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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
agree as follows:
1. Employment .
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.
2. Term .
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