Employment Agreement
AGREEMENT date January 1, 1999 (the Effective Date") by and between
Geotec Thermal Generators Inc., a Florida corporation, (hereinafter called the
"Company"or "Employer") and W. Xxxxxxx Xxxxx, a Florida resident (hereinafter
call the "Employee").
WHEREAS, Employer desires to employ Employee upon the terms and
conditions hereinafter set forth and Employee desires to accept employment upon
such terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to the
Employee"s employment by Employer.
NOW, THEREFORE, Employer hereby employs Employee and Employee hereby
accepts employment under the following terms and conditions:
1. EMPLOYMENT
Employer hereby employees Employee and Employee hereby accepts
employment by Employer, upon all the terms and conditions hereinafter set forth.
2. TERM
Subject to the provisions for earlier termination set forth in Section
9 hereof, this Agreement shall commence on the Effective Date, January 1, 1999,
and shall end five years later unless extended by both parties. Notwithstanding
any of the foregoing to the contrary, if this Employment Agreement is terminated
prior to the expiration of the Employment Term, a year shall mean, with respect
to the year during which termination occurs, the period commencing on the first
day of such year and ending as of the close of business of the day of
termination of Employee"s employment, and Employment Term shall mean the period
commencing on the Effective Date and ending as of the close of business of the
day of termination of Employee"s employment.
3. EMPLOYEE"S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that he is free to accept
employment with Employer as contemplated herein and has no other written or
oral obligations or commitments of any kind or nature which would in any way
interfere with
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his acceptance of his employment pursuant to the terms hereof or the full
performance of his obligations hereunder or the exercise of his best efforts in
his employment hereunder. Employee represents and warrants that he is not in
breach of any existing confidentiality or covenant not to compete agreements, if
any, the Employee may have executed with other third parties prior to the
Effective Date.
4. DUTIES AND EXTENT OF SERVICES
Employee shall be employed as the Employer"s Chief Executive Officer,
as such, shall, subject to the direction of the President, supervise the conduct
of all subordinates and daily operations and affairs within the Employer"s
position, consistent with the position of the Chief Executive Officer and
perform such other duties and responsibilities as may be assigned to the
Employee from time to time consistent with such title by the Board of Directors
or the President of the Employer.
Employee agrees to devote sufficient time, skill, attention and energy
diligently and competently to perform the duties and responsibilities assigned
to him hereunder or pursuant hereto. Employee shall use his best efforts to be
loyal and faithful at all times and constantly endeavor to improve his ability
and his knowledge of the business of Employer in an effort to increase the value
of his services for the mutual benefit of Employee and Employer.
5. COMPENSATION
Employee shall receive an annualized salary of $135,000 during the term
of this Agreement, payable to Honest Tee Trust. This annual salary shall be
increase to $250,000 if and when the Company shall obtain monthly sales equal or
greater than $5,000,000 per year. Employee is an agent of Honest Tee Trust, an
Irish Trust Based in Antigiua.
6. FRINGE BENEFITS AND EXPENSES
A. Employee shall be eligible (subject to the terms and conditions of
the particular plans and programs) to participate in such medical,
hospitalization, group health, accident, disability and life insurance programs
and plans, such pension, profit sharing,
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stock option, incentive compensation and stock purchase plans and such other
employee benefit programs to the same extent such plans and programs are made
generally available from time to time by Employer to all of its other
similarly-situated employees; provide, however, Employer shall be under no
obligation to make any such plans or programs available to its employees or
continue any which currently or in the future exist.
B. For the term of this Agreement, Employer shall provide an
automobile, and Employer will reimburse employee for related gas, maintenance
and insurance expense, for performance of Employee"s duties to Employer as
specified herein.
C. Other Expenses Employer shall reimburse Employee for his reasonable
out-of-pocket cost and expenses incurred in connection with the performance of
his duties and responsibilities hereunder. Reimbursement of such expenses shall
be subject to the submission by Employee of appropriate invoices, receipts and
other supporting documentation, consistent with Employer"s customary
reimbursement policies and procedures.
7. VACATIONS
Employee shall be entitled to normal three weeks vacation
taken by other similar members of management during each twelve-month period of
the Employment Term. Employee shall not be
entitled to be compensated for any unused vacation upon termination of the
Agreement. The periods during which Employee will be absent from work shall be
determined by Employee taking into account the needs of the Employer"s business
and shall be subject to the approval of the Executive Committee of the Company
(which shall not be unreasonably withheld).
8. FACILITIES
Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, supplies and personnel as it
reasonably determines is adequate for Employee"s performance of his duties and
responsibilities under this Agreement.
9. TERMINATION OF EMPLOYMENT
A. Termination Events. Notwithstanding any provisions of this
Agreement to the contrary, Employee"s employment may be terminated by Employer
with Cause (as hereinafter defined) effective upon the delivery of written
notice to Employee. In addition, Employee"s employment shall terminate (i) upon
Employee"s death or (ii) upon Employee becoming disabled (as hereinafter
defined).
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B. Definition of Disabled. For purposes of this Agreement,
Employee shall be deemed to be "Disabled" when, by reason of physical or mental
illness or of injury, he is unable to perform substantially all of the duties
and responsibilities required of him in connection with his employment
hereunder. No disability shall be deemed to exist until after Employee shall be
unable to perform his duties hereunder for ninety (90) consecutive days (the
"Disability Period"). If Employee shall have been under a disability but shall
have returned to work prior to the end of the Disability Period, any new
disability commencing within thirty (30) days of the termination of the prior
disability shall be a continuation of the prior disability, and the period of
all such disabilities shall be added together to determine whether, or how much
of, the Disability Period has elapsed.
C. Definition of Cause. For purposes of this Agreement,
"Cause" shall include, but not be limited to: (a) arrest or conviction for fraud
or criminal conduct (other than conviction of, or a pleas of guilty to, a
traffic violation); (b) habitual drunkenness or drug addiction; (c) fraud
against employer or embezzlement; (d) sanctions against Employee in his capacity
as an employee of Employer by regulatory agencies governing Employer or against
Employer because of wrongful acts or conduct of Employee; (e) material breach or
default by Employee of any of the terms or conditions of this Agreement; or (f)
the resignation or quitting of Employee prior to the end of the Employment Term
(in this last event, Employee"s employment shall be deemed terminated with Cause
on the date that he resigns or quits).
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. Confidential Information. Employee acknowledges that
Employee has been informed that it is the policy of Employer to maintain as
secret and confidential all information relating to (i) the financial condition,
businesses and interests of Employer and its affiliates, (ii) the systems,
know-how, products, services, costs, inventions, patents, patent applications,
formulae, research and development procedures, notes and results, computer
software programs, marketing and sales techniques and/or programs, methods,
methodologies, manuals, lists and other trade secrets heretofore and hereafter
acquired, sold developed and/or used by Employer and its affiliates and (iii)
the nature and terms of Employer"s and its affiliate"s relationships with their
respective customers, clients, suppliers, lenders, vendors, consultants,
independent contractors and employees (all such information being hereinafter
collectively referred to as "Confidential Information"), and Employee further
acknowledges that such Confidential Information is of great value to Employer
and its affiliates and, in and by reason and as a result of Employee"s
employment by Employer, Employee will be making use of, acquiring and/or adding
to such Confidential Information. Therefore, Employee understands that it is
reasonably
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necessary to protect Employer"s and its affiliates" trade secrets, good will and
business interests that Employee agree and, accordingly, Employee will not
directly or indirectly (except where authorized by the President of Employer for
the benefit of Employer and/or its affiliate(s) and/or as required in the course
of his employment) at any time hereafter divulge or disclose for any purpose
whatsoever to any persons, firms, corporations or other entities other than
Employer or its affiliates (hereinafter referred to collectively as "Third
Parties"), or use or cause or authorize any Third Parties to use, any such
Confidential Information, except as otherwise required by law.
2. Employer"s Materials. In accordance with the foregoing,
Employee furthermore agrees that (i) Employee will at no time retain or remove
from the premises of Employer or its affiliates any research and development
materials, drawings, notebooks, notes, reports, formulae, software programs or
discs or other containers of software, manuals, data books, records, materials
or documents of any kind or description for any purpose unconnected with the
strict performance of Employee"s duties with Employer and (ii) upon cessation or
termination of Employee"s employment with Employer for any reason, Employee
shall forthwith deliver or cause to be delivered up to Employer any and all
research and development materials, drawings, notebooks, notes, reports,
formulae, software programs or discs or other containers of software, manuals,
data, books, records, materials and other documents and materials in Employee"s
possession or under Employee"s control relating to any Confidential Information
or any property or information which is otherwise the property of Employer or
its affiliates.
11. COVENANT-NOT-TO-COMPETE
In view of the Confidential Information to be obtained by or
disclosed to Employee, because of the know-how acquired and to be acquired by
Employee, and as a material inducement to Employer to enter into this Agreement
and continue to employ Employee, Employee covenants and agrees that, so long as
Employee is employed by Employer and for a period of two (2) years after
Employee ceases for any reason to be employed by Employer, Employee shall not,
directly or indirectly (i) divert business from, (ii) solicit or transact any
business competitive with Employer or its affiliates with, or (iii) sell any
products or services sold or offered by Employer or its affiliates to, any
customer or former customer of Employer or its affiliates. In addition, Employee
covenants and agrees that, so long as Employee is employed by Employer and for a
period of two (2) years after Employee ceases for any reason to be employed by
Employer, Employee hereby agrees to refrain from, anywhere in the world, (the
"Geographical Area"), directly or indirectly owning, managing, operating,
controlling or financing, or participating in the ownership, management, control
or financing of, or being connected with or having an interest, in, or otherwise
taking any part as a stockholder, director, officer, employee,
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agent, consultant, partner or otherwise, in, any business competitive with that
engaged in or being developed by Employer or its affiliates during Employee"s
term of employment. Without limitation of the foregoing, Employer"s business is
acknowledged to include the development, manufacture and sale of rotary engines
and related technology. Employee acknowledges that Employer"s business is
anticipated to be international in scope, that a similar business could
effectively compete with Employer"s and its affiliates businesses from any
location in the world, and that, therefore, the restricted Geographical Area is
reasonable in scope to protect Employer"s and its affiliates" trade secrets and
legitimate business interests.
12. EMPLOYER"S REMEDIES FOR BREACH OF SECTIONS 10 & 11
Employee covenants and agrees that if Employee shall violate
or breach any of Employee"s covenants or agreements provided for in Section 10
and 11 hereof, Employer and/or its affiliates shall be entitled to an accounting
and repayment of all profits, compensation, commissions, remunerations, or
benefits which Employee directly or indirectly has realized or realizes as a
result of, growing out of or in connection with any such violation or breach. In
addition, in the event of a breach or violation or threatened or imminent breach
or violation of any provisions of Sections 10 or 11 hereof, Employer and/or its
affiliates shall be entitled to a temporary or permanent injunction or any other
appropriate decree of specific performance or equitable relief, without posting
of bond, from a court of competent jurisdiction in order to prevent, prohibit or
restrain any such breach or violation or threatened or imminent breach or
violation by Employee, by Employee"s partners, agents, representatives,
servants, employers or employees and/or by any third parties. Employer shall be
entitled to such injunctive or other equitable relief in addition to any damages
which are suffered, and the prevailing party shall be entitled to reasonable
attorney"s and paralegals" fees and costs and other costs incurred in connection
with any such litigation, both before and at trial and at all tribunal levels.
Resort by Employer and/or its affiliates to such injunctive or other equitable
relief shall not be deemed to waive or to limit in any respect any other rights
or remedies which Employer or its affiliates may have with respect to such
breach or violation.
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13. REASONABLENESS OF RESTRICTIONS
A. Reasonableness. Employee acknowledges that any breach or
violation of Sections 10 or 11 hereof will cause irreparable injury and damage
and incalculable harm to Employer and its affiliates and that it would be very
difficult or impossible to measure the damages resulting from any such breach or
violation. Employee further acknowledges that Employee has carefully read and
considered the provisions of Sections 10, 11 and 12
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hereof and, having done so, agrees that the restrictions and remedies set forth
in such Sections (including but not limited to, the time period, geographical
and types of restrictions imposed) are fair and reasonable and are reasonably
required for the protection of the business, trade secrets, interests and good
will of Employer and its affiliates.
B. Severability. Employee understands and intends that each
provision and restriction agreed to by Employee in Sections 10, 11, and 12
hereof shall be construed as separate and divisible from every other provision
and restriction and that , in the event that any one of the provisions of, or
restrictions in, Sections 10, 11 and/or 12 hereof shall be held to be invalid or
unenforceable, the remaining provisions thereof and restrictions therein shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable provisions or restrictions had not been included therein, and any
one or more of such valid provisions and restrictions may be enforced in whole
or in part as the circumstances warrant. In the event that any such provision
relating to time period and/or geographical and/or type of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum or
permissible time period, geographical area or type of restriction such court
deems reasonable and enforceable, said time period and/or geographical and/or
type of restriction shall be deemed to become and shall thereafter be the
maximum time period and/or geographical restriction and/or type of restriction
which such court deems reasonable and enforceable.
C. Survivability. The restrictions, acknowledgments,
covenants and agreements of Employee set forth in Sections 10, 11, 12, and 13 of
this Agreement shall survive any termination of this Agreement or of Employee"s
employment (for any reason, including expiration of the Employment Term).
14. EMPLOYEE"S DISCLOSURES AND REPRESENTATIONS AND WARRANTIES
Employee hereby acknowledges, represents and warrants to,
agrees with, Employer as follows:
(a) That Employee and his representatives and agents (i)
have received and read and are familiar with this Agreement, and (ii) are
familiar with the business and operations conducted and to be conducted by
Employer and the risks attendant thereto.
(b) That Employee and/or his representatives and agents
have had an opportunity to ask questions of and receive satisfactory answers
from Employer and/or a person or persons authorized to act on Employer"s behalf
concerning the terms and
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conditions of this Agreement, this transaction and Employer and its currently
contemplated business and operations.
(c) That Employee has been represented by such legal and
other professional advisors (if any), each of whom has been personally selected
by Employee, as Employee has found necessary to consult concerning the
transactions contemplated in or by this Agreement.
(d) That Employee has full right, power and authority to
perform all obligations under this Agreement.
Employee hereby agrees to indemnify and hold harmless Employer and its
shareholders, directors, officers, employees and agents from and against any and
all loss, damage, liability, cost or expense (including reasonable attorneys"
and paralegals" fees and costs before and at trial and at all appellate levels)
due to or arising out of any inaccuracy in, or breach of, any representation,
warranty or covenant of Employee contained in this Section 14.
15. INDEPENDENT COUNSEL
Employer and Employee agree that each of them have been, or were
advised fully understand that they are entitled to be, represented by
independent legal counsel with respect to all matters contemplated herein, from
the commencement of negotiations at all times through the execution hereof.
16. LAW APPLICABLE
This Agreement shall be governed by and construed pursuant to
the laws of the State of Florida, without giving effect to conflicts of laws
principles. Any action brought will be pursued in Broward County, Florida.
17. NOTICES
Any notices required or permitted to be given pursuant to this
Agreement shall be sufficient, if in writing, and if personally delivered or
sent by certified or registered mail, return receipt requested, to his
residence, in the case of Employee, or to its then principle office, in the case
of Employer.
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18. SUCCESSION
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective legal representatives, heirs,
assignees and/or successors in interest of any kind whatsoever; provided,
however, that Employee acknowledges and agrees that he cannot assign or delegate
any of his rights, duties, responsibilities or obligations hereunder to any
other person or entity.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire final agreement between
the parties with respect to, and supercedes any and all prior agreements between
the parties hereto both oral and written concerning, the subject matter hereof
and may not be amended, modified or terminated except by a writing signed by the
parties hereto.
20. SEVERABILITY
If any provision of this Agreement shall be held to be invalid
or unenforceable, and is not reformed by a court of competent jurisdiction, such
invalidity or unenforceability shall attach only to such provision and shall not
in any way affect or render invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if such invalid or
unenforceable provision were not contained herein.
21. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant contained herein shall not be deemed a continuing waiver or a waiver of
any future or past breach or violation. No oral waiver shall be binding.
22. ATTORNEYS" FEES"
In the event that either of the parties to this Agreement institutes
suit against the other party to this Agreement to enforce any of his or its
rights hereunder, the prevailing party in such action shall be entitled to
recover from the other party all reasonable costs thereof, including reasonable
attorneys" and paralegals" fees and cost incurred before and at trial and at all
tribunal levels.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the day and
year first above written.
Geotec Thermal Generators, Inc. By:________________________
Xxx Xxxx, President
Individually----------------------------------By:____________________________
W. Xxxxxxx Xxxxx
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