Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made, entered into and
effective as of May 15, 2006 (the "Effective Date"), between MMC Energy, Inc.
(f/k/a High Tide Ventures, Inc.), a Nevada corporation (the "Company"), and Xxxx
X. Xxxxxx, an individual (the "Executive").
WHEREAS, the Company and the Executive wish to memorialize the terms and
conditions of the Executive's employment by the Company in the position of Chief
Executive Officer;
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the Company and the Executive agree as follows:
1. Employment Period. The Company offers to employ the Executive, and the
Executive agrees to be employed by Company, in accordance with the terms and
subject to the conditions of this Agreement, commencing on the Effective Date
and terminating on the fifth anniversary of the Effective Date (the "Scheduled
Termination Date"), unless terminated in accordance with the provisions of
Section 11 below, in which case the provisions of Section 11 shall control;
provided, however, that unless either party provides the other party with
written notice of his or its intention not to renew this Agreement at least
three (3) months prior to the expiration of the initial term or any renewal term
of this Agreement (as the case may be), this Agreement shall automatically renew
for additional one-year periods commencing on the day after such expiration
date. The Executive affirms that no obligation exists between the Executive and
any other entity which would prevent or impede the Executive's immediate and
full performance of every obligation of this Agreement.
2. Position and Duties. During the term of the Executive's employment
hereunder, the Executive shall continue to serve in, and assume duties and
responsibilities consistent with, the position of Chief Executive Officer,
unless and until otherwise instructed by the Company. The Executive agrees to
devote to the Company substantially all of his working time, skill, energy and
best business efforts during the term of his employment with the Company, and
the Executive shall not engage in business activities outside the scope of his
employment with the Company if such activities would detract from or interfere
with his ability to fulfill his responsibilities and duties under this Agreement
or require substantial amounts of his time or of his services. Subject to
Section 13, notwithstanding anything to the contrary contained herein, the
Executive may hold non-executive director positions (or the equivalent position)
at no more than two other entities that are not affiliated with the Company. The
Company acknowledges that the Executive currently serves as a member of the
Board of Directors of Newmarket Power, and acknowledges the Executive's right to
continue in such position and to fulfill his obligations in connection therewith
so long as he holds an investment interest in Newmarket Power, and such service
does not interfere with his ability to perform his duties and responsibilities
hereunder, it being understood that a devotion of more than fifteen percent
(15%) of Executive's business time shall be deemed to constitute such an
interference. In addition, Executive shall resign from all positions with
Newmarket Power upon the earlier of (i) the sale or other disposition of his
investment therein or (ii) December 31, 2006. Notwithstanding the foregoing, the
Executive shall immediately resign from all positions with Newmarket Power at
such time as the Board of Directors determines, based upon such factors as it
shall deem relevant (but not based solely on passive ownership of his existing
equity investment), including, without limitation, the potential for conflict
with the Company's operations, expansion programs, financing activities and
employee relations, that his continued relationship with Newmarket Power could
reasonably be considered to be in violation of Section 13 of this Agreement.
3. No Conflicts. The Executive covenants and agrees that for so long as he
is employed by the Company, he shall inform the Company of each and every future
business opportunity presented to the Executive that arises within the scope of
the Business of the Company (as defined below) and would be feasible for the
Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours of Work. The Executive's normal days and hours of work shall
coincide with the Company's regular business hours. The nature of the
Executive's employment with the Company requires flexibility in the days and
hours that the Executive must work, and may necessitate that the Executive work
on other or additional days and hours.
5. Location. The locus of the Executive's employment with the Company
shall be the Company's office located in New York, New York and Wilmington,
North Carolina, as well as California and any other locus where the Company now
or hereafter has an operating facility.
6. Compensation.
(a) Base Salary. During the term of this Agreement, the Company shall pay,
and the Executive agrees to accept, in consideration for the Executive's
services hereunder, pro rata bi-weekly payments of the annual salary of
$225,000, less all applicable taxes and other appropriate deductions. The
Compensation Committee (the "Compensation Committee") of the Company's Board of
Directors (the "Board") shall review the Executive's base salary annually and
shall make a recommendation to the Board as to whether such base salary should
be increased, which decision shall be within the Board's sole discretion.
(b) Annual Bonus. During the term of this Agreement, the Executive shall
be entitled to an annual bonus in an amount to be determined according to
achievement of performance-related financial and operating targets established
annually for the Company and the Executive by the Compensation Committee (or by
the independent members of the Board if there exists no Compensation Committee).
Such performance targets for each fiscal year shall be adopted by the
Compensation Committee promptly after the end of the prior fiscal year, but in
no event later than March 31 of the current fiscal year (except for fiscal year
2006, the performance targets for which are annexed to this Agreement as Exhibit
A (or as otherwise established prior to June 30, 2006 by the Compensation
Committee or by the independent members of the Board if there exists no
Compensation Committee). Each annual bonus shall be paid by the Company to the
Executive promptly after the first meeting of the Board following the completion
of the annual audit, which meeting shall occur on or about March 30th of each
year.
2
7. Expenses. During the term of this Agreement, the Executive shall be
entitled to payment or reimbursement of any reasonable expenses paid or incurred
by him in connection with and related to the performance of his duties and
responsibilities hereunder for the Company. All requests by the Executive for
payment of reimbursement of such expenses shall be supported by appropriate
invoices, vouchers, receipts or such other supporting documentation in such form
and containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said expenses.
8. Vacation. During the term of this Agreement, the Executive shall be
entitled to accrue, on a pro rata basis, 20 vacation days, per year. The
Executive shall be entitled to carry over any accrued, unused vacation days from
year to year without limitation.
9. Stock Options. The Company hereby agrees that the Executive shall be
granted a non-qualified stock option on the terms and conditions hereinafter
stated:
(a) Grant of Options. On the Effective Date, the Company will grant the
Executive an option to purchase an aggregate of 500,000 shares of the Company's
common voting stock (the "Option") under the Company's 2006 Stock Option Plan
(the "Stock Option Plan"). Such grant shall be evidenced by an Option Agreement
as contemplated by the Stock Option Plan. In subsequent years the Executive
shall be eligible for such grants of Options and other permissible awards
(collectively with Options, "Awards") under the Stock Option Plan as the
Compensation Committee or the Board shall determine.
(b) Option Price; Term. The per share exercise price of the Option shall
be $1.00, which represents the fair market value per share of Company common
voting stock on the Effective Date. The term of the Option shall be ten years
from the date of grant.
(c) Vesting and Exercise. One third (33.3%) of the Option shall be vested
and exercisable on the first anniversary of the grant of the Option, an
additional one third (33.3%) of the Option shall be vested and become
exercisable on the second anniversary of the grant of the Option and the
remaining one third (33.4%) of the Options shall be vested and become
exercisable on third anniversary of the grant of the Option. ]
(d) Termination of Service; Accelerated Vesting.
(i) If the Executive's employment is terminated for Cause, as such
term is defined below, all Awards, whether or not vested, shall immediately
expire effective the date of termination of employment.
3
(ii) If the Executive's employment is terminated voluntarily by the
Executive without Good Reason, as such term is defined below, all unvested
Awards shall immediately expire effective the date of termination of employment.
Vested Awards, to the extent unexercised, shall expire one month after the
termination of employment.
(iii) If the Executive's employment terminates on account of death
or Disability, as defined below, all unvested Awards shall immediately expire
effective the date of termination of employment. Vested Awards, to the extent
unexercised, shall expire one year after the termination of employment.
(iv) In the event of a Change of Control (as defined below) or in
the event the Executive's employment is terminated (A) by the Company without
Cause or (B) by the Executive for Good Reason, all unvested Awards shall
immediately vest and become exercisable effective the date of termination of
employment, and, to the extent unexercised, shall expire one year after any such
event.
(e) Payment. The full consideration for any shares purchased by the
Executive upon exercise of the Option shall be paid in cash.
10. Other Benefits.
(a) During the term of this Agreement, the Executive shall be eligible to
participate in incentive, savings, retirement (401(k)), and welfare benefit
plans, including, without limitation, health, medical, dental, vision, life
(including accidental death and dismemberment) and disability insurance plans
(collectively, "Benefit Plans"), in substantially the same manner and at
substantially the same levels as the Company makes such opportunities available
to the Company's managerial or salaried executive employees.
(b) Notwithstanding anything contained in Section 10(a) to the contrary:
(i) The cost of the Executive's coverage under the Benefit Plans
providing health, medical, dental, vision and life (including accidental death
and dismemberment), shall be paid by the Company.
(ii) The Executive's spouse and dependent minor children will be
covered under the Benefit Plans providing health, medical, dental, and vision
benefits, and the cost of such coverage shall be paid by the Company.
(iii) The Company shall purchase and maintain traditional directors
and officers liability insurance coverage in the amount of at least $5,000,000
covering the Company's officers and directors, including the Executive, as soon
as practicable after the Effective Date, but in no event later than 30 days
following the Effective Date, provided such coverage is available on
commercially reasonable terms.
4
11. Termination of Employment.
(a) Death. In the event that during the term of this Agreement the
Executive dies, this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executor's heirs, administrators or executors any earned
but unpaid base salary, unpaid pro rata annual bonus and unused vacation days
accrued through the date of death; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement. The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(b) "Disability." In the event that, during the term of this Agreement the
Executive shall be prevented from performing his duties and responsibilities
hereunder to the full extent required by the Company by reason of Disability (as
defined below) this Agreement and the Executive's employment with the Company
shall automatically terminate and the Company shall have no further obligations
or liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executor's heirs, administrators or executors any earned
but unpaid base salary, unpaid pro rata annual bonus and unused vacation days
accrued through the date of Disability; provided, that nothing contained in this
paragraph shall be deemed to excuse any breach by the Company of any provision
of this Agreement including any failure to maintain the long-term disability
insurance coverage required pursuant to Section 10(b)(iv). The Company shall
deduct, from all payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions through the last date of
the Executive's employment with the Company. For purposes of this Agreement,
"Disability" shall mean a physical or mental disability that prevents the
performance by the Executive, with or without reasonable accommodation, of his
duties and responsibilities hereunder for a period of not less than an aggregate
of three months during any twelve consecutive months.
(c) "Cause."
(i) At any time during the term of this Agreement, the Company may
terminate this Agreement and the Executive's employment hereunder for "Cause."
For purposes of this Agreement, "Cause" shall be defined as the occurrence of:
(A) the Executive's conviction for a felony, excluding convictions associated
with traffic violations; (B) repeatedly being under the influence of drugs or
alcohol (other than prescription medicine or other medically-related drugs to
the extent that they are taken in accordance with their directions) during the
performance of his duties under this Agreement, or, while under the influence of
such drugs or alcohol, engaging in grossly inappropriate conduct during the
performance of his duties under this Agreement; or engaging in behavior that
would constitute grounds for liability for harassment (as proscribed by the U.S.
Equal Employment Opportunity Commission Guidelines or any other applicable state
or local regulatory body) or other egregious conduct that violates laws
governing the workplace, (C) an egregious and material act of dishonesty
(including without limitation theft or embezzlement) whether or not involving
the Company but relating to the Executive's business affairs; (D) a willful and
material violation of any provision of Sections 12 and 13 hereof; (E)
intentional reckless conduct that is materially detrimental to the business or
reputation of the Company after a written demand to cease or cure such gross
conduct is delivered to the Executive by the Company, which specifically
identifies the manner in which the Company believes that the Executive's conduct
has been materially detrimental to the business or reputation of the Company,
which conduct does not cease or is not cured by the Executive within thirty (30)
days of his receipt of said written demand; or (F) material and continued
failure (other than by reason of Disability) to carry out reasonably assigned
duties or instructions consistent with the titles of Chief Executive Officer
(provided that material failure to carry out reasonably assigned duties shall be
deemed to constitute Cause only after a finding by the Board of Directors of
such material failure on the part of the Executive, which shall include the
specifics giving rise to such failure, and the failure by Executive to remedy
such material failure within 30 days after delivery of a written version of such
finding to the Executive).
5
(ii) Upon termination of this Agreement for Cause, the Company shall
have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but unpaid
base salary, unpaid pro rata annual bonus and unused vacation days accrued
through the Executive's last day of employment with the Company. The Company
shall deduct, from all payments made hereunder, all applicable taxes, including
income tax, FICA and FUTA, and other appropriate deductions.
(d) Change of Control. For purposes of this Agreement, "Change of Control"
means the occurrence of, or the Company's Board votes to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders of the
Company immediately before the transaction do not retain immediately after the
transaction, in substantially the same proportions as their ownership of shares
of the Company's voting stock immediately before the transaction, direct or
indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business entity; (B)
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than 50% of the voting stock of the Company.
(e) "Good Reason."
(i) At any time during the term of this Agreement, subject to the
conditions set forth in Section 11(e)(ii) below, the Executive may terminate
this Agreement and the Executive's employment with the Company for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean the
occurrence, without the Executive's consent, of any of the following events: (A)
the assignment to the Executive of duties that are significantly different from,
and that result in a substantial diminution of, the duties that he assumed on
the Effective Date; (B) the assignment to the Executive of a title that is
different from and subordinate to the title specified in Section 2 above; (C) a
Change of Control; or (D) material breach by the Company of this Agreement.
6
(ii) The Executive shall not be entitled to terminate his employment
with the Company and this Agreement for Good Reason unless and until he shall
have delivered written notice to the Company of his intention to terminate this
Agreement and his employment with the Company for Good Reason, which notice
specifies in reasonable detail the circumstances claimed to provide the basis
for such termination for Good Reason, and the Company shall not have eliminated
the circumstances constituting Good Reason within 30 days of its receipt from
the Executive of such written notice.
(iii) In the event that the Executive terminates this Agreement and
his employment with the Company for Good Reason, the Company shall pay or
provide to the Executive (or, following his death, to the Executive's heirs,
administrators or executors): (A) any earned but unpaid base salary, unpaid pro
rata annual bonus and unused vacation days accrued through the Executive's last
day of employment with the Company; (B) the Executive's full base salary through
the Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the value of vacation days that the Executive
would have accrued through the Scheduled Termination Date; (D) continued
coverage, at the Company's expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or, in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and (E) severance in an amount
equal to one year's base salary, as in effect immediately prior to the
Executive's termination hereunder. All payments due hereunder shall be made
within 45 days after the date of termination of the Executive's employment. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
(iv) The Executive shall have no duty to mitigate his damages,
except that continued benefits required to be provided under Section
11(e)(iii)(D) shall be canceled or reduced to the extent of any comparable
benefit coverage offered to the Executive during the period prior to the
Scheduled Termination Date by a subsequent employer or other person or entity
for which the Executive performs services, including but not limited to
consulting services.
(f) Without "Cause."
(i) By The Executive. At any time during the term of this Agreement,
the Executive shall be entitled to terminate this Agreement and the Executive's
employment with the Company without Cause by providing prior written notice of
at least 90 days to the Company. Upon termination by the Executive of this
Agreement and the Executive's employment with the Company without Cause, the
Company shall have no further obligations or liability to the Executive or his
heirs, administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive any earned but unpaid
base salary, pro rata annual bonus and unused vacation days accrued through the
Executive's last day of employment with the Company. The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
7
(ii) By The Company. At any time during the term of this Agreement,
the Company shall be entitled to terminate this Agreement and the Executive's
employment with the Company without Cause by providing prior written notice of
at least 90 days to the Executive. Upon termination by the Company of this
Agreement and the Executive's employment with the Company without Cause, the
Company shall pay or provide to the Executive (or, following his death, to the
Executive's heirs, administrators or executors): (A) any earned but unpaid base
salary, unpaid pro rata annual bonus and unused vacation days accrued through
the Executive's last day of employment with the Company; (B) the Executive's
full base salary through the Scheduled Termination Date (as the same may have
been extended through any extensions of this Agreement); (C) the value of
vacation days that the Executive would have accrued through the Scheduled
Termination Date; (D) continued coverage, at the Company's expense, under all
Benefits Plans in which the Executive was a participant immediately prior to his
last date of employment with the Company, or, in the event that any such Benefit
Plans do not permit coverage of the Executive following his last date of
employment with the Company, under benefit plans that provide no less coverage
than such Benefit Plans, through the Scheduled Termination Date; and (E)
severance in an amount equal to one year's base salary, as in effect immediately
prior to the Executive's termination hereunder. All payments due hereunder shall
be made within 45 days after the date of termination of the Executive's
employment.. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
12. Confidential Information.
(a) The Executive expressly acknowledges that, in the performance of his
duties and responsibilities with the Company, he has been exposed since prior to
the Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers ("Confidential
Information"). The term "Confidential Information" includes information or
material that has actual or potential commercial value to the Company, its
affiliates and/or its clients, business partners or customers and is not
generally known to and is not readily ascertainable by proper means to persons
outside the Company, its affiliates and/or its clients or customers.
(b) Except as authorized in writing by the Board, during the performance
of the Executive's duties and responsibilities for the Company and until such
time as any such Confidential Information becomes generally known to and readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients, business partners or customers, the Executive agrees to keep
strictly confidential and not use for his personal benefit or the benefit to any
other person or entity (other than the Company) the Confidential Information.
"Confidential Information" includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked "trade secret" or "confidential" or any similar legend:
(i) lists of and/or information concerning customers, prospective customers,
suppliers, employees, consultants, co-venturers and/or joint venture candidates
of the Company, its affiliates or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees, consultants
and/or co-venturers of the Company, its affiliates and/or its clients or
customers; (iii) non-public information proprietary to the Company, its
affiliates and/or its clients or customers, including, without limitation, cost
information, profits, sales information, prices, accounting, unpublished
financial information, business plans or proposals, expansion plans (for current
and proposed facilities), markets and marketing methods, advertising and
marketing strategies, administrative procedures and manuals, the terms and
conditions of the Company's contracts and trademarks and patents under
consideration, distribution channels, franchises, investors, sponsors and
advertisers; (iv) proprietary technical information concerning products and
services of the Company, its affiliates and/or its clients, business partners or
customers, including, without limitation, product data and specifications,
diagrams, flow charts, know how, processes, designs, formulae, inventions and
product development; (v) lists of and/or information concerning applicants,
candidates or other prospects for employment, independent contractor or
consultant positions at or with any actual or prospective customer or client of
Company and/or its affiliates, any and all confidential processes, inventions or
methods of conducting business of the Company, its affiliates and/or its
clients, business partners or customers; (vi) acquisition or merger targets;
(vii) business plans or strategies, data, records, financial information or
other trade secrets concerning the actual or contemplated business, strategic
alliances, policies or operations of the Company or its affiliates; or (viii)
any and all versions of proprietary computer software (including source and
object code), hardware, firmware, code, discs, tapes, data listings and
documentation of the Company; or (ix any other confidential information
disclosed to the Executive by, or which the Executive obligated under a duty of
confidence from, the Company, its affiliates, and/or its clients, business
partners or customers.
8
(c) The Executive affirms that he does not possess and will not rely upon
the protected trade secrets or confidential or proprietary information of his
prior employer(s) in providing services to the Company. The foregoing shall not
be deemed to prohibit any such possession and reliance upon information obtained
from the Company's predecessors in interest.
(d) In the event that the Executive's employment with the Company
terminates for any reason, the Executive shall deliver forthwith to the Company
any and all originals and copies of Confidential Information.
13. Non-Competition And Non-Solicitation.
(a) The Executive agrees and acknowledges that the Confidential
Information that the Executive has already received and will receive is valuable
to the Company and that its protection and maintenance constitutes a legitimate
business interest of the Company, to be protected by the non-competition
restrictions set forth herein. The Executive agrees and acknowledges that the
non-competition restrictions set forth herein are reasonable and necessary and
do not impose undue hardship or burdens on the Executive. The Executive also
acknowledges that the products and services developed or provided by the
Company, its affiliates and/or its clients or customers are or are intended to
be sold, provided, licensed and/or distributed to customers and clients in and
throughout the United States (the "Geographic Boundary") (to the extent the
Company comes to own or operate any material power generating asset in areas
other than the United States during the term of the Executive's employment, the
definition of Geographic Boundary shall be automatically expanded to cover such
other areas), and that the Geographic Boundary, scope of prohibited competition,
and time duration set forth in the non-competition restrictions set forth below
are reasonable and necessary to maintain the value of the Confidential
Information of, and to protect the goodwill and other legitimate business
interests of, the Company, its affiliates and/or its clients or customers.
9
(b) The Executive hereby agrees and covenants that he shall not, without
the prior written consent of the Company, directly or indirectly, in any
capacity whatsoever, including, without limitation, as an employee, employer,
consultant, principal, partner, shareholder, officer, director or any other
individual or representative capacity (other than a holder of less than one
percent (1%) of the outstanding voting shares of any publicly held company), or
whether on the Executive's own behalf or on behalf of any other person or entity
or otherwise howsoever, during the Executive's employment with the Company and
for a period equal to the greater of (i) one year following the termination of
this Agreement or of the Executive's employment with the Company or (ii) the
period during which the Executive continues to receive his base salary pursuant
to Sections 11(e) or 11(f)(ii) of this Agreement following the termination of
this Agreement and of the Executive's employment, in the Geographic Boundary:
(i) Engage, own, manage, operate, control, be employed by, consult
for, participate in, or be connected in any manner with the ownership,
management, operation or control of any business in competition with the
Business of the Company. The "Business of the Company" is defined as an energy
management company in the business of acquiring and actively managing assets in
the power generation industry within the Geographic Boundary.
(ii) Recruit, solicit or hire, or attempt to recruit, solicit or
hire, any employee, or independent contractor of the Company to leave the
employment (or independent contractor relationship) thereof, whether or not any
such employee or independent contractor is party to an employment agreement.
(iii) Attempt in any manner to solicit or accept from any customer
of the Company, with whom the Company had significant contact during the term of
the Agreement, business of the kind or competitive with the business done by the
Company with such customer or to persuade or attempt to persuade any such
customer to cease to do business or to reduce the amount of business which such
customer has customarily done or is reasonably expected to do with the Company,
or if any such customer elects to move its business to a person other than the
Company, provide any services (of the kind or competitive with the Business of
the Company) for such customer, or have any discussions regarding any such
service with such customer, on behalf of such other person.
10
(iv) Interfere with any relationship, contractual or otherwise,
between the Company and any other party, including; without limitation, any
supplier, co-venturer or joint venturer of the Company to discontinue or reduce
its business with the Company or otherwise interfere in any way with the
Business of the Company.
(c) Nothing contained in this Section 13 shall be deemed to prohibit the
Executive from providing those services and performing the acts permitted for
Newmarket Power as contemplated by, and in accordance with, Section 2 of this
Agreement.
14. Dispute Resolution. The Executive and the Company agree that any
dispute or claim, whether based on contract, tort, discrimination, retaliation,
or otherwise, relating to, arising from, or connected in any manner with this
Agreement or with the Executive's employment with Company shall be resolved
exclusively through final and binding arbitration under the auspices of the
American Arbitration Association ("AAA"). The arbitration shall be held in the
Borough of Manhattan, New York, New York. The arbitration shall proceed in
accordance with the National Rules for the Resolution of Employment Disputes of
the AAA in effect at the time the claim or dispute arose, unless other rules are
agreed upon by the parties. The arbitration shall be conducted by one arbitrator
who is a member of the AAA, unless the parties mutually agree otherwise. The
arbitrators shall have jurisdiction to determine any claim, including the
arbitrability of any claim, submitted to them. The arbitrators may grant any
relief authorized by law for any properly established claim. The interpretation
and enforceability of this paragraph of this Agreement shall be governed and
construed in accordance with the United States Federal Arbitration Act, 9.
U.S.C. ss. 1, et seq. More specifically, the parties agree to submit to binding
arbitration any claims for unpaid wages or benefits, or for alleged
discrimination, harassment, or retaliation, arising under Title VII of the Civil
Rights Act of 1964, the Equal Pay Act, the National Labor Relations Act, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act, the Civil Rights Act of 1991, the
Family and Medical Leave Act, the Fair Labor Standards Act, Sections 1981
through 1988 of Title 42 of the United States Code, COBRA, the New York State
Human Rights Law, the New York City Human Rights Law, and any other federal,
state, or local law, regulation, or ordinance, and any common law claims, claims
for breach of contract, or claims for declaratory relief. The Executive
acknowledges that the purpose and effect of this paragraph is solely to elect
private arbitration in lieu of any judicial proceeding he might otherwise have
available to him in the event of an employment-related dispute between him and
the Company. Therefore, the Executive hereby waives his right to have any such
employment-related dispute heard by a court or jury, as the case may be, and
agrees that his exclusive procedure to redress any employment-related claims
will be arbitration.
11
15. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement or contemplated hereby shall be in
writing and shall be deemed to have been duly given when personally delivered,
delivered by a nationally recognized overnight delivery service or when mailed
United States Certified or registered mail, return receipt requested, postage
prepaid, and addressed as follows:
If to the Company:
MMC Energy, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
If to the Executive:
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
16. Personal Guaranty. Without in any limiting any right of the Executive
to indemnification pursuant to the Company's Certificate of Incorporation or
By-laws, the Company hereby agrees to indemnify and to save and hold the
Executive harmless, from and in respect of all payment obligations, fees, costs
and expenses (including attorneys fees) incurred by the Executive in respect of
that certain Guaranty Agreement entered into by the Executive in of TD
Banknorth, N.A. (the "Bank"), dated January 31, 2006, in connection with that
certain Loan and Security Agreement between MMC Energy North America, LLC, MMC
Chula Vista LLC and MMC Escondido LLC and the Bank (the "Guaranty"), including
any claim, action or demand arising thereunder or under common law or statute.
Upon termination of the Executive's employment with the Company for any reason,
the Company will promptly seek and obtain the release of the Executive from the
Guaranty, but in any case within 30 days of such termination.
17. Miscellaneous.
(a) All issues and disputes concerning, relating to or arising out of this
Agreement and from the Executive's employment by the Company, including, without
limitation, the construction and interpretation of this Agreement, shall be
governed by and construed in accordance with the internal laws of the State of
New York, without giving effect to that State's principles of conflicts of law.
(b) The Executive and the Company agree that any provision of this
Agreement deemed unenforceable or invalid may be reformed to permit enforcement
of the objectionable provision to the fullest permissible extent. Any provision
of this Agreement deemed unenforceable after modification shall be deemed
stricken from this Agreement, with the remainder of the Agreement being given
its full force and effect.
12
(c) The Company shall be entitled to equitable relief, including
injunctive relief and specific performance as against the Executive, for the
Executive's threatened or actual breach of Sections 12 or 13 of this Agreement,
as money damages for a breach thereof would be incapable of precise estimation,
uncertain, and an insufficient remedy for an actual or threatened breach of
Sections 12 or 13 of this Agreement. The Executive and the Company agree that
any pursuit of equitable relief in respect of Sections 12 or 13 of this
Agreement shall have no effect whatsoever regarding the continued viability and
enforceability of Section 14 of this Agreement.
(d) Any waiver or inaction by the Company for any breach of this Agreement
shall not be deemed a waiver of any subsequent breach of this Agreement.
(e) The Executive and the Company independently have made all inquiries
regarding the qualifications and business affairs of the other which either
party deems necessary. The Executive affirms that he fully understands this
Agreement's meaning and legally binding effect. Each party has participated
fully and equally in the negotiation and drafting of this Agreement. Each party
assumes the risk of any misrepresentation or mistaken understanding or belief
relied upon by him or it in entering into this Agreement.
(f) The Executive's obligations under this Agreement are personal in
nature and may not be assigned by the Executive to any other person or entity.
(g) This instrument constitutes the entire Agreement between the parties
regarding its subject matter. When signed by all parties, this Agreement
supersedes and nullifies all prior or contemporaneous conversations,
negotiations, or agreements, oral and written, regarding the subject matter of
this Agreement. In any future construction of this Agreement, this Agreement
should be given its plain meaning. This Agreement may be amended only by a
writing signed by the Company and the Executive.
(h) This Agreement may be executed in counterparts, a counterpart
transmitted via facsimile, and all executed counterparts, when taken together,
shall constitute sufficient proof of the parties' entry into this Agreement. The
parties agree to execute any further or future documents which may be necessary
to allow the full performance of this Agreement. This Agreement contains
headings for ease of reference. The headings have no independent meaning.
(i) THE EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO
THIS AGREEMENT AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION
THEREOF. THIS AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY
BOTH PARTIES.
[Signature Page Follows]
13
IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the day and year first above written.
Executive MMC Energy, Inc.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
----------------------- --------------------------
Xxxx X. Xxxxxx Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
14
