EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of April 26th, 2010
by and between Xxxxxxx X. Xxxxxxxx, a resident of New York (the
"Employee") and Iron Eagle Group, Inc. a Delaware corporation ("Iron
Eagle" or the "Company"). Jointly referred to herein, Employee and
Company are acknowledged to be (the "Parties"). Capitalized terms used
in this Agreement have the meanings set forth within this Agreement.
WHEREAS, the Company is engaged in the business of acquisition of and
management of construction and construction-related companies (the
"Business").
WHEREAS, the Company desires to employ Employee and Employee desires to
be employed by the Company upon the terms and conditions hereinafter
set forth.
WHEREAS, this Agreement contains the entire understanding of employment
with the Company and supersedes all discussions, proposals or prior
agreements, written or oral, and all other communications relating to
the subject matter hereinafter set forth.
WHEREAS, the provisions set out in this Agreement are to be interpreted
fairly between Employee and Company and not in favor or against either
party.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the
parties, subject to the terms and conditions set forth herein, agree as
follows:
1. Confirmation and Description of Duties
This Agreement confirms that you are the Chief Executive Officer
("CEO") of Iron Eagle as of the April 26th, 2010 (the "Start Date"). The
Company's corporate office will be in New York, New York. Employee's
satellite office will be in Manlius, New York where Employee can spend
significant amount of time if Employee wishes. Employee acknowledges
that Employee may be required to travel frequently. Employee duties of
CEO will be comparable to those at similarly situated companies
including, but not limited to, creating executive strategy, capital
raising, communicating with investors, targeting, conducting due
diligence, and executing the acquisition of companies that fit the Iron
Eagle's business model and then becoming responsible for the management
of those companies. ("Employee's Duties"). Employee will report to the
Board of Directors of the Company ("Board"). In addition, Employee will
also be responsible for such other duties that may be assigned to
Employee from time to time by the Board. As part of Employee stated
duties, Employee agrees to meet quarterly (every three months) with the
Board, either in person or by teleconference to review the Company's
progress, direction, strategy and performance. Employee agrees to
serve at the behest of the Board.
B. Employee agrees to devote all of Employee's business time,
attention and energies to the performance of Employee's Duties with the
Company. This does not however preclude Employee from engaging in
managing Employee's own investments or engaging in any other specific
activity, provided it does not interfere with Employee's Duties and
that Employee discloses the specific activity to the Company. Employee
represents that there is no prohibition that will prevent Employee now
or in the future from working for Company as an employee.
C. Employee agrees to comply with all Company policies and
procedures in effect as of the Start Date as well as any modifications
or additions to those policies and procedures. This will include by way
of example and those contained in an employee handbook or policy manual
that is presently under development. Parties understand however, that
if there is a conflict between any policy or procedure and any
provision contained in this Agreement, the provisions contained in this
Agreement shall prevail.
2. Term
The employment arrangement outlined in this Agreement shall be for a
thirty (30) months term beginning on the Start Date. Unless terminated
in accordance with the terms set forth in this Agreement, Employee
notifies the Company or the Company notifies Employee within three
months of the third anniversary of the Start Date that one Party does
not wish to renew the arrangements, the employment arrangements set
forth in this Agreement shall renew themselves for successive one (1)
year terms in perpetuity. As part of stated Term, Employee agrees to
meet quarterly (every three months) with the Board, either in person or
by teleconference to review the Company's progress, direction, strategy
and performance. Employee agrees to serve at the behest of the Board.
3. Termination
A. By Company
Company will be able to terminate the arrangement contained in this
Agreement with or without cause upon written notice. Termination
without Cause requires three months advance written notice. Termination
for Cause requires at least twenty (20) days advance written notice
with Company specifying the substantial breach and the Employee has not
cured the breach within that 20 day period. With respect to termination
by Company, "Cause" means formally charged with or conviction or
pleading no contest to any felony, use of Company property in
connection with any form of pornography, sexual harassment, assault of
any Company related individual, commission of embezzlement, fraud,
substantial violation of any Company policy or procedure or substantial
breach of the Provisions of this Agreement and such violation causes
material damage to Company, financial or otherwise. Notwithstanding the
foregoing, an allegation is sufficient to constitute Termination for
Cause, as considered by the Board. Cause does not require an actual
conviction.
B. Termination by Employee
Employee may terminate Employee's relationship with Company as an
employee with or without cause upon written notice. Termination without
Good Reason requires two month written notice. Termination for Good
Reason can be immediate following written notice. With respect to
termination by Employee, the term "Good Reason" means any substantial
breach of the provisions in this Agreement by the Company, existence
of a hostile work environment, or Employee's constructive termination
prior to any actual termination. In the event of any breach for Good
Reason, Employee will not be able to terminate until Employee has given
the Company at least 30 days advance written notice specifying the
substantial breach and the Company has not cured the breach within that
30 day period.
C. Death or Disability Termination
Employment will automatically terminate in the event of Employee's
death or Employee's Permanent Disability. For purposes of this
Agreement, "Permanent Disability" shall mean Employee's inability to
perform any of the significant aspects of Employee's job for a period
of at least six months as well as satisfaction of the definition of
total disability under the definition found in the Social Security laws
as determined by a licensed physician. If there is ever any issue
relating to Permanent Disability, Employee agrees upon the request of
the Company to be examined by a licensed medical doctor selected by the
Company within fifty (50) miles of Employee's residence. The
determination of such professional shall be determinative if Employee
has a Permanent Disability.
D. Return of Property upon Termination
Following termination initiated by Employee or the Company whenever
occurring, Employee agrees Employee will promptly return all Company
owned or leased materials, supplies, and equipment in good condition,
less normal wear and tear. Upon termination, Employee agrees Employee
will promptly return all material affecting or relating to the business
of Company that is or was in Employee's control. Upon termination,
other than any accrued and unpaid compensation and reimbursement of
expenses otherwise payable in accordance with the provisions of this
Agreement, there will be no termination benefits other than what is
described below.
4. Termination Benefits
Upon termination by the Company for Cause or Employee's voluntary
termination without Good Reason, Employee will receive a) three (3)
months of Base Salary if such termination occurred within one (1) year
of the signing of this Agreement or b) nine (9) months of Base Salary
if such termination occurred over one (1) year from the signing of this
Agreement. In addition, Employee shall receive any accrued and unpaid
compensation salary and reimbursement of expenses otherwise payable in
accordance with the provisions of this Agreement, and no other
termination benefits.
5. Compensation
Notwithstanding the following paragraphs, Employee and Company agree
that Employee's compensation will accrue until either 1) the Company
acquires a target company or companies with a combined 2009 EBITDA of
$4.0 million or 2) the Company raises at least $10 million from
investors. ("Closing"). The date of the acquisition is the "Closing
Date".
Base Salary. The Company will pay Employee an annual gross base salary
of $300,000.00 ("Base Salary") as defined below. The Company agrees to
review Employee's salary at least annually as of each anniversary of
the Start Date and make adjustments upwards as necessary to reflect
increases in the cost of living as well as performance. The amount of
any such increase if any; shall be at the sole discretion of the Board.
Any actual payments of salary or bonuses made to Employee will be net
of any governmental applicable taxes and fees that Company acting in
good faith and its sole discretion determines need to be deducted from
payments to Employee.
Cash Base Salary. The Company will pay Employee an annual gross base
salary in cash of $175,000.00 ("Cash Base Salary") payable at least
semi-monthly.
Equity Base Salary. The Company will pay Employee an annual gross base
salary in equity of $125,000.00 ("Equity Base Salary"). This will be
issued to Employee at least annually and will vest semi-monthly over
the year.
B. Bonuses. At the sole discretion of the Board, Employee will be
eligible to receive a cash and equity bonus of up to 100% of Base
Salary each year. The relative percentage of cash and equity in the
bonus will be similar to the cash and equity mix in the Base
Compensation. The Bonuses will be based upon actual performance of the
Company as determined by the Board. The timing, amount and payment
terms of any such bonus if granted shall be at the sole discretion of
the Board.
C. Options. The Board will create a Compensation Committee that will,
in conjunction with the executive management, create an option package.
The Compensation Committee will make annual stock option grant awards
pursuant to Company policies and guidelines, based on Employee's
service to the Company and overall Company performance criteria. The
timing, amount and dispersal of the Options granted shall be at the
sole discretion of the Board and based on Employee annual review.
6. Personal Time Off, Holidays and Employee Benefits
A. Employee will receive a total of twenty (20) days off each year
that includes vacation, personal time off and sick leave ("PTO") from
Company. For 2010, independent of accrual, Employee shall receive 20
PTO days. Any vacation shall be scheduled with the approval of the
Chief Executive Officer. Employee will accrue PTO as Employee works,
based on a pay period basis. Any unused PTO will accrue to a maximum
of thirty (30) days after which Employee will not accrue additional PTO
until days are used. No more than ten (10) days PTO will carry over on
an annual basis. Upon termination for any reason including non-
renewal, all unused and accrued PTO allowable under the terms of the
Agreement will be paid out at Employee's then prevailing salary. The
Company will have ten (10) holidays to be agreed upon by the Board and
Employee.
B. Employee shall be eligible to participate in any Company employee
benefit or Company employee welfare plan as such terms are defined
under the Employee Retirement and Income Security Act of 1974 as
amended, as well as any stock option or stock purchase plan offered by
the Company to employees provided Employee satisfies all of the
applicable requirements in each respective program. Such employee
benefits and employee welfare plans shall include medical, dental,
vision, flexible spending accounts, life insurance and similar plans
the Company maintains from time to time.
C. Company makes no representation or warranty that any employee
benefit plan, any employee welfare plan, employee discount or any other
employee benefit as in effect will not be modified or even continued in
the future.
8. Reimbursement of Expenses and Allowances
A. The Company will pay Employee $150.00 per month cell phone
allowance. This allowance is in lieu of reimbursement for any cell
phone telephone calls and any other cell phone related expense.
Parties agree that excluding the $150.00, Employee will not be
reimbursed for any cell phone related expense. In addition, Employee
will be reimbursed for Blackberry that will be used for the Business.
B. Employee will be responsible for obtaining a suitable computer and
for internet access.
C. Excluding the items described in subparagraphs A to B, Employee
will be reimbursed for all reasonable and appropriately substantiated
business related out-of-pocket expenses incurred by Employee at the
request of, and subject to the authorization of the Board This will
include meal expenses while staying in the accommodation close to
Company location. With respect to those expenses, Employee agrees that
the per meal expense shall be limited to $15.00 for breakfast, $15.00
for lunch and $30.00 for dinner or a total per diem amount of $60.00 a
day. Any expenses in excess of $2,000.00 will require advance written
authorization of the CFO as a condition of reimbursement. In order to
receive reimbursement, Employee will be required to submit an expense
report that includes all receipts for expenses incurred over $50.00.
Upon receipt of the expense report, Employee's expense reimbursement
will be processed in accordance with the Company's normal accounting
procedures as modified from time to time. Employee understands and
agrees that Company is in "start-up" mode and all expenses must be kept
to a minimum and Employee is solely responsible for any "upgrade"
related to any expense.
9. Modifications
No modification or alteration of any part of this Agreement will be
effective unless it is made in writing and signed by Employee and the
Chairman of the Board and approved by the Board. The provisions of
this Agreement are binding on all assigns and successors in interest.
Since employment involves personal services, we agree that neither
party may assign their rights or obligations hereunder.
10. Governing Law
All the provisions in this Agreement will be governed by and construed
in accordance with the laws of the State of New York without giving any
force or affect to any conflict of laws provisions.
11. Dispute Resolution
A. Subject to the exceptions noted in this Paragraph, if Company and
Employee are unable to resolve any dispute on their own, we agree to
resolve the dispute in final and binding arbitration in front of one
arbitrator expert in areas relating to the dispute from the Judicial
Arbitration and Mediation Service ("JAMS") in accordance with their
then current employment arbitration rules. The venue for the
arbitration shall be New York City, New York.
B. Excluding any delay caused by JAMS, any arbitration contemplated
must be completed within 90 days of the filing of the arbitration
demand with JAMS. The arbitration hearing must be completed within a
single day and the arbitrator must provide a written opinion specifying
the reasons for the decision in writing within 10 business days of the
arbitration hearing.
C. This provision is self executing and in the event that either
party fails to appear at any properly noticed arbitration proceeding,
an award may be entered against such party notwithstanding said failure
to appear. Any arbitration award shall be enforceable by any court of
competent jurisdiction.
D. Notwithstanding the foregoing, any claim relating to the validity
of any Confidential Information or any other proprietary technology or
intellectual property shall not be determined by arbitration, but only
by a Federal District Court located in New York City, New York. We
also agree that any breach of the obligations under this Agreement
which relates to proprietary rights or Confidential Information or
which is otherwise not subject to remedy by monetary damages that will
cause irreparable harm will be entitled to injunctive relief in
addition to all other remedies provided in this Agreement or available
at law, in any court of competent jurisdiction.
E. If Employee is the prevailing party, Company will reimburse
Employee for Employee's legal fees. Company will pay for the actual
cost of arbitration.
F. Parties agree that any claim for arbitration must be submitted to
arbitration within the earlier of 12 months of termination of the
termination date of employment or 12 months from the date of
discovery. Any claim submitted beyond this period, Parties agree is
void.
G. Employee agrees that the provisions of this Paragraph will apply
if Employee has any dispute with any current or former Company employee
or board member relating directly or indirectly to Employee's
employment with the Company.
H. This Paragraph will survive termination of this Agreement.
12. Confidentiality
A. Employee acknowledges the private and confidential nature of the
Confidential Information Employee has already been exposed to and will
be exposed to in the future.
B. For purposes of this Agreement, the term "Confidential
Information" means business information of any kind of Company or any
organization under common ownership or affiliated with Company.
Confidential Information includes all Derivatives that were previously
furnished or may be furnished to Employee in the future. Confidential
Information may be furnished orally, visually, in writing,
electronically, in tangible or intangible form. It includes but is
not limited to existing or potential patents, copyrights, trade
secrets, proprietary information, business plans, financial
information, techniques, schematics, blueprints, records, prototypes,
sketches, drawings, models, inventions, know-how, processes, apparatus,
equipment, algorithms, software programs, source documents, formulae,
methods, data, descriptions relating to current, future, and proposed
products and services, information concerning research, experimental
work, development, design details, specifications, engineering,
procurement requirements, purchasing, manufacturing, lists of current
and potential customers, agents and suppliers, business forecasts,
sales and merchandising, and marketing plans. Confidential Information
of any third party who may disclose it to Company is also included in
the basic definition. Confidential Information does not include
information Employee legally knows at the time of disclosure,
information that is publicly available, information that becomes
available on a non-confidential basis from a person not known by it to
be bound by a confidentiality agreement or who is not prohibited
contractually or otherwise from transmitting the information.
C. The term "Derivative" referred to above means (a) for copyrightable
or copyrighted material, any translation, abridgement, revision or
other form in which an existing work may be recast, transformed or
adapted; (b) for patentable or patented material, any improvement; and
(c) for material protected by trade secret, any new material derived
there from, including new items protect-able under copyright, patent
and/or trade secret laws.
D. Employee agrees that, without express written authorization from
Company, Employee will not, either during or following the term of this
arrangement, directly or indirectly, disclose to any person other than
the authorized agents or employees of Company as the case may be with
respect to the source of the Confidential Information or use or convey
to another for use, any Confidential Information.
E. These confidentiality requirements including the payment of
penalties shall survive termination of all of the provisions contained
in this Agreement and continue in effect as long as any information
remains Confidential Information.
13. Proprietary Rights and Inventions
A. Employee will be providing Employee's services under the
provisions of this Agreement on a "Work for Hire" basis. Company will
have all rights of ownership in all deliverables all other works
developed or resulting from services Employee has already provided to
Company or will provide to Company in the future provided the
underlying intellectual property relates directly or indirectly to the
Company. This includes by way of example and not limitation any
creation that can be characterized as something that can be protected
by a patent, a copyright, a trademark or a trade secret. We
acknowledge that customer lists and customer prospects developed for
the Company as well as the formula or methodology would be trade
secrets of the Company. Employee will assign Employee's worldwide
right, title and interest in and to any and all creations,
deliverables, modifications, enhancements, improvements, and derivative
works to the Company or its assignee. If any rights are not assignable
for any reason, then Employee agrees to grant the Company or its
assignee a worldwide, perpetual, unrestricted, royalty-free, fully paid
up, exclusive license, including the right to grant and authorize
sublicenses, under all patent rights, copyrights, trade secrets and
other intellectual property rights in or to the non-assignable subject
matter to make, have made, use, sell, offer for sale, and import any
and all products, services or components; practice any method or
process; copy, modify, have modified, create and have created
derivative works of the non-assignable subject matter; publicly display
and distribute the non-assignable subject matter and any modifications
or derivative works thereof; and otherwise exploit the non-assignable
subject matter for any and all purposes. This Article will survive
termination.
B. In connection with the services Employee will provide to Company
Employee agrees not use the Confidential Information of any third party
without their written consent.
C. To the extent Company seeks to protect any intellectual property
by obtaining, patents, copyrights, trademarks, service xxxx protection
or simply protecting intellectual property as a trade secret, Employee
agrees to fully cooperate with Company and its agents even if Employee
is no longer employed by Company.
14. Insurance. Upon the Closing, Company will provide directors and
officer's liability insurance coverage for Employee acting in his
capacity as an officer of the Company and/or any of its Affiliates.
Such insurance shall be at least similar or more protective of Employee
compared to companies that are similarly situated to the Company. Upon
the Closing, the CFO is authorized, by the Company and Employee, and
potentially may endeavor to cause Company to take out a "Key Man"
insurance policy on Employee and other senior management executives.
15. Restrictions of Competitive Activities
A. Non-Competition Covenant. Employee agrees that during employment
with the Company and for the period of eighteen (18) months following
the date of this Agreement, and twelve (12) months following cessation
of employment for any reason, whichever is later, Employee will not
compete with the Company by performing activities of the type performed
by Employee while at the Company. This includes, but is not limited to
working in the commercial construction industry or federal construction
contracting industries. Likewise, Employee will not perform activities
of the type which in the ordinary course of business would involve the
utilization of Confidential Information or trade secrets.
B. Non-Solicitation Covenant. Parties agree that Company and Company
employees, consultants, clients, customers and vendors are valuable
assets and are difficult to replace. While the provisions of this
Agreement are in effect and for a period of thirty-six (36) months
after termination, Employee agrees that Employee will not directly or
indirectly solicit services or employment or in any manner persuade any
employees, consultants, vendors or customers of Company or its parent
company from discontinuing that person or entity's relationship with
the Company as an employee, contractor, vendor or customer.
C. Ownership of Competitive Businesses. Notwithstanding the
foregoing, Employee may own, directly or in directly, solely as an
investment, up to five percent (5%) of any class of Publicly Traded
Securities of any person or entity which owns a competitive business.
For the purposes of this Agreement, the term "Publicly Traded
Securities" shall mean securities that are traded on a national
securities exchange or listed on the National Association of Securities
Dealers Automated Quotation System.
D. Non-disparagement. The Parties acknowledge the importance of
maintaining the privacy of Company and all individuals who have, will
have or have had any relationship with such organizations as a current
or former employee, independent contractor, officer or director or
manager of such entities (the "Privacy Group"). For a period of sixty
(60) months after Termination, Employee will not disparage the Privacy
Group in connection with interviews, books and articles appearing in
media, or participation on a xxxxxxx xxxxxxxxxx show where any details
other than the length of Employee's employment and job title are
discussed. Employee agrees to pay all actual damages as well as all
related costs Company may incur without limitation in connection with
any investigation related to Employee's violation of this provision if
Employee violates this provision of this Agreement. Moreover, Parties
agree that the limitations and restrictions contained in this
subparagraph are part of the bargained for exchange and are reflected
in the consideration of the Parties under this Agreement.
E. This Paragraph will survive termination of this Agreement.
16. Severability
If a court or arbitrator finds any provision of this Agreement
unenforceable, the remainder of the Agreement will be unimpaired. Any
unenforceable provisions determined after all appeals are completed,
will he replaced by a mutually acceptable provision that comes closest
to the intention at the time the original provision was agreed upon.
17. Waiver
Failure at any time to require strict performance will not waive or
diminish rights thereafter to demand strict compliance. Waiver of any
default will not waive any other or similar default.
18. Notice
Any notice given under this Agreement shall be in writing and delivered
personally. Written notice shall be sent via next-day delivery or
facsimile and by registered or certified mail, postage prepaid, return
receipt requested. All notices shall be effective when first received
at the following addresses except that any notice of change of address
will be deemed effective only upon receipt by the party to whom it is
directed:
If to Company:
Xx. Xxxxx X. Xxxxxxx
Iron Eagle Group, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
If to Employee:
Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
19. Facsimiles and Counterparts
Facsimile signatures will be treated as original signatures. Employee
and Company acknowledge that there may be two or more executed copies
of this Agreement. Accordingly, Employee and Company each agree to
treat each such copy as if it were the sole original.
The undersigned on behalf of themselves or on behalf of the party
represent agree to all of the terms and conditions set out in this
Agreement of eleven (11) pages including this acknowledgement pages.
In the case of a representative party, they acknowledge they are
authorized to execute this Agreement and bind their party. The
undersigned acknowledge that they have had an opportunity to review the
contents of this Agreement and discuss any questions they may have.
The undersigned further represent that they are signing below
voluntarily.
IN WITNESS WHEREOF, the parties have the authority and have caused this
Agreement to be executed as of the day and year first written above.
By: /s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, an individual
Date: 4/26/10
IN WITNESS WHEREOF, the parties have the authority and have caused this
Agreement to be executed as of the day and year first written above.
Iron Eagle Group, Inc.
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
Date: 4/26/10
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