EMPLOYMENT AGREEMENT
Exhibit
99.6
This Employment Agreement (“Agreement”)
is made as of September 14, 1999 (the “Effective Date”) by Flint Construction
Company, Georgia corporation , (“Employer”), SEMCO Energy, Inc., a Michigan
corporation (“SEMCO”), and Xxxxxx X. Good, an individual residing at 0000 Xxx
Xxxxxxxx Xxxx, Xxxxxxxxxxxxx, Xxxxxxx 00000 (“Executive”)
This Agreement is entered into in
connection with and as an integral part of the purchase by SEMCO of all the
outstanding capital stock of Employer under that certain Stock Purchase
Agreement dated September 14, 1999. SEMCO and Employer desire Executive’s
continued employment with Employer, and Executive wishes to accept such
continued employment, upon the terms and conditions set forth in this Agreement.
The execution of this Agreement is a condition to and an inducement to SEMCO for
consummating the transactions under the Stock Purchase Agreement.
The parties, intending to be legally
bound, agree as follows:
1.
DEFINITIONS
For the
purposes of this Agreement, the following terms have the meanings specified or
referred to in this Section 1.
“Basic
Compensation” shall mean Salary and Benefits.
“Board of
Directors” shall mean the board of directors of Employer.
“Confidential
Information” shall mean any and all:
(a) trade
secrets concerning the business and affairs of Employer, product specifications,
data, know- how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas, past, current, and
planned research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures (and related
formulae, compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, and methods), and any other information,
however documented, that is a trade secret; and
(b)
information concerning the business and affairs of Employer (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials,
and pricing), however documented; and
(c)
notes, analysis, compilations, studies, summaries, and other material prepared
by or for Employer containing or based, in whole or in part, on any information
included in the foregoing.
“Employee
Invention” shall mean any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registerable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or
{A0004547.DOC}
developed
by Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by Employer, and any such item created by
Executive, either solely or in conjunction with others, following termination of
Executive’s employment with Employer, that is based upon or uses Confidential
Information.
“Employment
Period” shall mean the term of Executive’s employment under this
Agreement.
“GAAP”
shall mean generally accepted accounting principles as currently interpreted by
the public accounting profession in the United States of America.
“Person”
shall mean any individual, corporation (including any non-profit corporation),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, or governmental body.
“Incentive
Compensation” shall mean additional compensation paid to Executive in the form
of Bonus or Stock Options, or both.
“Return
on Assets” (“ROA”) shall mean the result obtained by dividing Earnings Before
Interest and Taxes for the 12 month period ending on the last day of the
Employer’s fiscal year (which is currently a calendar year) by Total
Assets.
“Total
Assets” shall mean the average of the calculations for each month during the
fiscal year of the sum of the Current Assets plus Fixed Assets (including
Goodwill recorded on the books of SEMCO in connection with the acquisition of
the common stock of the Employer, less accumulated depreciation and
amortization), all as reflected on Employer’s books, and determined by Employer
in accordance with GAAP.
|
(b) |
“Earnings
Before Interest and Taxes” (“EBIT”) shall mean Employer’s revenue from
ordinary business operations, less expenses, and other charges (including
amortization of goodwill recorded on the books of SEMCO as a result of the
acquisition of the common stock of the Employer), before deducting
interest and Federal and state income taxes, all as reflected on
Employer’s books. The EBIT will be determined by the Employer in
accordance with GAAP. |
2.
EMPLOYMENT TERMS AND DUTIES
2.1
EMPLOYMENT
Employer
hereby employs Executive, and Executive hereby accepts employment by Employer,
upon the terms and conditions set forth in this Agreement.
2.2
TERM
Subject
to the provisions of Section 6, the term of Executive’s employment under this
Agreement will be three (3) years, beginning on the Effective Date and ending on
August 31, 2002.
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2.3
DUTIES
Executive
will have such duties as are assigned or delegated to Executive by the Board of
Directors, and will initially serve as President of Employer. Executive will
devote his entire best efforts, time, attention and energy to the performance of
his duties hereunder and to promote and further the interests of Employer, and
will cooperate fully with the Board of Directors in the advancement of the best
interests of Employer. Nothing in this Section 2.3, however, will prevent
Executive from engaging in additional activities in connection with personal
investments and community affairs that are not inconsistent with Executive’s
duties under this Agreement.
3.
COMPENSATION
3.1 BASIC
COMPENSATION
(A)
Salary. Executive shall be paid an annual salary of One Hundred Twenty Thousand
Dollars ($120,000), subject to adjustment as provided below (“Salary”), which
will be payable in equal periodic installments according to Employer’s customary
payroll practices, but no less frequently than monthly. The Salary will be
reviewed by the Board of Directors not less frequently than annually, and may be
adjusted upward in the sole discretion of the Board of Directors, but in no
event will the Salary be less than One Hundred Twenty Thousand Dollars
($120,000).
(B)
Benefits. Executive will, during the Employment Period, be permitted to
participate in such pension, profit sharing, life insurance, hospitalization,
major medical, and other employee benefit plans of Employer that may be in
effect from time to time, to the extent Executive is eligible under the terms of
those plans (collectively, “Benefits”). Employer will pay the cost of
Executive’s dependent health care coverage under Employer’s plans.
(C)
Directors Fees. If Executive serves as a director of the Employer or one of its
subsidiaries, Executive will be paid for such service in accordance with
Employer’s standard practices for such service. Executive understands that it is
not SEMCO’s practice to pay such fees for serving as a director of SEMCO’s
affiliates.
3.2
INCENTIVE COMPENSATION
|
(A) |
The
Employer will pay the Executive Incentive Compensation for the services to
be rendered by Executive pursuant to this Agreement in accordance with the
following provisions. If the Employer’s ROA, as adjusted for any partial
year, for any calendar year during the first three (3) year period after
Closing is equal to the target ROA percentages indicated in the table
below, Executive shall receive the corresponding (i) Bonus and (ii) Stock
Options to acquire the number of shares of SEMCO common stock as indicated
in the table below. The period for which a calculation respecting
incentive compensation is to be made shall be called the “Calculation
Period.”. The first Calculation Period shall be for the period from the
Effective Date until December 31, 1999. The second Calculation Period
shall be the calendar year ending December 31, 2000. The third Calculation
Period shall be the calendar year ending December 31, 2001. The final
Calculation Period shall be the eight calendar month period ending August
31, 2002. In the event this Agreement is terminated prior to August 31,
2002, the final Calculation Period shall be the period from the end of the
prior Calculation Period to the end of the month in which the termination
occurs. For the first Calculation Period the Executive will be paid
Incentive |
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Compensation
equal to five percent (5%) of the Net Income of the Employer (computed in
accordance with generally accepted accounting principals) prior to the deduction
of income taxes or any Incentive Compensation to be paid to the Executive or Xx.
Xxxxxx X. Good. Thereafter, in the event that the Calculation Period is less
than a full calendar year, the calculation shall be made by multiplying the
numbers in each column in the table below by a fraction, the numerator of which
is the number of months in the final Calculation Period and the denominator of
which is 12.
|
Actual
ROA |
Bonus |
Stock
Options |
|
11.00% |
$36,000 |
7,000 |
|
10.75% |
$33,600 |
6,000 |
|
10.50% |
$31,200 |
5,000 |
|
10.25% |
$28,800 |
4,000 |
|
10.00% |
$26,400 |
3,000 |
|
9.75% |
$24,000 |
2,000 |
|
9.50% |
$21,600 |
1,000 |
|
9.25% |
$19,200 |
0 |
|
9.00% |
$0 |
0 |
(B) In
addition to the foregoing, Employee shall receive the following additional
Incentive Compensation for each 25 basis points Employer’s actual ROA exceeds 11
%: $2,400 in bonus and stock options for 1,000 shares of SEMCO common stock. For
these purposes there shall be no interpolation or no additional Incentive
Compensation paid, within each 25 basis point increments of ROA. The appropriate
Incentive Compensation described herein will be paid to Executive in one lump
sum, or in a single Stock Option grant, as the case may be, within 90 days after
the end of the applicable calendar year or fiscal period.
4.
FACILITIES AND EXPENSES
4.1
GENERAL
Employer
will furnish Executive office space, equipment, supplies, and such other
facilities and personnel as Employer deems necessary or appropriate for the
performance of Executive’s duties under this Agreement. Employer will pay
Executive’s dues in such professional societies and organizations, as the Board
of Directors deems appropriate. Additionally, Employer will pay on behalf of
Executive (or reimburse Executive for) reasonable expenses incurred by Executive
at the request of, or on behalf of, Employer in the performance of Executive’s
duties pursuant to this Agreement, and in accordance with Employer’s employment
policies, including reasonable expenses incurred by Executive in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. Executive shall file
expense reports with respect to such expenses in accordance with Employer’s
policies.
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4.2
AUTOMOBILE AND OTHER BENEFITS
Employer
shall furnish to Executive at Employer’s cost, an automobile substantially
equivalent to the automobile currently driven by Executive and otherwise in
accordance with the terms of the Employer’s company-owned automobile policies.
Such automobile shall be available for use exclusively by Executive. The
Employer shall pay, or, at Executive’s election, shall reimburse Executive for,
all fees, taxes, costs and expenses relating to licensing, insuring and
maintaining such automobile and shall furnish gasoline in connection with any
use of such automobile by Executive for Employer purposes. Executive shall be
responsible for all payments attributable to traffic violations relating to
Executive’s use of such automobile (other than such payments, or the portion
thereof, covered by insurance on such automobile) and shall maintain the
automobile in saleable condition at all times. Employer shall also furnish
Executive with a pager and cell phone at Employer’s cost.
5.
VACATIONS AND HOLIDAYS
Executive
will be entitled to four (4) weeks’ paid vacation each Calendar year and five
(5) sick days in accordance with the vacation and sick day policies of Employer
in effect for its executive officers from time to time. Executive must take
vacation at such time or times as approved by the Chairman of the Board.
Executive will also be entitled to the paid holidays and other paid leave set
forth in Employer’s policies. Vacation days and holidays during any Calendar
year that are not used by Executive during such Calendar year may not be used in
any subsequent Calendar year.
6.
TERMINATION
6.1
EVENTS OF TERMINATION
The
Employment Period, Executive’s Basic Compensation and Incentive Compensation,
and any and all other rights of Executive under this Agreement or otherwise as
an employee of Employer will terminate (except as otherwise provided in this
Section 6):
(a) upon
the death of Executive;
(b) upon
the Disability of Executive (as defined in Section 6.2) immediately upon notice
from either party to the other;
(c) for
cause (as defined in Section 6.3), immediately upon notice from Employer to
Executive, or at such later time as such notice may specify;
(d) for
good reason (as defined in Section 6.4) upon not less than thirty days’ prior
notice from Executive to Employer;
(e)
termination by Employer not for cause; or
(f)
termination by Executive not for good reason.
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6.2
DEFINITION OF DISABILITY
For
purposes of Section 6.1, Executive will be deemed to have a “disability” if, for
physical or mental reasons, Executive is unable to perform Executive’s duties
under this Agreement for 120 consecutive days, or 180 days during any twelve
month period, as determined in accordance with this Section 6.2. The disability
of Executive will be determined by a medical doctor selected by written
agreement of Employer and Executive upon the request of either party by notice
to the other. If Employer and Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether Executive
has a disability. The determination of the medical doctor selected under this
Section 6.2 will be binding on both parties. Executive shall submit to a
reasonable number of examinations by the medical doctor making the determination
of disability under this Section 6.2, and Executive hereby authorizes the
disclosure and release to Employer of such determination and all supporting
medical records. If Executive is not legally competent, Executive’s legal
guardian or duly authorized attorney-in-fact will act in Executive’s stead,
under this Section 6.2, for the purposes of submitting Executive to the
examinations, and providing the authorization of disclosure, required under this
Section 6.2.
6.3
DEFINITION OF “FOR CAUSE”
For
purposes of Section 6.1, the phrase “for cause” means: (a) Executive’s material
breach of this Agreement; (b) Executive’s failure to perform his duties in
accord with the direction of the Board of Directors; (c) the appropriation (or
attempted appropriation) of a material business opportunity of Employer,
including attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of Employer; (d) the
misappropriation (or attempted misappropriation) of any of Employer’s funds or
property; (e) the conviction of, indictment for (or its procedural equivalent),
or the entering of a guilty plea or plea of no contest with respect to a felony
or the equivalent thereof; or (f) material breach of the common law duty of
loyalty.
6.4
DEFINITION OF “FOR GOOD REASON”
For
purposes of Section 6.1, the phrase “for good reason” means any of the
following: (a) Employer’s material breach of this Agreement; or (b) the
assignment of Executive without his consent to a position, responsibilities, or
duties of a materially lesser status or degree of responsibility than his
position, responsibilities, or duties at the Effective Date or a reduction in
Executive’s Salary or Incentive Compensation.
6.5
TERMINATION PAY
Effective
upon the termination of this Agreement, Employer will be obligated to pay
Executive (or, in the event of his death, his designated beneficiary as defined
below) only such compensation as is provided in this Section 6.5. For purposes
of this Section 6.5, Executive’s designated beneficiary will be such individual
beneficiary or trust, located at such address, as Executive may designate by
notice to Employer from time to time or, if Executive fails to give notice to
Employer of such a beneficiary, Executive’s estate. Notwithstanding the
preceding sentence, Employer will have no duty, in any circumstances, to attempt
to open an estate on behalf of Executive, to determine whether any beneficiary
designated by Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as Executive’s personal representative (or
the trustee of a trust established by Executive) is duly authorized to act in
that capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
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(A)
Termination by Employer for Other Than Cause or Termination by Executive for
Good Reason. If the Employer terminates Executive’s employment prior to the end
of the Employment Period (other than for Cause, disability or death), or if
Executive terminates his employment hereunder for Good Reason, Employer will pay
Executive (i) Executive’s Salary for the remainder, if any, of the Employment
Period, and (ii) Executive’s Incentive Compensation, if any, for the calendar
year during which the termination is effective. Notwithstanding the preceding
sentence, if Executive obtains other employment prior to the end of the six
months following the month in which the termination is effective, he must
promptly give notice thereof to Employer, and the Salary and Incentive
Compensation payments under this Agreement for any period after Executive
obtains other employment will be reduced by the amount of the cash compensation
received and to be received by Executive from Executive’s other employment for
services performed during such period.
(B)
Termination by Employer for Cause. If Employer terminates this Agreement for
cause, Executive will be entitled to receive his Salary only through the date
such termination is effective, and will not be entitled to any Incentive
Compensation for the Calendar year during which such termination occurs or any
subsequent Calendar year.
(C)
Termination upon Disability. If this Agreement is terminated by either party as
a result of Executive’s disability, as determined under Section 6.2, Employer
will pay Executive his Salary through the remainder of the calendar month during
which such termination is effective and for the lesser of (i) six consecutive
months thereafter, or (ii) the period until disability insurance benefits
commence under the disability insurance coverage furnished by Employer to
Executive, and a prorated amount of Executive’s Incentive Compensation, if any,
for the Calendar year during which his disability occurs, calculated based upon
the EBIT for the calendar year, with the amount of such Executive’s Incentive
Compensation being a prorated amount on the basis of the number of months
through the end of the calendar month during which the termination
occurs.
(D)
Termination upon Death. If this Agreement is terminated because of Executive’s
death, Executive will be entitled to receive his Salary through the end of the
calendar month in which his death occurs, and a prorated amount of Executive’s
Incentive Compensation, if any, for the Calendar year during which his death
occurs, using the EBIT for the calendar year, with the amount of such
Executive’s Incentive Compensation being a prorated amount on the basis of the
number of months through the end of the calendar month during which his death
occurs.
(E)
Benefits. Except as required by law, Executive’s accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of the
termination of this Agreement, and Executive will be entitled to accrued
Benefits pursuant to such plans only as provided in such plans.
7.
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1
ACKNOWLEDGMENTS BY EXECUTIVE
Executive
acknowledges that (a) during the Employment Period and as a part of his
employment, Executive will be afforded access to Confidential Information; (b)
public disclosure of such Confidential Information could have an adverse effect
on Employer and its business; (c) because Executive possesses substantial
technical expertise and skill with respect to Employer’s business,
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Employer
desires to obtain exclusive ownership of each Employee Invention, and Employer
will be at a substantial competitive disadvantage if it fails to acquire
exclusive ownership of each Employee Invention; (d) SEMCO has required that
Executive make the covenants in this Section 7 as a condition to its
consummation of the transactions under the Stock Purchase Agreement; and (e) the
provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide Employer
with exclusive ownership of all Employee Inventions.
7.2
AGREEMENTS OF EXECUTIVE
In
consideration of the compensation and benefits to be paid or provided to
Executive by Employer under this Agreement, Executive covenants as
follows:
(A)
Confidentiality.
(i)
During and following the Employment Period, Executive will hold in confidence
the Confidential Information and will not disclose it to any person except with
the specific prior written consent of Employer or except as otherwise expressly
permitted by the terms of this Agreement.
(ii) Any
trade secrets of Employer will be entitled to all of the protections and
benefits under applicable state trade secret law and any other applicable law.
If any information that Employer deems to be a trade secret is found by a court
of competent jurisdiction not to be a trade secret for purposes of this
Agreement, such information will, nevertheless, be considered Confidential
Information for purposes of this Agreement. Executive hereby waives any
requirement that Employer submit proof of the economic value of any trade secret
or post a bond or other security.
(iii)
None of the foregoing obligations and restrictions applies to any part of the
Confidential Information that Executive demonstrates was or became generally
available to the public other than as a result of a disclosure by
Executive.
(iv)
Executive will not remove from Employer’s premises (except to the extent such
removal is for purposes of the performance of Executive’s duties at home or
while traveling, or except as otherwise specifically authorized by Employer) any
document, record, notebook, plan, model, component, device, or computer software
or code, whether embodied in a disk or in any other form (collectively, the
“Proprietary Items”). Executive recognizes that, as between Employer and
Executive, all of the Proprietary Items, whether or not developed by Executive,
are the exclusive property of Employer. Upon termination of this Agreement by
either party, or upon the request of Employer during the Employment Period,
Executive will return to Employer all of the Proprietary Items in Executive’s
possession or subject to Executive’s control, and Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(B)
Employee Inventions. Each Employee Invention will belong exclusively to
Employer. Executive acknowledges that all of Executive’s writing, works of
authorship, specially commissioned works, and other Employee Inventions are
works made for hire and the property of Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, Executive hereby
assigns to Employer all of Executive’s right, title, and interest, including all
rights of copyright, patent, and other intellectual property rights, to or in
such Employee Inventions. Executive covenants that he will
promptly:
(i)
disclose to Employer in writing any Employee Invention;
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(ii)
assign to Employer or to a party designated by Employer, at Employer’s request
and without additional compensation, all of Executive’s right to the Employee
Invention for the United States and all foreign jurisdictions;
(iii)
execute and deliver to Employer such applications, assignments, and other
documents as Employer may request in order to apply for and obtain patents or
other registrations with respect to any Employee Invention in the United States
and any foreign jurisdictions;
(iv) sign
all other papers necessary to carry out the above obligations; and
(v) give
testimony and render any other assistance, but without expense to Executive, in
support of Employer’s rights to any Employee Invention.
8.
NON-COMPETITION AND NON-INTERFERENCE
8.1
ACKNOWLEDGMENTS BY EXECUTIVE
Executive
acknowledges that: (a) the services to be performed by him under this Agreement
are of a special, unique, unusual, extraordinary, and intellectual character;
(b) Employer’s business is regional in scope, covering Alabama, Florida,
Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Ohio, Pennsylvania,
South Carolina, Tennessee, Virginia and West Virginia (the “Region”); (c)
Employer competes with other businesses that are or could be located in any part
of the Region; (d) the covenants set forth in this Section 8 have been
negotiated and agreed to in connection with and as partial consideration for
SEMCO’s consummation of the purchase of the common stock of the Employer in
accordance with the terms of the Stock Purchase Agreement between SEMCO and
Executive dated September 14, 1999.
8.2
COVENANTS OF EXECUTIVE
In
consideration of the acknowledgments by Executive, and in consideration of the
compensation and benefits to be paid or provided to Executive by Employer,
Executive covenants that he will not, directly or indirectly:
(a)
during the Employment Period, except in the course of his employment hereunder,
and during the Post-Employment Period, engage or invest in, own, manage,
operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend Executive’s name or any similar name to, lend
Executive’s credit to or render services or advice to, any business whose
products or activities compete in whole or in part with the products or services
of Employer anywhere in the Region; provided, however, that Executive may
purchase or otherwise acquire up to (but not more than) one percent of any class
of securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b)
whether for Executive’s own account or for the account of any other person at
any time during the Employment Period and the Post-Employment Period, solicit
business of the same or similar type being carried on by Employer, from any
person that was a customer of Employer during the period when the
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Executive
was employed by the Employer, whether or not Executive had personal contact with
such person during and by reason of Executive’s employment with
Employer;
(c)
whether for Executive’s own account or the account of any other person (i) at
any time during the Employment Period and the Post-Employment Period, solicit,
employ, or otherwise engage as an employee, independent contractor, or
otherwise, any person who is or was an employee of Employer at any time during
the Employment Period or in any manner induce or attempt to induce any employee
of Employer to terminate his employment with Employer; or (ii) at any time
during the Employment Period and thereafter, interfere with Employer’s
relationship with any person, including any person who at any time during the
Employment Period was an employee, contractor, supplier, or customer of
Employer; or
(d) at
any time during or after the Employment Period, disparage Employer or any of its
affiliates, shareholders, directors, officers, employees, or
agents.
For
purposes of this Section 8.2, the term “Post-Employment Period” means the later
of (i) five years after the Closing of the Stock Purchase Agreement or (ii) the
two year period beginning on the date of termination of Executive’s employment
with Employer.
If any
covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against
public policy, such covenant will be considered to be divisible with respect to
scope, time, and geographic area, and such lesser scope, time, or geographic
area, or all of them, as a court of competent jurisdiction may determine to be
reasonable, not arbitrary, and not against public policy, will be effective,
binding, and enforceable against Executive.
The
period of time applicable to any covenant in this Section 8.2 will be extended
by the duration of any violation by Executive of such covenant.
While the
covenant under this Section 8.2 is in effect, Executive will give notice to
Employer, within ten days after accepting any other employment, of the identity
of Executive’s employer. SEMCO or Employer may notify such employer that
Executive is bound by this Agreement and, at Employer’s election, furnish such
employer with a copy of this Agreement or relevant portions
thereof.
9.
GENERAL PROVISIONS
9.1
INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
Executive
acknowledges that the injury that would be suffered by Employer as a result of a
breach of the provisions of this Agreement (including any provision of Sections
7 and 8) would be irreparable and that an award of monetary damages to Employer
for such a breach would be an inadequate remedy. Consequently, Employer will
have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and Employer will not be
obligated to post bond or other security in seeking such relief. Without
limiting Employer’s rights under this Section 9 or any other remedies of
Employer, if Executive breaches any of the provisions of Section 7 or 8,
Employer will have the right to cease making any payments otherwise due to
Executive under this Agreement.
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9.2
COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
The
covenants by Executive in Sections 7 and 8 are essential elements of this
Agreement, and without Executive’s agreement to comply with such covenants,
SEMCO would not have consummated the transactions under the Stock Purchase
Agreement and Employer would not have entered into this Agreement or employed or
continued the employment of Executive. Employer and Executive have independently
consulted their respective counsel and have been advised in all respects
concerning the reasonableness and propriety of such covenants, with specific
regard to the nature of the business conducted by Employer.
Executive’s
covenants in Sections 7 and 8 are independent covenants and the existence of any
claim by Executive against Employer under this Agreement or otherwise, or
against SEMCO, will not excuse Executive’s breach of any covenant in Section 7
or 8.
If
Executive’s employment hereunder expires or is terminated, this Agreement will
continue in full force and effect as is necessary or appropriate to enforce the
covenants and agreements of Executive in Sections 7 and 8.
9.3
OFFSET
The
Employer will be entitled to offset against any and all amounts owing to the
Executive under this Agreement the amount of any and all claims that the SEMCO
may have against the Executive under the Stock Purchase Agreement.
9.4
REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
Executive
represents and warrants to Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive’s obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: (a) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
9.5
OBLIGATIONS CONTINGENT ON PERFORMANCE
The
obligations of Employer hereunder, including its obligation to pay the
compensation provided for herein, are contingent upon Executive’s performance of
Executive’s obligations hereunder.
9.6
WAIVER
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by either party in exercising any
right, power, or privilege under this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other party;
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(b) no
waiver that may be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on one party will
be deemed to be a waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action without notice or
demand as provided in this Agreement.
9.7
BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of Executive under this Agreement, being
personal, may not be delegated.
9.8
NOTICES
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered by
hand (with written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by notice to
the other parties):
If to Employer: Flint Construction
Company
000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
000-000-0000 (FAX)
With copies to: SEMCO Energy,
Inc.
000 Xxxxx Xx.
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Chairman, President &
CEO
Xxxxxx X. Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
000-000-0000 (FAX)
If to Executive: Xxxxxx X.
Good
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxx 00000
000-000-0000 (FAX)
9.9
ENTIRE AGREEMENT; AMENDMENTS
This
Agreement, the Stock Purchase Agreement, and the documents executed in
connection with the Stock Purchase Agreement, contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between the
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parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended orally, but only by an agreement in writing signed by the parties
hereto.
9.10
GOVERNING LAW
This
Agreement will be governed by the laws of the State of Georgia without regard to
conflicts of laws principles.
9.11
SECTION HEADINGS, CONSTRUCTION
The
headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to “Section”
or “Sections” refer to the corresponding Section or Sections of this Agreement
unless otherwise specified. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word “including” does not limit the preceding words or
terms.
9.12
SEVERABILITY
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.13
COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
Intending
to be legally bound, the parties have executed and delivered this Agreement as
of the date first written above.
EMPLOYER:
Flint Construction
Company
By /s/Xxxxxx X.
Xxxxx
Xxxxxx X. Xxxxx, Authorized
Officer
EXECUTIVE:
/s/Xxxxxx X.
Good
Xxxxxx X. Good
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