EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of June 14,
2005, by and between Garb Oil and Power Corporation, a Utah corporation (the
"Company"), and XXXXX X. XXXX, an individual (the "Executive").
In consideration of the promises and mutual covenants contained herein,
the parties hereto agree as follows:
1. Employment; Location. The Company hereby employs Executive and
Executive hereby accepts such employment in Salt Lake County in the State of
Utah or in such other location as may be mutually agreed between the parties.
2. Term. The Company agrees to employ Executive and Executive agrees to
accept employment with the Company for a term (the "Term") commencing on the
date hereof and continuing for a one-year period thereafter, unless earlier
terminated pursuant to Section 6 below.
3. Duties and Authorities. During the Term (as defined below):
3.1 Executive shall be appointed and serve as the Chief
Executive Officer and President of the Company. To the extent so elected by the
shareholders of the Company, Executive shall also serve as a director of the
Company without any additional compensation there for other than as specified in
this Agreement. If appointed or requested by the Company's Board of Directors
(the "Board"), the Executive shall also serve during all or any part of the Term
as any other officer (so long as Executive remains employed in the position of
Chief Executive Officer and President of the Company) of the Company or any
subsidiary thereof without any additional compensation there for other than as
specified in this Agreement. Executive shall have responsibilities, duties and
authority reasonably accorded to and expected of such positions and such other
responsibilities and duties as required by the Bylaws of the Company and as
reasonably assigned by the Board from time to time.
3.2 Except as otherwise expressly provided herein, Executive
shall diligently execute such duties and shall devote his full time, skills and
efforts to such duties, subject to the general supervision and control of the
Board. Except as otherwise expressly approved by the Board, Executive will not
engage in any outside activities that will impair his ability to devote his
full-time efforts to the performance of his duties under this Agreement.
Notwithstanding the above to the contrary, the Company acknowledges and agrees
that Executive may from time to time, on a limited basis and at reasonable times
so as not to distract materially from his responsibilities with the Company,
direct and work on certain affairs of companies with which Executive was
involved prior to the date hereof (individually and collectively, "Preexist
Business Opportunities").
4. Compensation and Benefits. The Company shall pay Executive, and
Executive accepts as full compensation for all services to be rendered to the
Company, the following compensation and benefits:
4.1 Base Salary. The Company shall pay Executive a salary of
One Hundred Fifty Thousand Dollars ($150,000.00) per year. Salary shall be
payable in equal installments twice monthly or at more frequent intervals in
accordance with the Company's customary pay schedule, subject to such increases
as the Board may determine from time to time in its sole discretion.
Notwithstanding the foregoing, Executive shall not be entitled to the payment or
accrual of salary until the Company has the financial resources to pay his
salary in the stated amount, which determination shall be made by the Board.
4.2 Bonus Compensation. Executive shall also be eligible,
during the Term, to receive such cash bonuses and additional compensation
(collectively, the "Bonus Compensation"), as the Board may, in its discretion,
approve. The Bonus Compensation shall be payable and issued in accordance with
the applicable payroll option and/or other compensation policies and plans of
the Company as from time to time in effect.
4.3 Additional Benefits. Executive shall be permitted, during
the Term, if and to the extent eligible, to participate in any group life,
hospitalization or disability insurance plan, health or dental program, pension
plan, similar benefit plan or other so-called "fringe benefits" of the Company
in accordance with the rules (if any) established by the Board in its discretion
for participation in any such plans as may be in effect from time to time.
4.4 Vacation. Executive shall be entitled to an aggregate of
up to four (4) weeks leave for vacation each calendar year at full pay.
Executive agrees to give reasonable notice of his vacation scheduling requests,
which shall be allowed subject to the Company's reasonable business needs.
4.5 Deductions. The Company shall have the right to deduct
from the compensation due to Executive hereunder any and all sums required for
social security and withholding taxes and for any other federal, state or local
tax or charge which may be hereafter enacted or required by law as a charge on
the compensation of Executive.
5. Business Expenses. Executive may incur reasonable, ordinary and
necessary business expenses in the course of his performance of his obligations
under this Agreement, including expenses for travel, food and entertainment. The
Company shall reimburse Executive for all such business expenses if (a) such
expenses are incurred by Executive in accordance with the Company's business
expense reimbursement policy, if any, as may be established and modified by the
Company from time to time, and (b) Executive provides to the Company a record of
(1) the amount of the expense, (2) the date, place and nature of the expense,
(3) the business reason for the expense and (4) all supporting documentation as
may be required from time to time by the relevant tax laws or regulations.
6. Termination.
6.1 Termination for Cause. The Term and Executive's employment
hereunder shall be terminable for Cause (as defined below) upon written notice
from the Company to Executive. As used in this Agreement, "Cause" shall mean one
of the following: (a) a material breach by Executive of the terms of this
Agreement (including without limitation habitual neglect of or deliberate or
intentional refusal to perform any of his material duties and obligations under
this Agreement) other than due to Executive's death or Disability (as defined in
Section 6.3 below), not cured within two (2) weeks from receipt of notice from
the Board of such breach, (b) material wrongful misappropriation of any money,
assets or other property of the Company or any subsidiary or affiliate of the
Company, (c) the conviction of Executive for any felony or a crime involving
moral turpitude, or (d) Executive's chronic alcoholism or chronic drug
addiction.
6.2 Termination without Cause. The Company may terminate the
Term at any time for any reason or no reason, as determined by the Board,
provided the Company continues to pay Executive's full base salary, any Bonus
Compensation already resolved by the Board, and other benefits as provided in
Sections 4.1 through 4.3 for the period equal to the remaining portion of the
Term.
6.3 Termination for Death or Disability. In accordance with
applicable law, the Board may terminate the Term for the death or Disability (as
defined below) of Executive. As used in this Agreement, "Disability" shall mean
Executive is unable to perform (except due to chronic alcoholism or chronic drug
addiction) the essential functions of his job and render services of the
character previously performed in the ordinary course and that such inability
continues for a period of at least three (3) consecutive months (or for shorter
periods totaling more than three (3) months during any period of twelve (12)
consecutive months). Termination resulting from Disability may only be effected
after at least thirty (30) days written notice by the Company of its intention
to terminate Executive's employment. Executive shall receive full compensation,
benefits, and reimbursement of expenses pursuant to Sections 4 and 5 above from
the date the Disability begins until the date which is six months following the
notice of termination under this Section 6.3, and no other amounts shall be
payable (except pursuant to any Company disability or health plan in which
Executive is then enrolled). In the event of Executive's death, the Company
shall pay his estate full compensation, benefits and reimbursement of expenses
pursuant to Sections 4 and 5 above through the date of such death and shall
continue any health benefits in which Executive's family was participating at
the time of such death for a period of not less than (a) the then otherwise
remaining portion of the Term or (b) such other period as may be required by
applicable law.
6.4 Termination by Executive. Executive may terminate the Term
and his employment with the Company and resign from any and all positions as
officer or director of the Company and/or its subsidiaries only for Good Reason
(as defined below). As used in this Agreement, "Good Reason" shall mean any of
the following: (a) material breach of this Agreement by the Company that
continues following not less than two (2) weeks written notice from Executive of
such breach, or (b) a requirement by the Company that the Executive relocate
and/or perform a substantial portion of his work from a location outside of the
Salt Lake City metropolitan area. If Executive terminates for Good Reason,
Executive shall be entitled to all amounts due and payable through the
termination date under Sections 4 and 5 above and the severance payments
described in Section 6.2, and no other amounts shall be payable. In order for
Executive to terminate his employment without Good Reason, Executive shall give
the Company ninety (90) days written notice prior to such termination, in which
event Executive shall be entitled to all amounts due and payable through the
termination date under Sections 4 and 5 above but none of the severance payments
described in Section 6.2 shall be payable.
6.5 Effect of Termination. In the event Executive's employment
is terminated, all obligations of the Company and all obligations of Executive
shall cease except that the terms of this Section 6 and of Sections 7 through 18
below shall survive such termination. Executive acknowledges that, upon
termination of his employment, he is entitled to no other compensation,
severance or other benefits other than those specifically set forth in this
Agreement. The provisions of this Section 6 are intended to be and are exclusive
and in lieu of any other rights or remedies to which Executive may otherwise be
entitled, either at law, tort or contract, in equity, or under this Agreement,
as a result of any termination of Executive's employment.
7. Confidential Information. Executive acknowledges that during his
employment or consultancy with the Company he will develop, discover, have
access to and/or become acquainted with technical, financial, marketing,
personnel and other information relating to the present or contemplated products
or the conduct of business of the Company which is of a confidential and
proprietary nature ("Confidential Information"). Executive agrees that all
files, records, documents and the like relating to such Confidential
Information, whether prepared by him or otherwise coming into his possession,
shall remain the exclusive property of the Company, and Executive hereby agrees
to promptly disclose such Confidential Information to the Company upon request
and hereby assigns to the Company any rights which he may acquire in any
Confidential Information. Executive further agrees not to disclose or use any
Confidential Information and to use his best efforts to prevent the disclosure
or use of any Confidential Information either during the term of his employment
or consultancy or at any time thereafter, except as may be necessary in the
ordinary course of performing his duties under this Agreement. Upon termination
of Executive's employment or consultancy with the Company for any reason, (a)
Executive shall promptly deliver to the Company all materials, documents, data,
equipment and other physical property of any nature containing or pertaining to
any Confidential Information, and (b) Executive shall not take from the
Company's premises any such material or equipment or any reproduction thereof.
8. No Conflicts. Executive hereby represents that, to the best of his
knowledge, his performance of all the terms of this Agreement and his work as an
employee or consultant of the Company does not breach any oral or written
agreement which he has made prior to his employment with the Company.
9. Equitable Remedies. Executive acknowledges and agrees that the
breach or threatened breach by him of certain provisions of this Agreement,
including without limitation Section 7 above, would cause irreparable harm to
the Company for which damages at law would be an inadequate remedy. Accordingly,
Executive hereby agrees that in any such instance the Company shall be entitled
to seek injunctive or other equitable relief in addition to any other remedy to
which it may be entitled.
10. Assignment. This Agreement is for the unique personal services of
Executive and is not assignable or delegable in whole or in part by Executive
without the consent of the Board or by the Company without the consent of
Executive.
11. Waiver or Modification. Any waiver, modification or amendment of
any provision of this Agreement shall be effective only if in writing in a
document that specifically refers to this Agreement and such document is signed
by the parties hereto.
12. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the parties hereto with respect to the specific
subject matter covered herein and therein and supersede all prior oral or
written understandings and agreements with respect to such specific subject
matter.
13. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain enforceable in full force and effect, and the court
making such determination shall modify, among other things, the scope, duration,
or geographic area of such affected provision to preserve the enforceability
thereof to the maximum extent then permitted by law.
14. Notices. All notices thereunder shall be in writing addressed to
the respective party as set forth below and may be personally served, sent by
facsimile transmission, sent by overnight courier service, or sent by United
States mail, return receipt requested. Such notices shall be deemed to have been
given: (a) if delivered in person, on the date of delivery; (b) if delivered by
facsimile transmission, on the date of transmission if transmitted by 5:00 p.m.
(Salt Lake City time) on a business day or, if not, on the next succeeding
business day; provided that a copy of such notice is also sent the same day as
the facsimile transmission by any other means permitted herein; (c) if delivered
by overnight courier, on the date that delivery is first attempted; or (d) if by
United States mail, on the earlier of two (2) business days after depositing in
the United States mail, postage prepaid and properly addressed, or the date
delivery is first attempted. Notices shall be addressed as set forth as set
forth on the signature page hereof, or to such other address as the party to
whom such notice is intended shall have previously designated by written notice
to the serving party. Notices shall be deemed effective upon receipt.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah, without reference to the choice
of law provisions thereof.
16. Attorneys' Fees. In the event an action or proceeding is brought by
any party under this Agreement to enforce or construe any of its terms, the
party that prevails by enforcing this Agreement shall be entitled to recover, in
addition to all other amounts and relief, its reasonable costs and attorneys'
fees incurred in connection with such action or proceeding.
17. Construction. Whenever the context requires, the singular shall
include the plural and the plural shall include the singular, the whole shall
include any part thereof, and any gender shall include all other genders. The
headings in this Agreement are for convenience only and shall not limit,
enlarge, or otherwise affect any of the terms of this Agreement. Unless
otherwise indicated, all references in this Agreement to sections refer to the
corresponding sections of this Agreement. This Agreement shall be construed as
though all parties had drafted it.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. Counterparts and
signatures transmitted by facsimile shall be valid, effective and enforceable as
originals.
IN WITNESS WHEREOF, Executive has signed this Agreement personally and
the Company has caused this Agreement to be executed by its duly authorized
representative.
"Company": "Executive":
Garb Oil and Power Corporation
By:_____________________________ _____________________________
Name:___________________________ Xxxxx X. Xxxx, individually
Title:__________________________
Address: Address:
Garb Oil and Power Corporation [Insert]
Attn: Board of Directors
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (801) ______
