EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made, entered into and
effective as of September 20, 2006 (the "Effective Date"), between Alternative
Energy Sources, Inc. (the "Company"), and Xx. Xxxx X. Xxxx, an individual (the
"Executive").
WHEREAS, the Company and the Executive wish to memorialize the terms and
conditions of the Executive's employment by the Company in the positions of
Executive Vice President and Director of Operations;
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the Company and the Executive agree as follows:
1. Employment Period. The Company offers to employ the Executive, and the
Executive agrees to be employed by Company, in accordance with the terms and
subject to the conditions of this Agreement, commencing on the Effective Date
and terminating on the fourth anniversary of the Effective Date (the "Scheduled
Termination Date"), unless terminated in accordance with the provisions of
Section 12 below, in which case the provisions of Section 12 shall control;
provided, however, that unless either party provides the other party with
written notice of his or its intention not to renew this Agreement at least 90
days prior to the expiration of the initial term or any renewal term of this
Agreement (as the case may be), this Agreement shall automatically renew for
additional one-year periods commencing on the day after such expiration date.
The Executive affirms that no obligation exists between the Executive and any
other entity which would prevent or impede the Executive's immediate and full
performance of every obligation of this Agreement.
2. Position and Duties. During the term of the Executive's employment
hereunder, the Executive shall continue to serve in, and assume duties and
responsibilities consistent with, the positions of Executive Vice President and
Director of Operations, unless and until otherwise instructed by the Company.
The Executive agrees to devote to the Company substantially all of his working
time, skill, energy and best business efforts during the term of his employment
with the Company, and the Executive shall not engage in business activities
outside the scope of his employment with the Company if such activities would
detract from or interfere with his ability to fulfill his responsibilities and
duties under this Agreement or require substantial amounts of his time or of his
services.
3. No Conflicts. The Executive covenants and agrees that for so long as he
is employed by the Company, he shall inform the Company of each and every future
business opportunity presented to the Executive that arises within the scope of
the Business of the Company (as defined below) and would be feasible for the
Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours of Work. The Executive's normal days and hours of work shall
coincide with the Company's regular business hours. The nature of the
Executive's employment with the Company requires flexibility in the days and
hours that the Executive must work, and may necessitate that the Executive work
on other or additional days and hours.
5. Location. The locus of the Executive's employment with the Company
shall be the Company's office located in Kansas City, Missouri and any other
locus where the Company now or hereafter has a business facility and, during the
first year of the initial term hereof, Executive will be operating primarily in
Ireland.
6. Compensation.
(a) Base Salary. During the term of this Agreement, the Company shall pay,
and the Executive agrees to accept, in consideration for the Executive's
services hereunder, pro rata bi-weekly payments of the annual salary of
$180,000.00, less all applicable taxes and other appropriate deductions, taking
into account Irish tax laws.
(i) Upon successful completion of financing in such amount as is
sufficient, in the opinion of the Company's Board of Directors (the "Board"), to
enable the Company to finance the acquisition or construction of the Company's
initial operating facility (the "Initial Facility"), the Executive's annual base
salary shall be increased to $260,000.00.
The Compensation Committee (the "Compensation Committee") of the Board
shall also review the Executive's base salary annually and shall make a
recommendation to the Board as to whether such base salary should be increased,
which decision shall be within the Board's sole discretion.
(b) Annual Bonus. During the term of this Agreement, the Executive shall
be entitled to an annual bonus of up to 100% of his base salary at such time as
the Initial Facility becomes operational, the actual amount of which bonus shall
be determined according to achievement of performance-related financial and
operating targets established annually for the Company and the Executive by the
Compensation Committee (or by the independent members of the Board if there
exists no Compensation Committee). Such performance targets for each fiscal year
shall be adopted by the Compensation Committee promptly after the end of the
prior fiscal year, but in no event later than March 31st of the current fiscal
year (except for fiscal year 2006, the performance targets for which are annexed
to this Agreement as Exhibit A. Each annual bonus shall be paid by the Company
to the Executive promptly after the first meeting of the Board following the
completion of the annual audit, which meeting shall occur on or about April 15th
of each year.
7. Expenses. During the term of this Agreement, the Executive shall be
entitled to payment or reimbursement of any reasonable expenses paid or incurred
by him in connection with and related to the performance of his duties and
responsibilities hereunder for the Company. All requests by the Executive for
payment of reimbursement of such expenses shall be supported by appropriate
invoices, vouchers, receipts or such other supporting documentation in such form
and containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said expenses. Without
limiting the foregoing, (i) the Company shall pay the costs associated with, (A)
Executive's obtaining a U.S. H-1B Visa, including legal fees; (B) preparation of
Executive's US and foreign tax returns; (C) Executive's relocation to the United
States; (D) Executive's housing in the United States during the first six (6)
months of the initial term hereof; (E) following Executive's full-time
relocation to the United States, Company will provide a Company car for
Executive's business use, and (ii) the Executive shall be entitled to
reimbursement for certain personal travel expenses as annexed to this Agreement
as Exhibit B.
8. Vacation. During the term of this Agreement, the Executive shall be
entitled to accrue, on a pro rata basis, 25 vacation days, per year. The
Executive shall be entitled to carry over any accrued, unused vacation days from
year to year without limitation.
9. Intentionally deleted.
10. Stock Options. The Company hereby agrees that the Executive shall be
granted a non-qualified stock option on the terms and conditions hereinafter
stated:
(a) Grant of Options. On the Effective Date, the Company will grant
the Executive an option to purchase an aggregate of 400,000 shares of the
Company's common voting stock (the "Option") under the Company's 2006 Stock
Option Plan (the "Stock Option Plan"). Such grant shall be evidenced by an
Option Agreement as contemplated by the Stock Option Plan. In subsequent years
the Executive shall be eligible for such grants of Options and other permissible
awards (collectively with Options, "Awards") under the Stock Option Plan as the
Compensation Committee or the Board shall determine.
(b) Option Price; Term. The per share exercise price of the Option
shall be the market price at the close of business on the date the Option
Agreement is executed, which represents the fair market value per share of
Company common voting stock on the Effective Date. The term of the Option shall
be ten years from the date of grant.
(c) Vesting and Exercise. One fourth (25%) of the Option shall be
vested and exercisable on the first anniversary of the grant of the Option, an
additional one fourth (25%) of the Option shall be vested and become exercisable
on the second anniversary of the grant of the Option, an additional one fourth
(25%) of the Option shall be vested and become exercisable on the third
anniversary of the grant of the Option and the remaining one fourth (25%) of the
Options shall be vested and become exercisable on the fourth anniversary of the
grant of the Option notwithstanding that either party may have provided a Notice
of Nonrenewal of this Agreement in accordance with the provisions of Sec. 1
hereof.
(d) Termination of Service; Accelerated Vesting.
(i) If the Executive's employment is terminated for Cause, as
such term is defined below, all Awards, whether or not vested, shall immediately
expire effective the date of termination of employment.
(ii) If the Executive's employment is terminated voluntarily
by the Executive without Good Reason, as such term is defined below, all
unvested Awards shall immediately expire effective the date of termination of
employment. Vested Awards, to the extent unexercised, shall expire one month
after the termination of employment.
(iii) If the Executive's employment terminates on account of
death or Disability, as defined below, or on account of Executive's inability to
obtain an H-1B Visa as provided by Section 12(c) below, all unvested Awards
shall immediately expire effective the date of termination of employment. Vested
Awards, to the extent unexercised, shall expire one year after the termination
of employment.
(iv) If the Executive's employment is terminated (A) in
connection with a Change of Control, as defined below. or (B) by the Executive
for Good Reason, all unvested Awards shall immediately vest and become
exercisable effective the date of termination of employment, and, to the extent
unexercised, shall expire one year after any such event.
(e) Payment. The full consideration for any shares purchased by the
Executive upon exercise of the Option shall be paid in cash.
11. Other Benefits.
(a) During the term of this Agreement, the Executive shall be eligible to
participate in incentive, savings, retirement (401(k)), and welfare benefit
plans, including, without limitation, health, medical, dental, vision, life
(including accidental death and dismemberment) and disability insurance plans
(collectively, "Benefit Plans"), in substantially the same manner, including but
not limited to responsibility for the cost thereof, and at substantially the
same levels, as the Company makes such opportunities available to all of the
Company's managerial or salaried executive employees.
(b) The Executive's spouse and dependent minor children will be covered
under the Benefit Plans providing health, medical, dental, and vision benefits,
in substantially the same manner, including but not limited to responsibility
for the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses and dependent minor children to all
of the Company's managerial or salaried executive employees.
(c) The Company shall purchase and maintain traditional directors and
officers liability insurance coverage in the amount of at least $5,000,000
covering the Company's officers and directors, including the Executive, as soon
as practicable after the Effective Date, but in no event later than 30 days
following the Effective Date, provided such coverage is available on
commercially reasonable terms.
(d) Until such time as Executive becomes covered by Company medical
coverage, the Company shall pay the cost of COBRA coverage provided by
Executive's prior employer, to the same extent as such coverage was paid for by
such prior employer.
12. Termination of Employment.
(a) Death. In the event that during the term of this Agreement the
Executive dies, this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executor's heirs, administrators or executors any earned
but unpaid base salary, unpaid pro rata annual bonus and unused vacation days
accrued through the date of death; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement. The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions, taking into account, Irish tax laws.
(b) "Disability." In the event that, during the term of this Agreement the
Executive shall be prevented from performing his duties and responsibilities
hereunder to the full extent required by the Company by reason of Disability (as
defined below) this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executive or his heirs, administrators or executors any
earned but unpaid base salary, unpaid pro rata annual bonus and unused vacation
days accrued through the Executive's last date of Employment with the Company;
provided, that nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement including any failure
to maintain the long-term disability insurance coverage required pursuant to
Section 10(b)(iv). The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions through the last date of the Executive's employment with the Company.
For purposes of this Agreement, "Disability" shall mean a physical or mental
disability which affects major life activity and which prevents the performance
by the Executive, with reasonable accommodation, of his significant duties and
responsibilities hereunder for a period of not less than an aggregate of three
months during any twelve consecutive months, provided however, that such period
shall not include any leave granted under the Americans With Disabilities Act or
the Family and Medical Leave Act.
(c) H-1B Visa. Executive shall use his best efforts to obtain an H-1B Visa
effective through the term of this Agreement. If Executive is unable to obtain
such visa by July 1 2007, this Agreement and the Executive's employment with the
Company may, at the option of the Company, be terminated on thirty (30) days'
notice, and if so terminated the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executive or his heirs, administrators or executors any
earned but unpaid base salary, unpaid pro rata annual bonus and unused vacation
days accrued through the Executive's last date of Employment with the Company;
provided, that nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement.
If this Agreement is renewed beyond its initial term, Company shall, upon
the request of Executive thereafter, pay the cost, including legal fees, for
Executive to apply for a U.S. Green Card.
(d) "Cause."
(i) At any time during the term of this Agreement, the Company may
terminate this Agreement and the Executive's employment hereunder for "Cause."
For purposes of this Agreement, "Cause" shall be defined as the occurrence of:
(A) intentional gross neglect, malfeasance or gross insubordination in
performing the Executive's duties under this Agreement; (B) the Executive's
conviction for a felony, excluding convictions associated with traffic
violations; (C) an egregious act of dishonesty (including without limitation
theft or embezzlement) or a malicious action by the Executive toward the
Company's customers or employees; (D) a willful and material violation of any
provision of Sections 13 and 14 hereof; (E) intentional reckless conduct that is
materially detrimental to the business or reputation of the Company; or (F)
material failure, other than by reason of Disability, to carry out reasonably
assigned duties or instructions consistent with the titles of Executive Vice
President and Director of Operations (provided that material failure to carry
out reasonably assigned duties shall be deemed to constitute Cause only after a
finding by the Board of Directors, or a duly constituted committee thereof, of
material failure on the part of the Executive and the failure to remedy such
performance to the Board's or the committee's satisfaction within 30 days after
delivery of written notice to the Executive of such finding).
(ii) Upon termination of this Agreement for Cause, the Company shall
have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but unpaid
base salary, unpaid pro rata annual bonus and unused vacation days accrued
through the Executive's last day of employment with the Company. The Company
shall deduct, from all payments made hereunder, all applicable taxes, including
income tax, FICA and FUTA, and other appropriate deductions.
(e) Change of Control. For purposes of this Agreement, "Change of Control"
means the occurrence of, or the Company's Board votes to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders of the
Company immediately before the transaction do not retain immediately after the
transaction, in substantially the same proportions as their ownership of shares
of the Company's voting stock immediately before the transaction, direct or
indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business entity; (B)
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than 50% of the voting stock of the Company.
(f) "Good Reason."
(i) At any time during the term of this Agreement, subject to the
conditions set forth in Section 12(f)(ii) below, the Executive may terminate
this Agreement and the Executive's employment with the Company for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean the occurrence
of any of the following events: (A) the assignment, without the Executive's
consent, to the Executive of duties that are significantly different from, and
that result in a substantial diminution of, the duties that he assumed on the
Effective Date; (B) the assignment, without the Executive's consent, to the
Executive of a title that is different from and subordinate to the title
specified in Section 2 above, provided, however, that the retention of another
executive as Executive Vice President and Director of Operations shall not, in
and of itself, entitle the Executive to claim a termination for Good reason
hereunder; (C) any termination of the Executive's employment by the Company,
other than a termination for Cause, within 12 months after a Change of Control;
(D) the assignment, without the Executive's consent, to the Executive of duties
that are significantly different from, and that result in a substantial
diminution of, the duties that he assumed on the Effective Date within 12 months
after a Change of Control; or (E) material breach by the Company of this
Agreement which adversely impacts Executive's pay, benefits, working conditions
or duties.
(ii) The Executive shall not be entitled to terminate his employment
with the Company and this Agreement for Good Reason unless and until he shall
have delivered written notice to the Company of his intention to terminate this
Agreement and his employment with the Company for Good Reason, which notice
specifies in reasonable detail the circumstances claimed to provide the basis
for such termination for Good Reason, and the Company shall not have eliminated
the circumstances constituting Good Reason within 60 days of its receipt from
the Executive of such written notice.
(iii) In the event that the Executive terminates this Agreement and
his employment with the Company for Good Reason, the Company shall pay or
provide to the Executive (or, following his death, to the Executive's heirs,
administrators or executors): (A) any earned but unpaid base salary, unpaid pro
rata annual bonus and unused vacation days accrued through the Executive's last
day of employment with the Company; (B) the Executive's full base salary through
the Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the value of vacation days that the Executive
would have accrued through the Scheduled Termination Date; (D) continued
coverage, at the Company's expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or, in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and (E) severance in an amount
equal to one year's base salary, as in effect immediately prior to the
Executive's termination hereunder. All payments due hereunder shall be made
within 45 days after the date of termination of the Executive's employment. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
(iv) The Executive shall have no duty to mitigate his damages,
except that continued benefits required to be provided under Section
12(f)(iii)(D) shall be canceled or reduced to the extent of any comparable
benefit coverage offered to the Executive during the period prior to the
Scheduled Termination Date by a subsequent employer or other person or entity
for which the Executive performs services, including but not limited to
consulting services.
13. Confidential Information.
(a) The Executive expressly acknowledges that, in the performance of his
duties and responsibilities with the Company, he has been exposed since prior to
the Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers ("Confidential
Information"). The term "Confidential Information" includes information or
material that has actual or potential commercial value to the Company, its
affiliates and/or its clients, business partners or customers and is not
generally known to and is not readily ascertainable by proper means to persons
outside the Company, its affiliates and/or its clients or customers.
(b) Except as authorized in writing by the Board, during the performance
of the Executive's duties and responsibilities for the Company and until such
time as any such Confidential Information becomes generally known to and readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients, business partners or customers, the Executive agrees to keep
strictly confidential and not use for his personal benefit or the benefit to any
other person or entity (other than the Company) the Confidential Information.
"Confidential Information" includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked "trade secret" or "confidential" or any similar legend:
(i) lists of and/or information concerning customers, prospective customers,
suppliers, employees, consultants, co-venturers and/or joint venture candidates
of the Company, its affiliates or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees, consultants
and/or co-venturers of the Company, its affiliates and/or its clients or
customers; (iii) non-public information proprietary to the Company, its
affiliates and/or its clients or customers, including, without limitation, cost
information, profits, sales information, prices, accounting, unpublished
financial information, business plans or proposals, expansion plans (for current
and proposed facilities), markets and marketing methods, advertising and
marketing strategies, administrative procedures and manuals, the terms and
conditions of the Company's contracts and trademarks and patents under
consideration, distribution channels, franchises, investors, sponsors and
advertisers; (iv) proprietary technical information concerning products and
services of the Company, its affiliates and/or its clients, business partners or
customers, including, without limitation, product data and specifications,
diagrams, flow charts, know how, processes, designs, formulae, inventions and
product development; (v) lists of and/or information concerning applicants,
candidates or other prospects for employment, independent contractor or
consultant positions at or with any actual or prospective customer or client of
Company and/or its affiliates, any and all confidential processes, inventions or
methods of conducting business of the Company, its affiliates and/or its
clients, business partners or customers; (vi) acquisition or merger targets;
(vii) business plans or strategies, data, records, financial information or
other trade secrets concerning the actual or contemplated business, strategic
alliances, policies or operations of the Company or its affiliates; or (viii)
any and all versions of proprietary computer software (including source and
object code), hardware, firmware, code, discs, tapes, data listings and
documentation of the Company; or (ix any other confidential information
disclosed to the Executive by, or which the Executive obligated under a duty of
confidence from, the Company, its affiliates, and/or its clients, business
partners or customers.
(c) The Executive affirms that he does not possess and will not rely upon
the protected trade secrets or confidential or proprietary information of his
prior employer(s) in providing services to the Company.
(d) In the event that the Executive's employment with the Company
terminates for any reason, the Executive shall deliver forthwith to the Company
any and all originals and copies of Confidential Information.
14. Non-Competition And Non-Solicitation.
(a) The Executive agrees and acknowledges that the Confidential
Information that the Executive has already received and will receive is valuable
to the Company and that its protection and maintenance constitutes a legitimate
business interest of the Company, to be protected by the non-competition
restrictions set forth herein. The Executive agrees and acknowledges that the
non-competition restrictions set forth herein are reasonable and necessary and
do not impose undue hardship or burdens on the Executive. The Executive also
acknowledges that the products and services developed or provided by the
Company, its affiliates and/or its clients or customers are or are intended to
be sold, provided, licensed and/or distributed to customers and clients
throughout North America (the "Geographic Boundary") and that the Geographic
Boundary, scope of prohibited competition, and time duration set forth in the
non-competition restrictions set forth below are reasonable and necessary to
maintain the value of the Confidential Information of, and to protect the
goodwill and other legitimate business interests of, the Company, its affiliates
and/or its clients or customers.
(b) The Executive hereby agrees and covenants that he shall not, without
the prior written consent of the Company, directly or indirectly, in any
capacity whatsoever, including, without limitation, as an employee, employer,
consultant, principal, partner, shareholder, officer, director or any other
individual or representative capacity (other than a holder of less than one
percent (5%) of the outstanding voting shares of any publicly held company), or
whether on the Executive's own behalf or on behalf of any other person or entity
or otherwise howsoever, during the Executive's employment with the Company and
for a period equal to the greater of (i) one year following the termination of
this Agreement or of the Executive's employment with the Company or (ii) the
period during which the Executive continues to receive his base salary pursuant
to Sections 12(f) of this Agreement following the termination of this Agreement
and of the Executive's employment, in the Geographic Boundary:
(i) Engage, own, manage, operate, control, be employed by, consult
for, participate in, or be connected in any manner with the ownership,
management, operation or control of any business in competition with the
Business of the Company. The "Business of the Company" is defined as the
development and production of ethanol and other alternatives to petroleum-based
fuels within the Geographic Boundary.
(ii) Recruit, solicit or hire, or attempt to recruit, solicit or
hire, any employee, or independent contractor of the Company to leave the
employment (or independent contractor relationship) thereof, whether or not any
such employee or independent contractor is party to an employment agreement.
(iii) Attempt in any manner to solicit or accept from any customer
of the Company, with whom the Executive had significant contact during the term
of the Agreement, business of the kind or competitive with the business done by
the Company with such customer or to persuade or attempt to persuade any such
customer to cease to do business or to reduce the amount of business which such
customer has customarily done or is reasonably expected to do with the Company,
or if any such customer elects to move its business to a person other than the
Company, provide any services (of the kind or competitive with the Business of
the Company) for such customer, or have any discussions regarding any such
service with such customer, on behalf of such other person.
(iv) Interfere with any relationship, contractual or otherwise,
between the Company and any other party, including; without limitation, any
supplier, co-venturer or joint venturer of the Company to discontinue or reduce
its business with the Company or otherwise interfere in any way with the
Business of the Company.
15. Dispute Resolution. The Executive and the Company agree that any
dispute or claim, whether based on contract, tort, discrimination, retaliation,
or otherwise, relating to, arising from, or connected in any manner with this
Agreement or with the Executive's employment with Company shall be resolved
exclusively through final and binding arbitration. The arbitration shall be held
in Kansas City, Missouri. The arbitration shall be conducted by one arbitrator.
If the parties are unable to agree upon an arbitrator within 10 days, each party
shall select an arbitrator within 5 days thereafter and those two arbitrators
shall, within 15 days after the second of them is selected , select someone to
act as the sole arbitrator. The arbitrator shall have jurisdiction to determine
any claim, including the arbitrability of any claim.The arbitrator shall be
bound by any judicial decisions of the United States Court of Appeals for the
Eighth Circuit and any statutes and common law decisions applicable in and to
the Eighth Circuit. The arbitrator may grant any relief authorized by law for
any properly established claim. The interpretation and enforceability of this
paragraph of this Agreement shall be governed and construed in accordance with
the United States Federal Arbitration Act, 9. U.S.C. ss. 1, et seq. More
specifically, the parties agree to submit to binding arbitration any claims for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, and any other federal, state, or local law,
regulation, or ordinance, and any common law claims, claims for breach of
contract, or claims for declaratory relief. The Executive acknowledges that the
purpose and effect of this paragraph is solely to elect private arbitration in
lieu of any judicial proceeding he might otherwise have available to him in the
event of an employment-related dispute between him and the Company. Therefore,
the Executive hereby waives his right to have any such employment-related
dispute heard by a court or jury, as the case may be, and agrees that his
exclusive procedure to redress any employment-related claims will be
arbitration.
16. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall be in
writing and shall be deemed to have been duly given when personally delivered,
delivered by a nationally recognized overnight delivery service or when mailed
United States Certified or registered mail, return receipt requested, postage
prepaid, and addressed as follows:
If to the Company:
Xxxx Xxxxxx, Chief Executive Officer
Alternative Energy Sources, Inc.
000 X. 00xx, 0xx Xxxxx
Xxxxxx Xxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxxx, XX, Esq.
Levy and Xxxxx, P.C.
0000 Xxx Xx.
Xxxxxx Xxxx, XX 00000
If to the Executive:
Xx. Xxxx X. Xxxx Elmbank Church Rd. Carrigaline County Cork, Ireland
17. Miscellaneous.
(a) All issues and disputes concerning, relating to or arising out of this
Agreement and from the Executive's employment by the Company, including, without
limitation, the construction and interpretation of this Agreement, shall be
governed by and construed in accordance with the internal laws of the State of
Missouri, without giving effect to that State's principles of conflicts of law.
(b) The Executive and the Company agree that any provision of this
Agreement deemed unenforceable or invalid may be reformed to permit enforcement
of the objectionable provision to the fullest permissible extent. Any provision
of this Agreement deemed unenforceable after modification shall be deemed
stricken from this Agreement, with the remainder of the Agreement being given
its full force and effect.
(c) Notwithstanding the provisions of Sec. 15 hereof, the Company shall be
entitled to seek equitable relief, including injunctive relief and specific
performance as against the Executive, for the Executive's threatened or actual
breach of Sections 13 or 14 of this Agreement, as money damages for a breach
thereof would be incapable of precise estimation, uncertain, and an insufficient
remedy for an actual or threatened breach of Sections 13 or 14 of this
Agreement. The Executive and the Company agree that any pursuit of equitable
relief in respect of Sections 13 or 14 of this Agreement shall have no effect
whatsoever regarding the continued viability and enforceability of Section 15 of
this Agreement. If Executive substantially prevails in any action by the Company
for equitable relief, Company shall pay Executive's attorney's fees incurred in
any such action.
(d) Any waiver or inaction by the Company for any breach of this Agreement
shall not be deemed a waiver of any subsequent breach of this Agreement.
(e) The Executive and the Company independently have made all inquiries
regarding the qualifications and business affairs of the other which either
party deems necessary. The Executive affirms that he fully understands this
Agreement's meaning and legally binding effect. Each party has participated
fully and equally in the negotiation and drafting of this Agreement. Each party
assumes the risk of any misrepresentation or mistaken understanding or belief
relied upon by him or it in entering into this Agreement.
(f) The Executive's obligations under this Agreement are personal in
nature and may not be assigned by the Executive to any other person or entity.
(g) This instrument constitutes the entire Agreement between the parties
regarding its subject matter. When signed by all parties, this Agreement
supersedes and nullifies all prior or contemporaneous conversations,
negotiations, or agreements, oral and written, regarding the subject matter of
this Agreement. In any future construction of this Agreement, this Agreement
should be given its plain meaning. This Agreement may be amended only by a
writing signed by the Company and the Executive.
(h) This Agreement may be executed in counterparts, a counterpart
transmitted via facsimile, and all executed counterparts, when taken together,
shall constitute sufficient proof of the parties' entry into this Agreement. The
parties agree to execute any further or future documents which may be necessary
to allow the full performance of this Agreement. This Agreement contains
headings for ease of reference. The headings have no independent meaning.
(i) Notwithstanding anything in this Agreement to the contrary, the party
not substantially prevailing in any action or dispute resolution procedure
between the parties shall pay the attorney's fees and costs of the substantially
prevailing party.
(j) THE EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO
THIS AGREEMENT AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION
THEREOF. THIS AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY
BOTH PARTIES.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the day and year first above written.
Executive Alternative Energy Sources, Inc.
___________________________ By:_____________________________
Xx. Xxxx X. Xxxx Name:
Title:
Exhibit A
Annual Performance Targets
[To Be Discussed]
Exhibit B
Personal Travel Expenses
[To Be Discussed]
Company will reimburse Executive for up to five roundtrip business
class airfares for himself and up to six roundtrip coach class airfares
for his family members, between the United States and Ireland.
