Employment Agreement
AGREEMENT dated June 20, 1999 (the Effective Date") by and between
Geotec Thermal Generators Inc., a Florida corporation, (hereinafter called the
"Company"or "Employer") and Xxxxxx X. Xxxxxxxx, a Colorado resident (hereinafter
call the "Employee").
WHEREAS, Employer desires to employ Employee upon the terms and
conditions hereinafter set forth and Employee desires to accept employment upon
such terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to the
Employee"s employment by Employer.
NOW, THEREFORE, Employer hereby employs Employee and Employee hereby
accepts employment under the following terms and conditions:
1. EMPLOYMENT
Employer hereby employees Employee and Employee hereby accepts
employment by Employer, upon all the terms and conditions hereinafter set forth.
2. TERM
Subject to the provisions for earlier termination set forth in Section
9 hereof, this Agreement shall commence on the Effective Date, July 20, 1999, or
upon obtainment of an H1 visa, whichever occurs first, and shall end three years
later unless extended by both parties. Notwithstanding any of the foregoing to
the contrary, if this Employment Agreement is terminated prior to the expiration
of the Employment Term, which shall be subject to a unanimous vote for removal
for cause by the Company"s Board of Directors. A year shall mean, with respect
to the year during which termination occurs, the period commencing on the first
day of such year and ending as of the close of business of the day of
termination of Employee"s employment, and Employment Term shall mean the period
commencing on the Effective Date and ending as of the close of business of the
day of termination of Employee"s employment.
3. EMPLOYEE"S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants, to the best of his knowledge, to
Employer that he is free to accept employment with Employer as contemplated
herein and has no other written or oral obligations or commitments of any kind
or nature which would in any way interfere with his acceptance of his employment
pursuant to the terms hereof or the full performance of his obligations
hereunder or the exercise of his best efforts in his employment hereunder.
Employee represents and warrants that he is not in breach of any existing
confidentiality or covenant not to compete agreements, if any, the Employee may
have executed with other third parties prior to the Effective Date.
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4. DUTIES AND EXTENT OF SERVICES
Employee shall be employed as the Employer"s Chief Petroleum Engineer,
as such, shall, subject to the direction of the President, supervise the conduct
of all subordinates and daily operations and affairs within the Employer"s
position, consistent with the position of the Chief Petroleum Engineer and
perform such other duties and responsibilities as may be assigned to the
Employee from time to time consistent with such title by the Board of Directors
or the President of the Employer.
Employee agrees to devote sufficient time, skill, attention and energy
diligently and competently to perform the duties and responsibilities assigned
to him hereunder or pursuant hereto. Employee shall use his best efforts to be
loyal and faithful at all times and constantly endeavor to improve his ability
and his knowledge of the business of Employer in an effort to increase the value
of his services for the mutual benefit of Employee and Employer.
5. COMPENSATION
Employee shall receive an annualized salary of $60,000 during the term
of this Agreement. Increases shall be subject to the approval of the Board of
Directors.
6. FRINGE BENEFITS AND EXPENSES
A. Employee shall be eligible (subject to the terms and conditions of
the particular plans and programs) to participate in such medical,
hospitalization, group health, accident, disability and life insurance programs
and plans, such pension, profit sharing, stock option, incentive compensation
and stock purchase plans and such other employee benefit programs to the same
extent such plans and programs are made generally available from time to time by
Employer to all of its other similarly-situated employees; provide, however,
Employer shall be under no obligation to make any such plans or programs
available to its employees or continue any which currently or in the future
exist. Employee shall also be entitled to receive stock options equal to
$300,000 of common stock. Said option shall be for 600 shares at a strike price
of $500.00 per share. Said options shall be registered, as soon as the Company
is publicly traded with any and all other shares that are registered. Said
options shall be vested over three years, 200 shares per year, beginning in the
second year of full time employment. Said options will be subject only to
removal for cause, once vested. If the Employee's Visa is not renewed, this
removal shall be deemed as removal without cause. Disability will also be deemed
as removal without cause relative to the options mentioned above.
B. For the term of this Agreement, Employer shall not be provided an
automobile, however, Employer will reimburse employee for related gas,
maintenance and insurance expense, for performance of Employee"s duties to
Employer as specified herein.
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C. Other Expenses Employer shall reimburse Employee for his reasonable
out-of-pocket cost and expenses incurred in connection with the performance of
his duties and responsibilities hereunder. Reimbursement of such expenses shall
be subject to the submission by Employee of appropriate invoices, receipts and
other supporting documentation, consistent with Employer"s customary
reimbursement policies and procedures.
7. VACATIONS
Employee shall be entitled to normal two weeks vacation taken by other
similar members of management during each twelve-month period of the Employment
Term. Employee shall not be entitled to be compensated for any unused vacation
upon termination of the Agreement. The periods during which Employee will be
absent from work shall be determined by Employee taking into account the needs
of the Employer"s business and shall be subject to the approval of the Executive
Committee of the Company (which shall not be unreasonably withheld).
8. FACILITIES
Employer shall provide and maintain (or cause to be provided and
maintained) such facilities, equipment, supplies and personnel as it reasonably
determines is adequate for Employee"s performance of his duties and
responsibilities under this Agreement.
9. TERMINATION OF EMPLOYMENT
A. Termination Events. Notwithstanding any provisions of this Agreement
to the contrary, Employee"s employment may be terminated by Employer with Cause
(as hereinafter defined) effective upon the delivery of written notice to
Employee. In addition, Employee"s employment shall terminate (i) upon Employee"s
death or (ii) upon Employee becoming disabled (as hereinafter defined).
B. Definition of Disabled. For purposes of this Agreement, Employee
shall be deemed to be "Disabled" when, by reason of physical or mental illness
or of injury, he is unable to perform substantially all of the duties and
responsibilities required of him in connection with his employment hereunder. No
disability shall be deemed to exist until after Employee shall be unable to
perform his duties hereunder for ninety (90) consecutive days (the "Disability
Period"). If Employee shall have been under a disability but shall have returned
to work prior to the end of the Disability Period, any new disability commencing
within thirty (30) days of the termination of the prior disability shall be a
continuation of the prior disability, and the period of all such disabilities
shall be added together to determine whether, or how much of, the Disability
Period has elapsed.
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C. Definition of Cause. For purposes of this Agreement, "Cause" shall
include, but not be limited to: (a) conviction for fraud or criminal conduct
(other than conviction of, or a pleas of guilty to, a traffic violation); (b)
habitual drunkenness or drug addiction; (c)fraud against employer or
embezzlement; (d) sanctions against Employee in his capacity as an employee of
Employer by regulatory agencies governing Employer or against Employer because
of wrongful acts or conduct of Employee; (e) material breach or default by
Employee of any of the terms or conditions of this Agreement; or (f) the
resignation or quitting of Employee prior to the end of the Employment Term (in
this last event, Employee"s employment shall be deemed terminated with Cause on
the date that he resigns or quits).
10. NON-DISCLOSURE OF CONFIDENTIAL/PROPRIETARY INFORMATION
A. Confidential Information. Employee acknowledges that Employee has
been informed that it is the policy of Employer to maintain as secret and
confidential all information relating to (i) the financial condition, businesses
and interests of Employer and its affiliates, (ii) the systems, know-how,
products, services, costs, inventions, patents, patent applications, formulae,
research and development procedures, notes and results, computer software
programs, marketing and sales techniques and/or programs, methods,
methodologies, manuals, lists and other trade secrets heretofore and hereafter
acquired, sold developed and/or used by Employer and its affiliates and (iii)
the nature and terms of Employer"s and its affiliate"s relationships with their
respective customers, clients, suppliers, lenders, vendors, consultants,
independent contractors and employees (all such information being hereinafter
collectively referred to as "Confidential Information"), and Employee further
acknowledges that such Confidential Information is of great value to Employer
and its affiliates and, in and by reason and as a result of Employee"s
employment by Employer, Employee will be making use of, acquiring and/or adding
to such Confidential Information. Therefore, Employee understands that it is
reasonably necessary to protect Employer"s and its affiliates" trade secrets,
good will and business interests that Employee agree and, accordingly, Employee
will not directly or indirectly (except where authorized by the President of
Employer for the benefit of Employer and/or its affiliate(s) and/or as required
in the course of his employment) at any time hereafter divulge or disclose for
any purpose whatsoever to any persons, firms, corporations or other entities
other than Employer or its affiliates (hereinafter referred to collectively as
"Third Parties"), or use or cause or authorize any Third Parties to use, any
such Confidential Information, except as otherwise required by law.
2. Employer"s Materials. In accordance with the foregoing, Employee
furthermore agrees that (i) Employee will at no time retain or remove from the
premises of Employer or its affiliates any research and development materials,
drawings, notebooks, notes, reports, formulae, software programs or discs or
other containers of software, manuals, data books, records, materials or
documents of any kind or description for any purpose unconnected with the strict
performance of Employee"s duties with Employer and (ii) upon cessation or
termination of Employee"s employment with Employer for any reason, Employee
shall forthwith deliver or cause to be delivered up to Employer any and all
research and development materials,
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drawings, notebooks, notes, reports, formulae, software programs or discs or
other containers of software, manuals, data, books, records, materials and other
documents and materials in Employee"s possession or under Employee"s control
relating to any Confidential Information or any property or information which is
otherwise the property of Employer or its affiliates.
10. COVENANT-NOT-TO-COMPETE
In view of the Confidential Information to be obtained by or disclosed
to Employee, because of the know-how acquired and to be acquired by Employee,
and as a material inducement to Employer to enter into this Agreement and
continue to employ Employee, Employee covenants and agrees that, so long as
Employee is employed by Employer and for a period of five (5) years after
Employee ceases for any reason to be employed by Employer, Employee shall not,
directly or indirectly (i) divert business from, (ii) solicit or transact any
business competitive with Employer or its affiliates with, or (iii) sell any
products or services sold or offered by Employer or its affiliates to, any
customer or former customer of Employer or its affiliates. In addition, Employee
covenants and agrees that, so long as Employee is employed by Employer and for a
period of five (5) years after Employee ceases for any reason to be employed by
Employer, Employee hereby agrees to refrain from, anywhere in the world, (the
"Geographical Area"), directly or indirectly owning, managing, operating,
controlling or financing, or participating in the ownership, management, control
or financing of, or being connected with or having an interest, in, or otherwise
taking any part as a stockholder, director, officer, employee, agent,
consultant, partner or otherwise, in, any business competitive with that engaged
in or being developed by Employer or its affiliates during Employee"s term of
employment. Without limitation of the foregoing, Employer"s business is
acknowledged to include the development, manufacture, use and sale of gas
generators to produce thermo-chemical treatment of xxxxx (oil, gas, water xxxxx)
and related technology. Employee acknowledges that Employer"s business is
anticipated to be international in scope, that a similar business could
effectively compete with Employer"s and its affiliates businesses from any
location in the world, and that, therefore, the restricted Geographical Area is
reasonable in scope to protect Employer"s and its affiliates" trade secrets and
legitimate business interests.
11. MPLOYER"S REMEDIES FOR BREACH OF SECTIONS 10 & 11
Employee covenants and agrees that if Employee shall violate or breach
any of Employee"s covenants or agreements provided for in Section 10 and 11
hereof, Employer and/or its affiliates shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remunerations, or benefits
which Employee directly or indirectly has realized or realizes as a result of,
growing out of or in connection with any such violation or breach. In addition,
in the event of a breach or violation or threatened or imminent breach or
violation of any provisions of Sections 10 or 11 hereof, Employer and/or its
affiliates shall be entitled to a temporary or permanent injunction or any other
appropriate decree of specific performance or equitable relief, without posting
of bond, from a court of competent jurisdiction in order to prevent, prohibit or
restrain any such breach or violation or threatened or imminent breach or
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violation by Employee, by Employee"s partners, agents, representatives,
servants, employers or employees and/or by any third parties. Employer shall be
entitled to such injunctive or other equitable relief in addition to any damages
which are suffered, and the prevailing party shall be entitled to reasonable
attorney"s and paralegals" fees and costs and other costs incurred in connection
with any such litigation, both before and at trial and at all tribunal levels.
Resort by Employer and/or its affiliates to such injunctive or other equitable
relief shall not be deemed to waive or to limit in any respect any other rights
or remedies which Employer or its affiliates may have with respect to such
breach or violation. Finally, if any breach of this clause occurs, the Employee
shall forfeit any and all options that have been earned but not exercised.
_______initials
12. REASONABLENESS OF RESTRICTIONS
A. Reasonableness. Employee acknowledges that any breach or violation
of Sections 10 or 11 hereof will cause irreparable injury and damage and
incalculable harm to Employer and its affiliates and that it would be very
difficult or impossible to measure the damages resulting from any such breach or
violation. Employee further acknowledges that Employee has carefully read and
considered the provisions of Sections 10, 11 and 12 hereof and, having done so,
agrees that the restrictions and remedies set forth in such Sections (including
but not limited to, the time period, geographical and types of restrictions
imposed) are fair and reasonable and are reasonably required for the protection
of the business, trade secrets, interests and good will of Employer and its
affiliates.
B. Severability. Employee understands and intends that each provision
and restriction agreed to by Employee in Sections 10, 11, and 12 hereof shall be
construed as separate and divisible from every other provision and restriction
and that, in the event that any one of the provisions of, or restrictions in,
Sections 10, 11 and/or 12 hereof shall be held to be invalid or unenforceable,
the remaining provisions thereof and restrictions therein shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
provisions or restrictions had not been included therein, and any one or more of
such valid provisions and restrictions may be enforced in whole or in part as
the circumstances warrant. In the event that any such provision relating to time
period and/or geographical and/or type of restriction shall be declared by a
court of competent jurisdiction to exceed the maximum or permissible time
period, geographical area or type of restriction such court deems reasonable and
enforceable, said time period and/or geographical and/or type of restriction
shall be deemed to become and shall thereafter be the maximum time period and/or
geographical restriction and/or type of restriction which such court deems
reasonable and enforceable.
C. Survivability. The restrictions, acknowledgments, covenants and
agreements of Employee set forth in Sections 10, 11, 12, and 13 of this
Agreement shall survive any termination of this Agreement or of Employee"s
employment (for any reason, including expiration of the Employment Term).
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14. EMPLOYEE"S DISCLOSURES AND REPRESENTATIONS AND WARRANTIES
Employee hereby acknowledges, represents and warrants to the
best of his knowledge and belief, and agrees with, , Employer as follows:
(a) That Employee and his representatives and agents (i) have
received and read and are familiar with this Agreement, and (ii) are familiar
with the business and operations conducted and to be conducted by Employer and
the risks attendant thereto.
(b) That Employee and/or his representatives and agents have
had an opportunity to ask questions of and receive satisfactory answers from
Employer and/or a person or persons authorized to act on Employer"s behalf
concerning the terms and conditions of this Agreement, this transaction and
Employer and its currently contemplated business and operations.
(c) That Employee has been represented by such legal and
other professional advisors (if any), each of whom has been personally selected
by Employee, as Employee has found necessary to consult concerning the
transactions contemplated in or by this Agreement.
(d) That Employee has full right, power and authority to
perform all obligations under this Agreement.
Employee hereby agrees to indemnify and hold harmless Employer and its
shareholders, directors, officers, employees and agents from and against any and
all loss, damage, liability, cost or expense (including reasonable attorneys"
and paralegals" fees and costs before and at trial and at all appellate levels)
due to or arising out of any inaccuracy in, or breach of, any representation,
warranty or covenant of Employee contained in this Section 14.
15. INDEPENDENT COUNSEL
Employer and Employee agree that each of them have been, or were
advised fully understand that they are entitled to be, represented by
independent legal counsel with respect to all matters contemplated herein, from
the commencement of negotiations at all times through the execution hereof.
16. LAW APPLICABLE
This Agreement shall be governed by and construed pursuant to the laws
of the State of Florida, without giving effect to conflicts of laws principles.
Any action brought will be pursued in Broward County, Florida.
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17. NOTICES
Any notices required or permitted to be given pursuant to this
Agreement shall be sufficient, if in writing, and if personally delivered or
sent by certified or registered mail, return receipt requested, to his
residence, in the case of Employee, or to its then principle office, in the case
of Employer.
18. SUCCESSION
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, heirs, assignees
and/or successors in interest of any kind whatsoever; provided, however, that
Employee acknowledges and agrees that he cannot assign or delegate any of his
rights, duties, responsibilities or obligations hereunder to any other person or
entity.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire final agreement between
the parties with respect to, and supercedes any and all prior agreements between
the parties hereto both oral and written concerning, the subject matter hereof
and may not be amended, modified or terminated except by a writing signed by the
parties hereto.
20. SEVERABILITY
If any provision of this Agreement shall be held to be invalid
or unenforceable, and is not reformed by a court of competent jurisdiction, such
invalidity or unenforceability shall attach only to such provision and shall not
in any way affect or render invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if such invalid or
unenforceable provision were not contained herein.
21. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant contained herein shall not be deemed a continuing waiver or a waiver of
any future or past breach or violation. No oral waiver shall be binding.
22. ATTORNEYS" FEES"
In the event that either of the parties to this Agreement institutes
suit against the other party to this Agreement to enforce any of his or its
rights hereunder, the prevailing party in such action shall be entitled to
recover from the other party all reasonable costs thereof, including reasonable
attorneys" and paralegals" fees and cost incurred before and at trial and at all
tribunal levels.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the day and
year first above written.
Geotec Thermal Generators, Inc. By:________________________
W. Xxxxxxx Xxxxx, CEO
Individually----------------------------------By:____________________________
Xxxxxx X. Xxxxxxxx
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