AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”), is
effective as of March 1, 2005 (the “Effective
Date”), was
originally made and entered into as of October 26, 2000 (the “
Original Effective Date”) and
was previously amended on September 25, 2003, and September 23, 2004, by and
between Xxxxxxxxx Mobile Fueling, Inc., a Florida corporation (the “Company”), and
Xxxxxxx X. Xxxxxxxxx (the “Employee”).
Recitals
The
Company desires to retain the personal services of the Employee as President and
Chief Executive Officer of the Company, and the
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 the Employee and the Employee hereby agrees to
serve the Company, on the terms and conditions set forth herein, for the period
commencing on the Effective Date and continuing through February 28, 2006,
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 unless either the Company or the
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. The
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. The 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. The Employee shall
report to the Board. The 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 the 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
the Employee’s responsibilities as an employee of the Company in accordance with
this Agreement, it shall not be a violation of this Agreement for the 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 the Employee to maintain his license to practice
law.
1.3 Place
of Performance. In
connection with his employment by the Company, the 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 the 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 the Employee to serve in such capacities for the duration of the Term.
2. Compensation.
2.1 Base
Salary.
Commencing on the Effective Date, the Employee shall receive a minimum base
salary at the annual rate of Three Hundred Twenty Three Thousand Dollars
($323,000) (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. The
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, the 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 the
Employee and such other officers of the Company as are recommended by the
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 the Employee with respect to any fiscal year (net
of any tax or other amount properly withheld therefrom) shall be paid by the
Company within ninety (90) days after the end of the 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 the 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 the Employee’s employment is terminated
by the Company for Cause, or by the Employee as a result of his voluntary
resignation.
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.
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(b) The
Options were granted pursuant to a stock option agreement between the Company
and the 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 vest and become exercisable (A) to the extent of 33.33%
of the Options, on the 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 previously
vested and exercised pursuant to their terms, the Options terminate upon the
earlier to occur of: (A)
twelve (12) months after the termination of the Employee’s employment hereunder
pursuant to Section 4.2 by reason of the 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 the Employee for Cause, without Cause or his voluntary
resignation), (B) eighteen (18) months after the termination of the Employee’s
employment hereunder pursuant to Section 4.4 by the Company without Cause, (C)
ninety (90) days after the date the Employee’s employment hereunder is
terminated by the Employee pursuant to Section 4.5, (D) immediately on the date
the 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 the 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 the Employee for all documented reasonable expenses actually paid or
incurred by the Employee in the course of and pursuant to the business of the
Company. The Company shall provide the Employee with an auto allowance of
$12,000 per annum, which shall be earned and paid monthly throughout the Term.
In addition, the Company shall reimburse the Employee for all documented
reasonable expenses actually paid or incurred by the Employee for continuing
legal education seminars or other activities required for the Employee to
maintain his license to practice law.
3.2 Other
Benefits. During
the Term and during the period of time that Severance Payments are to be made to
the Employee hereunder, the Company shall make available to the 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, 401(k) savings and investment plan, profit-sharing plan, employee
stock purchase plan, incentive compensation plan or other such benefit plan or
policy, if any, 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, 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.
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3.3 Vacation. During
the Term, the 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 the Employee for all documented reasonable and customary
expenses actually paid or incurred by the 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 the
Employee and his family. If an to
the extent that the 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 the Employee an additional amount so that, on
a net after-tax basis, the 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 the 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 the
Employee which constitutes (A) a breach of any of the provisions of Section 6 of
this Agreement, (B) a breach by the Employee of his fiduciary duties and
obligations to the Company, or (C) the 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 the Employee, or (ii) conduct constituting fraud,
embezzlement, misappropriation or gross dishonesty by the Employee in connection
with the performance of his duties under this Agreement, or a conviction of the
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 the Employee's ability to perform his duties with the Company, any crime
involving moral turpitude. The Employee shall be given a written notice of
termination for Cause specifying the details thereof. Upon any termination
pursuant to this Section 4.1, the 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. Upon making such payments, the Company shall have no further liability
hereunder.
4.2 Disability.
Notwithstanding anything contained in this Agreement to the contrary, the
Company, by written notice to the Employee, shall at all times have the right to
terminate this Agreement and the Employee’s employment hereunder if the 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 the
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 the Employee for periods subsequent to the date of termination the
Company shall pay to the 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 the
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 the Employee in accordance with
Section 3.2 hereof and under the terms thereof.
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4.3 Death. In the
event of the death of the Employee during the term of his employment hereunder,
this Agreement shall terminate on the date of the 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 the 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
the Employee for periods subsequent to the date of termination the Company shall
pay to the estate of the Employee the Severance Payments specified in Section
5.1. Upon making such payments, the Company shall have no further liability
hereunder; provided, that
the 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 the Employee in accordance with Section 3.2 hereof
and under the terms thereof.
4.4 Termination
Without Cause. At any
time the Company shall have the right to terminate this Agreement and the
Employee’s employment hereunder by written notice to the Employee. Upon any
termination pursuant to this Section 4.4, (i) within thirty (30) days after the
date of termination, the Company shall pay the
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 the Employee for periods subsequent to the date of termination the
Company shall pay to the 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 the 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
the 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 the 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 termination without cause pursuant to this Section 4.4.
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4.5 Voluntary
Resignation. The
Employee may, upon not less than thirty (30) days’ written notice to the
Company, resign and terminate his employment hereunder. In the event the
Employee resigns as an employee of the Company, 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. The
Employee shall give the Company not less than thirty (30) days prior written
notice of his intention to resign.
5. Severance
Payments and Benefits.
5.1 Amount
of Benefit. Upon
any termination of this Agreement pursuant to Section 4.2, 4.3 or 4.4, the
Company shall continue to pay the Employee, subject to the six-month initial
delay of payment for disability related payments or termination without cause
related payments that may be required pursuant 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 the 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, 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 the Employee pursuant to this Agreement, the Company shall also
provide automobile allowance, health insurance and other employee benefits (or
the value of any such benefits which cannot be provided to a non-employee), with
no reductions from those provided before such termination (the “Severance
Benefits”). In
the event of a Restriction Purchase Election (as defined in Section 5.3) by the
Company, the period of time during which Severance Payments must be made by
Employer will be reduced by six (6) months. If during the Noncompete Period (as
defined in Section 6.3) the 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 the 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 the Employee not less than thirty (30) days prior written
notice of its intention to discontinue Severance Payments; provided,
further, that if
the 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 the
Employee (or the estate of the 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 the
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 the 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 (“Code”). Accordingly, to the extent such
potential payments or benefits could become subject to Section 409A, 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:
| (a) |
If
(i) the Employee is a “specified person” on the date of the 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 the 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 the Employee’s separation from service, (ii) the Employee’s
date of death, or (iii) such other date on which such payment will not be
subject to such interest and additional tax. |
| (b) |
Any
payments that are delayed pursuant to Section 5.3(a) shall be paid on the
earliest of the three dates described therein. |
| (c) |
In
the event it shall be determined that any payment by the Company to or for
the benefit of the 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 the 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 the 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.
|
| (d) |
In
the event that the Severance Payments payable to the Employee are to be
delayed for a period of six (6) months on account of Code Section 409A
pursuant to Section 5.3(a) above, then the Employee’s obligations under
this Agreement not to solicit employees or former employees of the Company
and not to compete with the Company under Sections 6.2 and 6.3 of this
Agreement, respectively, shall not commence until such six (6) month
period has expired and the first Severance Payment has been made,
provided,
however,
that the Company may, at or after the time of the Employee’s termination
of employment, elect to make such restrictions effective immediately upon
termination by (i) giving written notice to the Employee of such election
and (ii) paying the Employee an amount equal to 50% of the Base Salary in
a lump sum or in four (4) monthly payments beginning one month after
termination (a “Restriction Purchase Election”). If Severance Payments are
delayed six (6) months as a result of Code Section 409A, the Severance
Benefits that are not subject to Code Section 409A, including but not
limited to the Employee’s continuing participation in the Company’s health
insurance plan, shall continue uninterrupted during the six (6) month
delay required by Section 409A, irrespective of whether the Company makes
a Restriction Purchase Election, and shall continue so long as Employer
remains obligated to make Severance Payments. |
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6. Restrictive
Covenants.
6.1 Nondisclosure. (a) The
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 the 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 the Employee in confidence and
as a fiduciary, and the 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 the Employee or known by the Employee as a consequence
of or through his employment by the Company (including information conceived,
originated, discovered or developed by the Employee), and not generally known or
available, about the Company or its business. Notwithstanding the foregoing,
nothing herein shall be deemed to restrict the Employee from disclosing
Confidential Information to the extent required by law.
(b) The
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.
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6.3 Noncompetition.
(a) 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), the 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) the 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 the 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) the Employee may be
employed by or consult with a Competitor whose primary business is not a
Competing Business, so long as the 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.
(b) Notwithstanding
anything in Section 6.3(a) to the contrary, if this Agreement is terminated by
the Company pursuant to Section 4.4, the Noncompete Period shall continue and
the provisions of Section 6.3(a) shall remain in effect during any period that
Severance Payments are being made by the Company pursuant to Sections 4.4 and
5.1; provided, that if
the Company pays to the Employee the Severance Payments in a lump sum pursuant
to Section 5.2, the provisions of Section 6.3(a) shall remain in effect for the
period during which the Severance Payments would have otherwise been
made.
6.4 Injunction. It is
recognized and hereby acknowledged by the parties hereto that a breach by the
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, the
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 the 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 the Employee relating to the Employee’s employment and any
compensation or benefits in respect thereof. The 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.
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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:
If to the
Company:
000 Xxxx
Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
Board of Directors
Facsimile:
(000) 000-0000
If to the
Employee:
000 X.X.
00xx Xxxxxx
Xxxxxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
9. Successors
and Assigns.
(a) This
Agreement is personal to the Employee and without the prior written consent of
the Company shall not be assignable by the Employee otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Employee’s legal representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(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.
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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
the 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 the 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 the Employee, then the Employee, in addition to all
other costs, fees and expenses, including attorney fees incurred by the 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
the Employee under this Section 12 shall survive the termination for any reason
of the Term (whether such termination is by the Company, by the Employee or upon
the expiration of the Term). Pending the outcome or resolution of any
arbitration commenced or brought in good faith by the 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 the 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 the
Employee pursuant to Section 4.4 shall be the Employee’s exclusive remedy for
any termination of this Agreement pursuant to such section.
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.
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IN
WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Employment Agreement as of the Effective Date.
COMPANY:
XXXXXXXXX
MOBILE FUELING, INC.
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx, Chief Financial Officer
EMPLOYEE:
/s/
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
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