NEW CENTURY ENERGY CORP. SECOND AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.9
SECOND
AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
THIS
SECOND AMENDED EXECUTIVE
EMPLOYMENT AGREEMENT (this "Agreement") is made between New Century Energy
Corp., a Colorado corporation (the “Company"), and Xxxxxx X. XxXxxxxxx
(“Executive”) (collectively sometimes referred to as the “Parties” and
individually sometimes referred to as “Each Party”). Unless otherwise indicated,
all references to Sections are to Sections in this Agreement. This
Agreement is executed as of December 3, 2007, to be effective as of the
“Effective Date” set forth in Section 14 below.
W
I T N E S S E T H:
WHEREAS,
the Company and Executive have previously entered into a three year Executive
Employment Agreement, effective September 1, 2005 (the “2005
Agreement”);
WHEREAS,
the Company
and Executive have previously entered into a three year Amended Executive
Employment Agreement, effective June 1, 2006, which amended and replaced the
terms of the 2005 Agreement (the “2006 Agreement”);
WHEREAS,
the Company and Executive now desire to amend and replace the terms and
conditions of the 2006 Agreement, with the terms and conditions of this
Agreement, and this Agreement shall replace and supersede the terms and
conditions of the 2006 Agreement from the Effective Date of this Agreement
as
written below; and
WHEREAS,
the Company desires to obtain the services of Executive, and Executive desires
to be employed by the Company upon the terms and conditions hereinafter set
forth;
NOW,
THEREFORE, in
consideration of the premises, the agreements herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as of the date hereof as follows:
1.
Employment. The Company hereby
agrees to employ Executive, and Executive hereby agrees to serve the Company,
as
its Chief Executive Officer and President (“Employment”) for a period of three
(3) calendar years beginning on January 1, 2008 and ending on December 31,
2010,
which Employment shall be renewable for successive one (1) year terms at 110%
of
the Yearly Salary then in effect (as defined under Section 3(a)), unless either
the Company or Executive provide notice of their intent to terminate this
Agreement prior to thirty (30) days before the date this Agreement is to
terminate, or such notice is waived by the other party.
2.
Scope of Employment.
(a)
During the Employment, Executive
will serve as Chief Executive Officer and President. In that connection,
Executive will (i) devote his full-time, attention, and energies to the business
of the Company and will diligently and to the best of his ability perform all
duties incident to his employment hereunder; (ii) use his best efforts to
promote the interests and goodwill of the Company; and (iii) perform such other
duties commensurate with his office as the Board of Directors of the Company
may
from time-to-time assign to him.
(b)
Section 2(a) shall not be construed
as preventing Executive from (i) serving on corporate, civic or charitable
boards or committees, or (ii) making investments in other businesses or
enterprises; provided that in no event shall any such service, business activity
or investment require the provision of substantial services by Executive to
the
operations or the affairs of such businesses or enterprises such that the
provision thereof would interfere in any respect with the performance of
Executive's duties hereunder; and subject to Section 6.
3.
Compensation and Benefits During
Employment. During the Employment, the Company shall provide compensation to
Executive as follows.
(a)
Executive shall receive a different
“Yearly Salary” depending on the year which Executive is employed under this
Agreement, including:
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(i)
(ii)
(iii)
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a
Yearly Salary of $425,000 for the twelve month period beginning January
1,
2008 and ending December 31, 2008;
a
Yearly Salary of $475,000 for the twelve month period beginning
on January
1, 2009 and ending on December 31, 2009; and
a
Yearly Salary of $475,000 for the twelve month period beginning
on January
1, 2010 and ending on December 31,
2010.
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(b) Executive
shall be
entitled to a one-time bonus in the amount of $20,000 payable within ten (10)
days of Executive’s entry into this Agreement in consideration for Executive’s
help and guidance in connection with the Company’s wholly-owned subsidiary, Gulf
Coast Oil Corporation closing $7,100,000 in financing for the drilling of up
to
fourteen xxxxx on its properties and the Company’s closing the $5,300,000 in
financing for the drilling of up to six xxxxx and reworking two other existing
xxxxx on its properties, which occurred in November 2007.
(c)
In
addition to
Executive’s Yearly Salary, Executive may be granted bonus payments of cash or
shares of the Company’s common stock from time to time at the discretion of the
Company’s Board of Directors.
(d)
The
Company shall reimburse
Executive for business expenses incurred by Executive in connection with the
Employment in accordance with the Company’s then-current policies.
(e) The
Company hereby agrees to give Executive a car allowance of $750.00 per month
to
be spent on obtaining and maintaining transportation for Executive.
(f)
Executive will be entitled to participate in any health insurance or other
employee benefit plan which the Company may adopt in the future.
(g) Executive
will be entitled to twenty (20) days of paid time off (PTO) per year. PTO days
shall begin on the 1st of January for each successive year. Unused PTO days
shall roll-over into the next year. Other than the use of PTO days for illness
or personal emergencies, PTO days must be pre-approved by the
Company.
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(h)
Executive will be entitled to participate in any incentive program or
discretionary bonus program of the Company which may be implemented in the
future by the Board of Directors.
(i) Executive
will be entitled to participate in any stock option plan of the Company which
may be approved in the future by the Board of Directors.
(j) Executive
may be granted, at the sole discretion of the Company’s Board of Directors, an
overriding royalty interest in any new xxxxx drilled by the Company for
successful completion of new projects and as a further incentive to develop
the
Company’s reserve base. The overriding royalty interest shall be one
half of one percent (.0050 decimal interest or 500% of 8/8ths) of any such
xxxxx, and may not exceed this amount.
Any
act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based
upon
the advice of counsel for the Company shall be conclusively presumed to be
done,
or omitted to be done, by Executive in good faith and in the best interests
of
the Company and thus shall not be deemed grounds for Termination for
Cause.
4.
Confidential
Information.
(a)
Executive acknowledges that the law
provides the Company with protection for its trade secrets and confidential
information. Executive will not disclose, directly or indirectly, any
of the Company’s confidential business information or confidential technical
information to anyone without authorization from the Company’s
management. Executive will not use any of the Company’s confidential
business information or confidential technical information in any way, either
during or after the Employment with the Company, except as required in the
course of the Employment.
(b)
Executive will strictly adhere to
any obligations that may be owed to former employers insofar as Executive’s use
or disclosure of their confidential information is concerned.
(c) Information
will not be
deemed part of the confidential information restricted by this Section 4 if
Executive can show that: (i) the information was in Executive’s
possession or within Executive’s knowledge before the Company disclosed it to
Executive; (ii) the information was or became generally known to those who
could
take economic advantage of it; (iii) Executive obtained the
information from a party having the right to disclose it to Executive without
violation of any obligation to the Company, or (iv) Executive is required to
disclose the information pursuant to legal process (e.g., a subpoena), provided
that Executive notifies the Company immediately upon receiving or becoming
aware
of the legal process in question. No combination of information will be deemed
to be within any of the four exceptions in the previous sentence, however,
whether or not the component parts of the combination are within one or more
exceptions, unless the combination itself and its economic value and principles
of operation are themselves within such an exception or exceptions.
(d)
All originals and all copies of any
drawings, blueprints, manuals, reports, computer programs or data, notebooks,
notes, photographs, and all other recorded, written, or printed matter relating
to research, manufacturing operations, or business of the Company made or
received by Executive during the Employment are the property of the
Company. Upon Termination of the Employment, whether or not for
Cause, Executive will immediately deliver to the Company all property of the
Company which may still be in Executive’s possession. Executive will
not remove or assist in removing such property from the Company’s premises under
any circumstances, either during the Employment or after Termination thereof,
except as authorized by the Company’s management.
(e)
For a period of one (1) year after
the date of Termination of the Employment, Executive will not, either directly
or indirectly, hire or employ or offer or participate in offering employment
to
any person who at the time of such Termination or at any time during such one
year period following the time of such Termination was an employee of the
Company without the prior written consent of the Company.
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5. Ownership
of Intellectual
Property.
(a)
The Company will be the sole owner
of any and all of Executive’s Trade Secrets all of which enable the Company to
compete successfully in its business. As an express condition of this Agreement,
Executive covenants and agrees: to treat all such matters relating to the
Company’s business, including all geological, geophysical, engineering, and land
data relating to Company properties and any of the Company’s business
operations, methods, procedures, or activities as trade secrets and confidential
information entrusted to Executive, solely for use in his capacity as an
employee under the terms of this Agreement, and Executive will not divulge
such
information in any way to persons outside of the Company or utilize such
information other than in his capacity as an employee under the terms of this
Agreement during or after the expiration or termination of this Agreement for
any reason whatsoever.
(b)
For purposes of this Agreement,
“Trade Secret” means all inventions, discoveries, prospects and improvements
(including, without limitation, any information relating to manufacturing
techniques, processes, formulas, developments or experimental work, work in
progress, or business trade secrets), along with any and all other work product
relating thereto.
(c)
A Trade Secret is “related to the
Company’s business” (“Company-Related Trade Secret”) if it is made, conceived,
or reduced to practice by Executive (in whole or in part, either alone or
jointly with others, whether or not during regular working hours), whether
or
not potentially patentable or copyrightable in the U.S. or elsewhere, and it
either: (i) involves equipment, supplies, facilities, or trade secret
information of the Company; (ii) involves the time for which Executive was
or is
to be compensated by the Company; (iii) relates to the business of the Company
or to its actual or demonstrably anticipated research and development; or (iv)
results, in whole or in part, from work performed by Executive for the
Company.
(d)
Executive will promptly disclose to
the Company, or its nominee(s), without additional compensation, all
Company-Related Trade Secrets.
(e)
Executive will assist the Company,
at the Company’s expense, in protecting any intellectual property rights that
may be available anywhere in the world for such Company-Related Trade Secrets,
including signing U.S. or foreign patent applications, oaths or declarations
relating to such patent applications, and similar documents.
(f)
To the extent that any
Company-Related Trade Secret is eligible under applicable law to be deemed
a
“work made for hire,” or otherwise to be owned automatically by the Company, it
will be deemed as such, without additional compensation to
Executive. In some jurisdictions, Executive may have a right,
title, or interest (“Right,” including without limitation all right, title, and
interest arising under patent law, copyright law, trade-secret law, or
otherwise, anywhere in the world, including the right to xxx for present or
past
infringement) in certain Company-Related Trade Secrets that cannot be
automatically owned by the Company. In that case, if applicable law
permits Executive to
assign
Executive’s Right(s) in future Company-Related Trade Secrets at this time, then
Executive hereby assigns any and all such Right(s) to the Company, without
additional compensation to Executive; if not, then Executive agrees to assign
any and all such Right(s) in any such future Company-Related Trade Secrets
to
the Company or its nominee(s) upon request, without additional compensation
to
Executive.
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6. Non-competition. As
a
condition to, and in consideration of, the Company’s entering into this
Agreement, and giving Executive access to certain confidential and proprietary
information, which Executive recognizes is valuable to the Company and,
therefore, its protection and maintenance constitutes a legitimate interest
to
be protected by the provisions of this Section 6 as applied to Executive and
other employees similarly situated to Executive, and for ten dollars ($10)
and
other good and valuable consideration, the receipt and sufficiency of which
Executive hereby acknowledges, Executive acknowledges and hereby agrees as
follows:
(a)
that Executive is and will be
engaged in the business of the Company;
(b)
that Executive has occupied a
position of trust and confidence with the Company prior to the Effective Date,
and that during the period of Executive’s Employment under this Agreement,
Executive has, and will, become familiar with the Company’s trade secrets and
with other proprietary and confidential information concerning the
Company;
(c)
that the obligations of this
Agreement are directly related to the Employment and are necessary to protect
the Company’s legitimate business interests; and that the Company’s need for the
covenants set forth in this Agreement is based on the following: (i)
the substantial time, money and effort expended and to be expended by the
Company in developing oil and gas investment, acquisition, exploration and
drilling opportunities and similar confidential information; (ii) the fact
that
Executive will be personally entrusted with the Company’s confidential and
proprietary information; (iii) the fact that, after having access to the
Company’s data and other confidential information, Executive could become a
competitor of the Company; and (iv) the highly competitive nature of the
Company’s industry, including the premium that competitors of the Company place
on acquiring proprietary and competitive information; and
(d)
that for a period commencing on the
Effective Date and ending twelve (12) months following Termination as provided
in Section 11, Executive will not, directly or indirectly, serve as employee,
agent, consultant, stockholder, director, co-partner or in any other individual
or representative capacity, own, operate, manage, control, engage in, invest
in
or participate in any manner in, act as consultant or advisor to, render
services for (alone or in association with any person, firm, corporation or
entity), or otherwise assist any person or entity that directly or indirectly
engages or proposes to engage in (i) competing with the Company on
exploration or development of any oil and gas leases within one (1) mile of
any
seismic line acquired, purchased or shot for the Company or (ii) within one
(1)
mile of any oil and gas property owned and operated by the Company (iii)
Executive further agrees that he will not engage or cause or assist any third
party to engage in the exploration, leasing, development, or marketing of any
Prospects or leasehold interests within one (1) mile of any Company owned or
operated properties; provided, however
(e)
that nothing contained herein shall
be construed to prevent Executive from investing in the stock or securities
of
any competing corporation listed on any recognized national securities exchange
or traded in the over the counter market in the United States, but only if
(i)
such investment is of a totally passive nature and does not involve Executive
devoting time to the management
or operations of such corporation and Executive is not otherwise involved in
the
business of such corporation; and if (ii) Executive and his associates (as
such
term is defined in Regulation 14(A) promulgated under the Securities Exchange
Act of 1934, as in effect on the Effective Date), collectively, do not own,
directly or indirectly, more than an aggregate of two percent (2%) of the
outstanding stock or securities of such corporation.
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7.
Legal Fees and
Expenses. In the event of a lawsuit, arbitration, or other
dispute-resolution proceeding between the Company and Executive arising out
of
or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys’ fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a)
This Agreement shall inure to the
benefit of and be binding upon (i) the Company and its successors and assigns;
(ii) Executive and Executive’s heirs and legal representatives, except that
Executive’s duties and responsibilities under this Agreement are of a personal
nature and will not be assignable or delegable in whole or in part; and (iii)
Executive Parties as provided in Section 10.
(b)
The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
Acquisition, acquisition of the controlling interest of the Company’s common
stock or otherwise) to all or substantially all of the business and/or assets
of
the Company to assume expressly and agree to perform this Agreement in the
same
manner and to the same extent that the Company would be required to perform
it
if no such succession had taken place. As used in this Agreement, "the Company"
shall mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by
operation of law, or otherwise.
9. Arbitration.
(a)
Except as set forth in paragraph
(b) of this Section 9 or to the extent prohibited by applicable law, any
dispute, controversy or claim arising out of or relating to this Agreement
will
be submitted to binding arbitration before a single arbitrator in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association in effect on the date of the demand for
arbitration. If a dispute should arise under this Agreement, either party may,
within sixty (60) days after the dispute arises, make a demand for arbitration
by sending a demand in writing to the other. The question(s) to be
decided by the arbitrators shall be stated in writing in the written request
for
arbitration and the jurisdiction of the arbitrators shall be limited to a
decision of the question so stated in writing.
The
parties may agree upon one
arbitrator, but in the event they cannot do so within fifteen days, there shall
be three arbitrators, one named in writing by each of the parties within thirty
days after the demand for arbitration is made, and a third to be chosen by
the
two so named within the following fifteen days. There shall be no
communication between any party and an arbitrator other than at oral hearings
or
in documents that are currently provided to the parties by certified mail or,
if
the documents are presented during the hearing, by hand delivery.
Arbitration
shall take place before the
arbitrator, who will preferably but not necessarily
be a lawyer but who shall have at least fifteen (15) years’ experience in
working in or with oil and gas exploration and production
companies. The arbitration may proceed in the absence of any party
that, after due notice, fails to be present. An award shall not be
made solely on the default of a party. The arbitrators shall require
the party who is present to submit such evidence as the arbitrators may require
for the making of an award.
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Unless
otherwise agreed by the parties,
the arbitration shall take place in Houston, Texas where Executive’s principal
office space is located at the time of the dispute or was located at the time
of
Termination of the Employment (if applicable). The arbitrator is
hereby directed to take all reasonable measures not inconsistent with the
interests of justice to expedite, and minimize the cost of, the arbitration
proceedings. The award shall be made promptly and, unless otherwise
agreed by all the parties, no later than thirty days from the date of closing
of
the arbitration hearing. If there is only one arbitrator, his
decision shall be binding and conclusive on the parties. If there are
three arbitrators, the decision of any two shall be binding and
conclusive
(b)
To protect inventions, trade
secrets, or other confidential information of Section 4, and/or to enforce
the
non-competition provisions of Section 6, the Company may seek temporary,
preliminary, and/or permanent injunctive relief in a court of competent
jurisdiction, in each case, without waiving its right to
arbitration.
(c)
At the request of either party, the
arbitrator may take any interim measures s/she deems necessary with respect
to
the subject matter of the dispute, including measures for the preservation
of
confidentiality set forth in this Agreement.
(d)
Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
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10.
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Indemnification.
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(a) The
Company agrees to
indemnify and hold harmless Executive, his nominees and/or assigns (a reference
in this Section 10 to Executive also includes a reference to Executive’s
nominees and/or assigns) against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (incurred in any and all actions, suits, proceedings and
investigations in respect thereof and any and all legal and other costs,
expenses and disbursements in giving testimony or furnishing documents in
response to a subpoena or otherwise), including without limitation, the costs,
expenses and disbursements, as and when incurred, of investigating, preparing
or
defending any such action, suit, proceeding or investigation that is in any
way
related to the Executive’s employment with the Company (whether or not in
connection with any action in which the Executive is a party). Such
indemnification does not apply to acts performed by Executive, which are
criminal in nature or a violation of law. The Company also agrees that Executive
shall not have any liability (whether direct or indirect, in contract or tort,
or otherwise) to the Company, for, or in connection with, the engagement of
the
Executive under the Agreement, except to the extent that any such liability
resulted primarily and directly from Executive’s gross negligence and willful
misconduct.
(b) These
indemnification
provisions shall be in addition to any liability which the Company may otherwise
have to Executive or the persons indemnified below in this sentence and shall
extend to the following: the Executive, his affiliated entities, partners,
employees, legal counsel, agents, and controlling persons (within the meaning
of
the federal securities laws), and the officers, directors,
employees, legal counsel, agents, and controlling persons of any of them
(collectively, the “the Executive Parties”).
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(c) If
any action, suit,
proceeding or investigation is commenced, as to which any of the Executive
parties propose indemnification under the Agreement, they shall notify the
Company with reasonable promptness; provided however, that any failure to so
notify the Company shall not relieve the Company from its obligations hereunder.
The Executive Parties shall have the right to retain counsel of their own choice
(which shall be reasonably acceptable by the Company) to represent them, and
the
Company shall pay fees, expenses and disbursements of such counsel; and such
counsel shall, to the extent consistent with its professional responsibilities,
cooperate with the Company and any counsel designated by the Company. The
Company shall be liable for any settlement of any claim against the Executive
Parties made with the Company’s written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the prior written consent
of the party seeking indemnification, which shall not be reasonably withheld,
settle or compromise any claim, or permit a default or consent to the entry
of
any judgment in respect thereof, unless such settlement, compromise or consent
includes, as an unconditional term thereof, the giving by the claimant to the
party seeking indemnification of an unconditional release from all liability
in
respect of such claim.
(d) The
indemnification
provided by this Section 10 shall not be deemed exclusive of, or to preclude,
any other rights to which those seeking indemnification may at any time be
entitled under the Company's Articles of Incorporation, Bylaws, any law,
agreement or vote of shareholders or disinterested Directors, or otherwise,
or
under any policy or policies of insurance purchased and maintained by the
Company on behalf of Executive, both as to action in his Employment and as
to
action in any other capacity.
(e) Executive
shall be
entitled to reasonable expenses (including court costs and attorneys' fees)
incurred by Executive, if Executive serves as a witness or is threatened to
be
made a named defendant or respondent in a threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative, any appeal in such an action, suit or proceeding, and any
inquiry or investigation that could lead to such an action, suit or proceeding
(each a “Proceeding”), shall be paid by the Company at reasonable intervals in
advance of the final disposition of such Proceeding after receipt by the Company
of:
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(i)
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a
written affirmation by Executive of his good faith belief that he
has met
the standard of conduct necessary for indemnification by the Company;
and
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(ii)
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a
written undertaking by or on behalf of the Executive to repay the
amount
paid or reimbursed by the Company if it shall ultimately be determined
that he is not entitled to be indemnified by the Company. Such
written undertaking shall be an unlimited obligation of the Executive
but
need not be secured and it may be accepted without reference to financial
ability to make repayment.
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Notwithstanding
any other provision of
this Section 10, the Company may pay or reimburse expenses incurred by Executive
in connection with his appearance as a witness or other participation in a
Proceeding at a time when he is not named a defendant or respondent in the
Proceeding.
(f)
Neither Termination nor completion
of the Employment shall effect these indemnification
provisions which shall then remain operative and in full force and
effect.
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11.
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Termination
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This
Agreement and the employment
relationship created hereby will terminate (i) upon the disability or death
of
Executive under Section 11 (a) or 11(b); (ii) with cause under Section 11 (c);
(iii) for good reason under Section 11 (d); or (iv) without cause under Section
11(e).
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(a)
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Disability. The
Company shall have the right to terminate the employment of Executive
under this Agreement for disability in the event Executive suffers
an
injury, illness, or incapacity of such character as to prevent him
from
performing his duties without reasonable accommodation by Executive
hereunder for a period of more than thirty (30) consecutive days
upon
Company giving at least thirty (30) days written notice of
termination.
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(b)
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Death.
This Agreement will terminate on the Death of the
Executive.
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(c)
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With
Cause. The Company may terminate this Agreement at any
time because of, (i) the conviction of Executive of an act or acts
constituting a felony or other crime involving moral turpitude, dishonesty
or theft or fraud; or (ii) Executive’s gross negligence in the performance
of his duties hereunder.
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(d)
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Good
Reason. The Executive may terminate his employment for
“Good Reason” by giving Company ten (10) days written notice
if:
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(i)
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he
is assigned, without his express written consent, any duties materially
inconsistent with his positions, duties, responsibilities, or status
with
Company as of the date hereof, or a change in his reporting
responsibilities or titles as in effect as of the date
hereof;
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(ii) his
compensation is reduced; or
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(iii)
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The
Company does not pay any material amount of compensation due hereunder
and
then fails either to pay such amount within the ten (10) day notice
period
required for termination hereunder or to contest in good faith such
notice. Further, if such contest is not resolved within thirty
(30) days, the Company shall submit such dispute to arbitration under
Section 9.
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(e)
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Without
Cause. Company may terminate
this Agreement without cause.
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Any
act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Company’s Board of
Directors or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company and thus shall not be deemed
grounds for Termination for Cause under Section 10(c) above.
12. Obligations
of Company Upon Termination.
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(a) In
the event of the termination of Executive’s employment pursuant to Section 11
(a), Executive will be entitled to a one time lump sum payment equal to 50%
of
the full Yearly Salary then in effect (for example, if Executive is terminated
under Section 12(b) in the third year covered by this Agreement (during the
period from January 1, 2010 to December 31, 2010), Executive shall be entitled
to a one time lump sum payment of $237,500), in addition to all payments of
salary earned through the date of termination, which shall be immediately due
and payable (plus life insurance or disability benefits), which payment shall
be
payable to Executive within thirty (30) days of the Company’s written notice of
termination to be provided to Executive under Section 11(a), above.
(b) In
the
event of the termination of Executive’s employment pursuant to Section 11 (b) or
(c), Executive will be entitled only to the compensation earned by him hereunder
as of the date of such termination (plus life insurance or disability
benefits).
(c) In
the event of the termination of Executive’s employment pursuant to Section 11
(d) or (e), Executive will be entitled to receive as severance pay, a one time
lump sum payment equal to 150% of the full Yearly Salary then in effect (for
example, if Executive is terminated under Section 12(b) in the third year
covered by this Agreement (during the period from January 1, 2010 to December
31, 2010), Executive shall be entitled to a one time lump sum payment of
$712,500), in addition to all payments of salary earned through the date of
termination, which shall be immediately due and payable. Provided
however that any payment of severance under this Section 12(b) is contingent
upon execution of a Settlement Agreement and Mutual Release releasing the
Company from any and all obligations under this Agreement.
(d)
In the event of termination of Executive’s employment, the indemnification
provisions of Section 10. Indemnification, shall survive the termination of
the
Executive in respect to ongoing obligations of the Company to pay legal and
other costs in any action, suit, proceeding or investigation in accordance
with
Section 10.
13. Other
Provisions.
(a)
All notices and statements with
respect to this Agreement must be in writing. Notices to the Company
shall be delivered to the Chairman of the Board or any vice president of the
Company, if any. Notices to Executive may be delivered to Executive
in person or sent to Executive’s then-current mailing address as indicated in
the Company’s records.
(b)
This Agreement sets forth the
entire agreement of the parties concerning the subjects covered herein; there
are no promises, understandings, representations, or warranties of any kind
concerning those subjects except as expressly set forth in this
Agreement.
(c)
Any modification of this Agreement
must be in writing and signed by all parties; any attempt to modify this
Agreement, orally or in writing, not executed by all parties will be
void.
(d)
If any provision of this Agreement,
or its application to anyone or under any circumstances, is adjudicated to
be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability will not affect any other provision or application of this
Agreement which can be given effect without the invalid or unenforceable
provision or application and will not invalidate or render unenforceable such
provision or application in any other jurisdiction.
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(e)
This Agreement will be governed and
interpreted under the laws of the United States of America and the laws of
the
State of Texas as applied to contracts made and carried out in Texas by
residents of Texas.
(f)
No failure on the part of any party
to enforce any provisions of this Agreement will act as a waiver of the right
to
enforce that provision.
(g)
Section headings are for convenience only and shall not define or limit the
provisions of this Agreement.
(h)
This Agreement may be executed in
several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts. A copy of this
Agreement signed by one party and faxed to another party shall be deemed to
have
been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an
original for all purposes.
14. Summary
of Terms of
Employment
|
|
Effective
Date
Term
& Commitment
Office
/ Position
Salary
|
January
1, 2008
Three
Years, full-time, renewable
Chief
Executive Officer and President
As
described under Section 3(a) herein
|
[Remainder
of page left intentionally blank. Signatures follow.]
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This
Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Executive acknowledges that he
(i) has read and understood the entire Agreement; (ii) has received a copy
of it
(iii) has had the opportunity to ask questions and consult counsel or other
advisors about its terms; and (iv) agrees to be bound by it.
Executed
the 3rd day of
December 2007, to be effective as of the Effective Date.
|
|
NEW
CENTURY ENERGY CORP.:EXECUTIVE:
/s/ Xxxxxx X. XxXxxxxxx
Xxxxxx X.
XxXxxxxxx
|
By:
/s/
Xxxxxx X. XxXxxxxxx
Printed
Name: Xxxxxx X.
XxXxxxxxx
Its:
President
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