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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of October 21, 1998, by
and between Xxxxx Xxxxxx (the "Employee") and Caminus Energy Ventures LLC, a
Delaware limited liability company (the "Company") with reference to the
following facts. Any capitalized terms not otherwise defined herein shall have
the respective definitions set forth in the Company's Limited Liability Company
Agreement, dated as of May 12, 1998, as amended (the "Company Agreement").
WHEREAS, the Company desires to employ Employee as the President and Chief
Executive Officer and Employee desires to be so employed on the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter contained the parties hereby agree as follows:
1. Employment.
1.1 Position and Duties. Employee shall be employed as the President
and Chief Executive Officer of the Company upon the terms and provisions set
forth in this Agreement. Employee hereby accepts such employment on the terms
and conditions set forth herein. Employee agrees to devote his full time and
best efforts, skills and abilities to the business and affairs of the Company.
Employee shall perform all duties and have all responsibilities consistent with
the officer position indicated above as specified by the Management Committee of
the Company, provided that such duties and responsibilities are commensurate
with Employee's title, function and position. Employee shall perform his duties
principally at the Company's headquarters, where Employee shall be based;
provided, however, Employee acknowledges that he will be required to travel in
the ordinary course of the Company's business as the reasonable needs of the
Company shall require.
1.2 Reporting. Employee shall report to the Management Committee of
the Company.
2. Term. The term of this Agreement ("Term") shall commence as of the date
hereof and continue in full force and effect until three (3) years from the date
hereof, unless sooner terminated pursuant to the provisions of this Agreement.
3. Compensation and Benefits.
3.1 Base Salary. As compensation for the services to be performed by
Employee during the Term, the Company shall pay Employee a base salary of Two
Hundred Fifty Thousand Dollars ($250,000) per annum, payable in accordance with
the Company's payroll practices in effect from time to time, but not less often
than monthly (the "Base Salary"). Base Salary shall be payable in substantially
equal installments and reduced on a pro-rata basis for any fraction of a year or
month during which Employee is not so employed.
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3.2 Bonus. As compensation for the services performed during the first
twelve months of the Term, Employee shall be eligible to receive bonuses, which
shall not be less than $25,000 for Employee's service during 1998 (which shall
be payable, subject to Section 5, on April 30, 1999), and $125,000 for such
service during 1999 (which shall be payable subject to Section 5, on October 30,
1999). The bonus payments described in the preceding sentence may be offset
against any amounts owing to the Company pursuant to the note described in
Section 3.5. With respect to calendar years after 1999, Employee's eligibility
for bonuses shall be determined by the Management Committee of the Company.
3.3 Deductions and Withholding of Taxes. There shall be deducted or
withheld from any amounts payable to Employee all federal, state, city or other
taxes required by applicable law to be so withheld or deducted, standard
Employee deductions (e.g., social security and state disability insurance) and
any other amounts authorized for deduction by Employee or required by law.
3.4 Purchase of Membership Interest in the Company. The parties acknowledge
that Employee and the Company are entering into a Subscription Agreement, in the
form attached hereto as Annex B, providing for the purchase by Employee of a
Series A Membership Interest in the Company, as further provided therein. The
parties acknowledge that the entire purchase price is being loaned to Employee
by CEV. Such loan (the "Investment Loan") is being evidenced by a Secured
Recourse Promissory Note in the form attached hereto as Annex C, and the
obligations under such Note are being secured pursuant to a Pledge and Security
Agreement being delivered by Employee in the form attached hereto as Annex D.
3.5 Short Term Loan. The parties acknowledge that the Company is loaning to
Employee the sum of $100,000, which loan is being evidenced by a Demand Recourse
Promissory Note in the form attached hereto as Annex E.
3.6 Bonus In Connection With Certain Liquidity Events. If (i) a Sale or
Qualified Public Offering occurs with respect to the Company, (ii) the Employee
is employed by the Company on the date of such transaction, and (iii) the
Company has determined, in its reasonable discretion, that all initial cash
investors in the Company have received an internal rate of return through the
date of such transaction of at least 30% on a fully diluted basis in connection
with their initial cash investment in the Company during 1998, then the Company
shall provide a bonus to the Employee consisting of the following: (a) a payment
equal to the outstanding principal balance of the Investment Loan as of the date
of such transaction, which payment may be made, in the discretion of the Company
through forgiveness of all or part of the outstanding principal balance and
accrued interest on the Investment Note and the remainder (if any) in cash; and
(b) the issuance to the Employee of a Membership Interest in the Company equal
to one-half of the Membership Interest purchased by the Employee pursuant to
Section 3.4. The internal rate of return shall be calculated taking into account
the effect of the payment of the benefits described in this Section 3.6
(including, without limitation, the effects of any resulting dilution and
diminution in value).
4. Employee Put Right.
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4.1 Put Option. On the third anniversary following the date hereof, and on
each subsequent anniversary thereof (each such date, an "Anniversary"), Employee
shall have the following option ("Put Option"). If the Employee is employed by
the Company on any such Anniversary, and no Sale or Public Offering has occurred
with respect to the Company, Employee shall have the right to require the
Company to repurchase a number of his Securities in the Company not to exceed
the lesser of (i) 10% of the Securities held by Employee attributable to the
Membership Interest purchased pursuant to Section 3.4 hereof, and (ii) a number
of Securities with a Fair Market Value as of such Anniversary equal to $250,000.
4.2 Limit on Total Number of Securities Sold Pursuant to Put Option. The
Put Option shall be subject to the following limitations. The aggregate number
of Securities sold to the Company pursuant to all exercises of the Put Option
shall not exceed 40% of the Securities held by Employee attributable to the
Membership Interest purchased pursuant to Section 3.4 hereof. In addition, in no
event shall the aggregate purchase price paid by the Company to Employee
pursuant to all exercises of the Put Option exceed $1 million.
4.3 Manner of Exercise. The exercise of the Put Option shall be by means of
a written notice of exercise (the "Put Notice") delivered by the Employee to the
Company within 30 days following the relevant Anniversary, which shall designate
the number of Securities that the Employee wishes to tender to the Company. If
no Put Notice is delivered within 30 days following an Anniversary, Employee
shall have forfeited his Put Option rights with respect to such Anniversary.
Following timely delivery of the Put Notice, Employee shall be required to sell
to the Company, and the Company shall be required to purchase from Employee, the
number of Securities designated in the Put Notice (but not to exceed the limits
imposed by Sections 4.1 and 4.2).
4.4 Purchase Price; Closing. The purchase price to be paid by the Company
pursuant to exercises of the Put Option shall be equal to the Fair Market Value
of the Securities as of the relevant Anniversary. Payment for any Securities
purchased pursuant to the Put Option shall be made in cash payable on closing
date of the exercise of the Purchase Option, which date shall be no later than
thirty (30) days following the date the Put Notice is received by the Company or
such longer period as may be reasonably necessary to determine the Fair Market
Value however, further, if the Company is prohibited by law from repurchasing
the Securities, the Company's obligation to purchase the Securities shall be
deferred until the Company is permitted to do so. The Management Committee shall
have the option to transfer and assign its obligation to repurchase Securities
pursuant to the Put Option (in full or in part) to any designee as long as such
designee satisfies the payment obligations of the Company with respect to the
Securities purchased by the designee.
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5. Termination of Employment. Except as otherwise provided herein,
Employee's employment and all rights of Employee hereunder shall terminate upon
the termination of this Agreement, and neither Employee nor his successors will
have any rights hereunder, except as expressly provided herein. This Agreement
and the employment of Employee shall terminate only upon the occurrence of any
of the following events effective upon the satisfaction of the specified
conditions and the expiration of any notice periods after the delivery of any
required notices.
5.1 Mutual Agreement. The Company and Employee may mutually agree in
writing to the termination of this Agreement, including the extent of the
continuation of rights and obligations of the Company and Employee.
5.2 Termination for Cause. The Company may terminate this Agreement for
"Cause", as defined below, at any time such Cause exists, by written notice to
the Employee. In the event the Company elects to terminate Employee for Cause,
the Management Committee of the Company shall send written notice to Employee
terminating such employment, indicating the basis for such termination and
specifying the termination date. "Cause" for termination of this Agreement by
the Company shall mean any of the following acts or circumstances of Employee:
(i) willful destruction of Company property having a material value to the
Company; (ii) fraud, embezzlement, theft, or comparable dishonest activity
(excluding acts involving a de minimis dollar value and not related to the
Company); (iii) conviction of or entering a plea of guilty or nolo contendere to
any crime constituting a felony or any misdemeanor involving fraud, dishonesty
or moral turpitude; (iv) breach, neglect, refusal, or failure to materially
discharge the duties under this Agreement commensurate with Employee's title and
function; (v) material breach of Section 6 of this Agreement, or (vi) material
misrepresentation to the Company, the Management Committee or any officer(s) to
whom the Employee reports. Notwithstanding the foregoing to the contrary, prior
to discharging Employee pursuant to clause (iv) of the immediately preceding
sentence, the Company shall give Employee at least fifteen (15) days' prior
written notice of any breach or failure and an opportunity to cure any such
breach or failure. In connection with a termination by the Company for Cause,
the Company shall pay to Employee all accrued compensation and benefits
(excluding any bonus amounts pursuant to Section 3.2) earned by and payable to
Employee hereunder prior to the effective date of such termination
(collectively, the "Earned and Vested Benefits"). Except as set forth in this
Section 5.2 and Section 5.6, the Company shall have no further obligations under
this Agreement in connection with a termination of the Employee for Cause.
5.3 Termination Without Cause. Notwithstanding any other provision of this
Section 5, in the event that Employee's employment is terminated by the Company
without Cause or if Employee resigns for Good Reason (hereinafter defined),
Employee shall receive all unpaid Earned and Vested Benefits, [any unpaid
minimum bonus provided with respect to the first twelve months of the Term
pursuant to Section 3.2], and as a severance benefit, the Employee shall receive
the Base Salary provided for in Section 3.1 hereof until the earlier of the end
of the Term of this Agreement or twelve months following the date of
termination, in accordance with the Company's normal payroll practices and
schedule. For purposes of this Agreement, "Good Reason" shall mean (i) a failure
to maintain Employee in a management position substantially equivalent to that
provided for in
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Section 1.1 hereof, or (ii) a material diminution by the Company of Employee's
responsibilities which change would cause Employee's position at the Company to
become one of less responsibility, importance or scope. Except as set forth in
this Section 5.3 and Section 5.6, the Company shall have no further obligations
under this Agreement in connection with a termination of Employee without Cause
or a resignation of Employee for Good Reason.
5.4 Death/Disability. This Agreement shall terminate automatically upon the
death of Employee. For the purposes of this Agreement, "Disability" shall mean
that (i) for any period of sixty (60) consecutive days, or for sixty (60) days
in any period of one hundred and fifty (150) consecutive days, Employee is
absent or unable to perform Employee's duties with the Company on a full time
basis as a result of incapacity due to mental or physical illness. In the event
of the death or Disability of the Employee, the Company shall pay Employee (or
any estate, beneficiary or legal representative of Employee) all Earned and
Vested Benefits. Except as set forth in this Section 5.4 and Section 5.6, the
Company shall have no further obligations under this Agreement in connection
with a death or Disability of Employee.
5.5 Termination by Employee. Except as provided in Section 5.6 below, in
the event that Employee unilaterally elects to terminate his employment, the
Company shall have no further obligations to make any payments under this
Agreement and Employee shall forfeit any right to such payments, except for
Earned and Vested Benefits.
5.6 Company's Purchase Option. Upon the occurrence of any of the events set
forth in Sections 5.1, 5.2, 5.3, 5.4 and 5.5 (collectively the "Option Events"),
the Company shall have the right and option, in the discretion of the Management
Committee of the Company, to purchase (the "Purchase Option"), at any time
during the ninety (90) days following the occurrence of an Option Event, all of
the Securities (as defined in Appendix B to the Company Agreement) then owned,
directly or indirectly, by Employee, including all such Securities acquired by
any other Person pursuant to a Permitted Transfer and including any interests
therein of any holding company, legal representative, estate, beneficiary,
executor, administrator or trustee of the Employee (the "Representative"). If
the Option Event results from a termination of the Employee by the Company for
Cause or a termination by the Employee without Good Reason, then the price to
exercise the Purchase Option shall be equal to the lesser of the cost paid by
the Employee for such Securities and the Fair Market Value of such Securities as
of the date of the Option Event. If the case of any other Option Event, the
price to exercise the Purchase Option shall be equal to the Fair Market Value of
such Securities as of the date of the Option Event. The exercise of the Purchase
Option shall be by means of a written notice of exercise (the "Notice")
delivered by the Company to the Employee and/or Representative. Payment for such
Securities shall be made in cash payable on the closing date of the exercise of
the Purchase Option, which date shall be no later than thirty (30) days
following the Notice date or such longer period as may be reasonably necessary
to determine the Fair Market Value; provided, however, any amounts owed to
Employee pursuant to this Section may be offset against any amounts owing by the
Employee to the Company; provided, further, if the Company is prohibited by law
from repurchasing the Securities, the Company's obligation to purchase the
Securities shall be deferred until the Company is permitted to do so. The
Management Committee
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shall have the option to transfer and assign the Purchase Option (in full or in
part) to any designee as long as such designee satisfies the payment obligations
of the Company with respect to the Securities purchased by the designee.
6. Proprietary Rights; Confidentiality; No Competition.
6.1 Employee agrees that all intellectual property rights, developments,
designs, computer software, inventions, applications and improvements, including
but not limited to trade names, assumed names, service names, service marks,
trademarks, logos, patents, copyrights, licenses, formulas, trade secrets and
technology, whether in design, methods, processes, formulae, machines or devices
and all other applications (collectively, "Employee Inventions"), whether made,
created, invented, devised or developed prior to the date of this Agreement for
the Company or hereafter by Employee during the rendition of his services
hereunder, other than Employee Inventions made, created, invented, devised or
developed by Employee (i) on his own personal time, (ii) without the use of the
Company's facilities and resources and (iii) which are not related to the
Company Business and do not otherwise relate to a matter governed or restricted
by the Covenant Not to Compete (collectively, "Unrelated Inventions"), are works
made for hire and shall be the exclusive property of the Company without
separate compensation to the Employee. Employee will, at the request and expense
of the Company made at any time, execute and deliver to the Company or its
nominee such applications and instruments as may be desirable and appropriate
for obtaining for the Company or its nominee, patents, copyrights, trademarks,
know-how and other intellectual property protection of the United States and all
other countries for vesting in the Company or its nominee, all of Employee's
claim, right, title and interest in said intellectual property rights,
developments, designs, computer software, inventions, improvements, applications
and improvements and for maintaining, enforcing and defending the same, and to
otherwise vest in or evidence the Company's exclusive ownership of all of the
rights referred to herein. In the event that for whatever reason the results of
Employee's past or future work for the Company should not be deemed to be works
made for hire, Employee agrees to assign, and hereby does assign, to the Company
all claim, right, title and interest, in any country, to each and every patent,
copyright, trademark, computer software, know-how or other intellectual property
of any sort, other than Unrelated Inventions, that is the result of work done in
the course of the Employee's past or future employment by the Company, or that
the Employee creates or develops, in whole or in part by, using the Company's
equipment, supplies or facilities. Each and every such assignment is and shall
be in consideration of this Agreement with the Company, and no further
consideration therefor is or shall be provided to Employee by the Company.
Employee hereby waives enforcement of any moral or legal rights which might
limit the Company's rights to exploit any of the foregoing materials in any
manner. For all purposes of this Section 6, references to the "Company" shall be
deemed to include all predecessors entities and businesses. Notwithstanding
anything in the foregoing to the contrary, an Employee Invention which is a
software product shall not constitute an "Unrelated Invention" unless Employee
gives written notice to the Management Committee of the Company of his intention
to treat such Employee Invention as an "Unrelated Invention", and the Management
Committee of the Company, in its reasonable, good faith determination, gives
written notice to Employee of its concurrence in such characterization.
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6.2 Confidentiality. Employee agrees not to disclose, use, transfer or sell
any intellectual property, confidential or proprietary information of the
Company, whether Employee has such information in his memory or embodied in
writing or other physical form, unless such activities are on behalf of and
expressly authorized by the Company. For purposes of this Agreement, the phrase
"intellectual property, confidential or proprietary information of the Company"
means all information which is known or intended to be known only to employees
of the Company or others in a confidential relationship with any of them,
including, without limitation, that which relates to marketing or brand
recognition matters, such as logos, tradenames, service names, and trademarks,
or to technical matters, such as patents, programs, components, devices,
formulae, testing procedures, processes, computer software and graphics products
of the Company or any Affiliate, or to business matters such as the identity of
clients, customers or business partners or terms of business relationships with
clients, customers or business partners. Notwithstanding the foregoing, the term
"intellectual property, confidential or proprietary information" of the Company
shall not include information which (i) is, at the time of the disclosure, a
part of the public domain through no act or omission by Employee, (ii) known to
the Employee prior to the time of disclosure by the Employee, provided that the
information was not obtained by the Employee in the course of rendering services
to the Company or any predecessor entity or (iii) is hereafter disclosed to
Employee by a third party who or which did not acquire the information under an
obligation of confidentiality to or through the Company or any predecessor
entity. Employee agrees not to remove from the premises of the Company, any
intellectual property, confidential or proprietary information of the Company,
except as permitted by the Company and except for Employee's personal rolodex
and other personal belongings and files that do not contain intellectual
property, confidential or proprietary information related to the Company
Business. Employee recognizes that all such intellectual property, confidential
or proprietary information of the Company, are the exclusive property of the
Company. Employee agrees to return to the Company all materials (whether in
written, electronic or other form) in his possession containing or reflecting
intellectual property, confidential or proprietary information of the Company
promptly following the cessation of any service relationship with the Company,
except for Employee's personal address directory and other personal belongings
and files that do not contain intellectual property, confidential or proprietary
information related to the Company Business. Employee agrees that the
restrictions contained in this Section 6 shall continue to apply without time or
geographic restrictions, so long as any information remains intellectual
property, confidential or proprietary information of the Company.
6.3 Non-Competition.
6.3.1 As a means reasonably designed to protect the intellectual
property, confidential and proprietary information of the Company, for a period
beginning on the date hereof and ending one (1) year from the conclusion of
Employee's employment with the Company (such period the "Noncompete Term"),
Employee will not, without the prior written consent of the Company based upon
approval from the Management Committee of the Company (or any similar successor
management body of the Company or any successor entity of the Company), anywhere
in the world, directly or indirectly, engage in, assist (financially or
otherwise), associate with, or perform services (other than on behalf of the
Company or any of its Affiliates) in any Competing Business (as defined in Annex
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A), including, without limitation, whether such engagement, assistance,
association or performance is as an individual, principal, officer, director,
proprietor, employee, partner, stockholder or other investor (other than as a
holder of less than five percent (5%) of the outstanding capital stock of a
publicly traded corporation), creditor, guarantor, consultant, advisor, agent,
sales representative or other participant, or otherwise permit his name to be
used or employed with any such Competing Business. For purposes of this
Agreement, "Affiliate" shall mean any person, partnership, limited liability
company, joint venture, trust, corporation or other entity, directly or
indirectly, controlling, controlled by or under common control with such person,
partnership, limited liability company, joint venture, trust, corporation or
other entity.
6.3.2 Reasonable Restrictions. Employee hereby represents and
acknowledges that: the restrictions stated herein on the activities in which
Employee may engage upon termination of his employment with the Company are
reasonable and that, despite such restrictions, Employee will be able to earn
his livelihood and engage in his profession following said termination; the
worldwide restriction is reasonable because the Company presently does business,
or has a bona fide plan of doing business during the Noncompete Term, throughout
the world; and the period of time designated above is reasonable in relation to
the nature of the Company Business (as defined in Annex A).
6.4 Non-Interference. During the Noncompete Term, Employee will not,
without the prior written consent of the Company, directly, indirectly or as an
agent on behalf of or in conjunction with any person, firm, partnership,
corporation or other entity, (a) hire, solicit, encourage the resignation of, or
in any other manner seek to engage or employ any person who is then, or within
the prior twelve (12) months had been, an employee of the Company or its
Affiliates, whether or not for compensation and whether as an officer, employee,
consultant, adviser, independent sales representative, independent contractor or
participant, or (b) except as may be appropriate to perform Employee's duties
hereunder, contact, solicit, service or otherwise have any dealings related to
Company Business with any person or entity with whom the Company or its
Affiliates has a former, current or prospective business relationship or who is
or was at any time during his employment with the Company (including any
predecessor or successor entity) a customer or client of the Company or its
Affiliates, or a prospective customer or client to which the Company or its
Affiliates has made a written or oral business proposal.
6.5 Equitable Relief. Employee acknowledges that the provisions contained
in Section 6 hereof are reasonable and necessary to protect the legitimate
interests of the Company, that any breach or threatened breach of such
provisions will result in irreparable injury to the Company and that the remedy
at law for such breach or threatened breach would be inadequate. Accordingly, in
the event of the breach by Employee of any of the provisions of Section 6
hereof, the Company, in addition and as a supplement to such other rights and
remedies as may exist in its favor, may apply to any court of law or equity
having jurisdiction to enforce this Agreement, and/or may apply for injunctive
relief against any act that would violate any of the provisions of this
Agreement (without being required to post a bond). Employee further understands
that monetary damages will not be sufficient to avoid or compensate for a breach
of the provisions contained in Section 6 hereof and that injunctive relief would
be appropriate to prevent any such breach or threatened breach.
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Such right to obtain injunctive relief may be exercised, at the option of the
Company, concurrently with, prior to, after, or in lieu of, the exercise of any
other rights or remedies that the Company may have as a result of any such
breach or threatened breach.
7. Miscellaneous.
7.1 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the employment of Employee
by the Company and supersedes any prior understandings, agreements or
representations between the parties, written or oral, to the extent they have
related in any way to the subject matter hereof. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by the Company and Employee. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
7.2 Arbitration. Subject to Section 7.3 hereof, and except as
otherwise required by law, the Employee and the Company agree that any and all
legal disputes, controversies or claims arising out of or relating to this
Agreement shall be resolved by binding arbitration at the local Los Angeles
County, California offices of the Judicial Arbitration & Mediation Services,
Inc. ("J.A.M.S."). The parties may agree on a jurist from the J.A.M.S. panel. If
they are unable to agree, J.A.M.S. will provide a list of three available panel
members and the aggrieved party shall first strike one panel member, and the
other party shall then strike one panel member. The remaining panel member will
serve as the arbitrator. The aggrieved party may initiate arbitration by: (i)
sending thirty (30) days written notice of an intention to arbitrate by
registered or certified mail to all parties and to J.A.M.S.; and (ii) depositing
with J.A.M.S. the advanced fees required by J.A.M.S. to initiate the arbitration
process for the parties. The notice must contain a description of the dispute,
the amount involved and the remedies sought. Upon notice of demand for
arbitration, the parties agree to execute a submission agreement, provided by
J.A.M.S., which agreement shall provide for discovery in accordance with the
Federal Rules of Civil Procedure and for the Commercial Arbitration rules and
procedures established by the American Arbitration Association. The prevailing
party in any such arbitration proceeding shall be entitled to recover from the
other party reasonable attorneys' fees, costs and expenses in connection with
such arbitration proceeding.
7.3 Notices. All notices under this Agreement will be in writing and
will be delivered by personal service or telegram, telecopy or certified mail
(if such service is not available, then by first class mail), postage prepaid,
or Federal Express (or other reputable overnight courier) to such address as may
be designated from time to time by the relevant party, and which will initially
be as set forth below. Any notice sent by certified mail will be deemed to have
been given three (3) days after the date on which it was mailed. Notices sent by
personal delivery shall be deemed effective on the date delivered, notices sent
by Federal Express (or other reputable overnight courier) shall be deemed
effective on the third business day following the sending thereof and notices
sent by telecopy shall be deemed effective on the date delivered. No objection
may be made to the manner of delivery of any
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notice actually received in writing by an authorized agent of a party. Notices
will be addressed as follows or to such other address as the party to whom the
same is directed will have specified in conformity with the foregoing:
If to Company:
Caminus Energy Ventures LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chairman
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
GFI Energy Ventures LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Employee:
Xxxxx Xxxxxx
000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxx Xxxxxx
same as above
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Attn:
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Telephone:
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Facsimile:
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7.4 Third-Party Benefits. None of the provisions of this Agreement
will be for the benefit of, or enforceable by, any third-party beneficiary,
except that each designee selected by the Company pursuant to Section 4.4 or
Section 5.6 is intended as a third-party beneficiary of all rights of the
Company under those sections.
7.5 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties, their respective successors and permitted
assigns. None of the parties hereto may assign any of their rights or
obligations under this Agreement without the prior written consent of all other
parties hereto, except that this Agreement may be
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assigned by the Company to any corporation or other business entity that
succeeds to all or substantially all of the business of the Company through
merger, consolidation, corporate reorganization or by acquisition of all or
substantially all of the assets or equity interests of the Company.
7.6 Governing Law. All questions with respect to this Agreement and
the rights and liabilities of the parties shall be governed by the laws of the
State of New York, regardless of the choice of law provisions of that state or
any other jurisdiction.
7.7 Headings and Gender. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement. All words shall be construed to be
of such gender and number as the circumstances require.
7.8 Severability. The validity, legality or enforceability of the
remainder of this Agreement will not be affected even if one or more of the
provisions of this Agreement will be held to be invalid, illegal or
unenforceable in any respect.
7.9 Attorneys' Fees. Subject to Section 7.2 hereof, if any action or
proceeding is brought to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to recover as an element of its costs,
and not its damages, reasonable attorneys' fees and costs incurred in connection
with such action or proceeding.
7.10 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
7.11 Survival. The provisions of Section 6 of this Agreement shall
survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CAMINUS ENERGY VENTURES, a Delaware limited EMPLOYEE
liability company
By: /s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Its: Member, Management Committee
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ANNEX A
CERTAIN DEFINED TERMS
"Competing Business" shall mean any business that competes or has competed,
directly or indirectly, with the Company Business in any country or countries in
which the Company has conducted business within the past two (2) years prior to
the Date of Termination.
"Company Business" shall mean the development and marketing of (i)
consulting advisory services and supporting models used to analyze or influence
client and industry decisions regarding energy pricing, investments, regulatory
policy and financial and strategic planning for clients in the natural gas,
crude oil, refined products, electric power and utility industries, and (ii)
software or related products or services substantially related to the matters
described in clause (i) or which otherwise facilitate transactions or other
participation in competitive energy markets
"Fair Market Value" shall mean, with respect to a Security, the Fair Market
Value of the Security as determined by the Management Committee in its
reasonable discretion (the "Management Committee Determination"). In the case of
an exercise of the Put Option, the Management Committee shall deliver to
Employee its determination of Fair Market Value within ten days following
receipt of the Put Notice pursuant to Section 4.3. In the case of the exercise
of the Purchase Option, the Management Committee shall deliver its determination
of Fair Market Value along with the Notice. If, following delivery of the
Management Committee Determination, the Employee disagrees with the Management
Committee Determination, the Employee shall provide the Company with written
notice of such disagreement within ten (10) days following the delivery of the
Management Committee Determination to the Employee. If the Employee does not
deliver written notice of objection within such time period, the Management
Committee Determination shall be final and binding for all purposes. If the
Employee does object in writing within such period, then the Management
Committee shall select an Independent Financial Expert to determine the Fair
Market Value, whose determination shall be final and binding for all purposes.
If the Fair Market Value as determined by the Independent Financial Expert is
greater than 105% of the Management Committee Determination, then the Company
shall bear all of the fees and expenses of the Independent Financial Expert
("Appraisal Fees"). If the Fair Market Value as determined by the Independent
Financial Expert is less than 95% of the Management Committee Determination,
then the Employee shall bear all of the Appraisal Fees. Otherwise, the Appraisal
Fees shall be split and borne equally by the Company and the Employee. Any
amounts owed by the Employee under this paragraph may be recovered by the
Company through the offset of any amounts owed by the Company to the Employee.
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