Exhibit 10.2
EMPLOYMENT AGREEMENT
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This Employment Agreement is made and entered into by and between Priority Power
Management, Ltd. ("Employer") and Xxxxxxx Xxxxx ("Employee"), effective as of
June 1, 2006 (the "Effective Date"). In consideration of the mutual covenants
herein contained, and other good and valuable consideration, the parties hereby
agree as follows:
1. Employer hereby employs Employee, and Employee hereby accepts
employment from Employer in connection with the retail electric
aggregation business of Employer (the "Business") upon the terms and
conditions set forth herein. Employee has previously been employed by
Priority Power Management, Ltd. pursuant to an Employment Agreement
with such Employer. The terms hereof replace and terminate such prior
Employment Agreement.
2. Term. This Agreement shall commence the 1st day of June, 2006 and
shall not be subject to termination except for Cause until on or after
the 31st day of May, 2009. From and after that date, this Agreement
may be terminated by either party with or without Cause and shall
extend until terminated. "Cause" shall mean either of the following:
a. Employee's gross negligence or willful misconduct in the
performance of the duties and services required of Employee
pursuant to this Agreement;
b. Employee's final conviction of a felony;
3. Productive Time. Employee shall devote his entire productive time,
ability and attention to the Business, at the office of the Business
and at such other locations as Employer shall direct. The foregoing
notwithstanding, the parties recognize and agree that Employee may
engage in passive personal investments and other business activities,
which do not conflict with the business and affairs of Employer or
interfere with Employee's performance of his duties hereunder.
4. Salary: Employee shall be paid the sum of $140,000 per annum, payable
semimonthly on the fifteenth and the last day of each month during the
term hereof, pro-rated at the beginning and at the termination of this
Agreement, subject to any adjustment as the parties shall agree in
writing. Any acceptance by Employee and any payment by Employer of
amounts other than as set forth herein shall constitute the Agreement
of the parties to change such salary. Upon the closing of the
transaction now contemplated between AMEN Properties, Inc., and
Priority Power Management, Ltd, Employee shall receive, subject to all
required withholding, an additional sum of $50,000.00 which shall not
be credited to or applied to the salary described above. In addition
to this one-time bonus, Employee shall annually receive a bonus of not
less than $30,000.00 or 2% of the consolidated net income of Priority
Power Management, Ltd., previously Priority Power Management, Ltd. and
Priority Power Dallas, Ltd., which ever is greater, that are equal to
or are greater than the annual net income of calendar year 2005 (the
"Benchmark"). The "Benchmark" is equal to the net income of Priority
Power Management, Ltd. in calendar year 2005 which is equal to
$475,100.00. Net income shall be as determined by Generally Accepted
Accounting Practices and Principles (GAAPP) as verified by third-party
independent auditors of the Employer. If the annual net income for any
one calendar year is less than the Benchmark, then Employee shall for
that same year receive a bonus calculated exclusively as 2% of the
consolidated net income of Priority Power Management, Ltd., previously
Priority Power Management, Ltd. and Priority Power Dallas, Ltd.
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5. Vacation. Employee shall be permitted and enjoy 20 paid vacation days
from and after the date hereof through the end of 2006, and thereafter
shall accrue five (5) weeks of paid vacation each calendar year. A
maximum of 1 week unused vacation may be carried forward into the next
year.
6. Insurance. Employee and Employee's spouse and dependent children shall
be provided, free of cost, health insurance consistent with the health
insurance provided to key employees of Employer as of the Effective
Date, but, in no event, shall there be any decrease in the nature and
scope of coverage and no increase in any deductible for the insurance
provided to Employee by Priority Power Management, Ltd as of the
Effective Date.
7. Reimbursable Expenses. During the term, Employer shall pay or
reimburse Employee for all actual, reasonable and customary expenses
incurred by Employee in the course of his employment; including, but
not limited to, travel, entertainment, subscriptions and dues
associated with Employee's membership in professional, business and
civic organizations; provided that such expenses are incurred and
accounted for in accordance with Employer's applicable policies and
procedures.
8. Confidentiality. Employee shall treat all information and knowledge of
Employee relating to Employer's business, including without limitation
the customers, customer list, perspective customers, customer
contacts, customer electricity demands and prices, data, pricing
information, and all other information of Employer confidential and
shall treat the same for all purposes as trade secrets of Employer,
never disclosing the same to anyone or utilizing the same for the
benefit of Employee or any other person or entity whomsoever.
9. Employer Property. Upon termination of employment, Employee will
return to Employer all records, books, lists, reports, documents,
files, and data stored on computers or in any other means, whether
original or copies and coming into employee's possession by or through
his employment by Employer.
10. Termination. If Employee's employment is terminated by reason of any
of the following circumstances, Employee shall not be entitled to
receive the benefits set forth in Section a hereof:
a. Death.
b. Permanent Disability. "Permanent Disability" shall mean
Employee's physical or mental incapacity to perform his usual
duties with such condition likely to remain continuously and
permanently as reasonably determined by the Managing Partner in
good faith.
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c. In the event Employee's employment is terminated by Employer for
Cause or employment is terminated because of Death or Permanent
Disability, then all future compensation to which Employee is
otherwise entitled and all future benefits for which Employee is
eligible shall cease and terminate as of the date of termination,
except as specifically provided in this Section 10(c). Employee,
or his estate in the case of Employee's death, shall be entitled
to pro rata base salary through the date of such termination and
shall be entitled to any individual bonuses or individual annual
incentive compensation not yet paid but payable under Employer's
plans for the year prior to the year of Employee's termination of
employment, but shall not be entitled to any annual bonus or
incentive compensation for the year in which he terminates
employment or any other payments or benefits by or on behalf of
Employer.
d. If Employee's employment is terminated by Employee for Good
Reason or by Employer for any reason other than Cause, Employee
shall be entitled to each of the following:
i. Employer shall pay to Employee a severance benefit
consisting of either but not both of: 1) a single lump sum
cash payment equal to one year of Employee's base salary as
in effect at the date of Employee's termination of
employment, Such severance benefit shall be paid no later
than sixty (60) days following Employee's termination of
employment; or, 2) 12-months of salary continuation, paid
semimonthly and at the same rate as in effect at the date of
Employee's termination of employment. The decision of
whether to pay a 12-month lump sum or 12-months of salary
continuance is at the sole discretion of Employer.
ii. Employee shall be entitled to any individual bonuses or
individual incentive compensation under Employer's plans, or
any successor annual incentive compensation plan, for the
year of Employee's termination of employment determined as
if Employee had remained employed by the Employer for the
entire year. Such amounts shall be paid to Employee at the
time that such amounts are paid to similarly situated
employees.
iii. "Good Reason" shall mean a termination of employment by
Employee because of a material breach by Employer of any
material provision of this Agreement which remains
uncorrected for sixty (60) days following written notice of
such breach by Employee to Employer, provided such
termination occurs within sixty (60) days after the
expiration of the notice period; or A termination of
employment by Employee within six (6) months after a
material reduction in Employee's rank or responsibility when
accompanied by a reduction in employee's base salary and
bonus as outlined herein with Employer.
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11. Post-Termination Obligations. During the term of this Agreement, and
for a term of eighteen (18) months after the termination of this
Agreement, but only if such termination occurs as a result of Cause,
then Employee agrees that he will not, directly or indirectly:
a. Except on behalf of Employer, solicit business from any person
known by the Employee to be a customer of or supplier to the
Employer, whether or not the Employee had personal contact with
such person during and be reason of Employee's employment with
the Employer;
b. 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 term of this Agreement or the
prior Agreement described above, or any manner induce or attempt
to induce any employee of the Employer to terminate employment
with Employer;
c. interfere with the Employer's relationship with any person,
including any person who at any time was an employee, contractor,
supplier or customer of Employer; or
d. disparage the Employer or any of its shareholders, directors,
officers or other employees.
Notwithstanding the foregoing, if this Agreement is terminated by either
Party for any reason other than Cause, then this Section 11 shall be void
and ineffective ab initio. After the initial 3-year term of this Agreement,
and any subsequent term which may be entered into by Employee and Employer,
Section 11 Section 11 shall be void and ineffective.
12. Successors and Assigns. This Agreement shall inure to and be binding
upon Employer as well as any successor owner of the business of
Employer. Neither Employer nor Employee may transfer or assign their
responsibilities hereunder without the prior written consent of the
other party, which consent shall not be unreasonably withheld or
delayed.
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13. Entire Agreement. This constitutes the entire agreement of the
parties. The terms hereof may not be modified or amended as set forth
herein, or by written instruments signed by the parties sought to be
charged thereby.
SIGNED this 24th day of May, 2006.
EMPLOYER:
PRIORITY POWER MANAGEMENT, LTD., by Priority Power Management, L.L.C.
By:
Xxx X. Xxxxxx, Manager
EMPLOYEE:
Xxxxxxx Xxxxx
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