EMPLOYMENT AGREEMENT
AGREEMENT made effective as of the 3rd day of November, 1999, by and
between United Petroleum Corporation, a Delaware corporation with its principal
offices at 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxxx 00000 (the
"Company") and Xxx X. Bared, an individual residing at 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxx 00000 (the "Executive").
PRELIMINARY STATEMENT
The Company has agreed to employ the Executive and the Executive has
agreed to accept such employment, all on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable considerations, the receipt and adequacy of
which are hereby conclusively acknowledged, the parties, intending to be legally
bound, agree as follows:
1. Term. The Company hereby employs the Executive as the Chairman and
Chief Executive Officer of the Company (as used herein, reference to the Company
includes its subsidiaries), and the Executive agrees to serve the Company as
such, upon the terms and conditions hereof. The term of employment hereunder
(the "Term") shall commence on the date hereof and continue until November 2,
2002, unless the Term is otherwise terminated in accordance with the provisions
hereof.
2. Duties. (a) Executive shall serve as the Company's Chairman and
Chief Executive Officer, the principal executive officer of the Company, and
shall be responsible for the Company's overall management, operations and
growth. The Executive shall also discharge such duties and authority as are
generally incident to such position, or in such other senior management position
as the Company shall determine, provided that such other position shall be
comparable in authority and responsibility to the position specified above. The
Executive will report only to the Company's Board of Directors. The Executive
will serve as a member of the Board of Directors of the Company during the
entire Term of this Agreement, and shall hold such senior offices and/or such
directorships in the Company and/or any subsidiaries or affiliates of the
Company to which, from time to time, he may be elected or appointed. The Company
shall not require the Executive, directly or indirectly, to violate any
applicable laws, regulations or ethical standards.
(b) The Executive agrees that he will devote substantially all
of his time and attention to the affairs of the Company and use his best efforts
to promote the business and interests of the Company and that he will not
engage, directly or indirectly, in any other business or occupation during the
term of employment, except as provided for in the Management Agreement and as
set forth in this Section 2. The Executive shall be permitted to continue to
conduct the activities identified on Exhibit A hereto. It is understood,
however, that the foregoing will not prohibit the Executive from engaging in
personal investment, charitable and civic activities for himself and his family
which do not interfere with the performance of his duties hereunder.
3. Compensation. The Company will pay the Executive for all services to
be rendered by the Executive hereunder (including, without limitation, all
services to be rendered by him as an officer and/or director of the Company and
its subsidiaries and affiliates):
(a) A salary ("Base Annual Pay") of $ 378,000, in installments
in accordance with customary payroll practices for senior executives of the
Company.
(b) Bonus compensation for each fiscal year of the Company,
based on Executive's performance and the overall performance of the Company,
either on an "ad hoc" basis or pursuant to a bonus plan or arrangement as may be
established at the Company's discretion for senior executives of the Company.
Notwithstanding any conflicting or inconsistent provisions of this Agreement,
bonus compensation shall be payable in such amounts, if any, and at such times,
if any, as determined by the Company's Board of Directors or the Compensation
Committee thereof, in its sole and absolute discretion (and the Board of
Directors shall implement an incentive compensation plan in which the Executive
participates and promptly communicates the criteria therefor to the Executive).
Nothing contained herein shall prohibit the Board of Directors of the
Company, in its sole discretion, from increasing the compensation payable to the
Executive pursuant to this Agreement. The Base Annual Pay shall be reviewed for
potential increase on an annual basis, and in any event, the Executive will
receive an annual raise of at least the greater of 6% or the previous year's
increase in the Consumer Price Index.
4. Expenses. The Executive shall be entitled to reimbursement by the
Company, in accordance with the Company's policies then applicable to senior
executives at the Executive's level, against appropriate vouchers or other
receipts for authorized travel, entertainment and other business expenses
reasonably incurred by him in the performance of his duties hereunder. Without
limiting the generality of the foregoing, the Company will furnish the Executive
with corporate credit cards and a fuel card and pay or reimburse the Executive
for the use of a pager and for two cellular telephones. The Company will also
pay or reimburse the Executive for the expenses of leasing, insuring,
maintaining and operating a car identical or similar to a BMW 740.
5. Executive Benefits. The Executive shall be entitled to participate
in, and receive benefits under, any pension, profit sharing, insurance,
hospitalization, medical, disability, stock purchase, stock option stock
ownership, vacation or other employee benefit plan, program or policy of the
Company which may be in effect at any time during the course of his employment
by the Company and which shall be generally available to senior executives of
the Company occupying positions of comparable status or responsibility, subject
to the terms of such plans, programs or policies. The Executive shall also be
entitled to three (3) weeks' paid vacation per year. Without limiting the
generality of the foregoing, the Executive shall be entitled to receive Group
Health and Dental Insurance coverages for himself and his family at no charge to
Executive.
6. Withholding. All payments required to be made by the Company
hereunder to the Executive shall be subject to the withholding of such amounts
relating to taxes and other governmental assessments as the Company may
reasonably determine it should withhold pursuant to any applicable law, rule or
regulation.
7. Death; Permanent Disability. Upon the death of the Executive during
the term of this Agreement, this Agreement shall terminate. If during the term
of this Agreement the Executive fails because of illness or other incapacity to
perform the services required to be performed by him hereunder for any
consecutive period of more than 90 days, or for shorter periods aggregating more
than 120 days in any consecutive twelve-month period (any such illness or
incapacity being hereinafter referred to as "permanent disability"), then the
Company, in its discretion, may at any time thereafter terminate this Agreement
upon not less than 10 days' written notice thereof to the Executive, and this
Agreement shall terminate and come to an end upon the date set forth in said
notice as if said date were the termination date of this Agreement; provided,
however, that no such termination shall be effective if prior to the date when
such notice is given, the Executive's illness or incapacity shall have
terminated and he shall be physically and mentally able to perform the services
required hereunder and shall have taken up and be performing such duties.
If the Executive's employment shall be terminated by reason of his
death or permanent disability, the Executive or his estate, as the case may be,
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of termination, (ii) a pro rata portion of any annual bonus which the
Executive would otherwise have been entitled to receive pursuant to any bonus
plan or arrangement for senior executives of the Company (such pro rata portion
to be payable at the time such annual bonus would otherwise have been payable to
the Executive) and (iii) subject to the terms thereof, any benefits which may be
due to the Executive on the date of termination under the provisions of any
employee benefit plan, program or policy.
8. Termination.
(a) For Cause. The Company may at any time during the term of this
Agreement, by written notice, terminate the employment of the Executive for
cause, the cause to be specified in the notice. For purposes of this Agreement,
"cause" shall mean (i) any gross negligence or willful misconduct of the
Executive in connection with the performance of any of his duties hereunder,
including without limitation misappropriation of funds or property of the
Company, or any willful and intentional act having the effect of injuring the
reputation, business or business relationships of the Company; (ii) breach of
any covenants contained in this Agreement that remains uncured after notice and
a reasonable opportunity to cure the breach; (iii) conviction of any felony,
provided, however, that (1) if the Executive is defending against the charge in
good faith and by appropriate proceedings, then the Company shall suspend the
Executive from office without compensation of any type, pending the resolution
of the matter; and (2) unless the Executive is exonerated from the charges, he
shall be terminated for cause effective upon the date he was indicted or held
for trial. Termination for cause shall be effective upon the giving of such
notice and the Executive shall be entitled to receive (i) any earned and unpaid
salary accrued through the date of termination and (ii) subject to the terms
thereof, any benefits which may be due to the Executive on such date under the
provisions of any employee benefit plan, program or policy. A determination that
cause exists for termination of employment can only be made by the Board of
Directors at a meeting called for that purpose, and the Executive shall receive
notice of, and an opportunity to be heard by the Board on the issues, at such
meeting.
(b) Without Cause. The Company may terminate the Term at any time,
upon at least 30 days' notice to Executive, without Cause, and the Company may
also decline to renew the term of this Agreement at its scheduled expiration,
provided that in any such event that the Company shall pay the Executive
continuation of Base Annual Pay (as then in effect) for 12 months following such
termination as severance, in addition to (i) any additional earned and unpaid
compensation accrued hereunder through the date of termination, (ii) subject to
the terms thereof, any benefits which may be due to the Executive on such date
under the provisions of any employee benefit plan, program or policy; (iii)
continuation of health and dental coverages for 12 months following such
termination, (iv) a pro rata portion of any annual bonus with respect to the
fiscal year in which such termination occurs, and (v) acceleration of the
vesting of all stock options or similar rights then held by the Executive. In
the event of a Change in Control, as defined below, the Executive may, within 60
days of the effective date of such Change in Control, terminate the term of this
Agreement, with the effects as provided herein for a termination by the Company
without Cause. As used herein, a "Change in Control" means the occurrence of a
change in the beneficial ownership to voting securities of the Company
representing 50% or more of the combined voting power of the Company's
securities (other than by reason of the sales of any such securities that are
beneficially owned by Executive or any member of his immediate family), or if a
person not a shareholder of the Company on the date hereof acquires the power to
elect a majority of the Company's Board of Directors.
(c) Termination by Executive. The Executive may terminate the Term at
any time, upon at least 60 days' notice to the Company, and such termination
shall have the same effect with respect to severance pay as a termination for
Cause as set forth above. The Executive may also terminate the Term for "Good
Reason", which shall mean (i) the Company's requiring the Executive to relocate
beyond a 60 mile radius from Miami-Dade County, Florida (ii) the Company's
material breach of this Agreement, or (iii) the Company changing the Executive's
responsibilities so that he is no longer the Company's principal executive
officer, or must report to anyone other than the Board of Directors of the
Company. A termination by Executive for Good Reason shall have the same effects
hereunder as a termination by the Company without Cause, as set forth above.
9. Intentionally Omitted.
10. Non-Competition
(a) The Executive acknowledges and recognizes that the highly
competitive nature of the Company's business and that the goodwill and patronage
of the Company's customers constitute a substantial asset of the Company, having
been acquired through considerable time, effort and money. Accordingly, the
Executive agrees that during his employment with the Company and for a period
until the last to occur of 2 years after Executive leaves the Company's employ
for any reason or 5 years from the date of this Agreement, he shall not, without
the written consent of the Company, directly or indirectly, either individually
or as an employee, agent, partner, shareholder, consultant, option holder,
lender of money, guarantor or in any other capacity, participate in, engage in
or have a financial interest or management position or other interest in any
business, firm, company or other entity that operates walk-in convenience
stores, nor will he solicit any other person to engage in any of the foregoing
activities, in each case within the Metropolitan Statistical Areas ("MSAs") in
which the Company has (or has pending plans to open or acquire within 6 months
of the date of termination) active operations generating at least $1,000,000 a
year in annual revenues as of the termination of employment hereunder.
Participation in the management of FSG or any business operation other than in
connection with the management of a business operation which operates walk-in
convenience stores shall not be deemed to be a breach of this Section 10(a). The
foregoing provisions of this Section 10(a) shall not prohibit the ownership by
the Executive (as the result of open market purchase) of 5% or less of any class
of capital stock of a Company which is regularly traded on a national securities
exchange or over-the-counter on the NASDAQ System.
(b) If any of the covenants contained in this Section 10 or any part
thereof, is held by a court of competent jurisdiction to be unenforceable
because of the duration of such provision, the activity limited by or the
subject of such provision and/or the area covered thereby, then the court making
such determination shall construe such restriction so as to thereafter be
limited or reduced to be enforceable to the greatest extent permissible by
applicable law.
11. Confidential Information, Etc. The Executive agrees that he shall
not, during or after the termination of this Agreement, divulge, furnish or make
accessible to any person, firm, company or other business entity, any
information, trade secrets, technical data or know-how relating to the business,
business practices, methods, products, processes, equipment, clients' prices,
lists of customers of the Company, terms of marketing arrangements or other
confidential or secret aspect of the business of the Company and/or any
subsidiary or affiliate, except as may be required in good faith in the course
of his employment with the Company or by law, without the prior written consent
of the Company, unless such information shall become public knowledge or becomes
available from independent sources, in each case other than by reason of
Executive's breach of the provisions hereof.
12. Acceptance by Parties. Each of the Executive and the Company
accepts all of the terms and provisions of this Agreement and agrees to perform
all of the covenants on his or its part to be performed hereunder.
13. Equitable Remedies. The Executive acknowledges that he has been
employed for his unique talents and that his leaving the employ of the Company
would seriously hamper the business of the Company and that the Company will
suffer irreparable damage if any provisions of Sections 10 and 11 hereof are not
performed strictly in accordance with their terms or are otherwise breached. The
Executive hereby expressly agrees that the Company shall be entitled as a matter
of right to injunctive or other equitable relief, in addition to all other
remedies permitted by law, to prevent a breach or violation by the Executive and
to secure enforcement of the provisions of Sections 10 and 11 hereof. Resort to
such equitable relief, however, shall not constitute a waiver or any other
rights or remedies which the Company may have.
14. Entire Agreement. This Agreement memorializes, encompasses and
supersedes the parties understandings and agreement relative to the Executive's
acceptance of employment hereunder, and constitutes the entire agreement between
the parties hereto and there are no other terms other than those contained
herein. No variation or modification hereof shall be deemed valid unless in
writing and signed by the parties hereto and no discharge of the terms hereof
shall be deemed valid unless by full performance of the parties hereto or by a
writing signed by the parties hereto. No waiver by the Company or any breach by
the Executive of any provision or condition of this Agreement by him to be
performed shall be deemed a waiver of a breach of a similar or dissimilar
provision or condition at the same time or any prior or subsequent time.
15. Severability. In case any provision in this Agreement shall be
declared invalid, illegal or unenforceable by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
16. Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been given at the time when mailed in the United States enclosed in a registered
or certified post-paid envelope, return receipt requested, and addressed to the
addresses of the respective parties stated below or to such changed addresses as
such parties may fix by notice:
To the Company:
United Petroleum Corporation
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
To the Executive:
provided, however, that any notice of change of address shall be effective only
upon receipt.
17. Successors and Assigns. This Agreement is personal in its nature
and neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder (except
for an assignment or transfer by the Company to a successor as contemplated by
the following proviso); provided, however, that the provisions hereof (including
but not limited to the non-compete and confidentiality provisions hereof) shall
inure to the benefit of, and be binding upon, any successor of the Company,
whether by merger, consolidation, transfer of all or substantially all of the
assets of the Company, or otherwise, and upon the Executive, his heirs,
executors, administrators and legal representatives.
18. Governing Law. This Agreement and its validity, construction and
performance shall be governed in all respects by the internal laws of the State
of Florida, without giving effect to any principles of conflict of laws.
19. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands
and seals to the Employment Agreement the day and year first above written.
UNITED PETROLEUM CORPORATION
By: ________________________
Name: ________________________
Title: ________________________
_______________________________
Xxx X. Bared
