THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”), is
effective as of September 23, 2010 (the “Effective Date”), and
amends and restates the Employment Agreement that was originally made and
entered into as of October 26, 2000 (the “Original Effective
Date”), as amended on September 25, 2003, and September 23, 2004, and
first amended and restated on March 1, 2005 and secondly amended and
restated effective December 31, 2008, by and between SMF Energy Corp., a
Delaware Corporation, successor in interest to Xxxxxxxxx Mobile Fueling, Inc., a
Florida corporation (the “Company”), and
Xxxxxxx X. Xxxxxxxxx (“Employee”).
Recitals
The
Company desires to retain the personal services of Employee as President and
Chief Executive Officer of the Company, and Employee is willing to continue to
make his services available to the Company, on the terms and conditions
hereinafter set forth;
Agreement
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1.
Employment.
1.1 Employment and
Term. The Company hereby agrees to employ Employee and
Employee hereby agrees to serve the Company, on the terms and conditions set
forth herein, for the period commencing on the Original Effective Date and
continuing through December 31, 2011, unless sooner terminated in accordance
with the terms and conditions hereof (the “Term”). The
Term shall be automatically extended for another twelve (12) month period each
year on the anniversary date of the Effective Date unless either the Company or
Employee provides written notice of non-renewal prior to the anniversary date,
in which event the Term shall end on the day before the next anniversary of the
Effective Date.
1.2 Duties of
Employee. Employee shall serve as the President and Chief
Executive Officer of the Company, shall have and exercise general responsibility
for the business of the Company and shall have powers and authority superior to
any other officer or employee of the Company or of any subsidiary of the
Company. Employee shall also have such other powers and duties as may
from time to time be delegated to him by the Company’s Board of
Directors (the “Board”), provided
that such duties are consistent with his position. Employee shall
report to the Board. Employee shall devote substantially all his
working time and attention to the business and affairs of the Company (excluding
any vacation and sick leave to which Employee is entitled), render such services
to the best of his ability, and use his best efforts to promote the interests of
the Company. So long as such activities do not interfere with the
performance of Employee’s responsibilities as an employee of the Company in
accordance with this Agreement, it shall not be a violation of this Agreement
for Employee to (i) serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures or fulfill speaking engagements; (iii) manage
personal investments; or (iv) participate in such continuing legal education
seminars or other activities required for Employee to maintain his license to
practice law.
1.3 Place of
Performance. In connection with his employment by the Company,
Employee shall be based at the Company’s offices in Fort Lauderdale, Florida or
another mutually agreed location, except for travel necessary in connection with
the Company’s business.
1.4 Directorship. It
is the intention of the Company’s Board of Directors that Employee continue to
serve as a Director of the Company and that he continue to serve as Chairman of
the Board of Directors. The Company agrees to take such actions as
are necessary to cause Employee to serve in such capacities for the duration of
the Term. A failure by the Company to take all such necessary actions
shall be deemed to be a material breach of this Agreement. In
addition, any removal of, failure to nominate or failure to elect Employee as
both a Director and as Chairman of the Board shall be deemed to be a material
diminution of his authority, duties and responsibilities hereunder.
2.
Compensation.
2.1 Base
Salary. Effective July 1, 2010, Employee shall receive a
minimum base salary at the annual rate of Three Hundred Seventy Three Thousand
Dollars ($373,000) (the “Base Salary”) during
the Term, payable in installments consistent with the Company’s normal payroll
schedule, subject to applicable withholding and other taxes.
2.2 Incentive
Compensation. Employee shall be entitled to receive such bonus
payments or incentive compensation as may be determined at any time or from time
to time by the Board in its discretion. In addition, during the
Term, Employee shall be entitled to participate in an annual management
incentive bonus pool (“Bonus Pool”) equal to
ten percent (10%) of the Company’s Pre-tax Earnings. For purposes of
this Section, the term “Pre-tax Earnings”
means the Company’s earnings before income taxes, as determined in accordance
with generally accepted accounting principles, consistently applied with the
Company's past practices, and as reflected in the Company's audited financial
statements for the relevant fiscal year. If the Company does not
achieve positive Pre-tax Earnings for any fiscal year, no Bonus Pool shall be
established for such fiscal year. The Bonus Pool shall be allocated
among Employee and such other officers of the Company as are recommended by
Employee and approved by the Board. The Board of Directors, in its
sole discretion, shall determine the allocation of Bonus Pool funds among the
eligible participants; provided, however, that the
entire balance of the Bonus Pool shall be allocated each year. The
portion of the Bonus Pool payable to Employee with respect to any fiscal year
(net of any tax or other amount properly withheld therefrom) shall be paid by
the Company within 2½ months days after the end of the Company’s fiscal
year. The amount payable pursuant to this Section 2.2 for any fiscal
year during which the Term expires or this Agreement is terminated shall be
prorated and payable only with respect to the portion of the fiscal year during
which Employee was employed by the Company. No amount shall be
payable pursuant to this Section 2.2 with respect to any fiscal year during
which Employee’s employment is terminated by the Company for Cause, or by
Employee as a result of his voluntary resignation.
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2.3 Stock
Options.
(a) On or after the
Original Effective Date, Employee received a grant of options to purchase
500,000 shares of the Company’s common stock (the “Options”), at an
exercise price per share equal to the fair market value of the Company’s common
stock as of the date of grant.
(b) The Options were
granted pursuant to a stock option agreement between the Company and Employee
(the “Stock Option Agreement”) which contained terms and conditions consistent
with those applicable to stock options previously granted under the Xxxxxxxxx
Mobile Fueling, Inc. Stock Option Plan; provided, however, that the
Options: (i) have a term expiring on the tenth anniversary of the date of grant
(the “Option
Expiration Date”); (ii) subject to termination of the Options prior to
vesting as provided in clause (iii) below, the Options vested and became
exercisable (A) to the extent of 33.33% of the Options, on the Original
Effective Date, (B) with respect to an additional 33.33% of the Options, on
October 25, 2002, and (C) with respect to the remaining 33.34% of the Options,
on October 25, 2003; (iii) to the extent not exercised pursuant to their terms,
the Options will terminate upon the earlier to occur of: (A) twelve (12) months
after the termination of Employee’s employment hereunder pursuant to Section 4.2
by reason of Employee’s disability, or pursuant to Section 4.3 by reason of his
death, or following expiration of the Term (including any extensions thereto or
renewals thereof) or such other date as Employee ceases to render services to
the Company pursuant to an employment contract or other agreement with the
Company (other than by reason of termination of Employee for Cause, without
Cause or his voluntary resignation), (B) eighteen (18) months after the
termination of Employee’s employment hereunder pursuant to Section 4.4 by the
Company without Cause, (C) ninety (90) days after the date Employee’s employment
hereunder is terminated by Employee pursuant to Section 4.5, (D) immediately on
the date Employee’s employment hereunder is terminated by the Company for Cause
pursuant to Section 4.1, and (E) the Option Expiration Date; (iv) are incentive
stock options to the extent allowed by applicable tax rules and regulations; and
(v) shall become fully vested and exercisable upon a “change of control” of the
Company (consistent with the provisions of the Stock Option
Plan). The Stock Option Agreement provides that Employee cannot sell,
transfer or otherwise dispose of any shares of the Company’s common stock issued
upon the exercise of any of the Options prior to October 26, 2001.
3.
Expense
Reimbursement and Other Benefits.
3.1 Expense
Reimbursement. During the Term, the Company, in accordance
with expense reimbursement policies and procedures in effect for the Company’s
employees from time to time, shall reimburse Employee for all documented
reasonable expenses actually paid or incurred by Employee in the course of and
pursuant to the business of the Company. The Company shall provide
Employee with (a) an auto allowance of $12,000 per annum, which shall be earned
and paid monthly throughout the Term (the “Auto Allowance”), and (b) a
membership in the Hillsboro Club (at a cost of approximately $2,300 per annum as
of the Effective Date) for purposes of business entertainment (the
“Membership”). In addition, the Company shall reimburse Employee for
all documented reasonable expenses actually paid or incurred by Employee for
continuing legal education seminars or other activities required for Employee to
maintain his license to practice law.
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3.2 Other
Benefits. During the Term and during the period of time that
Severance Payments are to be made to Employee hereunder, the Company shall make
available to Employee such benefits and perquisites as are generally provided by
the Company to its senior management (subject to eligibility), including but not
limited to participation in any group life, medical, health, dental, disability
or accident insurance, pension plan (collectively, the “Insurance”), 401(k)
savings and investment plan, profit-sharing plan, employee stock purchase plan,
incentive compensation plan (collectively, the “Retirement Plans”), and any
other similar benefit plan or policy which may presently be in effect or which
may hereafter be adopted by the Company for the benefit of its senior management
or its employees generally (the “Other Benefits), in each case subject to and on
a basis consistent with the terms, conditions and overall administration of such
plan or arrangement; provided,
however, that the Company shall waive any existing eligibility
requirements for participation in such plans or arrangements to the extent
allowed by the applicable rules and regulations governing the same.
3.3 Vacation. During
the Term, Employee shall be entitled to paid vacation in accordance with the
policies, programs and practices of the Company generally applicable to its
senior management; provided,
however, that Employee shall be entitled to not less that three weeks of
paid vacation per contract year during the Term.
3.4 Relocation
Expenses. The Company reimbursed Employee for all documented
reasonable and customary expenses actually paid or incurred by Employee in
connection with his relocation to the Fort Lauderdale, Florida area, including
temporary housing and living expenses and expenses incurred to move the personal
belongings of Employee and his family. If an to the extent that
Employee suffers any increase in federal income taxes as a result of the
Company’s relocation expense reimbursement pursuant to this Section 3.4, the
Company will pay Employee an additional amount so that, on a net after-tax
basis, Employee receives the same amount of expense reimbursement payable
hereunder as he would have absent such taxes.
4.
Termination.
4.1 Termination for
Cause. Notwithstanding anything contained to the contrary in
this Agreement, this Agreement and Employee’s employment hereunder may be
terminated by the Company for Cause. As used in this Agreement,
“Cause” shall
mean (i) subject to the following sentences, any action or omission of
Employee which constitutes (A) a breach of any of the provisions of Section 6 of
this Agreement, (B) a breach by Employee of his fiduciary duties and obligations
to the Company, or (C) Employee’s failure or refusal to follow any lawful
directive of the Board, in each case which act or omission is not cured (if
capable of being cured) within ten (10) days after written notice of same from
the Company to Employee, or (ii) conduct constituting fraud, embezzlement,
misappropriation or gross dishonesty by Employee in connection with the
performance of his duties under this Agreement, or a conviction of Employee of,
a felony (other than a traffic violation) or, if it shall damage or bring into
disrepute the business, reputation or goodwill of the Company or impair
Employee's ability to perform his duties with the Company, any crime involving
moral turpitude. Employee shall be given a written notice of
termination for Cause specifying the details thereof. Upon any
termination pursuant to this Section 4.1, Employee shall only be entitled to his
Base Salary through the date of termination, reimbursement for all expenses
described in Section 3.1 of this Agreement and incurred prior to the date of
termination, and any other compensation and benefits provided in accordance with
Section 3.2 hereof through the date of termination or as otherwise required by
applicable law. Each payment required to be made to Employee under this Section
4.1 shall be payable on the earlier of (i) the latest date prescribed by law for
such payment of wages to a terminated employee, if such law is applicable to a
payment, (ii) the first normal payroll date of the Company following
termination, to the extent such payment is computed by reference to Base Salary
or would otherwise have been paid according to the Company payroll policies then
in effect, (iii) at the time the payment would have been made according to the
Company policy then in effect, and (iii) March 15 of the first year following
the year in which termination occurs. Upon making such payments, the
Company shall have no further liability hereunder.
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4.2 Disability. Notwithstanding
anything contained in this Agreement to the contrary, the Company, by written
notice to Employee, shall at all times have the right to terminate this
Agreement and Employee’s employment hereunder if Employee shall, as the result
of mental or physical incapacity, illness or disability, fail or be unable to
perform his duties and responsibilities provided for herein in all material
respects for a period of more than sixty (60) consecutive days in any 12-month
period. Upon any termination pursuant to this Section 4.2, (i) within
thirty (30) days after the date of termination, the Company shall pay Employee
any unpaid amounts of his Base Salary accrued prior to the date of termination
and shall reimburse Employee for all expenses described in Section 3.1 of this
Agreement and incurred prior to the date of termination, and (ii) in lieu of any
further Base Salary, incentive compensation or other benefits or payments to
Employee for periods subsequent to the date of termination the Company shall pay
to Employee the Severance Payments and Severance Benefits specified in Section
5.1. Upon making such payments and providing such benefits, the
Company shall have no further liability hereunder; provided, however, that
Employee shall be entitled to receive any amounts then payable pursuant to any
employee benefit plan, life insurance policy or other plan, program or policy
then maintained or provided by the Company to Employee in accordance with
Section 3.2 hereof and under the terms thereof.
4.3 Death. In
the event of the death of Employee during the term of his employment hereunder,
this Agreement shall terminate on the date of Employee’s death. Upon
any termination pursuant to this Section 4.3, (i) within thirty (30) days after
the date of termination, the Company shall pay to the estate of Employee any
unpaid amounts of his Base Salary accrued prior to the date of termination and
reimbursement for all expenses described in Section 3.1 of this Agreement and
incurred by Employee prior to his death, and (ii) in lieu of any further Base
Salary, incentive compensation or other benefits or payments to the estate of
Employee for periods subsequent to the date of termination the Company shall pay
to the estate of Employee the Severance Payments specified in Section
5.1. Upon making such payments, the Company shall have no further
liability hereunder; provided, that Employee’s
spouse, beneficiaries or estate, as the case may be, shall be entitled to
receive any amounts then payable pursuant to any employee benefit plan, life
insurance policy or other plan, program or policy then maintained or provided by
the Company to Employee in accordance with Section 3.2 hereof and under the
terms thereof.
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4.4 Termination Without
Cause. At any time the Company shall have the right to
terminate this Agreement and Employee’s employment hereunder by written notice
to Employee (a “Termination without
Cause”). Upon a Termination Without Cause or a Voluntary
Termination for Good Reason, (i) within thirty (30) days after the date of
termination, the Company shall pay Employee any unpaid amounts of his Base
Salary accrued prior to the date of termination and shall reimburse Employee for
all expenses described in Section 3.1 of this Agreement and incurred prior to
the date of termination, and (ii) in lieu of any further Base Salary, incentive
compensation or other benefits or payments to Employee for periods subsequent to
the date of termination the Company shall pay to Employee the Severance Payments
and Severance Benefits specified in Section 5.1. The amount of any
payment (including Severance Payments) provided for in this Section 4.4 will not
be reduced by any compensation Employee earns as the result of employment by
another employer or business during the period the Company is obligated to make
payments hereunder. Upon making such payments and providing such
benefits, the Company shall have no further liability hereunder; provided, that Employee shall
be entitled to receive any amounts then payable pursuant to any employee benefit
plan, life insurance policy or other plan, program or policy then maintained or
provided by the Company to Employee in accordance with Section 3.2 and under the
terms thereof. A notice of non-renewal of this Agreement by the
Company pursuant to Section 1.1 hereof shall be deemed to be a Termination
without Cause pursuant to this Section 4.4.
4.5 Voluntary
Resignation. Employee may, upon not less than thirty (30)
days’ written notice to the Company, resign and terminate his employment
hereunder (a “Voluntary Termination
without Good Reason”). In the event of a Voluntary Termination
without Good Reason, he shall be entitled to receive only such payment(s) as he
would have received had he been terminated pursuant to Section 4.1
hereof. Employee shall give the Company not less than thirty (30)
days prior written notice of a Voluntary Termination without Good
Reason.
4.6 Voluntary Termination for
Good Reason. A “Voluntary Termination for
Good Reason” will be deemed to have occurred if during the period of this
Agreement Employee terminates his employment hereunder due to one or more of the
following conditions arising without the consent of Employee:
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(a)
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A
material diminution in the authority, duties, or responsibilities of
Employee or of the budget over which Employee retains
authority;
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(b)
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A
material reduction by the Company in Employee’s base
salary;
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(c)
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A
change in Employee’s reporting relationship such that the Officer no
longer reports to a board of directors (or similar
body);
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(c)
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A
relocation of the Company’s principal offices to a location more than
50 miles from the current location of the Company’s principal office;
and,
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(d)
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Any
other action or inaction of the Company that constitutes a material breach
by the Company of any provision of this Agreement or any other agreement
under which Employee provides services to the
Company.
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Notwithstanding
anything to the contrary in this Agreement, no Voluntary Termination for Good
Reason shall occur unless (i) Employee has given notice to the Company of the
existence of a condition described in this Section 4.6 within ninety (90)
days of the initial existence of such condition and such condition has not been
remedied by the Company within thirty (30) days and (ii) Employee terminates his
employment with the Company within two years of the initial occurrence of the
condition giving rise to such Voluntary Termination for Good
Reason.
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5.
Severance Payments and
Benefits.
5.1 Amount of
Benefit. Upon any termination of this Agreement pursuant to
Section 4.2, 4.3, 4.4 or 4.6, the Company shall continue to pay Employee,
subject to Section 5.3, or shall pay his estate, in the event of his death, in
installments equal to the amounts of his Base Salary (at the rate in effect at
the date of termination) that would have been paid to Employee had this
Agreement and his employment hereunder not been terminated for the following
periods: (i) if this Agreement is terminated pursuant to Section 4.2
or 4.3, for a period of six (6) months following the date of termination; and
(ii) if this Agreement is terminated pursuant to Section 4.4 or 4.6, until
eighteen (18) months following the date of termination (the “Severance
Payments”). During any period of time that the Company is
obligated to make Severance Payments to Employee pursuant to this Agreement, the
Company shall also provide Other Employee Benefits (or the value of any such
Other Employee Benefits which cannot be provided to a non-employee), with no
reductions from those provided before such termination (the “Severance
Benefits”). For the purposes of this Section 5.1, “Other Employee
Benefits” are the Auto Allowance, the Insurance, the Membership and the
Other Benefits. No expenses with respect to Severance Benefits may be
incurred or in-kind Severance Benefits provided to Employee after the last day
of the second year following the year in which termination of this Agreement
occurs, and any amounts payable with respect to Severance Benefits must be paid
no later than end of the third year following the year in which the termination
of this Agreement occurs. If during the Noncompete Period (as defined
in Section 6.3) Employee engages in conduct or activities that constitute a
breach of the provisions of Section 6.1, 6.2 or 6.3, then the Company’s
obligation to pay Employee (or his estate) any further Severance Payments shall
cease and the Company shall have no further liability for Severance Payments
hereunder; provided,
that the Company shall provide Employee not less than thirty (30) days
prior written notice of its intention to discontinue Severance Payments; provided, further, that if
Employee in good faith disputes whether he has breached the provisions of
Section 6.1, 6.2 or 6.3 and so notifies the Company in writing within ten (10)
days of receiving such notice, then the Company shall continue to make the
Severance Payments until such time as the dispute is resolved but may, at its
option, make such payments to an escrow account established for such purpose (or
if litigation has commenced with regard to such dispute, to deposit such
payments with the clerk of the court having jurisdiction of the
dispute).
5.2 Lump Sum
Payment. At the Company’s option, and subject to Section 5.3,
the Severance Payments (or any remaining installments thereof) may be discharged
in full by delivering to Employee (or the estate of Employee) a lump sum payment
by bank or cashiers cashier's check in an amount equal to the present value of
the flow of cash payments (or remaining installments thereof) that would
otherwise be paid to Employee pursuant to Section 5.1. Such present
value shall be determined as of the date of delivery of the lump sum payment by
the Company and shall be based on a discount rate equal to the interest rate of
90 day U.S. Treasury bills, as reported in The Wall Street Journal (or
similar publication), on the third business day prior to the delivery of the
lump sum payment. The Company has no corresponding right to make a
lump sum payment in lieu of providing Severance Benefits and, in the event of a
lump sum payment terminating the Company’s obligation to make Severance
Payments, the Company’s obligation to provide Employee with Severance Benefits
will continue for the period Severance Payments would have been made in the
absence of such lump sum payment.
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5.3 American Jobs Creation Act
Provisions. It is the intention of the Parties that payments
or benefits payable under this Agreement not be subject to the additional tax
imposed pursuant to Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”). Accordingly,
to the extent such potential payments or benefits could become subject to
Section 409A of the Code, the Parties shall cooperate to amend this Agreement
with the goal of giving Employee the economic benefits described herein in a
manner that does not result in such tax being
imposed. Notwithstanding anything in this Agreement to the contrary,
the following provisions related to payments treated as deferred compensation
under Section 409A of the Code, shall apply:
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(a)
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If
(i) Employee is a “specified person” on the date of Employee’s “separation
from service” within the meaning of Sections 409A(a)(2)(A)(i) and
409A(a)(2)(B)(ii) of the Code, and (ii) as a result of such separation
from service Employee would receive any payment that, absent the
application of this paragraph, would be subject to the interest and
additional tax imposed pursuant to Section 409A(a) of the Code as a result
of the application of Section 409A(a)(2)(B)(i) of the Code, then no such
payment shall be made prior to the date that is the earliest of: (i) 6
months after Employee’s separation from service and (ii) Employee’s date
of death.
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(b)
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Any
payments that are delayed pursuant to Section 5.3(a) shall be paid on the
earliest of the two dates described
therein.
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(c)
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Sections 5.3(a) and
(b) shall
not apply to any Severance Payment or Other Employee Benefit if and to the
maximum extent that that such payment would be a “short-term deferral” (as
defined in Treasury Regulation Section 1.409A-1(b)(4)) or a payment under
a separation pay plan following an “involuntary separation from service”
(as defined in Treasury Regulation Section 1.409A-1(n)) that does not
provide for a deferral of compensation by reason of the application of
Treasury Regulation Section 1.409A-1(b)(9)(iii). For the
avoidance of doubt, the parties agree that this Section 5.3(c) shall be
interpreted so that Employee will receive Severance Payments and Other
Employee Benefits during the six month period specified in Section 5.2(a)
to the maximum amount permitted by Treasury Regulation Sections
1.409A-1(b)(4) and
1.409A-1(b)(9)(iii).
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(d)
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In
the event it shall be determined that any payment by the Company to or for
the benefit of Employee (whether paid or payable pursuant to the terms of
this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 5.3) (a “Payment”)
would be subject to the tax imposed by Section 409A of the Code or any
interest or penalties are incurred by Employee with respect to such tax
(such tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “409A
Tax”), then Employee shall be entitled to receive an additional
payment (a “Gross-Up
Payment”) in an amount such that the remaining balance of the
Gross-Up Payment after reduction for the amount of all taxes imposed upon
the Gross-Up Payment (including any state and federal income taxes and
409A Tax imposed with respect to such taxes), is equal to the 409A Tax
imposed upon the Payment. Any Gross-Up Payment due Employee
shall be paid no later than the end of Employee’s taxable year following
the taxable year of Employee in which Employee remits the related 409A Tax
to the appropriate taxing
authority.
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(e)
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If
a payment that could be made under this Agreement would be subject to
additional taxes and interest under Section 409A of the Code, the Company
in its sole discretion may accelerate some or all of a payment otherwise
payable under the Agreement to the time at which such amount is includable
in the income of Employee, provided that such acceleration shall only be
permitted to the extent permitted under Treasury Regulation Section
1.409A-3(j)(vii) and the amount of such acceleration does not exceed the
amount permitted under Treasury Regulation Section
1.409A-3(j)(vii).
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(f)
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No
payment to be made under this Agreement shall be made at a time earlier
than that provided for in this Agreement unless such payment is (i) an
acceleration of payment permitted to be made under Treasury Regulation
Section 1.409A-3(j)(4) or (ii) a payment that would otherwise not be
subject to additional taxes and interest under Section 409A of the
Code.
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(g)
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A
payment described in Section 5.2 of this Agreement shall be made only if
such payment will not be subject to additional taxes and interest under
Section 409A of the Code.
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(h)
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No
termination of Employee’s employment shall be deemed to have occurred
unless Employee “separates from service” within the meaning of Treasury
Regulation Section 1.409A-1(h).
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(i)
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Each
installment payment of Severance Benefits and each periodic payment of any
Other Employee Benefits shall be a separate payment to the maximum extent
permitted by Section 409A of the Code and the Treasury Regulations
promulgated thereunder.
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5.4 Taxes. All
payments made under this Agreement shall be subject to withholding of payroll,
withholding and other taxes as required by federal, state, or local
law.
6.
Restrictive
Covenants.
6.1 Nondisclosure. (a) Employee
agrees that he shall not divulge, communicate, use to the detriment of the
Company or for the benefit of any other person or persons, or misuse in any way,
any Confidential Information (as hereinafter defined) pertaining to the business
of the Company. Any Confidential Information or data now or hereafter
acquired by Employee with respect to the business of the Company (which shall
include, but not be limited to, information concerning the Company's financial
condition, prospects, technology, customers and marketing and promotion of the
Company's services) shall be deemed a valuable, special and unique asset of the
Company that is received by Employee in confidence and as a fiduciary, and
Employee shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement, “Confidential
Information” means information disclosed to Employee or known by Employee
as a consequence of or through his employment by the Company (including
information conceived, originated, discovered or developed by Employee), and not
generally known or available, about the Company or its
business. Notwithstanding the foregoing, nothing herein shall be
deemed to restrict Employee from disclosing Confidential Information to the
extent required by law.
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(b) Employee
agrees to (i) return to the Company upon request, and in any event, at the time
of termination of employment for whatever reason, all documents, equipment,
notes, records, computer disks and tapes and other tangible items in his
possession or under his control which belong to the Company or any of its
affiliates or which contain or refer to any Confidential Information relating to
the Company or any of its affiliates and (ii) if so requested by the Company,
delete all Confidential Information relating to the Company or any of its
affiliates from any computer disks, tapes or other re-usable material in his
possession or under his control which contain or refer to any Confidential
Information relating to the Company or any of its affiliates.
6.2 Nonsolicitation of
Employees. While employed by the Company and for a period of
twelve (12) months after the first payment of Severance Payments is made
hereunder, Employee shall not directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity,
attempt to employ or enter into any contractual arrangement with any employee or
former employee of the Company, unless such employee or former employee (i) has
not been employed by the Company for a period of more than twelve (12) months or
(ii) was an individual with whom Employee was a co-worker of or otherwise
associated with prior to being employed by the Company.
6.3 Noncompetition. While
employed by the Company and for a period of twelve (12) months after the first
payment of Severance Payments is made hereunder (the “Noncompete Period”),
unless otherwise waived in writing by the Company (such waiver to be in the
Company’s sole and absolute discretion), Employee shall not, directly or
indirectly, engage in, operate, manage, have any investment or interest or
otherwise participate in any manner (whether as employee, officer, director,
partner, agent, security holder, creditor, consultant or otherwise) in any sole
proprietorship, partnership, corporation or business or any other person or
entity (each, a “Competitor”) that
engages, directly, or indirectly in a Competing Business; provided, that (A) Employee
may continue to hold securities of the Company and/or acquire, solely as an
investment, shares of capital stock or other equity securities of any Competitor
which are publicly traded, so long as Employee does not control, acquire a
controlling interest in, or become a member of a group which exercises direct or
indirect control of, more than five percent (5%) of any class of equity
securities of such Competitor; and (B) Employee may be employed by or consult
with a Competitor whose primary business is not a Competing Business, so long as
Employee does not have direct and day-to-day supervisory responsibilities with
respect to its Competing Business. For purposes of this Agreement,
the term “Competing
Business” means mobile fleet fueling.
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6.4 Injunction. It
is recognized and hereby acknowledged by the parties hereto that a breach by
Employee of any of the covenants contained in Section 6.1, 6.2 or 6.3 of this
Agreement will cause irreparable harm and damage to the Company, the monetary
amount of which may be virtually impossible to ascertain. As a
result, Employee recognizes and hereby acknowledges that the Company shall be
entitled to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in Section 6
of this Agreement by Employee or any of his affiliates, associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other remedies the Company may
possess.
7. Entire Agreement; No
Conflicts With Existing Arrangements. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement and this Agreement contains the entire agreement,
and supersedes any other agreement or understanding, between the Company and
Employee relating to Employee’s employment and any compensation or benefits in
respect thereof. Employee represents and warrants to the Company that
he has reviewed any existing employment or non-competition covenants with his
prior employer, and that his employment by the Company hereunder does not and
will not conflict with or constitute a breach or default under any of the terms
or provisions thereof.
8. Notices: All
notices and other communications required or permitted under this Agreement
shall be in writing and will be either hand delivered in person, sent by
facsimile, sent by certified or registered first class mail, postage pre-paid,
or sent by nationally recognized express courier service. Such
notices and other communications will be effective upon receipt if hand
delivered or sent by facsimile, five (5) days after mailing if sent by mail, and
one (l) day after dispatch if sent by express courier, to the following
addresses, or such other addresses as any party may notify the other parties in
accordance with this Section:
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If
to the Company:
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000
Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
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Xx.
Xxxxxxxxxx, Xxxxxxx 00000
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Attention:
Board of Directors
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Facsimile:
000-000-0000
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If
to Employee:
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000
X.X. 00xx Xxxxxx
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Xxxxxxx
Xxxxx, XX 00000
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Facsimile: (000)
000-0000
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9.
Successors and
Assigns.
(a) This Agreement
is personal to Employee and without the prior written consent of the Company
shall not be assignable by Employee otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by Employee’s legal representatives.
(b) This Agreement
shall inure to the benefit of and be binding upon the Company and its successors
and assigns.
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(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement 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. As used
in this Agreement, “Company” shall mean
the Company and any successor to its business and/or assets which assumes and
agrees to perform this Agreement by operation of law or otherwise.
10. Severability. The
invalidity of any one or more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law, and, in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted. If such
invalidity is caused by length of time or size of area, or both, the otherwise
invalid provision will be considered to be reduced to a period or area which
would cure such invalidity.
11. Waivers. The
waiver by either party hereto of a breach or violation of any term or provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation.
12. Resolution of Disputes;
Damages. (a) With the exception of proceedings for equitable
relief brought pursuant to Section 6.4 of this Agreement or otherwise, any
disputes arising under or in connection with this Agreement, including, without
limitation, any assertion by any party hereto that the other party has breached
any provision of this Agreement, shall be resolved by arbitration, to be held in
Ft. Lauderdale, Florida, in accordance with the then current rules and
procedures of the American Arbitration Association. All costs, fees
and expenses, excluding attorney fees incurred by Employee, of any arbitration
in connection with this Agreement, which arbitration results in any final
decision of the arbitrator(s) requiring the Company to make a payment to
Employee, shall be borne by, and be the obligation of, the
Company. Conversely, should the arbitration result in a final
decision of the arbitrator(s) in favor of the Company and not require the
Company to make payment to Employee, then Employee, in addition to all other
costs, fees and expenses, including attorney fees incurred by Employee in
connection with such arbitration proceedings, shall also be required to
reimburse the Company for all costs, fees and expenses, excluding attorney fees
incurred by the Company in such proceedings. The obligation of the
Company and Employee under this Section 12 shall survive the termination for any
reason of the Term (whether such termination is by the Company, by Employee or
upon the expiration of the Term). Pending the outcome or resolution
of any arbitration commenced or brought in good faith by Employee, the Company
shall continue payment and provision of the Base Salary and other compensation
and the benefits provided for Employee in this Agreement.
(b) Nothing
contained herein shall be construed to prevent the Company or Employee from
seeking and recovering from the other damages sustained by either or both of
them as a result of its or his breach of any term or provision of this
Agreement, except that the payment required to be made by the Company to
Employee pursuant to Section 4.4 shall be Employee’s exclusive remedy for any
termination of this Agreement pursuant to such section.
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13. No Third Party
Beneficiary. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person (other than
the parties hereto and, in the case of Employee, his heirs, personal
representative(s) and/or legal representative) any rights or remedies under or
by reason of this Agreement.
14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to principles
of conflict of laws.
15. Counterparts. This
Agreement may be executed in one or more counterparts and by the separate
parties hereto in separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
document.
IN
WITNESS WHEREOF, the undersigned have executed this Third Amended and Restated
Employment Agreement as of the Effective Date.
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COMPANY:
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SMF
ENERGY CORPORATION.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx, Chief Financial Officer
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EMPLOYEE:
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/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx
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