EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND BETWEEN
GLOBAL ENERGY GROUP, INC.
AND
XXXXXX XXXXXXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of _____________, 2002 (the "Effective Date"), by and between GLOBAL ENERGY
GROUP, INC., a Delaware corporation ("Global"), and Xxxxxx Xxxxxxxxxx
("Employee").
WHEREAS, Global and Employee desire to enter into this Agreement to
assure Global of the services of Employee and to set forth the respective rights
and duties of the parties hereto;
WHEREAS, Global is principally in the business of developing and
commercializing energy efficiency technology (such activities, present and
future, being hereinafter referred to as the "Business"); and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, and other good and valuable
consideration the receipt and sufficiency of which hereby are acknowledged by
the parties, Global and Employee agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. Global hereby employs Employee, and Employee
hereby accepts such employment, as President of Global (the "Employment
Position"), all upon the terms and conditions set forth herein.
1.2 SERVICES. During the Employment Term (as hereinafter defined),
Employee agrees to perform diligently and in good faith the duties of the
Employment Position, under the direction of the Board of Directors of Global
(the "Board of Directors"). Employee agrees to perform the services to be
performed hereunder for the exclusive benefit of Global. Employee shall be
vested with such authority as is generally commensurate with the Employment
Position, as further outlined below. Employee will report solely to the Board of
Directors.
1.3 LOCATION. The principal place of employment and the location of
Employee's principal office shall be in Odessa, Florida; provided, however,
Employee shall, if reasonably necessary, engage in reasonable travel in the
performance of Employee's duties under this Agreement.
1.4 REPRESENTATIONS.
(a) Employee represents and warrants to Global that Employee has
full power and authority to enter into and perform this Agreement and that
Employee's execution and performance of this Agreement shall not constitute a
default or breach by Employee under, or of any of the terms of, any other
agreement to which Employee is a party or by which Employee is bound. Employee
represents that no consent or approval of any third party is required for
Employee's execution, delivery and performance of this Agreement or that all
consents or approvals of any third party required for such execution, delivery
and performance of this Agreement have been obtained. Employee further
represents that Employee's employment hereunder will not involve the use of
information or materials that belong to a former employer or another person or
entity and for which Employee has a duty of confidentiality.
(b) Global represents and warrants to Employee that Global has
full power and authority to enter into and perform this Agreement and that
Global's execution and performance of this Agreement shall not constitute a
default or breach by Global under, or of any of the terms of, any other
agreement to which Global is a party or by which Global is bound. Global
represents that no consent or approval of any third party is required for
Global's execution, delivery and performance of this Agreement or that all
consents or approvals of any third party required for such execution, delivery
and performance of this Agreement have been obtained.
ARTICLE II
EMPLOYMENT TERM
The term of Employee's employment hereunder (the "Employment Term")
shall commence as of the Effective Date hereof (referred to for these purposes
as the "Commencement Date") and shall continue for an initial term of three (3)
years from the Commencement Date (the "Initial Term"), unless earlier terminated
pursuant to the provisions of this Agreement. Following the completion of the
Initial Term, Employee's term of employment shall be renewed automatically for
additional one-year terms ("Annual Terms") in the absence of written notice of
termination given by either party at least ninety (90) days prior to the date of
any such renewal.
ARTICLE III
COMPENSATION
3.1 BASE SALARY. As compensation for the services to be rendered by
Employee, Global shall pay Employee, during the Employment Term, an annual base
salary (as in effect from time to time, "Base Salary") of not less than
Onehundredtwentyfive thousand Dollars ($125,000) during the first year of the
Employment Term, Onehundredfifty thousand Dollars ($150,000) during the second
year of the Employment Term, and Onehundredseventyfive thousand Dollars
($175,000) thereafter. The Base Salary shall accrue monthly (prorated for
periods less than a month) and shall be paid in accordance with Global's
standard payroll practices. The Base Salary will be reviewed annually, or, more
frequently, as appropriate, by the Board of Directors for upward, but not
downward, adjustment in its sole discretion.
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3.2 BONUS COMPENSATION. For every fiscal year of Global ending during
the Employment Term, Employee will be entitled to receive such additional bonus
or other compensation ("Bonus Compensation"), if any, as may be approved by the
Board of Directors or a Compensation Committee whose members all are directors
of Global and which committee is appointed as such by the Board of Directors.
3.3 BENEFITS. Employee shall be entitled, during the Employment Term,
to the same fringe benefits as are from time to time then available to Global's
most senior executive officers, such as (1) medical, hospital, dental, life,
disability, and other insurance coverage, (2) participation in incentive, bonus,
stock option, equity ownership, pension, profit sharing, and other benefit
plans, and (3) normal vacation allowance and other paid time off for all
employees who are executive officers of Global, but not less than three weeks
annually.
3.4 WITHHOLDING. Any and all amounts payable under this Agreement,
including amounts payable under this ARTICLE III and ARTICLE VII, are subject to
withholding for such federal, state and local taxes required pursuant to any
applicable law, rule or regulation.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES. Employee shall be furnished with an office at
the location set forth in SECTION 1.3 hereof, or at such other location as
agreed to by Employee and Global, and other working facilities and secretarial
and other assistance suitable to the Employment Position and reasonably required
for the performance of Employee's duties hereunder.
4.2 REIMBURSEMENT FOR EXPENSES. Global shall reimburse Employee, in
accordance with Global's policies and practices for senior management, for all
reasonable expenses actually incurred by Employee while employed by Global and
in the performance of Employee's duties under and in accordance with the terms
and conditions of this Agreement, subject to Employee's furnishing to Global an
itemized account, reasonably satisfactory to Global, in substantiation of such
expenditures, along with appropriate documentation thereof, including receipts
for all such expenses in the manner required pursuant to Global's policies and
procedures and the Internal Revenue Code of 1986, as amended (the "Code"), and
applicable regulations in effect from time to time.
4.3 INSURANCE. Global may secure in its own name or otherwise, and at
its own expense, life, disability and other insurance covering Employee or
Employee and others, and Employee shall not have any right, title or interest in
or to such insurance other than as expressly provided herein. Employee agrees to
assist Global in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
as Global or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance. Any information
provided by Employee to such insurance company (the results of examinations
being deemed part of such information) will be provided on a confidential basis,
and Global shall have no access thereto.
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ARTICLE V
COVENANTS AND RESTRICTIONS
Employee covenants that, except in carrying out his duties hereunder,
during the term of his employment and for a period of one (1) year following the
date of termination of employment hereunder (unless such longer period of time
is specifically set forth herein):
5.1 NON-COMPETITION. Without the express written consent of the Board
of Directors, Employee shall not directly or indirectly, own any interest in,
participate or engage in, assist, render any services (including advisory
services) to, become associated with, work for, serve (in any capacity
whatsoever, including, without limitation, as an employee, consultant, advisor,
agent, independent contractor, officer or director) or otherwise become in any
way or manner connected with the ownership, management, operation, or control
of, any business, firm, corporation, partnership or other entity (collectively
referred to herein as a "Person") that engages in, or assists others in engaging
in or conducting any business, which deals, directly or indirectly, in products
or services similar to or competitive with the Company's product line or
services in the United States; provided, however, the above shall not be deemed
to exclude Employee from acting as director of another corporation with the
consent of the Company's Board of Directors; provided further, however, that the
above shall not be deemed to prohibit Employee from owning or acquiring
securities issued by any corporation whose securities are listed with a national
securities exchange or are traded in the over-the-counter market, provided that
Employee at no time owns, directly or indirectly, beneficially or otherwise,
five (5%) percent or more of any class of any such corporation's outstanding
capital stock.
5.2 NON-SOLICITATION. Employee shall not knowingly provide or solicit
to provide to any Person or individual (i) any goods or services which are
competitive with those provided by the Company or which would be competitive
with the goods or services that the Company has planned to provide; or (ii) any
goods or services to any customer of the Company. The term "customer" shall mean
any person or individual to whom the Company has provided goods or services
within the twenty-four (24) month period prior to the termination of Employee's
employment hereunder. Notwithstanding anything herein to the contrary, no
limitation shall be imposed on Employee hereunder with respect to any goods and
services that the Company has planned to provide and which are not actually
being provided at the time of the termination of Employee's employment
hereunder.
5.3 CONFIDENTIALITY. Employee agrees that he shall not divulge to
others, nor shall he use to the detriment of the Company or in any business or
process of manufacture competitive with or similar to any business or process of
manufacture engaged in by the Company or any of its subsidiary or affiliated
companies, at any time during his employment with the Company or thereafter, any
Confidential Information (as defined in Section 7.2) obtained by him during the
course of his employment with the Company relating to sales, salesmen, sales
volume or strategy, customers, formulas, processes, methods, machines,
manufactures, compositions, ideas, improvements or inventions belonging to or
relating to the business of the Company, or its subsidiary or affiliated
companies.
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5.4 PERSONNEL. Employee shall neither solicit, seek to solicit any of
the Company's personnel in any capacity whatsoever nor shall Employee induce or
attempt to induce any of the Company's personnel to leave the employ of the
Company to work for Employee or otherwise.
5.5 DAMAGES. Employee acknowledges that his breach of any of the
restrictive covenants contained in this ARTICLE V may cause irreparable damage
to the Company for which remedies at law would be inadequate. Accordingly, if
Employee breaches or threatens to breach any of the provisions of this ARTICLE
V, the Company shall be entitled to appropriate injunctive relief, including,
without limitation, preliminary and permanent injunctions in any court of
competent jurisdiction, restraining Employee from taking any action prohibited
hereby. This remedy shall be in addition to all other remedies available to the
Company at law or equity. If any portion of this ARTICLE V is adjudicated to be
invalid or unenforceable, this ARTICLE V shall be deemed amended to delete
therefrom the portion so adjudicated, such deletion to apply only with respect
to the operation of this ARTICLE V in the jurisdiction in which such
adjudication is made.
ARTICLE VI
ILLNESS OR INCAPACITY
6.1 RIGHT TO TERMINATE. Except as provided by this Article and
notwithstanding anything else to the contrary contained in this Agreement,
Global shall have no right to terminate Employee's employment hereunder during
any period that Employee suffers illness or incapacity. Global shall have the
right to terminate Employee's employment hereunder by delivery of thirty (30)
days written notice of termination if Employee is unable to perform, with
reasonable accommodation, in all material respects Employee's duties hereunder
for a period exceeding six (6) consecutive months by reason of illness or
incapacity. A termination of employment under this Article will be deemed a
termination "without good cause" as described in SECTION 8.1 hereof.
6.2 RIGHT TO REPLACE. If Employee's illness or incapacity, whether by
physical or mental cause, renders Employee unable for a minimum period of thirty
(30) consecutive calendar days to carry out Employee's duties and
responsibilities as set forth herein, Global shall have the right to designate a
person to temporarily perform Employee's duties; provided, however, that if
Employee returns to work from such illness or incapacity within the six (6)
month period following the commencement of Employee's inability due to such
illness or incapacity, Employee shall be entitled to be reinstated in the
capacity described in ARTICLE I hereof with all rights, duties and privileges
attendant thereto.
6.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to
Employee's full Base Salary under SECTION 3.1 hereof and other benefits under
ARTICLE III hereof during such illness or incapacity unless and until expiration
or other termination of Employee's employment hereunder.
6.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of this
ARTICLE VI, the term "illness or incapacity" shall mean Employee's inability to
perform Employee's duties hereunder substantially on a full-time basis because
of physical or mental illness or physical injury as determined by the Board of
Directors, in its reasonable discretion based upon competent medical
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evidence. Upon Global's written request, Employee shall submit to reasonable
medical and other examinations to provide the evidence required hereunder.
ARTICLE VII
TRADE SECRETS
7.1 CONFIDENTIALITY. Employee will hold Confidential Information in
confidence and trust and limit disclosure of Confidential Information strictly
to persons who have a need to know such Confidential Information in connection
with the Business and who have agreed in writing with Global to maintain the
confidentiality of such Confidential Information. Employee will not disclose,
use, or permit the use or disclosure of Confidential Information, except in
satisfying Employee's obligations under this Agreement. Employee will use
reasonable care to protect Confidential Information from inappropriate
disclosure, whether inadvertent or intentional. Notwithstanding the foregoing,
Employee may disclose Confidential Information if such disclosure is required by
a court order or an order of a similar judicial or administrative body;
provided, however, that Employee notifies Global of such requirement immediately
and in writing, and cooperates reasonably with Global in obtaining a protective
or similar order with respect thereto.
7.2 CONFIDENTIAL INFORMATION. For the purposes of this Agreement, the
phrase "Confidential Information" means information or materials that, in
Global's reasonable determination, provide advantage to Global over others not
having such information or materials and includes (i) customer information,
supplier information, sales channel and distributor information, material terms
of any contracts, marketing philosophies, strategies, techniques and objectives
(including product and service roll-out dates and volume estimates), legal and
regulatory positions and strategies, advertising and promotional copy,
competitive advantages and disadvantages, non-published financial data, product
or service plans, designs, costs, prices and names, inventions, discoveries,
improvements, technological developments, know-how, software code, business
opportunities (including planned or proposed financings, mergers, acquisitions,
ventures and partnerships) and methodologies and processes (including the look
and feel of computer screens and reports) relating to the Business; (ii)
information designated in writing or conspicuously marked as "confidential" or
"proprietary" or likewise designated or marked with words of similar import;
(iii) information for which Global has an obligation of confidentiality so long
as such obligation is known to Employee; and (iv) information of a nature that a
reasonable person would conclude that it is confidential or proprietary.
Notwithstanding the foregoing, information will not be deemed Confidential
Information if such information: (i) prior to receipt from Global, is or was
known to Employee directly or indirectly from a source other than one having an
obligation of confidentiality to Global; (ii) becomes known (independently of
disclosure by Global) to Employee directly or indirectly from a source other
than one having an obligation of confidentiality to Global; (iii) becomes
publicly known or otherwise ceases to be secret or confidential, except through
a breach of this Agreement by Employee; or (iv) is independently developed by
Employee. Employee may disclose Confidential Information pursuant to the
requirements of a governmental agency or by operation of law, provided that
Employee gives Global reasonable prior written notice sufficient to permit
Global to contest such disclosure.
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7.3 NOTIFICATION OF THIRD PARTY DISCLOSURE REQUESTS. If Employee
receives any written or oral third party request, order, instruction or
solicitation for the disclosure of Confidential Information not in conformance
with this Agreement or if Employee becomes aware of any attempt by a third party
to improperly gain Confidential Information, Employee shall immediately notify
the Board of Directors or of such request, order, instruction or solicitation or
of such attempt and fully disclose the details surrounding such request, order,
instruction or solicitation or such attempt.
7.4 NON-REMOVAL OF RECORDS. All documents, files, records, data,
papers, materials, notes, books, correspondence, drawings and other written,
graphic or electronic records of the Business and all computer software of
Global which Employee shall prepare or use, or come into contact with, shall be
and remain the exclusive property of Global, in its discretion, and shall not be
physically, electronically, telephonically or otherwise removed from Global's
premises without Global's prior written consent.
7.5 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Confidential
Information gained, received or developed by Employee or in which Employee
participated in developing will remain the exclusive property of Global, in its
sole discretion. Employee will promptly return to Global or destroy or erase all
records, books, documents or any other materials whatsoever (including all
copies thereof) containing such Confidential Information in Employee's
possession or control upon the earlier of (i) the receipt of a written request
from Global for return or destruction of Confidential Information or (ii) the
termination of Employee's employment hereunder.
7.6 TRADE SECRETS OF OTHERS. In the course of Employee's employment
hereunder, Employee will not use any information or materials that belong to any
former employer or any other person or entity and for which Employee has a duty
of confidentiality or use or allow the use of any illegally obtained
confidential or secret information or materials.
ARTICLE VIII
TERMINATION
8.1 TERMINATION BY GLOBAL.
(a) Global may terminate Employee's employment hereunder for good
cause anytime by delivery of written notice of termination. A termination for
good cause under this SECTION 8.1 shall be effective upon the date set forth in
a written notice of termination delivered to Employee. Good cause will be
limited to the following circumstances:
(1) habitual absence from work by the Employee, including
without limitation, habitual absence from the Company's
offices on non-Company matters that interferes with the
Employee's duties;
(2) habitual drunkenness by the Employee;
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(3) habitual drug abuse or drug addiction by the Employee;
(4) the Employee maliciously denigrating in public the
Company or any officer, director or affiliate thereof;
(5) physical destruction of substantial property or asset of
the Company by, or caused by, the Employee;
(6) appropriation of business opportunities of the Company
by the Employee for the direct or indirect personal gain
of the Employee or members of his family without the
prior written consent of the Board;
(7) willful and malicious interference with the Company's
operations by the Employee;
(8) engagement by the Employee in any act of fraud, material
misappropriation of funds or assets, or embezzlement,
including without limitation, theft, bribery or the
receipt of kickbacks;
(9) a conviction of the Employee for, or a plea of nolo
contendere by the Employee to, a felony or other
criminal act for which the possible penalties include a
prison sentence of at least 1 year;
(10) a material breach by the Employee of the restrictive
covenants contained in this Agreement, or for disloyal,
dishonest or illegal conduct by the Employee; or
(11) Employee is in default in a material respect in the
performance of Employee's obligations, services or
duties hereunder, including Employee's willfully
disregarding the written or oral instructions of the
Board of Directors concerning the conduct of Employee's
duties hereunder, Employee's conduct which is materially
inconsistent with the published policies of Global, as
promulgated from time to time and which are generally
applicable to all employees or to senior management, or
Employee's breach of any other material provision of
this Agreement; and, in any such case, such act has
resulted (or could reasonably be expected to result) in
substantial harm to Global; or
(b) Global may terminate Employee's employment hereunder
without good cause at any time not fewer than 30 days nor more than 45 days
after delivering written notice of termination to Employee.
8.2 EFFECT OF TERMINATION FOR GOOD CAUSE. If Employee's employment is
terminated by Global for good cause:
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(a) Employee shall be entitled to accrued Base Salary under
SECTION 3.1 and accrued vacation pay and other paid time
off, each through the date of termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance
with the provisions of SECTION 4.2 hereof; and
(c) Except as provided in ARTICLE X, this Agreement shall
thereupon be of no further force and effect.
8.3 EFFECT OF TERMINATION WITHOUT GOOD CAUSE. If Global terminates
Employee's employment without good cause:
(a) Employee shall be entitled to accrued Base Salary under
SECTION 3.1 and accrued vacation pay and other time off,
each through the date of termination;
(b) Employee shall be entitled to receive a one-time, lump
sum severance payment equal to the sum of all amounts of
Base Salary as would have been payable under SECTION 3.1
through the end of the Initial Term or Annual Term as
the case may be, such lump sum to be paid by Global to
Employee no later than thirty (30) calendar days after
the date of termination of employment hereunder;
(c) If the termination is within three years of a Change of
Control (as defined herein), then, in lieu of any
payment under paragraphs (a) and (b) of this Section,
Employee shall be entitled to receive a one-time, lump
sum severance payment equal to three (3) times the total
amount of the annual Base Salary payable under the terms
of SECTION 3.1 of this Agreement plus any Bonus
Compensation paid in the prior year, such lump sum to be
paid by Global to Employee no later than thirty (30)
calendar days after the date of termination of
employment hereunder;
(d) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance
with the provisions of SECTION 4.2 hereof;
(e) Except as provided in THIS ARTICLE AND ARTICLE X, this
Agreement shall thereupon be of no further force or
effect.
8.4 DEEMED TERMINATION WITHOUT GOOD CAUSE. After the occurrence of any
of the following events, Employee, at Employee's sole option, may declare by
thirty days (30) written notice to Global that Employee's employment hereunder
has been terminated by Global, and such termination will for all purposes of
this Agreement be deemed a termination by Global without good cause:
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(a) Global removes Employee from the Employment Position or
from the office of President;
(b) Global materially changes Employee's reporting
requirements;
(c) Global fails to afford Employee the power and authority
generally commensurate with the Employment Position and
from the office of President;
(d) Global requires Employee to relocate Employee's
residence;
(e) A Change of Control occurs; or
(f) Global breaches any material provision of this
Agreement.
8.5 TERMINATION BY EMPLOYEE. Employee may terminate Employee's
employment hereunder by giving not less than forty-five (45) days written notice
to Global.
8.6 EFFECT OF TERMINATION BY EMPLOYEE. If Employee terminates
Employee's employment pursuant to SECTION 8.5 hereof:
(a) Employee shall be entitled to accrued Base Salary under
SECTION 3.1 and accrued vacation pay and other paid time
off, each through the date of termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance
with the provisions of SECTION 4.2 hereof; and
(c) Except as provided in ARTICLE X, this Agreement shall
thereupon be of no further force and effect.
8.7 CHANGE OF CONTROL. For purposes of SECTION 8.3 of this Agreement,
a "Change of Control" shall be deemed to have occurred in the event of:
(a) The acquisition by any person or entity, or group
thereof acting in concert (except in the case of a
public offering or private placement of the Company's
securities that is approved by the Board of Directors of
Global), of "beneficial" ownership (as such term is
defined in Securities and Exchange Commission ("SEC")
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), of securities of Global
which, together with securities previously owned, confer
upon such person, entity or group (excluding any person,
entity or group that holds such voting power as of the
Commencement Date) the voting power, on any matters
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brought to a vote of shareholders, of thirty percent
(30%) or more of the then outstanding shares of capital
stock of Global; or
(b) The sale, assignment or transfer of assets of Global in
a transaction or series of transactions, if the
aggregate consideration received or to be received by
Global in connection with such sale, assignment or
transfer is greater than fifty percent (50%) of the book
value, determined by Global in accordance with generally
accepted accounting principles, of Global's assets
determined on a consolidated basis immediately before
such transaction or the first of such transactions; or
(c) The merger, consolidation, share exchange or
reorganization of Global as a result of which the
holders of all of the shares of capital stock of Global
as a group would receive less than fifty percent (50%)
of the voting power of the capital stock or other
interests of the surviving or resulting corporation or
entity; or
(d) The adoption of a plan of liquidation or the approval of
the dissolution of Global; or
(e) Employee is removed from office as a director of Global,
or is not reelected as a director upon termination or
expiration of any term of service as a director of
Global; or
(f) On any day after the Commencement Date, Employee and
Xxxxx Xxxxxx(the "Initial Directors"), along with all
other persons each of whose nomination and election were
approved by Employee, fail to be directors and to
comprise a majority of the directors of Global; or
(g) The commencement (within the meaning of SEC Rule 14d-2
under the Exchange Act) of a tender or exchange offer
that, if successful, would result in the occurrence of
one of the events described in paragraphs (a) through
(h) of this Section; or
(h) A determination by the Board of Directors of Global, in
view of then current circumstances or impending events,
that one of the events described in paragraphs (a)
through (h) of this Section has occurred or is imminent,
which determination shall be made for the specific
purpose of triggering the operative provisions of this
Agreement.
8.8 CERTAIN ADDITIONAL PAYMENTS BY GLOBAL.
(a) If it shall be determined that any payment, distribution
or benefit received or to be received by Employee from
Global ("Payments") would be subject to the excise tax
imposed by Section 4999 of the Code (the "Excise Tax"),
then Employee shall be entitled to receive an additional
payment (the "Excise Tax
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Gross-Up Payment") in an amount such that the net amount
retained by Employee, after the calculation and
deduction of any Excise Tax on the Payments and any
federal, state and local income taxes and excise tax on
the Excise Tax Gross-Up Payment provided for in this
SECTION 8.8, shall be equal to the Payments. In
determining this amount, the amount of the Excise Tax
Gross-Up Payment attributable to federal income taxes
shall be reduced by the maximum reduction in federal
income taxes that could be obtained by the deduction of
the portion of the Excise Tax Gross-Up Payment
attributable to state and local income taxes. Finally,
the Excise Tax Gross-Up Payment shall be reduced by
income or excise tax withholding payments made by Global
or any affiliate of either to any federal, state or
local taxing authority with respect to the Excise Tax
Gross-Up Payment that was not deducted from compensation
payable to Employee.
(b) All determinations required to be made under this
SECTION 8.8, including whether and when an Excise Tax
Gross-Up Payment is required and the amount of such
Excise Tax Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, except as
specified in SECTION 8.8(A) above, shall be made by
Global's independent auditors (the "Accounting Firm"),
which shall provide detailed supporting calculations
both to Global and Employee within 15 business days
after Employee provides Global with notice that a
Payment has been or will be made or such earlier time as
may be required by Global. The determination of tax
liability made by the Accounting Firm shall be subject
to review by Employee's tax advisor and, if Employee's
tax advisor does not agree with the determination
reached by the Accounting Firm, then the Accounting Firm
and Employee's tax advisor shall jointly designate a
nationally recognized public accounting firm, which
shall make the determination. All fees and expenses of
the accountants and tax advisors retained by either
Employee or Global shall be borne by Global. Any Excise
Tax Gross-Up Payment, as determined pursuant to this
SECTION 8.8, with respect to a Payment shall be paid by
Global to Employee at such time as Employee is entitled
to receive the Payment. Any determination by a jointly
designated public accounting firm shall be binding upon
Global and Employee.
(c) As a result of the uncertainty in the application of
Subsection 4999 of the Code at the time of the initial
determination hereunder, it is possible that Excise Tax
Gross-Up Payments will not have been made by Global that
should have been made consistent with the calculations
required to be made hereunder ("Underpayment"). In the
event that Employee thereafter is required to make a
payment of any Excise Tax, any such Underpayment
calculated in accordance with and in the same manner as
the Excise Tax Gross-Up Payment in SECTION 8.8(A) above
shall be promptly paid by Global to or for the benefit
of Employee. In the event that the Excise Tax Gross-Up
Payment exceeds the amount subsequently determined to be
due, such excess shall constitute a loan from Global to
Employee payable on the fifth
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day after demand by Global (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code).
ARTICLE IX
MISCELLANEOUS
9.1 NO WAIVERS. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
9.2 NOTICES. Any notice required or permitted to be given to under the
terms of this Agreement may be delivered in person, by courier or Federal
Express, United Parcel Service, Airborne Express U.S express mail or other
similar nationally recognized overnight delivery service that obtains a
confirmation of delivery, or by registered or certified mail, postage prepaid,
return receipt requested, or by fax or e-mail transmission if delivery is
promptly confirmed, and shall be addressed as follows:
IF TO GLOBAL: 0000 Xxxxxxx Xx.
Xxxxxx, XX 00000
Attention: President
Fax:
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E-mail:
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IF TO EMPLOYEE:
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Fax:
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E-mail:
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Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
delivered by courier or overnight delivery service, (iii) on the third day after
it is mailed by registered or certified mail, postage prepaid, return receipt
requested as provided herein, (iv) when proper transmission is confirmed if
transmitted by fax or e-mail.
9.3 SEVERABILITY. The provisions of this Agreement are severable and if
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
9.4 SUCCESSORS AND ASSIGNS. The rights and obligations of Global under
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of Global, including the survivor upon any merger, consolidation,
share exchange or combination of Global with any other entity. Employee shall
not have the right to assign, delegate, or otherwise transfer to any person or
entity any duty or obligation to be performed by Employee hereunder.
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9.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification
(except as otherwise provided herein with respect to the modification of
provisions that are unreasonable, arbitrary or against public policy),
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding that involves the interpretation of any provisions of this
Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida without reference to
the conflict of law principles thereof.
9.7 CONSTRUCTION. This Agreement was negotiated at arms'-length and
will not be construed more strongly against any party regardless of which party
was responsible for its preparation. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural will include
the singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender will include the other genders. The words "Agreement," "hereof,"
"herein" and "hereunder" and words of similar import referring to this Agreement
refer to this Agreement as a whole, including Exhibits, and not to any
particular provision of this Agreement. Whenever the word "include," "includes"
or "including" is used in this Agreement, it will be deemed to be followed by
the words "without limitation." The various headings contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit or
extend the scope or intent of any of the provisions of this Agreement.
9.8 FURTHER ASSURANCES. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
9.9 AFFILIATE. The term "Affiliate" with respect to a party to this
Agreement means (i) any person or entity directly or indirectly controlling the
party; (ii) any person or entity controlled by or under common control with the
party; (iii) any person or entity owning or controlling 10% or more of the
outstanding voting securities or interests of the party; (iv) any officer,
director, partner or employee of a person or entity described in (i), (ii) or
(iii) above; and (v) any entity for which a person or entity described in (i),
(ii) or (iii) above is an officer, director, partner, or employee.
9.10 COUNTERPARTS. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
9.11 CONFIDENTIAL ARBITRATION. The parties hereto agree that any
dispute concerning or arising out of the provisions of this Agreement,
Employee's employment or termination of Employee's employment shall be resolved
by confidential arbitration in accordance with the rules of the American
Arbitration Association. Such confidential arbitration shall be held in Tampa,
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Florida, and the decision of the arbitrator(s) shall be conclusive and binding
on the parties and shall be enforceable in any court of competent jurisdiction.
The arbitrator may, in the arbitrator's discretion, award attorney's fees and
costs to such party as the arbitrator sees fit in rendering a decision.
9.12 INDEMNIFICATION AGREEMENT. Global and Employee shall enter into
an Indemnification Agreement in form and substance reasonably satisfactory to
Employee and appropriate with respect to an officer of a publicly traded
corporation.
ARTICLE X
SURVIVAL
The provisions of ARTICLES VII AND VIII of this Agreement and this
ARTICLE shall survive the termination, rescission or expiration of this
Agreement whether upon, or prior to, the Scheduled Termination Date hereof. The
representations and warranties of the parties hereto shall survive the execution
of this Agreement and continue without limitation.
ARTICLE XI
INTELLECTUAL PROPERTY
All Confidential Information, computer software, video and sound
recordings, scripts, creations, inventions, improvements, designs and
discoveries conceived, created, invented, authored, developed, produced or
discovered by Employee while employed by Global, whether alone or with others,
whether during or after regular work hours, are and will be Global's property
exclusively, in its sole discretion. Employee hereby assigns to Global all
copyrights, trademarks, patents, related applications and registrations, and
other rights of authorship, invention or ownership Employee may have with
respect to such items. Moreover, at any time, without additional consideration,
Employee will execute and deliver any documents or instruments that Global may
request in order to effectively convey and transfer good title and right to, and
put Global in possession of, such items.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
GLOBAL ENERGY GROUP, INC.,
a Delaware corporation
By:
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Print Name:
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Title:
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EMPLOYEE
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Address:
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