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EXHIBIT 10.08
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this 20th day of
February 2014 ("Effective Date"), by and between Western Standard Energy Corp.,
a Nevada corporation (together with its wholly-owned subsidiary, Dominovas
Energy, LLC, a Delaware limited liability company, the "Company") and Kerry
Stewart (the "Executive"). The Company desires the Executive's employment with
the Company, and the Executive wishes to accept such employment upon the terms
and conditions set forth in this Agreement. In consideration of the mutual
covenants of the parties hereinafter set forth, the parties agree upon the
following terms of continued employment of the Executive by the Company:
ARTICLE I
TERMS OF EMPLOYMENT
Section 1.1. Employment Duties. The Company hereby employs the Executive,
and the Executive hereby accepts employment by the Company. The duties of the
Executive shall include those delegated to him from time to time by the Company.
The Executive shall at all times comply with, and be subject to, those policies
and procedures as the Company may establish from time to time which are
applicable to all employees generally.
Section 1.2. Fiduciary Duties. The Executive acknowledges and agrees that
at all times during the employment relationship, the Executive owes fiduciary
duties to the Company, including but not limited to the fiduciary duties of the
highest loyalty, fidelity and allegiance to act at all times in the best
interests of the Company, to make full disclosure to the Company of all
information that pertains to the Company's business and interests, to do no act
which would injure the Company's business, its interest, or its reputation, and
to refrain from using for Executive's own benefit or for the benefit of others
any information or opportunities pertaining to the Company's business or
interest that are entrusted to Executive or that he learned while employed by
the Company. The Executive agrees to devote his full time and efforts to the
diligent performance of his duties.
Section 1.3. Freedom to Contract. As a condition to Executive's employment
by Company, Executive affirms and represents that he has not executed any other
document and is under no obligation to any former employer or other person or
entity which in any way could be considered inconsistent with, or which poses
any restriction upon his acceptance of employment with Company and the
performance of duties and responsibilities on behalf of Company under this
Agreement.
Section 1.4. Term and Termination.
(a) Term. The initial term of Executive's employment ("Initial Term")
shall begin on March I , 2014 and shall continue for three (3) years from
the Effective Date, unless earlier terminated in accordance with this
Section 1.4. The Executive may, at his option, renew this Agreement for no
more than two (2) additional consecutive terms of one one-year (each, a
"Renewal Term") by giving notice to the Company at least ninety (90)
calendar days prior to the expiration of the preceding Initial Term or
Renewal Term. For purposes hereof, "Term" shall include the Initial Term
and, if applicable, any Renewal Terms.
(b) Termination Upon Death or Disability. The Executive's employment
shall terminate automatically in the event of the Executive's death or
disability (as defined below), and the Company shall pay the Executive or
the Executive's estate or representative, as applicable, the compensation
earned through the date of the Executive's death or the date he is
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determined to have the disability. The Company will purchase for the
Executive long-term disability insurance coverage commensurate with the
Executive's Salary.
(c) Termination by Company. The Company may terminate the Executive's
employment based upon Company's determination of what is in the best
interest of the Company. If such termination is based upon a "material
breach" of any of the terms described herein, Executive has 15 days to cure
said material breach prior to termination pursuant to this Section 1.4(c)
and said curing and any remedy and satisfaction thereof wi11 be determined
by a majority vote of the Board of Directors of the Company. The Company
must give Executive thirty (30) days' advance written notice of any
termination pursuant to this Section 1.4(c). Ifthe Company terminates the
Executive's employment pursuant to this Section 1.4(c), then the Company
shall pay the Executive only such compensation as shall have accrued
through the date of termination.
(d) For Just Cause Termination. During the Term, the Executive shall
be subject to discharge by the Company for Just Cause only by majority vote
of the Board of Directors. Ifthe Company terminates the Executive for Just
Cause, then the Company shall pay the Executive only such compensation as
shall have accrued through the date of termination.
(e) " Disability" Defined. For purposes hereof, "disability" shall be
defined as Executive's inability by reason of illness or other physical or
mental incapacity to perform the duties required by his employment for any
consecutive one (1) month period, provided that notice of any termination
by Company because of Executive's "disability" shall have been given to
Executive prior to the full resumption by him of the performance of such
duties. The Company expressly reserves the right to determine the duties of
Executive's position in its sole discretion. In accordance with applicable
federal, state and/or local law, the Executive will cooperate and provide
the Company with the necessary information to make a determination
concerning the Executive's ability to perform the essential functions of
the position and the likely duration of any period of incapacity.
(f) " Just Cause" Defined. As used herein, the term "Just Cause" shall
include and shall be determined in good faith by the Company:
(i) a material breach by the Executive of any of the terms of this
Agreement;
(ii) the failure by the Executive to perform the services reasonably
required of him to the satisfaction of the Company or to abide by
reasonable directives of the Company (other than due to
disability);
(iii)the indictment or conviction of or pleading of guilty or no
contest by the Executive to a felony;
(iv) the commission by the Executive of an act of fraud or sabotage or
any other act involving moral turpitude, gross misconduct or
dishonesty; (v) conversion, theft, embezzlement or
misappropriation by the Executive of any monies or properties of
the Company other than personal use of immaterial amounts of
office supplies; (vi) the Executive causing material damage to
the business of the Company;
(vii)the violation by Executive of any provision of a Company policy
or procedure relating to securities laws and regulations or
conflict of interest policies;
(viii) the fraudulent breach of any representations or warranties or
the intentional breach of covenants or obligations under the
Purchase Agreement; or
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(viii) the non-adherence to company's policies specific to the meaning
of "full-time" employment and its requirement of physical
attendance Monday through Friday, required and mandated company
travel, vacation time, absences both excused and unexcused.
Section 1.5. Compensation. As compensation for Executive's services during
the Term of this Agreement, the Company agrees to compensate Executive as
follows:
(a) Salaiy. During the Term of this Agreement, Executive shall be
compensated on the basis of an annual salary in the amounts provided below
(the "Salary"), payable in installments in accordance with the Company's
regular payroll practice. The amount of the Salary shall be as follows:
(i) Beginning on the Effective Date until eighteen (18) months after
the Effective Date, the Salary shall be $93,000.00.
(ii) The Salary shall be paid bi-weekly via ADP payroll service.
(iii)Eighteen months after the Effective Date, the Salary shall
increase by twenty-five percent (25%).
(b) Insurance. During the Term of the Agreement, Executive shall be
eligible to participate (subject to uniformly applicable requirements for
participation), in any health insurance plan adopted by the Company for the
benefit of its employees generally. The Company retains the right at all
times to adopt, modify, or terminate any of its benefits and benefit plans.
(c) Withholding. The Company may withhold from any compensation,
benefits, or other amounts payable to the Executive under this Agreement or
otherwise all federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
ARTICLE II
NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE
Section 2.1. Acknowledgements. Executive acknowledges that, as of the date
hereof (i) the principal business of Company and its affiliates, including,
without limitation, Dominovas Energy LLC, is the production, marketing,
distribution, operation, and maintenance of fuel cells and facilities using fuel
cells to product electrical power and the provision of goods and services
related thereto (the "Business"); and (ii) Executive's duties hereunder will
cause Executive to have access to and be entrusted with various trade secrets,
including as defined in Chapter 20 of Title 6 of the Delaware Code and other
applicable state laws, which items are owned exclusively by Company and used in
the operation of the Business ("Trade Secrets").
Section 2.2. Non-Disclosure. During and after the Term (otherwise than in
the performance of this Agreement), without Company's prior written consent,
Executive shall not divulge or use any Trade Secrets to or for any person or
entity except when required by law and then only after consultation with Company
or unless such information is in the public domain. In the event that Executive
becomes or is legally compelled (whether by deposition, interrogatories, request
for documents, subpoena, civil investigative demand or similar process) to
disclose any Trade Secrets, Executive shall provide Company with prompt, prior
written notice of such requirement so that Company may seek a protective order
or other appropriate remedy and/or waive compliance with the provisions of this
Section.
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Section 2.3. Non-Competition. During the period of Executive's employment
and for two years thereafter, Executive will not directly or indirectly, either
as an employee, employer, consultant, agent principal, partner, stockholder,
corporate officer, manager, director, or in any other individual or
representative capacity, engage or participate in any activity or business which
Company shall determine in good faith to be in competition in any substantial
way with the Business anywhere the Company engages in the Business.
Section 2.4. Non-Solicitation. Executive will not during the course of
Executive's employment, or for two years thereafter, either directly or
indirectly call on, solicit, or take away, or attempt to call on, solicit or
take away any of Company's customers or employees on behalf of any business that
is in competition in any substantial way with the Business anywhere the Company
engages in the Business.
Section 2.5. Remedies. If Executive breaches, or threatens to breach, in
any material respect any of the provisions of this Article 2 ("RESTRICTIVE
COVENANTS"), Company shall, in addition to all its other rights hereunder
applicable law and in equity, have the right to seek specific enforcement of the
Restrictive Covenants by any court having jurisdiction, including, without
limitation, the granting of a preliminary injunction which may be granted
without the posting of a bond or other security, it being acknowledged that any
such breach or threatened breach may cause irreparable injury to Company and
that money damages may not provide an adequate remedy to Company.
Section 2.6. Enforceability. If any court of competent jurisdiction
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court of competent jurisdiction construes any of the
Restrictive Covenants, or any part thereof, to be unenforceable because of the
duration or geographic scope of such provision or otherwise, such provision
shall be deemed amended to the minimum extent required to make it enforceable
and, in its reduced from, such provision shall then be enforceable and enforced.
Section 2.7. Tolling of Covenants. Any Restrictive Covenant in this
Agreement that is to last for a period of time shall be tolled during any time
the Executive is in breach of such provision.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. Remedies for Breach. In the event of a breach of this
Agreement by the Executive, the Company shall be entitled to all rights and
remedies available to it at law and in equity, and the Executive agrees to
immediately reimburse the Company for its costs and expenses incurred in
enforcing its rights and remedies under this Agreement, including reasonable
attorneys' fees, costs and expenses.
Section 3.2. Nonwaiver. The Company's failure to insist in one or more
instances, upon the performance of any term or terms of this Agreement shall not
be construed as a waiver or relinquishment of the Company's rights to such
performance or the future performance of such term or terms, and the Executive's
obligations with respect thereto shall continue in full force and effect. The
Company's consent or approval shall not be deemed to render unnecessary the
obtaining of the Company's consent to or approval of any subsequent act by the
Executive, whether or not similar to the act so consented to or approved.
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Section 3.3. Construction. This Agreement shall not be construed in favor
of either party based solely upon who prepared this Agreement, and the parties
hereto recognize and agree that this Agreement is the result of their mutual
negotiation and agreement.
Section 3.4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, the Executive and each of their heirs,
legal representatives, successors and permitted assigns. Because this Agreement
is a contract for personal services, neither it nor any of the Executive's
rights or obligations hereunder may be assigned by the Executive to any third
party. The Company may assign this Agreement with the prior consent of the
Executive, which will not be unreasonably delayed, withheld or conditioned.
Section 3.5. Governing Law. This Agreement shall be enforced and
interpreted in accordance with the laws of the State of Delaware without regard
to conflict of law principles.
Section 3.6. Survival of Provisions. Notwithstanding any termination of the
Executive's employment or a termination of this Agreement, the rights and
obligations of the parties set forth in Article II shall survive any such
termination.
Section 3.7. Notices. For purposes of this Agreement, notices and other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
(a) As to Executive:
Kerry Stewart
3119 Wolf Club Drive
Atlanta, Georgia 30349
(b) As to the Company:
Western Standard Energy Corp.
1395 Chattahoochee Ave.
Atlanta, GA 30318
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
Section 3.9. Post-Employment Assistance. Executive agrees that he will
cooperate, assist, and make himself reasonably available to the Company in the
event that the Company needs assistance locating or understanding the work
performed or supervised by Executive during his employment for a period of two
years after the termination of his employment. Executive also agrees that that
he will cooperate, assist, and make himself reasonably available to the Company
or its legal counsel on an as needed basis in order for the Company to respond
to, defend, or address any charge, complaint, or claim filed, or any issue
raised, by any person employed or formerly employed by the Company.
Section 3.10. Jury Trial Waiver. Notwithstanding any rights to a jury trial
for any claims, each party waives any right to a jury trial, and agrees that any
claim of any type (including but not limited to employment discrimination
litigation, claims in contract or tort, or any other claim) involving this
Agreement lodged in any court will be tried, if at all, without a jury.
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Section 3.11. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this
Agreement, except that this Agreement shall not supersede, or limit the rights
of the Company or the obligations of the Executive, under that certain Equity
Purchase Agreement, dated as of the date hereof, by and among Western Standard
Energy Corp., Dominovas Energy LLC and the Members of Dominovas Energy LLC,
including, without limitation, Section 4.6 thereof.
The parties hereto have executed this Employment Agreement on the day and
year first above written.
WESTERN STANDARD ENERGY CORP. EXECUTIVE
By: /s/ Dallas Gray By: /s/ Kerry Stewart
--------------------------------- ---------------------------------
Dallas Gray, President Kerry Stewart
