EXHIBIT 4.5
EMPLOYMENT AGREEMENT
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BETWEEN XXXXX XXXXX AND SURGE GLOBAL ENERGY, INC.
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THIS AGREEMENT is made as of November 30, 2004, with intended effect
beginning November 20, 2004, between SURGE GLOBAL ENERGY INC. a Delaware
corporation ("COMPANY"), and XXXXX XXXXX, a resident of California
("EXECUTIVE"), under the following circumstances:
A. The Company is engaged in the business of oil and gas exploration.
B. Executive was appointed a Director of the Company on November 4,
2004, and as Chairman of the Board on November 20, 2004.
C. Executive was granted a stock option for 400,000 shares of Common
Stock on November 4, 2004 (the "NOVEMBER 4 OPTION") upon joining the Company's
Board of Directors (the "BOARD"), which option was granted separate from the
terms of this Agreement.
D. Executive is to be granted a stock option for 600,000 shares of
Common Stock in connection with his appointment to Chairman of the Board, which
option is to be granted separate from the terms of this Agreement.
E. Executive was appointed Chief Operating Officer of the Company on
November 20, 2004.
F. As a condition to beginning full-time employment with the Company as
Chief Operating Officer, the Executive and the Company agree to the terms and
conditions set forth herein.
As used in this Agreement, the term "AFFILIATE" means a person or
entity that, directly or indirectly through one or more intermediaries, controls
or is controlled by the Company and including, without limitation, any joint
venture entity that the Company or an Affiliate of the Company is a member,
partner or shareholder. For purposes of this Agreement, Executive is not deemed
an Affiliate.
NOW, THEREFORE, in consideration of the foregoing, the representations,
warranties and covenants contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
and intending to be legally bound, the parties hereby agree as follows:
Section 1. Employment.
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The Company hereby employs Executive, and Executive hereby accepts
employment by the Company. Executive shall serve as Chief Operating Officer
(COO) and shall report to the Chief Executive Officer of the Company, or, if
none, to THE Board. During the Term, Executive shall devote substantially all of
his business time and effort to the performance of his duties hereunder. The
Company shall not require Executive, without Executive's consent, to relocate
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from the greater Southern, California area or to spend more than five (5) nights
away from home during any calendar month. Executive shall serve in an executive
capacity and shall perform such duties as are consistent with his position as
COO as may be reasonably required by the CEO or the Board. Such duties shall
include without limitation, directing the expansion of operations in North
America and Latin America, recruiting a senior management team (including a CEO
and CFO), along with managing existing operations and communicating with
financing sources.
Section 2. Term.
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Executive's employment under this Agreement commenced on November 20,
2004 and shall continue for the period (the "TERM") from such date until the
earlier of the fifth (5th) anniversary of such date or the date Executive's
employment otherwise is terminated as provided in Section 6. The Term shall
automatically be extended until the tenth (10th) anniversary of such date or the
date Executive's employment otherwise is terminated as provided in Section 6 if
the Company's Adjusted Income Before Income Taxes (as defined in Section 4(a)
below) during any of the first three full fiscal years ending on or after
January 1, 2005, exceeds $1,500,000.
Section 3. Compensation.
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Executive shall receive as compensation for his services under this
Agreement an annual salary ("BASE COMPENSATION") of $250,000, payable in
installments in accordance with the normal payroll policies of the Company.
Executive shall be entitled to annual increases in Base Salary determined at the
sole discretion of the Compensation Committee of the Board (or the Board if
there shall be no Compensation Committee) in its annual review of Executive.
Section 4. Performance Bonus Compensation.
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(a) CALCULATION. Executive shall be eligible to receive a performance
bonus as follows. The Performance Bonus shall equal 5% of the Adjusted Income
Before Income Taxes (as defined below) in excess of $500,000 ("TARGET INCOME")
for each Fiscal Year of the Company. The "ADJUSTED INCOME BEFORE INCOME TAXES"
is defined as the Company's Net Income Before Taxes, determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied ("GAAP") and reflected on the Company's audited
consolidated statement of operations for such fiscal year, adjusted to include
the effect of discontinued operations, if any, and to exclude the effect of
expense for stock option and other equity compensation to employees, directors
and consultants. In the event the company changes its fiscal year, the
Performance Bonus will be paid with respect to each resulting fiscal year
covered by an audit of the statement of operations, and Target Income will be
adjusted appropriately to reflect the length of each such period.
(b) PAYMENT. Executive shall be paid the Performance Bonus with respect
to each fiscal year within fifteen (15) days after the publication of audited
financial statements for such fiscal year.
Section 5. Other Benefits.
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Executive shall be entitled to receive other benefits, as follows:
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(a) VACATION. Executive shall be entitled to four (4) weeks of paid
vacation per year. The days selected for Executive's vacations shall be mutually
agreeable to Company and Executive.
(b) AUTOMOBILE EXPENSE ALLOWANCE. Executive shall be entitled receive a
monthly automobile expense allowance in the amount of $1,000.
(c) MEDICAL BENEFITS. Executive shall be provided medical and dental
benefits that are extended to other executive officers of the Company. Executive
shall be entitled to participate in any such plan or program only if executive
officers of the Company are generally eligible to participate in such plan or
program. Company may, in its sole discretion and from time to time establish
other medical and dental benefit programs applicable to all executive officers
as it deems appropriate.
(d) OTHER BENEFIT PLANS. Executive shall be entitled to participate in
other benefit plans and arrangements as are generally made available by the
Company to its employees but only if executive officers of the Company are
generally eligible to participate in such plan or program. Executive understands
that any such plans may be modified or eliminated in Company's discretion.
(e) EXPENSES. The Company shall reimburse Executive for all reasonable
travel and entertainment expenses incurred by Executive in the course of his
employment in accordance with the Company's normal policies, upon submission of
properly documented expense account reports.
(f) INSURANCE. The Company will purchase and maintain a Directors and
Officers Liability Insurance Policy of having a limit of no less than
$5,000,000. The Company will also maintain throughout the Term a $2,000,000 life
insurance policy on Executive's life for the benefit of Executive's designated
beneficiaries.
(g) ATTORNEY FEES. The Company will reimburse Executive's reasonable
legal fees incurred in connection with Executive's service as Chairman of the
Board and/or Chief Operating Officer, including legal fees and costs related to
matters brought before the Board and to preparation and negotiation of this
Agreement and all stock option agreements between Executive and the Company.
Section 6. Stock Options
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(a) NOVEMBER 4 OPTION. The Company agrees to modify the November 4
Option to extend the expiration date of such option from November 4, 2009 to
November 4, 2014.
(b) INITIAL OPTION. Upon the date of this Agreement, the Company will
issue Executive an option to purchase three million (3,000,000) shares of Common
Stock of the Company at an exercise price of $0.65 per share (the "INITIAL
OPTION"). The Initial Option shall vest as to 1,000,000 shares of Common Stock
on the date of grant. The balance will vest in equal monthly installments until
the Initial Option is fully vested on the second anniversary of the date of
grant. The Initial Option shall be in the form attached hereto as Exhibit A (the
"OPTION AGREEMENT"). Vesting of the Initial Option shall accelerate upon a
Change in Control (as defined in the Option Agreement). The Initial Option shall
be exercisable for a term of ten (10) years, subject to continuing Service (as
defined in the Option Agreement).
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(c) ADDITIONAL OPTIONS. Executive shall be entitled to a grant of
additional options ("ADDITIONAL OPTIONS") as follows. If the Company shall issue
during the Term any Additional Stock (as defined below), then executive will be
issued an Additional Option for a number of shares of Common Stock equal to
Fourteen and three-tenths percent (14.3%) of the number of shares of Additional
Stock issued. The option will have an exercise price equal to the consideration
per share paid for the Additional Stock, determined as set forth in Section
6(c)(ii) or 6(b)(iii) below, will be fully vested, and will have a ten (10) year
life from the date of grant. The Additional Options shall have other terms and
conditions substantially as provided in the Option Agreement.
(i) DEFINITION OF "ADDITIONAL STOCK". The term "Additional Stock"
shall mean any shares of Common Stock or other Preferred Stock issued (or deemed
to have been issued pursuant to Section 6(c)(iii) below) by the Company after
the date of this Agreement other than:
(1) shares of Common Stock or other securities issued as a
dividend or other distribution, without consideration, to the holders of Common
Stock (including any securities issued to holders of Preferred Stock pursuant to
participation rights with the Common Stock);
(2) shares of Common Stock or other securities issued upon a
subdivision (i.e., a stock split) of the outstanding shares of Common Stock into
a greater number of shares of Common Stock, or upon a combination (i.e., a
reverse stock split) of the outstanding shares of Common Stock into a smaller
number of shares of Common Stock;
(3) shares of capital stock (as adjusted for stock splits and
similar transactions) issuable or issued to employees, officers, consultants or
directors of the Company or others who provide bona fide services to the Company
pursuant to a stock purchase, option or compensation plan approved by the Board;
(4) shares of capital stock issued or issuable in a firm
commitment underwritten public offering by the Company of its stock;
(5) shares of capital stock issued or issuable in connection
with a bona fide business acquisition by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock or otherwise, which
transaction is approved by the Board; or
(6) shares of capital stock issued or issuable in connection
with real or personal property leases or bank financings or to customers,
vendors, strategic partners, licensors, joint venturers, or similar transactions
approved by the Board; provided, however, that the maximum number of shares
subject exception under this Section 6(c)(6) shall not exceed 200,000 shares of
capital stock of the Company (as adjusted for stock splits and similar
transactions).
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(ii) DETERMINATION OF CONSIDERATION. In the case of the issuance
of Common Stock for cash, the consideration shall be deemed to be the amount of
cash paid therefor before deducting any reasonable discounts, commissions or
other expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof. In the case of the
issuance of the Common Stock for a consideration in whole or in part other than
cash, the consideration other than cash shall be deemed to be the fair value
thereof as determined in good faith by the Board irrespective of any accounting
treatment.
(iii) DEEMED ISSUANCES OF COMMON STOCK. In the case of the
issuance of options to purchase or rights to subscribe for Common Stock,
securities by their terms convertible into or exchangeable for Common Stock or
options to purchase or rights to subscribe for such convertible or exchangeable
securities, the following provisions shall apply for all purposes of this
Section 6(c):
(1) The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in Section
6(c)(ii)), if any, received by the Company upon the issuance of such options or
rights plus the minimum exercise price provided in such options or rights
(without taking into account potential antidilution adjustments) for the Common
Stock covered thereby.
(2) The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in Section 6(c)(ii)).
(3) In the event of any increase in the number of shares of
Common Stock deliverable upon exercise of such options or rights or upon
conversion of or in exchange for such convertible or exchangeable securities,
including, but not limited to, a change resulting from the antidilution
provisions thereof, Executive shall be granted further Additional Options in
accordance with Section 6(c) to reflect such change, but no further Additional
Options shall be issued for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities. The further Additional Options shall
have the same exercise price, and a term expiring on the same date, as the
Additional Options to which such further Additional Option relate (i.e., the
Additional Options granted in connection with the original issuance of the
options or convertible securities which are subject to the increase in
deliverable securities).
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Section 7. Termination.
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(a) EVENTS. Executive's employment under this Agreement may be
terminated prior to the end of the full Term as follows:
(i) BY DEATH OR DISABILITY. Subject to the payments pursuant to
Section 7(b)(i), Executive's employment shall terminate automatically upon his
death or Total Disability (as hereinafter defined). For purposes of this
Agreement, "TOTAL DISABILITY" means that Executive is unable to perform the
essential functions of the position, even with reasonable accommodation, for
ninety (90) consecutive days.
(ii) BY THE COMPANY FOR CAUSE. Subject to the payments pursuant to
Section 7(b)(i), the Company may terminate Executive's employment under this
Agreement at any time for Cause (as hereinafter defined), upon written notice to
Executive stating the reason(s) for such termination. For purposes of this
Agreement, "CAUSE" means the occurrence or existence of any of the following
with respect to Executive: (A) Executive's repeated and continued failure to
perform his duties and responsibilities as a Company employee in good faith
after having a reasonable opportunity to cure such failure upon receiving
specific written notice of such failure from the Board; (ii) commission of any
act of fraud with respect to the Company; or (iii) conviction of a felony or a
crime involving moral turpitude if such felony or crime caused material harm to
the business and affairs of the Company.
(iii) BY THE COMPANY WITHOUT CAUSE. Subject to the payments
pursuant to Section 7(b)(ii), the Executive's employment under this Agreement
may be terminated by the Employer without Cause.
(b) EFFECT.
(i) If Executive's employment is terminated pursuant to Section
7(a)(i) or (ii), then (i) the Company shall pay Executive within thirty (30)
days of such termination any Base Compensation and Performance Bonus accrued but
unpaid through the date of termination; and (ii) the Company shall pay Executive
a pro rated Performance Bonus for the partial year of employment calculated in
accordance with the following provisions. The pro rated Performance Bonus shall
be calculated based on a hypothetical fiscal year commencing on the first date
of the fiscal year following the prior fiscal year end for which an actual
Performance Bonus was calculated and accrued, and ending on the last day of the
fiscal quarter in which Executive's employment is terminated. The calculation
shall be identical to the calculation set forth in Section 4(a), but shall be
based on reviewed rather than audited financial statements. Executive's pro
rated Performance Bonus shall equal the Performance Bonus for such hypothetical
fiscal year multiplied by a fraction, the numerator of which is the number of
days in such hypothetical fiscal year for which Executive was employed, and the
denominator of which is the total number of days in the hypothetical fiscal
year. The pro rated Performance Bonus shall be paid within fifteen (15) days
after the end of the hypothetical fiscal year.
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(ii) If Executive's employment is terminated pursuant to Section
7(a)(iii), then (a) the Company shall pay Executive all amounts which would have
been due if Executive's Employment had terminated pursuant to Section 7(a)(i) or
7(a)(ii), at the times specified in Section 7(b)(i), (b) all unvested stock
options and other equity awards granted by the Company to Executive shall
immediately vest in full and become immediately exercisable, all restrictions or
rights of repurchase relating to such stock options and other equity awards
shall be waived, and such stock options and other equity awards shall remain
outstanding and exercisable for the remainder of the respective term of each
such award notwithstanding any provisions contained in such awards related to
earlier termination due to termination of service to the Company; (c) if such
termination is on or before the first anniversary of the date of this Agreement,
the Company shall pay Executive within thirty (30) days of such termination an
amount equal to $500,000 less the amount of Base Compensation paid or accrued
through the date of termination, (d) if such termination is after the first
anniversary of the date of this Agreement, the Company shall pay Executive an
amount equal to four times the amount of Base Compensation in effect on the date
of termination within thirty (30) days of such termination.
(iii) Notwithstanding the foregoing provisions, any such
termination shall not affect any amounts or other benefits to which Executive
may be entitled after such a termination under the terms of any benefit plans of
the Company in which Executive participated.
(c) VOLUNTARY TERMINATION. Executive may voluntarily terminate his
employment with Company at any time on thirty (30) days' prior written notice.
If Executive provides such notice, Company at its discretion, may accelerate the
termination of Executive's employment to any date after its receipt of such
notice from Executive and before the date of the termination specified in such
notice from Executive. Any acceleration of the termination of Executive's
employment shall be effective on written notice being delivered to Executive by
Company. On any such acceleration by Company, Executive shall be entitled to two
(2) weeks of severance pay at his Base Compensation rate in lieu of notice. If
Executive terminates his employment under this Section 7(c) without Good Reason
(as defined below), (i) the Company shall pay Executive all amounts which would
have been due if Executive's employment had terminated pursuant to Section
7(a)(i) or 7(a)(ii), at the times specified in Section 7(b)(i), and (ii) all
other rights and obligations of the parties under this Agreement (except as
otherwise provided in Sections 8, 9 and 10) shall terminate; PROVIDED, HOWEVER,
that any such termination shall not affect any amounts or other benefits to
which Executive may be entitled after such a termination under the terms of any
benefit plans of the Company in which Executive participated. If Executive
terminates his employment under this Section 7(c) with Good Reason, then
Executive shall be treated as if he was terminated without Cause under Section
7(a)(iii) and shall receive all benefits and compensation described in Section
7(b)(ii). "GOOD REASON" as used in this Agreement shall mean, without the
Executive's consent, either: (a) the assignment to the Executive of any duties
inconsistent with this Agreement or in any respect with the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 1 of this Agreement, or
any other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive; (b) the Company materially breaches any of its obligations hereunder
and does not cure such material breach within thirty (30) days after the
Executive shall have given the Company notice thereof, provided however that
solely for the purpose of this definition of Good Reason, the failure of the
Company to pay accrued Base Compensation shall not be considered a material
default until such time as the Company has raised an aggregate of $2 million in
financing following the date of this Agreement; (c) the Company's requiring the
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Executive to be based at any office or location other than the Company's present
executive offices in San Diego, California; (d) any purported termination by the
Company of the Executive's employment otherwise than as expressly permitted by
this Agreement or by law.
(d) NON-RENEWAL. If the Executive offers to continue his employment
with the Company under the terms of this Agreement then in effect at the end of
the Term, as renewed from time to time, and the Company does not accept such
offer, then the Executive shall be treated as if he was terminated without Cause
under Section 7(a)(iii) immediately prior to the end of the Term and shall
receive all benefits and compensation described in Section 7(b)(ii).
Section 8. Inventions.
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All inventions, discoveries and improvements ("INVENTIONS") which arise
out of Executive's employment by the Company, whether or not patentable, which,
at any time during the Term and for a period of one year thereafter, Executive
may invent, discover, originate or conceive, solely or jointly with others,
together with all records and data pertaining thereto, shall be the property of
the Company without payment of royalty or any other consideration. Executive
shall promptly and fully describe to the Company any Inventions so discovered,
originated or conceived, setting forth in detail the procedures employed in the
development of such Inventions and the results achieved. At any time upon the
Company's request, either during the term of this Agreement or thereafter,
Executive shall apply for United States and/or foreign letters patent or
copyrights with respect to any Inventions. Any such application shall be at the
expense and under the exclusive control of the Company. Executive also shall,
without charge to the Company but at its expense, execute and deliver such
instruments and other documents as may be requested by the Company to obtain,
maintain or assign to the Company such letters patent or copyrights.
Section 9. Property of the Company.
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All documents, records, books, notes, drawings, prints, memoranda and
other materials pertaining to the affairs of the Company and its Affiliates,
whether or not containing confidential information, which are made or compiled
by Executive or made available to Executive during the term of this Agreement,
including any and all copies thereof, shall remain the property of the Company,
shall be held by Executive in trust solely for the benefit of the Company and
shall be delivered to the Company by Executive upon termination of this
Agreement or at any other time at the Company's request. All files, records,
documents, computer recorded or electronic information, drawings,
specifications, equipment and similar items relating to Company business whether
prepared by Executive or otherwise coming into his possession shall remain
Company's exclusive property and shall not be removed from Company premises
under any circumstances whatsoever without Company's prior written consent,
except when (and only for the period) necessary to carry out Executive's duties
hereunder, and if removed, shall be immediately returned to Company upon
termination of employment and no copies shall be kept by Executive.
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Section 10. Confidentiality.
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(a) Executive shall not, during the period commencing on the date of
this Agreement and ending two years after the last day of the Term, to the
detriment of the Company or any of its Affiliates, disclose or furnish to any
person any Confidential Information (as hereinafter defined) or otherwise use
any such Confidential Information for Executive's own benefit or the direct or
indirect benefit of any person other than the Company or any such Affiliate.
Notwithstanding the foregoing, however, the requirements of this section shall
not apply to information which: (i) is or becomes generally available to the
public other than as a result of a disclosure by Executive, or (ii) becomes
available to Executive on a non-confidential basis from a source other than the
Company or any of its Affiliates which is not known by Executive to be under a
confidentiality obligation to the Company or any of its Affiliates.
(b) For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means
any information, data or other materials of the Company or any of its Affiliates
which: (i) is proprietary or confidential to the Company or such Affiliate or
otherwise was or is designated by the Company or such Affiliate as Confidential
Information, (ii) is not generally available to the general public, and (iii) is
acquired by, disclosed to or known by Executive as a result of or through
Executive's relationship with the Company or such Affiliate (including
information conceived, originated, discovered or developed in whole or in part
by Executive). "Confidential Information" includes, without limitation: (i)
information concerning actual and potential customers, (ii) sales information,
marketing and product development plans, marketing techniques, pricing policies
and market forecasts, (iii) information concerning proprietary computer systems
(including hardware and software), support systems and techniques and methods,
(iv) information with respect to developments, improvements, inventions, ideas,
processes, procedures, discoveries, concepts, designs, drawings, specifications,
data and "know-how," (v) financial information (including, without limitation,
sales and revenue information and financial statements), (vi) product or service
information (including, without limitation, product designs and specifications,
product development plans, product strategies and product delivery systems),
(vii) information which, if used or disclosed, could adversely affect the
Company or any of its Affiliates or give a competitor an advantage over a party
without access to the information, and (viii) information of a type described in
the foregoing clause (i) through (vii) which the Company or any of its
Affiliates obtained from another party who treats the information as proprietary
or designates it as confidential information or which is designated with a
legend indicating that it is confidential or proprietary (whether or not owned
or developed by the Company or such Affiliate).
(c) Executive may respond to a lawful and valid subpoena or other legal
process but shall give the Company the earliest possible notice thereof and
shall, as much in advance of the return date as possible, make available to the
Company and its counsel the documents and other information sought and shall
assist such counsel in resisting or otherwise responding to such process.
Section 11. Injunctive Relief.
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The parties acknowledge that the remedy at law for a breach of any
provision of Sections 8, 9 and 10 will be inadequate. In addition to any other
remedies that the Company may have in the event of such a breach, the Company
shall be entitled to temporary and permanent injunctive relief to prevent
Executive's continued breach of such provisions without the necessity of proving
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actual damage and without being required to post any bond. The obligations of
Executive set forth in Sections 8, 9 and 10 are independent, and the existence
of any claim or cause of action by Executive or any of his affiliates against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement of this Agreement by the Company.
Section 12. Notices.
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Any notice under this Agreement shall be in writing and shall be deemed
to have been given when: (i) delivered personally, (ii) sent by express mail or
other overnight courier service, or (iii) deposited in the United States mail,
certified or registered and with proper postage prepaid, addressed as follows,
or to such other address as is provided by written notice delivered in
accordance with this Section:
If to Executive, to: Xxxxx Xxxxx
__________________________
__________________________
Tel: _____________________
Fax: _____________________
If to the Company, to: SURGE GLOBAL ENERGY INC.
00000 Xx Xxxxxx Xxxx Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Office of the CEO
Tel. (000) 000-0000
Fax: (000) 000-0000
Section 13. Amendment; Waiver.
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No modification, amendment or waiver of any provision of this Agreement
shall be valid and binding unless it is in writing and signed by both of the
parties hereto. A waiver of any provision of this Agreement shall be effective
only in the specific instance and for the particular purpose for which it was
given. No failure to exercise, and no delay in exercising, any right or power
under this Agreement shall operate as a waiver of such right or power.
Section 14. Assignment.
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This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective successors, personal representatives,
heirs and assigns. Neither this Agreement, nor the rights and obligations
created hereunder, may be assigned by either party without the prior written
consent of the other party.
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Section 15. Severability.
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If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; and the remaining provisions shall remain in full force
and effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such
illegal, invalid, or unenforceable provision, there shall be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid, or unenforceable provision as is possible;
provided, however, that any such added provision shall not result in any
material change in Executive's duties, responsibilities and obligations under
this Agreement.
Section 16. Certain Payments.
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(a) In the event any of the compensation or benefits provided for in
this Agreement or any other compensation or benefits approved at any time by the
Board or the Compensation Committee of the Board and otherwise payable to
Executive (including stock options) constitute "parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"CODE"), and will be subject to the excise tax imposed by Section 4999 of the
Code, then, subject to the provisions of Section 16(d) below, Executive shall
receive from the Company (A) a cash payment sufficient to pay such excise tax,
and (B) an additional payment sufficient to pay the excise tax and federal and
state income and employment taxes arising from the payments made by the Company
to Executive pursuant to this sentence.
(b) Unless the Company and Executive otherwise agree in writing, the
determination of Executive's excise tax liability and the amount required to be
paid to Executive by the Company under this Section 16 shall be made in writing
by a certified public accounting firm mutually agreeable to Executive and the
Company (the "ACCOUNTANTS"), and the amounts to be paid to Executive by the
Company under this Section 16 will be paid to Executive within thirty (30) days
after the Accountants have finally determined that amount as provided herein (or
such shorter time after the Accountants have finally determined that amount as
may be necessary in order for Executive to timely pay any withholding or
estimated tax obligations arising from his receipt of any payment under this
Section 16). For purposes of making the calculations required by this Section
16, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Executive shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section 16. The Company shall bear all fees and
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this Section 16.
(c) In the event that the Internal Revenue Service ("IRS") makes a
final determination that the amount of excise tax payable by Executive as
described above in this Section 16 is different than the amount of such excise
tax as determined by the Accountants as provided above, then: (A) if the amount
of such excise tax payable by Executive as determined by the IRS is less than
the amount of such excise tax as computed by the Accountants, Executive will
reimburse the Company for all excess amounts actually paid to Executive by the
Company under this Section 16 due to the over-calculation of such excise tax by
the Accountants within five (5) business days after Executive receives either a
refund from the IRS due to such over-calculation or Executive receives an
economic benefit from the IRS (such as a credit against tax payable) on account
of such over-calculation, provided Executive reported and paid all his excise
and income tax liabilities resulting from the operation of this Section 16
consistent with the amounts Executive was actually paid hereunder; and (B) if
the amount of such excise tax payable by Executive as determined by the IRS is
greater than the amount of such excise tax as computed by the Accountants, then
the Company will promptly reimburse Executive for the amounts that the Company
underpaid Executive under this Section 16 due to the under-calculation of such
excise tax by the Accountants, calculated in accordance with Section 16(a).
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(d) In the event any of the compensation or benefits provided for in
this Agreement or any other compensation or benefits approved at any time by the
Board or the Compensation Committee of the Board and otherwise payable to
Executive (including stock options) constitute "parachute payments" within the
meaning of Section 280G of the Code and will be subject to the excise tax
imposed by Section 4999 of the Code, then Executive may, at his sole option and
discretion, elect to waive, not receive and/or reduce such compensation and/or
benefits to such lesser extent as will result in no portion of such compensation
or benefits being subject to the excise tax imposed by Section 4999 of the Code,
and in that case the Company's obligation to make a payment to Executive
pursuant to the provisions of Section 16 will be correspondingly reduced.
Section 17. Withholding/Deferred Compensation.
----------------------------------
(a) All payments made under this Agreement shall be reduced by the
amount of any income, unemployment, withholding, social security or other taxes
which the Company may be required to deduct by applicable law.
(b) The Company shall make such amendments to this Agreement as
Executive may reasonably require in order to comply with Section 409A of the
Code as interpreted by regulations or administrative guidance issued by the
Treasury Department or Internal Revenue Service.
Section 18. Entire Agreement.
-----------------
This document constitutes the final, complete, and exclusive embodiment
of the entire agreement and understanding between the parties related to the
subject matter of this Agreement and supersedes and preempts any prior or
contemporaneous understandings, agreements, or representations by or between the
parties, written or oral. For the avoidance of doubt, this Agreement does not
supersede the options for an aggregate of 1,000,000 shares of Common Stock
described in the recitals hereto granted to Executive for Board service.
Section 19. Governing Law.
--------------
This Agreement shall be governed by, and the legal relations among the
parties shall be construed in accordance with, the laws of the State of
California as applied to agreements executed and performed entirely within the
United States and State of California.
Section 20. Arbitration.
------------
The parties agree that any and all disputes, claims or controversies
arising out of or relating to this Agreement, the employment relationship
between the parties, the terms or conditions of employment, or the termination
of the employment relationship, that are not resolved by their mutual agreement
shall be resolved by final and binding arbitration as the exclusive remedy in
accordance with the JAMS Employment Arbitration Rules and Procedures in effect
at the time arbitration is initiated. THE PARTIES HEREBY WAIVE THEIR RIGHT TO
HAVE ANY DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A JUDGE OR JURY IN A COURT.
Either party may commence the arbitration process by filing a written demand for
arbitration with JAMS and sending a copy to the other party. The arbitration
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shall be conducted by one neutral arbitrator selected by the parties from a list
of arbitrators provided by JAMS, or its successor, in San Diego County,
California. If the parties are unable to agree upon an arbitrator from the list
provided, the parties shall alternate in striking names of arbitrators from the
list until one is left who shall be the arbitrator. The parties shall be
entitled to be represented by counsel in the arbitration proceeding. The
arbitrator shall have the authority to order such discovery, by way of
deposition, interrogatory, document production, or otherwise, as the arbitrator
considers necessary to a full and fair exploration of the issues in dispute,
consistent with the expedited nature of arbitration. The arbitrator is
authorized to award any remedy or relief that the arbitrator deems just and
equitable, including any remedy or relief that would have been available to the
parties had the matter been heard in court. The arbitrator shall have the
authority to provide for the award of attorney's fees and costs in accordance
with applicable law. Executive shall not be required to pay any cost or expense
of the arbitration that he or she would not be required to pay if the matter had
been heard in court. The decision of the arbitrator shall be in writing and
shall provide the reasons for the award unless the parties agree otherwise.
Proceedings to enforce, confirm, modify, set aside or vacate an award or
decision rendered by the arbitrator will be controlled by and conducted in
conformity with the Federal Arbitration Act, 9 U.S.C. Sec 1 et. seq. or
applicable state law. Nothing in this paragraph shall prohibit or limit the
parties from seeking provisional remedies under California Code of Civil
Procedure section 1281.8, including, but not limited to, injunctive relief from
a court of competent jurisdiction. The parties agree that should either party
initiate litigation in a court in violation of this paragraph, the party who
successfully compels arbitration shall be entitled to recover its/his/her
attorney's fees and costs incurred in compelling arbitration from the party who
violated this paragraph, and that a court may require the payment of such
attorney's fees and costs as part of its order compelling arbitration. If the
court declines to order the payment of the attorney's fees and costs to the
party who successfully compels arbitration, then the parties agree that the
arbitrator shall have the authority to make such an order.
Section 21. Mediation.
----------
Executive and Company agree to mediate any dispute or claim arising
between them out of this Agreement or any resulting transaction, before
resulting to arbitration or court action. Mediation fees, if any, shall be
divided equally among the parties involved. If any party commences an action
based on a dispute or claim to which this paragraph applies, without first
attempting to resolve the matter through mediation, then that party shall not be
entitled to recover attorney's fees, even if they would otherwise be available
to that party in any such action.
Section 22. Attorney's Fees.
----------------
In the event of any litigation or arbitration arising out of this
Agreement, the prevailing party shall be entitled to recover their reasonable
attorney's fees and costs.
Section 23. Representation Legal Counsel/Interpretation.
--------------------------------------------
Executive and the Company have each consulted with legal counsel in
connection with the negotiation and entry into this Agreement. Accordingly, any
rule of law or decision that would require interpretation of any claimed
ambiguities in this Agreement against the party that drafted it has no
application and is expressly waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the intent of the parties.
-13-
Section 24. Executive Representations.
--------------------------
Executive hereby represents and warrants to Company that he or she (a)
is not now under any contractual or quasi-contractual obligation that is
inconsistent or in conflict with this Agreement or that would prevent, limit, or
impair Executive's performance of his or her obligations under this Agreement;
(b) has been represented by legal counsel in preparing, negotiating, executing,
and delivering this Agreement; and (c) fully understands its terms and
provisions.
Section 25. Company Representations.
------------------------
The Company represents and warrants to Executive that (a) it is not now
under any contractual or quasi-contractual obligation that is inconsistent or in
conflict with this Agreement or that would prevent, limit, or impair the
Company's performance of its obligations under this Agreement; (b) has been
represented by legal counsel in preparing, negotiating, executing, and
delivering this Agreement; and (c) this Agreement has been duly approved by the
Board of Directors in accordance with the procedures set forth in Section
144(a)(1) of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above written.
"Company"
SURGE GLOBAL ENERGY, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
"Executive"
/s/ Xxxxx Xxxxx
-----------------------------------------
XXXXX XXXXX
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