EMPLOYMENT AGREEMENT
EXHIBIT
10.26
EMPLOYMENT AGREEMENT (this “Agreement”),
effective as of the 13th day of
May, 2010, by and between Surge Solutions Group, Inc., a Florida corporation
(the “Company”), and
[________________], an individual resident of the State of Florida (“Employee”).
WITNESSETH:
WHEREAS, the Company desires to retain
and employ the services of Employee on the terms and subject to the conditions
set forth in this Agreement, and Employee desires to be retained and employed by
the Company on such terms and subject to such conditions.
NOW, THEREFORE, in consideration of the
foregoing premises, the respective covenants and commitments of the parties
hereto set forth in this Agreement, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Employment. The
Company hereby employs Employee, and Employee accepts such employment and agrees
to perform services for the Company, upon the terms and subject to the
conditions set forth in this Agreement.
2. Employment Term. The
term of this Agreement shall begin on the date of this Agreement and end on the
third (3rd)
anniversary of the date of this Agreement, unless terminated earlier in
accordance with Section 7 hereof, and shall thereafter automatically renew for
successive one-year terms, unless notice is given by either party to the other
at least 30 days before the end of the then current term that such employment
shall cease as of the end of such term (the “Employment
Period”).
3. Position and Duties;
Representations and Warranties.
3.1 Service With the
Company. During the Employment Period, Employee agrees to perform such
reasonable employment duties as the Company shall assign to him from time to
time. Employee shall have the title of [__________] of the Company,
and shall report directly to the Chief Executive Officer of the
Company.
3.2 Performance of
Duties. Employee agrees to serve the Company faithfully and to the best
of his ability and to devote his full time, attention, skill and best efforts to
the business and affairs of the Company during the Employment
Period. Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement, and
that during the Employment Period he will not render or perform services for any
other person or entity which are inconsistent with the provisions of this
Agreement. Notwithstanding the foregoing, the obligations of Employee
set forth in this Section 3.2 shall in no way restrict the right of Employee to
hold as a passive investment not more than one percent (1%) of the equity
securities of any corporation or other entity whose equity securities are listed
on a national securities exchange or regularly traded in the over-the-counter
market for which quotations are available on the NASDAQ System.
1
3.3 Representations and
Warranties of Employee. Employee represents and warrants that, as of the
date hereof and throughout the Employment Period:
(a) Employee
is not and will not in any way whatsoever be restricted or prohibited,
contractually or otherwise, from entering into this Agreement and performing the
services and obligations herein contained; and
(b)
Employee’s
execution of this Agreement, and his performance of the services and obligations
herein contained, do not and will not constitute (i) a default or an event
that, with or without notice or lapse of time or both, would be a default,
breach or violation of any agreement, contract, instrument or arrangement to
which Employee is a party or by which Employee is bound, or (ii) a material
violation of any law, judgment, rule, regulation, order or decree to which
Employee, to his knowledge, is subject.
4. Compensation and
Benefits.
4.1 Base Salary. As base
compensation for all services to be rendered by Employee under this Agreement
during the Employment Period, the Company shall pay to Employee an annual base
salary of no less than $[_______]1. The
annual base salary shall be paid in accordance with the Company’s normal payroll
procedures and policies.
4.2 Incentive
Compensation. In addition to the base compensation to which
Employee is entitled under Section 4.1, Employee shall be entitled to receive up
to 80,000 shares of common stock, par value $0.001 per share, of SSGI, Inc., a
Florida corporation and the parent company of the Company (the “Common Stock”),
issuable to Employee in accordance with the following terms of this Section
4.2. Such shares of Common Stock (the “Restricted Shares”)
shall vest and be issued to Employee in accordance with the following vesting
schedule, if (and only if) Employee is still employed with the Company on the
applicable date set forth below:
|
Still employed on and
after*
|
Number
of the Restricted Shares vesting and issuable on the applicable
date listed in the column to the
left
|
|||
|
May
13, 2011
|
26,667 | |||
|
May
13, 2012
|
26,667 | |||
|
May
13, 2013
|
26,666 | |||
* Each of
the one (1) year periods listed above shall be referred to herein as the
“Restricted Period Year”.
1 $140,100 for Xxxxxxx X. Xxx; $119,500
for Xxxx X. Xxxxx; and $105,200 for Xxxxxxx X. Denmark.
2
If Employee’s employment with the
Company is terminated by the Company for “Cause” (as defined in Section 7.1(c)
below) or if the Employee voluntarily terminates his employment with the Company
at any time prior to May 13, 2013 (the final vesting date), then (i) Employee
shall have no further rights to receive the Restricted Shares which have not
become vested on and as of the date of such termination in accordance with the
foregoing schedule, and (ii) the Company shall have no further duty or
obligation to issue to Employee such unvested Restricted Shares. If the Employee
is terminated without Cause by the Company or if the Employee dies or becomes
disabled prior to May 13, 2013, the Employee shall receive, as vested, a
one-twelfth share of the Restricted Shares for each Whole Month, as defined
below, of work completed during the then current Restricted Period Year (for
example, if the Employee had worked 115 days during the Restricted Period Year
when terminated (the equivalent of 3.5 Whole Months) and would have received 100
Restricted Shares if he had worked the full term of the Restricted Period Year,
then the Company shall issue to the Employee 25 of the 100 Restricted Shares (3
Whole Months divided by 12 months multiplied by 100 Restricted
Shares). (“Whole Months” means a
thirty (30) day interval which will begin on the date of this Agreement and each
new Restricted Period Year.) Employee shall be entitled to retain the
Restricted Shares which have vested and been issued to Employee on or before the
termination date of Employee’s employment with the Company.
4.3 Other
Benefits. During the Employment Period, the Company shall
provide Employee and his dependents (if applicable) with health insurance in
accordance with the Company’s health insurance policy in effect from time to
time. In addition, the Company shall make available to Employee for
his use a Company-owned vehicle (and will pay or reimburse Employee for gas and
insurance premiums necessary for the operation of such vehicle).
4.4 Expenses. During the
Employment Period, the Company shall pay or reimburse Employee for all
reasonable and necessary out-of-pocket expenses incurred by Employee in the
performance of his duties under this Agreement, subject to the presentment by
Employee of appropriate vouchers in accordance with the Company’s normal
policies for expense verification.
4.5 Vacation. Employee
shall be entitled to vacation time during the Employment Period in accordance
with the Company’s vacation policy as in effect from time to time (currently,
two weeks per calendar year, in addition to five personal/sick days per calendar
year). Any vacation taken by Employee shall be taken at such time as
is reasonably convenient in relationship to the needs of the business of the
Company, as determined in the reasonable discretion of the
Company. Vacation time shall not accrue beyond the calendar year in
question.
4.6 Continuing Education and
Licenses. During the Employment Period, the Company shall pay for
Employee’s continuing education, including, but not limited to, course fees,
travel expenses and hotel fees, as required to maintain Employee’s then current
licenses with the issuers and to pay all of the Employee’s fees to maintain his
license and to obtain additional licenses with the issuers of the
licenses.
3
5. Confidential Information;
Noncompetition and Nonsolicitation.
5.1 Confidential
Information. Employee acknowledges that, during the course of
his employment by the Company, Employee will become privy to certain
Confidential Information (hereinafter defined), and the Company hereby agrees to
provide Employee with Confidential Information. Accordingly, Employee
agrees that he shall not, both during and after the Employment Period, without
the prior written consent of the Company, except as required to perform his
duties of employment with the Company, use, disseminate, disclose, or
communicate any Confidential Information to any person or entity inside or
outside the United States. Employee acknowledges that the Confidential
Information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company and that
any disclosure or other use of any Confidential Information other than for the
sole benefit of the Company would be wrongful and may cause irreparable harm to
the Company. Both during and after the Employment Period, Employee
will refrain from any acts or omissions that would reduce the value of any
Confidential Information to the Company. The foregoing obligations of
confidentiality shall not apply to any Confidential Information which is now
published or which subsequently becomes generally publicly known other than as a
direct or indirect result of the breach of this Agreement by
Employee. As used herein, the term “Confidential
Information” means all information relating or belonging to the Company
or any of its affiliates that is disclosed or made known to Employee as a direct
or indirect consequence of or through his employment with the Company that is
not generally known in the industries in which the Company or any of its
affiliates is or may become engaged, including, but not limited to, information
about (i) the customers and vendors of the Company and its affiliates
(including, without limitation, their identities); (ii) profitability and other
financial information; (iii) past, present, and future plans with respect to the
business of the Company; (iv) strategies, processes and techniques; (v) any
Company system, procedure, or administrative operation; and (vi) present or
future plans for the extension of the present business or commencement of a new
business of the Company or any affiliate of the
Company. Notwithstanding the foregoing, nothing in this Agreement
shall prohibit or restrict Employee from contacting or doing business with any
of the customers, suppliers, vendors or any other contacts of the Company, who
are generally known in the business or industry (the “Customers”) after the
expiration of the Covenant Period (as defined in Section 5.4 below), or prohibit
or restrict Employee from contacting or doing business with Customers during the
Covenant Period so long as such activities would not violate the provisions of
Section 5.4 below.
5.2 Third Party
Information. Employee recognizes that the Company and its affiliates have
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on their parts to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Employee agrees that he owes the Company, its affiliates, and such
third parties, during the Employment Period and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person or entity (except as necessary in carrying out his
duties for the Company consistent with the Company’s agreement with such third
party) or to use it for the benefit of anyone other than for the Company or such
third party (consistent with the Company’s agreement with such third party)
without the express written authorization of the Company or its affiliates, as
the case may be.
5.3 Returning Company
Documents. When Employee ceases to be an employee of the
Company, Employee shall promptly deliver all documents, memorandum, records,
notes, and other materials in his possession, whether prepared by him or others,
and all copies thereof, that contain Confidential Information, and Employee
shall have no rights therein.
4
5.4 Noncompetition
Covenant. Employee covenants and agrees that he shall not (and
shall not permit any of his affiliates to), directly or
indirectly, engage in the business of designing, constructing or maintaining
retail or industrial petroleum facilities within any state in which the Company
or any of its affiliates is doing business in any manner or capacity (including,
without limitation, as an advisor, consultant, principal, agent, partner,
officer, director, stockholder, employee, member of any association or
otherwise) for the duration
of the Employment Period and for 12 months thereafter (the “Covenant
Period”). Notwithstanding the foregoing, if Employee’s
employment with the Company is terminated for any reason other than by the
Company for “Cause” (as defined in Section 7.1(c) below) or voluntarily by
Employee, then for purposes of this Section 5.4 the “Covenant Period” shall be
deemed to end on the date of such termination of Employee’s employment with the
Company.
5.5 Nonsolicitation
Covenant. Employee covenants and agrees that for the duration of the Covenant Period,
Employee will not directly solicit or aid the solicitation of any person who is
employed by the Company to leave his or her employment with the
Company.
5.6 Scope. Employee
acknowledges and agrees that the length and scope of the restrictions contained
in Sections 5.4 and 5.5 are reasonable and necessary to protect the legitimate
business interests of the Company. Employee further acknowledges and
agrees that the restrictions contained in Sections 5.4 and 5.5 are valid and
enforceable under Florida law and that he will immediately notify the Company’s
Chief Executive Officer in writing should he believe or be advised that the
restrictions are not, or likely are not, valid or enforceable under Florida law
or the law of any other state that he contends or is advised is applicable. The
duration of the agreements contained in Sections 5.4 and 5.5 shall be extended
for the amount of any time of any violation thereof and the time, if greater,
necessary to enforce such provisions or obtain any relief or damages for such
violation through the court system. The Company may, at any time by written
notice, reduce the length or scope of any restrictions contained in Sections 5.4
and 5.5 and, thereafter, Employee shall comply with the restriction as so
reduced, subject to subsequent reductions. If any covenant in Section
5.4 or 5.5 is held to be unreasonable, arbitrary, or against public policy, such
covenant will be considered to be divisible with respect to scope and time, and
such lesser scope or time, or both of them, as an arbitrator or a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against
Employee. In the event of termination of Employee’s employment with
the Company for any reason, Employee consents to the Company communicating with
Employee’s new employer, any entity in the business in which the Company engages
or through or in connection with which Employee is restricted hereunder, or any
other party about the restrictions and obligations imposed on Employee under
this Agreement.
6. Ventures. If,
at any time during the Employment Period, Employee is engaged or associated with
the planning or implementing of any project, program or venture involving the
Company or any of its affiliates and a third party or parties, all rights in
such project, program or venture shall belong to the Company or such affiliates,
as the case may be. Except as formally approved in writing by the
Company, Employee shall not be entitled to any interest in such project, program
or venture or to any commission, finder’s fee or other compensation in
connection therewith other than the base salary and other compensation to be
paid to Employee as provided in this Agreement.
5
7. Termination.
7.1 Bases for
Termination. This Agreement and the employment relationship created
hereunder between the Company and Employee shall terminate prior to the end of
the term specified in Section 2 hereof only upon the occurrence of any one of
the following events:
(a) The
death of Employee;
(b)
The
permanent disability of Employee, which, for purposes of this subsection (b),
shall mean when Employee is unable to continue his normal duties of employment,
by reason of a medically determined physical or mental impairment, for a
continuous period of nineteen (19) consecutive weeks or for any twenty-six (26)
weeks within a fifty-two (52) week period (or such longer period, not to exceed
thirty-eight (38) weeks, if the Company’s disability insurance policy requires a
benefit waiting period longer than such twenty-six (26)
period);
(c)
Delivery
to Employee by the Company of written notice of termination for Cause (for
purposes of this Agreement, “Cause” shall mean (i)
commission by Employee of an act of material willful dishonesty toward the
Company, (ii) a material breach by Employee of a fiduciary duty owed to the
Company, (iii) a willful violation by Employee of any material law, rule or
regulation applicable to the Company or its business that has a material adverse
effect on the Company or its business (except for violations arising from a
conflict between applicable laws), (iv) a material breach by Employee of any
provision of this Agreement and the breach is not cured within ten (10) days
after written notice thereof is delivered to Employee, (v) the conviction of
Employee of a felony or other non-felonious crime involving moral turpitude (or
a plea of nolo
contendere
thereto), or (vi) Employee’s refusal or failure to follow a legal directive from
Employee’s superiors that is within the scope of Employee’s employment and such
refusal or failure is not cured within ten (10) days after written notice
thereof is delivered to Employee.
(d)
Delivery
to Employee by the Company of written notice of termination without Cause;
or
(e)
15 days
after delivery to the Company by Employee of written notice of Employee’s
voluntary and unilateral termination of this Agreement;provided, however, that the
Company may elect to pay Employee 15 days’ base salary in lieu of Employee’s
final 15 days of employment hereunder.
Notwithstanding
any termination of this Agreement, Employee, in consideration of his employment
hereunder to the date of such termination, agrees to remain bound by the
provisions of this Agreement that specifically relate to periods, scope,
activities or obligations upon or subsequent to the termination of Employee’s
employment, including, without limitation, the provisions of Sections 5 and 7.3
hereof.
6
7.2 Effect of
Termination.
(a)
If
this Agreement is terminated pursuant to clause (a), (b), (c) or (e) of Section
7.1 hereof, Employee shall be entitled to receive his base salary pro-rated
through the effective date of such termination, which pro-rated base salary
shall be paid to Employee within 15 days of such effective
date. Employee shall also be entitled to reimbursement for
expenses incurred by Employee prior to such effective date, which unreimbursed
expenses shall be paid to Employee within 15 days after Employee submits to the
Company appropriate documentation of such unreimbursed
expenses.
(b)
If
this Agreement is terminated pursuant to clause (d) of Section 7.1 hereof,
Employee shall be entitled to receive (as severance pay) 12 months of his base
salary in effect as of the date immediately prior to the effective date of such
termination, payable in accordance with the Company’s normal payroll procedures
and policies; provided, however, that
Employee’s right to the foregoing severance is specifically conditioned upon him
releasing the Company from any and all claims relating to wrongful discharge
pursuant to the Company’s then current form of release. The Company shall also
reimburse Employee for expenses incurred by Employee prior to such effective
date, which unreimbursed expenses shall be paid to Employee within 15 days after
Employee submits to the Company appropriate documentation of such unreimbursed
expenses.
Except as specifically provided in this
Section 7.2 above, Employee shall not be entitled to any compensation, benefits
or other remuneration as a result of any termination of his
employment.
7.3 Surrender of Records and
Property. Upon termination of his employment with the Company, Employee
shall promptly deliver to the Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables,
calculations and copies thereof, which are the property of the Company or which
relate in any way to the businesses, practices or techniques of the Company, and
all other property, trade secrets and Confidential Information of the Company,
including, without limitation, all documents which in whole or in part contain
any trade secrets or other Confidential Information of the Company which in any
of these cases are in his possession or under his control.
8. Miscellaneous.
8.1 Governing Law; Exclusive
Jurisdiction and Venue. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF FLORIDA AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED WITHIN SAID STATE. Each of the Company and Employee (a)
hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Southern District of Florida and the courts of the
State of Florida located in Palm Beach County, Florida, for the purposes of any
suit, action or proceeding arising out of or relating to this Agreement, and (b) hereby waives, and agrees not
to assert in any such suit, action or proceeding, any claim that he or it is not
personally subject to the jurisdiction of any such court, that the suit, action
or proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper.
7
8.2 Entire Agreement.
This Agreement contains the entire agreement of the parties hereto relating to
the employment of Employee by the Company and the other matters discussed herein
and supersedes all prior agreements and understandings with respect to such
subject matter, and the parties hereto have made no agreements, representations
or warranties relating to the subject matter of this Agreement which are not set
forth herein.
8.3 Withholding Taxes.
The Company may withhold from any compensation or other benefits payable under
this Agreement all federal, state, city or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
8.4 Supplements and
Amendments. This Agreement may be supplemented or amended only upon the
written consent of each of the parties hereto.
8.5 Assignment. This
Agreement shall not be assignable, in whole or in part, by either party without
the prior written consent of the other party, except that the Company may,
without the prior written consent of Employee, assign its rights and obligations
under this Agreement to any affiliate of the Company or to any other
partnership, corporation, firm or other business entity with or into which the
Company may merge or consolidate, or to which the Company may sell or transfer
all or substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or is
under common ownership with, the Company.
8.6 No
Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any provisions
of this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
8.7 Severability. The
provisions of this Agreement are severable, and if any one or more provisions
may be determined to be judicially unenforceable and/or invalid by a court of
competent jurisdiction, in whole or in part, the remaining provisions shall
nevertheless be binding, enforceable and in full force and effect.
8.8 Titles and Headings.
The titles and headings of the various Sections of this Agreement are intended
solely for convenience of reference and not intended for any purpose whatsoever
to explain, modify or place any construction upon any of the provisions
hereof.
8.9 Attorneys’ Fees. In
the event that any party hereto brings suit against the other party, based upon
or arising out of a breach or violation of this Agreement, each party hereto
agrees that the party who is successful on the merits, upon final adjudication
from which no further appeal can be taken or is taken within the time allowed by
law, shall be entitled to recover her or its reasonable attorneys’ fees and
expenses from the party which is not successful.
8
8.10 Injunctive
Relief. Employee agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including, without limitation, the provisions of Sections 5 and
7.3 hereof. Accordingly, Employee specifically agrees that the
Company shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of this Agreement and that such relief may be granted
without the necessity of proving actual damages. This provision with
respect to injunctive relief shall not, however, diminish the right of the
Company to claim and recover damages in addition to injunctive
relief.
8.11 Counterparts; Facsimile
Signatures. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument. This Agreement may be duly executed by facsimile
signature, with a manually executed copy to follow.
[Remainder
of page intentionally left blank; signature page to follow.]
9
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of the date first above
written.
|
SURGE
SOLUTIONS GROUP, INC.
|
||
|
By:
|
||
|
Xxxxx
X. Xxxxxxxxx, Xx., President &
CEO
|
||
|
EMPLOYEE:
|
||
|
By:
|
||
|
[________________]
|
||
10
