Exhibit 10.29
EMPLOYMENT AGREEMENT
This agreement is made as of the 4th day of September 2004, between
Mirenco, Inc. of Xxxxxxxx, Iowa (hereinafter the "Employer") and Xxxxxxx X.
Xxxxx of Norwalk, Iowa (hereinafter "Employee").
WHEREAS, the Board of Directors of the Employer considers it to be in the
best interests of the Employer to enter into this agreement with the Employee,
and this agreement has been approved by the Board of Directors of the Employer;
NOW, THEREFORE, in consideration of the agreements set out below, the
parties agree as follows:
1. DEFINITIONS: Whenever used in this agreement these words and phrases
shall have the following meanings:
(a) "Business Day" when the principle office of Employer is open for
the transaction of business.
(b) "Date of Termination" the date the Employee ceases to be employed
by Employer for whatever reason.
(c) "GAAP" generally accepted accounting principles.
(d) "Guaranteed Amount" During the first two years of this agreement
it shall mean an amount equal to three times the then current
base monthly salary payable to the Employee by the Employer, and
after the first two years of the agreement, six times the then
current monthly base salary payable to the Employee by the
Employer.
2. EMPLOYMENT:
(a) Position. The Employer will employ the Employee as Chief
Operating Officer (COO) and Chief Financial Officer (CFO) until
the Employee's employment is terminated by lapse of this
agreement or in accordance with the provisions of the agreement.
(b) Term. This agreement shall be in effect for seven (7) years from
the date of execution.
(c) Reporting Relationship and Responsibilities. As COO and CFO, the
Employee will report to the Employer's Chief Executive Officer
(CEO) and will discharge such duties and responsibilities as are
assigned to him from time-to-time by the CEO. Employee shall
comply with all policies of Employer.
(d) Service. During the term of his employment with the Employer, the
Employee will devote his full-time attention and abilities to
furthering the business of the Employer and will faithfully serve
the Employer and use his best efforts to promote the interests of
the Employer. The Employer agrees that the Employee will be free
to hold equity interests in businesses, which do not compete with
the business of the Employer. Employee has certain consulting
contracts that Employer acknowledges that Employee can continue
until Employee's base salary exceeds $180,000 per year.
Permissible consulting engagements as referenced in this
paragraph are listed on Schedule A attached hereto.
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3. COMPENSATION.
(a) Salary. The Employee will receive a base salary of $130,000 per
year. This amount shall be paid in equal bi-weekly installments.
The Employee's salary will be reviewed by the Employer's Board of
Directors from time to time at the Board's discretion, but not
later than the first anniversary of this agreement and annually
thereafter. Any salary review will be done with a view to
assessing the Employee's achievement of overall objectives
established from time to time by the Board and will take into
consideration market rates paid to COO's of comparable companies.
(b) Expenses. The Employer will reimburse the Employee for all
reasonable direct out-of-pocket expenses incurred in connection
with the performance of his duties and responsibilities. Such
requests for reimbursement will be made by the Employee in a
timely manner and in conformance with all policies of the
Employer.
(c) Vacation. During the term of his employment, the Employee will
receive four (4) weeks vacation each year. The Employee may
carryover to the next year no more than one-half of the vacation
available in any given year. Any vacation not used in excess of
this amount will be forfeited by the Employee. Vacation maybe
taken at anytime during the vacation year so long as it, as
determined by the Board of Directors acting reasonably, does not
materially interfere with the Employee's duties. The Employee may
not use vacation in lieu of any notice required by this
agreement. In the event this agreement lapses or is terminated,
the Employee will be paid for one-half of all vacation available
to him at the time of the lapse or termination.
(d) Benefits. The Employee will be able to participate on equal terms
in all insurance and other benefit plans, which the Employer
offers to its senior executives, subject to any changes, which
may occur to these plans from time to time.
(e) Automobile. The Employer agrees to provide Employee an automobile
to be used in the course of Employer's business and pay all
related expenses.
(f) Incentive Compensation. The Employee will be paid incentive
compensation of 1% of the net revenues from operations of the
Employer on a monthly basis as determined in accordance with GAAP
from the Board approved financial statements of the Employer on a
monthly basis. This amount will be payable within forty-five (45)
days of the end of each month. If this agreement is not extended,
Employee will receive a pro-rata portion of the incentive
compensation for the fiscal year ending December 31, 2011. Any
adjustments as a result of the annual audit will be deducted from
future payments due Employee.
(g) Stock Options. The Employee will receive 175,000 options to
purchase common stock of the Employer at 125% of the closing
stock price on the date of this agreement per share from the
Employer's stock option plan for Employees.
4. TERMINATION.
(a) Voluntary Resignation. The Employee may terminate his employment
with Employer at any time by giving sixty (60) days' written
notice to the Board of Directors of the Employer. The Employee
may not use vacation in lieu of the notice period.
(b) Termination for Cause. The agreement shall terminate immediately
for cause under the following circumstances:
(i) in the event of the death or permanent disability of the
Employee. For the purposes of this agreement, permanent
disability means any physical, mental or emotional illness,
disease or condition which in the opinion of a physician
chosen by the Employer renders the Employee incapable of
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adequately performing his usual duties for a period
exceeding ninety (90) days.
(ii) the Employee dies.
(iii) the Employee commits embezzlement, fraud, dishonesty or
other acts of misconduct, or is guilty of conduct in
material violation of established ethics, regulations, law
or policy.
(iv) the Employee is charged with any crime.
(v) the Employee is adjudicated as incompetent.
(vi) Employer determines, based on action or threatened action,
of any federal or state government agency or in the opinion
of Employer's legal counsel that continuance of the
agreement would violate the provisions of any federal or
state law or regulation.
(vii) there is a material breach by Employee of this agreement of
one or more obligations imposed upon him under the
agreement.
(c) Termination of Employment Without Cause. The Employer shall have
the right to terminate the Employee's employment immediately at
any time without cause under the following circumstances:
(i) the Employer shall pay to the Employee an amount equal to
the Guaranteed Amount within sixty (60) days of the date of
termination. Such payment will be waived if the Company has
equity of less than $500,000. Equity shall be defined as the
total stockholders' accounts plus retained earnings and all
preferred stock accounts according to GAAP.
(ii) the Employee shall retain the right to exercise any stock
options granted, to him under the Employer's stock option
plan and pursuant to this agreement for a period of
thirty-six (36) months after the expiration date of such
options or for the maximum amount as allowed by law
whichever is lesser.
(iii) the Employee shall receive the prorated portion of the
incentive compensation which would otherwise have been
payable to him under Section 3(f) in the year of the
termination of employment.
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(iv) within thirty (30) days after the date of termination the
Employer shall pay to the Employee all outstanding and
accrued salary and one-half of vacation pay available as of
the date of termination and the Employer shall reimburse the
Employee for all proper expenses incurred by the Employee
while employed in accordance with the provisions of this
agreement and the internal policies of the Employer.
(v) the Employer agrees to make the payments set forth in this
section regardless of whether the Employee has alternative
employment.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION.
(a) Employee's Acknowledgements. The Employee acknowledges that:
(i) the Employer and its subsidiaries have carried on and will
hereinafter carry on the business of Combustion Management
and Consulting.
(ii) in the course of carrying out, performing, and fulfilling
his responsibilities to the Employer, the Employee will
receive and have access to confidential and proprietary
information and trade secrets of the Employer and the
Employer's clients ("Confidential Information"), the
disclosure of which to competitors or the general public may
be detrimental to the best interests of the Employer and its
clients.
(iii) in the course of performing his obligations to the
Employer, the Employee will be one of the principal
representatives of the Employer and as such will be
significantly responsible for maintaining or enhancing the
goodwill of the Employer.
(iv) the right to maintain the confidentiality of such
confidential information and the right to preserve the
goodwill of the Employer constitutes proprietary rights,
which the Employer is entitled to protect.
(b) Non-Disclosure. The Employee agrees that at no point during his
employment, or at any point thereafter, he will for any reason
whatsoever disclose, unless required by law, directly or
indirectly, any confidential information or use any confidential
information for any purpose whatsoever other than for the benefit
of the Employer. This does not apply to confidential information
that has become public through no breach of this agreement on the
Employee's part.
(c) In the event Employee breaches or threatens to breach the
agreement, Employer in addition to, and not in limitation of any
of the rights, remedies, or damages available to Employer at law
or inequity shall be entitled to a temporary and permanent
injunction in order to prevent or restrain any such breach by
Employee or Employee's partners, agents, representatives,
employers, employees or any and other persons (natural or
corporate) directly or indirectly acting with or for Employee.
Employer shall also be entitled to recover from Employee all
costs associated with enforcing any term of this agreement,
including attorney fees.
6. NON-COMPETITION AND NON-SOLICITATION.
(a) Non-Competition and Non-Solicitation. Employee agrees that during
the period of his employment and for a period of thirty-six (36)
months from the date of termination, whether such termination is
voluntary or involuntary, the Employee will not either alone or
in conjunction with any individual, firm, corporation,
association or other entity, whether as principal agent,
director, officer, employee, investor, consultant, or in any
other capacity:
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(i) carry on, be engaged in, concerned with, or interested in or
advise, lend money to, guarantee the debts or obligations
of, or permit his name to be used or employed by any person
or persons, firm, association, syndicate or corporation
engaged in or concerned with the business being carried by
the Employer or its subsidiaries at the date of termination
(provided the foregoing shall not prevent the Employee from
purchasing as a passive investor up to 2% of the outstanding
publicly traded shares or other securities of any class of
an issuer listed on a recognized stock exchange); or
(ii) attempt, directly or indirectly, to solicit or approach any
employee, customers, or suppliers of the Employee or any of
its subsidiaries for purposes of competition.
(iii) In this section "customer" shall mean any customer with
which the Employer or its subsidiaries transacted business
within a two (2) year period prior to the date of
termination, and "supplier" shall mean any supplier or its
subsidiaries with which the Employer or its subsidiaries
have done business with in a period of two (2) years prior
to the date of termination. The Employee agrees that this
section reflects separate covenants and each shall be
severable one from the other.
(iv) In the event Employee breaches or threatens to breach the
agreement, Employer in addition to, and not in limitation of
any of the rights, remedies, or damages available to
Employer at law or inequity shall be entitled to a temporary
and permanent injunction in order to prevent or restrain any
such breach by Employee or Employee's partners, agents,
representatives, employers, employees or any and other
persons (natural or corporate) directly or indirectly acting
with or for Employee. Employer shall also be entitled to
recover from Employee all costs associated with enforcing
any term of this agreement, including attorney fees.
7. NOTICES: All notices, requests, consents and statements hereunder shall
be deemed to have been properly given if mailed within the United States by
certified U.S. Mail, postage prepaid, addressed as follows:
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxxx
000 Xxxxxxx 00 000 Xxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
All notices shall be deemed received three (3) business days after mailing
in accordance with this section.
8. CHOICE OF LAW: This agreement shall be deemed a contract made under the
laws of the State of Iowa, and together with the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with and
governed by the laws of such state. In addition to any other remedy available to
the Employer, the Employee agrees that a breach of any of the provisions of this
section shall be regarded as a fundamental breach of the Employee's obligations
and shall entitle the Employer to refuse to perform or continue to perform
obligations under the contract including payment of the Guaranteed Amount or
Incentive Compensation.
9. ENFORCEABILITY: In the event any provision of this agreement is held
invalid, illegal, or unenforceable, in whole or in part, the remaining
provisions of the agreement shall not be affected thereby and shall continue to
be valid and enforceable.
10. TERMINATION OF PRIOR AGREEMENTS: Any previous agreements, written or
oral, express or implied, between the Employee and Employer relating to the
employment of the Employee by the Employer are terminated and cancelled. The
Employee and Employer release and forever discharge each other from all, causes
of action, claims and demands, under any such prior agreement.
11. ENTIRE AGREEMENT: This agreement constitutes the entire understanding
between Employee and Employer and all negotiations and contracts between the
parties, if any, have been merged into this agreement. The term of employment of
Employee and the provisions of the agreement may only be modified by the written
consent of both Employer and Employee.
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12. ARBITRATION: The parties agree that they will settle any claims,
disputes or controversies arising out of or relating to Employee's application,
candidacy for employment and employment with the Employer exclusively by final
and binding arbitration before a neutral arbitrator. Such claims to be settled
by arbitration include, but are not limited to, claims under federal, state and
local statutory or common law including the Age Discrimination Employment Act,
Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act of
1991, the Americans With Disabilities Act, and any laws of contract or the law
of tort. The arbitrator shall be chosen from a panel available from the Local
Arbitration Association.
13. LEGAL ADVICE: The parties agree and acknowledge that they are each
responsible for obtaining their own tax and legal advice concerning this
agreement. Neither party has assumed nor will assume any responsibility in
advising the other party as to the legal or tax consequences of the agreement.
14. COUNTERPARTS: This agreement maybe executed simultaneously in two or
more counterparts all of which together shall constitute one in the same
instrument.
15. HEADINGS: The headings of paragraphs are solely for convenience of
reference and if there is any conflict between such headings and the text of the
agreement, the text shall control.
16. AUTHORITY TO CONTRACT: Each party represents to the other that he/it
has the authority to enter into this agreement through compliance with all
necessary board approval and state law requirements where applicable.
17. ASSIGNMENT: Nothing contained in this agreement shall be construed to
permit the Employee to assign or delegate any rights or obligations hereunder
and such assignment is expressly prohibited. The Employer may assign this
agreement to a subsidiary, successor organization or any entity that controls,
is controlled by, or is under common control with the Employer.
18. CONFIDENTIALITY: Employee agrees to treat the terms of this agreement
with Employer as confidential. Employee covenants not to reveal the terms or
conditions of the agreement to third parties other than is necessary to conduct
or prepare tax returns and other required reports or to comply with the law such
as a valid court order or subpoena.
19. TENDERING RESIGNATIONS. The Employee agrees that after termination of
his employment, he will tender his resignation from any position he may hold as
an officer or director of the Employer or its subsidiaries. Doing so will not
reduce the obligations of the Employer described herein.
20. DELIVERY OF RECORDS. Upon any termination of employment, the Employee
shall, within ten (10) business days, deliver or cause to be delivered to the
Employer all books, documents, effects, monies, securities, or other property
belonging to the Employer or its subsidiaries or for which the Employer or its
subsidiaries are liable to others, which are in the possession, charge, control,
or custody of the Employee.
21. NO DEROGATION. Nothing herein derogates from any rights the Employee
may have under applicable law except as set forth in this agreement. The parties
agree that the rights, entitlements, and benefits set out in this agreement to
be paid to the Employee are in full satisfaction of all rights of the Employee
under any statute, law or legislation in any other jurisdiction, and any rights
or entitlements the Employee may otherwise have as a result of the termination
of his employment whether against the Employer or any of the Employer's
subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the 4th day of September, 2004.
/s/ DwayneFosseen_
Employer
/s/ Xxxxxxx X Xxxxx
Employee
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Exhibit A
Employee Consulting Clients
1. Xxxxxx Xxxx and Associates and Affiliates
2. Physical Therapy and Rehabilitation Specialists, Inc, and Affiliates
3. Maid Rite Corporation
4. PNLABS and Affiliates
5. SunEnergy, Inc.
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