Section 4.5 Employment Agreement for Dewey Keith Gabriel
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and entered into as of March [?], 2017, by and between CRESENT CONSTRUCTION COMPANY, INC., a corporation incorporated under the laws of the State of North Carolina (the “Company”), and DEWEY KEITH GABRIEL, an individual (the “Executive”).
WHEREAS, the Company desires to retain the services of Executive as Director of Operations, and Executive desires to be employed by the Company as Director of Operations, upon the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and agreements herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby forever acknowledged and confessed, the parties agree as follows:
1. Employment. The Company hereby employs Executive, and Executive hereby accepts such employment by the Company, upon the terms and conditions specified herein for the Term of Employment (as hereinafter defined).
2. Duties of Executive. During the Term of Employment, Executive is hereby employed as Director of Operations. Executive shall report directly to the Company’s Board of Directors or Managers (as applicable) or such other person as may be designated by the Board of Directors or Managers. In furtherance of the foregoing, Executive shall, subject to the direction and instruction of the Company: (a) devote Executive’s full and entire working time, attention and energies to the Company, and will diligently and to the best of Executive’s ability perform all duties incident to Executive’s employment hereunder; (b) use Executive’s best efforts to promote the interests of the Company; and (c) perform such other duties as the Board of Directors or Managers (as applicable) may from time to time direct.
3. Financial Arrangements.
3.1 Compensation. As compensation for Executive’s services hereunder, the Company shall pay Executive an annual salary of Sixty- Five Thousand Dollars ($65,000.00), payable on at least a monthly basis, subject to such payroll and withholding deductions as may be required by law or as otherwise authorized by Executive in writing. Executive’s compensation arrangement will be reviewed annually by the Board of Directors or Managers (as applicable). All determinations of the Board of Directors or Managers (as applicable) under this Agreement shall be made excluding Executive from such consideration or approval.
3.2 Bonus. In addition to the salary payable to Executive described in that Subsection of this Agreement entitled Compensation, the Company may pay Executive a bonus in accordance with any bonus compensation program as adopted from time to time by the Company (the “Bonus”). The Company shall determine the amount of and pay the Bonus, if any, to Executive in accordance with any bonus compensation program then in effect. The payment of the Bonus, if any, is subject to such payroll and withholding deductions as may be required by law or as otherwise authorized by Executive in writing.
3.3 Expenses. Throughout the term of Executive’s employment hereunder, the Company shall reimburse Executive for all reasonable and necessary travel, entertainment, and other business expenses which may be incurred in direct connection with the performance of Executive’s duties in accordance with policies adopted from time to time by the Company concerning expense reimbursement for Executives. Such expenses as are authorized for payment or reimbursement shall be paid for by the Company or reimbursed to Executive upon presentation to the Company of an itemized expense statement with respect thereto.
3.4 Fringe Benefits. Executive shall receive Company health care and matching 401K plan. Additionally, the Company, as part of the salary of Executive, agrees to maintain a key man life insurance policy in the face amount of $2,000,000.00. At the end of the thirty-six (36) month term of the employment agreement, the key man life insurance policy will be made available to Executive, and assigned to Executive, with the responsibility of Executive to maintain premiums and hold and indemnify the Company from any further responsibility. The Board of Directors or Managers (as applicable) may provide other such Executive fringe benefits as may be authorized and adopted from time to time.
4. Definitions.
4.1 As used herein, the term “Confidential Information” shall mean any information obtained at any time while Executive is or was employed by the Company which is not generally known and which is proprietary to the Company, including, but is not limited to, trade secrets, Inventions (as defined herein), information pertaining to research, computer software, development, techniques, engineering, purchasing, marketing, selling, accounting, licensing, specialized know-how, processes, discoveries, products, equipment, models, prototypes, devices, computer programs, lists of Executives, mailing lists, details of contracts, cost systems, pricing policies, operational methods, marketing plans, business acquisition plans, customer lists, the particular needs and requirements of customers, and the identity of customers and potential customers. All information designated or treated as Confidential Information or as a trade secret by the Company shall, regardless of its source, be deemed Confidential Information for all purposes.
4.2 As used herein, the term “Inventions” shall mean all ideas, discoveries, and improvements, whether or not shown or described in writing or reduced to practice or use, and whether or not patentable, relating in any manner to any of the Company’s present or future products, computer software, services, manufacturing, or research.
5. Restrictive Covenants.
5.1 Non-Disclosure. Executive represents and warrants that Executive is free of any contractual restrictions and restraints in entering this Agreement, and has not, and will not, in connection with his or her employment with the Company divulge any confidential information, trade secrets, or copyright-protected information of any prior employer or of any other third party to whom Executive owes an obligation of confidentiality. Executive recognizes Executive’s responsibility to protect all of the Company’s Confidential Information and agrees to use his or her best efforts and to exercise utmost diligence to protect and guard the Confidential Information of the Company and any subsidiaries or affiliated companies. Executive agrees to hold in strictest and total confidence all Confidential Information. Executive will at no time, without prior written authorization by the Company, disclose or in any way transfer or communicate, or use for the benefit of any person or entity other than the Company, any Confidential Information.
5.2 Return of Confidential Information. Upon termination of employment with the Company or at any other time upon the Company’s request, Executive shall promptly return to the Company all originals and all copies (including photocopies, facsimiles, and computer or other means of electronic storage) of all materials relating in any way to Confidential Information or the business of the Company or any affiliated companies and subsidiaries of the Company, and will so represent to the Company upon termination of employment.
5.3 Work Product. Executive shall promptly and fully disclose to the Company and Executive shall hold in trust for the Company’s sole right and benefit any Invention that Executive makes, conceives, or reduces to practice, or causes to be made, conceived, or reduced to practice during the period when Executive is or was employed with the Company; provided, however, that this disclosure obligation shall only be applicable to those Inventions that relate in any manner to subject matter pertaining to Executive’s employment, or that relate in any manner or are directly or indirectly connected with the business, services, products, projects, or Confidential Information of the Company, or that involve in any manner the use of any time, material, or facilities of the Company, or services of any of the Company’s Executives during normal working hours. All items, including without limitation software, specifications, drawings, samples, tools, technical information, or data, regardless of format or medium, prepared or originated by or for Executive specifically for the Company at the Company’s request in connection with his or her employment shall be the exclusive property of the Company and shall be deemed to be works for hire, and to the extent they may not be works for hire, Executive assigns to the Company all rights, title, and interest in and to such items (“Work Product”), including rights to copyright. Executive hereby assigns to the Company all of Executive’s right, title and interest in and to all Work Product and Inventions that are subject to the disclosure obligations hereof and hereby agrees, upon the Company’s request, to execute, verify, and deliver to the Company documents including, but not limited to, assignments and applications for Letters of Patent, and to perform such other acts, including, but not limited to, appearing as a witness in any action brought in connection with this Agreement, that is deemed reasonably necessary or appropriate by the Company to allow it to obtain the sole right, title, interest and benefit of all such Work Product and Inventions. The assignment of Work Product and Inventions herein and Executive’s agreements in connection therewith shall not apply to any Invention for which: (i) no equipment, supplies, facilities, or Confidential Information of the Company or services of any of the Company’s Executives during normal working hours was used; (ii) was developed entirely on Executive’s own time; (iii) does not relate to (a) the business of the Company or (b) the Company’s actual or demonstratively anticipated research or development; and (iv) which does not result from any work performed by Executive for the Company.
5.4 Non-Disparagement. Executive and the Company shall not disparage the business reputation of the other Party or take any actions that are harmful to the other Party’s goodwill with its customers, shareholders, providers, vendors, Executives, the media or the public.
5.5 Non-Solicitation. During the Term of Employment (as defined below), the Executive shall not, directly or indirectly, for Executive’s benefit or the benefit of a third party, (i) induce or attempt to induce any employees of the Company or any of its subsidiaries or affiliates to leave the employ of the Company or diminish his or her relationship with the Company or (ii) solicit the business of any client or customer of the Company, or any client or customer that could reasonably be expected to be a client or customer of the Company
5.6 Non-Compete. Except as a passive investor in less than five percent (5%) of the equity securities of a publicly held company, during the Term of Employment, the Executive shall not engage in, own or control an interest in, or act as principal, director or officer of, or consultant to, or employee of, or independent contractor to, any firm or corporation (i) engaged in a venture or business substantially similar to that of the Company or (ii) which is in direct or indirect competition with the Company within the United States of America, its territories and possessions.
6. Term and Termination of Agreement.
6.1 Term of Employment. The term of this Agreement (the “Term of Employment”) shall commence effective as of the date hereof (the “Commencement Date”), and shall continue until the third (3rd) anniversary of the Commencement Date, unless extended or earlier terminated as hereinafter provided.
6.2 Termination. Notwithstanding any other provision of this Subsection of this Agreement entitled Termination, Executive’s obligations pursuant to that Section of this Agreement entitled Restrictive Covenants shall continue in full force and effect after termination of Executive’s employment or expiration of this Agreement.
(a) Death. Executive’s employment hereunder shall terminate immediately upon death.
(b) For Cause. Upon first obtaining written consent from TCA GLOBAL CREDIT MASTER FUND, LP, a Cayman Islands limited partnership (“TCA”), the Company may terminate Executive’s employment hereunder at any time, effective immediately upon written notice, for cause. For the purpose of this Agreement “cause” shall mean: (A) continued failure by Executive to perform substantially Executive’s duties and responsibilities (other than a failure resulting from Long-Term Disability) that is materially injurious to the Company and that remains uncorrected for 10 days after receipt of appropriate written notice from the Board of Directors or Managers (as applicable); (B) engagement in willful, reckless or grossly negligent misconduct that is materially injurious to Company or any of its affiliates, monetarily or otherwise; (C) except as provided by (D), the indictment of Executive with a crime involving moral turpitude or a felony; (D) the indictment of Executive for an act of criminal fraud, misappropriation or personal dishonesty; or (E) a material breach by Executive of any provision of this Agreement that is materially injurious to the Company and that remains uncorrected for 10 days following written notice of such breach by the Company to Executive identifying the provision of this Agreement that Company determined has been breached. For purposes of (C) and (D), if the criminal charge is subsequently dismissed with prejudice or the Executive is acquitted at trial or on appeal then the Executive will be deemed to have been terminated without Cause. In the event that Executive is terminated for cause, the Company shall pay Executive’s salary through the date of termination, and shall thereafter have no further obligation to Executive. For purposes of this Subsection of this Agreement entitled Termination, no act, or failure to act, on the part of the Executive shall be deemed “willful” unless done, or omitted to be done, by the Executive without good faith and without reasonable belief that the action or omission was in the best interest of the Company.
(c) Long-Term Disability. Executive’s employment hereunder shall terminate immediately should Executive commence a Long-Term Disability, as hereinafter defined. Executive shall have commenced a “Long-Term Disability” if: (i) Executive cannot perform the essential functions of his employment position, with or without a reasonable accommodation for his disability; or (ii) Executive cannot perform the essential functions of his employment position without an accommodation that would be an undue hardship for the Company to provide. The foregoing definition of Long-Term Disability is not intended to and shall not affect the definition of “disability” or any similar term in any insurance policy the Company may provide.
(d) Without Cause. Upon first obtaining written consent from TCA, Executive’s employment hereunder may be terminated by the Company at any time, effective upon written notice of termination. In the event that Executive is terminated without cause, the Company shall pay Executive’s salary through the date of termination.
(e) By Executive. Executive may terminate this Agreement for Good Reason upon providing Company with written notice and without Good Reason on ninety (90) days’ written notice.
i. Termination by Executive with Good Reason. The Executive may terminate his employment for Good Reason (as defined herein) at any time during the term of this Agreement, by giving written notice to the Company thereof. In the event that Executive terminates his employment for Good Reason, the Company’s obligations to make any further payment to the Executive shall cease. Executive shall execute a release in favor of Company, and the Company shall have no further obligations to the Executive under this Agreement except as otherwise may be provided under the Stock Option Plan or any Option Agreement between Company and Executive.
ii. Termination by Executive without Good Reason. The Executive may terminate his employment at any time, by giving advance written notice to the Company. Any such termination shall become effective on the date specified in such notice, which shall not be earlier than ninety (90) days after the date of such notice (or such earlier date that the Company may determine in its sole discretion), and the Executive shall continue to perform his duties pursuant to the terms of this Agreement for such period. In the event that Executive terminates his employment without Good Reason, the Company shall pay Executive’s salary through the date of termination, and shall thereafter have no further obligation to Executive.
iii. For purposes of this Agreement, “Good Reason” shall mean, without Executive’s consent (A) a reduction by the Company in Executive’s Base Salary pursuant to the terms of this Agreement; (B) requiring Executive to relocate from his current place of residence by more than a hundred miles; (C) a material breach of this Agreement; (D) the failure by Company to obtain the assumption of this Agreement by any successor of Company; or (E) a material reduction in Executive’s authority and responsibility under this Agreement.
7. Additional Provisions.
7.1 Notices. Any notice, demand, or communication required, permitted, or desired to be given hereunder, shall be deemed effectively given when personally delivered or when mailed by prepaid, certified mail, return receipt requested, if to the Company at the Company’s principal place of business and if to Executive at Executive’s last address on file with the Company or to such other address, and to the attention of such other person(s) or officer(s) as either party may designate by written notice.
7.2 Governing Law. This Agreement shall be delivered and accepted in and shall be deemed to be contracts made under and governed by the internal laws of the State of Nevada, and for all purposes shall be construed in accordance with the laws of such State, without giving effect to the choice of law provisions of such State.
7.3 MANDATORY FORUM SELECTION. (a) THE PARTIES IRREVOCABLY AGREE THAT ANY DISPUTE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THIS AGREEMENT OR RELATED TO ANY MATTER WHICH IS THE SUBJECT OF OR INCIDENTAL TO THIS AGREEMENT (WHETHER OR NOT SUCH CLAIM IS BASED UPON BREACH OF CONTRACT OR TORT) SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN BROWARD COUNTY, FLORIDA. THIS PROVISION IS INTENDED TO BE A “MANDATORY” FORUM SELECTION CLAUSE AND GOVERNED BY AND INTERPRETED CONSISTENT WITH FLORIDA LAW. EXECUTIVE HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN SAID COUNTY, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. EXECUTIVE HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE COMPANY AND GUARANTORS AS SET FORTH HEREIN IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF COURT OR OTHERWISE.
7.4 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
7.5 Assignment. This Agreement and the rights and obligations hereunder shall bind and inure to the benefit of any successor or successors of the Company by way of reorganization, merger or consolidation, and any assignee of all or substantially all of its business and properties, but, except as to any such successor or assignee of the Company, neither this Agreement nor any rights or benefits hereunder may be assigned by either party.
7.6 Waiver of Breach. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
7.7 Headings; Gender and Number. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the context hereof requires, the gender of all words shall include the masculine, feminine and neuter, and the number of all words shall include the singular and plural.
7.8 Additional Assurances. The provisions of this Agreement shall be self-operative and shall not require further agreement by the parties except as may be herein specifically provided to the contrary; provided, however, at the request of the Company, Executive shall execute such additional instruments and take such additional acts as the Company may deem necessary to effectuate this Agreement.
7.9 Severability. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not effect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.
7.10 Entire Agreement. This Employment Agreement supersedes all previous agreements, and constitutes the entire Agreement between parties. Executive shall be entitled to no other benefits than those specified herein. No oral statements or prior written material not specifically incorporated herein shall be of any force and effect, and no changes in or additions to this Agreement shall be recognized unless incorporated herein by amendment as provided herein, such amendment(s) to become effective on the date stipulated therein. Executive specifically acknowledges that in entering into and executing this Agreement, Executive relies solely upon the representations and agreements contained in this Agreement and no others.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first written above.
COMPANY:
CRESENT CONSTRUCTION COMPANY, INC.
By: Name: Philip Kirkland Title: Secretary and Treasurer
from what I get out of the employment contract he may have created 2 subsidiary companies Cresent Construction and Design Inc. and Cresent Construction & Design Solutions, Inc. witch would be a wholly owned subsidiaries of cresent construction company inc witch would be owned by ihsi JUST MY OPIOIN ON THE MATTER
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