This Employment
Agreement is entered into as of the 1st day of November, 2010,
between Xnergy, Inc.,
a California
corporation with its principal offices located in Carlsbad,
California (“Xnergy” or the
“Company”), and D. Jason Davis
(“Employee”).
In
consideration of the mutual covenants contained in this Agreement,
the Company and Employee
During the term
of this Agreement, as defined in Sections 2 and 4 of this
Agreement, the Company
shall employ
Employee, and Employee hereby accepts such employment by the
Company, in
accordance with
the terms and conditions set forth in this Employment
Agreement.
(a) Position and Duties .
Employee shall serve as the President and Chief Executive
Officer
(CEO) of the Company . Employee shall
perform all duties, services and responsibilities and
have such authority and wers for and on behalf
of, the Company as are customary and
appropriate for such positions and as are
established from time to time
by, or in accordance with procedures established
by, the Company’s Board of Directors.
Employee shall be accountable to, and shall only
report to the Company’s Board of
Directors in connection with the performance of
his duties, services and responsibilities
and the exercise of his authority and power
hereunder. The Board of Directors shall
remain the same as prior to the acquisition and
until such time as AEGY acquires a
controlling interest in the Company and
thereafter shall remain the same until the
shareholders of the Company vote a change. HOTI
and its subsidiaries, affiliates, and
directors, agree that when AEGY acquires a
controlling interest in the Company they
will, for a period of five years from the date
of this Agreement unless terminated as
provided in Paragraph 4, vote their shares of
AEGY stock consistent with the provisions
set forth in subsection (c) below. During
Employee's employment with the Company, the
Company shall never appoint a co-CEO,
co-President, or anyone else that has equal or
greater authority in the Company than
Employee.
(b) Performance . Employee shall perform
the duties called for under this Agreement
to the best of his ability and shall devote all
of his business time, energies, efforts and
skill to such duties during the term of his
employment. Employee shall be based at, and
be expected to perform his duties at, the
Company offices in San Diego and at other
geographic locations as required, and shall
include reasonable travel incidental to the
performance of his duties under this Employment
Agreement.
c) Additional Duties. The Company
agrees that within eighteen (18) months of the date of
Closing of the
acquisition of all of the issued and outstanding stock of the
Company by
Healthcare of
Today, Inc., ownership of the outstanding stock of Xnergy will be
transferred to
Alternative
Energy Partners, Inc. (“AEGY”) and Xnergy will become a
wholly-owned subsidiary
of AEGY. The
parties acknowledge that their intent is that, in addition to his
duties hereunder to
the Company
which shall continue, Employee shall be appointed to the Board of
Directors of
AEGY and as its
President and CEO, in which capacity he will assume responsibility
for the
overall
management of AEGY's current and future renewable energy, energy
business operations,
opportunities,
divisions and acquisitions and shall be compensated as described in
Addendum A
of this
Agreement for serving in those positions, reporting to the Board of
Directors of AEGY.
The Board of
Directors of the Company shall be made up of five members, one of
whom shall be
Employee at all
times during his employment by the Company under this Agreement,
one of
whom shall be
Joey Patalano at all times during his employment by the Company
under a similar
employment
agreement with the Company, two of whom shall be appointed at all
times by
Healthcare of
Today, Inc. and the fifth of whom shall be nominated and appointed
by the other
four members
and shall serve as the Chairman of the Board of
Directors.
Subject to
Section 4 of this Agreement, the term of Employee’s
employment under this
Agreement shall
begin on the date of the Closing of the acquisition of all of the
issued and
outstanding
stock of the Company by Healthcare of Today, Inc.
(“Healthcare”), pursuant to the
Acquisition
Agreement between the Company, its shareholders and Healthcare
dated September
30, 2010, and
shall continue for an initial term of sixty (60) months and shall
be renewed
annually
thereafter for successive 12 month terms, unless modified, amended
or terminated by
the parties as
provided herein.
3. Compensation, Expenses and
Benefits .
As full
compensation for Employee’s performance of his duties
pursuant to this Agreement, the
Company shall
pay Employee during the term of this Agreement, and Employee shall
accept as
full payment
for such performance, the following aggregate amounts and
benefits:
(a) Salary. As salary for
Employee’s services to be rendered under this Agreement,
the
Company shall
pay Employee an aggregate salary, payable monthly in arrears, based
on the
$300,000 per year, payable every two weeks to
coincide with Xnergy's current
payroll system and third party Direct Deposit
for the preceding two weeks.
(b) Bonus. The Company may pay Employee a
bonus, in such amount and at such time
as shall be
determined by the Company’s Board of Directors or its
Compensation Committee and
any bonus to
which Employee may be entitled to under any Executive Officer Bonus
Plan now
or hereafter in
effect. The Board of Directors of the Company or the Compensation
Committee
shall review
Employee’s salary and bonus at least once a year to determine
the amount, if any, of
Employee’s salary increase and
discretionary bonus.
(c) Business Expenses . The Company
shall pay or reimburse Employee for all
reasonable,
ordinary and necessary travel expenses including airfare, car
rental and lodging,
cellular phone,
Internet access, entertainment, meals, and other out-of-pocket
expenses incurred
by Employee in
connection with the Company’ businesses, for which Employee
submits
appropriate
receipts and which are consistent with Company policy or have been
authorized by
the
Company’ Boards of Directors.
(d) Benefits . Employee shall be eligible
to participate in all fringe benefits that he is
currently
enjoying as an employee of the Company, including but without
limitation the
following:
major medical and dental insurance, life insurance, any 401(k)
plan, retirement plans
and other
employee benefit plans, applicable to other similar employees of
the Company, when
and if adopted
and made available during the term of this Agreement to employees
with similar
periods of
service, subject to any eligibility or other requirements for
participating in such fringe
benefits and to
the actual existence of the respective plans.
(e)
Options and Stock Benefits. In addition to
the compensation otherwise provided for
herein,
Employee shall be entitled to receive the stock options and stock
benefits described in
(f)
Indemnification; Directors and Officers Insurance
. The Company shall, to the fullest
extent
authorized or permitted by applicable state law, defend, indemnify
and hold Employee, his
heirs,
executors, administrators and other legal representatives, harmless
from and against any
and all claims,
suits, debts, causes of action, proceedings or other actions, at
law or in equity,
including costs
and reasonable attorney fees which any person or entity may have
had, now has
or may in the
future have with respect to Employee’s service to the Company
as an officer,
employee or
agent thereof. This provision shall survive the termination of this
agreement.
(g) Vacation . Employee is eligible for
vacation in accordance with existing Company
policy which is
that after five (5) years of service an employee receives fifteen
(15) days of paid
vacation time
each calendar year. Only one week of vacation m