EMPLOYMENT AGREEMENT
Exhibit
10.76
The
following are the terms of the employment agreement between E. Xxxxx
Xxxxxxx (hereafter “Executive”), or his designated corporation which
controls his services (the “Schloss Corp” or his “designee”), with a
mailing address at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000 and
Surge Global Energy, Inc., a Delaware corporation (hereafter “Company”), with a
mailing address at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX
00000.
1. TERM: June
17, 2008 to April 30, 2010 guaranteed except as provided herein.
2.
TITLE: President and Chief Executive Officer.
3. BASE
COMPENSATION: Initial salary for period June 17 through December 31,
2008 at the rate of $9,500 per month. Thereafter, an increase to $10,500 per
month until June 30, 2009, then $11,500.00 per month until April 30, 2010,
of which 50% will be allocated to Peace Oil Corp. or another Surge subsidiary.
Executive will also serve as CEO of Peace Oil Corp. and Cold Flow Energy, ULC
and all other Canadian subsidiaries at no additional compensation. Executive
shall also receive payment for services rendered prior to the execution of this
agreement for the periods May 1, 2008 through June 16, 2008 (the “Pre-Employment
Contract Period”) at the rate of $9,500 per month.
4. FRINGE
BENEFITS: Company to pay normal payroll taxes directly or reimburse for actual
payroll tax amounts owed. Company will also pay Executive’s out of pocket
health, dental, vision, and long term care insurance premiums, prescription
drug plan, actual out of pocket medical, dental & drugs, not to exceed
$1,500 per month in total for medical plans & expenses.
5. OTHER
EXPENSES: Company to reimburse Executive’s normal travel and related expenses
while away from Executive’s base of operations which are now Palm Desert, CA for
about 10 months of the year and Lexington KY for about 2 months of the year.
Company to pay actual out of pocket expenses at Executive’s home for supplies,
telephones, cell phone, Internet, and related expenses attributable to Company
business commencing from February 11, 2008. Executive will supply all his
current furniture & equipment, including without limitation, such things as
computers, printers, Fax machines, and telephones at no cost to the
Company, but the Company agrees to pay all repairs and maintenance of said items
and replace any item which fails or becomes inadequate or obsolete during the
term of employment. If Executive relocates to Solana Beach area at
Company’s request, Company will pay reasonable actual and relocation
costs.
6. CAR
ALLOWANCE: Company to pay a car allowance of $750.00 per month for the entire
term of the contract and Pre-Employment Contract Period beginning May 1, 2008
and related automobile out of pocket costs for business use.
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7. TAX
RETURNS: As interim CFO (which employee is not being paid anything now in
addition to CEO duties), employee will prepare and file the company's
U.S. Federal and State Tax returns and review prior filings on his own time. For
prior period returns, already drafted but not complete, the fee will be $850.00
Federal and $350.00 State. For new returns, commencing 2007 and subsequent
years, the fee will be $2,500.00 Federal and $500.00 State. Canadian income
tax returns will be prepared by KPMG or another accounting firm in Canada which
Executive will review at no additional compensation.
8. VACATION
& PAID TIME OFF: Eighteen days per year paid time off (PTO), accrued on a
monthly basis, for each month worked commencing from February 11, 2008.
9.
STOCK
OPTIONS: Employee will receive additional stock options as
approved by the compensation committee based on a performance review at
December, 2008 and at December, 2009.
10. INDEMNIFICATION. The
Company shall provide to Schloss to the full extent provided for under the laws
of the Company’s state of incorporation and the Company’s Certificate of
Incorporation and Bylaws, indemnification for any claim or lawsuit which may be
asserted against Schloss when acting in such capacity for the Company and/or any
subsidiary or affiliated business. The Company shall use reasonable
best efforts to include Schloss as an insured under all applicable directors’
and officers’ liability insurance policies maintained by the Company, and any
other subsidiary or affiliated business. The PROVISIONS OF THIS PARAGRAPH SHALL
APPLY DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF SIX YEARS THEREAFTER
NOTWITHSTANDING THE TERMINATION OF THIS AGREEMENT OR ANY OTHER PROVISION
HEREIN.
11. TERMINATION.
(a) Termination by the Company
with Cause. Notwithstanding the terms of this Agreement,
Company may only terminate this Agreement for cause (“Cause”) in the event (i)
of Schloss’ commission of an act involving fraud, embezzlement, or theft against
the property or personnel of Company, or (ii) Schloss shall be convicted of, or
plead nolo
contendre to a
felony or engages in other criminal conduct that could reasonably be expected to
have a material adverse affect on the business, assets, properties, prospects,
results of operations or financial condition of Company. In the event
this Agreement is terminated pursuant to this Section 11(a), Schloss’ Base
Salary and all benefits under this Agreement shall terminate
immediately upon such discharge, and Company shall have no further obligations
to Schloss except for payment and reimbursement for any monies due which right
to payment or reimbursement accrued prior to such termination.
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(b) Death or
Disability. The Company may terminate this Agreement upon the
disability or death of Schloss by giving written notice to
Schloss. In the case of disability, such termination will become
effective immediately upon the giving of such notice unless otherwise specified
by the Company. For purposes of this Section 11(b), “disability”
shall mean that for a period of more than six consecutive months in any 12-month
period Schloss is unable to perform the essential functions of his position
because of physical, mental or emotional incapacity resulting from injury,
sickness or disease. Upon any such termination, the Company shall be
relieved of all its obligations under this Agreement, except for payment of the
Schloss Base Salary and unpaid PTO and other benefits through the effective date
of termination. Nothing in this provision is intended to violate
state or federal laws.
(c) Termination by
Schloss. Schloss may terminate this Agreement at any time by
giving three months’ prior written notice to the Company. The Company
shall be relieved of all of its obligations under this Agreement, except for
payment of the Schloss Base Salary and any unpaid benefits paid through the
termination date.
12. COMPANY
AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by this Agreement. The Board
of Directors of the Company has duly authorized the execution and delivery of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated on its part by this Agreement, and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or for the Company to consummate the transactions contemplated by it. The
Company has duly validly executed and delivered this Agreement and it is a valid
and binding Agreement of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy or insolvency laws affecting
creditors’ rights generally and to general principles of equity.
13. NOTICES.
Any and all notices, demands or requests required or permitted to be given under
this Agreement shall be given in writing and sent, by registered or certified
U.S. mail, return receipt requested, by hand, or by overnight courier, addressed
to the parties hereto at their addresses set forth above or such other addresses
as they may from time-to-time designate by written notice, given in accordance
with the terms of this Section.
14. WAIVERS. No
waiver by any party of any default with respect to any provision, condition or
requirement hereof shall be deemed to be a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
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15. PRESERVATION
OF INTENT. Should any provision of this Agreement be determined by a
court having jurisdiction in the premises to be illegal or in conflict with any
laws of any state or jurisdiction or otherwise unenforceable, Company and
Schloss agree that such provision shall be modified to the extent legally
possible so that the intent of this Agreement may be legally carried
out.
16. ENTIRE
AGREEMENT. This Agreement sets forth the entire and only agreement or
understanding between the parties relating to the subject matter hereof and
supersedes and cancels all previous agreements, negotiations, letters of intent,
correspondence, commitments and representations in respect thereof among them,
and no party shall be bound by any conditions, definitions, warranties or
representations with respect to the subject matter of this Agreement except as
provided in this Agreement. This Agreement may not be amended in any respect
except by an instrument in writing signed by the parties hereto.
17. INUREMENT;
ASSIGNMENT. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon any successor
of Company or to the business of Company, subject to the provisions
hereof. Neither this Agreement nor any rights or obligations of
Schloss hereunder shall be transferable or assignable by Schloss.
18. HEADINGS. The
headings in this Agreement are solely for convenience of reference and shall be
given no effect in the construction or interpretation of this
Agreement.
19. COUNTERPARTS. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which when taken together shall constitute one
and the same instrument.
20. GOVERNING
LAW. This Agreement shall be governed by, construed and enforced in
accordance with the internal laws of the State of California, without giving
reference to principles of conflict of laws. Each of the parties hereto
irrevocably consents to the venue and exclusive jurisdiction of the federal and
state courts located in the State of California, County of San
Diego. THE PARTIES
HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
COUNTERCLAIM BASED ON THIS EMPLOYMENT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
IN IT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY TO IT.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
AGREED
AND ACCEPTED THIS 17TH DAY OF
JUNE, 2008.
/s/ E. Xxxxx
Xxxxxxx
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By: /s/ Xxxxxx
Xxxxxxxx
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E.
Xxxxx Xxxxxxx
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Xxxxxx
Xxxxxxxx, as Attorney for Surge
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and
authorized by the Board of Directors
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