EMPLOYMENT AGREEMENT
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THIS AGREEMENT, effective this fourteenth day of March, 2001, is made by
and between XXXXXXXX X. XXXXXXX (the "Employee") and SOUTHERN STATES POWER
COMPANY, INC., a Delaware corporation and referred to for these purposes as "the
Company."
RECITALS
A. Company desires to employ Employee in an executive capacity to assume and
be responsible for duties as herein described below.
B. Employee accepts employment with the Company on the terms as provided
herein.
C. The purpose of this Employment Agreement is to set forth the terms and
conditions upon which Employee will be employed, and the compensation for
accepting such employment.
NOW THEREFORE, in consideration of the undertakings; the mutual promises
and covenants of the parties, and other good and valuable consideration hereby
acknowledged, the parties agree as follows:
1.1 EMPLOYMENT.
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The Company hereby employs Employee, and Employee hereby accepts such
employment, upon the terms and conditions hereinafter set forth.
2.1 TERM.
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Subject to the termination provisions contained in Section 8.1 below, this
Agreement shall commence on the date hereof and continue for a period of three
(3) years and thereafter until either party terminates it upon thirty (30) days
written Notice. Upon expiration of the initial term, and upon the anniversary
date of each additional term, this Agreement shall renew for an additional term
of three years until such time as it is terminated in accordance with the
provisions contained in Section 8.1, or either party gives Notice to the other
that the Agreement shall not be renewed.
3.1 RESPONSIBILITIES AND DUTIES.
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Employee shall serve the Company in such responsible executive and
administrative capacities as the Board of Directors of the Company may from time
to time determine. As of the date of execution of this Agreement, Employee is
hired and employed as the President and Chief Executive Officer of the Company.
While serving in such capacity, Employee shall serve the Company faithfully and
to the best of his/her ability, devoting such of his business, attention, skills
and energies to the discharge of the duties undertaken by him/her hereunder as
the Board of Directors, in the exercise of its fiduciary duties, shall deem
reasonable and appropriate.
4.1 COMPENSATION.
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For all services rendered by Employee under this Agreement, the Company agrees
to pay to Employee a salary equal to $90,000 per year, to be paid in
installments of $7,500 on the last day of each calendar month for the preceding
month. From time to time, the Board of Directors of the Company may review and
consider the role and contributions made by Employee to the Company, and
Employee's satisfactory performance and discharge of duties and responsibilities
commensurate with his/her position, and may, in its sole discretion, increase
the compensation agreed under the terms of this Agreement.
5.1 OTHER BENEFITS.
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In addition to the base compensation provided above, and during the term of this
Agreement only, Employee may, as determined by the Board of Directors, receive
additional benefits as compensation or perquisites commensurate with that
received by executives filling similar positions and roles in this and other
companies. Additionally, Employee may participate in any employee benefit plans
or similar programs of the Company; be considered for any additional executive
bonuses; be entitled to executive vacation privileges commensurate with rank and
position, and be entitled to reimbursement of reasonable business expenses, as
such is determined by the Board of Directors.
Included but not limited hereby, are reimbursement of medical insurance premiums
(providing the Company does not have an insurance program which it sponsors and
provides to Employees); furnishing of cell phone; providing Company gas credit
card for travel related to Company business, and grant of a car allowance in the
amount of $500 per month to pay for the upkeep and maintenance of the car to be
used for Company business purposes. Alternatively, if a company car is provided
for the Employee's use, the car allowance shall not be applicable.
Employee shall be entitled to take paid vacation leave of one month each year.
This leave may be taken in increments totally not more than one month each year.
Any holidays falling during the time leave is taken and accumulating shall not
be deducted from the total time granted. Additionally, Employee shall be
granted one day per month for a total of twelve days each year for sick leave,
including medical appointments and convalescence.
6.1 CONFIDENTIALITY AND DISCLOSURES.
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Employee recognizes and acknowledges that he will have access to certain
confidential information deemed proprietary to the Company, including, but not
limited to, the Company's customer lists, ideas, processes, inventions, devices
and other confidential information, and that such information constitutes
valuable, special and unique property of the Company. Notwithstanding the
provisions contained in Paragraph 2 above, Employee shall not, during or for two
(2) years after the term of his/her employment, disclose any of such
confidential information to any person or firm, corporation, association or
other entity for any reason or purpose whatsoever, unless it is communicated
within the scope and course of Employee's employment and normal communication
authorized by the Company.
7.1 RIGHTS TO INVENTIONS AND INTELLECTUAL PROPERTIES (IP).
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Unless otherwise agreed in writing, all work product, designs, prototypes,
inventions, correspondence, charts, test results, equipment, trade secrets,
marketing plans and strategies, and know how shall be considered to the
exclusive property of the Company, unless otherwise privileged by law. This
shall not include general knowledge which is included in the public domain.
Notwithstanding an inventors right to be acknowledged and listed with the U.S.
Patent Office for creation of a new product, or process, all such inventions and
ideas relating to the business of the Company shall be considered property of
the Company, and the Company shall have the right in its sole discretion to file
for patent, trademark or copyright protection. Upon departure from the Company,
Employee agrees to leave and/or return all documents, files, memoranda, data,
and any other information contained in writing or in Employee's computer.
8.1 TERMINATION.
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a) Death or Disability. In the event that Employee dies or becomes
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incapacitated for a period in excess of ninety (90) consecutive days during the
term of this Agreement, the Company shall pay to Employee, or to his executors
or administrators, an amount equal to his/her current salary at the time of
incapacity, for a period of six (6) months after he/she dies or becomes
incapacitated, and the company shall thereafter have no further liability to
Employee of his/her executors or administrators for salary under this Agreement.
In addition, the Company shall pay to Employee, or to his/her executors or
administrators, all amounts that Employee is entitled to under any bonus,
pension or disability plans of any nature.
b) Termination for Cause: Wrongful or Misconduct. In the event that
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Employee shall engage in willful misconduct or gross negligence concerning
matters pertaining to the Company, and which materially, adversely affect the
Company, or be convicted of a felony or breach of the provisions contained in
paragraphs 3.1 and 9.1 of this Agreement, the Company may terminate Employee's
employment hereunder, such termination to be effective upon the giving of
written Notice to the Employee by the Company, acting pursuant to a majority
vote of the Directors.
c) Discharge or Termination- Involuntary and Without Cause.
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In the event of wrongful termination, or termination without justifiable cause
for wrongful acts, misconduct or gross negligence towards the Company as
described in subparagraph b) above, and in consideration of the services
rendered and contributed by the Employee during and prior to this engagement of
employment, and the covenants herein, shall be entitled to receive, as
compensation and severance , and in addition to any other compensation or
benefits that may received by Employee, an amount equal to one month of current
salary/pay for each month the Employee has rendered any services to the Company
prior to the date of termination, not to exceed twenty-four (24) months. This
severance compensation may, at the company's option, be paid in cash at the time
of termination, or may be paid in equal monthly payments equal to Employee's
current monthly pay schedule at time of termination.
In addition to the severance pay provided above, Employee shall be entitled to
receive a one-time lump sum payment equal to three (3) months salary/pay at the
current rate at time of termination and severance from the company.
In the event that Employee's responsibilities, job title, compensation or
position are reduced by the Company for any reason whatsoever, Employee shall be
entitled to retain all benefits and compensation levels previously paid before
the date of reduction, and may, at Employees sole option, remain with the
Company under the terms of this Agreement, or alternatively, may treat the
reduction as involuntary termination without cause and resign from employment
the Company with all rights afforded under this paragraph for involuntary
termination without cause. Any refusal by Employee to move or relocate as a
condition of continued employment shall not be construed nor considered as
willful misconduct, nor shall such refusal be used to justify or constitute any
grounds for involuntary termination.
d) Termination - Voluntary.
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Employee, at its sole discretion and option, shall be entitled to terminate this
Agreement (other than the provisions contained in paragraphs 6.1, 9.1 & 12
herein) voluntarily upon thirty (30) days written notice to the Company. At
time of termination, Employee shall be entitled to all compensation and
reimbursement for expenses owed by the Company at that time. Termination,
whether voluntary or involuntary, shall not in any manner affect any outstanding
stock options in favor of Employee, or ownership of shares of stock in the
Company.
e) Reorganization, Merger, or Sale of Assets.
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This Agreement shall survive the reorganization, merger or sale of assets of the
Company, and shall not be defeated nor terminated due to the voluntary
dissolution, reorganization, merger acquisition or sale and transfer of assets
belonging to the company, or by any Change in Control in the composition of the
Board of Directors or Management of the Company, providing the primary and core
business of the Company continues in some manner with the resulting and
surviving company and new management of the surviving organization. If the core
business of the Company is not continued and resumed with such reorganization,
merger or change in control, such will be deemed to constitute termination
without cause hereunder and subject to the provisions of paragraph 8.1.
9.1 COVENANT NOT TO COMPETE.
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Unless otherwise agreed between the Company and Employee, and the provisions of
Section 2.1 notwithstanding, during the term of this Agreement and for a period
of one (1) year after the termination of this Agreement, Employee shall not,
within any county or similar area designation (should the term "county" not be
deemed appropriate) in which the Company is then engaged in business:
a) Directly or indirectly own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership, management,
operation or control of any business or enterprise which provides services or
produces products competitive, in any material respect, with the business,
services or products or the Company, or any proposed business, services or
products of the Company as of the date of termination of Employee's employment
by the Company;
b) for himself/herself or on behalf of any other person, partnership or
corporation, call upon any customers of the Company for the purpose of
soliciting, diverting or taking away any customer from the Company; or
c) take way, hire, employ or endeavor to employ any person who is an
employee of the Company as of the termination of this Agreement.
This covenant not to compete shall be unenforceable and of no effect in the
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event of involuntary termination for any reason whatsoever, or voluntary
termination and resignation due to reduction in job title, position or
responsibilities. Additionally, Company and Employee may agree to rescind or
otherwise modify this provision by mutual, written agreement.
This covenant not to compete as set forth in subparagraph a), b) or c) above
shall not be construed as preventing Employee from purchasing securities in any
corporation whose securities are publicly traded provided that such purchase
shall not result in his owning beneficially at any time five percent (5%) or
more of the equity securities of any corporation principally engaged in any
business competitive to that of the Company.
10.1 REMEDIES FOR BREACH.
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Both parties recognize that the services to be rendered under the Agreement are
special, unique and of an extraordinary character, and that in the event of a
breach or threatened breach by either party hereto of any obligations under this
Agreement, both parties acknowledge that the other party may not have an
adequate remedy at law, and shall be entitled to such equitable and injunctive
relief as may be available to restrain violations of the provisions of this
Agreement. Nothing contained in this paragraph shall be construed as
prohibiting the parties hereto from any other remedies available for such breach
or threatened breach, including the recovery of damages for such breach or
threatened breach.
11.1 EXPENSES.
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In connection with his/her employment, the Company will reimburse Employee for
its reasonable business expenses including travel expenses in connection
therewith.
12.1 NOTICES.
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Any notice required or permitted to be given under this Agreement shall be made
in writing, and shall be effective when mailed by registered or certified mail
as follows:
To the Company: Southern States Power Company, Inc.
0000 Xxxxxx Xxxxxx Xxxx., Xxx. 000
Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
To Employee: Xxxxxxxx X. Xxxxxxx
00 Xxxx Xxxxx Xx.
Xx Xxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
13.1 MISCELLANEOUS PROVISIONS.
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a. Legal. This Agreement shall be governed and construed in accordance with
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the laws of the State of California, which is the principal place of business
for the Company. The choice of jurisdiction shall be Riverside County. In the
event that either party shall bring an action to enforce any provision of this
Agreement, the prevailing party shall be entitled to reimbursement for all
reasonable legal fees and costs which are incurred in prosecuting or defending
its claim.
b. Modifications. This Agreement represents the entire agreement and
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understanding between the parties with respect to employment of Employee, and
supercedes all prior agreements. This Agreement can only be modified or amended
by an agreement in writing signed by all parties.
c. Successors and Assigns. The rights and obligations of the Company under
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this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
d. Severability. All provisions and covenants contained herein are
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severable, and in the event any of them shall be held to be invalid by any court
of competent jurisdiction, this Agreement shall be interpreted as if such
invalid provision or covenant were not contained herein, and the remaining
provisions shall be enforceable.
e. Authorization. The Company represents that the signatory below is
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authorized to sign and execute this Agreement, and by this signature also
reflects and acknowledges that this Employment Agreement has been approved by
the Board of Directors of the Company at a meeting duly held for this and other
purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
SOUTHERN STATES POWER COMPANY:
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/s/ Xxxxxxxx X. XxXxx, III
By __________________________
ATTEST: Xxxxxxxx X. XxXxx III
Executive Vice-President
Date: _________________________
__________________
Xxxx Xxxxxx /s/ Xxxxxxxx X. Xxxxxxx
EMPLOYEE: _______________________
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Xxxxxxxx X. Xxxxxxx
Date: _________________________
