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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of
_________________, 2005 (the "Effective Date"), by and between
USG&E, INC. a
Delaware corporation ("USG&E"), and DOUG MARCILLE, a
resident of Florida
("Employee").
RECITALS:
WHEREAS, Employee has become employed by USG & E; and
WHEREAS, USG&E wishes to employ Employee and to obtain
reasonable
protection against unfair competition by Employee, and Employee
wishes to be an
employee of USG&E and grant such protection to USG&E,
all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties,
covenants and agreements set forth herein, the parties hereto
agree as follows:
AGREEMENT:
1. Employment.
(a) Employment. During the Term (as defined in Section 1(b)
below),
USG&E shall employ Employee as the President and Chief
Executive Officer of
USG&E, and Employee shall provide services to USG&E
consistent with such
position. In such position, Employee shall also perform services
for any
subsidiary of USG&E for no other consideration.
(b) Term. The term of this Agreement shall commence on the
Effective
Date and, unless earlier terminated pursuant to Section 3 below,
shall continue
for a period of thirty-six (36) months thereafter (the
"Term").
(c) Duties and Responsibilities. During the Term, Employee
shall
devote his full time and efforts to the service of USG&E,
shall perform his
duties honestly, diligently, competently, in good faith and in
the best
interests of USG&E and shall use his best efforts to promote
the interests of
USG&E. Employee shall perform the duties consistent with his
role as President
and Chief Executive Officer, subject to direction from
USG&E's Board of
Directors.
2. Compensation and Benefits.
(a) Base Salary. In consideration for the Employee's
services
hereunder and the restrictive covenants contained herein,
USG&E shall pay to
Employee a base salary of $244,000 (the "Salary"). The Salary
shall be payable
in accordance with USG&E's customary payroll practices.
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(b) Bonus. In addition to the Salary and as additional
consideration
for Employee's agreement to the restrictions set forth in
Sections 4 and 5
below, and upon the attainment of such targets as the Board of
Directors of
USG&E shall set, USG&E shall pay to Employee a bonus
(the "Bonus") of up to 60%
of his base salary. Such targets shall be set annually in
advance or otherwise
agreed to by the Board of Directors.
(c) Special Compensation. USG&E shall pay Employee's costs
of
maintaining his CPA license and his membership in the
Massachusetts Bar,
including costs associated with continuing education required to
maintain such
license and membership.
(d) Other Compensation Programs. Employee shall be entitled
to
participate in any incentive and deferred compensation programs,
stock option
and other equity based programs and such other programs as may
be established
and maintained from time to time for the benefit of USG&E's
executive officers
or employees, subject to the provisions of such programs.
(e) Vacations. Employee shall be entitled to vacation on an
annual
basis in accordance with USG&E's published policies.
Employee shall be entitled
to be reimbursed for any accrued and unused vacation time as of
the date he is
no longer an employee of USG&E.
(f) Fringe Benefits. Employee shall be entitled to participate
in any
health, dental, life, and disability insurance programs and in
any pension,
profit sharing or other fringe benefit programs that may be
established and
maintained from time to time for the benefit of USG&E's
executive officers or
employees, subject to the provisions of such plans and
programs.
(g) Expenses. The Employee shall be reimbursed for all out of
pocket
expenses reasonably incurred by him on behalf of or in
connection with the
business of USG&E, pursuant to the normal standards and
guidelines published
from time to time by USG&E.
(h) Withholding. All payments made to the Employee hereunder
shall be
made net of any applicable withholding for income taxes and the
Employee's share
of FICA, Medicare or other taxes. USG&E shall withhold such
amounts from such
payments to the extent required by applicable law and remit such
amounts to the
applicable governmental authorities in accordance with
applicable law.
3. Early Termination.
(a) Termination for Cause. At any time during the Term,
USG&E shall
have the right to terminate this Agreement and to discharge the
Employee for
Cause (as defined below). Such termination shall be effective
upon delivery of
written notice to the Employee specifying the facts giving rise
to Cause. For
purposes of this Agreement, Cause shall mean:
(i) Employee's material breach of this Agreement which has a
material adverse effect on USG&E, after Employee has been
given
written notice specifying such breach and Employee has failed to
cure
such breach within a reasonable time;
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(ii) Employee's continuing failure or refusal to perform the
duties and responsibilities of his office, and such failure or
refusal
has a material adverse effect on USG&E, after Employee has
been given
written notice specifying such failure or refusal and Employee
has
failed to cure such breach within a reasonable time;
(iii) Employee's gross negligence or willful misconduct in
the
performance of his duties hereunder,
(iv) Employee's commission of an act of dishonesty adversely
affecting USG&E or the commission of an act constituting
common law
fraud or a felony, or
(v) Employee's willful and intentional commission of an act
(other than the good faith exercise of his business judgment in
the
performance of his duties) causing material harm or loss to
USG&E or
its business reputation.
If at any time during the Term Employee is terminated for Cause,
Employee shall
receive his Salary through the date of Termination and USG&E
shall thereafter
have no further obligation to Employee. If Employee is
terminated for Cause and
thereafter it is determined that Cause did not exist, the
Employee shall receive
the compensation provided in Subsection 3(b) below as if he had
been terminated
without Cause.
(b) Without Cause. At any time during the Term, USG&E shall
have the
right to terminate this Agreement and to discharge Employee
without Cause, such
termination to be effective upon delivery of written notice of
termination to
Employee. Upon any such termination by USG&E without Cause,
and provided that
Employee is otherwise in compliance with the provisions of
Sections 4 and 5
below, Employee shall be entitled to receive:
(i) his Salary, plus any accrued but unpaid Bonus, through
the
date of termination; plus
(ii) for each month remaining in the Term, an amount equal to
the
monthly portion of his Salary, when and as the same would have
been
due and payable hereunder but for such termination; plus
(iii) any Bonus that is earned during the year in which the
termination occurs, to be paid when and if USG&E meets the
bonus
targets previously established for that particular year;
plus
(iv) continuing coverage for health, disability, dental or
life
insurance from USG&E's then existing fringe benefit programs
for the
remaining term of the Agreement; provided, however, that
USG&E's
obligation shall end on the date on which the Employee becomes
covered
by comparable benefits by a subsequent employer; plus
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(v) all stock option grants, restricted stock grants or
other
equity grants issued during the term of this Agreement, will
immediately vest and such securities to the extent they are
options to
purchase equity of the Company, will remain exercisable for the
lesser
of the unexpired term of the option without regard to the
termination
of Employee's employment or two (2) years from the date of
termination
of employment.
Upon payment of such amounts hereunder, USG&E shall not have
any further
obligations to Employee hereunder.
(c) Voluntary Resignation. If Employee should resign
voluntarily, he
will receive his Salary through the date of termination and
thereafter USG&E
shall have no further obligation to Employee hereunder.
Notwithstanding the
foregoing, if Employee voluntarily resigns for "Good Reason,"
such resignation
shall be treated as a termination
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