EXHIBIT 10.6
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the
“Agreement”) is made and entered into as of August 31,
2009, by and between The Wood Energy Group, Inc., a Missouri
corporation (“Employer”), and Greg Smith, an individual
residing at 2016 Kingspointe Drive, Chesterfield, Missouri 63005
(“Employee”).
RECITALS:
Employer
desires to offer Employee an opportunity to work for Employer as
its president upon the terms and conditions hereinafter set forth,
and Employee desires to accept such offer. Accordingly,
the parties agree as follows:
1.
EMPLOYMENT . Employer hereby employs
Employee and Employee agrees to be employed by Employer as
president, or in such other role to which the parties jointly
agree, for an initial five year term commencing on the date of this
Agreement and terminating on August 31, 2014 (the “Employment
Period”). At least 90 days prior to the end of the
Employment Period, the parties shall consider the extension of the
Employment Period, and shall memorialize, in writing, any agreement
reached related thereto.
2.
COMPENSATION . During the Employment
Period, Employee shall receive as compensation:
(a) Salary
at the annual rate of $150,000, payable not less frequently than
semi-monthly;
(b) The
right to participate in all corporate employee benefit programs
offered to senior executives of Employer or B.H.I.T. Inc.,
Employer’s parent company (“BHIT”), such as
health insurance, life insurance and retirement plans;
and
(c) An
opportunity to earn an annual bonus based upon goals to be
established annually by the Board of Directors of BHIT (the
“Board”) and which will be, in large measure, tied to
the growth of Employer’s earnings before interest, taxes,
depreciation and amortization, or EBITDA.
(d) An
opportunity to receive BHIT equity compensation as determined by
the Board.
(e) It
is understood and agreed that the compensation set forth in this
section includes all of the compensation to be paid to Employee
hereunder and that Employee has agreed to forego any other
compensation, benefits and perquisites, including those he had
received in his position as president of Employer’s
predecessor in the operation of the business of
Employer.
3.
DUTIES . During the Employment Period,
Employee shall report to the Board, who shall be entitled to
establish the duties and responsibilities of Employee hereunder,
consistent with his title, and to modify the foregoing from time to
time.
4.
TERMINATION .
(a) The
employment of Employee pursuant to this Agreement shall terminate
automatically and without further action or liability of either
party other than as provided for in this Agreement upon (i) the
death of Employee, (ii) Employee’s resignation, or (iv) the
termination of Employee’s employment by Employer.
(b) Employer
may elect to terminate Employee’s employment for any
reason. In the event of a termination which is not for
“Cause,” Employer shall pay severance to Employee, at a
rate equal to Employee’s then current annual salary for six
months, or for such shorter period as remains in the Employment
Period (the “Severance Pay”). The Severance
Pay shall be paid in installments, in accordance with
Employer’s payroll procedures as in effect on the date of
this Agreement during the six month period following the date of
such termination of employment. The Severance Pay is
intended by the parties to be in settlement of any and all claims
of Employee arising out of or related to Employee’s
employment with Employer, including, without limitation, the
termination of such employment, any express or implied employment
agreement, this Agreement, or the breach thereof (collectively,
“Employment Claims”). In consideration of
such payment, and as a condition precedent to its delivery,
Employee shall enter into an agreement, in a form satisfactory to
Employer, pursuant to which Employee shall release and waive any
and all Employment Claims against Employer, and covenant not to sue
Employer in connection with any Employment Claim (the
“Release and Severance Waiver”).
(c) Employee
shall be terminated for “Cause” if the termination is
because of any of the following: (i) Employee engaging in fraud,
misappropriation of funds, embezzlement or like conduct committed
against Employer or a customer or supplier of Employer,
(ii) Employee being convicted (or entering a plea of nolo
contendere ) of a crime involving dishonesty or moral
turpitude, (iii) Employee engaging in any act of sexual misconduct
at or in connection with work, including sexual harassment, (iv)
Employee’s alcohol or drug abuse, (v) Employee’s
appropriation of one or more business opportunities of Employer
without the prior written consent of the Board, or other breach of
the common law duty of loyalty, (vi) Employee’s gross
negligence which results in material harm to Employer, (vii)
Employee failing to fulfill the duties and responsibilities of his
job, after notice and an opportunity to cure such failure, and
(viii) Employee violating, in a material respect, any provision of
this Agreement. In the event of such a termination for
Cause, Employer shall have no further obligation to Employee
pursuant to this Agreement after the date of termination other than
for the payment of compensation earned by Employee prior to the
date of termination and not yet paid.
5.
COVENANTS AGAINST COMPETITION . Employee
recognizes and acknowledges that (i) the principal business of
Employer is railroad tie reclamation and disposal (the
“Company Business”); and (ii) the work of Employee for
Employer has brought Employee and will continue to bring him into
close contact with many confidential affairs not readily available
to the public. Accordingly, Employee covenants and
agrees that:
(a)
Non-Compete . During the Employment Period and
for two years following the termination of Employee’s
employment hereunder, however caused, Employee shall not, directly
or indirectly, compete with Employer or any affiliate of Employer
in any manner, on behalf of himself or any other person, firm,
business, corporation or other entity (each such other person,
firm, business or other entity being referred to hereinafter as a
“Person”), including, without limitation, that Employee
shall not (i) engage in the Company Business for his own account;
(ii) except for employment of Employee by Employer or an affiliate
of Employer, enter the employ of, or render any services to, any
Person engaged in the Company Business; or (iii) become interested
in any Person engaged in the Company Business (other than Employer)
as an owner, partner, shareholder, officer, director, licensor,
licensee, principal, agent, employee, trustee, consultant or in any
other relationship or capacity; provided, however, that Employee
may own, directly or indirectly, solely as an investment,
securities of BHIT or any corporation which is traded on any
national securities exchange if he (A) is not a controlling person
of, or a member of a group which controls, such corporation, or (B)
does not, directly or indirectly, own 1% or more of any class of
securities of such corporation.
(b)
Non-Solicitation of Customers . In addition to
the covenants of non-competition set forth in subparagraph (a)
above, during the Employment Period and for two years following the
termination of Employee’s employment with Employer, however
caused, Employee shall not,
