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EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 1st day of March, 1997 by and between U.S. ENERGY SYSTEMS, INC., a
Delaware corporation (hereinafter referred to as "Company"), and XXXXXXXX PAGE,
a resident of the State of Nevada (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employee has certain knowledge and experience with respect to
the type of business and affairs conducted by the Company;
WHEREAS, the Company desires to obtain the services of and employ the
Employee, and the Employee desires to make his services available to the
Company, pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the Company and Employee covenant and agree as
follows:
1. EMPLOYMENT. The Company agrees to employ the Employee and the
Employee agrees to render services to the Company pursuant to the terms and
conditions of this Agreement. During the term of Employment, the Employee shall
diligently perform all services as may be reasonably assigned to him by the
President of the Company (the "President"), and shall exercise such power and
authority as may from time to time be delegated to him by the President. The
Employee shall devote his full time and attention to the business and affairs
of the Company, render such services to the best of his ability, and use his
best efforts to promote the interests of the Company.
2. TERM. The employment of the Employee hereunder shall commence as of
March 1, 1997 and shall continue for a period of two (2) years or until
the earlier termination of this Agreement by either of the parties as provided
herein (the "Term"). This Agreement shall automatically renew for unlimited
additional one (1) year terms unless either party shall have given the other
written notice of its intent not to so renew at least sixty (60) days prior to
the expiration of the current one (1) year term. After expiration of the Term
and the termination of Employee's employment hereunder, the Employee shall
continue to be subject to the provisions of paragraphs 14 and 15 and the other
provisions of this Agreement related thereto.
3. COMPENSATION. During the period of employment, the Company shall
pay or provide to the Employee as compensation for the services of the Employee
a salary of Ninety Thousand Dollars ($90,000.00) per annum, payable in
semi-monthly installments. The Company shall review Employee's salary at least
annually and if the Company determines to make a salary adjustment, then
Employee's new salary shall commence effective on the annual anniversary date
of the execution of this Agreement or at such other time as determined by the
Company. In addition to the base salary set forth above, Employee shall receive
upon the signing of this Agreement options to purchase
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30,000 shares of the common stock of the Company (the "Options") pursuant to
the Company's 1996 Stock Option Plan, and which Options, the terms and prices
thereof, shall be evidenced by the Stock Option Agreement attached to this
Agreement.
4. INCENTIVE COMPENSATION. In addition to the base salary and Options
granted pursuant to Section 3 hereof and the Stock Option Agreement, the
Employee may receive an annual incentive performance bonus, in such amount and
at such time as determined by the President and the Board with consideration of
the then current annual net revenues of the Company, the job performance of the
Employee, other related objective criteria determined by the President and the
Board.
5. PERFORMANCE OF DUTIES. The Employee agrees to devote his efforts,
attention and ability on a full time basis to the business and affairs of the
Company in the discharge of his duties and responsibilities under this
Agreement. The Employee shall have such responsibilities, duties and title(s)
as may be set forth by the President and the Board of the Company or by such
other person as may be designated by the President. The Employee's initial
title shall be Vice President/Western Resources and the Employee shall report
directly to the President or to such other person as designated by the
President. As an employee of Company, Employee shall be bound by a fiduciary
duty to act exclusively for the benefit of Company, and shall not engage in any
transactions for his personal benefit at the expense of Company, or which
otherwise may present a conflict of interest, without the prior consent of the
Board of the Company. The Employee shall render such services to the best of
his ability, and use his best efforts to promote the interests of the Company.
6. VACATION/HOLIDAYS. The Employee shall be entitled to two (2) weeks
paid vacation per year during Employee's employment with the Company. Employee
may only take such vacation at such time or times during each year as shall be
approved by the President. Vacation time that is not taken or used in excess of
four weeks shall expire and shall not carry forward. Employee shall also be
entitled to observe that number of holidays annually (not to exceed eight (8)
days per year unless approved by the President) that are taken as holidays by
the Company. The Employee shall be entitled to full compensation accruing
during his vacation period and approved holidays.
7. REIMBURSEMENT OF EXPENSES. Upon submission of reasonable
documentation satisfactory to the Company, the Company shall reimburse the
Employee for his reasonable and ordinary expenses incurred in connection with
his employment hereunder that have been approved in advance by the Company
("Reimbursements"). The parties understand and agree that the reimbursable
expenses shall normally consist of lodging, per diem, transportation expenses
(other than to and from work) and other out of pocket expenses incurred in the
performance of the duties hereunder. Lodging expenses including rates,
locations and accommodations may be subject to the prior approval of the
Company. Airfare and other transportation expenses shall be subject to the
prior approval of the Company. Employee acknowledges that the Company shall not
approve first class airfare accommodations or other costly modes of travel when
less costly means are available.
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8. POLICIES AND PROCEDURES. The Board of the Company shall have the
exclusive authority to establish from time to time policies, procedures and
regulations to be followed by the Employee in fulfilling and discharging his
duties under this Agreement. The Employee agrees to comply with such policies,
procedures and regulations as the Company may promulgate from time to time.
9. REMOVAL FOR DISABILITY. The Board may at any time remove the
Employee for reasons of disability, resulting from illness or injury, such that
the Employee is unable to perform the essential job functions associated with
his employment by the Company with or without reasonable accommodation for a
continuous period of six (6) months or more when coupled with a statement from
a physician (who is not an employee of the Company and is qualified to practice
medicine by the State of Nevada and is qualified in the particular specialty of
medicine that relates to the disability in question) that such disability is
permanent or likely to continue for six (6) months or more. The Employee, by
signature to this Agreement, agrees, in the case of a question of disability,
to subject himself to examination by a physician(s) of the Company's choosing.
10. TERMINATION BY COMPANY. For any reason the Company by action taken
by its Board, may terminate the employment of the Employee at any time and
immediately upon written notice to the Employee if such termination is for
cause, or upon 60 days written notice to the Employee if such termination is
without cause. In the notice of termination furnished to the Employee under
this paragraph 10, the reason or reasons for said termination shall be given,
if the termination is for cause. By way of illustration, any one or more of the
following conditions shall be deemed to be grounds for termination of the
employment of the Employee for cause under this Agreement:
i. In the event the Employee shall fail or refuse to comply
with the duties and responsibilities assigned to him as an employee,
or with the policies, procedures or regulations of the Company from
time to time established;
ii. In the event the Employee shall fail or refuse to report
for work at any time(unless otherwise excused by the Board); and
iii. In the event that the Employee conducts himself in an
unprofessional, immoral, criminal or fraudulent manner, or should the
Employee's conduct discredit the Company or be detrimental to the
reputation, character and standing of the Company.
In the event of termination for cause by the Board, the Company shall
have no further obligations to the Employee hereunder as of the date of
termination, other than to pay Employee any unpaid salary or reimbursement
accrued through the effective date of termination specified in the written
notice. In addition, upon termination of the Employee for case, all unexercised
Options, whether vested or un-vested at the time of giving notice, shall expire
immediately and shall become void and non-exercisable. In the event of
termination by the Board without cause, the Company shall have no further
obligations to the Employee as of the date of termination other than to pay
Employee (i) any unpaid salary reimbursement accrued through the effective date
of termination
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specified in the written notice, and (ii) a severance payment equal to one (1)
days salary for each month Employee is employed by the Company under this
Agreement up to a maximum of sixty (60) days salary. In addition, upon
termination of the Employee without case, all unexercised Options, whether
vested or un-vested at the time of giving notice, shall expire within six
months, at which time all unexercised Options shall become void and
non-exercisable. Such acceleration of the term of the Options shall in no event
accelerate the date that the Options shall vest, and as a result, all Options
which shall not vest within six months of the date of notice of termination of
the Employee without cause shall expire immediately and shall become void and
non-exercisable.
11. TERMINATION BY EMPLOYEE. Employee may at any time give the Company
at least 60 days prior written notice of his termination of employment
hereunder, such termination to be effective at the end of such 60 day notice
period.
12. NOTICE. All notices permitted or required to be given to either
party under this Agreement shall be in writing and shall be deemed to have been
given (i) by mail three (ii) days after the same has been mailed by certified
mail, return receipt requested, and deposited postage prepaid in the U.S.
Mails, addressed to the other party, and (iii) by any other reasonable method,
when actually received by the other party. A copy of any notice hereunder from
Employee to Company shall be sent to the Company at 000 Xxxxx Xxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000. A copy of any notice hereunder from
the Company to Employee shall be sent to the Employee at the address set forth
following the Employee's signature below. Either party may change the address
at which said notice is to be given by giving notice of such to the other party
to this Agreement in the manner set forth herein.
13. CONFIDENTIAL MATTERS. The Employee agrees that during his
employment by the Company and thereafter subsequent to the termination or
expiration of his employment for any reason whatsoever, he will not use for his
own account, or release or divulge or make known for any unauthorized reason or
purpose, any information not otherwise publicly available whatsoever relating
to the Company, to any other person or persons whomsoever without the prior
express written consent of the Company. The Employee is aware and acknowledges
that the Employee shall have access to confidential information by virtue of
his employment and he agrees to keep such information confidential at all
times. The type of confidential information covered by this paragraph shall
include, but is not limited to, customer, contractor or supplier lists, trade
secrets and the Company's proprietary services, processes, software, hardware
and other services and projects performed by the Company. This provision does
not preclude the Employee from discussing such confidential matters with
properly authorized representatives of clients and customers of the Company in
order to carry out his assigned responsibilities and duties during the term of
employment.
14. NON-SOLICITATION/NON-COMPETE. The Employee agrees that during his
employment by the Company and for an additional period of one (1) year from and
after the termination of Employee's employment with the Company, that he shall
not, either directly or indirectly, and whether as principal or as agent,
officer, director, employee, consultant or otherwise, alone or in association
with any other person, solicit for any purpose any employees, clients,
customers,
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contractors or suppliers of the Company, wherever said persons are located, and
not to directly or indirectly carry on, be engaged, concerned or take part in,
render services to, or own any interest in, any business that provides services
to any person or entity for which the Company has provided services at any time
during the one (1) year period preceding the date of termination of the
Employee's employment hereunder. Notwithstanding the above, Employee shall be
free to hold up to a one percent (1%) interest in any publicly traded security
of a business that provides services to any person or entity for which the
Company has so provided services.
In the event of termination by the Company for any reason, Employee
shall be prohibited from employment or consulting services with any company or
other entity operating within the service territory of the Company for a period
of one (1) year from the date of termination.
15. INJUNCTION WITHOUT BOND. In the event there is a breach or
threatened breach by the Employee of the provisions of paragraphs 13 and 14
hereof, the Company shall be entitled to a temporary and permanent injunction
without bond to restrain the Employee from disclosing in whole or in part any
confidential matters or from rendering a service or payment to any person or
business entity, as prohibited thereunder, and the Company will be entitled to
reimbursement for all costs and expenses, including reasonable attorneys' fees,
in connection therewith. Nothing herein shall be construed as prohibiting the
Company from pursuing such other remedies available to it for such breach or
threatened breach including recovery of damages from the Employee.
16. DOCUMENTS AND INFORMATION. The Employee will, at all times upon
request, fully advise and inform the Board of the Company with respect to all
matters which the Employee may be developing or working on while employed by
the Company. The Employee further agrees that upon the expiration or earlier
termination of his employment for any reason whatsoever that he will
immediately deliver and surrender to the Company all materials of any nature
relating to the Company in his possession including, but not limited to, all
client, customer, supplier or contractor lists, processes, analyses, manuals,
software programs, technical and operating data, financial statements, records,
files, and all other material whatsoever furnished to him by the Company or
produced or obtained by him during his employment with the Company.
17. INVALID PROVISION. In the event any provision should be or become
invalid or unenforceable, the validity and enforceability of any other
provision of this Agreement shall not be affected. Similarly, if the scope of
any restriction or covenant contained herein should be or become too broad or
extensive to permit enforcement thereof to its full extent, then any such
restriction or covenant shall be enforced to the maximum extent permitted by
law, and Employee hereby consents and agrees that the scope of any such
restriction or covenant may be modified accordingly in any judicial proceeding
brought to enforce such restriction or covenant.
18. GOVERNING LAW. This Agreement shall be construed in accordance
with and shall be governed by the laws of the State of Florida.
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19. NO THIRD PARTY BENEFICIARY. This Agreement is solely between the
parties hereto and no person not a party to this Agreement shall have any
rights hereunder, either as a third party beneficiary or otherwise.
20. MISCELLANEOUS. The rights and duties of the parties hereunder are
personal and may not be assigned or delegated without the express written
consent of the other party to this Agreement. The captions used herein are
solely for the convenience of the parties and are not used in construing this
Agreement. Time is of the essence of this Agreement and the performance by each
party of its or his duties and obligations hereunder.
21. COMPLETE AGREEMENT. This Agreement constitutes the complete
agreement between the parties hereto and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
U.S. ENERGY SYSTEMS, INC. a Delaware
corporation
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxx, President
EMPLOYEE:
/s/ Xxxxxxxx Page
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Xxxxxxxx Page
Address:
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