HOST AMERICA CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 99.2
HOST
AMERICA CORPORATION
This
Executive Employment Agreement (“Agreement”) is dated and effective February 23,
2007 (the “Effective Date”), by and between Host
America Corporation
(the “Company”), a Colorado corporation with its principal place of business at
Two Broadway, Hamden, Connecticut 06518-2697, and Xxxxxxx
X. Xxxxxx (the
“Executive”) an
individual residing at 0 Xxxx Xxxx, Xxxxxxx, XX 00000.
WHEREAS,
the Company desires to employ the Executive, and the Executive desires to
accept
such employment, upon the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants hereinafter
set
forth, the parties agree as follows:
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1.
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Position.
The Company hereby employs the Executive, and the Executive hereby
accepts
such employment, as Chief Financial Officer and Corporate Secretary.
The
Executive shall report directly to the Chief Executive Officer
or other
person as designated by the Chief Executive Officer. The Company
shall
provide the Executive with the office facilities and staff commensurate
with his position to enable him to perform his duties
hereunder.
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2.
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Effective
Date and Term of Agreement.
This Agreement shall take effect on the Effective Date specified
above and
shall continue thereafter in full force and effect until September
30,
2008, unless earlier terminated or renewed as provided herein.
The
Expiration Date shall be automatically extended for successive
periods of
one year each, commencing on the Expiration Date and on each anniversary
of the Expiration Date (the Expiration Date and each such anniversary
are
called the “Renewal Date”), unless either party gives written notice to
the other at least sixty (60) calendar days prior to the Renewal
Date of
the party’s election not to so extend the term of this Agreement beyond
the then-scheduled expiration of the term. The provisions of Section
8
hereof shall continue in full force and effect after the termination
of
this Agreement.
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3.
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Title
and Duties; Extent of Services.
The Executive shall promote the business and affairs of the Company
as the
Chief Financial Officer and Corporate Secretary. The Executive
shall
perform such duties, and have such powers, authority, functions,
duties
and responsibilities for the Company, and/or corporations and other
entities affiliated with the Company, as are commensurate and consistent
with his employment in the position of Chief Financial Officer,
and as
directed by the Chief Executive Officer or the Board of Directors.
The
Executive shall devote his full efforts, time, attention and energies
to
the business and affairs of the Company and shall not be otherwise
employed; provided, however, that nothing contained in this Agreement
shall prohibit the Executive from engaging in other activities,
whether
for investment, family, recreation, civic, charity, or other purposes,
so
long as those activities do not materially interfere with the ability
of
the Executive to carry out his duties and responsibilities hereunder.
The
Executive also shall have such additional duties and responsibilities
as
may be assigned to him by the Chief Executive Officer or the Board
of
Directors that are consistent with his position as Chief Financial
Officer
and Corporate Secretary.
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4.
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No
Conflict.
The Executive represents and warrants to the Company that he is
not
subject to any employment agreement, non-competition covenant,
non-disclosure agreement or other agreement, covenant, understanding
or
restriction that would prohibit Executive from executing this Agreement
and performing his duties and responsibilities hereunder, or that
would in
any manner, directly or indirectly limit or adversely affect the
duties
and responsibilities which may now or in the future be assigned
to the
Executive by the Company.
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5.
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Compensation
and Benefits..
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5.1.
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Salary.
Commencing as of the Effective Date, and continuing until September
30,
2008, the Company shall pay the Executive a salary at an annual
rate of
One Hundred Sixty Five Thousand Dollars ($165,000) (the “Salary”). On at
least an annual basis, commencing February 2008, the Chief Executive
Officer will review the Executive’s performance and may make increases,
but not decreases, to the Salary. The Salary shall be paid in accordance
with Host’s payroll practices in effect at the time of payment, but no
less frequently than monthly.
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5.2.
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Health
Insurance and Other Benefits.
The Executive shall be entitled to receive benefits on the same
terms and
conditions offered to other officers of the Company in accordance
with
Host’s benefit practices in effect at the time, including, as applicable,
health insurance, life insurance, disability insurance, if provided,
Section 401(k) plan, retirement benefits, if provided, and any
other
benefits that are generally made
available.
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5.3
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Vacation;
Holiday Pay; Sick Pay.
The Executive shall be entitled to three (3) weeks of vacation
per year,
during which time his compensation shall be paid in full, and any
unused
vacation shall not accrue from year to year. No monetary equivalent
will
be allowed in lieu of actual vacation days. In addition to vacation
days,
the Executive shall not be required to work, but shall be paid
for, all
days that the Company and/or Host customarily recognize as holidays.
The
Executive shall be entitled to one (1) day of sick pay per quarter.
Any
unused sick pay may roll over from year to year to a maximum of
10
days.
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5.4
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Expense
Reimbursement.
The Executive may incur reasonable travel and other expenses in
connection
with the promotion of the Company’s business. The Executive shall provide
the Company receipts of all charges and the business to which they
relate.
If the Company believes any charges do not qualify under this provision,
then the Company shall send to the Executive a written statement
of the
charges and the reasons the Company believes such charges are not
expenses
related to the Company’s business. The Company shall directly pay or shall
promptly
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reimburse
the Executive for such other reasonable expenses upon presentation by the
Executive of statements, vouchers, records, and/or such other supporting
documentation as the Company may reasonably request.
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6.
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Additional
Compensation.
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6.1
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Stock
Options, Commissions and Bonuses.
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The
Executive shall be entitled to participate in all Host stock option
plans
and/or to receive bonuses or incentive compensation under the conditions
and circumstances as determined by the Board at its discretion
so long as
the Executive is treated similarly to other similarly situated
executives
of the Company or the Host Companies. As a condition to enter into
this
agreement, specifically under Section 8 of this agreement, the
Executive
will be provided with 100,000 shares of restricted common stock
vesting by
the following schedule: 50,000 shares to vest upon executing of
this
agreement, 25,000 to vest on August 23, 2007 and 25,000 shares
to vest on
February 23, 2008, provided that the Executive remains employed
as Chief
Financial Officer and Corporate Secretary and in compliance with
this
Agreement . Such shares to have a xxxxx xxxxx determined by the
closing
price of Host America Common stock as listed on Pink Xxxxxx.xxx
on
February 23, 2007. Such shares to be delivered to Executive subsequent
to
any Blackout Period as defined under the Company’s Xxxxxxx Xxxxxxx Policy.
The Company will use its “best efforts” to deliver the shares to the
Executive at the earliest convenient time pursuant to the Company’s
Xxxxxxx Xxxxxxx Policy.
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7.
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Termination.
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7.1.
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Termination
Rights of the Parties.
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(a)
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Voluntary
Termination by the Executive.
The Executive may terminate his employment for any reason whatsoever
at
any time by giving ninety (90) days’ prior written notice of such
termination, whereupon such employment shall terminate on the earlier
of
(i) the 90th
day following the date on which such notice is given or (ii) any
date
prior to the 90th
day that is specified by the Company by written notice to the
Executive.
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(b)
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Involuntary
Termination by the Company for Cause
. The Company may terminate the Executive’s employment for Cause, as
defined in this subsection. For purposes of this Agreement, the
term
“Cause” shall mean: (i) any willful or grossly negligent misconduct,
malfeasance (defined as a wrongful or unlawful act with the intent
to
deceive), misfeasance (defined
as
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performing
a lawful act in a wrongful manner with the intent to deceive), neglect of
duties, or incompetence of the Executive in the performance or non-performance
of his duties resulting in material harm, monetary or otherwise, to the Company
or any of its or their subsidiaries or affiliates (collectively, the “Host
Companies”); (ii) the Executive's willful refusal to comply with the Company’s
or the Host Companies’ rules or policies (which rules or policies must be
reasonably and consistently applied to all similarly situated employees of
the
Company and the Host Companies) or to comply with a reasonable written directive
from the designee of the Board consistent with the Executive’s position; (iii)
any material breach of this Agreement by the Executive that is not cured
by the
Executive within thirty (30) days after receiving written notice thereof
from
the Company, provided, however, that if the act or omission that is the subject
of such notice is substantially similar to an act or omission with respect
to
which the Executive has previously received notice and an opportunity to
cure,
then no additional notice is required, and provided further that if the act
or
omission is of a nature that the Company deems, in its sole discretion, cannot
be cured, then Executive shall not be entitled to any notice or opportunity
to
cure; (iv) any act of dishonesty with the intent to deceive, in the Executive’s
relations with the Company or the Host Companies or any of its directors,
employees, or customers that materially injures the Company or the Host
Companies; (v) any act by the Executive of larceny, embezzlement,
conversion or similar act involving the misappropriation of funds in the
course
of the Executive’s employment; (vi) a conviction by the Executive of, or plea of
guilty or no contest to, any felony; (vii) repeated acts of substance abuse
that
are injurious to the Company or the Host Companies; or (viii) failure to
meet or
maintain reasonable performance or financial standards set by the Company
or the
Host Companies, provided that the Executive has been notified of such standards
and been given a reasonable opportunity to meet them.
The
Company shall provide the Executive with written notice specifying the Cause(s).
Any termination of the Executive’s employment for Cause pursuant to this section
shall be effective immediately upon the Executive’s receipt of the Company’s
written notice of termination except as set forth in (iii) above. Should
the
Executive wish to challenge his termination by invoking the arbitration
provisions, he must provide written notice of his request for arbitration
within
30 calendar days after the effective date of termination.
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(c)
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Termination
by Death or Disability
. The Executive’s employment shall terminate (i) immediately upon the
Executive’s death or (ii) upon receipt of written notice from the Company
following a determination of Disability (as defined below). For
purposes
of this Agreement, the term “Disability”
shall
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mean
an inability to perform the essential functions of the Executive’s position,
provided the Executive has been given reasonable accommodation, for a period
of
more than six (6) consecutive months. A determination of Disability shall
be
made by a physician or other medical provider satisfactory to both the Company
and the Executive.
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(d)
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Termination
by the Executive for Good Reason.
The Executive shall have the right to terminate this Agreement
for Good
Reason, as defined below. For purposes of this Agreement, the phrase
“Good
Reason” shall mean the Company substantially breaches a material provision
of this Agreement and fails to cure such breach within thirty (30)
days
after receiving written notice thereof from the
Executive.
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(e)
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Termination
Date.
The effective date of any termination of the Executive’s employment is
hereinafter referred to as the “Termination
Date.”
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7.2.
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Executive’s
Right to Compensation Following Termination; Severance
Benefits.
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(a)
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Severance
Benefit - Executive’s Voluntary Termination, Death or Certain Other
Terminations.
Upon the Executive’s voluntary termination of employment, termination of
the Executive’s employment on account of his death or disability,
termination by agreement of the parties, or in any other termination
by
either the Company or the Executive except as specified in Section
7.2(b)
below, the Company shall (1) pay to the Executive all Salary accrued
by
the Executive through the Termination Date, (2) pay to the Executive
any
accrued but previously unpaid bonuses, and (3) pay or make available
to
the Executive all other benefits accrued by or reimbursable to
the
Executive through the Termination Date pursuant to Section 5, all
in the
manner and at the times provided in Section 5. Any payments due
or
benefits owed to the Executive by the Company under this Section
7.2(a)
shall be paid or made available by the Company to the Executive’s legal
representative or heirs, as the case may be, upon the Executive’s death.
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(b)
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Severance
Benefit - Termination by Company Without Cause or by the Executive
for
Good Reason.
Upon the Company’s termination of the Executive without Cause or the
Executive’s termination for Good Reason, the Company shall continue to pay
to the Executive all Salary that would have been paid to the Executive
through the Expiration Date or, if applicable, a subsequent Renewal
Date,
should renewal occur as provided above in section 2 of this Agreement.
In
addition, the Company shall pay the Executive all accrued but previously
unpaid bonuses, and shall continue to pay and provide for benefits
as set
forth in Section 5.2 of this Agreement for such
period.
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(c)
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Severance
Benefit - Termination by the Company for Cause.
There shall be no Severance Benefit in the event of termination
by the
Company for Cause.
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7.3.
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Mitigation.
The Executive shall be under no obligation to mitigate the amount
of any
severance payments provided for in Section 7.2 and any amounts
he may earn
in other employment shall not reduce or offset the severance payments
or
other amounts due hereunder.
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7.4.
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Offset.
The Company shall be entitled to withhold or deduct from compensation
payable by the Company to the Executive under this Agreement, including
the Severance Benefit, for the fair market value of Company equipment
or
property in the Executive’s possession required to be returned but not
returned to the Company upon its request; or for financial shortages
due
to any act of larceny, embezzlement, or conversion or any other
similar
act involving the misappropriation of Company funds in the course
of the
Executive’s employment.
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8. Covenants
of Confidentiality, Non-Competition and Non-Solicitation.
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8.1
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Confidentiality.
The Executive will occupy a position of trust and confidence with
the
Company. The Executive acknowledges that during his employment
with the
Company hereunder, the Executive will obtain and the Company will
disclose
to him and he will learn the confidential affairs and proprietary
information of the Company and its subsidiaries and affiliates,
and the
Host Companies, that have been developed or acquired by the Company
and
that are developed by and belong to the Company, including, without
limitation, the following information (collectively, the “Confidential
Information”): (i) any and all trade secrets concerning the business and
affairs of the Company and its subsidiaries and affiliates including,
without limitation, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings,
samples, inventions and ideas, past, current and planned research
and
development, past, current and planned manufacturing and distribution
methods and processes, acquisition opportunities, customer lists,
current
and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object
code and
source code), computer software and database technologies, systems,
structures and architectures, and any other information, however
documented, of the Company and its subsidiaries and affiliates
that is a
trade secret; (ii) any and all information concerning the business
and
affairs of the Company and its subsidiaries and affiliates (which
includes
historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans,
the
names and backgrounds of key personnel, personnel training and
techniques
and materials), however documented; and (iii) any and all notes,
analysis,
compilations, studies,
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summaries,
and other material prepared by or for the Company and its subsidiaries and
affiliates or containing or based, in whole or in part, on any information
included in the foregoing.
In
light of the foregoing, Executive agrees:
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(a)
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During
the term hereof and after the termination of this Agreement, to
keep
secret all Confidential Information of the Company and of any subsidiaries
and affiliates of the Company, and not to disclose such information
to
anyone outside of the Company or its subsidiaries or affiliates,
or
otherwise use such information or his knowledge of it for his own
benefit
or for the benefit of any third party, whether the Executive has
such
information in his memory or embodied in writing or other physical
form,
including, without limitation, use of the trade secrets, trade
names or
trademarks of the Company, except with the Company’s prior written
consent; and
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(b)
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To
deliver promptly to the Company at the termination of this Agreement,
or
at any reasonable time thereafter that the Company may request,
all
memoranda, notices, records, reports and other documents (and all
copies
thereof) relating to the business of the Company or any of its
subsidiaries or affiliates, including, but not limited to, Confidential
Information, which he may then possess or have under his
control.
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Notwithstanding
any of the foregoing, the term “Confidential Information” does not include
information which (i) is or becomes generally available to the public other
than
as a result of any improper disclosure by the Executive or (ii) the Executive
is
compelled to disclose by judicial or administrative process or provided,
that in
the case of any such requirement or purported requirement the Executive shall
provide written notice to the Company prior to producing such information,
which
notice shall be given at as soon as practicable, and if possible at least
ten
(10) days prior to the producing such information, so that the Company may
seek
a protective order or other appropriate remedy. Furthermore, nothing in this
Agreement shall prohibit the Executive from disclosing any Confidential
Information as is necessary or advisable in connection with any litigation,
arbitration or mediation against the Company or Host.
The
Executive acknowledges that the Company would not hire the Executive or disclose
the Confidential Information to the Executive without the promises made by
the
Executive in this Section 8.
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8.2
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Competitive
Activities.
The Executive expressly recognizes and acknowledges that the terms
and
condition of this Section 8.2 are reasonable as to time, area,
and scope
of restricted activity, are necessary to protect the legitimate
interests
of the Company, and are not unduly burdensome to the Executive.
Further,
the Executive acknowledges that engaging in such activity would
violate
the fiduciary duty that the Executive owes to the Company during
his
employment by the Company. For a period (the “Restricted Period”)
commencing on the Effective Date and ending on the three (3) year
anniversary of the Executive’s termination of employment, unless the
termination was by the Company without Cause or by the Executive
for Good
Reason, the Executive shall not, directly or indirectly (whether
for
compensation or otherwise), alone or as officer, director, stockholder,
member, partner, associate, employee, agent, joint venturer, lender,
principal, trustee, salesman or consultant, engage or invest in,
own,
manage, operate, finance or control, or participate in the ownership,
management, operation, financing, or control of, or be employed
by,
associated with, consult with or in any manner be connected with,
lend the
Executive’s name or credit to, or provide consulting services, financial
resources or advice to, or in any other manner provide assistance
to, any
Person (as hereinafter defined), that is engaged or plans to engage
in
business in competition with the Company, including those activities
reflecting a reasonable extension of the Company’s line or lines of
business as of the date hereof or any time during the term of Executive’s
employment with the Company (collectively the “Restricted Activity”).
However, nothing in this Section 8.2 shall prevent the Executive
from
owning less than five percent (5%) of the outstanding securities
of any
publicly traded entity.
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The
restrictions in this Section 8.2 shall not apply in the event that the Company
terminates the Executive's employment without Cause or the Executive terminates
his employment for Good Reason.
For
purposes of this Agreement, the term “Person” shall mean any individual,
corporation, general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or government body.
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8.3
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No
Soliciting of Customers.
The Executive agrees that during the Executive’s employment by the
Company, and for a period of three (3) years after termination
for any
reason (the “Restricted Period”), he shall not solicit, interfere with,
influence or endeavor to entice customers or suppliers of the Company
or
its present or future subsidiaries or affiliates, in any manner,
either
directly or indirectly, to divert their business to any Person
and/or away
from the Company. The Company and the Executive acknowledge and
agree that
the Executive’s engaging in the solicitation of customers prohibited
hereunder may disrupt, damage or impair the business of the
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Company
and its present or future subsidiaries or affiliates, as the case may be,
and
necessarily involves the use of Confidential Information (e.g., customer
lists)
prohibited under Section 8.1.
The
restrictions in this Section 8.3 shall not apply in the event that the Company
terminates the Executive’s employment without Cause or the Executive terminates
his employment for Good Reason.
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8.4
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No
Soliciting of Employees.
The Executive agrees that during the Executive’s employment by the
Company, and for a period of three (3) years after termination
for any
reason (the “Restricted Period”), the Executive shall not, directly or
indirectly, either for himself or any other Person, contact or
solicit to
leave his or her employment or engagement with the Company, employ
or
otherwise engage, or identify for the purpose of being recruited
for any
other Person, any of the employees, consultants, agents or independent
contractors of the Company and/or its subsidiaries or affiliates
(for this
purpose the terms “employees,” “consultants,” “agents,” and “independent
contractors” of the Company shall include any persons having such status
with regard to the Company or its subsidiaries or affiliates at
any time
during the twelve (12) months preceding any solicitation in question).
The
Company and the Executive acknowledge and agree that the Executive’s
engaging in the solicitation of employees prohibited hereunder
may
disrupt, damage or impair the business of the Company and/or its
subsidiaries or affiliates, and may necessarily involve the use
of
Confidential Information prohibited under Section 8.1.
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The
restrictions in this Section 8.4 shall not apply in the event that the Company
terminates the Executive’s employment without Cause or the Executive terminates
his employment for Good Reason.
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8.5
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No
Unauthorized Use.
The Executive agrees that, in performing work for the Company and/or
its
subsidiaries and affiliates, Executive shall not knowingly use
any trade
secrets, confidential information or proprietary information obtained
from
third parties, including any former employer or any other organization
or
individual. The Executive further agrees that the Executive shall
not
bring into the premises of the Company any unpublished documents
or any
other property belonging to any former employer or any other party
to whom
the Executive has an obligation of confidentiality, unless consented
to in
writing by such former employer or
party.
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8.6
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Inventions. The
Executive agrees that any discoveries, inventions, creations
or
improvements of whatever nature (collectively “Inventions”) made or
conceived by Executive, solely or jointly with others, after
the Effective
Date, that are made with the Company’s equipment, supplies, facilities,
trade secrets, or time; or that relate, at the time of conception
of or
reduction to practice, to the business of the Company
or
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the
Company’s actual or demonstrably anticipated research or development; or that
result from any work performed by the Executive for the Company after the
Effective Date shall belong to the Company. The Executive also agrees that
the
Company shall have the right to keep any such Inventions as trade secrets,
if
the Company so chooses. In order to permit the Company to claim rights to
which
it may be entitled under this Section 8.6, the Executive agrees to disclose
to
the Company in confidence all Inventions that the Executive makes after the
Effective Date, and all patent applications filed by the Executive within
two
(2) years after termination of his employment. The Executive shall, at the
Company’s cost and expense, assist the Company in obtaining patents on all
Inventions deemed patentable by the Company in the United States and in all
foreign countries and shall execute all documents and do all things necessary
to
obtain patents to vest the Company with full and exclusive titles thereto
and to
protect the same against infringement by others. For the purposes of this
Agreement, an Invention is deemed to have been made after the Effective Date
if
the Invention was conceived or first actually reduced to practice during
that
period, and the Executive agrees that any patent application filed within
two
(2) years after termination of his employment with the Company shall be presumed
to relate to an Invention made during the term of the Executive’s employment
unless the Executive can provide evidence to the contrary. The parties
acknowledge that as used in this Section 8.6, the term “Company” shall include
Host, or any affiliate or subsidiary of the Company.
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8.7
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Tolling
of Restricted Periods during Violations.
The Executive acknowledges and agrees that it is the intent of
the parties
that the Company should have the benefit of the restrictions in
Section
8.2, 8.3, and 8.4 for
the period following termination of his employment set forth in
such
Sections. The running of the Restricted Period shall be tolled
during any
time of the Executive's violation of such restriction, and that
time of
violation shall be added to the end of the Restricted Period once
the
violation(s) cease, for the particular restriction that has been
violated.
Therefore, the Executive acknowledges that if he violates the restrictions
in Section 8.2, 8.3, or
8.4, the resulting tolling and extending of the Restricted Period
would
result in a Restricted Period, for the particular restriction that
has
been violated, of greater than two (2)
years.
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9.
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Remedies
for Breach of Covenants in Section 8. In
addition to the rights and remedies provided in Section 10.10 and
without
waiving the same, if the Executive breaches any of the provisions
of
Section 8, the Company shall have the following rights and remedies,
in
addition to any others, each of which shall be independent of the
other
and severally enforceable:
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(a)
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The
right and remedy to have such provisions specifically enforced
by any
court having equity jurisdiction together with an accounting for
any
benefit or gain by the Executive in connection with any such breach.
The
Executive specifically acknowledges and agrees that any breach
of the
provisions of Section 8 may cause irreparable injury to the Company
and
that money damages may not provide an adequate remedy to the Company.
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(b)
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The
right and remedy to require the Executive to account for and pay
over to
the Company all compensation, profits, monies, accruals, increments
or
other benefits (hereinafter collectively referred to as the “Benefits”)
derived or received, directly or indirectly, by the Executive as
a result
of any transactions constituting a breach of any of the provisions
of
Section 8, Executive hereby agreeing to account for and pay over
the
Benefits to the Company.
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(c)
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The
right to terminate the Executive’s employment pursuant to Section 7.1(b).
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(d)
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Upon
discovery by the Company of a breach or threatened breach of Section
8,
the right to immediately suspend payments to Executive under Section
7.2,
pending a resolution of the
dispute.
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If
any covenant contained in Section 8 or any portion thereof is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants contained therein, which shall be
given
full effect, without regard to the invalid portions, and any court having
jurisdiction shall reform the covenant to the extent necessary to cause the
limitations contained therein as to time, geographical area and scope of
activity to be restrained to be reasonable and to impose a restraint that
is not
greater than necessary to protect the goodwill and other business interest
of
the Company and to enforce the covenant as reformed. The parties hereto intend
to and hereby confer jurisdiction to enforce the covenants contained in Section
8 upon the courts of any state or other jurisdiction in which any alleged
breach
of any such covenant occurs. If the courts of any of one or more of such
states
or other jurisdictions shall hold such covenants not wholly enforceable by
reason of the scope thereof or otherwise, it is the intention of the parties
hereto that such determination not bar or in any way affect the Company’s right
to the relief provided above in the courts of any other states or jurisdictions
as to breaches of such covenants in such other respective states or
jurisdictions, and the above covenants as they relate to each state or
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
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10.
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General
Provisions.
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10.1.
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Entire
Agreement.
This Agreement represents the entire agreement of the parties and
supersedes any prior understandings, agreements or representations
by and
between the Company and the Executive with respect to the arrangements
contemplated hereby. No prior agreement, whether written or oral,
shall be
construed to change, amend, alter, repeal or invalidate this Agreement.
This Agreement may be amended only by a written instrument executed
by
both parties.
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10.2.
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Waiver.
No consent to or waiver of any breach or default in the performance
of any
obligations under this Agreement shall be deemed or construed to
be a
consent to or waiver of any other breach or default in the performance
of
any of the same or any other obligations. Failure on the part of
either
party to complain of any act or failure to act of the other party
or to
declare the other party in default, irrespective of the duration
of such
failure, shall not constitute a waiver of rights. No waiver shall
be
effective unless it is in writing, executed by the party waiving
the
breach or default.
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10.3.
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Assignment.
This Agreement shall be binding upon and inure to the benefit of
the
parties hereto, their respective successors and assigns and, in
the case
of the Executive, his heirs. Neither the Executive nor the Company
may
assign or transfer any or all of their respective rights or obligations
under this Agreement. The Company agrees to require any successor
(whether
direct or indirect, by purchase, merger, consolidation or otherwise)
to
all or substantially all of the business and/or assets of the Company
to
assume expressly and agree to perform this Agreement in the same
manner
and to the same extent that the Company would be required to perform
it if
no such succession had taken place. As used in this Agreement,
a Company
shall mean the Company as defined above and any successor to its
business
and/or assets as aforesaid which assumes and agrees to perform
this
Agreement by operation of law or
otherwise.
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10.4.
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Severability.
In the event that any provision of this Agreement should be held
unenforceable by a tribunal of competent jurisdiction, including
an
arbitrator or a court, such tribunal is hereby authorized to amend
such
provision so as to be enforceable to the fullest extent permitted
by law,
and all remaining provisions shall continue in full force without
being
impaired or invalidated in any way.
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10.5.
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Governing
Law.
This Agreement, the rights of the parties hereunder, and any and
all
claims arising from, or, in any way related to, this Agreement
shall be
governed, interpreted, construed and enforced in accordance with
the laws
of the State of Connecticut.
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10.6.
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Notices.
All notices required or permitted under this Agreement shall be
in writing
and shall be deemed effective upon personal delivery or three days
after
deposit in the United States Post Office, by registered or certified
mail,
postage prepaid, return receipt requested, addressed to the other
party at
the address shown above, or at such other address or addresses
of which
either party shall notify the other in accordance with this Section
10.6.
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10.7.
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Counterparts.
This Agreement may be executed in counterparts, all of which together
shall for all purposes constitute one Agreement, binding on each
of the
parties even if both parties may not have signed the same
counterpart.
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10.8.
|
Pronouns.
In
this Agreement, the use of any gender shall be deemed to include
both
genders, and the use of the singular shall include the plural,
wherever it
appears appropriate from the
context.
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10.9
|
Attorney
Fees.
If any legal action or other proceeding, including arbitration,
is brought
for the enforcement of this Agreement, or because of an alleged
dispute,
breach, default or misrepresentation in connection with any provisions
of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorney fees, court costs and all expenses even if
not taxable
as court costs, incurred in that action or proceeding, in addition
to any
other relief to which such party may be
entitled.
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10.10.
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Arbitration.
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(a)
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Subject
to the Company’s right to pursue injunctive relief or specific performance
from a court of competent jurisdiction with respect to Section
8 or
Section 9, any
and every dispute of any nature whatsoever that may arise between
the
parties hereto, whether sounding in contract, statute, tort, fraud,
misrepresentation, discrimination or any other legal theory, including
but
not limited to (i) any claims arising out of or relating to this
Agreement, (ii) any claim arising out of the termination of Executive’s
employment, or (iii) any claim for discrimination (e.g., sex, sexual
harassment, race, national origin, age, religion or disability)
or
retaliation, whether statutory or otherwise (e.g., claims under
the Fair
Labor Standards Act, the Family and Medical Leave Act, Title VII
of the
Civil Rights Act of 1964 or any other similar federal, state or
local
law), shall be submitted to, and determined by, binding arbitration
in
accordance with the employment arbitration rules of the American
Arbitration Association, to the extent such rules do not conflict
with the
provisions of this Section 10.10 or applicable law.
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(b)
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Should
either party wish to initiate arbitration, the party must first
notify the
other party of the dispute in writing within a reasonable time
after the
occurrence, event, or alleged breach of this Agreement giving rise
to
the
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dispute,
or within a reasonable time after the party in the exercise of due diligence
became aware of the occurrence, event, or alleged breach, except that such
notification must be given within 30 days in the event of termination for
Cause under Section 7.1(b). The arbitration shall be conducted by a single
neutral arbitrator. The parties shall endeavor to select a neutral arbitrator
by
mutual agreement. If such agreement cannot be reached within 30 calendar
days
after a dispute has arisen which is to be decided by arbitration, any party
or
the parties jointly shall request the American Arbitration Association to
submit
to each party an identical panel of seven persons. Alternate strikes shall
be
made to the panel, commencing with the party bringing the claim, until the
name
of one person remains, who shall be the neutral arbitrator. The parties may,
however, by mutual agreement, request the American Arbitration Association
to
submit additional panels of possible arbitrators. The arbitrator shall have
the
power to determine all matters incident to the conduct of the arbitration,
including without limitation all procedural and evidentiary matters and the
scheduling of any hearing. The award made by the arbitrator shall be final
and
binding upon the parties and the subject matter. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16, and
judgment upon the award of the arbitrator may be entered by any court having
jurisdiction thereof. Unless otherwise agreed by the parties, the arbitration
shall be held in New Haven, Connecticut.
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(c)
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This
Section 10.10 shall not prevent either party from seeking a temporary
restraining order or preliminary injunctive relief from a court
of
competent jurisdiction in order to preserve its rights under this
Agreement. In the event a party seeks such injunctive relief pursuant
to
this Agreement, such action shall not constitute a waiver of the
provisions of this Section 10.10, which shall continue to govern
any and
every dispute between the parties, including without limitation
the right
to damages, permanent injunctive relief and any other remedy, at
law or in
equity.
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(d)
|
The
Company and the Executive each waives any right to trial by jury
of any
dispute of any nature whatsoever that may arise between them, including,
but not limited to, those disputes relating to or involving, in
any way,
the construction, performance or breach of this Agreement or any
other
agreement between the parties, notwithstanding any contrary provisions
of
any federal, state or local law, regulation or ordinance.
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(e)
|
By
execution of this Agreement, each of the parties acknowledges and
agree
that such party has had an opportunity to consult with legal counsel
about
the terms and provisions of this Agreement, including the provision
in
Section
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10.10(d)
above that each party knowingly and voluntarily waives any right to a trial
by
jury of any dispute pertaining to or relating in any way to the transactions
contemplated by this Agreement.
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10.11
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Indemnification.
Provided Executive is not in material default under this Agreement,
the
Company shall indemnify, defend and hold the Executive harmless
to the
maximum extent permitted by law for any losses, damages, liabilities,
expenses (including legal fees and expenses), costs, or payments
incurred
by the Executive in connection with or as a result of the performance
of
his services in any authorized capacity on behalf of the Company,
including his service in other capacities from the start of his
employment
in addition to his service as Chief Financial Officer as provided
for in
this Agreement, except to the extent any such losses, damages or
the like
are caused by the activities described in Section 7.1(b) or otherwise
caused by Executive’s gross negligence or bad faith with the intent to
deceive. The Company will also indemnify Executive for all losses,
damages, liabilities, expenses (including legal fees and expenses),
costs,
or payments incurred as a result of defending himself from any
actions by
the Company or former officers and directors of the Company, or
holders of
the Company’s stock except to the extent any such losses, damages or the
like are caused by the activities described in Section 7.1(b) or
otherwise
caused by Executive’s gross negligence or bad faith with the intent to
deceive; provided further that this indemnification provision does
not
apply to any
legal action or other proceeding by or against the Executive, including
arbitration, that is brought for the enforcement of this Agreement
or
because of an alleged dispute, breach, default or misrepresentation
in
connection with any provisions of this Agreement.
Further, if the Company or any Host Companies have at any time
one or more
liability insurance policies in effect that insure executive officers
of
the Company or any of the Host Companies for errors, omissions,
or
otherwise, then that policy or those policies shall be extended
to cover
the Executive. The Company, for itself and its affiliates, does
hereby
agree and acknowledge that the indemnification provided for in
this
Section 10.11 is absolutely essential as a condition for the Executive
to
enter into this Agreement. The Company agrees that the indemnification
provided for in this Agreement is fair and reasonable, and the
Company
will never assert in any manner under any circumstances that any
of these
indemnification provisions are in any way unenforceable for any
reason.
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In
witness whereof, the parties have executed this Agreement effective as of
the
date written above.
EXECUTIVE
COMPANY
Host
America Corporation
/s/
Xxxxxxx X.
Xxxxxx
/s/ Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxxx
Title: Chief
Executive Officer and President
February
23,
2007
February 23, 2007
Date
Signed Date
Signed
