Exhibit 10.1.2
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is made as of this 1st
day of September, 1997, between STRATUS SERVICES GROUP, INC., a Delaware
Corporation (the "Company"), and J. XXXX XXXXXXX (the "Executive").
RECITALS
It is the desire of the Company to retain the services of the
Executive and to recognize the Executive's contribution to the
Company.
The Company and the Executive wish to set forth certain terms and
conditions of Executive's employment.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements set forth below, the parties
here to agree as follows:
1. Positions and Duties.
The Executive shall serve as the General Counsel and Corporate Secretary.
The Executive agrees to devote substantially all of his working time and
efforts to the business and affairs of the Company. The Executive further
agrees that he shall not undertake any outside activities which create a
conflict of interest with his duties to the Company, or which, in the
judgment of the Board of Directors of the Company, interfere with the
performance of the Executive's duties to the Company.
2. Term.
This agreement shall commence as of the date stated above and shall
continue until terminated according to the provisions of this agreement.
3. Compensation and Benefits.
(a) Salary and Bonuses. The Executive's base salary shall be
$40,000 or other such amount that may be adjusted from
time-to-time.
(b) Stock Compensation. The Executive shall be granted 40,000
options to purchase common stock of the Company at $2.00 per
share. Said options shall vest at the rate of 10,000 per year
for four years and shall be payable on the anniversary date of
this Agreement. The Executive must be employed by the Company
to receive the options.
(c) Profit Sharing. The Executive shall be entitled to the same
profit sharing program as may be in effect from time to time
for the other executives.
1
(d) Expenses. During the term of the Executive's employment, the
Executive shall be entitled to receive reimbursement for all
reasonable and customary expenses incurred by the Executive in
performing services for the Company in accordance with the
Company's reimbursement policies as they may be in effect from
time to time. The parties to this Agreement recognize that
such policies may be amended and/or terminated by the Company
at any time.
(e) Health Benefits. The Company shall pay the full premium amount
for the Executive and his family for medical and dental
coverage.
(f) 401K. The Executive shall be entitled to the same 401K program
as may be in effect from time to time for the other
executives.
(g) Life Insurance. The Executive shall be entitled to the same
Life Insurance program as may be in effect from time to time
for the other executives.
(h) Vacation. The Executive shall be entitled to four (4) weeks of
paid vacation annually. However, all vacation must be used in
the present year and cannot be carried over into the following
year.
(i) Other Benefits. The Executive shall be entitled to participate
in all employee benefit plans, programs and arrangements of
the Company (including, without limitation, stock option plans
or agreements and insurance, retirement and vacation plans,
programs and arrangements), in accordance with the terms of
such plans, programs or arrangements in effect during the
period of the Executive's employment. The parties to this
Agreement recognize that the Company may terminate or modify
such plans, programs or arrangements at any time. In addition,
the Executive shall abide by and be entitled to the same
holiday and sick pay policy as is in effect for the general
staff of the Company.
4. Grounds for Termination.
The Executive's employment may be terminated on any of the following
grounds:
(a) Without Cause. The Executive or the Company may terminate the
Executive's employment at any time, without cause, by giving
the other party to this Agreement at least 30 days advance
written notice of such termination.
(b) Death. The Executive's employment hereunder shall terminate
upon his death.
(c) Disability. If, as a result of the Executive's incapacity due
to physical or mental illness, the Executive shall have been
unable to perform the essential functions of his position,
even with reasonable accommodation that does not impose an
undue hardship on the Company, on a full-time basis for the
entire period of six (6)
2
consecutive months, and within thirty (30) days after written
notice of termination is given (which may occur before or
after the end of such six month period), shall not have
returned to the performance of his duties hereunder on a
full-time basis (a "disability"), the Company may terminate
the Executive's employment hereunder.
(d) Cause. The Company or the Executive may terminate the
Executive's employment hereunder for cause. For purposes of
this Agreement, "cause" shall mean that the Company, acting in
good faith based upon the information then known to the
Company, determines that the Executive has engaged in or
committed: willful misconduct; theft, fraud or other illegal
conduct; refusal or unwillingness to substantially perform his
duties (other than such failure resulting from the Executive's
disability) after written demand for substantial performance
is delivered by the Company that specifically identifies that
manner in which the Company believes the Executive has not
substantially performed his duties; insubordination; any
willful act that is likely to have the effect of injuring the
reputation or business of the Company; violation of any
fiduciary duty; violation of the Executive's duty of loyalty
to the Company; or a breach of any term of this Agreement. For
purposes of this Section 4(d), no act, or failure to act, on
the Executive's part shall be considered willful unless done
or omitted to be done, by his not in good faith and without
reasonable belief that his action or omission was in the best
interest of the Company.
5. Payments upon Termination.
(a) Without Cause or With Good Reason. In the event that the
Executive's employment is terminated by the Company for any
reason other than death, disability or cause as defined in
Section 3(b), (c) and (d) of this Agreement, or in the event
that the Executive terminates his employment hereunder with
Good Reason, the Executive shall be entitled to receive
severance pay. Such severance shall be the greater of: (a) one
month's salary for each year worked or (b) three months
salary, less any amounts required to be withheld by applicable
law. The Company will also pay to the Executive any earned but
unused vacation time and any accrued but unpaid profit sharing
at the rate of pay in effect on the date of the notice of
termination. In addition, the Company will maintain insurance
and benefits for the Executive during the Severance Period
(b) Release of all Claims. The Executive understands and agrees
that the Company's obligation to pay the Executive severance
pay under this Agreement is subject to the Executive's
execution of a valid written waiver and release of all claims
which the Executive may have against the Company and/or its
successors in a form acceptable to the Company in its sole and
absolute discretion.
(c) Death, Disability or Cause. In the event that the Executive's
employment is terminated due to death, disability or cause,
the Company shall not be obligated to
3
pay the Executive any amount other than earned unused
vacation, reimbursement for business expenses incurred prior
to his termination in compliance with the Company's
reimbursement policies, and any unpaid salary for days worked
prior to the termination and accrued but unpaid profit sharing
amounts.
6. Successors/Material Change in Ownership; Binding Agreement.
(a) In the event that there is a material change in ownership of
the Company, whether direct or indirect, by purchase, merger,
consolidation or otherwise, the Company will use it's best
efforts to secure the assumption of this Agreement by the
successor ownership in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain
such assumption and agreement prior to the effectiveness of
any such succession shall entitle the Executive to
compensation from the Company in the same amount and on the
same terms as he would be entitled to hereunder if he
terminated his employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the date of
termination. As used in this Agreement, "Company" shall mean
the Company as herein before defined and any successor to its
business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 6 or which
otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrator,
successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts would still be payable
to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's
devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
7. Notices.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
4
Mr. J. Xxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
If to the Company:
Stratus Services Group, Inc.
000 Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: J. Xxxx Xxxxxxx, Esq., General Counsel
With a copy to the attention of: Chief Executive Officer
or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
8. Antisolicitation.
The Executive promises and agrees that, during the period of his
employment by the Company and for a period of two (2) years thereafter,
regardless of reason for termination, he will not influence or attempt to
influence customers of the Company or any of its present or future
subsidiaries or affiliates, either directly or indirectly, to divert their
business to any individual, partnership, firm, corporation or other entity
then in competition with the business of the Company, or any subsidiary or
affiliate of the Company within a 75 mile radius of any existing Stratus
office or those of it's subsidiaries or affiliates..
9. Soliciting Employees.
The Executive promises and agrees that during the term of his employment
and for a period of one (1) year thereafter, regardless of reason for
termination, he will not, directly or indirectly solicit any Company
employees to work for any other business, individual, partnership, firm,
corporation, or entity.
10. Confidential Information.
(a) The Executive, in the performance of his duties on behalf of
the Company, shall have access to, receive and be entrusted
with confidential information, including but not limited to
systems technology, field operations, reimbursement,
development, marketing, organizational, financial, management,
administrative, clinical, customer, distribution and sales
information, data, specifications and processes presently
owned or at any time in the future developed, by the Company
or its agents or consultants, or used presently or at any time
in the future in the course of its business that is not
otherwise part of the public domain (collectively,
5
the "Confidential Material"). All such Confidential Material
is considered secret and will be available to the Executive in
confidence. Except in the performance of duties on behalf of
the Company, the Executive shall not, directly or indirectly
for any reason whatsoever, disclose or use any such
Confidential Material, unless such Confidential Material
ceases (through no fault of the Executive's) to be
confidential because it has become part of the public domain.
All records (including customer, client and employee records
and lists), files, drawings, documents, notes, disks,
diskettes, tapes, magnetic media, photographs, equipment and
other tangible items, wherever located, relating in any way to
the Confidential Material or otherwise to the Company's
business, which the Executive prepares, uses or encounters
during the course of his employment, shall be and remain the
Company's sole and exclusive property and shall be included in
the Confidential Material. Upon termination of this Agreement
by any means, or whenever requested by the Company, the
Executive shall promptly deliver to the Company any and all of
the Confidential Material, not previously delivered to the
Company, that may be or at any previous time has been in the
Executive's possession or under the Executive's Control.
(b) The Executive hereby acknowledges that the sale or
unauthorized use or disclosure of any of the Company's
Confidential Material by any means whatsoever and at any time
before, during or after the Executive's employment with the
Company shall constitute unfair competition. The Executive
agrees he shall not engage in unfair competition either during
the time employed by the Company or any time thereafter.
11. Modification and Waiver.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and the Chief Executive Officer of the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect not the subject matter hereof have been
made by ether party which are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New Jersey without
regard to its conflicts of law principles.
12. Validity.
6
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Indemnification.
The Company hereby agrees to indemnify and hold harmless the Executive for
any and all disputes that may arise as a result of the lawful exercise of
the Executive's duties. This clause shall not apply to disputes between
the Company and the Executive.
15. Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
EXECUTIVE STRATUS SERVICES GROUP, INC.
/s/J. Xxxx Xxxxxxx By: /s/Xxxxxx X. Xxxxxxx
------------------------- ------------------------------
J. Xxxx Xxxxxxx Xxxxxx X. Xxxxxxx, Chairman &
Chief Executive Officer
7
