EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement")
is made and is effective this 15th day of August 2000 by and
between Synergy Technologies Corporation, a Colorado
corporation based at 335 25th Street NE in Calgary, Alberta,
Canada (the "Company"), and Mr. John Gradek, a resident of
Calgary, Alberta, Canada (the "Executive").
NOW THEREFORE the parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby agrees to initially employ the
Executive as its Chief Executive Officer and the Executive
hereby accepts such employment in accordance with the terms
of the Agreement and the terms of employment applicable to
regular employees of the Company. In the event of any
conflict or ambiguity between the terms of this Agreement
and terms of employment applicable to regular employees, the
terms of this Agreement shall control. Election or
appointment of the Executive to another position or office,
regardless of whether such office or position is inferior to
the Executive's initial office or position, shall not be a
breach of this Agreement.
2. DUTIES OF THE EXECUTIVE
The duties of the Executive shall include the
performance of all of the duties typical of the office held
by the Executive, including the duties and obligations
described below and such other duties and projects as may be
assigned by the Board of Directors of the Company. The
Executive shall devote his entire productive time, ability
and attention to the business of the Company and shall
perform all duties in a professional, ethical and business-
like manner. The Executive will not, during the term of this
Agreement, directly or indirectly engage in any other
business, either as an employee, employer, consultant,
principal, officer, director, partner or advisor or in any
other capacity nor shall he directly or indirectly
beneficially own five percent (5%) or more of the
outstanding capital stock of any publicly reporting company,
either with or without any compensation, without the prior
written consent of the Board of Directors of the Company. In
addition to the duties described herein, the Executive is
also authorized and directed to do the following:
- Set corporate direction and move into new areas that
allow innovation and improved competitiveness;
- Ensure the Company is able to continue as a going-
concern and lead ongoing financing efforts;
- Lead short and long-term planning processes;
- Focus on customer satisfaction in decision making;
- Act as the Company's chief communicator and promote
communications within the Company;
- Keep goals, challenges, and vision in front of persons
both inside and outside the organization;
- Set the tone of the organization's way of doing
business by example, and by ensuring entrepreneurial spirit,
as well as accountability for results;
- Design and lead the executive management team.
Continually renew and improve the team;
- Properly manage corporate resources for a healthy
balance of long and short-term needs, including human
resources;
- Ensure that proper measurement and control practices
are in place;
- Shape the organization's structure and processes to fit
the strategy and style sought by the Board and chief
executive;
- Ensure that the organization is in a state of
continuous learning, searching for ways to improve the
Company, seeking feedback and using it for positive change.
3. COMPENSATION
The Executive will be paid compensation during this
Agreement as follows:
A. A base salary of $120,000 USD per year, payable in
monthly installments on the first day of the month preceding
active service. The base salary shall be adjusted at the end
of each year of employment at the discretion of the Board of
Directors of the Company.
B. An incentive salary equal to 5% of the adjusted net
profits (hereinafter defined) of the Company beginning with
the Company's year-end (First Incentive Year) and each
fiscal year thereafter during the term of this Agreement.
"Adjusted net profits" shall be the net profit of the
Company before federal, state and/or provincial income
taxes, determined in accordance with generally accepted
accounting practices by the Company's independent accounting
firm and adjusted to exclude: (i) any incentive salary
payments paid pursuant to this Agreement, (ii) any
contributions to pension and/or profit sharing plans; (iii)
any extraordinary gains or losses (including, but not
limited to, gains or losses on disposition of assets; (iv)
any refund or deficiency of federal, state and/or provincial
income taxes paid in a prior year, and (v) any provision for
federal, state and/or provincial taxes made in prior years
which is subsequently determined to be unnecessary. The
determination of the adjusted net profits made by the
independent accounting firm employed by the Company shall be
final and binding upon the Executive and the Company. The
incentive salary payment shall be made within thirty (30)
days after the Company's independent accounting firm has
concluded its audit of the Company's annual financial
statements. If the final audit is not prepared within
ninety (90) days after the end of fiscal year, the Company
shall make a preliminary payment equal to fifty percent
(50%) of the amount due based upon the adjusted net profits
preliminarily determined by the independent accounting firm,
subject to payment of the balance, if any, promptly
following completion of the audit by the Company's
independent accounting firm. The maximum incentive salary
payable for any one year shall not exceed 100% of the then
applicable base salary of the Executive.
4. BENEFITS
A. Vacation: Following the first three (3) months
of employment, the Executive will be entitled to 25
paid vacation days each year.
B. Sick Leave: The Executive shall be entitled to paid
sick days and bereavement days according to regular policies
and procedures of the Company. Additional sick days or
bereavement days over and above paid leave provided by the
Company, if any, shall be unpaid and shall be granted at the
discretion of the Board of Directors.
C. Medical and Group Life Insurance: The Company
agrees to include the Executive in the group medical and
hospital plan of the Company, if applicable, and provide
group life insurance, if applicable, for the Executive at no
charge to the Executive in the amount of Five Hundred
Thousand ($500,000) USD during the term of this agreement
D. Pension and Profit Sharing:The Executive shall be
entitled to participate in any pension or profit sharing
plan or other type of plan adopted by the Company for the
benefit of its officers and/or regular employees.
E. Expense Reimbursement:The Executive shall be entitled
for reimbursement for all reasonable expenses, including
travel and entertainment, incurred by the Executive in the
performance of the Executive's duties. The Executive will
maintain records and written receipts as required by the
Company policy and reasonably requested by the Board of
Directors to substantiate such expenses.
5. TERM AND TERMINATION
A. The initial term of this Agreement shall commence on
August 15, 2000 and it shall continue in effect for a period
of two (2) years (the "Initial Term"). Thereafter, this
Agreement shall be renewed upon the mutual Agreement of the
Executive and the Company. This Agreement and the
Executive's employment may be terminated at the Company's
discretion during the Initial Term, provided that the
Company shall pay to the Executive an amount equal to
payment at the Executive's base salary for the remaining
period of the Initial Term, plus an amount equal to 12
months of the Executive's base salary. In the event of such
termination, the Executive shall be entitled to receive any
incentive salary payment or other compensation on a prorated
basis through the date of termination. The Company shall
continue to pay medical, life insurance, if applicable, for
the Executive during the severance period and shall pay all
obligations not paid as they accrue, including but not
limited to salary and accrued bonuses and incentive salary.
B. This Agreement and the Executive's employment may be
terminated by the Company at its discretion at any time
after the Initial Term, provided that in such case, the
Executive shall be paid 12 months of the Executive's then
applicable base salary. In the event of such termination,
the Executive will be entitled to receive any incentive
salary payment or other compensation on a prorated basis
through the date of termination.
C. This Agreement may be terminated by the Executive at
the Executive's discretion by providing at least thirty (30)
days prior written notice to the Company. In the event of
such termination by the Executive pursuant to this
subsection, the Company may immediately relieve the
Executive of all duties and immediately terminate this
Agreement provided that the Company shall pay the Executive
at the then applicable base salary rate to the termination
date included in the Executive's original termination
notice.
D. Notwithstanding any other provision of this Agreement,
the Executive's employment may be terminated by the Company
upon five (5) days notice for cause. For purposes of this
Section 5.D., "cause" shall mean:
1. any act of fraud, dishonesty, misappropriation or
similar act of bad faith or negligence on the part of the
Employee;
2. a breach by the Executive of his duties and obligations
under Section 2 hereof, including but not limited failure to
follow the directions of the Board of Directors of the
Company;
3. any action which results in damages to the reputation
or standing of the Company;
4. having been convicted of any criminal act or engaging
in any act of moral turpitude.
In the event of termination of the Agreement pursuant
to this subsection, the Executive shall be paid only at the
then applicable base salary up to and including the date of
termination. The Executive shall not be paid any incentive
salary payments, severance pay or other compensation,
prorated or otherwise.
E. In the event the Company is acquired, or is the non-
surviving party in a merger, or sells or substantially all
of its assets, this Agreement shall not be terminated and
the Company agrees to use its best efforts to ensure that
the transferee or surviving company is bound by the
provisions of this Agreement. If the Executive is not
transferred to the successive entity, this will be treated
as a termination of this Agreement and it shall be
comparable pursuant to sections 5A and 5B of this Agreement.
F. The Executive agrees that the services to be rendered
by him hereunder are unique. Upon termination or expiration
of this Agreement, the Executive shall not engage as an
employee in any competing or related business until after
the occurrence of the later of: (a) the date that is the
third anniversary from the date hereof; or (b) one (1) year
from such termination or the expiration of this Agreement,
including any extensions, renewals or amendments of the term
hereof.
6. NOTICES
Any notice required by this Agreement or given in
connection with it, shall be in writing and shall be given
to the appropriate party by personal delivery or by
certified mail, postage prepaid, or recognized overnight
delivery services, and shall be addressed as follows:
If to the Company:
The Board of Directors - Synergy Technologies
Corporation
c/o Ms. Jacqueline Danforth, Employment
Coordinator
335 25th Street,S.E.
Calgary, Alberta T2A 7H8 Canada
If to the Executive:
Mr. John Gradek
298 Patterson Blvd. SW
Calgary, Alberta
T3H 3K1 Canada
7. FINAL AGREEMENT
This Agreement terminates and supersedes all prior
understandings or agreement on the subject matter hereof.
This Agreement may be modified only by a further writing
that is duly executed by both parties.
8. GOVERNING LAW
This agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
9. HEADINGS
The headings used in this Agreement are provided for
convenience only and shall not be used to construe meaning
or intent.
10. NO ASSIGNMENT
Neither this Agreement nor any interest in this
Agreement may be assigned by the Executive without the prior
express written approval of the Company, which may be
withheld by the Company at the Company's absolute
discretion.
11. SEVERABILITY
If any terms of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then
this Agreement, including all of the remaining terms, will
remain in full force and effect as if such invalid or
unenforceable term had never been included.
12. ARBITRATION
The parties agree that they will use their best efforts
to amicably resolve any dispute arising out of or relating
to this Agreement. Any controversy, claim or dispute that
cannot be so resolved shall be settled by final binding
arbitration in accordance with the rules of the American
Arbitration Association and judgment upon the award rendered
by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof. Any such arbitration shall be
conducted in Calgary, Alberta, or such other place as may be
mutually agreed upon by the parties. Within fifteen (15)
days after the commencement of the arbitration, each party
shall select one person to act as arbitrator, and the two
arbitrators so selected shall select a third arbitrator
within ten (10) days of their appointment. Each party shall
bear its own costs and expenses and an equal share of the
arbitrator's expenses and administrative fees of
arbitration.
13. CONFIDENTIAL INFORMATION
The Executive shall not, for his benefit, or the
benefit of any third party, use, publish or disclose any
proprietary or confidential information relating to (i) the
business, operations or profits of the Company or any of its
subsidiaries, affiliates, customers, suppliers or licensees:
or (ii) any materials, processes, business practices,
technology, know-how research, programs, customer lists,
customer requirements, proprietary and confidential to the
Company which is not discoverable by other means, or other
information used in the sale or marketing of any of the
products or services of the Company. The provisions of this
section shall survive for a period of not less than five (5)
years from the date hereof, plus the length of any
extensions from the Initial Term.
14. WAIVERS
The failure of either party to require performance of
any term or obligation of this Agreement, and the waiver by
either party of any breach of this Agreement shall not
foreclose subsequent enforcement of such a term or
obligation, no such failure to be deemed a waiver of any
subsequent breach.
15. INDEMNIFICATION
The Company will indemnify and hold harmless the
Executive for any amount, claim or cause of action,
including reasonable attorney fees incurred by the Executive
in the performance of Executive duties in good faith.
16. MODIFICATION
No provisions of this Agreement shall be changed or
modified, nor shall this Agreement be discharged, in whole
or in part, except by an Agreement in writing signed by both
parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement all as of the day and year first above written.
SIGNED, SEALED AND DELIVERED
________________________________
WITNESS as to the signature of JOHN GRADEK
JOHN GRADEK
SYNERGY TECHNOLOGIES
CORPORATION, a
Colorado corporation
_________________________
Cameron Haworth,
President
_________________________
Jacqueline Danforth,
Secretary
