Exhibit 10.19
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (hereafter the "Agreement"), dated as of August
30, 2008 (hereafter the "Effective Date"), is between Sustainable Power Corp., a
Nevada corporation (hereafter the "Company") and M. Xxxxxxx Xxxxxx (hereafter
the "Executive").
Employment. The Company hereby employs the Executive, and the Executive
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hereby agrees to employment with the Company, upon all the terms and conditions
set forth below. Executive represents and warrants that: (a) he has full power
and authority to enter into this Employment Agreement, (b) he is not restricted
in any manner whatsoever from performing the duties described below, and (c) no
agreement, covenant or other matter prohibits or limits his ability or authority
to enter into this Agreement or perform all of the duties described below.
Executive's employment with the Company shall include service for the Company's
direct and indirect subsidiaries (the "Subsidiaries").
Employment Term. The "Employment Term" and Executive's employment under
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this Agreement shall commence on the Effective Date and shall continue for a
period of one (1) year from the Effective Date, ending at the close of business
on August 31, 2009, provided, however, that the Employment Term shall
automatically extend for successive one-year periods (such extensions also being
referred to as the "Employment Term"), as long as neither party has given
written notice to the other party at least 30 days prior to the end of the then
current term that such term shall not be extended, and further provided that the
Agreement has not been terminated earlier in accordance with the provisions of
Section 9 below. If the Executive's employment terminates for any reason, with
or without Cause, the Executive shall not be entitled to any payments, benefits,
damages, awards, or compensation other than as provided below or as otherwise
provided by law or by any applicable employee benefit plan in which he
participates. The parties acknowledge that certain obligations under this
Agreement survive the end of Executive's employment.
Position and Duties.
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President and Chief Executive Officer. The Company shall employ the
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Executive as its President and Chief Executive Officer. Executive shall report
to the Company's Board of Directors (the "Board") or the Board's designee.
Executive shall be appointed to the Board without any additional compensation.
Executive shall serve as a member of the Board and as an officer and/or director
of any Subsidiaries. Executive shall have such responsibilities and duties as
are commensurate with the position of Chief Executive Officer in an entity
comparable to the Company. The Board shall have the right to modify Executive's
duties and responsibilities from time to time as the Board may deem necessary or
appropriate.
Manner of Employment. Executive shall faithfully, diligently and
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competently perform his responsibilities and duties. The Executive shall devote
such of his business efforts
and time to the Company as shall be necessary for the operations of the Company.
The Company and Executive currently estimate that this shall require
approximately 50% of Executive's current business time. The Company
understands, acknowledges and agrees that Executive retains his position with
Xxxxxx Law Group, a law firm, and as President of Xxxxxx Garros, Inc. dba The
Club at Raes Creek, a tennis, swim and fitness club. This Section shall not
preclude the Executive, outside normal business hours, from engaging in such
businesses or in any other business or business determined by Executive provided
such business is not in direct conflict with the operations of the Company.
Executive may serve as a director of a for-profit entity.
Compensation. Executive remains as principal Legal Counsel for the Company
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and shall be paid for all services, including any and all actions, requirements,
tasks, phone calls and other matters required as duties under this Agreement,
consistent with that certain Retainer Agreement executed on behalf of the
Company. In addition, and in consideration for the risks and reputation
provided pursuant to this Agreement, commencing on September 1, 2008, the
Company shall pay the Executive additional compensation in the gross amount of
$10,000 per month for a period of three months, with such compensation
continuing beyond such period so long as Executive remains as President and
Chief Executive Officer at a rate negotiated between Executive and the Company,
but not less than $10,000 per month. This compensation shall be billed and paid
as part of Executive's legal billing to the Company.
Employment Benefits. Executive shall be entitled to the following benefits
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during the Employment Term:
Expense Allowance. Executive shall be reimbursed for business related
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expenses reasonably and necessarily incurred and advanced by Executive in
performing his duties for the Company, subject to review by the Chairman of the
Board or his designee and in accordance with Company policy as it exists from
time to time.
Other Benefits. Executive may participate in all other employee benefit
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plans and programs as the Company may, from time to time, offer to its executive
employees, subject to the same terms and conditions as such benefits are
generally provided by the Company. All such benefits are subject to plan
documents (where applicable) and the Company's policies and procedures. Nothing
in this Section guarantees that any specific benefit will be provided or offered
by the Company which has the right to add, modify, or terminate benefits at any
time.
Equity Grant. Upon execution of this Agreement, the company shall
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grant to Executive a total of 20,000,000 shares of common stock. The Company
acknowledges and agrees that pursuant to the Legal Retainer Agreement, Executive
has also agreed to reduce all legal fees by 50% in consideration for restricted
shares of the Company's common stock at a 25% discount from market.
Resignation or Termination. If Executive resigns his employment during the
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Employment Term or is otherwise terminated, the Company shall have no liability
to Executive except to pay Executive's Compensation and any accrued benefits
through his last day worked, and Executive shall not be entitled to receive
severance or other benefits.
Cause. The following acts by Executive, as determined by the Board in its
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reasonable discretion, shall constitute "Cause" for termination:
Theft or embezzlement, or attempted theft or embezzlement, of money or
material tangible or intangible assets or property of the Company, its
Subsidiaries or its employees or business relations;
An intentional violation of any law or any act or acts of moral turpitude
which negatively affects the interests, property, business, operations or
reputation of the Company or its Subsidiaries;
Other than as a result of a disability, a material failure to carry out
effectively Executive's duties and obligations to the Company, upon not less
than ten (10) days' advance written notice of the asserted problem and a
reasonable opportunity to cure;
Gross negligence or willful misconduct in the performance of Executive's
duties;
Executive's material breach of this Agreement which, after written notice
by the Company of such breach, is not cured within ten (10) days of such notice.
Officer and Director Insurance. The Company shall maintain at all times a
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policy of Directors and Officers Liability Insurance protecting Executive from a
reputable insurance carrier reasonably satisfactory to Executive with minimum
coverage of $2,000,000.
Confidential and Proprietary Information. Executive agrees that he will
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not use or disclose to any person, entity, association, firm or corporation, any
of the Company's Confidential Information, except with the written authorization
of the Board or as necessary to perform his duties under this Agreement. The
term "Confidential Information" means information and data not generally known
outside of the Company (unless as a result of Executive's breach of any of the
obligations imposed by this Agreement or the duties imposed by any then existing
statute, regulation, ordinance or common law) concerning the Company's business
and technical information, and includes, without limitation, information
relating to: (i) the identities of clients and the Company's other Business
Relations (as defined below) and their purchasing habits, needs, business
information, contact personnel and other information; (ii) suppliers' and
vendors' costs, products, contact personnel and other information; and (iii) the
Company's trade secrets, products, research and development, financial and
marketing information, personnel and compensation information, and business
plans. Executive
understands that this Section applies to computerized as well as written
information and to other information, whether or not in written form. It is
expressly understood, however, that the obligations of this Section shall only
apply for as long as and to the extent that the Confidential Information has not
become generally known to or available for use by the public other than by
Executive's act(s) or omission(s) in violation of this Agreement. Executive
agrees that upon the end of his employment with the Company for any reason, he
will not take with him any Confidential Information that is in written,
computerized, machine readable, model, sample, or other form capable of physical
delivery, without the prior written consent of the Board. The Executive also
agrees that upon the end of his employment with the Company for any reason or at
any other time that the Company may request, he will deliver promptly and return
to the Company all such documents and materials in his possession or control,
along with all other property and documents of the Company or relating to the
Company's employees, suppliers, customers, and business.
Non-Solicitation. Executive agrees that he will not through the date one
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(1) year after the end of his employment with the Company for any reason,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, without the express written permission of the Board: (a) solicit or
attempt to solicit any employee or representative of the Company to terminate or
modify his or her relationship with the Company or to work for or provides
services
to another person or entity; or (b) solicit or attempt to solicit, any client,
vendor, service provider or other business relation of the Company (each a
"Business Relation"), about whom he learned or with whom he came into contact
during his employment with the Company on behalf of any entity or with respect
to any service or products which is or may be competitive with the Company or
its services or products.
Non-Competition.
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Executive agrees that during the Restrictive Period (as defined below), he
will not, without the express written consent of the Board, be associated with
or engage in, directly or indirectly, as employee, consultant, proprietor,
stockholder, partner, agent, representative, officer, or otherwise, the
operation of any business that competes directly with the Company in business
activities that are the same or substantially similar to the business activities
engaged in by the Company within the United States or any other geographic area
in which the Company does business during the Restrictive Period (the
"Restricted Territory").
The term "Restrictive Period" shall mean a period of twelve (12) months
after the Executive's termination of employment for any reason.
Passive investment in less than two percent (2%) of the outstanding equity
securities of an entity which is listed on a national or regional securities
exchange shall not, in itself, constitute a violation of this Section.
Indemnification. The Company hereby indemnifies Executive, Xxxxxx Law
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Group and their officers and employees, against all claims which may be brought
against any one of them or them by a third party under any cause of action
related to Executive's duties under this Agreement, including but not limited to
breach of contract, negligence, infringement of intellectual property, tort or
breach of statutory duty, in respect of any loss, death, injury, illness or
damage (whether personal or property) howsoever arising out of Executive's
duties under this Agreement, and from and against all damages, costs and
expenses (including legal disbursements on a full indemnity basis and other
legal costs on a lawyer client basis) incurred in defending or settling any such
claim.
Binding Effect. This Agreement shall inure to the benefit of and be
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binding upon the parties and their respective heirs, successors, legal
representatives and permitted assigns.
Notices. Any notice required or permitted to be given tinder this
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Agreement shall be sufficient if in writing and either delivered in person by
reputable messenger or overnight delivery service, by telecopy (with
confirmation of receipt) or sent by certified mail, postage prepaid, if to the
Company at the Company's principal place of business, c/o Chairman of the Board,
and if to the Executive, at the address most recently filed with the Company, or
to such other address as either party shall have designated in writing to the
other party.
Law Governing. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas for contracts to be performed in
that State.
Severability and Construction. If any provision of this Agreement is
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declared void or unenforceable or against public policy, such provision shall be
deemed severable and severed from this Agreement and the balance of this
Agreement shall remain in full force and effect. If a court of competent
jurisdiction determines that any restriction in this Agreement is overbroad or
unreasonable under the circumstances, such restriction shall be modified or
revised by such court to include the maximum reasonable restriction allowed by
law.
Arbitration. Any dispute, claim or controversy arising out of or relating
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to this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of
this agreement to arbitrate, shall be determined by arbitration in Texas, before
one arbitrator. The arbitration shall be administered by the American
Arbitration Association pursuant to its Employment Arbitration Rules and
Procedures. Judgment on the Award may be entered in any court having
jurisdiction. This clause shall not preclude the parties from seeking
provisional remedies in aid of arbitration from a court of appropriate
jurisdiction. All fees and costs of any arbitration conducted pursuant to this
Agreement shall be divided equally between the parties, with each paying his or
its own attorney's fees, costs and expenses.
Waiver. Failure to insist upon strict compliance with any of the terms,
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covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition.
Entire Agreement; Modifications. This Agreement constitutes the entire
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agreement of the parties with respect to its subject matter and supersedes all
prior agreements, oral and written, between the parties with respect to the
subject matter of this Agreement. This Agreement may be modified or amended
only by an instrument in writing signed by both parties.
Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned have set forth their hands as of the date
first above written.
EXECUTIVE SUSTAINABLE POWER CORP.
\s\ M. Xxxxxxx Xxxxxx By: \s\ Xxxx X. Xxxxxx
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M. Xxxxxxx Xxxxxx Xxxx X. Xxxxxx
Chairman of the Board of Directors
