AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
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EXHIBIT 10.9
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
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This shall constitute Amendment No. 1 to that certain Employment Agreement
(the “Employment Agreement”), dated as of August 18, 2006, by and between ALL
Energy Company, a Delaware corporation (“Employer”), and Xxxx Xxxxxxxxx
(“Employee”), pursuant to which Employee agreed to serve as president of
Employer.
The Employment Agreement is hereby amended, as follows:
1. Exhibit III(A), Statement of Compensation, is deleted in its
entirety and replaced with the following:
“Salary. Employee shall be paid as and for a salary the sum of
$240,000 per year, net of lawful and required withholding, which salary shall
begin to accrue immediately upon the mutual execution of the Employment
Agreement to which this Exhibit III(A) relates; provided, however, that no
amount of Employee’s accrued salary shall be paid unless and until Employer
shall have obtained not less than $1,300,000 pursuant to Employer’s proposed
private offering.
Notwithstanding the foregoing paragraph to the contrary, for
the year 2007, Employee shall be paid his salary as follows:
$120,000 of such salary shall be paid on January 2, 2007, and
the balance of such salary, $120,000, shall be paid in equal installments during
the remainder of 2007.
Moving Allowance. Employee shall be paid a one-time moving
allowance of $15,000, upon Employer’s receipt of Employee’s written notice of
his intent to move his residence to an appropriate location in the State of
Iowa.
Insurance and Other Benefits. As further consideration for his
covenants contained in the Employment Agreement to which this Exhibit III(A)
relates, Employer will provide Employee with such insurance, welfare, sick
leave
and other benefits as may be established by Employer from time to time with
respect to its employees in accordance with Employer’s established procedures.
Employee shall be entitled to Directors’ and Officers’ indemnification insurance
coverage to the same extent as is provided to other persons employed as officers
of Employer.
Other Compensation Plans. Employee shall be entitled to
participate, to the same extent as is provided to other persons employed by
Employer, in any future stock bonus plan, stock option plan or employee stock
ownership plan of Employer.”
In all other respects, the Employment Agreement is ratified and
affirmed.
EMPLOYER:
ALL ENERGY COMPANY
By: /s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx
President
Dated: January 2, 2007
EMPLOYEE:
/s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx, individually
Dated: January 2, 2007
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made by and between All Energy
Company, a duly organized Delaware corporation (“Employer”), and Xxxx Xxxxxxxxx
(“Employee”).
W I T N E S S E T H:
WHEREAS, Employer is in need of a person to serve as its president and
secretary; and
WHEREAS, Employee possesses the credentials deemed necessary by Employer
to
serve Employer in such capacities; and
WHEREAS, Employee is willing to be employed by Employer, and Employer is
willing to employ Employee, on the terms, covenants and conditions hereinafter
set forth; and
WHEREAS, Employer and its affiliates have accumulated valuable and
confidential information, including, without limitation, trade secrets and
know-how relating to the ethanol production industry, marketing plans, business
strategies and other business records; and
WHEREAS, the giving of the covenants contained herein is a condition
precedent to the employment of Employee by Employer and Employee acknowledges
that the execution of this Agreement and the entering into of these covenants
is
an express condition of his employment by Employer and that said covenants
are
given in consideration for such employment and the other benefits conferred
upon
him by this Agreement; and
NOW, THEREFORE, in consideration of such employment and other valuable
consideration, the receipt and adequacy of which is hereby acknowledged,
Employer and Employee hereby agree as follows:
SECTION I. EMPLOYMENT OF EMPLOYEE
Employer hereby employs, engages and hires Employee as President and
Secretary of Employer, and Employee hereby accepts and agrees to such hiring,
engagement and employment, subject to the general supervision of the Board
of
Directors of Employer. Employee shall perform duties as are customarily
performed by one holding such position in other, same or similar businesses
or
enterprises as that engaged in by Employer, and shall also additionally render
such other and unrelated services and duties as may be reasonably assigned
to
him from time to time by Employer.
Employee shall devote all necessary efforts to the performance of his
duties as President and Secretary of Employer.
SECTION II. EMPLOYEE’S PERFORMANCE
Employee hereby agrees that he will, at all times, faithfully,
industriously and to the best of his ability, experience and talents, perform
all of the duties that may be required of and from him pursuant to the express
and implicit terms hereof, to the reasonable satisfaction of Employer.
SECTION III. COMPENSATION OF EMPLOYEE
Employer shall pay Employee, and Employee shall accept from Employer, in
full payment for Employee's services hereunder, compensation as
follows:
A. Salary and Other Compensation. Employee shall be paid as and for a
salary the compensation set forth in Exhibit III(A).
B. Expenses. It is acknowledged that, during the term of employment,
Employee will be required to incur ordinary and necessary business expenses
on
behalf of Employer in connection with the performance of his duties hereunder.
Employer shall reimburse Employee promptly the amount of all such expenses
upon
presentation of itemized vouchers or other evidence of those
expenditures.
C. Vacations. During the term of this Agreement, Employee shall be entitled
to three (3) weeks’ paid vacation.
SECTION IV. INDEMNIFICATION OF EMPLOYEE
As further consideration of Employee’s executing this Agreement,
Employer shall have executed, prior to the execution of this Agreement, an
Indemnity Agreement (the “Indemnity Agreement”), in the form attached hereto as
Exhibit IV(A). The obligations under the Indemnity Agreement shall survive
the
termination of this Agreement.
SECTION V. COMPANY POLICIES
Employee agrees to abide by the policies, rules, regulations or
usages applicable to Employee as established by Employer from time to time
and
provided to Employee in writing.
SECTION VI. CONFIDENTIALITY AGREEMENT; NON-COMPETITION AGREEMENT
A. In consideration of Employer’s executing this Agreement, Employee
shall have executed, prior to the execution of this Agreement, a Confidentiality
Agreement (the “Confidentiality Agreement”), in the form attached hereto as
Exhibit “B”.
B. In consideration of Employer’s executing this Agreement, Employee
agrees, effective as of the date hereof, to sign and be bound by the obligations
of an Agreement Not to Compete (the “Non-Competition Agreement”), in the form
attached hereto as Exhibit “C”.
C. The obligations under the Confidentiality Agreement and the
Non-Competition Agreement shall survive the termination of this
Agreement.
SECTION VII. TERM AND TERMINATION
A. Term. The term of this Agreement shall be a period of seven (7) years,
commencing on August 18, 2006. This Agreement shall renew for additional
one-year periods, provided neither party hereto submits a written notice of
termination within sixty (60) days prior to the termination of either the
initial term hereof or any renewal term.
B. Termination. Employer agrees not to terminate this Agreement
except for “just cause”. For purposes of this Agreement, “just cause” shall mean
(1) the willful failure or refusal of Employee to implement or follow the
written policies or directions of Employer's Board of Directors, provided that
Employee's failure or refusal is not based upon Employee's belief in good faith,
as expressed to Employer in writing, that the implementation thereof would
be
unlawful; (2) conduct which is inconsistent with Employee's position with
Employer and which results in a material adverse effect (financial or otherwise)
or misappropriation of assets of Employer; (3) conduct which violates the
provisions contained in the Confidentiality Agreement or the Non-Competition
Agreement; (4) the intentional causing of material damage to Employer's physical
property; and (5) any act involving personal dishonesty or criminal conduct
against Employer.
Although Employer retains the right to terminate Employee for any reason
not specified above, Employer agrees that if it discharges Employee for any
reason other than just cause, as is solely defined above, Employee will be
entitled to full compensation for one year or the remainder of the then-current
term, original or renewal, as the case may be, of employment, whichever is
greater.
If Employee should cease his employment hereunder voluntarily for any
reason, or is terminated for just cause, all compensation and benefits payable
to Employee shall thereupon, without any further writing or act, cease, lapse
and be terminated. However, all reimbursements which accrued prior to Employee's
ceasing employment or termination, will become immediately due and payable
and
shall be payable to Employee’s estate should his employment cease due to
death.
SECTION VIII. COMPLETE AGREEMENT
This Agreement contains the complete agreement concerning the employment
arrangement between the parties hereto and shall, as of the effective date
hereof, supersede all other agreements between the parties. The parties hereto
stipulate that neither of them has made any representation with respect to
the
subject matter of this Agreement or any representations including the execution
and delivery hereof, except such representations as are specifically set forth
herein and each of the parties hereto acknowledges that he or it has relied
on
his or its own judgment in entering into this Agreement. The parties hereto
further acknowledge that any payments or representations that may have
heretofore been made by either of them to the other are of no effect and that
neither of them has relied thereon in connection with his or its dealings with
the other.
SECTION IX. WAIVER; MODIFICATION
The waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or of
any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties hereto arising out of, or
affecting, this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed
as
aforesaid, and the parties further agree that the provisions of this Section
IX
may not be waived except as herein set forth.
SECTION X. SEVERABILITY
All agreements and covenants contained herein are severable, and in the
event any one of them, with the exception of those contained in Sections I,
III,
IV, V and VI hereof, shall be held to be invalid in any proceeding or litigation
between the parties, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
SECTION XI. NOTICES
Any and all notices will be sufficient if furnished in writing, sent by
registered mail to his last known residence, in case of Employee, or, in case
of
Employer, to its principal office address.
SECTION XII. REPRESENTATIONS OF EMPLOYER
The execution of this Agreement by Employer has been approved by the
Board of Directors of Employer.
SECTION XIII. REPRESENTATIONS OF EMPLOYEE
A. Employee hereby represents to Employer that he is under no legal
disability with respect to his entering into this Agreement.
B. Employee represents and warrants that he has investigated
Employer, its financial condition, business and prospects, and has had the
opportunity to ask questions of, and to receive answers from, Employer with
respect thereto. Employee acknowledges that he is aware that Employer currently
lacks adequate capital to pursue its full plan of business.
SECTION XIV. COUNTERPARTS
This Agreement may be executed in duplicate counterparts, each of which
shall be deemed an original and, together, shall constitute one and the same
agreement, with one counterpart being delivered to each party hereto.
SECTION XV. BENEFIT
The provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially
all
of the assets and business of Employer. The term “Employer” shall be deemed to
include Employer, any joint venture, partnership, limited liability company,
corporation or other juridical entity, in which Employer shall have an interest,
financial or otherwise.
SECTION XVI. ARBITRATION
The parties agree that any dispute arising between them related to
this Agreement or the performance hereof shall be submitted for resolution
to
the American Arbitration Association for arbitration in the Chicago, Illinois,
office of the Association under the then-current rules of arbitration. The
Arbitrator or Arbitrators shall have the authority to award to the prevailing
party its reasonable costs and attorneys fees. Any award of the Arbitrators
may
be entered as a judgment in any court competent jurisdiction.
Notwithstanding the provisions contained in the foregoing paragraph,
the parties hereto agree that Employer may, at its election and without
delivering the notice to Employee required in Section VII(B) hereof, seek
injunctive or other equitable relief from a court of competent jurisdiction
for
a violation or violations by Employee of the Confidentiality Agreement or the
Non-Competition Agreement.
SECTION XVII. LEGAL REPRESENTATION
Employer and Employee both acknowledge that each has utilized
separate legal counsel with respect to this Agreement. Specifically, Employee
acknowledges that the law firm of Xxxxxx & Xxxxxx has drafted this Agreement
on behalf of Employer. EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL
COUNSEL.
SECTION XVIII. GOVERNING LAW
It is the intention of the parties hereto that this Agreement and the
performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and under and pursuant to the laws of the State
of
Iowa, and that, in any action, special proceeding or other proceeding that
may
be brought arising out of, in connection with or by reason of this Agreement,
the laws of the State of Iowa shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the jurisdiction
in
which any such action or special proceeding may be instituted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of
the 18th of August, 2006.
ALL ENERGY COMPANY
By: /s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx
President
/s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx, individually
Address of Employee:
0000 Xxxxx Xxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
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Exhibit III(A) - Statement of Compensation
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Statement of Compensation — Xxxx
Xxxxxxxxx
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Salary. Employee shall be paid as and for a salary the sum of
$240,000 per year, net of lawful and required withholding, which salary shall
begin to accrue immediately upon the mutual execution of the Employment
Agreement to which this Exhibit III(A) relates; provided, however, that no
amount of Employee’s accrued salary shall be paid unless and until Employer
shall have obtained not less than $1,300,000 pursuant to Employer’s proposed
private offering.
Moving Allowance. Employee shall be paid a one-time moving allowance
of $15,000, upon Employer’s receipt of Employee’s written notice of his intent
to move his residence to an appropriate location in the State of Iowa.
Insurance and Other Benefits. As further consideration for his
covenants contained in the Employment Agreement to which this Exhibit III(A)
relates, Employer will provide Employee with such insurance, welfare, sick
leave
and other benefits as may be established by Employer from time to time with
respect to its employees in accordance with Employer’s established procedures.
Employee shall be entitled to Directors’ and Officers’ indemnification insurance
coverage to the same extent as is provided to other persons employed as officers
of Employer.
Other Compensation Plans. Employee shall be entitled to participate,
to the same extent as is provided to other persons employed by Employer, in
any
future stock bonus plan, stock option plan or employee stock ownership plan
of
Employer.
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Exhibit IV(A) - Indemnity Agreement
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INDEMNITY AGREEMENT
THIS AGREEMENT is made and entered into as of the 18th day of August,
2006, by and between All Energy Company, a Delaware corporation (the
“Corporation”), and Xxxx Xxxxxxxxx (“Agent”).
RECITALS
WHEREAS, Agent performs a valuable service to the Corporation in his
capacity as President and Secretary of the Corporation;
WHEREAS, the Corporation’s bylaws (the “Bylaws”) provide for the
indemnification of the directors, officers, employees and other agents of the
Corporation, including persons serving at the request of the Corporation in
such
capacities with other corporations or enterprises, as authorized by the Delaware
General Corporation Law (the “GCL”);
WHEREAS, the Bylaws and the GCL, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other
agents with respect to indemnification of such persons; and
WHEREAS, in order to induce Agent to continue to serve as President and
Secretary of the Corporation, the Corporation has determined and agreed to
enter
into this Agreement with Agent;
NOW, THEREFORE, in consideration of Agent’s continued service as
President and Secretary of the Corporation after the date hereof, the parties
hereto agree as follows:
AGREEMENT
1. SERVICES TO THE CORPORATION. Agent will serve, at the will of the
Corporation or under separate contract, if any such contract exists, as a
director, officer or other fiduciary of an affiliate of the Corporation
(including any employee benefit plan of the Corporation) faithfully and to
the
best of his ability so long as he is duly elected and qualified in accordance
with the provisions of the Bylaws or other applicable charter documents of
the
Corporation or such affiliate; provided, however, that Agent may at any time
and
for any reason resign from such position (subject to any contractual obligation
that Agent may have assumed apart from this Agreement) and that the Corporation
or any affiliate shall have no obligation under this Agreement to continue
Agent
in any such position.
2. INDEMNITY OF AGENT. The Corporation hereby agrees to hold harmless
and indemnify Agent to the fullest extent authorized or permitted by the
provisions of the Bylaws and the GCL, as the same may be amended from time
to
time (but, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than the Bylaws or the GCL permitted
prior to adoption of such amendment), as follows:
(a) against any and all expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and
any
other amounts that Agent becomes legally obligated to pay because of any claim
or claims made against him in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the right of
the
Corporation) to which Agent is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that Agent is, was or
at
any time becomes a director, officer, employee or other agent of Corporation,
or
is or was serving or at any time serves at the request of the Corporation as
a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Agent
by the Corporation under the non-exclusivity provisions of the GCL and the
Bylaws.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an
accounting of profits made by Agent in violation of Section 16 of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a
final judgment as knowingly fraudulent or deliberately dishonest or that
constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a
final judgment as constituting a breach of Agent’s duty of loyalty to the
Corporation or resulting in any personal profit or advantage to which Agent
was
not legally entitled;
(d) for which payment is actually made to Agent under a valid
and collectible insurance policy or under a valid and enforceable indemnity
clause, bylaw or agreement, except in respect of any excess beyond payment
under
such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect,
both the Corporation and Agent have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by Agent, or any proceeding by Agent against the Corporation or its
directors, officers, employees or other agents, unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized
by
the Board of Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to the powers
vested in the Corporation under the GCL, or (iv) the proceeding is initiated
pursuant to Section 8 hereof.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Agent is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee
or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as
Agent
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that Agent was serving
in
the capacity referred to herein.
5. PARTIAL INDEMNIFICATION. Agent shall be entitled under this
Agreement to indemnification by the Corporation for a portion of the expenses
(including attorneys’ fees), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Agent becomes legally obligated
to
pay in connection with any action, suit or proceeding referred to in Section
2
hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the portion thereof
to
which Agent is entitled.
6. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days
after receipt by Agent of notice of the commencement of any action, suit or
proceeding, Agent will, if a claim in respect thereof is to be made against
the
Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it
from
any liability which it may have to Agent otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Agent notifies
the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, the Corporation may, at
its option and jointly with any other indemnifying party similarly notified
and
electing to assume such defense, assume the defense thereof, with counsel
reasonably satisfactory to Agent. After notice from the Corporation to Agent
of
its election to assume the defense thereof, the Corporation will not be liable
to Agent under this Agreement for any legal or other expenses subsequently
incurred by Agent in connection with the defense thereof except for reasonable
costs of investigation or otherwise as provided below. Agent shall have the
right to employ separate counsel in such action, suit or proceeding but the
fees
and expenses of such counsel incurred after notice from the Corporation of
its
assumption of the defense thereof shall be at the expense of Agent unless (i)
the employment of counsel by Agent has been authorized by the Corporation,
(ii)
Agent shall have reasonably concluded, and so notified the Corporation, that
there is an actual conflict of interest between the Corporation and Agent in
the
conduct of the defense of such action or (iii) the Corporation shall not in
fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of Agent’s separate counsel shall be at the expense
of the Corporation. The Corporation shall not be entitled to assume the defense
of any action, suit or proceeding brought by or on behalf of the Corporation
or
as to which Agent shall have made the conclusion provided for in clause (ii)
above; and
(c) the Corporation shall not be liable to indemnify Agent
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent, which shall not be unreasonably withheld.
The Corporation shall be permitted to settle any action except that it shall
not
settle any action or claim in any manner which would impose any penalty or
limitation on Agent without Agent’s written consent, which may be given or
withheld in Agent’s sole discretion.
7. EXPENSES. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by Agent in connection with such proceeding upon receipt of an
undertaking by or on behalf of Agent to repay said amounts if it shall be
determined ultimately that Agent is not entitled to be indemnified under the
provisions of this Agreement, the Bylaws, the GCL or otherwise.
8. ENFORCEMENT. Any right to indemnification or advances granted by
this Agreement to Agent shall be enforceable by or on behalf of Agent in any
court of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, or (ii) no disposition of such claim is made
within ninety (90) days of request therefor. Agent, in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. It shall be a defense to any action for which a claim
for indemnification is made under Section 3 hereof (other than an action brought
to enforce a claim for expenses pursuant to Section 8 hereof, provided that
the
required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section
4
hereof. Neither the failure of the Corporation (including its Board of Directors
or its shareholders) to have made a determination prior to the commencement
of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its shareholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.
9. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Agent, who shall execute all documents required and shall
do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
10. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Agent by this
Agreement shall not be exclusive of any other right which Agent may have or
hereafter acquire under any statute, provision of the Corporation’s Certificate
of Incorporation or Bylaws, agreement, vote of shareholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
11. SURVIVAL
OF RIGHTS.
(a) The rights conferred on Agent by this Agreement shall
continue after Agent has ceased to be a director, officer, employee or other
agent of the Corporation or to serve at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and shall inure
to the benefit of Agent’s heirs, executors and administrators.
(b) The Corporation shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
12. SEPARABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity
or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify Agent
to the fullest extent provided by the Bylaws, the GCL or any other applicable
law.
13. ARBITRATION. The parties agree that any dispute arising between
them related to this Agreement or the performance hereof shall be submitted
for
resolution to the American Arbitration Association for arbitration in the
Chicago, Illinois, office of the Association under the then-current rules of
arbitration. The Arbitrator or Arbitrators shall have the authority to award
to
the prevailing party its reasonable costs and attorneys fees. Any award of
the
Arbitrators may be entered as a judgment in any court competent
jurisdiction.
14. GOVERNING LAW. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Delaware.
15. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
16. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute but one and the same
Agreement. Only one such counterpart need be produced to evidence the existence
of this Agreement.
17. HEADINGS. The headings of the sections of this Agreement are
inserted for convenience only and shall be deemed to constitute part of this
Agreement or to affect the construction hereof.
18. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication
was
directed or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage
prepaid:
(a) If to Agent, at the address indicated on the signature page
hereof.
(b) If to the Corporation, to: All Energy Company, 0000 Xxxxx
Xxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000.
or to such other address as may have been furnished to Agent by the
Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on and as of the day and year first above written.
ALL ENERGY COMPANY
COPY
By: _______________________________
Xxxx Xxxxxxxxx
President
AGENT
COPY
_______________________________
Xxxx Xxxxxxxxx, individually
Address of Agent:
0000 Xxxxx Xxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
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Exhibit VI(A) - Confidentiality Agreement
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August 18, 2006
All Energy Company
0000 Xxxxx Xxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Re: Confidentiality Agreement
Gentlemen:
In connection with the execution of an employment agreement (the
“Employment Agreement”) between the undersigned and All Energy Company (together
with affiliates, the “Company”), the Company will furnish to the undersigned
certain information concerning its business, financial position, operations,
business contacts, assets and liabilities, as well as other proprietary
information. As a condition to such information’s being furnished to the
undersigned and as a condition to the undersigned’s entering into an employment
agreement with the Company, the undersigned agrees to treat any information
concerning the Company (whether prepared by the Company, its advisors, or
otherwise, and irrespective of the form of communication) which is furnished
to
the undersigned now or in the future by or on behalf of the Company (together
with the material described below, herein collectively referred to as the
“Confidential Material”) in accordance with the provisions of this letter
agreement, and to take or abstain from taking certain other actions hereinafter
set forth.
The undersigned understands that the term “Confidential Material”
also includes all notes, analysis, compilations, studies, interpretations
or
other documents prepared by the Company or its representatives which contain,
reflect or are based upon, in whole or in part, the information furnished to
the
undersigned. The term “Confidential Material” does not include information which
(A) is or becomes generally available to the public other than as a result
of a
disclosure by the undersigned, or (B) was lawfully within the undersigned’s
possession prior to its being furnished to the undersigned by or on behalf
of
the Company, provided that the source of such information was not known by
the
undersigned to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, the Company
or
any other party with respect to such information, or (C) is disclosed to the
undersigned by a third party, provided that such third party was not known
by
the undersigned to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, the Company
or
any other party with respect to such information.
The undersigned hereby agrees that he will use the Confidential
Material solely in connection with the undersigned’s performance of his duties
under the employment agreement, that the Confidential Material will be kept
confidential and that the undersigned will not disclose any of the Confidential
Material in any manner whatsoever.
In the event that the undersigned is requested or required (by oral
questions, interrogatories, requests for information or documents in legal
proceedings, subpoena, civil investigative demand or other similar process)
to
disclose any of the Confidential Material, the undersigned will provide the
Company with prompt written notice of any such request or requirement so that
the Company may seek a protective order or other appropriate remedy and/or
waive
compliance with the provisions of this letter agreement. If, in the absence
of a
protective order or other remedy or the receipt of a waiver by the Company,
the
undersigned is, nonetheless, in the opinion of counsel, legally compelled to
disclose Confidential Material, the undersigned may, without liability
hereunder, disclose only that portion of the Confidential Material specifically
required by an order of Court. Additionally, the undersigned shall make every
reasonable effort and take every reasonable action, including, without
limitation, by cooperating with the Company, to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Material.
Upon termination of the Employment Agreement or at any time upon the
request of the Company, the undersigned will promptly deliver to the Company or
certify destruction of, at the Company’s direction, all Confidential Material
(and all copies thereof) furnished to the undersigned by or on behalf of the
Company pursuant hereto. All oral Confidential Material provided to the
undersigned shall continue to be held confidential hereunder. Notwithstanding
the return or destruction of the Confidential Material, the undersigned will
continue to be bound by obligations of confidentiality hereunder.
The undersigned agrees that the Company, without prejudice to any
rights to judicial relief he may otherwise have, shall be entitled to equitable
relief, including injunctive relief and specific performance, in the event
of
any breach of the provisions of this letter agreement and that the undersigned
will not oppose the granting of such relief. The undersigned also agrees that
he
will not seek and agrees to waive any requirement for the securing and posting
of a bond in connection with the Company’s seeking or obtaining such relief. In
the event of litigation relating to this letter agreement, if a court of
competent jurisdiction determines that the undersigned has breached this letter
agreement, then the undersigned will be liable to pay to the Company the
reasonable legal fees incurred in connection with such litigation, including
any
appeal therefrom. Also, in the event a court of competent jurisdiction
determines that the undersigned has not breached this letter agreement, then
the
Company will be liable to pay to the undersigned the reasonable legal fees
incurred in connection with such litigation, including any appeal
therefrom.
This letter agreement is for the benefit of the Company, and shall be
construed (both as to validity and performance) and enforced in accordance
with,
and governed by, the laws of the State of Texas applicable to agreements made
and to be performed wholly within such jurisdiction. This letter agreement
shall
remain in full force and effect until the earlier of the date that is three
years from the termination of the undersigned’s employment by the Company or the
date that this agreement is terminated by the Company.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned whereupon this letter
agreement shall become a binding agreement.
Very truly yours,
COPY
Xxxx Xxxxxxxxx
individually
AGREED AND ACCEPTED as
of the date first written above:
ALL ENERGY COMPANY
COPY
By: ______________________________
Xxxx Xxxxxxxxx
President
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Exhibit VI(B) - Agreement Not to Compete
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AGREEMENT NOT TO COMPETE
This Agreement Not to Compete is entered into by and between All
Energy Company, a Delaware corporation (“Employer”), and Xxxx Xxxxxxxxx
(“Employee”).
WHEREAS, Employee is employed by Employer as President and Secretary,
pursuant to an employment agreement (the “Employment Agreement”); and
WHEREAS, as a condition to such employment, Employee has agreed to sign
and
be bound by this Agreement Not to Compete; and
NOW, THEREFORE, the parties agree as follows:
Section 1. Covenant Not to Compete. Employee acknowledges that, as a
key management employee of Employer, Employee will be involved, on a high level,
in the development, implementation and management of the business strategies
and
plans of Employer, which shall consist of Employer and such other business
units, divisions, subsidiaries or other entities of Employer as Employer shall
determine in its sole discretion from time to time. By virtue of Employee’s
unique and sensitive position and special background, employment of Employee
by
a competitor of Employer represents a serious competitive danger to Employer,
and the use of Employee’s talent and knowledge and information about Employer’s
business, strategies and plans can and would constitute a valuable competitive
advantage over Employer. In view of the foregoing, Employee covenants and agrees
that, if (A) Employee’s employment with Employer is terminated for just cause or
(B) if Employee voluntarily resigns from his employment with Employer, then,
for
a period of one year after the date of such termination, Employee will not
engage or be engaged as, in any capacity, directly or indirectly, including,
but
not limited to, employee, agent, consultant, manager, executive, owner or
stockholder (except as a passive investor holding less than 10% equity interest
in any enterprise the securities of which are publicly traded) in any business
entity engaged in competition with any business being conducted by Employer
on
the date of Employee’s termination. This Agreement shall survive the termination
or expiration of the Employment Agreement. If any court determines that this
Agreement, or any part hereof, is unenforceable because the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable. For purposes of this Agreement,
“just cause” shall have the same meaning as set forth in Section VII(B) of the
Employment Agreement of even date between the parties.
Section 2. Continuing Obligations. Employee agrees that, for one year
following (A) his termination of employment with Employer for just cause or
(B)
his resignation as an employee of Employer, Employee shall keep Employer
informed of the identification of Employee’s employer and the nature of such
employment or of Employee’s self-employment. Employer agrees that, within
fifteen days after receiving notice pursuant to this Section 2 of the
identification of the prospective employer, the nature of the employment or
self-employment or any change therein, Employer will advise Employee as to
whether such employment constitutes a violation of Section 1 hereof.
Section 3. Injunctive Relief. Employee acknowledges that the
violation of the covenants contained in this Agreement would be detrimental
and
cause irreparable injury to Employer and its affiliates which could not be
compensated by money damages. Employee agrees that an injunction from a court
of
competent jurisdiction is the appropriate remedy for these provisions, and
consents to the entry of an appropriate judgment enjoining Employee from
violating these provisions in the event there is a find of their
breach.
Section 4. Severability of Covenants. Each of the covenants contained
in this Agreement are independent covenants, which may be available to or relied
upon by Employer and its affiliates in any court of competent jurisdiction.
If
any one of the separate and independent covenants shall be deemed to be
unenforceable under the laws of any state of competent jurisdiction, each of
the
remaining covenants shall not be affected thereby. Notwithstanding the
provisions of this Section 4, it is understood that every benefit received
by
Employee by virtue of this Agreement is consideration for each separate covenant
contained herein.
Section 5. Arbitration. The parties agree that any dispute arising
between them related to this Agreement or the performance hereof shall be
submitted for resolution to the American Arbitration Association for arbitration
in the Chicago, Illinois, office of the Association under the then-current
rules
of arbitration. The Arbitrator or Arbitrators shall have the authority to award
to the prevailing party its reasonable costs and attorneys fees. Any award
of
the Arbitrators may be entered as a judgment in any court competent
jurisdiction.
Section 6. Governing Law. This Agreement shall be governed by the
laws of the State of Delaware.
Section 7. Other Remedies. The undertakings herein shall not be
construed as any limitation upon the remedies Employer might, in the absence
of
this Agreement, have at law or in equity.
INTENDING to be legally bound hereby, Employer and Employee hereby
duly execute this Agreement Not to Compete as of the date indicated
below.
ALL ENERGY COMPANY
COPY
By: ____________________________
Xxxx Xxxxxxxxx
President
Date: August 18, 2006
COPY
________________________________
Xxxx Xxxxxxxxx, individually
Date: August 18, 2006
