ENERGY AGENT AGREEMENT
This Energy Agent Agreement ("Agreement") is made this 4th Day of
October 2000 by and between Advantage Energy, Inc., with offices
at XX Xxx 000, X. Xxxxx 00, Xxxxxxxxx, XX 00000 [Tel (716)
000-0000 Fax (000) 000-0000] ("Company"), and Royal Energy Corp.,
with offices at 000 Xxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000,
[Tel (000) 000-0000 Fax (000) 000-0000] ("Agent").
1. RESPONSIBILITIES
1.1 Independent Contractor. Agent shall be an independent
contractor and neither party shall represent itself in a manner
contrary to this independent contractor relationship.
1.2 Agent's Responsibilities. (a) Agent shall solicit
prospective customers located in the service territories in Ohio
served by First Energy and its subsidiaries and affiliates to
enter into written agreements with the Company including the
Electricity Savings Agreement. Any such agreement executed
primarily as a result of Agent's efforts is hereinafter referred
to as a Covered Agreement.
(b) Agent shall assist the Company as requested in
gathering information on the prospective customer to
assist in the determination as to whether or not the
Company desires to execute a Covered Agreement with
that prospective customer, which determination shall be
in the sole discretion of the Company.
(c) Agent shall assist in collection of past due
accounts and providing such other services as are
requested from time to time which are necessary and
proper for the administration of customer
accounts.
1.3 Facilities and Staff. Agent shall provide for and
maintain its own facilities and cover its own expenses.
2. COMPENSATION
2.1 Commissions. The Company agrees to pay Agent
commissions on the Covered Agreements in accordance with Exhibit
"A".
2.2 Non-Competition Compensation. As compensation for the
non-competition agreement contained in Section 3, Company agrees
to pay Agent as follows:
(a) During the first twelve month period following
the Termination Date, a commission of twenty (20%)
percent of Net Profits (as defined in Exhibit A) on
each Covered Agreement in its initial term and ten
(10%) percent of Net Profits on each Covered Agreement
in a renewal term.
(b) During the second twelve month period following
the Termination Date, a commission of ten (10%)
percent of Net Profits for each Covered Agreement in
its initial term and five (5%) percent of Net Profits
for each Covered Agreement in a renewal term.
2.3 Benefits. Agent shall not be entitled to participate in or
receive any employment benefits of the Company pursuant to any
employee benefit plans of the Company as such plans may be
modified from time to time.
2.4 Taxes. Agent shall be responsible for the payment of any and
all local, state and federal taxes, or other fees, imposed on the
amounts paid to Agent hereunder.
3. NON-COMPETITION
(a) Agent shall not contact any Customer or compete
with the Company or its affiliates in any manner,
directly or indirectly, throughout the course of this
agreement and for one (1) year following the later of
the termination of this Agreement or after Agent is no
longer receiving any compensation under the terms of
this Agreement.
(b) Agent will neither solicit, offer to employ or
employ, directly or indirectly on behalf of himself,
any other person, partnership, firm or entity any
employee, Agent or independent contractor of the
Company or it affiliates who is or has been an
employee, Agent or independent contractor of the
Company or its affiliates at any time during the one
(1) year period preceding termination of this
Agreement.
For purposes of this Section 3, a "customer" is any user of
electricity which at any time during the twelve (12) month period
prior to the Termination Date (i) has been a customer of the
Company or (ii) has been solicited by Agent as a prospective
customer.
4. CONFIDENTIALITY
All information acquired by Agent with respect to the Company or
customers or potential customers shall remain confidential and
proprietary to the Company (the "Confidential Information").
Other than information required to be disclosed by a government
agency or shown to the customer and used by Agent to solicit and
service customers, Agent shall not reveal or divulge to any third
party any information or any documents which come into Agent's
possession as a result of, in connection with, or with respect to
the Company or any Customer.
5. TERM and TERMINATION
This Agreement shall be for a term of two (2) years from the date
hereof; and shall automatically renew for consecutive one (1)
year periods unless either party advises to the contrary by
written notice at any time that is at least 120 days before the
expiration of this Agreement.
The Company may terminate Agent for failure to adhere to
established policies and procedures and/or for acting in an
unprofessional, unethical or illegal behavior.
6. MISCELLANEOUS
6.1 Choice of Laws. This agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State
of New York applicable to contracts made and to be performed
wholly within New York State, and without regard to the conflicts
of laws principles thereof.
6.2 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto and supersedes
any and all other agreements, either oral or in writing, between
the parties hereto with respect to the services of Agent to
Company.
6.3 Modifications in Writing. Any and all modifications or
amendments of this Agreement must be in writing and duly executed
by the parties hereto.
6.4 Non-Assignment. Neither party may assign or transfer
its interest in or obligations under this Agreement without the
express written consent of the other party, which consent shall
not be unreasonably withheld. Any sale or transfer of a
substantial portion of the Company's assets or change in control
of the Company shall be conditioned upon the transferee taking
assignment of the Company's rights and obligations under this
Agreement.
6.5 Severability. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in
any way.
IN WITNESS WHEREOF, Company and Agent have duly executed and
delivered this Agreement as of the date first written above.
ADVANTAGE ENERGY, INC. ("Company") ROYAL ENERGY CORP.
("Agent")
By: ____________________________ By:_________________
Name: Xxxx Xxxxxx Name: Xxxx X.X'Xxxxx
Title: Vice President of Sales Title: President
Tax ID.#00-0000000
EXHIBIT A
EXHIBIT "A" to the Energy Agent Agreement by and between
Advantage Energy, Inc. ("Company") and Royal Energy Corp.
("Agent").
A. Compensation on Each Covered Agreement.
1. The Commission will be (i) 33% of the Net Profit
during Year 1, (ii) 25% of the Net Profit during Year
2, and (ii) 20% of the Net Profit during all Renewal Terms.
Year 1 is the initial twelve months of the Covered
Agreement. Year 2 is the thirteen through twenty-four
months after commencement of service of the Covered
Agreement. Renewal Terms are all periods following
Year 2 that a customer continues to take service from
the Company.
Net Profit is each Customer's actual consumption times
the Margin. The Margin is the sales price per kWh
minus the Cost of Power per kWh.
Cost of Power shall include, but is not limited to:
All costs imposed by the Local Distribution Company
(LDC) and other transporting entities, including
power/gas replacement costs relating to balancing and
other associated transportation costs required to
receive and deliver electricity/natural gas to the
Customer, and
All federal, state, and local taxes (i.e. production
related, transmission related, etc.) other than income
taxes associated with or created by the purchase and
sale of the power/gas, and
Reasonable Cost of Letters of Credit and other payment
security attributable to Cover Agreement customers
only, and
Reasonable Costs of hedging where applicable to
Covered Agreement customers only.
2. On any transaction where an officer of the Company
provides material assistance to the Agent to close the
sale, the Commission to the Agent may upon mutual
agreement between the Agent and the Company, prior to
submitting customer proposal, be reduced by 50%.
3. Commissions will be paid on a monthly basis, no later
than thirty days after the end of the month in which the
Company invoiced the customer. For each customer, no
commission will be due from the Company to the Agent until
payment is received from such customer.
ADDENDUM TO ENERGY AGENT AGREEMENT
This Addendum to the Energy Agent Agreement (the "Agreement") by
and between Advantage Energy, Inc. ("Company"), and Royal Energy Corp.
("Agent") is made this 4th Day of October 2000.
1. All provisions of the Agreement not modified by the terms of this
Addendum shall remain unchanged and in full force and effect.
2. Agent shall have the right to solicit customers using the
Company's name, brand and trademark. Subject to the Company's prior
written approval, which shall not be unreasonably withheld or delayed,
Agent shall have the right to develop its own marketing materials at
Agent's expense.
3. Notwithstanding the provisions of paragraph 6.4 of the Agreement,
either party may, subject to the non-assigning party's written consent,
which shall not be unreasonably withheld or delayed, assign this
Agreement to an affiliate formed for the sole purpose of doing business
in Ohio.
4. In the event the Company begins to sell natural gas to any of the
customers obtained by the Agent under the Agreement, all provisions of
this Agreement apply to the relationship and terms between the parties
herein, and the Company shall pay the Agent the same commission (with
respect to a percentage of Net Profits) that the Agent would have
received for electricity sales to the same customer except that, in the
definition of Margin, kwh is replaced with mcf.
5. Upon the execution of the Agreement and this Addendum by the
Company and Agent, the Agent hereby grants the Company an option to
purchase a ten (10%) percent common stock equity interest in the Agent
at the purchase price equal to par value ($.001) of the Agent's common
stock multiplied by the number of shares purchased. The 10% will be
determined using the number of issued and outstanding shares of common
stock as of the execution of this Agreement. The option will not be
vested for a period of one year from the date of this Agreement and
only if this Agreement has not been terminated.
6. The Company represents that it will diligently (a) apply for,
obtain and maintain a license (and all other necessary approvals) to
market electricity in Ohio and (b) enter into, and keep in full force
and effect, any agreements necessary to sell electricity at retail
within the service territories in Ohio served by First Energy and its
subsidiaries and affiliates, including but not limited to agreements
with wholesale suppliers. In addition, the Company shall maintain the
minimum credit criteria, funding, office staff and infrastructure
customarily necessary to serve the customers. [Neither party is
responsible for consequential damages under this provision].
7. At all times during the term of this Agreement, the Company shall
not offer better pricing and other terms to potential customers within
the service territories in Ohio served by First Energy and its
subsidiaries and affiliates, then the pricing and other terms being
offered by Agent on behalf of the Company.
IN WITNESS WHEREOF, Company and Agent have duly executed and delivered
this Addendum as of the date first written above.
ADVANTAGE ENERGY, INC. ("Company") ROYAL ENERGY CORP.
("Agent")
By: ____________________________ By:_______________________
Name: Xxxx Xxxxxx Name: Xxxx X. X'Xxxxx
Title: Vice President of Sales Title: President
AGREEMENT
The Energy Agent Agreement ("EAA") dated, October 4, 2000
between Advantage Energy Inc. and Royal Energy Coup is amended by
this Agreement.
Paragraph 1.2. and all other parts of the agreement
specifying service territories covered by the EAA shall be
amended to include the service territory of Cincinnati Gas and
Electric.
No other aspects of the EAA are in any way modified by this
amendment.
ADVANTAGE ENERGY, Inc. ROYAL ENERGY CORP.
________________________ ________________________
Xxxx Xxxxxx, V.P. of Sales Xxxx X'Xxxxx, President
