Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this ____ day of
____, 1998, between Enfinity Corporation, a Delaware corporation ("Enfinity"),
and Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the parties hereto wish to enter into an employment agreement
to employ the Executive as the President and Chief Operating Officer of Enfinity
on the terms and conditions contained in this Agreement, and to set forth
certain additional agreements between the Executive and Enfinity.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the parties hereto agree as follows:
1. TERM.
The term of this Agreement shall begin on the closing of Enfinity's initial
public offering and continue for three (3) years from such closing. Upon the
expiration of such initial three-year period and upon each anniversary date
thereof, the term of this Agreement shall be extended for an additional one-year
period unless, not later than three months prior to each respective renewal
date, either party to this Agreement shall have given notice to the other that
this Agreement shall not be so extended . Notwithstanding the foregoing, the
Executive's employment hereunder may be earlier terminated, as provided in
Sections 4 and 12 hereof. The period of time between the commencement and the
termination of the Executive's employment hereunder shall be referred to herein
as the "Employment Period."
2. EMPLOYMENT.
(a) POSITION AND REPORTING. Enfinity hereby employs the Executive for
the Employment Period as President and its Chief Operating Officer on the terms
and conditions set forth in this Agreement.
(b) AUTHORITY AND DUTIES. The Executive shall exercise such authority,
perform such executive duties and functions and discharge such responsibilities
as are typically associated with the Executive's position, commensurate with the
authority vested in the Executive's position, pursuant to this Agreement and
consistent with the By-Laws of Enfinity. Without limiting the generality of the
foregoing, the Executive shall report directly and be responsible to the Chief
Executive Officer of Enfinity. During the Employment Period, the Executive shall
devote his full business time, skill and efforts to the business of Enfinity.
Notwithstanding the foregoing, the Executive may (i) make and manage passive
personal business investments of his choice (in the case of publicly-held
corporations, not to exceed one percent (1%) of the outstanding voting stock
without the approval of the Board of Directors of Enfinity (the "Board") and not
to exceed three percent (3%) of the outstanding voting stock with the approval
of the Board, which approval shall not be unreasonably withheld or delayed) and
serve in any capacity with any civic,
educational or charitable organization, or any trade association, without
seeking or obtaining approval by the Board, provided such activities and service
do not materially interfere or conflict with the performance of his duties
hereunder and (ii) with the approval of the Board, which shall not be
unreasonably be withheld or delayed, serve on the boards of directors of other
corporations.
3. COMPENSATION AND BENEFITS.
(a) SALARY. During the Employment Period, Enfinity shall pay to the
Executive, as compensation for the performance of his duties and obligations
under this Agreement, a base salary at the rate of $200,000 per annum, payable
in arrears not less frequently than monthly in accordance with the normal
payroll practices of Enfinity. Such base salary shall be subject to review each
year for possible increase by the Board, but shall in no event be decreased from
its then-existing level during the Employment Period.
(b) ANNUAL BONUS. For 1998 and subsequent years, Enfinity shall develop,
as soon as practicable after the effective date of Enfinity's IPO, a written
incentive bonus plan setting forth reasonable criteria and performance standards
under which the Executive and other officers and key employees will be eligible
to receive year-end bonus awards (the "Bonus Plan"). Any bonus payable to the
Executive pursuant to the Bonus Plan shall be paid within 45 days following the
end of the applicable fiscal year. It is understood that the performance
criteria for determining actual bonuses will be determined by the Executive and
the Compensation Committee of the Board (once constituted) but that the criteria
and performance standards to be set under the Bonus Plan will be tied to
Enfinity's anticipated results of operations for the applicable bonus period.
(c) OTHER BENEFITS. The Executive shall be entitled to receive
additional benefits and compensation from Enfinity in such form and to such
extent as specified below:
(i) Insurance. The Executive shall be entitled to participate, at
the sole cost and expense of Enfinity, in the medical, disability, dental, life
and other insurance and benefit plans made available by Enfinity to any of its
other officers, directors and key employees.
(ii) Business Expenses. Enfinity shall promptly reimburse the
Executive for all business travel and other out-of-pocket expenses reasonably
incurred by the Executive in the performance of the Executive's services
pursuant to this Agreement. All reimbursable expenses shall be documented in
reasonable detail by the Executive upon submission of any request for
reimbursement.
(iii) Other Perquisites. Enfinity shall provide the Executive
with other executive perquisites as may be available to or deemed appropriate
for the Executive by the Board and participation in all other Enfinity-wide
employee benefits as available from time to time, including, but not limited to,
four (4) weeks of paid vacation per year.
-2-
(d) INDEMNIFICATION. In connection with any threatened, pending or
contemplated claim, demand, liability, action, suit, arbitration or proceeding,
whether civil, criminal, administrative or investigative, or any appeal
therefrom, whether by or in the right of Enfinity or otherwise, arising out of
or relating to the fact that the Executive is or was a director, officer,
employee or agent of Enfinity (or any predecessor of Enfinity, whether or not
incorporated), or is or was serving at the request of Enfinity in any such role
for any other corporation or entity, or by reason of anything done or not done
by the Executive in any such capacity, Enfinity hereby expressly agrees and
shall indemnify and hold harmless the Executive, to the fullest extent
authorized by law, against any and all expenses (including, without limitation,
attorneys' fees and all other costs, expenses or obligations paid or incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal) any such matter), damages, judgments, fines and amounts
paid in settlement, as actually and reasonably incurred by the Executive in
connection therewith. In the event that both the Executive and Enfinity are made
a party to the same action, complaint, suit, arbitration or proceeding, Enfinity
agrees to engage competent and experienced legal counsel reasonably acceptable
to the Executive, and the Executive agrees to use the same legal counsel,
provided that if counsel selected by Enfinity could reasonably be expected to
have a conflict of interest that prevents such counsel from vigorously
representing the Executive, then the Executive shall be entitled to engage
separate legal counsel and Enfinity shall pay all costs, expenses or obligations
paid or incurred in connection with such separate legal counsel. Further, while
the Executive is expected at all times to use the Executive's best efforts to
discharge faithfully his duties under this Agreement, the Executive cannot be
held liable to Enfinity for a breach of his duty of care, acts or omissions made
in good faith or where the Executive has not exhibited intentional misconduct or
performed criminal and fraudulent acts which materially damage the business of
Enfinity. Enfinity shall promptly pay (or advance to the Executive, to the
fullest extent authorized by law) on behalf of and for the Executive, upon
presentation of invoices, any and all amounts for which indemnification is
provided under this Section 3(d). In addition, Enfinity shall purchase and
maintain directors' and officers' liability insurance in an amount and in a form
customarily held by publicly-traded companies situated similarly to Enfinity,
and the Executive shall be a beneficiary of such policy or policies.
Notwithstanding any statement contained in this Agreement to the contrary, the
obligations of Enfinity set forth in this Section 3(d) shall survive any
termination or expiration of this Agreement.
4. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE. This Agreement and Executive's
employment may be terminated in any one of the following ways:
(i) Death. The death of the Executive shall immediately terminate
this Agreement with no severance compensation due to the Executive's estate.
(ii) Disability. If, as a result of incapacity due to physical or
mental illness or injury, as reasonably determined by the Executive's physician,
the Executive shall have been absent from the Executive's full-time duties
hereunder for six (6) consecutive months, then thirty (30) days after receiving
written notice (which notice may occur before or after the end of such
-3-
six (6) month period, but which shall not be effective earlier than the last day
of such six (6) month period), Enfinity may terminate the Executive's employment
hereunder provided the Executive is unable to resume his full-time duties at the
conclusion of such notice period. Also, the Executive may terminate his
employment hereunder if his health should become impaired to an extent that
makes the continued performance of the Executive's material duties hereunder
hazardous to the Executive's physical or mental health or life, provided that
the Executive shall have furnished Enfinity with a written statement from the
Executive's doctor to such effect and provided, further, that, at Enfinity's
request made within thirty (30) days of the date of such written statement, the
Executive shall submit to an examination by a doctor selected by Enfinity who is
reasonably acceptable to the Executive or his doctor and such doctor shall have
concurred in the conclusion of the Executive's doctor. If the two doctors cannot
agree as to whether or not the Executive is so disabled, the two doctors shall
designate a third doctor to examine the Executive and a majority of the three
doctors so selected shall make such determination. In the event this Agreement
is terminated by either party as a result of the Executive's disability,
Enfinity shall continue to compensate the Executive at his then-current base
salary until such time as any applicable waiting periods under the Executive's
long-term disability policy provided by Enfinity shall be exhausted and the
Executive shall be receiving payments pursuant to such policy.
(iii) Good Cause. Enfinity may terminate this Agreement at any
time ten (10) days after delivery of written notice to the Executive for good
cause, which shall be: (1) the Executive's willful, material and irreparable
breach of this Agreement; (2) the Executive's gross negligence in the
performance or intentional nonperformance (continuing for ten (10) days after
receipt of written notice from Enfinity that specifically identifies the manner
in which Enfinity believes that the Executive has failed to perform such duties
and responsibilities) of any of the Executive's material duties and
responsibilities hereunder; (3) the Executive's willful dishonesty, fraud or
misconduct with respect to the business or affairs of Enfinity which materially
and adversely affects the operations or reputation of Enfinity; (4) the
Executive's conviction of a felony crime; or (5) chronic alcohol abuse or
illegal drug abuse by the Executive. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for good cause without (x)
reasonable written notice to the Executive setting forth the reasons for
Enfinity's intention to terminate for good cause, (y) an opportunity for the
Executive, together with his legal counsel, to be heard before the Board, and
(z) delivery to the Executive of a notice of termination on behalf of the Board
setting forth the reasons for such termination. In the event of a termination
for good cause, as enumerated above, the Executive shall have no right to any
severance compensation.
(b) WITHOUT CAUSE. At any time during the Employment Period, the
Executive may, without cause, terminate this Agreement and the Executive's
employment, effective thirty (30) days after written notice is provided to
Enfinity. The Executive may only be terminated without cause by Enfinity during
the Employment Period if such termination is approved by at least two-thirds of
the members of the Board. Should the Executive's employment be terminated by
Enfinity without cause during the Employment Period, the Executive shall receive
from Enfinity, in a lump-sum payment due on the effective date of termination,
an amount equal to two times his then applicable base salary, plus any accrued
salary and declared but unpaid bonus and
-4-
reimbursement of expenses. If the Executive resigns or otherwise terminates his
employment without cause pursuant to this Section 4(b) or other than for Good
Reason pursuant to Section 4(d), the Executive shall receive no severance
compensation.
(c) CHANGE IN CONTROL. In the event of a "Change in Control" of Enfinity
(as defined in Section 12) during the Employment Period, refer to Section 12
below.
(d) FOR GOOD REASON. In addition to his other rights set forth in this
Agreement, the Executive may terminate this Agreement at any time ten (10) days
after delivery of notice to the Board for "good reason," which shall be (i) a
material diminution during the Employment Period in the Executive's office,
duties or responsibilities (including following any Change in Control) or (ii) a
material breach by Enfinity of this Agreement. Notwithstanding the foregoing,
the Executive may not terminate this Agreement for good reason without providing
(x) reasonable written notice to the Board setting forth the reasons for the
Executive's intention to terminate for good reason, (y) an opportunity for the
Board to meet with the Executive, together with legal counsel, and (z) delivery
by the Executive to the Board of a notice of termination for good reason setting
forth the reasons for such termination. Should the Executive terminate his
employment with Enfinity pursuant to this Section 4(d), the Executive shall
receive from Enfinity, in a lump-sum payment due on the effective date of
termination, an amount equal to two times his then applicable base salary, plus
any accrued salary and declared but unpaid bonus and reimbursement of expenses.
(e) CONSEQUENCES OF TERMINATION.
(i) Upon termination of this Agreement for any reason provided
above, Enfinity shall pay promptly to the Executive all compensation earned and
all benefits and reimbursements due through the effective date of termination.
Additional compensation subsequent to termination, if any, will be due and
payable to the Executive only to the extent and in the manner expressly provided
in this Agreement. All other rights and obligations of Enfinity and the
Executive under this Agreement shall cease as of the effective date of
termination, except that Enfinity's obligations under Section 3(d) hereof and
the Executive's obligations under Sections 7, 8 and 9 hereof shall survive any
termination or expiration of this Agreement.
(ii) In the event of any termination of the Executive's
employment for any reason, the Executive shall be under no obligation to seek
other employment and there shall be no offset against any amounts due to the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that the Executive may obtain. Any amounts due under
this Section 4 are in the nature of severance payments, or liquidated damages,
or both, and are not in the nature of a penalty.
(iii) Notwithstanding any statement contained in this Agreement
or Enfinity's applicable stock option or other stock incentive plans to the
contrary, upon any termination or expiration of this Agreement, other than by
Enfinity pursuant to Section 4(a)(iii) (good cause) or by the Executive pursuant
to Section 4(b)(without cause): (x) any options or rights to purchase
-5-
securities of Enfinity shall immediately vest and remain exercisable until the
ten year anniversary of the date of grant of such options or rights and (y) any
restrictions or forfeiture provisions applicable to any securities of Enfinity
owned beneficially or of record by the Executive (or his spouse or estate) shall
immediately lapse.
5. PLACE OF PERFORMANCE.
It is understood that the Executive shall not be required to relocate from his
present residence in order to fulfill his duties and responsibilities hereunder.
However, the Executive agrees to travel to the extent necessary and reasonable
in order to fulfill his duties and responsibilities hereunder. If the Executive
and Enfinity agree that it is best for the Executive to relocate to Atlanta,
Georgia, Enfinity will pay all actual reasonable relocation costs to move the
Executive, his immediate family and their personal property and effects (in each
case grossed up for applicable taxes). Such costs may include, but are not
limited to, moving expenses, temporary lodging expenses prior to moving into a
new permanent residence and all closing costs on the purchase of a residence
(comparable to the Executive's present residence) in the new location. The
general intent of the foregoing is that the Executive shall not personally bear
any out-of-pocket cost as a result of the relocation, with an understanding that
the Executive will use the Executive's best efforts to incur only those costs
which are reasonable and necessary to effect a smooth, efficient and orderly
relocation with minimal disruption to the business affairs of Enfinity and the
personal life of the Executive and his family.
6. CONFIDENTIALITY.
The Executive agrees that he will not at any time during the Employment Period
hereof or at any time thereafter for any reason, in any fashion, form or manner,
either directly or indirectly, divulge, disclose or communicate to any person,
firm, corporation or other business entity, in any manner whatsoever, any
confidential information or trade secrets concerning the business of Enfinity,
including, without limiting the generality of the foregoing, any confidential or
proprietary techniques, methods or systems of its operation or management, any
information regarding its financial matters, or any other material non-public
information concerning the business of Enfinity, its manner of operation, its
plans or other material data. The provisions of this Section 7 shall not prevent
the disclosure or use of or apply to (i) information that is public knowledge or
in the public domain other than as a result of disclosure by the Executive in
breach of this Section 7; (ii) information disseminated by Enfinity to third
parties in the ordinary course of business; (iii) information lawfully received
by the Executive from a third party who, based upon inquiry by the Executive, is
not bound by a confidential relationship to Enfinity; or (iv) information
disclosed under a requirement of law or as compelled or directed by applicable
legal authority.
7. INVENTIONS.
The Executive is hereby retained in a capacity such that the Executive's
responsibilities include the making of technical and managerial contributions of
value to Enfinity. The Executive hereby assigns to Enfinity all right, title and
interest in such contributions and inventions made or
-6-
conceived by the Executive alone or jointly with others during the Employment
Period that relate to the business of Enfinity. This assignment shall include
(a) the right to file and prosecute patent applications on such inventions in
any and all countries, (b) the patent applications filed and patents issuing
thereon, and (c) the right to obtain copyright, trademark or trade name
protection for any such work product. The Executive shall promptly and fully
disclose all such contributions and inventions to Enfinity and shall take
reasonable steps to assist Enfinity (at Enfinity's cost) in obtaining and
protecting the rights therein (including patents thereon) in any and all
countries; provided, however, that said contributions and inventions will be the
property of Enfinity, whether or not patented or registered for copyright,
trademark or trade name protection, as the case may be. The Executive hereby
agrees to execute any documentation reasonably requested by Enfinity to be so
executed if such request is made in order to carry out the purpose and terms of
this Section 8. Inventions conceived by the Executive that are not related to
the business of Enfinity will remain the property of the Executive.
8. NON-COMPETITION.
The Executive agrees that he shall not during the Employment Period and for two
years following the Employment Period, without the approval of the Board,
directly or indirectly, alone or as partner, joint venturer, officer, director,
employee, consultant, agent, independent contractor or stockholder (other than
as provided below) of any company or business, engage in any "Competitive
Business" within the United States. For purposes of the foregoing, the term
"Competitive Business" shall mean any business involved in providing energy or
indoor environmental systems or services, which is in direct competition with
Enfinity in any community in which Enfinity is doing business. Notwithstanding
the foregoing, the Executive shall not be prohibited during the non-competition
period applicable above from acting as a passive investor in any publicly-held
company under the circumstances described in Section 2(b) hereof. During the
period that the above non-competition restriction applies, the Executive shall
not, without the written consent of Enfinity, solicit or encourage any employee
of Enfinity or any current or future subsidiary or affiliate thereof to
terminate his or her employment.
9. BREACH OF RESTRICTIVE COVENANTS.
The parties agree that a breach or violation of Section 6, 7 or 8 hereof will
result in immediate and irreparable injury and harm to the innocent party, which
party shall have, in addition to any and all remedies of law and other
consequences under this Agreement, the right to an injunction, specific
performance or other equitable relief to prevent the violation of the obligation
hereunder.
10. NOTICES.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when faxed, delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
-7-
(a) If to Enfinity, to such address as shall be its then current
principal place of business.
(b) If to the Executive, to:
Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as a party hereto shall designate to the other party by
like notice, provided that notice of a change of address shall be effective only
upon receipt thereof.
11. ARBITRATION: LEGAL FEES.
Except as provided in Section 9 hereof, any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by arbitration
in Atlanta, Georgia in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. Enfinity shall reimburse the Executive for all
reasonable legal fees and costs and other fees and expenses that the Executive
may incur in respect of any dispute or controversy arising against Enfinity
under or in connection with this Agreement; provided, however, that Enfinity
shall not reimburse any such fees, costs and expenses if the fact finder
determines that an action brought by the Executive was substantially without
merit.
12. CHANGE IN CONTROL.
(a) Unless the Executive elects to terminate this Agreement pursuant to
Section 12(c) below, the Executive understands and acknowledges that Enfinity
may be merged or consolidated with or into another entity and that such entity
shall automatically succeed to the rights and obligations of Enfinity hereunder
or that Enfinity may undergo another type of Change in Control. In the event
such a merger or consolidation or other Change in Control is initiated prior to
the end of the Employment Period, then the provisions of this Section 13 shall
be applicable.
(b) In the event of a pending Change in Control wherein Enfinity and the
Executive have not received written notice at least five (5) business days prior
to the anticipated closing date of the transaction giving rise to the Change in
Control from the successor to all or a substantial portion of Enfinity's
business and/or assets that such successor is willing as of the closing to
assume and agree to perform Enfinity's obligations under this Agreement in the
same manner and to the same extent that Enfinity is hereby required to perform,
then such Change in Control shall be deemed to be a termination of this
Agreement by Enfinity without cause during the Employment Period and the
applicable portions of Section 4(b) will apply; however, under such
circumstances, the amount of the lump-sum severance payment due to the Executive
shall be an
-8-
amount equal to three times his then applicable base salary, plus any accrued
salary and declared but unpaid bonus and reimbursement or expenses, and the
provisions of Section 8 of this Agreement shall be effective for two years
following such date. Notwithstanding any statement contained herein to the
contrary, Enfinity shall require, as a condition to any transaction constituting
a Change in Control, that any successor to all or any portion of Enfinity's
business and/or assets expressly assume and agree to perform Section 3(d) of
this Agreement in the same manner and to the same extent that Enfinity would be
required to perform it if no such Change in Control had taken place .
(c) In any Change in Control, the Executive may elect to terminate this
Agreement by providing written notice to Enfinity at least five (5) business
days prior to the anticipated closing of the transaction giving rise to the
Change in Control. In such case, the applicable provisions of Section 4(b) will
apply as though Enfinity had terminated the Agreement without cause during the
Employment Period; however, under such circumstances, the amount of the lump-sum
severance payment due to the Executive shall be an amount equal to two times his
then applicable base salary, plus any accrued salary and declared but unpaid
bonus and reimbursement or expenses, and the provisions of Section 8 of this
Agreement shall be effective for two years following such date. Notwithstanding
any statement contained herein to the contrary, Enfinity shall require, as a
condition to any transaction constituting a Change in Control, that any
successor to all or any portion of Enfinity's business and/or assets expressly
assume and agree to perform Section 3(d) of this Agreement in the same manner
and to the same extent that Enfinity would be required to perform it if no such
Change in Control had taken place.
(d) For purposes of applying Section 4 hereof under the circumstances
described in (b) and (c) above, the effective date of termination will be the
closing date of the transaction giving rise to the Change in Control and all
compensation, reimbursements and lump-sum payments due the Executive must be
paid in full by Enfinity at or prior to such closing. In addition,
notwithstanding anything contained in Enfinity's stock option or other incentive
plans, immediately prior to any Change in Control, any options or rights to
purchase securities of Enfinity held by the Executive shall immediately vest and
become and remain fully exercisable and any restrictions or forfeiture
provisions applicable to any securities of Enfinity owned beneficially or of
record by the Executive (or his spouse or estate) shall immediately lapse, such
that the Executive, at his discretion, may exercise such options or rights prior
to the Change in Control and receive the consideration to be received by the
stockholders of Enfinity in connection with the Change in Control or convert
such options or rights into options or rights to purchase equivalent securities
of the acquiring corporation or other entity.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than Enfinity or an employee benefit plan of Enfinity, becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
directly or indirectly, of any voting security of Enfinity and, immediately
after such acquisition, such person, directly or indirectly, is the beneficial
owner of
-9-
voting securities representing 35% or more of the total voting power of all of
the then-outstanding voting securities of Enfinity and has a larger percentage
of voting securities of Enfinity than any other person, entity or group holding
voting securities of Enfinity, unless the transaction pursuant to which such
acquisition is made is approved by more than two-thirds (2/3) of the Board; or
(ii) the following individuals no longer constitute a majority of
the members of the Board: (A) the individuals who, as of the closing date of
Enfinity's IPO, constitute the Board (the "Original Directors"); (B) the
individuals who thereafter are elected to the Board and whose election, or
nomination for election, to the Board was approved by a vote of more than
two-thirds (2/3) of the Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following their election);
and (C) the individuals who are elected to the Board and whose election, or
nomination for election, to the Board was approved by a vote of more than
two-thirds (2/3) of the Original Directors and Additional Original Directors
then still in office (such directors also becoming "Additional Original
Directors" immediately following their election).
(iii) there shall be consummated any merger or consolidation of
Enfinity in which Enfinity is not the continuing or surviving corporation or
pursuant to which shares of Enfinity's capital stock are converted into cash,
securities or other property, other than a consolidation or merger of Enfinity
in which the holders of Enfinity's voting stock immediately prior to the
consolidation or merger, own at least 50% of the total voting power represented
by the voting securities of the surviving entity outstanding immediately after
such transaction or any sale, lease, exchange or other transfer (in one
transaction or a series or transaction contemplated or arranged by any party as
a single plan) of all or substantially all of the assets of Enfinity; or
(iv) the stockholders of Enfinity approve a plan of complete
liquidation of Enfinity.
(f) The Executive must be notified in writing by Enfinity at any time
that Enfinity or any member of its Board anticipates that a Change in Control
may take place.
13. WAIVER OF BREACH.
Any waiver of any breach of the Agreement shall not be construed to be a
continuing waiver or consent to any subsequent breach on the part of either the
Executive or of Enfinity.
14. NON-ASSIGNMENT: SUCCESSORS.
Neither party hereto may assign his or its rights or delegate his or its duties
under this Agreement without the prior written consent of the other party;
provided, however, that (i) subject to the rights of the Executive under Section
12 hereof, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of Enfinity upon any sale of all or substantially all of
the assets of Enfinity, or upon any merger, consolidation or reorganization of
Enfinity with or into
-10-
any other corporation, all as though such successors and assigns of Enfinity and
their respective successors and assigns were Enfinity; (ii) this Agreement shall
inure to the benefit of and be binding upon the heirs, assigns or designees of
the Executive to the extent of any payments due to the Executive hereunder; and
(iii) this Agreement shall inure to the benefit of Enfinity. As used in this
Agreement, the term "Enfinity" shall be deemed to refer to any such successor or
assign of Enfinity referred to in the preceding sentence. Notwithstanding any
statement contained in this Agreement to the contrary, Enfinity agrees to and
shall 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 Enfinity to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that Enfinity would be required to
perform it if no such succession had taken place. This Agreement and all rights
of the Executive hereunder shall inure to the benefit of and be enforceable by
the Executive's legal representative in the event of mental incapacity or by the
Executive's duly appointed executors or administrators in the event of the
Executive's death. If the Executive should die while any amounts are payable to
him hereunder, all such amounts unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's estate.
15. WITHHOLDING OF TAXES.
All payments required to be made by Enfinity to the Executive under this
Agreement shall be subject to the withholding of such amounts, if any, relating
to tax, and other payroll deductions as Enfinity may reasonably determine it
should withhold pursuant to any applicable law or regulation.
16. SEVERABILITY.
To the extent any provision of this Agreement or portion thereof shall be
invalid or unenforceable, it shall be considered deleted therefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
18. GOVERNING LAW.
This Agreement shall be construed, interpreted and enforced in accordance with
the internal laws of the State of Delaware, without giving effect to the choice
of law provisions of such state.
-11-
19. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement by Enfinity and the Executive
with respect to the subject matter hereof and supersedes any and all prior
agreements or understandings between the Executive and Enfinity with respect to
the subject matter hereof, whether written or oral. This Agreement may be
amended or modified only by a written instrument executed by the Executive and
Enfinity.
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement as of date first
above written.
ENFINITY CORPORATION
By:________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
-------------------------------------------
Xxxxxxx X. Xxxxxxx
-13-
