and year first written above.
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Iron
Eagle Group
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By:
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Name: Xxxx
X. Xxxxxxx
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Title: Founder
and Owner of Iron Eagle Group
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Date:
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Belle
Haven Partners, LLC
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By:
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Name: Xxxx
X. Xxxxxxx
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Title: President
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Date:
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