Employment Agreement between Streicher Mobile Fueling, Inc. and Stanley H. Streicher (Chairman of the Board)

Summary

This agreement, effective November 1, 2000, is between Streicher Mobile Fueling, Inc. and Stanley H. Streicher. It sets the terms for Mr. Streicher’s employment as Chairman of the Board through October 31, 2003, including his duties, a $300,000 annual salary, eligibility for certain benefits, and conditions for bonuses and stock options. The agreement also outlines reimbursement of business expenses, vacation entitlement, and the circumstances under which employment may be terminated, including for cause or disability.

EX-10.1 4 ex10-1_97014.txt EXHIBIT 10.1 EXHIBIT 10.1 EMPLOYMENT AGREEMENT -------------------- THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of November 1, 2000 (the "Effective Date"), by and between Streicher Mobile Fueling, Inc., a Florida corporation (the "Company"), and Stanley H. Streicher (the "Employee"). Recitals -------- The Company desires to obtain the personal services of the Employee as Chairman of the Board of the Company, and the Employee is willing to make his services available to the Company, on the terms and conditions hereinafter set forth; Agreement --------- NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties agree as follows: 1. Employment. 1.1 Employment and Term. The Company hereby agrees to employ the Employee and the Employee hereby agrees to serve the Company, on the terms and conditions set forth herein, for the period commencing on the Effective Date and continuing through October 31, 2003, unless sooner terminated in accordance with the terms and conditions hereof (the "Term"). The Term may be renewed only by mutual written agreement of the Employee and the Company. 1.2 Duties of Employee. The Employee shall serve as the Chairman of the Board of the Company and shall have such powers and duties as may from time to time be delegated to him by the Company's Board of Directors (the "Board"), provided that such duties are consistent with his position. Initially, such powers and duties shall consist of the following: (i) presiding over meetings of the Board and the Company's shareholders; (ii) assisting the Company's management in its efforts to expand its alternative fuels business and enhance its technology; and (iii) supporting the Company's management, upon request, with its customer acquisition and development efforts. The Employee shall report to the Board. The Employee shall devote such working time and attention to the business and affairs of the Company (excluding any vacation and sick leave to which the Employee is entitled) as required by the Employee's duties, rendering such services to the best of his ability, and using his best efforts to promote the interests of the Company. So long as such activities do not interfere with the performance of the Employee's responsibilities as an employee of the Company in accordance with this Agreement, it shall not be a violation of this Agreement for the Employee to (i) serve on corporate, civic or charitable boards or committees, (ii) deliver lectures or fulfill speaking engagements or (iii) manage personal investments. 1.3 Place of Performance. In connection with his employment by the Company, the Employee shall be based at a mutually agreed location, except for travel necessary in connection with the Company's business. 2. Compensation. 2.1 Base Salary. Commencing on the Effective Date of this Agreement, the Employee shall receive a base salary at the annual rate of Three Hundred Thousand Dollars ($300,000)(the "Base Salary") during the Term, payable in installments consistent with the Company's normal payroll schedule, subject to applicable withholding and other taxes. 2.2 Incentive Compensation. The Employee shall be entitled to receive only such bonus payments or incentive compensation as may be determined from time to time by the Board in its sole discretion. The Employee waives any right he may now have or hereafter acquire to participate in any bonus or incentive compensation plan which may presently be in effect or which may hereafter be adopted by the Company for the benefit of its senior management. 2.3 Stock Options. (a) Pursuant to that certain Stock Option Agreement dated effective December 11, 1996, the Employee has been granted non-qualified stock options to purchase 1,000,000 shares of the Company's common stock, 980,000 of which remain unexercised (the "Options"). The Employee hereby agrees that, if requested to do so by a duly adopted resolution of the Board, he will forfeit to the Company, without additional consideration, all Options that have not previously been exercised by the Employee at the time of such request (or such lesser amount of the Options requested by the Board). Effective upon notice to the Employee of the adoption of any such resolution by the Board, any forfeited Options shall be deemed to be null and void and of no further force and effect. (b) The Employee hereby waives any right he may now have or hereafter acquire to participate in and/or be granted stock options under the Streicher Mobile Fueling, Inc. Stock Option Plan or any other stock option plans hereafter adopted by the Company. 3. Expense Reimbursement and Other Benefits. 3.1 Expense Reimbursement. During the Term, the Company, in accordance with expense reimbursement policies and procedures in effect for the Company's employees from time to time, shall reimburse the Employee for all documented reasonable expenses actually paid or incurred by the Employee in the course of and pursuant to the business of the Company. 3.2 Other Benefits. Except as provided in Sections 2.1, 2.2 or 2.3, during the Term: the Employee shall (subject to eligibility) (i) receive such benefits and perquisites as are being provided by the Company to the Employee as of the Effective Date, and (ii) be eligible to participate in any group life, medical, health, dental, disability or accident insurance, pension plan, 401(k) savings and investment plan or other such benefit plan or policy, if any, which may hereafter be adopted by the Company for the benefit of its employees generally, in each case subject to and on a basis consistent with the terms, conditions and overall administration of such plan or arrangement. -2- 3.3 Vacation. During the Term, the Employee shall be entitled to paid vacation in accordance with the policies, programs and practices of the Company generally applicable to its senior management; provided, however, that Employee shall be entitled to not less that three weeks of paid vacation per contract year during the Term. 4. Termination. 4.1 Termination for Cause. Notwithstanding anything contained to the contrary in this Agreement, this Agreement and the Employee's employment hereunder may be terminated by the Company for Cause. As used in this Agreement, "Cause" shall mean (i) subject to the following sentences, any action or omission of the Employee which constitutes (A) a breach of any of the provisions of Section 6 of this Agreement, (B) a breach by the Employee of his fiduciary duties and obligations to the Company, or (C) the Employee's failure or refusal to follow any lawful directive of the Board, in each case which act or omission is not cured (if capable of being cured) within ten (10) days after written notice of same from the Company to the Employee, or (ii) conduct constituting fraud, embezzlement, misappropriation or gross dishonesty by the Employee in connection with the performance of his duties under this Agreement, or a conviction of the Employee of a felony (other than a traffic violation) or, if it shall damage or bring into disrepute the business, reputation or goodwill of the Company or impair the Employee's ability to perform his duties with the Company, any crime involving moral turpitude. The Employee shall be given a written notice of termination for Cause specifying the details thereof. Upon any termination pursuant to this Section 4.1, the Employee shall only be entitled to his Base Salary through the date of termination, reimbursement for all expenses described in Section 3.1 of this Agreement and incurred prior to the date of termination, and any other compensation and benefits provided in accordance with Section 3.2 hereof. Upon making such payments, the Company shall have no further liability hereunder. 4.2 Disability. Notwithstanding anything contained in this Agreement to the contrary, the Company, by written notice to the Employee, shall at all times have the right to terminate this Agreement and the Employee's employment hereunder if the Employee shall, as the result of mental or physical incapacity, illness or disability, fail or be unable to perform his duties and responsibilities provided for herein in all material respects for a period of more than sixty (60) days in any 12-month period. Upon any termination pursuant to this Section 4.2, (i) within thirty (30) days after the date of termination, the Company shall pay the Employee any unpaid amounts of his Base Salary accrued prior to the date of termination and shall reimburse Employee for all expenses described in Section 3.1 of this Agreement and incurred prior to the date of termination, and (ii) in lieu of any further Base Salary, incentive compensation or other benefits or payments to the Employee for periods subsequent to the date of termination the Company shall pay to the Employee the Severance Payments specified in Section 5.1. Upon making such payments, the Company shall have no further liability hereunder; provided, that the Employee shall be entitled to receive any amounts then payable pursuant to any employee benefit plan, life insurance policy or other plan, program or policy then maintained or provided by the Company to the Employee in accordance with Section 3.2 hereof and under the terms thereof. -3- 4.3 Death. In the event of the death of the Employee during the term of his employment hereunder, this Agreement shall terminate on the date of the Employee's death. Upon any termination pursuant to this Section 4.3, (i) within thirty (30) days after the date of termination, the Company shall pay to the estate of the Employee any unpaid amounts of his Base Salary accrued prior to the date of termination and reimbursement for all expenses described in Section 3.1 of this Agreement and incurred by Employee prior to his death, and (ii) in lieu of any further Base Salary, incentive compensation or other benefits or payments to the estate of the Employee for periods subsequent to the date of termination the Company shall pay to the estate of the Employee the Severance Payments specified in Section 5.1. Upon making such payments, the Company shall have no further liability hereunder; provided, that the Employee's spouse, beneficiaries or estate, as the case may be, shall be entitled to receive any amounts then payable pursuant to any employee benefit plan, life insurance policy or other plan, program or policy then maintained or provided by the Company to the Employee in accordance with Section 3.2 hereof and under the terms thereof. 4.4 Termination Without Cause. At any time the Company, by a duly adopted resolution of the Board, shall have the right to terminate this Agreement and the Employee's employment hereunder by written notice to the Employee. Upon any termination pursuant to this Section 4.4, (i) within thirty (30) days after the date of termination, the Company shall pay the Employee any unpaid amounts of his Base Salary accrued prior to the date of termination and shall reimburse Employee for all expenses described in Section 3.1 of this Agreement and incurred prior to the date of termination, and (ii) in lieu of any further Base Salary, incentive compensation or other benefits or payments to the Employee for periods subsequent to the date of termination the Company shall pay to the Employee the Severance Payments specified in Section 5.1. The amount of any payment (including Severance Payments) provided for in this Section 4.4 will not be reduced by any compensation the Employee earns as the result of employment by another employer or business during the period the Company is obligated to make payments hereunder. Upon making such payments, the Company shall have no further liability hereunder; provided, that the Employee shall be entitled to receive any amounts then payable pursuant to any employee benefit plan, life insurance policy or other plan, program or policy then maintained or provided by the Company to the Employee in accordance with Section 3.2 and under the terms thereof. 4.5 Voluntary Resignation. The Employee may, upon not less than thirty (30) days' written notice to the Company, resign and terminate his employment hereunder. In the event the Employee resigns as an employee of the Company, he shall be entitled to receive only such payment(s) as he would have received had he been terminated pursuant to Section 4.1 hereof. The Employee shall give the Company not less than thirty (30) days prior written notice of his intention to resign. 5. Severance Payments. 5.1 Amount of Benefit. Upon any termination of this Agreement pursuant to Section 4.2, 4.3 , 4.4 or 4.5, the Company shall continue to pay the Employee (or shall pay his estate, in the event of his death), installments equal to the amounts of his Base Salary (at the rate in effect at the date of termination) that would have been paid to the Employee had this Agreement and his employment hereunder not been terminated (i) if this Agreement is terminated pursuant to -4- Section 4.2 or 4.3, until the end of the Term, (ii) if this Agreement is terminated pursuant to Section 4.4, until the later of (A) eighteen months following the date of termination, and (B) October 31, 2002, or (iii) if this Agreement is terminated pursuant to Section 4.5, until October 31, 2002 (the "Severance Payments"). If during the Noncompete Period (as defined in Section 6.3) the Employee engages in conduct or activities that constitute a breach of the provisions of Section 6.1, 6.2 or 6.3, then the Company's obligation to pay the Employee (or his estate) any further Severance Payments shall cease and the Company shall have no further liability for Severance Payments hereunder; provided, that the Company shall provide the Employee not less than thirty (30) days prior written notice of its intention to discontinue Severance Payments; provided, further, that if the Employee in good faith disputes whether he has breached the provisions of Section 6.1, 6.2 or 6.3 and so notifies the Company in writing within ten (10) days of receiving such notice, then the Company shall continue to make the Severance Payments until such time as the dispute is resolved but may, at its option, make such payments to an escrow account established for such purpose (or if litigation has commenced with regard to such dispute, to deposit such payments with the clerk of the court having jurisdiction of the dispute). 5.2 Lump Sum Payment. At the Company's option, the Severance Payments (or any remaining installments thereof) may be discharged in full by delivering to the Employee (or the estate of the Employee) a lump sum payment by bank or cashiers cashier's check in an amount equal to the present value of the flow of cash payments (or remaining installments thereof) that would otherwise be paid to the Employee pursuant to Section 5.1. Such present value shall be determined as of the date of delivery of the lump sum payment by the Company and shall be based on a discount rate equal to the interest rate of 90-day U.S. Treasury bills, as reported in The Wall Street Journal (or similar publication), on the third business day prior to the delivery of the lump sum payment. 6. Restrictive Covenants. 6.1 Nondisclosure. (a) The Employee agrees that he shall not divulge, communicate, use to the detriment of the Company or for the benefit of any other person or persons, or misuse in any way, any Confidential Information (as hereinafter defined) pertaining to the business of the Company. Any Confidential Information or data now or hereafter acquired by the Employee with respect to the business of the Company (which shall include, but not be limited to, information concerning the Company's financial condition, prospects, technology, customers and marketing and promotion of the Company's services) shall be deemed a valuable, special and unique asset of the Company that is received by the Employee in confidence and as a fiduciary, and the Employee shall remain a fiduciary to the Company with respect to all of such information. For purposes of this Agreement, "Confidential Information" means information disclosed to the Employee or known by the Employee as a consequence of or through his employment by the Company (including information conceived, originated, discovered or developed by the Employee), and not generally known or available, about the Company or its business. Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Employee from disclosing Confidential Information to the extent required by law. -5- (b) The Employee agrees to (i) return to the Company upon request, and in any event, at the time of termination of employment for whatever reason, all documents, equipment, notes, records, computer disks and tapes and other tangible items in his possession or under his control which belong to the Company or any of its affiliates or which contain or refer to any Confidential Information relating to the Company or any of its affiliates and (ii) if so requested by the Company, delete all Confidential Information relating to the Company or any of its affiliates from any computer disks, tapes or other re-usable material in his possession or under his control which contain or refer to any Confidential Information relating to the Company or any of its affiliates. 6.2 Nonsolicitation of Employees. While employed by the Company and for a period of two (2) years thereafter, Employee shall not directly or indirectly, for himself or for any other person, firm, corporation, partnership, association or other entity, attempt to employ or enter into any contractual arrangement with any employee or former employee of the Company, unless such employee or former employee has not been employed by the Company for a period of more than twelve (12) months. 6.3 Noncompetition. (a) Between the Effective Date and the later of (i) October 31, 2002 and (ii) the termination of this Agreement (the "Noncompete Period"), unless otherwise waived in writing by the Company (such waiver to be in the Company's sole and absolute discretion), the Employee shall not, directly or indirectly, engage in, operate, manage, have any investment or interest or otherwise participate in any manner (whether as employee, officer, director, partner, agent, security holder, creditor, consultant or otherwise) in any sole proprietorship, partnership, corporation or business or any other person or entity (each, a "Competitor") that engages, directly or indirectly, in a Competing Business; provided, that (A) the Employee may continue to hold securities of the Company and/or acquire, solely as an investment, shares of capital stock or other equity securities of any Competitor which are publicly traded, so long as the Employee does not control, acquire a controlling interest in, or become a member of a group which exercises direct or indirect control of, more than five percent (5%) of any class of equity securities of such Competitor; and (B) the Employee may be employed by or consult with a Competitor whose primary business is not a Competing Business, so long as the Employee does not provide any services to such Competitor with respect to its Competing Business. For purposes of this Agreement, the term "Competing Business" means mobile fleet fueling. (b) Notwithstanding anything in Section 6.3(a) to the contrary, if this Agreement is terminated by the Company pursuant to Section 4.4, the provisions of Section 6.3(a) shall remain in effect so long as Severance Payments are being made by the Company pursuant to Sections 4.4 and 5.1; provided, that if the Company pays to the Employee the Severance Payments in a lump sum pursuant to Section 5.2, the provisions of Section 6.3(a) shall remain in effect for the entire period during which Severance Payments would have otherwise been made; and provided further, that if after the end of the Noncompete Period the Employee engages in conduct or activities that, but for the expiration of the Noncompete Period, would constitute a breach of the provisions of Section 6.3(a), then the Company's obligation to pay the Employee (or his estate) any further Severance Payments shall cease and the Company shall have no further liability for Severance Payments hereunder -6- 6.4 Injunction. It is recognized and hereby acknowledged by the parties hereto that a breach by the Employee of any of the covenants contained in Section 6.1, 6.2 or 6.3 of this Agreement will cause irreparable harm and damage to the Company, the monetary amount of which may be virtually impossible to ascertain. As a result, the Employee recognizes and hereby acknowledges that the Company shall be entitled to an injunction from any court of competent jurisdiction enjoining and restraining any violation of any or all of the covenants contained in Section 5 of this Agreement by the Employee or any of his affiliates, associates, partners or agents, either directly or indirectly, and that such right to injunction shall be cumulative and in addition to whatever other remedies the Company may possess. 7. Entire Agreement. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement and this Agreement contains the entire agreement, and supersedes any other agreement or understanding, between the Company and the Employee relating to the Employee's employment and any compensation or benefits in respect thereof (including, without limitation, that certain Employment Agreement dated December 11, 1996). 8. Notices: All notices and other communications required or permitted under this Agreement shall be in writing and will be either hand delivered in person, sent by facsimile, sent by certified or registered first class mail, postage pre-paid, or sent by nationally recognized express courier service. Such notices and other communications will be effective upon receipt if hand delivered or sent by facsimile, five (5) days after mailing if sent by mail, and one (l) day after dispatch if sent by express courier, to the following addresses, or such other addresses as any party may notify the other parties in accordance with this Section: If to the Company: 2720 NW 55th Court Fort Lauderdale, Florida 33309 Attention: Board of Directors Facsimile: (954) 739-3842 If to the Employee: 943 Pepperidge Terrace Boca Raton, Florida 33486 Facsimile: 561 ###-###-#### 9. Successors and Assigns. (a) This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by the Employee otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Employee's legal representatives. (b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. (c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the -7- Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, "Company" shall mean the Company and any successor to its business and/or assets which assumes and agrees to perform this Agreement by operation of law or otherwise. 10. Severability. The invalidity of any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law, and, in the event that any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall be declared invalid, this Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is caused by length of time or size of area, or both, the otherwise invalid provision will be considered to be reduced to a period or area which would cure such invalidity. 11. Waivers. The waiver by either party hereto of a breach or violation of any term or provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation. 12. Resolution of Disputes; Damages. (a) With the exception of proceedings for equitable relief brought pursuant to Section 6.4 of this Agreement or otherwise, any disputes arising under or in connection with this Agreement, including, without limitation, any assertion by any party hereto that the other party has breached any provision of this Agreement, shall be resolved by arbitration, to be held in Ft. Lauderdale, Florida, in accordance with the then current rules and procedures of the American Arbitration Association. All costs, fees and expenses, excluding attorney fees incurred by the Employee, of any arbitration in connection with this Agreement, which arbitration results in any final decision of the arbitrator(s) requiring the Company to make a payment to the Employee, shall be borne by, and be the obligation of, the Company. Conversely, should the arbitration result in a final decision of the arbitrator(s) in favor of the Company and not require the Company to make payment to the Employee, then the Employee, in addition to all other costs, fees and expenses, including attorney fees incurred by the Employee in connection with such arbitration proceedings, shall also be required to reimburse the Company for all costs, fees and expenses, excluding attorney fees incurred by the Company in such proceedings. The obligation of the Company and the Employee under this Section 12 shall survive the termination for any reason of the Term (whether such termination is by the Company, by the Employee or upon the expiration of the Term). Pending the outcome or resolution of any arbitration commenced or brought in good faith by the Employee, the Company shall continue payment and provision of the Base Salary and other compensation and the benefits provided for Employee in this Agreement. (b) Nothing contained herein shall be construed to prevent the Company or the Employee from seeking and recovering from the other damages sustained by either or both of them as a result of its or his breach of any term or provision of this Agreement, except that the payment required to be made by the Company to the Employee pursuant to Section 4.4 shall be the Employee's exclusive remedy for any termination of this Agreement pursuant to such section. -8- 13. No Third Party Beneficiary. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person (other than the parties hereto and, in the case of Employee, his heirs, personal representative(s) and/or legal representative) any rights or remedies under or by reason of this Agreement. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principals of conflict of laws. 15. Counterparts. This Agreement may be executed in one or more counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement as of the date first above written. COMPANY: STREICHER MOBILE FUELING, INC. By: /s/ Richard E. Gathright ------------------------------------------ Richard E. Gathright President and Chief Executive Officer EMPLOYEE: /s/ Stanley H. Streicher --------------------------------------------- Stanley H. Streicher -9-