EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is effective as
of November 24, 1997, by and between TRANS-WORLD POWERNET, INC., a Florida
corporation ("Company"), and XXXXXXX X. XXXX ("Employee").
WITNESSETH:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Employee is essential to the Company's growth and success;
and
WHEREAS, the Company desires to employ Employee as its President and
Employee desires to accept such employment, all on the terms and conditions as
hereinafter provided; and
WHEREAS, Employee is currently receiving compensation for services
rendered to the Company and/or its subsidiaries.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
1. TERM. The Company hereby employs Employee and Employee hereby
accepts employment by the Company for a period of two (2) years beginning on the
date of this Agreement, subject to the terms and conditions hereafter contained.
This Agreement will be renewed automatically thereafter for successive periods
of two (2) years, unless not less than one hundred twenty (120) days prior to
the end of the then-existing two (2) year period, one of the parties sends
written notice to the other party of its intent to terminate this Agreement
effective at the end of such period.
2. DUTIES. The Company shall continue to employ Employee in an
executive capacity as its President of the Company. Employee shall perform such
duties ordinarily and customarily performed by a similar employee of a
corporation of like type and size as the Company, and shall perform such other
reasonable duties as a senior Company officer as the Board of Directors may
assign to him from time to time.
3. BASE SALARY
A. As full compensation for services rendered under this
Agreement, the Company shall pay Employee, during the term of this Agreement, a
base salary of Eighty Eight Thousand and NO/100ths ($88,000.00) per year (the
"Base Salary"), payable in accordance with the normal payroll practices of the
Company. In addition to the Base Salary, the Company may pay Employee bonuses
from time to time as set forth in Section 5 below.
B. On each January 1, during the term of this Agreement, the base
Salary shall be increased to reflect the change in the cost of living, based
upon the change, from the
proceeding January 1, in the Consumer Price Index for All Urban Consumers, as
published by the U.S. Bureau of Labor Statistics (reference base 1982-1984 =
100). On each January 1, and at any time that there is a change in the financial
condition or character of the business of the Company during the term of this
Agreement, the Board of Directors shall review the base salary amount to
determine whether or not to grant additional increases in the base salary
amount.
4. STOCK OPTIONS. After 90 days of continuous employment, Employee may,
at the designation of the Board of Directors, receive incentive stock options of
shares of common stock of the Company's parent, Apollo International of
Delaware, Inc. ("Apollo") under Apollo's incentive stock option plan.
5. PERFORMANCE BONUS. In addition to the annual Base Salary provided
hereunder, Employee may, at the discretion of the Board of Directors, be
entitled to additional incentive compensation ("Bonus").
6. FRINGE BENEFITS. Employee shall be entitled to vacations, health
care benefits, fringe benefits and reimbursement for reasonable out-of-pocket
expense, including but not limited to those hereinafter detailed, in accordance
with the Company's practices covering Employee personnel. The Company shall use
reasonable efforts to seek waivers of waiting periods, if any, applicable to
particular benefits. Such benefits shall include:
A. coverage for Employee and his dependents under any major
medical and dental insurance programs and plans, and under any short-term,
long-term or permanent disability programs and plans, which are or may become
generally available to management employees of the Company;
B. participation in any retirement plan, stock option plan, 401(k)
plan, and similar benefits available to employees of the Company generally;
C. reimbursement of all properly approved travel and business
related expenses normally paid by the Company for the benefit of its executives.
All expense reports must be approved by the Chief Executive Officer of the
Company prior to reimbursement;
D. vacation selected by Employee in accordance with the Company's
vacation policy for executives, which vacation will be appropriately selected by
Employee taking into account the convenience of the Company. Employee shall give
the Board of Directors at least fourteen (14) calendar days' prior notice of
selected vacation times of one week or more;
E. such number of days as established by Company policy for its
employees generally;
F. a holiday on the following days with full pay: New Year's Day,
Presidents' Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day, and such other holidays as the Company may declare; and
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G. paid leave and reimbursement of all travel, tuition and related
expenses in attending trade conferences and/or seminars and/or college or other
high level courses acceptable to the Board of Directors in its reasonable
discretion.
H. An automobile allowance of $375.00 per month which Employee
shall apply to leasing an automobile(s) for use by the Employee and his
immediate family.
7. TERMINATION BY THE COMPANY FOR CAUSE.
A. The Company may, at its option, terminate this Agreement by
giving written notice of termination to Employee without prejudice to any other
remedy to which the Company may be entitled, either at law or in equity, under
this Agreement, in the event that:
(i) Employee is convicted of (and such conviction is
sustained on final appeal) or, pleads guilty to, or pleads NOLO CONTENDERE to a
felony crime involving moral turpitude;
(ii) Employee is found by a court of law to be guilty (which
guilty verdict is sustained on final appeal) of or pleads guilty to or no
contest to fraud, conversion, embezzlement, intentionally falsifying records or
reports, or a similar felony involving the Company's property; or
(iii) Employee continues to willfully breach a material
provision of this Agreement after having received written notice of such breach
and a thirty (30) days' opportunity thereafter to cure such breach.
B. In the event of a termination claimed by the Company to be for
"cause" pursuant to clauses (i), (ii) or (iii) of this Section 7, Employee shall
have the right to have the justification for said termination determined by
arbitration. In such event, Employee shall serve on the Company within thirty
(30) days of termination, a written request for arbitration. The Company
immediately shall request the appointment of an arbitrator by the American
Arbitration Association and thereafter the issues shall be determined under the
rules of the American Arbitration Association and the decision of the arbitrator
shall be final and binding on both parties. The parties shall use all reasonable
efforts to facilitate and expedite the arbitration, and shall act to cause the
arbitration to be completed as promptly as possible. During the pendency of the
arbitration Employee shall continue to receive all compensation and benefits to
which he is entitled hereunder. Expenses of the arbitration shall be borne by
the Company pending a final determination of this matter at which time such
expenses shall be borne by the parties.
C. In the event of termination for any of the reasons set forth in
subsection A. of this Section 7, except as otherwise provided in Section 3 of
this Agreement, Employee shall be entitled to no further compensation, Base
Salary, Bonus or other benefits under this Agreement, except as to that portion
of any unpaid Base Salary, Bonus or other benefits accrued and earned by his
hereunder up to and including the final, non-appealable determination by
arbitration as to the justification for such termination for "cause", if
arbitration is invoked. If
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arbitration is not invoked Base Salary or Bonus and unpaid benefits shall be
accrued and earned up to and including the effective date of such termination.
D. Anything herein to the contrary notwithstanding, the employment
of the Employee shall not be terminable by the Company for "cause" if the
grounds for such terminations are: (i) the result of bad judgment or poor
economic results on the part of Employee, (ii) any act or any omission believed
by Employee in good faith to have been in or not opposed to the interests of the
Company, (iii) any act or omission in respect of which a determination could
properly be made that Employee met the applicable standard of conduct prescribed
for indemnification or reimbursement or payment of expenses under the charter or
by-laws of the Company, or the laws of the State of Florida, or the directors'
and officers' liability insurance if the Company, in each case as in effect at
the time of such act or omission, or (iv) as a result of an act or omission
which occurred more than twelve (12) calendar months prior to the Employee's
having been given notice of the termination of his employment for such act or
omission unless the commission of such act could not at the time of such
commission or omission have been known to a member of the Board of Directors of
the Company (other than Employee, if he is then a member of the board of
directors), in which case more than twelve (12) calendar months prior to the
date that the commission of such act or such omission was or could reasonably
have been so known, or (v) as a result of the continuing course of action which
commenced and was or could reasonably have been known to a member of the board
of directors of the Company (other than Employee) more than twelve (12) calendar
months prior to notice having been given to Employee of the termination of his
employment.
8. TERMINATION BY THE COMPANY; DEATH; OR PERMANENT DISABILITY.
A. If the Company terminates Employee "without cause" which shall
mean for any reason other than as set forth in Section 7 hereof, or in the event
of Employee's death or "permanent disability" (as defined below), Employee
shall: (i) be entitled to receive an amount equal to the full compensation to
which he would otherwise be entitled under this Agreement (just as if Employee
had not been so terminated and was continuing to serve as an employee hereunder
for the full term of this agreement) for a three (3) month period from the
effective date of such termination, death, or permanent disability (the
"Severance Payment") and (ii) be provided, for a one (1) month period, with all
the insurance and other benefits set forth in Section 6.A. hereof (provided,
however, to the extent that the benefits in Section 6.A. cannot in fact be paid
due to the fact that Employee is not in fact employed hereunder, the Company
promptly shall pay Employee the monetary, after tax equivalent thereof in U.S.
Dollars, without any present value adjustment). Such Severance Payment shall be
payable in a single lump sum distribution (without any present value adjustment)
to Employee or his estate, as the case may be, no later than sixty (60) days
from the effective date of such termination.
B. PAYMENT IN THE EVENT OF PERMANENT DISABILITY. For purposes of
this Agreement, Employee's "permanent disability" shall be deemed to have
occurred after one hundred twenty (120) days in the aggregate during any
consecutive twelve (12) month period, or after ninety (90) consecutive days,
during which one hundred twenty (120) or ninety (90) days, as the case may be,
Employee, by reason of his physical or mental disability or illness, shall have
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been unable to discharge fully his duties under this Agreement. The date of
permanent disability shall be the one hundred twentieth (120th) or ninetieth
(90th) day, as the case may be. In the event Employee, after receipt of notice
from the Company, shall dispute that his permanent disability shall have
occurred, he shall promptly submit to a physical examination by the Chief of
Medicine of any major accredited hospital in the metropolitan area, Tampa,
Florida, and, unless such physician shall issue his written statement to the
effect that in his opinion, based on his diagnosis, Employee is capable of
resuming his employment and devoting his full time and energy to discharging his
duties within ten (10) days after the date of such statement, such permanent
disability shall be deemed to have occurred without further dispute by Employee
or Company.
9. TERMINATION BY EMPLOYEE. Employee may, at his option, after
complying with this Section 9, terminate this Agreement in the event of a
material breach of the terms of this Agreement by the Company. Employee shall be
required to give written notice to the Company setting forth with particularity
the nature of the material breach. The Company shall have thirty (30) days
following its receipt of Employee's written notice in which to cure its breach
before Employee's termination of this Agreement shall be effective. In the event
Employee's termination shall be effective under this Section 9, Employee shall:
(i) be entitled to receive the full compensation to which he would otherwise be
entitled under this Agreement (just as if Employee had not so terminated his
employment and was continuing to serve as an employee hereunder for the full
term of this Agreement (the "Continuation Period")) payable in a single sum
distribution (without any present value adjustment) on the date of such
termination, and (ii) be provided, for the Continuation Period, with all the
insurance and other benefits set forth in Section 6.A. hereof (provided,
however, to the extent that the benefits in Section 6.A. cannot in fact be paid
due to the fact that Employee is not in fact employed hereunder, the Company
promptly shall pay Employee the indubitable, after-tax monetary equivalent
thereof in U.S. Dollars, without any present value adjustment). If Employee
terminates this Agreement for any reason other than pursuant to this Section 9,
except as otherwise provided in Section 8 of this Agreement as it relates to the
death of Employee, Employee shall be entitled to no further compensation or
other benefits under this Agreement, except as to that portion of any unpaid
salary and other benefits accrued and earned by his hereunder up to and
including the effective date of such termination.
10. CONFIDENTIAL INFORMATION. Employee recognizes and acknowledges that
the Company has, through the expenditure of substantial time, effort and money,
developed and acquired certain confidential information and trade secrets which
have become of great value to the Company in its operations. Employee further
acknowledges and understands that in the course of performing his duties for the
Company, Employee has received and will receive special training and experience,
and has had and will have access to the trade secrets and confidential
information of the Company. Employee agrees that during the course of his
employment and at any time after the termination or expiration thereof, he will
not make any independent use of, publish or disclose, or authorize anyone to
publish or disclose, to any other person or organization, any of the Company's
trade secrets and confidential information, except as required in the course of
his employment with the Company or by law. Upon request of the Company and, in
any event upon the cessation of Employee's employment with the Company, whether
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with or without cause, Employee will promptly return all tangible expressions of
trade secrets and confidential information in his possession and control and all
copies thereof. As used herein, the term "trade secrets and confidential
information" shall mean client lists, applicant lists, and other related client
and applicant data, computerized compilation of such data, training materials
and information, policy and procedure manuals, video and audio recordings of
training and operation methods, sales, services, support and marketing practices
and operations, advertising themes, formats of advertising and other business
methods, and techniques, processes and financial information of the Company, all
of which are not generally known to the trade or industry and which will be of
competitive use by them. "Trade secrets and confidential information" shall not
include intangible information which is generally known and used by persons with
training and experience comparable to Employee as of the date of this Agreement
and all intangible information which is common knowledge in the industry or
otherwise legally in the public domain.
Employee further agrees that the restrictions set forth in this
Section 10 are in addition to, and not in lieu of, any other restrictions or
obligations placed upon his, and/or any rights or remedies available to the
Company, by any statute or at common law.
11. REMEDIES IN EVENT OF BREACH.
A. (i) INJUNCTIVE RELIEF. The parties acknowledge that each would
be irreparably harmed by any breach of the covenants contained in Section 10 of
this Agreement, and that either party's remedy at law for any breach by the
other party of its obligations under Section 10 of this Agreement would be
inadequate, and would be impossible to ascertain and therefore, in the event of
the breach or threatened breach of any obligations under Section 10 of this
Agreement, either party, in addition to any and all other remedies at law or in
equity, shall have the right to enjoin the other party from any threatened or
actual activities in violation thereof; provided, however, that any disputes
initially must be resolved under subsection (ii) below and the parties hereby
consent and agree that temporary and permanent injunctive relief may be granted
in any proceedings which might be brought to enforce any such covenants without
the necessity of proof of actual damages and without the necessity of posting
bond. In the event either party does apply for such injunction, the other party
shall not raise as a defense thereto that such applying party has an adequate
remedy at law.
(ii) RESOLUTION OF DISPUTES. In the event a breach is claimed by
Company and Employee disputes such breach, and the dispute cannot be settled
amicably by the parties within thirty (30) days, the matter shall be settled by
a single arbitrator appointed by the American Arbitration Association in Orange
County, applying the then prevailing laws of the State of Florida. The decision
of such arbitration proceeding shall not be binding upon the parties hereto
unless the decision is acceptable to both parties; each party has 24 hours in
which to disagree, in writing, with any such decision.
B. DAMAGES; ACCOUNTING FOR PROFITS. In addition to any injunctive
relief that may be granted to the Company or Employee for breach of this
Agreement, the Company and Employee shall be entitled to recover all damages,
including reasonable attorneys' fees and costs
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(including paralegals' fees), sustained or incurred by the Company or Employee
by reason of a violation or threatened violation of the terms of this Agreement,
and to receive such other remedy or remedies as the court determines is
appropriate. Employee covenants and agrees that, if he violates any of his
covenants or agreements under Sections 10 hereof, the Company shall be entitled
to an accounting and repayment of all profits, compensations, commissions,
remunerations or benefits which Employee directly or indirectly has realized or
may realize as a result of, growing out of, or in connection with, any such
violation; such remedy shall be in addition to and not in limitation of any
injunctive relief or any other rights or remedies to which the Company is nor
may be entitled at law or in equity or under this Agreement.
12. REASONABLENESS. Employee has carefully read and considered the
provisions of Sections 10 hereof and, having done so, agrees that the
restrictions set forth in such sections, including, but not limited to, the time
period of restriction, the geographical areas of restriction, and the definition
of Company Products set forth therein, are fair and reasonable and are
reasonably required for the protection of the interests of the Company, and
further that the geographical area of restriction set forth therein accurately
reflects the area in which he will be actively engaged in the performance of
services.
13. NO INCONSISTENT OBLIGATIONS. Employee represents and warrants that
no action required of his under this Agreement or any other agreements or
understandings, written or oral, entered into with the Company will conflict
with, breach or otherwise impair any previously existing agreements or
understandings, whether written or oral, into which Employee has entered with
other persons or entities, including agreements with respect to proprietary
information or non-competition.
14. INDEMNIFICATION. The parties shall enter into a separate
indemnification agreement, in form and substance mutually agreeable to the
parties, within ninety (90) days from the execution of this Agreement.
15. NOTICES. Any notice to be given hereunder shall be deemed to be
given when delivered by hand or by overnight courier to the party for whom the
notice is intended, or three (3) days after notice is placed in the U.S. mail
properly addressed to the party for whom notice is intended, at the following
address:
If to the Company: TRANS-WORLD POWERNET, INC.
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
If to Employee: Xxxxxxx X. Xxxx
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
16. BINDING EFFECT AND GOVERNING LAW. This Agreement supersedes all
prior understandings and agreements between the parties with respect to the
subject matter hereof.
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This Agreement shall be binding upon the legal representatives, heirs,
distributees, successors and assigns of the parties. The Agreement contains the
entire agreement of the parties, and may not be changed orally but only in
writing signed by the party against whom enforcement of any such change is
sought. It is agreed that a waiver by either party of a breach of any provision
of this Agreement shall not be operated or be construed as a waiver of any
subsequent breach by that same party. This Agreement shall be governed by the
laws of the State of Florida, without reference to its choice of law principles.
17. SEVERABILITY. In the event that any terms or provisions of this
Agreement shall be held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining terms and provisions hereof.
18. ASSIGNABILITY. The rights or obligations contained in this
Agreement shall not be assigned, transferred, or divided in any manner by
Employee or Company, without the prior written consent of the other; provided,
however, that nothing in this Section 19 shall preclude Employee from
designating a beneficiary to receive any benefits hereunder upon his death, or
the executors, administrator or other legal representatives of Employee or his
estate from assigning any rights hereunder to the person(s) entitled thereto.
Notwithstanding the foregoing, this Agreement shall be binding on any entity
which by purchase of assets, merger, or otherwise, becomes a successor to the
business of the Company.
19. HEADINGS. The headings of paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation and
performance of any of the provisions of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
COMPANY:
TRANS-WORLD POWERNET, INC.
a Florida corporation
By: /s/ XXXXXX X. XXXXX
----------------------------
Xxxxxx X. Xxxxx, Chief Financial Officer
EMPLOYEE:
By: /s/ XXXXXXX X. XXXX
----------------------------
Xxxxxxx X. Xxxx
ACCEPTED AND AGREED:
APOLLO INTERNATIONAL
OF DELAWARE, INC.
By: /s/ XXXXX X. XXXXXX
---------------------
Name: Xxxxx X. Xxxxxx
Title: President
