EMPLOYMENT, NONDISCLOSURE, AND NONCOMPETITION AGREEMENT
This Agreement is entered into on this 21st day of June, 1996, by and
between Superpumper, Inc. a corporation duly organized and existing under the
laws of State of North Dakota, with the place of business at 0000 Xxxxx
Xxxxxxxx, Xxxxx, Xxxxx Xxxxxx 00000, hereinafter referred to as (Employer), and
Xxxxx X. Xxxxxx of 0000 00xx Xxxxxx Xxxxx Xxxx, Xxxxx, Xxxxx Xxxxxx 00000,
hereinafter referred to as (Employee). In consideration of the mutual promises
and agreements set forth in this document, Employer and Employee agree as
follows:
1. CONDITION PRECEDENT. The obligations of all parties to this Agreement is
contingent upon the requirement that the contemplated merger between
Superpumper, Inc. and Xxxxxxx Oil, Inc. has been approved pursuant to the merger
plan between Superpumper, Inc. and Xxxxxxx Oil, Inc. by July 1, 1996. In the
event said merger between Superpumper, Inc. and Xxxxxxx Oil, Inc. has not been
completed by July 1, 1996, Xxxxxx and the shareholders of Xxxxxx may postpone
the effective date of this transaction until such time as the merger between
Superpumper, Inc. and Xxxxxxx Oil, Inc. has been approved.
2. EMPLOYMENT.
A. Employer hereby employs, engages, and hires employee as a manager
for Employer's cash wash, convenience store and gas station operations, and
Employee hereby accepts and agrees to such hiring, engagement, and employment,
subject to the general supervision and pursuant to the orders, advice, and
direction of Employer.
B. Employee shall perform such other duties as are customarily
performed by one holding such position in the same, or similar businesses or
enterprises as that engaged in by Employer, and shall also additionally render
such other and unrelated services and duties as may be assigned to him from time
to time by Employer, provided such additional duties correspond with Employee's
previous experience, skill level and work experience.
3. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times
faithfully, industriously, and to the best of his ability, experience, talent,
perform all the duties that may be required of and from him pursuant to the
express and explicit terms of this Agreement, and all direction from Employer to
the reasonable satisfaction of Employer. Such duties shall be rendered at the
corporate headquarters of Employer in the City of Minot and at all other places
as Employer has an interest, current business operation, or possible future
business operation.
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4. TERM OF EMPLOYMENT. The term of this Agreement shall be for a period of
five (5) years, commencing July 1, 1996, and terminating June 30, 2001, subject
however, to the prior termination as provided in this Agreement. At the
expiration date of June 30, 2001, this Agreement shall terminate and Employee
shall be consider an Employee at will, subject only to the non-disclosure and
noncompete portions of this document which shall remain in full force and
effect.
5. COMPENSATION OF EMPLOYEE.
A. BASE PAY. Employer shall pay Employee, and Employee shall accept from
Employer, base compensation in the gross amount of $100,000 per year, before
withholding for taxes, FICA and any other applicable payroll deductions. Salary
shall be payable twice a month.
B. BONUS PAY. Employer shall pay Employee quarterly bonuses of at least
$10,625.00 due on January 31, April 30, July 31 and October 31st. Furthermore,
employer may make additional bonus payments based on a percentage of gross
volume for any detail shop, car wash, or quick lubes developed subsequent to the
closing date as well as the Toad's Ride-N-Shine property.
C. FRINGE BENEFITS. In addition his salary, the Employee shall be
eligible to receive fringe benefits as they are made available to Employees of
Employer from time to time in the exclusive discretion of Employer's board of
directors. Employee shall be entitled to fringe benefits on the same terms and
conditions as all other employees of similar stature.
D. VACATION, SICK LEAVE AND OTHER HOLIDAYS. Employee shall receive
vacation, sick leave and other time off in the same manner as other employees
occupying a similar position. In the event Employee takes additional vacation or
sick leave, due to illness or disability, the compensation and fringe benefits
due Employee shall be reduced accordingly.
E. REIMBURSEMENT FOR EXPENSES. Employee shall be reimbursed for
authorized traveling and other out-of-pocket business expenses, provided they
have been reasonably incurred in the performance of Employee's duties for
Employer. Reasonable expenses shall include appropriate communication devices
used for business purposes. Employee shall, within seven calendar days of any
claimed reimbursable expense, submit to Employer an itemized account detailing
the expenses and accompanied by receipts. Employer reserves the right to reject
reimbursement of expense submissions not in compliance with Employer policy or
which are not in compliance with Internal Revenue Service statutes, rules,
regulations or other
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controlling or interpretive authority concerning deductible business expenses.
F. COMPANY VEHICLE. Employer will furnish Employee with an automobile
suitable for the performance of Employee duties. In connection with the
automobile, Employer shall furnish insurance and routine maintenance. Employer
shall provide gasoline only to the extent necessary for Employee's business use.
All traffic violations shall be paid for by the Employee. The automobile will be
replaced at the discretion of Employer with the Employee agreeing to maintain
the automobile in first class condition at all times. This paragraph shall be
effective only during those periods in which employee maintains a valid North
Dakota drivers license.
6. HOURS DEVOTED TO BUSINESS. Employee is expected to work a regular
work week of 40 hours. However, Employee is also expected to work any additional
hours as are necessary to satisfactorily perform his assigned duties.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION DURING EMPLOYMENT PERIOD AND
AFTER TERMINATION. Employee agrees that for and during the entire term of the
Employment Agreement, any information, data, figures, sales figures,
projections, estimates, customer lists, tax records, personnel history,
accounting procedures, promotion, and the like shall be consider and kept as the
private and privileged records of Employer and will not be divulged to any
person, firm, corporation, or other entity except on the direct authorization of
the President of Employer. Further, upon termination of this Agreement for any
cause, Employee agrees that he will continue to treat as private and privileged
any information, data, figures, projections, estimates, customer lists, tax
records, personnel history, accounting procedures, and the like and will not
release any such information to any person, firm, corporation, or other entity,
either by statement, deposition, or as a witness, except upon direct written
authority of the President of the Employer, and Employer shall be entitled to an
injunction by any competent court to enjoin and restrain the unauthorized
disclosure of such information in addition to any other remedy available at law
or equity.
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8. COVENANT NOT TO COMPETE. Employee agrees that during the term of his
employment with Employer, Employee shall not directly or indirectly engage in
the business of a car wash or any business competitive with the Employer
provided that if this agreement is terminated prior to the five year period the
covenant not to compete shall be for a period of two years after such
termination of Employment. Directly or indirectly engaging in the business of a
car wash or in any competitive business shall include, but not be limited to,
engaging in business as owner, partner, or agent, or as employee of any person,
firm, corporation, or other entity engaged in such business, or being interested
directly or indirectly in any such business conducted by any person, firm,
corporation, or other entity. This Noncompetition Agreement shall be applicable
within Xxxx County. In the event that a court of competent jurisdiction
determines that the provision of this Noncompetition Agreement are unreasonable,
said court may limit such provision to the extent it deems reasonable, without
declaring the provision invalid in its entirety. The previous sentence shall not
be construed as an admission by the Employer, but is only included to provide
the Employer with the maximum possible protection consistent with the right of
the Employee to earn a living subsequent to the termination of his employment.
It is acknowledged by Xxxxxx that the annual salary, bonus and SPF's acceptance
of the share exchange plan is sufficient consideration for the covenant not to
compete.
9. COMPLETE AGREEMENT. This document contains the Complete Agreement
concerning the employment arrangement between the parties and shall, as of the
effective date hereof, supersede all other Agreements between the parties
pertaining to employment.
10. GOVERNING IAW. This Agreement shall be governed according to the laws of
the State of North Dakota.
11. SUCCESSORS. This Agreement is personal to the Employee and Employee may
not assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder to any other person. This Agreement may be
assigned by the Employer upon receipt of the written consent of Employee,
provided Employee shall not unreasonably withhold consent.
12. PARAGRAPH HEADINGS. The titles to the paragraph of this Agreement are
solely for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretation of the provisions of this
Agreement.
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Dated this 21 day of June, 1996.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
SPF ENERGY, INC.
By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
ITS: Chief Executive Officer
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