AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") entered
into effective as of October 28, 2004, by and between Xxxx X. Xxxxxxx (the
"Executive"), and Gexa Corp., a Texas corporation having its principal place of
business at 00 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (the "Company");
W I T N E S S E T H:
WHEREAS, The Company wishes to employ the Executive as Chairman and the
Chief Executive Officer and to perform services incident to such position for
the Company, and the Executive wishes to be so employed by the Company, all upon
the terms and conditions hereinafter set forth;
WHEREAS, the Executive and the Company entered into an Employment Agreement
dated July 16, 2003 (the "Original Agreement"), and now desire to amend and
restate the Original Agreement by adopting this Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants and
obligations herein set forth and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, accepted and
agreed to, the parties hereto, intending to be legally bound, hereby amend and
restate the Original Agreement by adopting this Agreement as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the Executive to serve
as Chairman and the Chief Executive Officer of the Company. The term of this
Agreement (the "Term of this Agreement") shall be effective as of the date first
above written and shall terminate twenty-four (24) months from the date hereof
(the "Termination Date"), unless earlier terminated by either party hereto in
accordance with the provisions of Section 5 hereof; provided, however, that
beginning on the second anniversary date of the date hereof and on each
anniversary date of the date hereof thereafter, the Term of this Agreement shall
be automatically extended one additional year unless either party gives written
notice to the other at least 60 days prior to such anniversary of the date
hereof that the Term of this Agreement shall cease to be so extended. During the
Term of this Agreement, the terms of employment shall be as set forth herein
unless modified by the Executive and the Company in accordance with the
provisions of Section 11 hereof. The Executive hereby agrees to accept such
employment and to perform the services specified herein, all upon the terms and
conditions hereinafter set forth.
2. POSITION AND RESPONSIBILITIES. The Executive shall serve as Chairman and
Chief Executive Officer of the Company and shall report to, and be subject to
the general direction of the Board of Directors of the Company. During the Term
of this Agreement, the Executive will also be nominated to be a member of the
Board of Directors of the Company with respect to each meeting, or consent in
lieu of meeting, of stockholders of the Company at which directors are to be
elected. The Executive shall have other obligations, duties, authority and power
to do all acts and things as are customarily done by a person holding the same
or equivalent position or performing duties similar to those to be performed by
executives in corporations of similar size to the Company and shall perform such
managerial duties and responsibilities for the Company which are not
inconsistent with his position as may reasonably be assigned to him by the Board
of Directors of the Company (or a committee thereof). Unless otherwise agreed to
by the Executive, the Executive shall be based at the Company's principal
executive offices located in the greater Houston, Texas metropolitan area.
3. EXTENT OF SERVICE. The Executive shall devote his full business time and
attention to the business of the Company. During the Term of this Agreement,
Executive shall devote his best efforts and skills to the business and interests
of Company, do his utmost to further enhance and develop Company's best
interests and welfare, and endeavor to improve his ability and knowledge of
Company's business, in an effort to increase the value of his services for the
mutual benefit of the parties hereto. During the Term of this Agreement, it
shall not be a violation of this Agreement for Executive to (i) serve on any
corporate board or committee thereof with the approval of the Board (except for
boards or committees of a competing business unless approved by the Board), (ii)
serve on any civic or charitable boards or committees, (iii) deliver lectures,
fulfill teaching or speaking engagements, (iv) testify as a witness in
litigation involving a former employer or (v) manage personal investments;
provided, however, any such activities must not consume in the aggregate more
than 20 hours during any month, nor materially interfere with performance of
Executive's responsibilities under this Agreement.
4. COMPENSATION.
(a) In consideration of the services to be rendered by the Executive to the
Company, the Company will pay the Executive a salary ("Salary") of $350,000 per
year during the Term of this Agreement. Such Salary will be payable in
conformity with the Company's prevailing practice for executives' compensation
as such practice shall be established or modified from time to time. Salary
payments shall be subject to all applicable federal and state withholding,
payroll and other taxes. From time to time during the Term of this Agreement,
the amount of the Executive's Salary may be further increased by, and at the
sole discretion of, the Compensation Committee of the Board of Directors of the
Company (the "Compensation Committee"), which shall review the Executive's
Salary no less regularly than annually.
(b) The Executive will be considered for an annual cash and/or stock bonus
and equity awards based on an evaluation of his performance by the Compensation
Committee. Any such bonus and equity awards will be at the sole discretion of
the Compensation Committee.
(c) During the term of this Agreement, the Company shall pay or reimburse
the Executive for all reasonable out-of-pocket expenses for travel, meals, hotel
accommodations, entertainment and the like incurred by him in connection with
the business of the Company upon submission by him and approval of an
appropriate statement documenting such expenses as required by the Company's
policy and the Internal Revenue Code of 1986, as amended (the "Code").
(d) The Executive shall be entitled to three (3) weeks of paid vacation
during each calendar year during the term of this Agreement. Vacation shall
accrue on the first day of each calendar year. The Company shall not pay the
Executive for any accrued but unused portion of vacation and any such unused
portion of vacation shall not be carried forward to the next year.
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(e) During the term of this Agreement, the Executive shall be entitled to
participate in and to receive all rights and benefits under any life,
disability, medical and dental, health and accident and profit sharing or
deferred compensation plans and such other plan or plans as may be implemented
by the Company during the term of this Agreement. The Executive shall also be
entitled to participate in and to receive all rights and benefits under any plan
or program adopted by the Company for any other or group of other executive
employees of the Company, including without limitation, the rights and benefits
under the directors' and officers' liability insurance in place from time to
time under the Company's insurance program for the directors and officers of the
Company. The Company will also obtain, at its expense, key man life insurance on
the Executive in an amount of $3,000,000, and, to the extent the proceeds
therefrom are not pledged to a lender, permit the Executive to transfer such
policy to his estate.
5. TERMINATION.
(a) Termination by Company; Discharge for Cause. The Company shall be
entitled to terminate this Agreement and the Executive's employment with the
Company at any time and for whatever reason; or at any time for "Cause" (as
defined below) by written notice to the Executive. Termination of the
Executive's employment by the Company shall constitute a termination for "Cause"
if such termination is for one or more of the following reasons: (i) the willful
failure or refusal of the Executive to render services to the Company in
accordance with his obligations under this Agreement, including, without
limitation, the willful failure or refusal of the Executive to comply with the
work rules, policies, procedures, and directives as established by the Board of
Directors and consistent with this Agreement; such failure or refusal to be
uncured and continuing for a period of not less than fifteen (15) days after
notice outlining the situation is given by the Company to the Executive; (ii)
the commission by the Executive of an act of fraud or embezzlement; (iii) the
commission by the Executive of any other action with the intent to injure the
Company or any act that could have been reasonably foreseen to materially injure
the Company that in fact materially injures the Company; (iv) the Executive
having been indicted for a felony or a crime involving moral turpitude; (v) the
Executive having misappropriated the property of the Company; (vi) the Executive
having engaged in personal misconduct which materially injures the Company;
(vii) the Executive having willfully violated any law or regulation relating to
the business of the Company which results in material injury to the Company; or
(viii) the breach of Sections 7 and 8 of this Agreement by the Executive which
breach remains uncured and continuing for a period of not less than fifteen (15)
days. In the event of the Executive's termination by the Company for Cause
hereunder, the Executive shall be entitled to no severance or other termination
benefits except for any unpaid Salary accrued through the date of termination. A
termination of this Agreement by the Company without Cause pursuant to this
Section 5(a) (which shall not include the decision by the Company to not renew
the Term of this Agreement for any additional one year periods as provided in
Section 1 above shall entitle the Executive to the Severance Payment and other
benefits specified in Section 5(f) or (g), hereof, as the case may be.
(b) Death. If the Executive dies during the term of this Agreement and
while in the employ of the Company, this Agreement shall automatically terminate
and the Company shall have no further obligation to the Executive or his estate
except that the Company shall pay to the Executive's estate that portion of his
Salary and benefits accrued through the date of death. All such payments to the
Executive's estate shall be made in the same manner and at the same time as the
Executive's Salary. Upon death of the Executive, all of his unvested options
will be fully vested, and shall be exercisable until the earlier to occur of the
expiration date of each option or the first anniversary of the date of his
death.
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(c) Disability. If during the term of this Agreement, the Executive shall
be prevented from performing his duties hereunder for a period of 90 days by
reason of disability, then the Company, on 30 days' prior notice to the
Executive, may terminate this Agreement. For purposes of this Agreement, the
Executive shall be deemed to have become disabled when the Board of Directors of
the Company, upon verification by a physician designated by the Company, shall
have determined that the Executive has become physically or mentally unable
(excluding infrequent and temporary absences due to ordinary illness) to perform
the essential functions of his duties under this Agreement with reasonable
accommodation. In the event of a termination pursuant to this paragraph (c), the
Company shall be relieved of all its obligations under this Agreement, except
that the Company shall pay to the Executive or his estate in the event of his
subsequent death, that portion of the Executive's Salary and benefits accrued
through the date of such termination. All such payments to the Executive or his
estate shall be made in the same manner and at the same time as his Salary would
have been paid to him had he not become disabled.
(d) Termination for Good Reason. The Executive shall be entitled to
terminate this Agreement and his employment with the Company at any time upon
thirty (30) days written notice to the Company for "Good Reason" (as defined
below). The Executive's termination of employment shall be for "Good Reason" if
such termination is a result of any of the following events:
(i) without Executive consent, the Executive is assigned any
responsibilities or duties materially inconsistent with his position, duties,
responsibilities and status with the Company as in effect at the date of this
Agreement or as may be assigned to the Executive pursuant to Section 2 hereof;
or his title or offices as in effect at the date of this Agreement or as the
Executive may be appointed or elected to in accordance with Section 2 are
changed; or the Executive is required to report to or be directed by any person
other than the Board of Directors of the Company; provided, that if the Board of
Directors elects a new person to become President and/or Chief Operating Officer
of the Company, other than the Executive, such election will not constitute
"Good Reason";
(ii) without Executive's consent, there is a reduction in the Salary (as
such Salary shall have been increased from time to time) payable to the
Executive pursuant to Section 4(a) hereof unless such reduction is part of a
salary reduction applicable to senior executive officers of the Company
generally;
(iii) failure by the Company or any successor to the Company or its assets
to continue to provide to the Executive any material benefit, bonus, profit
sharing, incentive, remuneration or compensation plan, stock ownership or
purchase plan, stock option plan, life insurance, disability plan, pension plan
or retirement plan on a basis consistent with practices in effect from time to
time for executive employees of the Company generally, but excluding such action
that is required by law;
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(iv) without Executive's consent, the Company requires the executive to
relocate to any city or community other than one within a fifty (50) mile radius
of the greater Houston, Texas metropolitan area, except for required travel on
the Company's business to an extent substantially consistent with the
Executive's business obligations under this Agreement; or
(v) there is any material breach by the Company of any provision of this
Agreement.
(vi) Upon the Executive's termination of this Agreement for Good Reason,
the Executive shall be entitled to the Severance Payment and other benefits
specified in Section 5(f) hereof.
(e) Voluntary Termination. Notwithstanding anything to the contrary herein,
the Executive shall be entitled to voluntarily terminate this Agreement and his
employment with the Company at his pleasure upon thirty (30) days written notice
to such effect. In such event, the Executive shall not be entitled to any
further compensation other than any unpaid Salary and benefits accrued through
the date of termination. At the Company's option, the Company may pay to the
Executive the salary and benefits that the Executive would have received during
such thirty (30) day period in lieu of requiring the Executive to remain in the
employment of the Company for such thirty (30) day period.
(f) Termination Benefits Upon Involuntary Termination or Termination for
Good Reason. In the event that (i) the Company terminates this Agreement and the
Executive's employment with the Company for any reason other than for Cause (as
defined in Section 5(a) hereof) or the death or disability (as defined in
Section 5(c) hereof) of the Executive, or (ii) the Executive terminates this
Agreement and his employment with the Company for Good Reason (as set forth in
Section 5(d) hereof), then the Company shall pay the Executive, within one
hundred twenty (120) days after the date of termination, an amount (the
"Severance Payment") equal to (x) two (2) times the Executive's highest annual
Salary in existence at any time during the last two (2) years of employment
immediately preceding the date of termination; and (y) a prorata portion (based
on the portion of the calendar year that the Executive served hereunder prior to
such termination) of the annual bonus which would have been paid to the
Executive for the full year during which such termination occurred, minus
applicable withholding and authorized salary reductions (the "Severance
Payment"). In addition, following other such termination, the Executive shall be
entitled to the following benefits (collectively, the "Additional Benefits");
(i) immediate vesting of any of the Executive's outstanding options to
purchase securities of the Company which were not vested by their own terms on
the date of termination and the extension of the Executive's right to exercise
all the Executive's options to purchase securities of the Company for a period
equal to the lesser of (A) one (1) year following the date of termination or (B)
the remaining term of the applicable option;
(ii) continued coverage, at the Company's cost, under the Company's group
health plan for the applicable coverage period under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") but only if Executive
elects such COBRA continuation in accordance with the time limits and in the
applicable COBRA regulations; and
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(iii) an amount, in cash, equal to any unreimbursed expenses incurred by
the Executive in the performance of his duties hereunder and in compliance with
Company policy through the date of termination; and
(iv) Company shall cause Executive to be covered by any policy or contract
of insurance obtained by it to insure its directors and officers against
personal liability for acts or omissions in connection with service as an
officer or director of Company or service in other capacities at the request of
the company. The coverage provided to Executive pursuant to this paragraph shall
be of a scope and on terms and conditions at least as favorable as the most
favorable coverage provided to any other officer or director of Company (or any
successor). In addition, the Company agrees that any Indemnification Agreement
entered into by and between the Company and the Executive, as well as all other
rights to which Executive is entitled with regard to indemnification and
advancement of expenses, whether by virtue of the Company's certificate of
incorporation, bylaws or otherwise, will remain in full force and effect, in
accordance with its terms.
The parties agree that, because there can be no exact measure of the
damages which would occur to the Executive as a result of termination of
employment, such payments contemplated in this Section 5(f) shall be deemed to
constitute liquidated damages and not a penalty and the Company agrees that the
Executive shall not be required to mitigate his damages. The termination
compensation in this Section 5(f) shall be paid only if the Executive executes a
termination agreement releasing all legally waivable claims arising from the
Executive's employment.
(g) Termination and Benefits upon a Change in Control. In the event of a
Change in Control, as defined in this Section 5(g), then in lieu of the
Severance Payment contained in Section 5(f) hereof, if the Executive is
terminated without Cause or the Executive terminates his employment for Good
Reason within the twelve (12) month period immediately following a Change in
Control the Company shall pay to the Executive a lump sum amount equal to two
(2) times the Executive's highest annual Salary paid during the last two (2)
years immediately preceding the date of termination, minus applicable
withholding and authorized salary reductions. The Executive shall also be
entitled to receive the Additional Benefits. In the event that the excise tax
relating to "parachute payments" under Section 280G of the Code applies to any
payments made to the Executive hereunder or under any other agreement,
obligation, plan or instrument or upon the exercise of stock options or
restricted stock awards, then the Company shall pay the Executive an additional
payment in an amount such that, after payment of federal income taxes (but not
the excise tax) on such additional payments, the Executive receives an
additional amount equal to the excise tax originally imposed on such payments.
"Change of Control" means or shall be deemed to have occurred if and when: (i)
any "person" or "group" (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of more than 50% of the total
voting power of the outstanding voting stock of the Company; (ii) the Company is
merged with or into or consolidated with another Person and, immediately after
giving effect to the merger or consolidation, (a) less than 50% of the total
voting power of the outstanding voting stock of the surviving or resulting
Person is then "beneficially owned" (within the meaning of Rule 13d-3 under the
Exchange Act) in the aggregate by the stockholders of the Company immediately
prior to such merger or consolidation, and (b) any "person" or "group" (as
defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act) has become the
direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of the voting stock of
the surviving or resulting Person; (iii) the Company sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of the
Company assets (either in one transaction or a series of related transactions);
or (iv) during any consecutive two-year period individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
by the Board of Directors for election by the stockholders of the Company was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
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(h) Survival. Notwithstanding the termination of this Agreement under this
Section 5, the provisions of Sections 7 and 8 of this Agreement, and all other
provisions hereof which by their terms are to be performed following the
termination hereof shall survive such termination and be continuing obligations.
6. CONSENT AND WAIVER BY THIRD PARTIES. The Executive hereby represents and
warrants that he has obtained all necessary waivers and/or consents from third
parties as to enable him to accept employment with the Company on the terms and
conditions set forth herein and to execute and perform this Agreement without
being in conflict with any other agreement, obligations or understanding with
any such third party.
7. CONFIDENTIAL INFORMATION. The Executive acknowledges that in the course
of his employment with the Company, he has received and will receive access to
confidential information of a special and unique value concerning the Company
and its business, including, without limitation, trade secrets, know-how, lists
of customers, employee records, books and records relating to operations, costs
or providing service and equipment, operating and maintenance costs, pricing
criteria and other confidential information and knowledge concerning the
business of the Company and its affiliates (hereinafter collectively referred to
as "information") which the Company desires to protect. The Executive
acknowledges that such information is confidential and the protection of such
confidential information against unauthorized use or disclosure is of critical
importance to the Company. The Executive agrees that he will not reveal such
information to any one outside the Company. The Executive further agrees that
during the term of this Agreement and thereafter he will not use or disclose
such information. Upon termination of his employment hereunder, the Executive
shall surrender to the Company all papers, documents, writings and other
property produced by him or coming into his possession by or through his
employment hereunder and relating to the information referred to in this Section
7, and the Executive agrees that all such materials will at all times remain the
property of the Company. The obligation of confidentiality, non-use and non-
disclosure of know-how set forth in this Section 7 shall not extend to know-how
(i) which was in the public domain prior to disclosure by the disclosing party,
(ii) which comes into the public domain other than through a breach of this
Agreement, (iii) which is disclosed to the Executive after the termination of
this Agreement by a third party having legitimate possession thereof and the
unrestricted right to make such disclosure, or (iv) which is necessarily
disclosed in the course of the Executive's performance of his duties to the
Company as contemplated in this Agreement. The agreements in this Section 7
shall survive the termination of this Agreement.
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8. COVENANT NOT TO COMPETE. The Executive acknowledges that he has been and
will continue to be provided with confidential information in the course of his
employment with the Company. For purposes of this Section 8, the term "Company"
shall include the Company and its Affiliates (as defined below). The Executive
agrees that in order to protect the Company's confidential information, it is
necessary to enter into the following restrictive covenant, which is ancillary
to the enforceable promises between the Company and the Executive in Section 7
of this Agreement. The Executive shall, during the term of this Agreement and
for a period of two (2) years following the termination of the Executive's
employment hereunder for whatever reason, observe the following separate and
independent covenants:
(a) Neither the Executive nor any Affiliate will, without the prior written
consent of the Company, within the Area (as defined below), either directly or
indirectly, (1) become financially interested in a Competing Enterprise (as
defined below) (other than as a holder of less than five percent (5%) of the
outstanding voting securities of any entity whose voting securities are listed
on a national securities exchange or quoted by the NASDAQ Stock Market,
including the OTC Bulletin Board or any comparable system), or (2) engage in or
be employed by any Competing Enterprise as a consultant, officer, director, or
executive or managerial employee.
(b) Neither the Executive nor any Affiliate will, without the prior written
consent of the Company, either directly or indirectly, on Executive's own behalf
or in the service or on behalf of others, solicit, divert or appropriate, or
attempt to solicit, divert, or appropriate, to any Competing Enterprise, any
person or entity whose account with the Company was serviced by the Company
during the term of this Agreement.
(c) Neither the Executive nor any Affiliate will, without the Company's
prior written consent, either directly or indirectly, on the Executive's own
behalf or in the service or on behalf of others, solicit, divert, or hire away,
or attempt to solicit, divert, or hire away, to any Competing Enterprise, any
person employed by the Company whether or not such employee is a full-time or a
temporary employee of the Company and whether or not such employment is pursuant
to written agreement and whether or not such employment is at will.
The following terms used in Sections 7 and 8 shall have the definitions set
forth below:
"Affiliate" means any person or entity directly or indirectly controlling,
controlled by, or under common control with the Executive. As used herein, the
word "control" means the power to direct the management and affairs of a person.
"Area" means the geographic area included from time to time within the
operating control of the Electric Reliability Council of Texas, also known as
"ERCOT."
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"Competing Enterprise" means any person or any business organization of
whatever form, engaged directly or indirectly within the Area in the business of
the Company or any of it Affiliates or any other related business conducted by
the Company or any of its Affiliates as of the time of the termination of the
Executive's employment by the Company.
9. NOTICES. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered on
the date personally delivered or on the date mailed, postage prepaid, by
certified mail, return receipt requested, or telegraphed and confirmed if
addressed to the respective parties as follows:
If to the Executive: Xxxx X. Xxxxxxx
If to the Company: Gexa Corp.
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chairman, Compensation Committee
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
10. SPECIFIC PERFORMANCE. The Executive acknowledges that a remedy at law
for any breach or attempted breach of Section 7 or 8 of this Agreement will be
inadequate, agrees that the Company shall be entitled to specific performance
and injunctive and other equitable relief in case of any such a breach or
attempted breach, and further agrees to waive any requirement of the securing or
posting of any bond in connection with the obtaining of any such injunctive or
any other equitable relief.
11. WAIVERS AND MODIFICATIONS. This Agreement may be modified, and the
rights and remedies of any provision hereof may be waived, only in accordance
with this Section 11. No modifications or waiver by the Company shall be
effective without the consent of at least a majority of the Compensation
Committee then in office at the time of such modification or waiver. No waiver
by either party of any breach by the other or any provision hereof shall be
deemed to be a waiver of any later or other breach thereof or as a waiver of any
other provision of this Agreement. This Agreement sets forth all the terms of
the understandings between the parties with reference to the subject matter set
forth herein and may not be waived, changed, discharged or terminated orally or
by any course of dealing between the parties, but only by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
12. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Texas.
13. SEVERABILITY. In case of one or more of the provisions contained in
this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
contained herein.
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14. ARBITRATION. In the event that a dispute or controversy should arise
between the Executive and the Company as to the meaning or application of any
provision, term or condition of this Agreement, such dispute or controversy
shall be settled by binding arbitration in Houston, Texas and for said purpose
each of the parties hereto hereby expressly consents to such arbitration in such
place. Such arbitration shall be conducted in accordance with the existing rules
and regulations of the American Arbitration Association governing commercial
transactions. The expense of the arbitrator shall be borne by the Company.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date and year first above written.
COMPANY:
GEXA CORP.
By: /s/____________________________________
Title:
EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
____________________________________________
Xxxx X. Xxxxxxx
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