EX-10.ii.b
EMPLOYMENT AGREEMENT
Agreement made this 1st day of October, 1999 by and between Global
Resources Group, Inc., a Utah corporation (the "Company") having its principal
place of business at 100 second Xxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxxxxxxx,
Xxxxxxx, and Xxx Xxxxx (the "Employee") currently residing at 000 Xxxxx Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxxxx.
BACKGROUND INFORMATION
The Company wishes to secure the employment services of the Employee
for a definite period of time and upon the particular terms and conditions
hereinafter set forth. The Employee is willing to be so employed.
Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
1. Employment and Term.
The Company hereby employs Employee and the latter hereby accepts
employment by the Company for a (3) year term commencing on October 1, 1999,
(the "Commencement Date") and expiring September 30, 2002, which employment
shall be automatically extended for unlimited successive two (2) year terms
unless it is terminated during any such term, whether initial or extended, by
the occurrence of one of the events described in Section 8 or at the end of any
such term (subject to extension by operation of the disability provisions
contained in Section 8) by one party furnishing the other with written notice,
at least one hundred twenty days notice (120) days prior to the expiration of
such term, of any intent to terminate this Agreement upon the expiration of
current term.
2. Duties.
During the term of this Agreement, whether initial or extended, the
Employee shall render to the Company services as Chief Executive Officer and
shall perform such duties as may be designated by and subject to the supervision
of the Company's Board of Directors, and shall serve in such additional
capacities appropriate to his responsibilities and skills as shall be designated
by the Company, through action of its Board of Directors. During such period,
the Employee shall devote his full attention, time and energies to the business
affairs of the Company (subject to the terms of Section 4. below), and will use
his best efforts to promote the interests and reputation of the Company;
provided that he may pursue such non-competitive activities during weekdays and
on weekends, such as teaching, entertaining, consulting or other remunerative or
non-remunerative affairs, as do not interfere, with the complete performance of
his obligations hereunder. Hours of service to the Company during the term of
this Agreement shall be a minimum of forty per week. During the term of this
Agreement, without his written consent, the Company shall not remove the
Employee's permanent place of business from Tampa / St. Petersburg area of
Florida.
3. Compensation.
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For the services to be rendered by the Employee under this Agreement,
the Company shall pay him, while he is rendering such services and performing
his duties hereunder, and the Employee shall accept as full payment for such
service, a base compensation of $150,000 per year, (inclusive of any amounts
subject to federal or state employment related withholding requirements),
payable in arrears in equal installments on the last business day of each week
occurring during the period of employment or otherwise as the parties may agree.
Such base compensation may be periodically increased on any anniversary of the
Commencement Date to take into account superior performance or increases, if
any, in the annual cost of living, and may at such time be supplemented by
discretionary bonuses or other benefits payable from time to time, all as
determined by action of the Company's Board of Directors.
4. Vacation; Fringe Benefits; Reimbursement of Expenses.
The Employee shall be entitled to three (3) weeks of fully paid
vacation during the initial and each extended term of this Agreement. He shall
not be entitled to receive monetary or other valuable consideration for vacation
time to which he is entitled but does not take. The timing of vacation periods
shall be within the discretion of the Company, reasonably exercised so as not to
unnecessarily inconvenience the Employee.
During his period of employment hereunder, the Employee shall further
be entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plans as the Company may make
generally available to all of its executive employees from time to time;
subject, however, as to such plans, to such budgetary constraints or other
limitations as may be imposed by the Board of Directors of the Company from time
to time; and (b) reimbursement for all normal and reasonable expenses
necessarily incurred by him in the performance of his obligations hereunder,
subject to such reasonable substantiation requirements as may be imposed by the
Company. (c) Paid Holidays as approved by the Company for all employees.
5. Proprietary Interests.
During or after the expiration of his term of employment with the
Company, the Employee shall not communicate or divulge to, or use for the
benefit of, any individual, association, partnership, trust, corporation or
other entity except the Company, any proprietary information of the Company
received by the Employee by virtue of such employment, without first being in
receipt of the Company's written consent to do so.
6. Restrictive Covenant.
During the term of his employment hereunder and for one year following
the termination thereof for any reason other than (a) the Company's
discontinuance of activities; (b) an adjudication of the Company's material
breach of any of its obligations set forth in Sections 1-4, inclusive; or (c) a
termination of the Employee by the Company under the provisions of subparagraph
d (2) of Section 8, the Employee shall not, directly or indirectly, engage in or
become an owner of, render any service to, enter the employment of, or represent
or solicit for any business which competes with any activity of the Company
conducted at any time during the Employee's period of employment and which is
located in any county of the State of Florida in which the Company shall
maintain activity. The parties expressly agree that the duration and
geographical area of this restrictive covenant are reasonable.
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This covenant shall be construed as an agreement independent of any
other provision herein, and the existence of any claim or cause of action of the
Employee against the Company regardless of how arising, shall not constitute a
defense to the enforcement by the Company of its terms. If any portion of the
covenant is held by a court of law to be unenforceable with respect either to
its duration or geographical area, for whatever reason, it shall be considered
divisible both as to time and geographical area, so that each month of the
specified period shall be deemed a separate period of time and each county
within the State of Florida a separate geographical area, resulting in an
intended requirement that the longest lesser period of time or largest lesser
geographical area found by such court to be a reasonable restriction shall
remain an effective restrictive covenant, specifically enforceable against the
Employee.
Notwithstanding any statement contained in this Section to the
contrary, legal or beneficial ownership by the Employee of a less than five
percent (5%) interest in a competitive corporation at least one (1) class of
capital stock of which is publicly traded on a national or regional stock
exchange or by means of an electronic interdealer quotation system, shall not be
deemed to constitute a breach by the Employee of the terms hereof.
7. Remedies for Breach of Employee's Obligations.
The parties agree that the services of the Employee are of a personal,
specific, unique and extraordinary character and cannot be readily replaced by
the Company. They further agree that in the course of performing his services,
the Employee will have access to various types of proprietary information of the
Company, which, if released to others or used by the Employee other than for the
benefit of the Company, in either case without the Company's consent, could
cause the Company to suffer irreparable injury. Therefore, the obligations of
the Employee established under Sections 5 and 6 hereof shall be enforceable both
at law and in equity, by injunction, specific performance, damages or other
remedy; and the right of the Company to obtain any such remedy shall be
cumulative and not alternative and shall not be exhausted by any one or more
uses thereof.
8. Modifications and Termination.
a. Modification. This Agreement may be amended or modified
only with the mutual written consent of the parties, and in its present form
consists of the entire Agreement between the parties.
b. Termination - General. This Agreement is subject to termination
prior to the expiration of its initial or any extended term, if by the Employee
upon delivery to the Company of written notice of such intention, which notice
shall be deemed to result in termination one hundred twenty days (120) days
after its receipt by the Company (the Company having the right following such
receipt to accelerate the effective date of termination but retaining the
obligation to pay Employee his compensation due for the full period); and if by
the Company upon the occurrence of any one of the following events: (a) the
complete discontinuance of the Company's activities; (b) the death of the
Employee; (c) the occurrence to Employee of a physical or mental disability
which, in the judgment, reasonably exercised, of the Board of Directors, renders
him unable to perform his normal duties on behalf of the Company for a
continuous period of three(3) months (measured from the first day of the month
immediately following the occurrence of such disability); or (d) a determination
by the Board of Directors that there is cause (as described in subsection d.
below) to terminate Employee's employment.
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c. By Death or Disability. In the event of the Employee's death, his
base compensation otherwise due for the succeeding six full calendar months
following his death shall be paid to his Beneficiary. In the event of his
disability, for the period ending on the last business day of the third calendar
month following the occurrence of such disability, the Employee shall be paid
his base compensation (reduced by any amount received by the Employee under the
terms of any disability insurance policy maintained by the Company at its sole
expense); thereafter, for the succeeding three shall be treated as being on an
authorized but unpaid leave of absence.
d. For Cause. In the event of a decision by the Board of Directors to
terminate Employee's employment for cause:
(1) If, in the judgment of the Company's Board of Directors,
reasonably exercised, such termination is due to (i) the
Employee's willful misconduct or gross negligence; (ii) his
conscious disregard of his obligations hereunder or of any
other duties reasonably assigned him by the Company; (iii) his
repeated conscious violation of any provision of the Company's
By-Laws or of its other stated policies, standards or
regulations; (iv) his commission of any act involving moral
turpitude; or (v) a determination that he has demonstrated a
dependence upon any addictive substance, including alcohol,
controlled substances, narcotics or barbiturates; then, upon
termination, he shall be entitled to receive severance pay in
an amount equal to 12.5% of his annual base compensation. As a
condition precedent to the Company's right to terminate this
Agreement for one of the causes specified in the preceding
sentence which requires a repeated action or omission by the
Employee [clauses (i), (ii) and (iii)], there shall have been
created by the Company and furnished to the Employee, within
the sixty (60) day period immediately following commission of
the proscribed act or omission, a written description thereof
and a statement and a statement advising him that the Company
views such conduct as being of the type which could lead to a
termination of this Agreement under the provisions of Section
8d. Further, if the Company seeks to terminate this Agreement
on the basis of clause (iii), it must be able to demonstrate
that the Employee has been furnished with a copy of the By-Law
provision, or of the policy, standard or regulation, which he
is being accused of having violated, at a time prior to the
alleged commission of the violation.
(2) if such termination is for a cause (the nature of which
may be arbitrarily determined) other than as specified in
subparagraph ((1)) above, he shall be entitled to receive:
(a) if before 10-1-2000 5% of his annual base
(b)10-1-2000 to 9-30-2001 50% of annual base.
(c) 10-1-2001 to 0-00-000000% of annual base.
(d) 10-1-2002 forward 100% of annual base.
e. Payment of Termination Compensation
Effectiveness of Certain Obligations. Any compensation or
severance due the Employee as a result of the premature termination of his
employment status shall be paid to him within seven (7) days after termination
as one lump sum. No termination or expiration of this Agreement, whether
consummated by action of either party or by operation of the terms hereof, shall
relieve the Employee from his continued performance of the obligations
established under Sections 5 and 6.
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9. Indebtedness of Employee. If, during the course of his employment,
Employee becomes indebted to the Company for any reason, the Company shall, if
it so elects, have the right to set-off and to collect any sums due it from the
Employee out of any amounts which it may owe to the Employee for unpaid
compensation. In the event that this Agreement terminates for any reason, all
sums owed by the Employee to the Company shall become immediately due and
payable.
10. Miscellaneous Provisions.
a. Nonassignability: Neither this Agreement nor any
right or interest hereunder shall be assignable by the Employee, his
Beneficiary of his legal representatives except as otherwise
expressly provided herein.
b. Enforceability: If any term or condition or this Agreement
shall be invalid or unenforceable to any extent or in any application,
then the remainder of this Agreement, and such term or condition except
to such extent or in such application, shall not be affected thereby
and each and every term and condition of this Agreement shall be valid
and enforced to the fullest extent and in the broadest application
permitted by law.
c. Notice: All notices or other communications required or
permitted to be furnished pursuant to this Agreement shall be in
writing and shall be considered as properly furnished if hand
delivered, mailed from within the United States by certified or
registered mail, or sent by prepaid telegram to the recipient party at
the address appearing in the preamble to this Agreement or to such
other address as any such party may have designated by like notice
forwarded to the other party hereto. Change of address notices shall be
deemed furnished when received. All other notices shall be deemed
furnished when mailed, telegraphed or hand delivered.
d. Application of Florida Law: This Agreement, and the
application or interpretation thereof, shall be governed exclusively by
its terms and by the laws of the State of Florida. Venue shall be
deemed located in Sarasota County, Florida.
e. Counterparts: This Agreement may be executed by any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
f. Binding Effect: Each of the provisions and agreements
herein contained shall be binding upon and inure to the benefit of the
personal representatives, devisees, heirs, successors, transferees and
assigns of the respective parties hereto.
g. Beneficiary: As used herein, the term "Beneficiary" shall
mean the person or persons (who may be designated contingently or
successively and who may be an entity other than an individual,
including an estate or trust) designated on a written form prescribed
by the Board of Directors to receive the expiration of Agreement or
death benefits described in Section 8 above. Each Beneficiary
designation shall be effective only when filed with the Secretary of
the Company during the Employee's lifetime. Each Beneficiary
designation filed with the Secretary will cancel all designations
previously so filed.
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If the Employee fails to properly designate a Beneficiary or
if the Beneficiary predeceases the Employee or dies before complete
distribution of the benefit has been made, the Company shall distribute
the benefit (or balance thereof) to the surviving spouse of the
Employee or if he/she be then deceased to the Employee's estate.
h. Legal Fees and Costs: If a legal action is initiated by any
party to this Agreement against another, arising out of or relating to
the alleged performance or non-performance of any right or obligation
established hereunder, or any dispute concerning the same, any and all
fees, costs and expenses reasonably incurred by successful party or
legal counsel thereof, in investigating, preparing for, prosecuting,
defending against, or providing evidence, producing documents or taking
any other action in respect of, such action shall be the joint and
several obligation of and shall be paid or reimbursed by the
unsuccessful party.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
as of the date stated above.
Attest: Global Resources Group, Inc.
By: _________________________ By: O. Xxxxxx Xxxxxxxxxxx, Xx.
O. Xxxxxx Xxxxxxxxxxx, Xx.
Chairman of the Board
Witnesses: EMPLOYEE
Sign _________________________ Xxx Xxxxx
Xxx Xxxxx
Print _________________________
GRGL11.
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