EMPLOYMENT AGREEMENT BY AND BETWEEN GLOBAL ENERGY GROUP, INC. AND JOHN R. BAILEY
EXHIBIT 10.28
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of December 21, 2005
(the “Effective Date”), by and between GLOBAL ENERGY GROUP, INC., a Delaware corporation
(“Global”), and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (“Employee”).
WHEREAS, Global and Employee desire to enter into this Agreement to assure Global of the
services of Employee and to set forth the respective rights and duties of the parties hereto;
WHEREAS, Global is principally in the business of developing and commercializing energy
efficiency technology (such activities, present and future, being hereinafter referred to as the
(“Business”); and
NOW, THEREFORE, in consideration of the premises and the mutual covenants, terms and
conditions set forth herein, and other good and valuable consideration the receipt and sufficiency
of which hereby are acknowledged by the parties, Global and Employee agree as follows:
ARTICLE I
Employment
1.1 Employment and Title. Global hereby employs Employee, and Employee hereby accepts such
employment, as Chief Financial Officer, Secretary and Treasurer (the “Employment Position”), all
upon the terms and conditions set forth herein.
1.2 Services. During the Employment Term (as hereinafter defined), Employee agrees to perform
diligently and in good faith the duties of the Employment Position, under the direction of the
Board of Directors of Global (the “Board of Directors”). Employee agrees to perform the services to
be performed hereunder for the benefit of Global. Employee shall be vested with such authority as
is generally commensurate with the Employment Position, as further outlined below. Employee will
report solely to the Chief Executive Officer of Global. It is understood and agreed that Employee
is free to engage in other employment activities for up to 25% of Employee’s time.
1.3 Location. The principal place of employment and the location of Employee’s principal
office shall be in, or in close proximity to Dallas, Texas; provided, however, Employee shall, if
reasonably necessary, engage in reasonable travel in the performance of Employee’s duties under
this Agreement.
1.4 Representations. (a) Employee represents and warrants to Global that Employee has full
power and authority to enter into and perform this Agreement and that Employee’s execution and
performance of this Agreement shall not constitute a default or breach by Employee under, or of any
of the terms of, any other agreement to which Employee is a party or by which Employee is bound.
Employee represents that no consent or approval of any third party is required for Employee’s
execution, delivery and performance of this Agreement or that all consents or approvals of any
third party required for such execution, delivery and performance of this Agreement have been
obtained. Employee further represents that Employee’s employment hereunder will not involve the use
of information or materials that belong to a former employer or another person or entity and for
which Employee has a duty of confidentiality.
(b) Global represents and warrants to Employee that Global has full power and authority to
enter into and perform this Agreement and that Global’s execution and performance of this Agreement
shall not constitute a default or breach by Global under, or of any of the terms of, any other
agreement to which Global is a party or by which Global is bound. Global represents that no consent
or approval of any third party is required for Global’s execution, delivery and performance of this
Agreement or that all consents or approvals of any third party required for such execution,
delivery and performance of this Agreement have been obtained.
ARTICLE II
Employment Term
The term of Employee’s employment hereunder (the “Employment Term”) shall commence as of the
Effective Date hereof (referred to for these purposes as the “Commencement Date”) and shall
continue for an initial term of one (1) year from the Commencement Date (the “Initial Term”),
unless earlier terminated pursuant to the provisions of this Agreement. Following the completion of
the Initial Term, Employee’s term of employment shall be renewed automatically for additional
one-year terms (“Annual Terms”) in the absence of written notice of termination given by either
party at least ninety (90) days prior to the date of any such renewal.
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by Employee, Global shall pay
Employee, during the Employment Term, an annual base salary (as in effect from time to time, “Base
Salary”) of not less than $150,000. The Base Salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in accordance with Global’s standard payroll practices. The Base
Salary will be reviewed annually, or, more frequently, as appropriate, as recommended by the Chief
Executive Officer and approved by the Board of Directors for upward, but not downward, adjustment
in its sole discretion.
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3.2 Bonus Compensation. For every fiscal year of Global ending during the Employment Term,
Employee will be entitled to receive such additional bonus or other compensation (“Bonus
Compensation”), if any, as may be approved by the Board of Directors or a Compensation Committee
whose members all are directors of Global and which committee is appointed as such by the Board of
Directors.
3.3 Benefits. Employee shall be entitled, during the Employment Term, to the same fringe
benefits as are from time to time then available to Global’s most senior executive officers, such
as (1) medical, hospital, dental, life, disability, and other insurance coverage, (2) participation
in incentive, bonus, stock option, equity ownership, pension, profit sharing, and other benefit
plans, and (3) normal vacation allowance and other paid time off for all employees who are
executive officers of Global, but not less than four weeks annually.
3.4 Withholding. Any and all amounts payable under this Agreement, including amounts payable
under this Article III and Article VII, are subject to withholding for such federal, state and
local taxes required pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expense and Insurance
4.1 Working Facilities. Employee shall be furnished with an office at the location set forth
in Section 1.3 hereof, or at such other location as agreed to by Employee and Global, and other
working facilities and secretarial and other assistance suitable to the Employment Position and
reasonably required for the performance of Employee’s duties hereunder.
4.2 Reimbursement for Expenses. Global shall reimburse Employee, in accordance with Global’s
policies and practices for senior management, for all reasonable expenses actually incurred by
Employee while employed by Global and in the performance of Employee’s duties under and in
accordance with the terms and conditions of this Agreement, subject to Employee’s furnishing to
Global an itemized account, reasonably satisfactory to Global, in substantiation of such
expenditures, along with appropriate documentation thereof including receipts for all such expenses
in the manner required pursuant to Global’s policies and procedures and the Internal Revenue Code
of 1996, as amended (the “Code”), and applicable regulations in effect from time to time.
4.3 Insurance. Global may secure in its own name or otherwise, and at its own expense, life,
disability and other insurance covering Employee or Employee and others, and, Employee shall not
have any right, title or interest in or to such insurance other than as expressly provided herein.
Employee agrees to assist Global in procuring stated insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s) as Global or such
insurance company may designate and by signing such applications and other written instruments as
may be required by any insurance company to which application is made for such insurance. Any
information provided by Employee to such insurance company (the results of examinations being
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deemed part of such information) will be provided on a confidential basis, and Global shall
have no access thereto.
ARTICLE V
Covenants and Restrictions
Employee covenants that, except in carrying out his duties hereunder, during the term of his
employment and for a period of one (1) year following the date of termination of employment
hereunder (unless such longer period of time is specifically set forth herein).
5.1 Non-Competition. Without the express written consent of the Board of Directors, Employee
shall not directly or indirectly, own any interest in, participate or engage in, assist, render any
services (including advisory services) to, become associated with, work for, serve (in any capacity
whatsoever, including, without limitation, as an employee, consultant, advisor, agent, independent
contractor, officer or director) or otherwise become in any way or manner connected with the
ownership, management, operation, or control of, any business, firm, corporation, partnership or
other entity (collectively referred to herein as a “Person”) that engages in, or assists others in
engaging in or conducting any business, which deals, directly or indirectly, in products or
services similar to or competitive with the Company’s product line or services in the United
States; provided, however, the above shall not be deemed to exclude Employee from acting as
director of another corporation with the consent of the Company’s Board of Directors; provided
further, however, that the above shall not be deemed to prohibit Employee from owning or acquiring
securities issued by any corporation whose securities are listed with a national securities
exchange or are traded in the over-the-counter market, provided that Employee at no time owns,
directly or indirectly, beneficially or otherwise, five (5%) percent or more of any class of any
such corporation’s outstanding capital stock.
5.2 Non-Solicitation. Employee shall not knowingly provide or solicit to provide to any Person
or individual (i) any goods or services which are competitive with those provided by the Company or
which would be competitive with the goods or services that the Company has planned to provide; or
(ii) any goods or services to any customer of the Company. The term “customer” shall mean any
person or individual to whom the Company has provided goods or services within the twenty-four (24)
month period prior to the termination of Employee’s employment hereunder. Notwithstanding anything
herein to the contrary, no limitation shall be imposed on Employee hereunder with respect to any
goods and services that the Company has planned to provide and which are not actually being
provided at the time of the termination of Employee’s employment hereunder.
5.3 Confidentiality. Employee agrees that be shall not divulge to others, nor shall he use to
the detriment of the Company or in any business or process of manufacture competitive with or
similar to any business or process of manufacture engaged in by the Company or any of its
subsidiary or affiliated companies, at any time during his employment with the Company or
thereafter, any Confidential Information (as defined in
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Section 7.2) obtained by him during the course of his employment with the Company relating to
sales, salesmen, sales volume or strategy, customers, formulas, processes, methods, machines,
manufactures, compositions, ideas, improvements or inventions belonging to or relating to the
business of the Company, or its subsidiary or affiliated companies.
5.4 Personnel. Employee shall neither solicit, seek to solicit any of the Company’s personnel
in any capacity whatsoever nor shall Employee induce or attempt to induce any of the Company’s
personnel to leave the employ of the Company to work for Employee or otherwise.
5.5 Damages. Employee acknowledges that his breach of any of the restrictive covenants
contained in this Article V may cause irreparable damage to the Company for which remedies at law
would be inadequate. Accordingly, if Employee breaches or threatens to breach any of the provisions
of this Article V, the Company shall be entitled to appropriate injunctive relief, including,
without limitation, preliminary and permanent injunctions in any court of competent jurisdiction,
restraining Employee from taking any action prohibited hereby. This remedy shall be in addition to
all other remedies available to the Company at law or equity. If any portion of this Article V is
adjudicated to be invalid or unenforceable, this Article V shall be deemed amended to delete
therefrom the portion so adjudicated, such deletion to apply only with respect to the operation of
this Article V in the jurisdiction in which such adjudication is made.
ARTICLE VI
Illness or Incapacity
6.1 Right to Terminate. Except as provided by this Article and notwithstanding anything else
to the contrary contained in this Agreement, Global shall have no right to terminate Employee’s
employment hereunder, during any period that Employee suffers illness or incapacity. Global shall
have the right to terminate Employee’s employment hereunder by delivery of thirty (30) days written
notice of termination if Employee is unable to perform, with reasonable accommodation, in all
material respects Employee’s duties hereunder for a period exceeding six (6) consecutive months by
reason of illness or incapacity. A termination of employment under this Article will be deemed a
termination “without good cause” as described in Section 8.1 hereof.
6.2 Right to Replace. If Employee’s illness or incapacity, whether by physical or mental
cause, renders Employee unable for a minimum period of thirty (30) consecutive calendar days to
carry out Employee’s duties and responsibilities as set forth herein, Global shall have the right
to designate a person to temporarily perform Employee’s duties; provided, however, that if Employee
returns to work from such illness or incapacity within the six (6) month period following the
commencement of Employee’s inability due to such illness or incapacity, Employee shall be entitled
to be reinstated in the capacity described in Article I hereof with all rights, duties and
privileges attendant thereto.
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6.3 Rights Prior to Termination. Employee shall be entitled to Employee’s full Base Salary
under Section 3.1 hereof and other benefits under Article III hereof during such illness or
incapacity unless and until expiration or other termination of Employee’s employment hereunder.
6.4 Determination of Illness or Incapacity. For purposes of this Article VI, the term “illness
or incapacity” shall mean Employee’s inability to perform Employee’s duties hereunder substantially
on a full-time basis because of physical or mental illness or physical injury as determined by the
Board of Directors, in its reasonable discretion based upon competent medical evidence. Upon
Global’s written request, Employee shall submit to reasonable medical and other examinations to
provide the evidence required hereunder.
ARTICLE VII
Trade Secrets
7.1 Confidentiality. Employee will hold Confidential Information in confidence and trust and
limit disclosure of Confidential Information strictly to persons who have a need to know such
Confidential Information in connection with the Business and who have agreed in writing with Global
to maintain the confidentiality of such Confidential Information. Employee will not disclose, use,
or permit the use or disclosure of Confidential Information, except in satisfying Employee’s
obligations under this Agreement. Employee will use reasonable care to protect Confidential
Information from inappropriate disclosure, whether inadvertent or intentional. Notwithstanding the
foregoing, Employee may disclose Confidential Information if such disclosure is required by a court
order or an order of a similar judicial or administrative body; provided, however, that Employee
notifies Global of such requirement immediately and in writing, and cooperates reasonably with
Global in obtaining a protective or similar order with respect thereto.
7.2 Confidential Information. For the purposes of this Agreement, the phrase “Confidential
Information” means information or materials that, in Global’s reasonable determination, provide
advantage to Global over others not having such information or materials and includes (i) customer
information, supplier information, sales channel and distributor information, material terms of any
contracts, marketing philosophies, strategies, techniques and objectives (including product and
service roll-out dates and volume estimates), legal and regulatory positions and strategies,
advertising and promotional copy, competitive advantages and disadvantages, non-published financial
data, product or service plans, designs, costs, prices and names, inventions, discoveries,
improvements, technological developments, know-how, software code, business opportunities
(including planned or proposed financings, mergers, acquisitions, ventures and partnerships) and
methodologies and processes (including the look and feel of computer screens and reports) relating
to the Business; (ii) information designated in writing or conspicuously marked as “confidential”
or “proprietary” or likewise designated or marked with words of similar import; (iii) information
for which Global has an obligation of confidentiality so long as such obligation is known to
Employee; and (iv) information of a nature that a reasonable person would conclude that it is
confidential or proprietary. Notwithstanding the foregoing, information will not be deemed
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Confidential Information if such information: (i) prior to receipt from Global, is or was
known to Employee directly or indirectly from a source other than one having an obligation of
confidentiality to Global; (ii) becomes known (independently of disclosure by Global) to Employee
directly or indirectly from a source other than one having an obligation of confidentiality to
Global; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by Employee; or (iv) is independently developed by Employee.
Employee may disclose Confidential Information pursuant to the requirements of a governmental
agency or by operation of law, provided that Employee gives Global reasonable prior written notice
sufficient to permit Global to contest such disclosure.
7.3 Notification of Third Party Disclosure Requests. If Employee receives any written or oral
third party request, order, instruction or solicitation for the disclosure of Confidential
Information not in conformance with this Agreement or if Employee becomes aware of any attempt by a
third party to improperly gain Confidential Information, Employee shall immediately notify the
Board of Directors or of such request, order, instruction or solicitation or of such attempt and
fully disclose the details surrounding such request, order, instruction or solicitation or such
attempt.
7.4 Non-Removal of Records. All documents, files, records, data, papers, materials, notes,
books, correspondence, drawings and other written, graphic or electronic records of the Business
and all computer software of Global which Employee shall prepare or use, or come into contact with,
shall be and remain the exclusive property of Global, in its discretion, and shall not be
physically, electronically, telephonically or otherwise removed from Global’s promises without
Global’s prior written consent.
7.5 Return or Destruction of Confidential Information. Confidential Information gained,
received or developed by Employee or in which Employee participated in developing will remain the
exclusive property of Global, in its sole discretion, Employee will promptly return to Global or
destroy or erase all records, books, documents or any other materials whatsoever (including all
copies thereof) containing such Confidential Information in Employee’s possession or control upon
the earlier of (i) the receipt of a written request from Global for return or destruction of
Confidential Information or (ii) the termination of Employee’s employment hereunder.
7.6 Trade Secrets of Others. In the course of Employee’s employment hereunder, Employee will
not use any information or materials that belong to any former employer or any other person or
entity and for which Employee has a duty of confidentiality or use or allow the use of any
illegally obtained confidential or secret information or materials.
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ARTICLE VIII
Termination
8.1 Termination by Global.
| (a) | Global may terminate Employee’s employment hereunder for good cause anytime by delivery of written notice of termination. A termination for good cause under this Section 8.1 shall be effective upon the date set forth in a written notice of termination delivered to Employee. Good cause will be limited to the following circumstances: |
| (1) | habitual absence from work by the Employee, including without limitation, habitual absence from the Company’s offices on non-Company matters that interferes with the Employee’s duties; | ||
| (2) | habitual drunkenness by the Employee; | ||
| (3) | habitual drug abuse or drug addiction by the Employee; | ||
| (4) | the Employee maliciously denigrating in public the Company or any officer, director or affiliate thereof; | ||
| (5) | physical destruction of substantial property or asset of the Company by, or caused by, the Employee; | ||
| (6) | appropriation of business opportunities of the Company by the Employee for the direct or indirect personal gain of the Employee or members of his family without the prior written consent of The Board; | ||
| (7) | willful and malicious interference with the Company’s operations by the Employee; | ||
| (8) | engagement by the Employee in any act of fraud, material misappropriation of funds or assets, or embezzlement, including without limitation, theft, bribery or the receipt of kickbacks; | ||
| (9) | a conviction of the Employee for, or a plea of nolo contedere by the Employee to, a felony or other criminal act for which the possible penalties include a prison sentence of at least 1 year; | ||
| (10) | a material breach by the Employee of the restrictive covenants contained in this Agreement, or for disloyal, dishonest or illegal conduct by the Employee; or |
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| (11) | Employee is in default in a material respect in the performance of Employee’s obligations, services or duties hereunder, including Employee’s willfully disregarding the written or oral instructions of the Board of Directors concerning the conduct of Employee’s duties hereunder, Employee’s conduct which is materially inconsistent with the published policies of Global, as promulgated from time to time and which are generally applicable to all employees or to senior management, or Employee’s breach of any other material provision of this Agreement; and, in any such case, such act has resulted (or could reasonably be expected to result) in substantial harm to Global; or |
| (b) | Global may terminate Employee’s employment hereunder without good cause at any time not fewer than 30 days nor more than 45 days after delivering written notice of termination to Employee. |
8.2 Effect of Termination for Good Cause. If Employee’s employment is terminated by Global for
good cause:
| (a) | Employee shall be entitled to accrued Base Salary under Section 3.1 and accrued vacation pay and other paid time off, each through the date of termination; | ||
| (b) | Employee shall be entitled to reimbursement for expenses accrued through the date of termination in accordance with the provisions of Section 4.2 hereto; and | ||
| (c) | Except as provided in Article X, this Agreement shall thereupon be of no further force and effect. |
8.3 Effect of Termination without Good Cause. If Global terminates Employee’s employment
without good cause, then Employee shall be entitled to one year Base Salary, immediate vesting of
all options or warrants, and payment for any outstanding expenses.
8.4 Termination by Employee. Employee may terminate Employee’s employment hereunder by giving
not less than ninety (90) days written notice to Global.
8.5 Effect of Termination by Employee. If Employee terminates Employee’s employment pursuant
to Section 8.4 hereof:
| (a) | Employee shall be entitled to accrued Base Salary under Section 3.1 and accrued vacation pay and other paid time off, each through the date of termination; |
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| (b) | Employee shall be entitled to reimbursement for expenses accrued through the date of termination in accordance with the provisions of Section 4.2 hereof, and | ||
| (c) | Except as provided in Article X, this Agreement shall thereupon be of no further force and effect. |
ARTICLE IX
Miscellaneous
9.1 No Waivers. The failure of either party to enforce any provision of this Agreement shall
not be construed as a waiver of any such provision, nor prevent such party thereafter from
enforcing such provision or any other provision of this Agreement.
9.2 Notices. Any notice required or permitted to be given to under the terms of this Agreement
may be delivered in person, by courier or Federal Express, United Parcel Service, Airborne Express
US Express Mail or other similar nationally recognized overnight delivery service that obtains a
confirmation of delivery, or by registered or certified mail, postage prepaid, return receipt
requested, or by fax or e-mail transmission if delivery is promptly confirmed, and shall be
addressed as follows:
If to Global:
|
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | |
| ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: Chief Executive Officer | ||
| Fax: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ | ||
If to Employee:
|
▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Fax: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
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Either party may hereafter notify the other is writing of any charge in address. Any notice shall
be deemed duly given (i) when personally delivered, (ii) when delivered by courier or overnight
delivery service, (iii) on the third day after it is mailed by registered or certified mail,
postage prepaid, return receipt requested as provided herein, (iv) when proper transmission is
confirmed if transmitted by fax or e-mail.
9.3 Severability. The provisions of this Agreement are severable and if any provision of this
Agreement shall be held to be invalid or otherwise unenforceable, in whole or in part, the
remainder of the provisions, or enforceable parts hereof, shall not: be affected thereby.
9.4 Successors and Assign. The rights and obligations of Global under this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of Global, including the
survivor upon any merger, consolidation, share exchange or combination of Global with any other
entity. Employee shall not have the right to assign, delegate, or otherwise transfer to any person
or entity any duty or obligation to be performed by Employee hereunder.
9.5 Entire Agreement. This Agreement supersedes all prior and contemporaneous agreements and
understandings between the parties hereto, oral or written, and may not be modified or terminated
orally. No modification (except as otherwise provided herein with respect to the modification of
provisions that are unreasonable, arbitrary or against public policy), termination or attempted
waiver shall be valid unless in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced. This Agreement was the subject of negotiation by
the parties hereto and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in any proceeding that
involves the interpretation of any provisions of this Agreement.
9.6 Governing Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Texas without reference to the conflict of law principles thereof.
9.7 Confidential Arbitration. The parties hereto agree that any dispute concerning or arising
out of the provisions of this Agreement, Employee’s employment or termination of Employee’s
employment shall be resolved by confidential arbitration in accordance with the rules of the
American Arbitration Association. Such confidential arbitration shall be held in Dallas, Texas, and
the decision of the arbitrator(s) shall be conclusive and binding on the parties and shall be
enforceable in any court of competent jurisdiction. The arbitrator may, in the arbitrator’s
discretion, award attorney’s fees and costs to such party as the arbitrator sees fit in rendering a
decision.
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ARTICLE X
Survival
The provisions of Article VII and VIII of this Agreement and this Article shall survive the
termination, rescission or expiration of this Agreement whether upon, or prior to, the Scheduled
Termination Date hereof. The representations and warranties of the parties hereto shall survive the
execution of this Agreement and come without limitation.
ARTICLE XI
Intellectual Property
All Confidential information, computer software, video and sound recordings, scripts,
creations, inventions, improvements, designs and discoveries conceived, created, invented,
authored, developed, produced or discovered by Employee during the Employment Term, whether alone
or with others, whether during or after regular work hours, are and will be Global’s property.
Employee hereby assigns to Global all copyrights, trademarks, patents, related applications and
registrations, and other rights of authorship, invention or ownership Employee may have with
respect to such item. Global agrees to pay for all patent filing and maintenance fees associated
with such inventions.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date
first above written.
| GLOBAL ENERGY GROUP, INC. | ||||
| a Delaware corporation | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
| EMPLOYEE | ||||
| By: | ||||
| Date: | ||||
| Address: | ||||
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