EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit 10.48
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This EMPLOYMENT AND NON-COMPETITION AGREEMENT (the “Agreement”) is effective as of the 27th
day of July, 2007 (the “Effective Date”), and is made by and between Regional Enterprises, Inc., a
Virginia corporation (herein referred to as “Employer” or “Company”), and W. Xxxx Xxxxxx, III, an
individual currently residing in the Commonwealth of Virginia (the “Employee”).
WHEREAS, the Employer specializes in liquid bulk storage, railcar transloading and
transportation of bulk liquids, including hazardous, non-hazardous and food grade products
(“Employer’s Business”);
WHEREAS, the Employer is the successor by merger to Regional Enterprizes, Inc., a Virginia
corporation and the former employer of Employee prior to the Effective Date;
WHEREAS, the Employer is a wholly owned subsidiary of Rio Vista Energy Partners L.P., a
Delaware limited partnership (“RVEP”);
WHEREAS, the Employer desires to retain the Employee as the Vice President, Director of
Marketing; and
WHEREAS, effective as of the Effective Date, the Employee desires to serve the Employer as the
Vice President, Director of Marketing on the terms and conditions provided in this Agreement, and
acknowledges that such terms and conditions provide adequate consideration and benefits to the
Employee;
NOW, THEREFORE, in consideration of the promises, covenants and agreements of the Employer and
the Employee (collectively, the “Parties”) contained in this Agreement and in consideration of the
Employee’s continued employment by the Employer, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Position and Duties. The Employer hereby agrees to employ the Employee as its Vice
President, Director of Marketing. In this role, the Employee shall be responsible for customer
relationships, customer growth/development, customer retention as it relates to Sales and Marketing
of the Employer and any other duties reasonably assigned by the Employer (“Job Description”).
Employee will report directly to the President/Chief Executive Officer of Employer or RVEP. The
Employee will perform his duties at the principal office of the Company in Hopewell, Virginia, or
at such other locations as the Company and the Employee shall hereafter agree, including such
travel as reasonably required for the efficient and effective performance of his duties. Employee
shall devote substantially all of his business time and expend his best efforts, energies and
skills to the diligent and faithful performance of his employment responsibilities. Those
responsibilities may change at the discretion of the Employer or RVEP. However, in all cases the
responsibilities and duties of Employee will not
be changed significantly from those described above, but in no event will such responsibilities and
duties include being primarily responsible for the day to day operations of the Employer.
2. At-will employment. Employee’s employment with Employer is at-will, meaning that
Employer or Employee can terminate the employment relationship at any time, for any reason, with or
without good or just cause.
3. Compensation. The Employee’s annual base salary as of the effective date of this
Agreement will be Two Hundred Ten Thousand Dollars ($210,000.00) (“Base Salary”). This Base Salary
may increase subject to annual performance evaluations by the Employer and is subject to
withholdings and other deductions by reason of Federal, State or local law. The Employer shall pay
such Base Salary in accordance with its regular payroll dates. The Employee shall also be eligible
for any annual bonuses, if any, awarded to employees of the Employer in accordance with the terms
or criteria set for such bonus awards. The Employer also agrees to reimburse the Employee for all
reasonable business expenses incurred by the Employee in connection with the performance of the
Employee’s employment responsibilities and obligations under this Agreement, subject to any
established reimbursement policies of the Employer in effect from time-to-time.
4. Benefits. The Employee shall be entitled to the following benefits during his
employment:
a. Paid Time Off. The Employee shall be allowed vacation of three (3) weeks, sick
leave, and personal leave, in an amount pursuant to the leave allowances as set forth from
time-to-time in the Employer’s policies and procedures.
b. Medical Insurance. The Employee and the Employee’s immediate family shall be
entitled to health insurance benefits comparable to those benefits made available generally to
other employees of the Employer. In addition, Employee will have the continued benefit of full
quarterly reimbursement of all healthcare-related expenses with exception of employees’ paid
portion to semi-monthly premiums. This reimbursement is not to exceed $2,500 during any quarterly
period (beginning on the Effective Date) provided such expenses were actually incurred during the
period.
c. Salary Withholding Plans. The Employee shall be entitled to participate in any
employee benefit plan that the Employer has in existence pursuant to Paragraph 403(b) or 401(k) or
any other provision of the Internal Revenue Code providing for tax-deferred salary withholding
plans in accordance with the same terms and conditions that the Employer may make available
generally to other employees of the Employer.
d. Commissions: Employee will be entitled to commissions based on the revenue of the
Company as set forth in Exhibit A, attached to this Agreement and incorporated herein by reference.
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e. Employer options: Employee will be entitled to receive options to purchase 25,000
common units of RVEP with an exercise price equal to the closing price of
RVEP units on the date of the grant. Such options shall expire five years from the date of the
grant and shall vest ratably for each month over a period of twenty-four months. The options will
be exercisable only during the end of a calendar quarter. If termination of Employee’s employment
occurs for any reason, all of Employee’s vested options shall expire on that date which is six
months from the Separation Date (defined herein). Employee shall not be entitled to any additional
vesting of options beyond the Separation Date. The common units acquired through the exercise of
the option will be restricted as provided for under regulations of the Securities and Exchange
Commission. RVEP is under no obligation to register the underlying common units.
5. Limited Restrictive Covenants. For and in consideration of Employee’s continued
employment, compensation, employee benefits and other good and valuable consideration, the
adequacy, sufficiency and receipt of which is hereby acknowledged, and intending to be legally
bound, the Employee agrees to the following:
a. Confidentiality of Employer’s Business Records and Information: The Parties
acknowledge that in the course of performing the duties of the Job Description and due to
Employee’s previous employment with the Employer, Employee has had and will have frequent contact
with Employer’s existing and prospective customers and will have or will develop familiarity with
Employer’s methods of operation, including, but not limited to: (i) the Employer’s methods of
estimating the cost of Employer’s products and services, (ii) the specifications for Employer’s
products and services, and/or (iii) the Employer’s techniques of promoting, selling, and supplying
its services to its customers (“Employer’s Business Practices”). The Employer’s Business
Practices, all records, whether original, duplicated, computerized, electronic, memorized,
handwritten or in any other form, and all information contained therein, including names,
addresses, phone numbers, and account and financial information of any customer, client, customer
lead or prospect, any person or entity to whom or to which the Employer provided services, or any
person or entity to whom or to which the Employer submitted or made a bid, proposal, or offer of
sale for the purpose of providing services (“Customer”), exclusive of information that is generally
available to the public, are confidential and are the sole and exclusive property of the Employer
(collectively, “Confidential Information”).
Employee hereby acknowledges and recognizes that the Confidential Information is the exclusive
property of the Employer, and that the use or disclosure of such information, whether confidential
or otherwise, to any person or entity will irreparably injure the Employer’s business interests.
Employee agrees not to use Confidential Information or remove any such information or records from
the Employer’s office except for the sole purpose of conducting the Employer’s Business on behalf
of the Employer. Except as required by order of a court or other tribunal, or as permitted by the
written consent of the Employer, Employee agrees not to use Confidential Information for Employee’s
benefit or for the benefit of any other entity, or disclose Confidential Information to any person
or entity outside the Company. Specifically, Employee agrees not to divulge or disclose this
information or records to any third party and under no circumstances will reveal or permit this
information or these records to become known by any competitor of Employer either during Employee’s
employment or at any time thereafter.
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b. Limited Non-Competition: During Employee’s employment and for a period of eighteen
(18) months following the Separation Date, defined herein (or from the date of entry by a court of
competent jurisdiction of a final judgment enforcing the covenant, whichever is later), Employee
agrees that he shall not, within the following States — Virginia, North Carolina, South Carolina,
Georgia, Florida, West Virginia, Tennessee, Kentucky, Maryland, Pennsylvania, or any territory in
which Employer is performing services (hereinafter collectively “Market Territory”), serve in any
capacity for a Competing Business, defined herein, where Employee’s services or duties would be
similar, comparable or akin to those duties listed in the Job Description set forth above. The
“Separation Date” shall be the last day of Employee’s employment with Employer without regard to
the reasons for cessation of employment. A “Competing Business” shall be an individual or entity
that (a) engages in liquid bulk storage, railcar transloading of bulk liquids and/or transportation
of bulk liquids; and (b) directly competes with the Employer’s Business within the Market
Territory.
Notwithstanding the foregoing restrictions, the Parties agree that the Employee may work for,
provide services to, or own: (a) a Competing Business that conducts no business within the Market
Territory; or (b) a Competing Business where the work or services performed by Employee are
different from or dissimilar to the work or services that the Employee provided to Employer.
c. Limited Non-Solicitation of Customers: During Employee’s employment and for a
period of eighteen (18) months following the Separation Date (or from the date of entry by a court
of competent jurisdiction of a final judgment enforcing the covenant, whichever is later), Employee
agrees that he will not, on behalf of or in conjunction with a Competing Business, solicit or
attempt to induce or persuade any Customer to whom Employer provided services, or whose name became
known to Employee while employed by Employer, to (a) reduce or discontinue its or their business
with or patronage of Employer; or (b) purchase or acquire from a Competing Business the same or
similar products or services as were sold or provided by the Employer.
d. Limited Non-Solicitation of Employees. During Employee’s employment and for a
period of eighteen (18) months following the Separation Date (or from the date of entry by a court
of competent jurisdiction of a final judgment enforcing the covenant, whichever is later), Employee
agrees that he will not, on his own behalf, or on the behalf of or in conjunction with any other
person or entity, solicit for hire or assist others in the solicitation or hiring of any employee
of the Employer for work in a Competing Business. This includes, but is not limited to: (i)
providing a Competing Business the identities of any of the Employer’s employees; or (ii) assisting
any of the Employer’s employees in obtaining employment with a Competing Business through the
dissemination of resumes or otherwise.
6. Remedies
(a) Injunctive Relief. In the event Employee breaches any of the covenants of
Paragraph 5 above, Employee agrees that Employer will be entitled to injunctive relief. Employee
recognizes that Employer will suffer immediate and irreparable harm, and that money damages will
not be adequate to compensate Employer or to preserve or protect the
status quo. Accordingly, EMPLOYEE CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY
INJUNCTION OR PERMANENT INJUNCTION ordering:
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(i) That Employee immediately return to Employer all records whether original,
duplicated, computerized, electronic, handwritten, or in any other form whatsoever, and that
Employee be enjoined and restrained from using or disclosing any information contained in
such records; and
(ii) That for a period of eighteen (18) months, Employee be enjoined and restrained
from violating the non-competition provisions of Paragraph 5(b) of this Agreement;
(iii) That for a period of eighteen (18) months, Employee be enjoined and restrained
from violating the non-solicitation of Customer provisions of Paragraph 5(c) of this
Agreement; and
(iv) That for a period of eighteen (18) months, Employee be enjoined and restrained
from violating the non-solicitation of employees provisions of Section 5(d) of this
Agreement.
Employee agrees to submit to the personal jurisdiction of the Circuit Court of the County of
Henrico, Virginia, or the United District Court for the Eastern District of Virginia, Richmond
Division, for purposes of the injunctive relief described herein and any proceedings by Employer to
compel Employee’s participation in an arbitration of disputes under this Agreement.
7. Employee’s Representations. The Employee represents and warrants that: (i) as of
the commencement of the Employee’s employment, he is not and will not be subject to any covenants
or contracts that impair, restrict, or limit his ability to perform his duties under this Agreement;
and (ii) there are no physical or mental limitations that would impair, restrict, or limit his
ability to carry out Employee’s duties under this Agreement.
8. Assignment; Binding Effect. This Agreement is personal as to the Employee and
shall not be assignable by him. The Employer may assign its rights under this Agreement to any
person, firm, corporation, or other entity which may acquire all, or substantially all, of the
business which is now or hereafter conducted by the Employer or which may acquire substantially all
of the assets of the Employer, or with or into which the Employer may be consolidated or merged,
provided, that any such assignment shall be subject to the express terms and conditions hereof.
This Agreement shall be binding upon and shall inure to the benefit of the respective Parties
hereto and their heirs, executors, personal representatives and successors.
9. Severance Benefit. If the Employer terminates Employee’s employment without “Good
Cause” as defined below, Employer will pay the Employee’s an amount equal to $210,000 less the
amount of Base Salary received from the Effective Date. Employee will not be entitled to any other
payments except any amounts owing on accrued and unpaid commissions and accrued and unpaid expense
reimbursements through the date of termination. All of
Employee’s vested options shall expire on that date which is six months from the Separation Date.
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For purposes of this Agreement, termination for “Good Cause” shall mean a termination of
Employee’s employment by Employer due to Employee’s failure to follow directives provided by his
superiors, Employee’s material breach of his obligations under this Agreement, breach of a material
fiduciary duty owed to the Employer, fraud, theft, embezzlement, misappropriation of Employer
funds, abuse of controlled substances (including alcohol) that materially impairs Employee’s
ability to perform his duties and responsibilities hereunder, conviction of a felony, forgery or
the knowing falsification of documents, unauthorized use or disclosure of Confidential Information
and/or misconduct by Employee that is materially injurious to the Employer.
If the Employee resigns, is terminated for Good Cause, as defined above, becomes disabled and
is unable to perform the essential functions of his job, or dies, Employee will be entitled to none
of the payments discussed in this section.
The amounts payable pursuant to this section, if any, shall be paid such that the payments do
not constitute a nonqualified deferred compensation plan under Section 409A of the Internal Revenue
Code (the “Code”). Accordingly, neither the Employer nor the Employee may accelerate the payment
of the amounts as set forth above, except as specifically permitted pursuant to Code Section
409A.
10. Miscellaneous.
a. Governing Law. This Agreement shall in all respects be governed by, and construed
in accordance with, the laws of the Commonwealth of Virginia without reference to its conflicts of
law principals.
b. Integration; Modification of Agreement. This instrument constitutes the entire
agreement of the Parties hereto with respect to the subject matter herein. No provisions of this
Agreement may be amended, modified, or discharged, unless such amendment, modification, or
discharge has been approved by the Parties and agreed to in writing and signed by the Parties.
c. Severability. Each section and subsection of this Agreement constitutes a separate
and distinct provision hereof. It is the intent of the Parties hereto that the provisions of this
Agreement be enforced to the fullest extent permissible under the laws and public policies
applicable. Accordingly, if any provision of this Agreement shall be adjudicated to be invalid,
ineffective, or unenforceable, the remaining provisions shall not be affected thereby.
d. Waiver. No waiver by either Party of a right or remedy hereunder shall be deemed
to be a waiver of any other right or remedy or of any subsequent right or remedy of the same kind.
No such waiver shall be enforceable unless expressed in a written instrument executed by the Party
against whom enforcement is sought.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as follows:
| Employer: Regional Enterprises, Inc. |
||||
Date: July 27, 2007
|
By: | /s/ Xxx X. Xxxxxxxx | ||
| Xxx X. Xxxxxxxx | ||||
| President and Chief Executive Officer | ||||
| Employee: | ||||
| Date: July 27, 2007 | /s/ W. Xxxx Xxxxxx, III | |||
| W. Xxxx Xxxxxx, III | ||||
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EXHIBIT A
COMMISSION SCHEDULE
| Revenue | ||||
| Commission | ||||
| REVENUES (a), (b, (c)) | Rate | |||
$ 0 - $7,100,000 |
0.0 | % | ||
$ > 7,100,000 < $10,000,000 |
1.0 | % | ||
$ > 10,000,001 < $15,000,000 |
1.5 | % | ||
| (a) | Commodity based revenues will be adjusted to net profits (revenues less related
commodity costs) |
|
| (b) | Only includes operating revenues related to liquid bulk storage, railcar transloading
and transportation of bulk liquids, including hazardous, non-hazardous and food grade
products. |
|
| (c) | Increased commission rates apply to incremental revenues only. |
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