EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made, entered into and
effective as of June 19, 2006 (the "Effective Date"), between Alternative Energy
Sources, Inc. (the "Company"), and Xxxx Xxxxxx, an individual (the "Executive").
WHEREAS, the Company and the Executive wish to memorialize the terms and
conditions of the Executive's employment by the Company in the positions of
President and Chief Executive Officer;
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the Company and the Executive agree as follows:
1. Employment Period. The Company offers to employ the Executive, and
the Executive agrees to be employed by Company, in accordance with the terms and
subject to the conditions of this Agreement, commencing on the Effective Date
and terminating on the fourth anniversary of the Effective Date (the "Scheduled
Termination Date"), unless terminated in accordance with the provisions of
Section 12 below, in which case the provisions of Section 12 shall control;
provided, however, that unless either party provides the other party with
days prior to the expiration of the initial term or any renewal term of this
Agreement (as the case may be), this Agreement shall automatically renew for
additional one-year periods commencing on the day after such expiration date.
The Executive affirms that no obligation exists between the Executive and any
other entity which would prevent or impede the Executive's immediate and full
performance of every obligation of this Agreement.
2. Position and Duties. During the term of the Executive's employment
hereunder, the Executive shall continue to serve in, and assume duties and
responsibilities consistent with, the positions of President and Chief Executive
Officer, unless and until otherwise instructed by the Company. The Executive
agrees to devote to the Company substantially all of his working time, skill,
energy and best business efforts during the term of his employment with the
Company, and the Executive shall not engage in business activities outside the
scope of his employment with the Company if such activities would detract from
or interfere with his ability to fulfill his responsibilities and duties under
this Agreement or require substantial amounts of his time or of his services.
3. No Conflicts. The Executive covenants and agrees that for so long as
he is employed by the Company, he shall inform the Company of each and every
future business opportunity presented to the Executive that arises within the
scope of the Business of the Company (as defined below) and would be feasible
for the Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours of Work. The Executive's normal days and hours of work shall
coincide with the Company's regular business hours. The nature of the
Executive's employment with the Company requires flexibility in the days and
hours that the Executive must work, and may necessitate that the Executive work
on other or additional days and hours.
5. Location. The locus of the Executive's employment with the Company
shall be the Company's office located in Kansas City, Missouri and any other
locus where the Company now or hereafter has a business facility.
6. Compensation.
(a) Base Salary. During the term of this Agreement, the Company shall
pay, and the Executive agrees to accept, in consideration for the Executive's
services hereunder, pro rata bi-weekly payments of the annual salary of
$190,000.00, less all applicable taxes and other appropriate deductions.
(i) Upon successful completion of financing in such amount as is
sufficient, in the opinion of the Company's Board of Directors (the "Board"), to
enable the Company to finance the acquisition or construction of the Company's
initial operating facility (the "Initial Facility"), the Executive's annual base
salary shall be increased to $205,000.00.
(ii) The Executive's base salary shall be increased to $240,000 at
such time as the Initial Facility becomes operational.
The Compensation Committee (the "Compensation Committee") of the Board
shall also review the Executive's base salary annually and shall make a
recommendation to the Board as to whether such base salary should be increased,
which decision shall be within the Board's sole discretion.
(b) Annual Bonus. During the term of this Agreement, the Executive shall
be entitled to an annual bonus of up to 125% of his base salary, decreasing to a
maximum of 100% of his base salary (considered at the end of the period for
which the bonus is being calculated) at such time as the Initial Facility
becomes operational, the actual amount of which bonus shall be determined
according to achievement of performance-related financial and operating targets
established annually for the Company and the Executive by the Compensation
Committee (or by the independent members of the Board if there exists no
Compensation Committee). Such performance targets for each fiscal year shall be
adopted by the Compensation Committee promptly after the end of the prior fiscal
year, but in no event later than March 31st of the current fiscal year (except
for fiscal year 2006, the performance targets for which are annexed to this
Agreement as Exhibit A. Each annual bonus shall be paid by the Company to the
Executive promptly after the first meeting of the Board following the completion
of the annual audit, which meeting shall occur on or about April 15th of each
year.
7. Expenses. During the term of this Agreement, the Executive shall be
entitled to payment or reimbursement of any reasonable expenses paid or incurred
by him in connection with and related to the performance of his duties and
responsibilities hereunder for the Company. All requests by the Executive for
payment of reimbursement of such expenses shall be supported by appropriate
invoices, vouchers, receipts or such other supporting documentation in such form
and containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said expenses.
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8. Vacation. During the term of this Agreement, the Executive shall be
entitled to accrue, on a pro rata basis, 20 vacation days, per year. The
Executive shall be entitled to carry over any accrued, unused vacation days from
year to year without limitation.
9. Lock-Up Agreement. The Executive shall enter into a Lock-Up
Agreement with the Company in the form attached hereto as Exhibit B.
10. Stock Options. The Company hereby agrees that the Executive shall be
granted a non-qualified stock option on the terms and conditions hereinafter
stated:
(a) Grant of Options. On the Effective Date, the Company will grant the
Executive an option to purchase an aggregate of 300,000 shares of the Company's
common voting stock (the "Option") under the Company's 2006 Stock Option Plan
(the "Stock Option Plan"). Such grant shall be evidenced by an Option Agreement
as contemplated by the Stock Option Plan. In subsequent years the Executive
shall be eligible for such grants of Options and other permissible awards
(collectively with Options, "Awards") under the Stock Option Plan as the
Compensation Committee or the Board shall determine.
(b) Option Price; Term. The per share exercise price of the Option shall
be $1.00, which represents the fair market value per share of Company common
voting stock on the Effective Date. The term of the Option shall be ten years
from the date of grant.
(c) Vesting and Exercise. One third (33.3%) of the Option shall be
vested and exercisable on the first anniversary of the grant of the Option, an
additional one third (33.3%) of the Option shall be vested and become
exercisable on the second anniversary of the grant of the Option and the
remaining one third (33.4%) of the Options shall be vested and become
exercisable on third anniversary of the grant of the Option.
(d) Termination of Service; Accelerated Vesting.
(i) If the Executive's employment is terminated for Cause, as such
term is defined below, all Awards, whether or not vested, shall immediately
expire effective the date of termination of employment.
(ii) If the Executive's employment is terminated voluntarily by the
Executive without Good Reason, as such term is defined below, all unvested
Awards shall immediately expire effective the date of termination of employment.
Vested Awards, to the extent unexercised, shall expire one month after the
termination of employment.
(iii) If the Executive's employment terminates on account of death
or Disability, as defined below, all unvested Awards shall immediately expire
effective the date of termination of employment. Vested Awards, to the extent
unexercised, shall expire one year after the termination of employment.
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(iv) If the Executive's employment is terminated (A) in connection
with a Change of Control, as defined below, (B) by the Company without Cause or
(C) by the Executive for Good Reason, all unvested Awards shall immediately vest
and become exercisable effective the date of termination of employment, and, to
the extent unexercised, shall expire one year after any such event.
(e) Payment. The full consideration for any shares purchased by the
Executive upon exercise of the Option shall be paid in cash.
11. Other Benefits.
(a) During the term of this Agreement, the Executive shall be eligible
to participate in incentive, savings, retirement (401(k)), and welfare benefit
plans, including, without limitation, health, medical, dental, vision, life
(including accidental death and dismemberment) and disability insurance plans
(collectively, "Benefit Plans"), in substantially the same manner, including but
not limited to responsibility for the cost thereof, and at substantially the
same levels, as the Company makes such opportunities available to all of the
Company's managerial or salaried executive employees.
(b) The Executive's spouse and dependent minor children will be covered
under the Benefit Plans providing health, medical, dental, and vision benefits,
in substantially the same manner, including but not limited to responsibility
for the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses and dependent minor children to all
of the Company's managerial or salaried executive employees.
(c) The Company shall purchase and maintain traditional directors and
officers liability insurance coverage in the amount of at least $5,000,000
covering the Company's officers and directors, including the Executive, as soon
as practicable after the Effective Date, but in no event later than 30 days
following the Effective Date, provided such coverage is available on
commercially reasonable terms.
(d) Until such time as Executive becomes covered by Company medical
coverage, the Company shall pay the cost of COBRA coverage provided by
Executive's prior employer, to the same extent as such coverage was paid for by
such prior employer.
12. Termination of Employment.
(a) Death. In the event that during the term of this Agreement the
Executive dies, this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executor's heirs, administrators or executors any earned
but unpaid base salary, unpaid pro rata annual bonus and unused vacation days
accrued through the date of death; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement. The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
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(b) "Disability." In the event that, during the term of this Agreement
the Executive shall be prevented from performing his duties and responsibilities
hereunder to the full extent required by the Company by reason of Disability (as
defined below) this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executive or his heirs, administrators or executors any
earned but unpaid base salary, unpaid pro rata annual bonus and unused vacation
days accrued through the Executive's last date of Employment with the Company;
provided, that nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement including any failure
to maintain the long-term disability insurance coverage required pursuant to
Section 10(b)(iv). The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions through the last date of the Executive's employment with the Company.
For purposes of this Agreement, "Disability" shall mean a physical or mental
disability that prevents the performance by the Executive, with or without
reasonable accommodation, of his duties and responsibilities hereunder for a
period of not less than an aggregate of three months during any twelve
consecutive months.
(c) "Cause."
(i) At any time during the term of this Agreement, the Company may
terminate this Agreement and the Executive's employment hereunder for "Cause."
For purposes of this Agreement, "Cause" shall be defined as the occurrence of:
(A) gross neglect, malfeasance or gross insubordination in performing the
Executive's duties under this Agreement; (B) the Executive's conviction for a
felony, excluding convictions associated with traffic violations; (C) an
egregious act of dishonesty (including without limitation theft or embezzlement)
or a malicious action by the Executive toward the Company's customers or
employees; (D) a willful and material violation of any provision of Sections 13
and 14 hereof; (E) intentional reckless conduct that is materially detrimental
to the business or reputation of the Company; or (F) material failure, other
than by reason of Disability, to carry out reasonably assigned duties or
instructions consistent with the titles of Chief Executive Officer (provided
that material failure to carry out reasonably assigned duties shall be deemed to
constitute Cause only after a finding by the Board of Directors, or a duly
constituted committee thereof, of material failure on the part of the Executive
and the failure to remedy such performance to the Board's or the committee's
satisfaction within 30 days after delivery of written notice to the Executive of
such finding).
(ii) Upon termination of this Agreement for Cause, the Company
shall have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but unpaid
base salary, unpaid pro rata annual bonus and unused vacation days accrued
through the Executive's last day of employment with the Company. The Company
shall deduct, from all payments made hereunder, all applicable taxes, including
income tax, FICA and FUTA, and other appropriate deductions.
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(d) Change of Control. For purposes of this Agreement, "Change of
Control" means the occurrence of, or the Company's Board votes to approve: (A)
any consolidation or merger of the Company pursuant to which the stockholders of
the Company immediately before the transaction do not retain immediately after
the transaction, in substantially the same proportions as their ownership of
shares of the Company's voting stock immediately before the transaction, direct
or indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business entity; (B)
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than 50% of the voting stock of the Company.
(e) "Good Reason."
(i) At any time during the term of this Agreement, subject to the
conditions set forth in Section 12(e)(ii) below, the Executive may terminate
this Agreement and the Executive's employment with the Company for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean the occurrence
of any of the following events: (A) the assignment, without the Executive's
consent, to the Executive of duties that are significantly different from, and
that result in a substantial diminution of, the duties that he assumed on the
Effective Date; (B) the assignment, without the Executive's consent, to the
Executive of a title that is different from and subordinate to the title
specified in Section 2 above, provided, however, that the retention of another
executive as President and Chief Operating Officer shall not, in and of itself,
entitle the Executive to claim a termination for Good reason hereunder; (C) any
termination of the Executive's employment by the Company, other than a
termination for Cause, within 12 months after a Change of Control; (D) the
assignment, without the Executive's consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date within 12 months after a Change
of Control; or (E) material breach by the Company of this Agreement.
(ii) The Executive shall not be entitled to terminate his
employment with the Company and this Agreement for Good Reason unless and until
he shall have delivered written notice to the Company of his intention to
terminate this Agreement and his employment with the Company for Good Reason,
which notice specifies in reasonable detail the circumstances claimed to provide
the basis for such termination for Good Reason, and the Company shall not have
eliminated the circumstances constituting Good Reason within 30 days of its
receipt from the Executive of such written notice.
(iii) In the event that the Executive terminates this Agreement and
his employment with the Company for Good Reason, the Company shall pay or
provide to the Executive (or, following his death, to the Executive's heirs,
administrators or executors): (A) any earned but unpaid base salary, unpaid pro
rata annual bonus and unused vacation days accrued through the Executive's last
day of employment with the Company; (B) the Executive's full base salary through
the Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the value of vacation days that the Executive
would have accrued through the Scheduled Termination Date; (D) continued
coverage, at the Company's expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or, in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and (E) severance in an amount
equal to one year's base salary, as in effect immediately prior to the
Executive's termination hereunder. All payments due hereunder shall be made
within 45 days after the date of termination of the Executive's employment. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
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(iv) The Executive shall have no duty to mitigate his damages,
except that continued benefits required to be provided under Section
11(e)(iii)(D) shall be canceled or reduced to the extent of any comparable
benefit coverage offered to the Executive during the period prior to the
Scheduled Termination Date by a subsequent employer or other person or entity
for which the Executive performs services, including but not limited to
consulting services.
(f) Without "Cause."
(i) By The Executive. At any time during the term of this
Agreement, the Executive shall be entitled to terminate this Agreement and the
Executive's employment with the Company without Cause by providing prior written
notice of at least 90 days to the Company. Upon termination by the Executive of
this Agreement and the Executive's employment with the Company without Cause,
the Company shall have no further obligations or liability to the Executive or
his heirs, administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but unpaid
base salary, and unused vacation days accrued through the Executive's last day
of employment with the Company. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(ii) By The Company. At any time during the term of this Agreement,
the Company shall be entitled to terminate this Agreement and the Executive's
employment with the Company without Cause by providing prior written notice of
at least 90 days to the Executive. Upon termination by the Company of this
Agreement and the Executive's employment with the Company without Cause, the
Company shall pay or provide to the Executive (or, following his death, to the
Executive's heirs, administrators or executors): (A) any earned but unpaid base
salary, unpaid pro rata annual bonus and unused vacation days accrued through
the Executive's last day of employment with the Company; (B) the Executive's
full base salary through the Scheduled Termination Date (as the same may have
been extended through any extensions of this Agreement); (C) the value of
vacation days that the Executive would have accrued through the Scheduled
Termination Date; (D) continued coverage, at the Company's expense, under all
Benefits Plans in which the Executive was a participant immediately prior to his
last date of employment with the Company, or, in the event that any such Benefit
Plans do not permit coverage of the Executive following his last date of
employment with the Company, under benefit plans that provide no less coverage
than such Benefit Plans, through the Scheduled Termination Date; and (E)
severance in an amount equal to one year's base salary, as in effect immediately
prior to the Executive's termination hereunder. All payments due hereunder shall
be made within 45 days after the date of termination of the Executive's
employment. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
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13. Confidential Information.
(a) The Executive expressly acknowledges that, in the performance of his
duties and responsibilities with the Company, he has been exposed since prior to
the Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers ("Confidential
Information"). The term "Confidential Information" includes information or
material that has actual or potential commercial value to the Company, its
affiliates and/or its clients, business partners or customers and is not
generally known to and is not readily ascertainable by proper means to persons
outside the Company, its affiliates and/or its clients or customers.
(b) Except as authorized in writing by the Board, during the performance
of the Executive's duties and responsibilities for the Company and until such
time as any such Confidential Information becomes generally known to and readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients, business partners or customers, the Executive agrees to keep
strictly confidential and not use for his personal benefit or the benefit to any
other person or entity (other than the Company) the Confidential Information.
"Confidential Information" includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked "trade secret" or "confidential" or any similar legend:
(i) lists of and/or information concerning customers, prospective customers,
suppliers, employees, consultants, co-venturers and/or joint venture candidates
of the Company, its affiliates or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees, consultants
and/or co-venturers of the Company, its affiliates and/or its clients or
customers; (iii) non-public information proprietary to the Company, its
affiliates and/or its clients or customers, including, without limitation, cost
information, profits, sales information, prices, accounting, unpublished
financial information, business plans or proposals, expansion plans (for current
and proposed facilities), markets and marketing methods, advertising and
marketing strategies, administrative procedures and manuals, the terms and
conditions of the Company's contracts and trademarks and patents under
consideration, distribution channels, franchises, investors, sponsors and
advertisers; (iv) proprietary technical information concerning products and
services of the Company, its affiliates and/or its clients, business partners or
customers, including, without limitation, product data and specifications,
diagrams, flow charts, know how, processes, designs, formulae, inventions and
product development; (v) lists of and/or information concerning applicants,
candidates or other prospects for employment, independent contractor or
consultant positions at or with any actual or prospective customer or client of
Company and/or its affiliates, any and all confidential processes, inventions or
methods of conducting business of the Company, its affiliates and/or its
clients, business partners or customers; (vi) acquisition or merger targets;
(vii) business plans or strategies, data, records, financial information or
other trade secrets concerning the actual or contemplated business, strategic
alliances, policies or operations of the Company or its affiliates; or (viii)
any and all versions of proprietary computer software (including source and
object code), hardware, firmware, code, discs, tapes, data listings and
documentation of the Company; or (ix any other confidential information
disclosed to the Executive by, or which the Executive obligated under a duty of
confidence from, the Company, its affiliates, and/or its clients, business
partners or customers.
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(c) The Executive affirms that he does not possess and will not rely
upon the protected trade secrets or confidential or proprietary information of
his prior employer(s) in providing services to the Company.
(d) In the event that the Executive's employment with the Company
terminates for any reason, the Executive shall deliver forthwith to the Company
any and all originals and copies of Confidential Information.
14. Non-Competition And Non-Solicitation.
(a) The Executive agrees and acknowledges that the Confidential
Information that the Executive has already received and will receive is valuable
to the Company and that its protection and maintenance constitutes a legitimate
business interest of the Company, to be protected by the non-competition
restrictions set forth herein. The Executive agrees and acknowledges that the
non-competition restrictions set forth herein are reasonable and necessary and
do not impose undue hardship or burdens on the Executive. The Executive also
acknowledges that the products and services developed or provided by the
Company, its affiliates and/or its clients or customers are or are intended to
be sold, provided, licensed and/or distributed to customers and clients in and
throughout the Mid-West (the "Geographic Boundary") (to the extent the Company
comes to own or operate any material asset in other areas of the United States
during the term of the Executive's employment, the definition of Geographic
Boundary shall be automatically expanded to cover such other areas), and that
the Geographic Boundary, scope of prohibited competition, and time duration set
forth in the non-competition restrictions set forth below are reasonable and
necessary to maintain the value of the Confidential Information of, and to
protect the goodwill and other legitimate business interests of, the Company,
its affiliates and/or its clients or customers.
(b) The Executive hereby agrees and covenants that he shall not, without
the prior written consent of the Company, directly or indirectly, in any
capacity whatsoever, including, without limitation, as an employee, employer,
consultant, principal, partner, shareholder, officer, director or any other
individual or representative capacity (other than a holder of less than one
percent (5%) of the outstanding voting shares of any publicly held company), or
whether on the Executive's own behalf or on behalf of any other person or entity
or otherwise howsoever, during the Executive's employment with the Company and
for a period equal to the greater of (i) one year (two years, if termination of
this Agreement or of Executive's employment is pursuant to Section 12(f)(i)
hereof) following the termination of this Agreement or of the Executive's
employment with the Company or (ii) the period during which the Executive
continues to receive his base salary pursuant to Sections 12(e) or 12(f)(ii) of
this Agreement following the termination of this Agreement and of the
Executive's employment, in the Geographic Boundary:
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(i) Engage, own, manage, operate, control, be employed by, consult
for, participate in, or be connected in any manner with the ownership,
management, operation or control of any business in competition with the
Business of the Company. The "Business of the Company" is defined as the
development and production of ethanol and other alternatives to petroleum-based
fuels within the Geographic Boundary.
(ii) Recruit, solicit or hire, or attempt to recruit, solicit or
hire, any employee, or independent contractor of the Company to leave the
employment (or independent contractor relationship) thereof, whether or not any
such employee or independent contractor is party to an employment agreement.
(iii) Attempt in any manner to solicit or accept from any customer
of the Company, with whom the Executive had significant contact during the term
of the Agreement, business of the kind or competitive with the business done by
the Company with such customer or to persuade or attempt to persuade any such
customer to cease to do business or to reduce the amount of business which such
customer has customarily done or is reasonably expected to do with the Company,
or if any such customer elects to move its business to a person other than the
Company, provide any services (of the kind or competitive with the Business of
the Company) for such customer, or have any discussions regarding any such
service with such customer, on behalf of such other person.
(iv) Interfere with any relationship, contractual or otherwise,
between the Company and any other party, including; without limitation, any
supplier, co-venturer or joint venturer of the Company to discontinue or reduce
its business with the Company or otherwise interfere in any way with the
Business of the Company.
15. Dispute Resolution. The Executive and the Company agree that any
dispute or claim, whether based on contract, tort, discrimination, retaliation,
or otherwise, relating to, arising from, or connected in any manner with this
Agreement or with the Executive's employment with Company shall be resolved
exclusively through final and binding arbitration under the auspices of the
American Arbitration Association ("AAA"). The arbitration shall be held in
Kansas City, Missouri. The arbitration shall proceed in accordance with the
National Rules for the Resolution of Employment Disputes of the AAA in effect at
the time the claim or dispute arose, unless other rules are agreed upon by the
parties. The arbitration shall be conducted by one arbitrator who is a member of
the AAA, unless the parties mutually agree otherwise. The arbitrators shall have
jurisdiction to determine any claim, including the arbitrability of any claim,
submitted to them. The arbitrators may grant any relief authorized by law for
any properly established claim. The interpretation and enforceability of this
paragraph of this Agreement shall be governed and construed in accordance with
the United States Federal Arbitration Act, 9. U.S.C. ss. 1, et seq. More
specifically, the parties agreE to submit to binding arbitration any claims for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, the New York State Human Rights Law, the New York
City Human Rights Law, and any other federal, state, or local law, regulation,
or ordinance, and any common law claims, claims for breach of contract, or
claims for declaratory relief. The Executive acknowledges that the purpose and
effect of this paragraph is solely to elect private arbitration in lieu of any
judicial proceeding he might otherwise have available to him in the event of an
employment-related dispute between him and the Company. Therefore, the Executive
hereby waives his right to have any such employment-related dispute heard by a
court or jury, as the case may be, and agrees that his exclusive procedure to
redress any employment-related claims will be arbitration.
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16. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall be in
writing and shall be deemed to have been duly given when personally delivered,
delivered by a nationally recognized overnight delivery service or when mailed
United States Certified or registered mail, return receipt requested, postage
prepaid, and addressed as follows:
If to the Company:
Alternative Energy Sources, Inc.
c/o McGuireWoods LLP
1345 Avenue of the Americas, Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq., Corporate Secretary
(000) 000-0000 (facsimile)
(000) 000-0000 (direct)
If to the Executive:
00000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
17. Miscellaneous.
(a) All issues and disputes concerning, relating to or arising out of
this Agreement and from the Executive's employment by the Company, including,
without limitation, the construction and interpretation of this Agreement, shall
be governed by and construed in accordance with the internal laws of the State
of Missouri, without giving effect to that State's principles of conflicts of
law.
(b) The Executive and the Company agree that any provision of this
Agreement deemed unenforceable or invalid may be reformed to permit enforcement
of the objectionable provision to the fullest permissible extent. Any provision
of this Agreement deemed unenforceable after modification shall be deemed
stricken from this Agreement, with the remainder of the Agreement being given
its full force and effect.
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(c) The Company shall be entitled to equitable relief, including
injunctive relief and specific performance as against the Executive, for the
Executive's threatened or actual breach of Sections 13 or 14 of this Agreement,
as money damages for a breach thereof would be incapable of precise estimation,
uncertain, and an insufficient remedy for an actual or threatened breach of
Sections 13 or 14 of this Agreement. The Executive and the Company agree that
any pursuit of equitable relief in respect of Sections 13 or 14 of this
Agreement shall have no effect whatsoever regarding the continued viability and
enforceability of Section 15 of this Agreement.
(d) Any waiver or inaction by the Company for any breach of this
Agreement shall not be deemed a waiver of any subsequent breach of this
Agreement.
(e) The Executive and the Company independently have made all inquiries
regarding the qualifications and business affairs of the other which either
party deems necessary. The Executive affirms that he fully understands this
Agreement's meaning and legally binding effect. Each party has participated
fully and equally in the negotiation and drafting of this Agreement. Each party
assumes the risk of any misrepresentation or mistaken understanding or belief
relied upon by him or it in entering into this Agreement.
(f) The Executive's obligations under this Agreement are personal in
nature and may not be assigned by the Executive to any other person or entity.
(g) This instrument constitutes the entire Agreement between the parties
regarding its subject matter. When signed by all parties, this Agreement
supersedes and nullifies all prior or contemporaneous conversations,
negotiations, or agreements, oral and written, regarding the subject matter of
this Agreement. In any future construction of this Agreement, this Agreement
should be given its plain meaning. This Agreement may be amended only by a
writing signed by the Company and the Executive.
(h) This Agreement may be executed in counterparts, a counterpart
transmitted via facsimile, and all executed counterparts, when taken together,
shall constitute sufficient proof of the parties' entry into this Agreement. The
parties agree to execute any further or future documents which may be necessary
to allow the full performance of this Agreement. This Agreement contains
headings for ease of reference. The headings have no independent meaning.
(i) THE EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO
THIS AGREEMENT AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION
THEREOF. THIS AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY
BOTH PARTIES.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the day and year first above written.
EXECUTIVE ALTERNATIVE ENERGY SOURCES, INC.
___________________________ By: __________________________________
Xxxx Xxxxxx Name:
Title:
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EXHIBIT A
ANNUAL PERFORMANCE TARGETS
[To Be Discussed]
