EXHIBIT 10.37
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September 15,
2006 by and between Power2Ship, Inc., a Nevada Corporation, its affiliates and
assigns (the "Company"), and Xxxxx X. Xxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as its Chief
Executive Officer and the Employee desires to be so employed; and
WHEREAS, Employee and the Company desire to set forth in writing all of
their respective duties, rights and obligations with respect to the Employee's
employment by the Company
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment and Term. The Company hereby agrees to employ the Employee,
and the Employee hereby accepts such continued employment by the
Company, in the capacity and upon the terms and conditions hereinafter
set forth. The term of employment under this Agreement shall be for the
period commencing as of September 15, 2006 (the "Commencement Date")
and ending on the second anniversary of the Commencement Date or
September 15, 2008) unless earlier terminated as herein provided (the
"Term of Employment"). Thereafter, this Agreement shall be renewed for
successive one (1) year terms unless previously terminated pursuant to
Section 5 herein or if either party elects to terminate his Agreement
by written notice to the other party at least ninety (90) days prior to
the expiration of the then-current Term of Employment. The last day of
the Employee's Term of Employment shall be referred to in this
Agreement as the "Date of Termination."
2. Duties. During the Term of Employment, the Employee shall serve as the
Company's Chief Executive Officer and shall assume those
responsibilities customarily associated with and incident to the
position of Chief Executive Officer. The Employee shall serve the
Company faithfully, conscientiously and to the best of the Employee's
ability and shall promote the interests and reputation of the Company.
Unless prevented by sickness or disability, the Employee shall devote
all of his time, attention, knowledge, energy and skills, during normal
working hours, and at such other times as the Employee's duties may
reasonably require, to the duties of the Employee's employment. The
principal place of employment of the Employee shall be the Company's
principal executive offices or at such other place(s) to be determined
by the Company and Employee. The Employee acknowledges that in the
course of his employment, Employee may be required, from time to time,
to travel on behalf of the Company at the Company's expense. The
Employee's principal work place shall be in Florida. The Company shall
not prohibit Employee from additional opportunities in his free time as
long as there is not a conflict of interest now or in the future with
Power2Ship and its affiliates. Employee must receive prior permission
in writing from the Board of Directors to execute additional
opportunities.
3. Compensation and Benefits. As full and complete compensation for the
Employee's execution and delivery of this Agreement and performance of
any services hereunder, the Company shall pay, grant or provide the
Employee with the following beginning upon the Commencement Date,
though the Company may elect to defer salary until the date that the
Company has received an additional aggregate funding of at least Three
Million Dollars:
(a) Base Salary. When the Company is funded with at least Three
Million Dollars, the Company shall pay the Employee a base
salary (the "Base Salary") at an annual rate of no less than
$150,000. Base salary shall be payable at such times and in
accordance with the standard payroll practices of the Company,
but in no event less than twice per month.
(b) Options. Effective on the Commencement Date, the Employee will
be granted fully vested options to purchase 9,000,000 shares
of common stock at a strike price of $0.025. These options
will expire five years after their grant date.
(c) Employee Benefits. The Company shall afford the Employee the
opportunity to participate during the Term of Employment in
any medical, dental, disability and life insurance,
retirement, savings and any other employee benefits plans or
programs (including perquisites) which the Company maintains
for its senior executives.
(d) Expenses. The Employee shall be entitled to reimbursement of
all reasonable business expenses (in accordance with the
Company's policies for its senior executives, as the same may
be amended from time to time in the Company's sole
discretion), within one week following the Employee's
submission of an appropriate expense report and related
receipts and/or vouchers to the Company.
(e) Vacations, Holidays or Temporary Leave. The Employee shall be
entitled to take vacations in accordance with the Company's
vacation policy for other senior executives. Such vacation(s)
shall be taken at such time or times, and as a whole or in
increments, as the Employee shall elect, consistent with the
reasonable needs of the Company's business. The Employee shall
further be entitled to the number of paid holidays and leaves
for illness or temporary disability in accordance with the
policies of the Company for its senior executives (as such
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policies may be amended from time to time or terminated in the
Company's sole discretion).
4. Restrictive Covenant; Protection of Confidential Information.
(a) The Employee recognizes and acknowledges that certain
confidential business and technical information used by the
Employee in connection with his duties hereunder including,
without limitation, certain confidential and proprietary
information relating to the design, development, construction
and marketing of Internet services, is a valuable, special and
unique asset of the Company, such information, subject to
Section 4(c) below, collectively being referred to as the
"Confidential Information". During and subsequent to the Term
of Employment, the Employee shall not (a) use Confidential
Information or any part thereof other than in connection with
his duties hereunder, (b) disclose such information to any
person, firm, corporation, association or other entity for any
purpose or reason unless directed to do so by the Board of
Directors. Notwithstanding the foregoing, the Employee is
being hired as an expert in the field of logistics and,
therefore, logistic practices are excluded from this
provision.
(b) During the Term of Employment and for all time thereafter, the
Employee shall not, directly or indirectly, furnish or make
accessible to any person, firm, corporation or other business
entity, whether or not he competes with the business of the
Company, any trade secret obtained by the Employee during his
employment by the Company which relates to the business
practices, methods, processes or other confidential or secret
aspects of the business of the Company without the prior
written consent from the Company (such information being
referred to as the "Company Confidential Information").
(c) Confidential Information and Company Confidential Information
shall not include any information or documents that (a) are,
or become, publicly available without breach by the Employee
of this Section 4, (b) the Employee receives from any third
party who, to the best of the Employee's knowledge upon
reasonable inquiry, is not in breach of an obligation of
confidence with the Company, or (c) is required to be
disclosed by law, statute, governmental or judicial
proceeding; provided, however, that in the event that the
Employee is requested by any governmental or judicial
authority to disclose any Confidential Information, the
Employee shall give the Company prompt notice of such request,
such that the Company may seek a protective order or other
appropriate relief, and in any such proceeding the Employee
shall disclose only so much of the Confidential Information as
is required to be disclosed.
(d) The Employee acknowledges that his services are of a special,
unique and extraordinary character and, his position with the
Company places him in a position of confidence and trust with
the clients and employees of the Company, and in connection
with his services to the Company, the Employee will have
access to Confidential Information vital to the Company's
business. The Employee further acknowledges that in view of
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the nature of the business, in which the Company is engaged,
the foregoing confidentiality provision is reasonable and
necessary in order to protect the legitimate interests of the
Company and that violation thereof would result in irreparable
injury to the Company. Accordingly, the Employee consents and
agrees that if the Employee violates or threatens to violate
any of the provisions of Section 4 hereof, the Company would
sustain irreparable harm and, therefore, the Company will be
entitled to obtain from any court of competent jurisdiction,
without posting any bond or other security, preliminary and
permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits and other
benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies in
law or equity to which the Company may be entitled.
5. Termination of Employment:
(a) The Employee's employment with the Company shall terminate
upon the occurrence of any of the following events:
(i) The Scheduled Date of Termination;
(ii) The death of the Employee during the Term of
Employment;
(iii) The Disability (as defined below) of Employee during
the Term of Employment; or
(iv) Upon written notice to the Employee by the Company of
termination of his employment for Cause (as defined in
Section 5(c)).
(v) Resignation without good reason
(vi) Termination without cause (as defined below)
(b) For purposes of this Agreement, the "Disability" of the
Employee shall mean his inability, because of mental or
physical illness or incapacity, whether total or partial, to
perform his full time duties under this Agreement with
reasonable accommodation for a period aggregating 90 days out
of any 12-month period under circumstances where, in the
opinion of a qualified physician reasonably acceptable to the
Company, it is reasonably certain that the Employee will not
be able to resume his duties on a regular full time basis
within 30 days of the date the Employee receives notice of
termination for Disability.
(c) For purposes of this Agreement, the term "Cause" shall mean
the Employee's i) conviction or entry of a plea of guilty or
nolo contendere, with respect to any felony; (ii) commission
of any act of willful misconduct, gross negligence, fraud or
dishonesty that materially affects the Company as stated in
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the Power2Ship Employee Handbook Code of Conduct; or (iii)
violation of any material term of this Agreement or any
material written policy of the Company, provided that the
Company first deliver written notice thereof to the Employee
and the Employee shall not have cured such violation within
thirty (30) days after receipt of such written notice.
6. Payments upon Termination of Employment:
(a) Death or Disability: If the Employee's employment hereunder is
terminated due to the Employee's death or disability pursuant
to Sections 5(a)(ii)(iii), the Company shall pay or provide to
the Employee, his designated beneficiary or his estate (i) all
Base Salary pursuant to Section 3(a) hereof, any expenses
pursuant to 3(c), any accrued vacation pursuant to Section
3(e) and any bonus pursuant to Section 3(f) hereof, in each
case which has been earned but unpaid, or incurred but not
reimbursed, as of the Date of Termination; and (ii) any
benefits to which the Employee may be entitled under any
employee benefits plan or program pursuant to Section 3(b)
hereof in which he is a participant in accordance with the
terms of such plan or program up to and including the Date of
Termination. Should the Company wish to purchase insurance to
cover the costs associated with the Employee's termination of
employment pursuant to Sections 5(a) (i), (ii), (iii), the
Employee agrees to execute any and all necessary documents
necessary to effectuate said insurance.
(b) Termination for Cause, Resignation Without Good Reason, or
Expiration of Term of Employment: If the Employee's employment
hereunder is terminated due to the termination of the
Employee's employment by the Company for "Cause" pursuant to
Section 5(a)(iv) or due to the Employee's resignation Without
Good Reason pursuant, the Company shall pay or provide to the
Employee (i) all base salary pursuant to Section 3(a) hereof
and any vacation pay pursuant to Section 3(e) hereof, in each
case which has been earned but unpaid as of the Date of
Termination and (ii) any benefits to which the Employee may be
entitled under any employee benefits plan or program pursuant
to Section 3(b) hereof in which he is a participant in
accordance with the terms of such plan or program up to and
including the Date of Termination.
(c) Termination Without Cause: If the Employee's employment
hereunder is terminated due to the termination of the
Employee's employment by the Company Without Cause the
Employee shall be entitled to all compensation for the term of
the Contract to be paid in a lump sum payment within ten (10)
days of termination.
(d) No Other Payments. Employee shall not be entitled to receive
any other payments or benefits from the Company due to the
termination of his employment, including but not limited to,
any employee benefits under any of the Company's employee
benefits plans or programs (other than at the Employee's
expense under the Consolidated Omnibus Budget Reconciliation
Act of 1985 or pursuant to the terms of any pension plan which
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the Company may have in effect from time to time). Upon
termination, all unvested options provided to Employee shall
be deemed null and void unless under the circumstances defined
in Section 5(a) (vi) or 5(d) (iii). Unvested options shall not
vest after Employee's receipt of a notice of termination
pursuant to Section 5(a)(iv) hereof provided, however, if such
notice was provided pursuant to Section 5(c)(iii) hereof and
Employee cures such breach within the applicable time period,
Employee's options may vest subsequent thereto.
7. No Conflicting Agreements; Indemnification:
(a) The Employee hereby represents and warrants that he is not a
party to any agreement, or non-competition or other covenant
or restriction contained in any agreement, commitment,
arrangement or understanding (whether oral or written), which
would in any way conflict with or limit his ability to
commence work on the first day of the Term of Employment or
would otherwise limit his ability to perform all
responsibilities in accordance with the terms and subject to
the conditions of this Agreement.
(b) The Employee agrees that the compensation provided for in
Section 3 represents the minimum compensation to be paid to
Employee in respect of the services performed or to be
performed for the Company by Employee.
8. Deductions and Withholding. The Employee agrees that the Company shall
withhold from any and all compensation required to be paid to the
Employee pursuant to this Agreement all federal, state, local and/or
other taxes which the Company determines are required to be withheld in
accordance with applicable statutes and/or regulations from time to
time in effect and all amounts required to be deducted in respect of
the Employee's coverage under applicable employee benefit plans.
9. Entire Agreement. This Agreement embodies the entire agreement of the
parties with respect to the Employee's employment and supersedes any
other prior oral or written agreements between the Employee and the
Company, including but not limited to, the Original Employment
Agreement. This Agreement may not be changed or terminated orally but
only by an agreement in writing signed by the parties hereto.
10. Waiver. The waiver by the Company or a breach of any provision of this
Agreement by the Employee shall not operate or be construed as a waiver
of any subsequent breach by the Employee. The waiver by the Employee of
a breach of any provision of this Agreement by the Company shall not
operate or be construed as a waiver of any subsequent breach by the
Company.
11. Governing Law. This Agreement shall be subject to, and governed by, the
laws of the State of Florida applicable to contracts made and to be
performed in the State of Florida, regardless of where the Employee is
in fact required to work. Arbitration clause would be appropriate
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12. Jurisdiction. Any legal suit, action or proceeding against any party
hereto arising out of or relating to this Agreement shall be instituted
in a federal or state court in the State of Florida, and each party
hereto waives any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding and each party
hereto irrevocably submits to the jurisdiction of any such court in any
suit, action or proceeding.
13. Assignability. The obligations of the Employee may not be delegated
and, except as expressly provided in Section 5 relating to the
designation of beneficiaries, the Employee may not, without the
Company's written consent thereto, assign, transfer, convey, pledge,
encumber, hypothecate or otherwise dispose of this Agreement or any
interest therein. Any such attempted delegation or disposition shall be
null and void and without effect. The Company and the Employee agree
that this Agreement and all of the Company's rights and obligations
hereunder may be assigned or transferred by the Company to, and may be
assumed by, may become binding upon, and may inure to the benefit of,
any successor to the Company. The term "successor" shall mean, with
respect to the Company, any other corporation or other entity that by
merger, consolidation or purchase, acquires all or a material part of
the assets of the Company. Any assignment by the Company of its rights
and obligations hereunder to any successor shall not be considered a
termination of employment for purposes of this Agreement.
14. Severability. If any provision of this Agreement as applied to either
party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
15. Notices. All notices to the Employee hereunder shall be in writing and
shall be delivered personally or sent by registered or certified mail,
return receipt
Xxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
16. All notices to the Company hereunder shall be in writing and shall be
delivered personally or sent by registered or certified mail, return
receipt requested, to:
Power2Ship, Inc.
000 Xxxxx Xxxxx Xx.
Xxxx Xxxxx, XX 00000
Either party may change the address to which notices shall be sent by
sending written notice of such change of address to the other party.
17. Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
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18. 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 taken together shall constitute one and the same instrument.
19. Attorneys' Fees. In the event that either party hereto commences
litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses
and fees, including reasonable attorneys' fees.
20. Neutral Construction. Each party to this Agreement was represented by
counsel, or had the opportunity to consult with counsel. No party may
rely on any drafts of this Agreement in any interpretation of the
Agreement. Each party to this Agreement has reviewed this Agreement and
has participated in its drafting and, accordingly, no party shall
attempt to invoke the normal rule of construction to the effect that
ambiguities are to be resolved against the drafting party in any
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
POWER2SHIP, INC.,
a Nevada Corporation
By:______________________________________
Xxxxxxx Xxxxx, Chief Executive Officer
EMPLOYEE
By: _____________________________________
Xxxxx X. Xxxxxx
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