EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective the 1st day of July, 1996
by and among Gateway Energy Corporation, a Delaware corporation, ("Company") and
Xxxxxx X. Xxxxxxxx ("Employee").
WITNESSETH
WHEREAS, the Company and Pipeline Capital, Inc., and each of its
stockholders, ("PCI") have entered into a Settlement and Purchase Agreement
dated May 6, 1996 to settle and resolve all differences between them; and
WHEREAS, the Settlement and Purchase Agreement contemplates that Employee
will be employed by the Company on the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EMPLOYMENT. Company and Employee agree that Employee's employment
with Company shall be governed by the terms and conditions of this Agreement.
During the term of this Agreement, Employee shall serve as Vice-President -
Shareholder Relations. Employee shall perform such duties and exercise such
powers pertaining to his office as may be determined from time to time by the
President or Chief Executive Officer of the Company, provided such duties and
powers shall be consistent with those normally expected of persons holding
similar positions. Employee's duties are subject to reasonable modifications
based on future developments in the Company's business.
2. TERM. The term of employment of Employee by Company under this
Agreement shall be from the effective date of this Agreement until July 1, 2000,
unless otherwise terminated pursuant to Section 7 below.
3. COMPENSATION. In return for his services to the Company pursuant to
this Agreement, Employee shall receive compensation equal to $6,000 per month
for the term of this Agreement. Company shall deduct and withhold from all
compensation payable hereunder withholding and other applicable taxes in the
manner provided by law.
4. EXTENT OF SERVICES. Employee shall devote his entire time, attention
and best efforts to the business of the Company. During the term of this
Agreement, Employee shall not enter into employment with any other person or
engage in any other business activity without the prior written consent of the
Board of Directors of the Company.
5. WORKING FACILITY. Employee will perform his services hereunder in
Palm Desert, California unless otherwise agreed by both parties to this
Agreement.
6. BENEFITS. Employee shall be entitled to participate on substantially
the same terms as the other management level employees of the Company in group
insurance, retirement plans and other benefit programs established by the
Company in accordance with the personnel policies and benefit programs as
established by the Company from time to time during the term of Employee's
employment. Employee's participation under any group insurance programs,
retirement plans or other benefit programs shall be subject to the applicable
terms and conditions of the same. This paragraph shall not be construed as a
commitment on the part of the Company to establish, maintain or continue any
such plans or programs.
7. TERMINATION OF EMPLOYMENT. The employment of Employee by the Company
shall terminate upon the occurrence of any of the following events:
a. Employee's employment shall terminate automatically on the death of
Employee.
b. Employee's employment shall terminate upon the disability of Employee.
"Disability" shall mean a physical or mental condition of Employee
resulting form bodily injury, disease or mental disorder which renders
him incapable of continuing his usual and customary employment with
the Company for the foreseeable future. Disability shall be
determined by a majority vote of a panel of three (3) licensed
physicians with one chosen by the Company, one chosen by the Employee,
and one chosen by the other two physicians. Said Disability shall be
deemed effective immediately upon the rendering of said majority vote.
c. Employee's employment shall terminate upon the occurrence of the sale
of all or substantially all of the assets of the Company; the merger
of the Company with another company, a majority or more of the stock
of which after the merger is not owned by the then current
stockholders of the Company; or the sale or transfer by the then
current stockholders of the Company of more than a majority of the
common stock of the Company owned by them to a third party.
d. Company may terminate Employee's employment immediately for "good
cause" which shall be limited to the following circumstances:
(i) the willful and continued failure by the Employee to
substantially perform the duties required under this
Agreement (other than any failure resulting from an illness
or other similar incapacity or Disability) for a period of
thirty (30) days after written demand for performance is
delivered to Employee on behalf of the Board of Directors of
the Company which specifically identifies the manner in
which it is alleged that the Employee has not substantially
performed his duties;
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(ii) the engaging by the Employee of misappropriation of funds,
properties or assets of the Company, sexual harassment of
employees of the Company, chronic alcoholism or drug
addiction, slander or liable concerning the Company, or a
material tort relating to his office or employment with the
Company which has a material or adverse effect on the
Company;
(iii) Employee's conviction of a crime constituting a felony; or
(iv) if Employee acts in bad faith or with negligence or willful
disregard to his duties or contrary to established
employment policies of the Company or if Employee commits an
act or acts of fraud.
8. PAYMENTS ON TERMINATION.
a. Upon termination of Employee's employment pursuant to Section 7(a),
(b) or (c), the Company shall pay to Employee, or if the termination
is as a result of the death of the Employee to his personal
representative, termination pay as follows:
(i) Employee shall receive compensation equal to all remaining
salary due to the Employee under the terms of this
Agreement, reduced to present value, at a discount rate
equal to 8%;
(ii) Employee shall receive any bonuses declared by the Board of
Directors with respect to Employee's services prior to the
effective date of termination, but unpaid as of such date;
(iii) Employee shall receive any incentive compensation, deferred
compensation or similar payments to which Employee is
entitled under the terms of any plan, arrangement or policy
established by the Company and relating to such
compensation.
b. Upon termination of Employee's employment pursuant to Section 7(d),
the Company shall pay to Employee termination pay as follows:
(i) Employee shall receive compensation equal to the pro rata
portion of his monthly salary due to Employee on the date of
termination;
(ii) Employee shall receive any bonuses declared by the Board of
Directors with respect to Employee's services prior to the
effective date of termination, but unpaid as of such date;
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(iii) Employee shall receive any incentive compensation, deferred
compensation or similar payments to which Employee is
entitled under the terms of any plan, arrangement or policy
established by the Company and relating to such
compensation.
The payments under Section 8 shall be paid by the Company within thirty
(30) days of the effective date of termination of employment. Any payments
due under subparagraph a(iii) or b(iii) above, shall be paid in the manner
and in accordance with the terms of any such plan, arrangement or policy.
9. APPLICABLE LAW. The validity and construction of this Agreement or
any of its provisions shall be governed by and determined in accordance with
the laws of the State of Nebraska.
10. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written
agreements or understandings between them relating to the Employee's
employment. No modification or addition hereto or waiver or cancellation of
any provision herein shall be valid except by a writing signed by the party
to be charged therewith.
11. NON-WAIVER. No delay or failure by either party to exercise any
right under this Agreement and no partial or single exercise or waiver of that
right shall constitute a waiver of that or any other or future right.
12. NOTICES. Any notices to be delivered under this Agreement shall be
given in writing and delivered, personally, via telefax or similar electronic
transmission, or by certified mail, postage prepaid, addressed to the Company
or to the Employee at their last known address. Any such notice shall be
deemed given when actually received by the party to whom the same is directed.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and there heirs, personal
representatives, successors and assigns; provided, however, in no event may
Employee assign any of his duties or obligations under this Agreement.
14. HEADINGS. The headings herein are inserted only as a matter of
convenience and reference and in no way define, limit, or describe the scope of
this Agreement or the intent of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
May 6, 1996, to be effective July 1, 1996.
GATEWAY ENERGY CORPORATION, a
Delaware Corporation
By:
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Its
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Xxxxxx X. Xxxxxxxx
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