EXHIBIT 10.78
EMPLOYMENT CONTRACT FOR SENIOR EXECUTIVE
LLO GAS INC., A Delaware corporation, located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, hereinafter referred to as the Employer, and ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, hereinafter
referred to as the Employee, in consideration of the mutual promises made
herein, agree as follows:
ARTICLE I. TERM OF EMPLOYMENT
Specified Term
Section 1.01. The employer hereby employs Employee and Employee hereby
accepts employment with Employer for a period of 3 years, beginning on August 1,
1999.
Earlier Termination
Section 1.02. This agreement may be terminated earlier as hereinafter
provided.
Future Employment Option
Section 1.03. Employee is granted an option to renew this Agreement for 3
years. Said renewal shall be delivered in writing to Employer at least 6 months
before the end of the first 3 years of the Agreement.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
Title and Description of Duties
Section 2.01. Employee shall serve as Executive Vice President of LLO GAS
INC. In that capacity. Employer shall do and perform all services, acts, or
things necessary or advisable to fulfill the duties of a corporate officer as
set forth below. However, Employee shall at all times be subject
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to the direction of the President, and to the policies established by the Board
of Directors, of Employer.
Principal Function - Responsible for marketing and sales
operations/activities of the Company in regard to service stations,
am/pm's, truck stops or related wholesale activities. This would
include responsibility for personnel, pricing, marketing strategy,
sales promotion and acquisitions.
Primary Duties -
- Develop and implement a business plan for retail locations to
increase operating sales and profits from current levels to
mutually agreed sales and profit objectives. The plan would
include strategies for pricing, marketing and sales promotion.
- Provide supervision for all employees. Responsible for the hiring
and training of employees and the development of an employee
performance incentive program.
- Assist in the acquisition and negotiation of additional retail
locations.
- Develop a business plan to permit, build and operate the initial
truck stop site. Formulate plans to acquire or build additional
truck stop locations that conform to the Company's financial and
marketing criteria.
- Coordinate the integration of the financial reporting systems to
central accounting.
- Establish administrative policies, procedures and controls.
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- Develop any potential wholesale business opportunities that fit
into the Company's objectives and strategies.
Loyal and Conscientious Performance of Duties
Section 2.02. Employee agrees that, to the best of his ability and
experience, he will at all times loyally and conscientiously perform all of the
duties and obligations required of him either expressly or implicitly by the
terms of this agreement.
Devotion of Time to Employer's Business
Section 2.03. Employee shall devote as much of his productive time,
ability, and attention to the business of Employer during the term of this
contract as necessary to fulfill the above duties as set forth in Section 2.01.
Competitive Activities
Section 2.04. During the term of this contract Employee shall not,
directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in competition in any manner whatsoever with the business of Employer.
Uniqueness of Employer's Services
Section 2.05. Employee hereby represents and agrees that the services to
be performed under the terms of this contract are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that Employer, in addition
to any other rights or remedies which Employer play possess, shall be entitled
to injunctive and other equitable relief to prevent or remedy a breach of this
contract by Employee.
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Indemnification for Negligence or Misconduct
Section 2.06. Employee shall indemnify and hold Employer harmless from all
liability for loss, damage, or injury to persons or property resulting from the
negligence or misconduct of Employee.
Trade Secrets
Section 2.07.(a) The parties acknowledge and agree that during the term of
this agreement and in the course of the discharge of his duties hereunder,
Employee shall have access to and become acquainted with information concerning
the operation of Employer, including without limitation, financial, personnel,
sales, planning, and other information that is owned by Employer and regularly
used in the operation of Employer's business and that this information
constitutes Employer's trade secrets.
(b) Employee agrees that he shall not disclose any such trade
secrets, directly or indirectly, to any other person or use them in any way,
either during the term of this agreement or at any other time thereafter, except
as is required in the course of his employment with Employer.
(c) Employee further agrees that all files, records, documents,
equipment, and similar items relating to Employer's business, whether prepared
by Employee or others, are and shall remain exclusively the property of Employer
and that they shall be removed from the premises of Employer only with the
express prior consent of Employer's President.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
General Description
Section 3.01. Employer shall provide Employee with the compensation,
incentives, benefits, and business expense reimbursement specified elsewhere in
this agreement:
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Office and Staff
Section 3.02. Employer shall provide Employee with a private office,
stenographic help, office equipment and supplies, and other facilities and
services, suitable to Employee's position and adequate for the performance of
his duties.
Indemnification of Losses of Employee
Section 3.03. Employer shall indemnify Employee for all losses sustained
by Employee in direct consequence of the discharge of his duties on Employer's
behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Annual Salary
Section 4.01.(a) As compensation for the services to be rendered by
Employee hereunder, Employer shall pay Employee an annual salary at the rate per
annum as follows:
Base: Year 1 - $100,000.00 (Payments to begin October 1, 1999 with
the full year compensation of $100,000.00 to be paid over 10
month period, October, 1999 to July, 2000).
Year 2 - $150,000.00
Year 3 - $175,000.00
(b) Employee's annual salary upon exercise and consent to the option
set forth in Section 1.03 shall be $175,000.00, plus the CPI increase from the
beginning of the third year of employment under this Agreement to the fourth
year of this Agreement (the first year of the 3-year option). The same increase
shall apply to the second and third years of the 3-year option period.
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Salary Continuation During Disability
Section 4.02. If Employee for any reason whatsoever becomes permanently
disabled so that he is unable to perform the duties prescribed herein, Employer
agrees to pay Employee 50 percent of Employee's annual salary, payable in the
same manner as provided for the payment of salary herein, for the remainder of
the employment term provided for herein.
Tax Withholding
Section 4.03. Employer shall have the right to deduct or withhold from the
compensation due to Employee hereunder any and all sums required for Federal
Income and Social Security taxes and all state or local taxes now applicable or
that way be enacted and become applicable in the future.
Repayment of Disallowed Salary
Section 4.04. In the event that any portion of the compensation paid by
Employer to Employee is disallowed as an income tax deduction on an income tax
return of Employer, Employee agrees to immediately repay to Employer the full
amount of that portion.
ARTICLE 5. EMPLOYEE INCENTIVES
Cash Bonus Eased on Profitability
Section 5.01.(a) In any employment year in which the net profits of
Employer equal or exceed the base year (July 1, 199$ through June 30, 1999),
Employee shall receive a bonus (profit sharing) - Retail - 10% of incremental
operating profit above base year; Truck Stop - 5% of operating profit; and
Wholesale - 10% of operating profit, for his services in addition to any other
compensation which he is entitled to receive hereunder. This bonus shall be
paid within two and
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one-half months after the close of Employee's employment year, but only if
Employee's services hereunder have not been terminated prior to the end of that
employment.
(b) For the purposes of this provision, the net profits of Employer
are defined as net income after expenses but before taxes as determined by the
firm of certified public accountants retained by Employer in accordance with
sound accounting principles and consistent with the prior accounting practices
of Employer.
Stock Option
Section 5.02.(a) As additional compensation, Employer hereby grants to
Employee the option to receive stock in Employer in lieu of profit sharing in
such amounts and in such manner as Employer and Employee agree. This option may
be exercised in whole or in part. Employee shall not have any of the rights of,
nor be treated as, a shareholder with respect to the shares subject to this
option until he has exercised the option and has become the shareholder of
record of those shares.
(b) This option may only be exercised by Employee during the term of
his employment hereunder. However, in the event that the employment term is
terminated by Employer for reasons other than cause, Employee shall retain the
right to exercise any unused portion of the option until August 1, 2005.
ARTICLE 6. EMPLOYEE BENEFITS
Annual Vacation
Section 6.01. Employee shall be entitled to 3 weeks vacation time each
year with pay. Employee may be absent from his employment for vacation only at
such times as Employer's President shall determine from time to time. In the
event that Employee is unable for any reason to take the total amount of
vacation time authorized herein during any year, he way accrue that time
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and add it to vacation time for any following year or many instead receive a
cash payment in an amount equal to the amount of annual salary attributable to
that period of time.
Illness
Section 6.02. Upon completion of three months in the service of Employer,
Employee shall be entitled to 10 days per year as sick leave with full pay.
Sick leave may be accumulated up a total of 50 days.
Automobile Allowance
Section 6.03. During the term of employment hereunder, Employee shall be
entitled to the full income mileage allowance for the use of his own automobile
in Employer's business. Said allowance shall be paid to Employee at the same
time as reimbursable expenses under Section 7.01 of this agreement.
Group Life Insurance
Section 6.04. Employer agrees to include Employee under Employer's group
term life insurance coverage in an amount equal to two (2) times Employee's
gross annual salary. Said insurance shall be established by November 1, 1999.
Group Medical Insurance
Section 6.05. Employer agrees to include Employee under Employer's group
medical insurance coverage.
Dental Coverage
Section 6.06. The Employer agrees to provide Employee with dental coverage
during the employment term by obtaining dental insurance covering Employee or by
directly paying all dental costs incurred by Employee. Said coverage shall be
established by February, 2000.
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ARTICLE 7. BUSINESS EXPENSES
Business Expenses
Section 7.01.(a) Employer shall promptly reimburse Employee for all
reasonable business expenses incurred by Employee in promoting the business of
Employer, including expenditure for entertainment, gifts, and travel.
(b) Each such expenditure shall be reimbursable only if it is of a
nature qualifying it as a proper deduction on the federal and state income tax
return of Employer.
(c) Each such expenditure shall be reimbursable only if Employee
furnishes to Employer adequate records and other documentary evidence required
by federal and state statutes and regulations issued by the appropriate taxing
authorities for the substantiation of that expenditure as an income tax
deduction.
Repayment by Employee of Disallowed Business Expenses
Section 7.02. In the event that any expenses paid for Employee or any
reimbursement of expenses paid to Employee shall, on audit or other examination
of Employer's income tax returns, be determined not to be allowable deductions
from Employer's gross income, and in the further event that any such
determination is acceded to by the Employer or made final by the appropriate
federal or state taxing authority or a final judgment of a court of competent
jurisdiction, and no appeal is taken from the judgment or the applicable period
for filing notice of appeal has expired, Employee shall repay to Employer the
amount of the disallowed expenses.
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ARTICLE 8. TERMINATION OF EMPLOYMENT
Termination for Cause
Section 8.01.(a) Employer reserves the right to terminate this agreement
if employee (1) wilfully breaches or habitually neglects the duties which he is
required to perform under the terms of this agreement, or (2) commits acts of
dishonesty, fraud, misrepresentation, or other acts of moral turpitude, that
would prevent the effective performance of his duties.
(b) Employer may at its option terminate this agreement for the
reasons stated inn this section by giving written notice of termination to
Employee without prejudice to any other remedy to which Employer may be entitled
either at law, in equity, or under this agreement.
(c) The notice of termination required by this section shall specify
the ground for the termination and shall be supported by a statement of all
relevant facts.
(d) Termination under thus section shall be considered "for cause"
for the purposes of this agreement.
Termination Without Cause
Section 8.02.(a) This agreement shall be terminated upon the death of
Employee.
(b) Employer reserves the right to terminate this agreement not less
than 3 months after Employee suffers any physical or mental disability that
would prevent the performance of his duties under this agreement. Such a
termination shall be effected by giving 10 days' written notice of termination
to Employee.
(c) Termination under this section shall not be considered "for
cause" for the purposes of this agreement.
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Effect of Merger, Transfer of Assets, or Dissolution
Section 8.03.(a) This agreement shall not be terminated by any voluntary
or involuntary dissolution of Employer resulting from either a merger or
consolidation in which Employer is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the assets of
Employer.
(b) In the event of any such merger or consolidation or transfer of
assets, Employer's rights, benefits, and obligations hereunder shall be assigned
to the surviving oar resulting corporation or the transferee of Employer's
assets.
Termination by Employee
Section 8.04. Employee may terminate his obligations under this agreement
by giving Employer at least 3 months notice in advance or tendering to Employer
a total amount aggregating 3 months of his annual salary.
Effect on Compensation
Section 8.05. In the event that this agreement is terminated prior to the
completion of the term of employment specified herein, Employee shall be
entitled to the compensation earned by and vested in him prior to the date of
termination as provided for in this agreement, computed pro rata up to and
including that date. Employee shall be entitled to no further compensation as
of the date of termination.
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ARTICLE 9. GENERAL PROVISIONS
Notices
Section 9.01. Any notices to be given by either party to the other shall
be in writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this agreement, but each party may change that address
by written notice in accordance with this section. Notices delivered personally
shall be deemed communicated as of the date of actual receipt; mailed notices
shall be deemed communicated as of the date of mailing.
Arbitration
Section 9.02.(a) Any controversy between Employer and Employee involving
the construction or application of any of the terms, provisions, or conditions
of this agreement shall on the written request of either party served on the
other be submitted to arbitration. Arbitration shall comply with and be
governed by the provisions of the California Arbitration Act.
(b) Employed and Employee shall each appoint one person to hear and
determine the dispute. If the two persons so appointed are unable to agree,
then those persons shall 1 select a third impartial arbitrator whose decision
shall be final and conclusive upon both parties.
(c) The cost of arbitration shall be borne by the losing party or in
such proportions as the arbitrators decide.
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Attorneys' Fees and Costs
Section 9.03. If any legal action is necessary to enforce or interpret the
terms of this agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any other
relief to which that party may be entitled. This provision shall be construed
as applicable to the entire contract.
Entire Agreement
Section 9.04. This agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee by Employer, and contains all of the covenants and
agreements between the parties with respect to that employment in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promises not contained in this
agreement shall be valid or binding.
Modifications
Section 9.05. Any modification of this agreement will be effective only if
it is in writing signed by the party to be charged.
Effect of Waiver
Section 9.06. The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this agreement by the other
party shall not be deemed a waiver of that term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all or any
other times.
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Partial Invalidity
Section 9.07. If any provision in this agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
invalidated in any way.
Law Governing Agreement
Section 9.09. If Employee dies prior to the expiration of the term of his
employment, any stuns that may be due him from Employer under this agreement as
of the date of death shall be paid to Employee's Trustee.
Executed on September 15, at Malibu, California.
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EMPLOYER:
LLO GAS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Secretary
EMPLOYEE:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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