**Exhibit 10.97**
**DRAFT: 4/18/03**
**EMPLOYMENT AGREEMENT**
     THIS AGREEMENT is made as of the ___day of ___, 2003, by and between XRG Logistics, aFlorida corporation having its principal office located at 5301 W. Cypress Street, Suite 111, TampaFlorida 33607 (hereinafter “**XRGL**”), and Stanley Shadden, an individual residing in ___County,Tennessee (hereinafter “Executive”).
**Witnesseth**:
     Concurrently with the execution and delivery of this Agreement, XRG, Inc., a Delawarecorporation and the parent corporation of XGRL (“XRG”), is purchasing the stock of XRG Logistics,Inc., a Florida corporation (“Stock Purchase”). Upon the consummation of the Stock Purchase, XRGLdesires to employ the Executive, and the Executive wishes to accept such employment with XRGL, uponthe terms and conditions set forth in this Agreement.
     Accordingly, in consideration of the foregoing and the respective covenants of the parties setforth herein, the parties, intending to be legally bound, agree as follows:
     1. Employment. XRGL hereby employs the Executive and the Executive hereby acceptsemployment by XRGL upon the terms and conditions hereinafter set forth. All previous employmentagreements or other terms and conditions of employment between any other entity and the Executiveare hereby terminated and are superseded by this Agreement.
     2. Term. Subject to the provisions of Paragraph 11 hereof, the term of theExecutive’s employment by XRGL under this Agreement shall commence on the date hereof and shallcontinue for a term of five (5) years (“Original Term”). Expiration of the Original Term shall notprevent XRGL from continuing the Executive’s employment beyond such expiration on such terms as maybe mutually satisfactory to XRGL and the Executive. The term of the Executive’s employmenthereunder, including any extension beyond the Original Term, is hereinafter referred to as the“Employment Period”.
     3. Duties. The Executive shall be employed as the President of XRGL and shall havesuch duties as are assigned or delegated to him from time to time by the Board of Directors ofXRGL. The Executive shall devote such time and attention during normal business hours to thebusiness of XRGL as determined by the Board of Directors of XRGL. Nothing herein, however, shallprevent the Executive from engaging in additional activities in connection with personalinvestments and community affairs that do not interfere or conflict with his duties hereunder.
     4. Base Compensation. The Executive shall be paid a salary at an annual rate of$96,000 during the Original Term, which shall be payable in installments in accordance with XRGL’scustomary payroll practices, but no less frequently than monthly. The salary to be paid during anyextension of the Employment Period beyond the Original Term will be as agreed to by XRGL and theExecutive.
     5. Quarterly Bonus. The Executive shall be entitled to participate in a quarterlybonus program. The quarterly bonus program is described in Exhibit A.
 

 

     6. Stock. At the closing of the Stock Purchase, XRG will issue 50,000 shares of XRGcommon stock to the Executive. The Executive will be entitled to an additional 50,000 shares of XRGstock at the one-year anniversary of his employment. In addition, the Executive will be entitledto a bonus of 50,000 shares of XRG stock if XRGL of which the Executive is President, during thefirst year of his contract, exceeds gross revenue of $20 million with operating costs, as describedin Exhibit A “The quarterly bonus program”, not exceeding 85% of gross revenue.
     7. Automobile Expense Allowance. During the Employment Period, XRGL shall pay to theExecutive an automobile expense allowance of $500 per month, which shall be paid to Executive onthe first business day of each month. This amount covers automobile purchase or lease payments andautomobile insurance payments.
     8. Expenses. Subject to compliance by the Executive with such policies regardingexpenses and expense reimbursement as may be adopted from time to time by XRGL, the Executive isauthorized to incur reasonable expenses in the performance of his duties hereunder in furtheranceof the business and affairs of XRGL and XRGL will reimburse the Executive for all such reasonableexpenses, in all cases upon the presentation by the Executive of an itemized account satisfactoryto XRGL in substantiation of such expenses.
     9. Vacations. The Executive shall be entitled to paid vacations in accordance withthe policies of XRGL in effect, from time to time, as determined by the Board of Directors of XRGL;but in any event, Executive shall be entitled to not less than one (1) week per year of paidvacation.
     10. Other Employee Benefits. The Executive shall, during the Employment Period, beeligible to participate in such pension, profit sharing, bonus, life insurance, hospitalization andmedical and other employee benefit plans of XRGL which may be in effect from time to time to theextent he is eligible under the terms of those plans; provided, however, that the allocation ofbenefits under any bonus or other plan which provides that allocations thereunder shall be in thediscretion of the Board of Directors of XRGL shall be as determined from time to time solely by theBoard of Directors; but in any event, Executive shall be entitled to not less than group insurancewith HMO plan.
     11. Termination.
          (a) The Employment Period, the Executive’s compensation and any and all other rights of theExecutive under this Agreement or otherwise as an employee of XRGL shall terminate (except as tocompensation and rights accrued prior to the effective date of such termination): (i) upon thedeath of the Executive; (ii) upon fourteen (14) days prior written notice by XRGL to Executive inthe event of the physical or mental disability of the Executive (as defined in Paragraph 11 (b)below); (iii) for Cause (as defined in Paragraph 11 (c) below), immediately upon the giving ofwritten notice thereof by XRGL to the Executive, or at such later time as such notice may specify;or (iv) without Cause at any time after the initial one-year term hereof, upon not less than sixty(60) days’ prior written notice by either the Executive or XRGL to the other party and subject toParagraph 11 (d) below.
          (b) For purposes of this Agreement, the Executive shall be deemed to have a “physical ormental disability” if for medical reasons he has been unable to perform his duties for thirty (30)consecutive days or ninety (90) days in any 12-month period, all as determined in good faith by aphysician mutually acceptable to Executive and the Board of Directors of XRGL.
          (c) For purposes of this Agreement, the term “Cause” shall be deemed to mean the Executive’sconviction of any crime, the Executive’s commission of any act of willful misconduct or dishonesty,or the material breach of any provision of this Agreement by the Executive.
 

 

          (d) In the event the Employment Period is terminated by XRGL for any reason other than forCause or for the death or the physical or mental disability of the Executive, XRGL shall pay to theExecutive, as XRGL ‘s sole and exclusive obligation related to such termination, the compensationand annual bonuses provided for in this Agreement for the remainder of the Original Term. TheExecutive shall also be entitled to a continuation of medical and life insurance benefits, on thesame terms and conditions as existed immediately prior to such termination, for the remainder ofthe Original Term.
          (e) Executive may terminate his employment for good reason. For purposes of this Agreement,“good reason” shall mean a failure by XRGL to comply with any material provision of this Agreement,which failure is not cured within fourteen (14) days after a written notice of noncompliance hasbeen given by Executive to XRGL , provided that the foregoing notice and cure provisions shall notapply to any failure by XRGL to comply with its payment obligations hereunder.
     12. Non-Disclosure Covenant. The Executive acknowledges that (i) during theEmployment Period and as a part of his employment, the Executive will be afforded access toConfidential Information (as hereinafter defined); (ii) public disclosure of ConfidentialInformation could have a material adverse impact on XRG, on XRGL or on the other subsidiaries ofXRG (hereinafter “XRG Companies”) and their respective businesses; (iii) the Executive possessessubstantial technical expertise and skill with respect to the business of the XRG Companies; and(iv) XRG has required the Executive to make the covenants set forth in this Section 12 as acondition to its purchase of the stock of XRG Logistics, Inc. and the Executive is willing to doso. The Executive acknowledges that the provisions of this Section 12 are reasonable and necessarywith respect to the use of Confidential Information.
     As used in this Agreement, the term “Confidential Information” shall mean inventions andimprovements, ideas, plans, processes, techniques, technology, customer lists, business methods,trade secrets as defined under applicable law, and other information developed or acquired by or onbehalf of the XRG Companies which relate to or affect any aspect of the business of the XRGCompanies. Confidential Information shall not include information that becomes generally known tothe public through no act of Executive in breach of this Agreement.
     In consideration of the foregoing and of continued employment of the Executive by XRGL and thecompensation and benefits paid or provided, and to be paid or provided, to the Executive by XRGL ,the Executive hereby covenants and agrees as follows:
     Both during and after the Employment Period, the Executive shall not, without XRGL ‘s priorwritten consent, disclose to any third party, or use for any purpose other than for the exclusivebenefit of the XRG Companies, any Confidential Information.
     The Executive agrees that disclosures made by the XRG Companies to governmental authorities,to their customers or potential customers, to their suppliers or potential suppliers, to theiremployees or potential employees, to their consultants or potential consultants or disclosures madeby the XRG Companies in any litigation or administrative or governmental proceedings shall not meanthat the matters so disclosed are available to the general public.
     The Executive shall not remove from the premises of the XRG Companies, except when appropriateto the pursuit of their business, any document, record, notebook, plan, model, component, ordevice. The Executive recognizes that, as between the XRG Companies and the Executive, all suchdocuments, records, notebooks, plans, models, components or devices, whether or not developed bythe Executive, are the exclusive property of the XRG Companies. In the event of termination of theExecutive’s employment with XRGL , or upon the earlier request of any of the XRG Companies duringthe Employment Period, the
 

 

Executive shall return to the XRG Companies all documents, records, notebooks, plans, models,components, and devices in the Executive’s possession or subject to the Executive’s control. TheExecutive shall not retain any copies, abstracts, sketches or other physical embodiment of any suchdocument, record, notebook, plan, model, component or device.
     13. Covenant Not to Compete: Non-Interference.
          (a) The Executive acknowledges that the services to be performed under this Agreement are of aspecial and unique character, that the businesses of the XRG Companies are national in scope, thattheir services are marketed throughout the United States, and that the XRG Companies compete withother organizations that are or could be located in any part of the United States. The Executivefurther acknowledges that XRG requires the Executive to agree to the provisions of this Section 13as a condition to its purchase of the stock of XRG Logistics, Inc. In consideration of theforegoing, and in consideration of his continued employment by XRGL the Executive hereby covenantsand agrees that he shall not:
               (i) during the Employment Period, and for a period of five (5) years thereafter, directly orindirectly engage or invest in, own, manage, operate, control or participate in the ownership,management, operation or control of, be employed, associated or in any manner connected with, orrender services or advice to, any business whose services or activities compete, in whole or inpart, with the services or activities of the XRG Companies within the geographical territorieswithin the United States in which the XRG Companies at any time during the Employment Periodconduct their respective businesses;
               (ii) whether for the Executive’s own account or for the account of any other person, at anytime during the Employment Period, and for a period of five (5) years thereafter, solicit thebusiness of any person or entity known by the Executive to be a customer of the XRG Companies,whether or not the Executive had personal contact with such person or entity during his employmentwith XRGL and
               (iii) whether for the Executive’s own account or the account of any other person at any timeduring the Employment Period and for a period of five (5) years thereafter, solicit, employ orotherwise engage as an employee, independent contractor or otherwise, any person who is or was anemployee of any of the XRG Companies during the Executive’s Employment Period, or in any mannerinduce or attempt to induce any employee of any of the XRG Companies to terminate his/heremployment with such company.
     It is understood by and between the parties hereto that the foregoing covenants by theExecutive set forth in this Section 13 are essential elements of this Agreement and that but forthe agreement of the Executive to comply with such covenants, XRGL would not have entered into thisAgreement. XRGL and the Executive have independently consulted their respective counsel and havebeen advised in all respects concerning the reasonableness and propriety of such covenants, withspecific regard to the nature of the businesses conducted by the XRG Companies.
          (b) Notwithstanding any provision of this Agreement to the contrary, the restrictions setforth in Section 13(a) hereof shall not apply in the event that XRGL terminates the EmploymentPeriod during the Original Term for any reason other than for Cause or the physical or mentaldisability of the Executive.
          (c) Notwithstanding that the Executive’s employment hereunder may expire or be terminated asprovided in Section 11 hereof, this Agreement shall continue in full force and effect insofar as isnecessary to enforce the covenants and agreements of the Executive contained in Section 13.
 

 

     14. Injunctive Relief. The Executive acknowledges that the damages that would besuffered by the XRG Companies as a result of a breach of the provisions of Section 12 or 13 of thisAgreement may not be calculable, and that an award of a monetary judgment to any of the XRGCompanies for such a breach would be an inadequate remedy. Consequently, any of the XRG Companiesshall have the right, in addition to any other rights it may have, to obtain, in any court ofcompetent jurisdiction, injunctive relief to restrain any breach or threatened breach hereof orotherwise to specifically enforce any of the provisions of this Agreement and such company shallnot be obligated to post bond or other security in seeking such relief.
     15. Definition of “person”. The term “person” shall mean any individual, corporation,firm, association, partnership, limited liability company or other legal entity or other form ofbusiness organization.
     16. Compliance with Other Agreements. The Executive represents and warrants that theexecution and delivery by the Executive of this Agreement and the performance by the Executive ofhis obligations hereunder will not, with or without the giving of notice or the passage of time, orboth, (i) violate any judgment, writ, injunction or order of any court, arbitrator or governmentalagency applicable to the Executive; or (ii) conflict with, result in the breach of any provisionsof or the termination of, or constitute a default under, any agreement to which the Executive is aparty or by which he is or may be bound.
     17. Waiver of Breach. The waiver by any party hereto of a breach of any provision ofthis Agreement shall not operate or be construed as a waiver of any subsequent breach.
     18. Binding Effect; Benefits. This Agreement shall inure to the benefit of, and shallbe binding upon, the parties hereto and their respective successors, assigns, heirs and legalrepresentatives, including, without limitation, any entity with which XRGL may merge or consolidateor to which it may transfer all or substantially all of its assets. Insofar as the Executive isconcerned, this Agreement, being personal, may not be assigned.
     19. Notices. All notices and other communications which are required or may be givenunder this Agreement shall be in writing and shall be deemed to have been duly given when deliveredin person or three (3) days after being mailed by registered or certified first class mail, postageprepaid.
     20. Entire Agreement; Amendments. This Agreement contains the entire agreement of theparties with respect to the subject matter hereof and supersedes all prior agreements andunderstandings, oral or written, between the parties hereto with respect to the subject matterhereof. This Agreement may not be changed orally, but only by an agreement in writing signed bythe party against whom any waiver, change, amendment, modification or discharge is sought.
     21. Severability. If any provision or provisions of this Agreement shall be declaredinvalid or unenforceable, any such provision or provisions shall be deemed severed from theremainder of the provisions contained herein which shall otherwise remain in full force and effect.
     22. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by andconstrued in accordance with the laws of the State of Florida without giving effect to theprinciples of conflicts of law thereof. The Executive hereby submits to the jurisdiction and venueof the Circuit Court of the State of Florida for the County of Hillsborough or the United StatesDistrict Court for -the Middle District of Florida, Tampa Division, for purposes of any legalaction related hereto. The Executive agrees that service upon him in any such action may be madeby first class mail, certified or registered.
     23. Dispute Resolution. Any dispute, controversy or claim arising out of or relatingto this Agreement (except for matters covered by Section 14 hereof) shall be settled by arbitrationby the American
 

 

Arbitration Association (“AAA”) in accordance with the then current rules in effect governingarbitration of such matters. The arbitration shall be conducted in Tampa, Florida by three (3)independent and impartial arbitrators. The award rendered by the arbitrators shall be final and ajudgment may be entered upon it according to applicable law in any court having jurisdiction. Thearbitrators shall, in the award, allocate the costs and expenses of the arbitration, including AAAfees and expenses, arbitrator compensation and expenses, the cost of any court reporter orstenographer employed by the parties and the reasonable attorneys. fees and expenses of theparties.
     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date abovefirst written.     XRG, Inc. EXECUTIVE:a Delaware corporation       for XRG Logistics, Inc.       By:                      Neil Treitman       Title: Chief Operating Officer  
Attachment: