EMPLOYMENT AGREEMENT
Exhibit 10.40
EMPLOYMENT AGREEMENT made and entered into as of the 13th day of April, 2007 by and
between ENERGY WEST, INCORPORATED (the “Company”), a Montana corporation, and XXXXX X. XXXXXXX
(the “Executive”);
WHEREAS, the Company desires to secure the employment of the Executive as a Vice
President;
WHEREAS, the Executive is willing to commit himself to be employed by the Company on the terms
and conditions herein set forth and thus to forego opportunities elsewhere;
WHEREAS, the Executive (i) has represented and warranted to the Company that he is not bound
by any agreement which precludes him from either entering into this Agreement or performing the
duties and services described in this Agreement and (ii) acknowledges that such representation and
warranty is a material term and condition of this Agreement; and
WHEREAS, the parties desire to enter into this Agreement, as of the Effective Date, as
hereinafter defined, setting forth the terms and conditions for the employment relationship of the
Executive with the Company during the Employment Period (as hereinafter defined).
NOW, THEREFORE, IN CONSIDERATION of the premises, and the covenants and agreements set
forth below, it is hereby agreed as follows:
1. Employment and Term.
(a) Employment. The Company agrees to employ the Executive, and the Executive agrees
to be employed by the Company, in accordance with the terms and provisions of this Agreement during
the term hereof (as described below).
(b) Term. The term of this Agreement shall commence as of May 18, 2007 or such earlier
date as the parties shall mutually agree in writing (the “Effective Date”) and shall continue until
terminated in accordance with Section 4 hereof (the “Employment Period”).
2. Duties and Powers of Executive.
(a) Position, Location. The Executive shall serve as a Vice President of the Company
and shall report to the President and Chief Executive Officer of the Company. The Executive shall
perform such duties and services appertaining to such position as reasonably directed by the
President and Chief Executive Officer and commensurate with the duties and authority of officers
holding comparable positions in similar businesses of similar size in the United States. The
Executive shall use his reasonable best efforts to carry out such responsibilities faithfully and
efficiently. The Executive’s services shall initially primarily involve the management of the
Company’s operations in North Carolina and Maine.
(b) Attention. During the Employment Period, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive shall devote substantially all of his
business time, energy and best efforts to the business and affairs of the
Company. The Executive may not engage, directly or indirectly, in any other business, investment or
activity that interferes with the Executive’s performance of his duties hereunder, is contrary to
the interests of the Company, or requires any significant portion of the Executive’s business time.
It shall not be considered a violation of the foregoing for the Executive to serve on corporate,
industry, civic or charitable boards or committees, so long as such activities do not materially
interfere with the performance of the Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. Following the first anniversary of the Effective Date, the
Executive may serve on the board of directors of up to one non-competing for-profit businesses
which does not materially interfere with his duties hereunder.
3. Compensation. The Executive shall receive the following compensation for
his services hereunder to the Company:
(a) Salary and Bonus. The Executive’s initial annual base salary (the “Annual Base
Salary”), payable in accordance with the Company’s general payroll practices, in effect from time
to time, shall be at the annual rate of $130,000. The Board shall review such base salary at least
annually and may from time to time direct such upward adjustments in Annual Base Salary as the
Board deems to be necessary or desirable, including, without limitation, adjustments in order to
reflect surveys of compensation for comparable positions at other companies. The Annual Base Salary
shall not be reduced after any increase thereof. Any increase in the Annual Base Salary shall not
serve to limit or reduce any other obligation of the Company under this Agreement. During each
calendar year during the Employment Period, the Executive shall be eligible to receive a
discretionary bonus targeted at twenty percent (20%) of his Annual Base Salary. The discretionary
bonus shall be based on performance criteria determined by the Company, which may include, but not
be limited to, revenue and customer additions in the North Carolina and Maine
operations areas.
(b) Retirement and Welfare Benefit Plans. During the Employment Period and so long as
the Executive is employed by the Company, he shall be eligible (subject to any generally applicable
waiting periods) to participate in all other savings, retirement and welfare plans, practices,
policies and programs applicable generally to employees and/or senior executive officers of the
Company in accordance with the terms of such plans. The Company reserves the right to modify,
eliminate or add to its retirement and welfare benefit plans, practices and policies at any time in
its sole discretion.
(c) Options. During the Employment Period, the Executive shall be eligible to receive
grants of stock options under the Company’s then existing stock option plan(s) under such terms and
conditions as determined by the Board of Directors of the Company (the “Board”) acting in its sole
discretion.
(d) Expenses. The Company shall reimburse the Executive for all expenses, including
those for travel and entertainment, properly incurred by him in the performance of his duties
hereunder, subject to any reasonable policies established from time to time by the Board.
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(e) Fringe Benefits. During the Employment Period and so long as the Executive is
employed by the Company, he shall be entitled to receive vacation and fringe benefits in accordance
with the plans, practices, programs and policies of the Company from time to time in
effect, commensurate with his position; provided, however, the Company reserves the right to
modify, eliminate or add to its fringe benefits at any time in its sole discretion. It is agreed
and understood that within six months of the Effective Date, the Executive shall relocate his
primary residence within the Company’s North Carolina service territory or within a thirty-five
mile radius of that service territory. In addition, the Company shall reimburse the Executive for
his moving expenses actually incurred during the first six (6) months of the Employment Period up
to a maximum of $20,000. The Executive shall be required to provide documentation of such moving
expenses in a form reasonably satisfactory to the Company. The Executive shall also be eligible for
reimbursement of reasonable temporary housing expenses for up to ninety (90) days and reasonable
expenses related to two (2) house hunting trips to the North Carolina operations area involving
another adult.
4. Termination of Employment.
(a) Death. The Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period.
(b) Disability. The Executive shall be relieved of his position as a Vice President of
the Company automatically upon the Executive being unable to perform the material duties of his
position due to physical or mental illness or injury for a period of 60 consecutive days, or for 90
days within any one-year time period and his employment shall terminate automatically 120 days
after the date that he is relieved of his position.
(c) By the Company for Cause. The Company may terminate the Executive’s employment
during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean (i)
conduct which is a material breach of this Agreement and is not cured within 30 days after written
notice to Executive or willfully repeated thereafter, (ii) conduct which is a material violation of
Company policies; (iii) willful failure to perform substantially all of Executive’s duties as
lawfully delineated by the President and Chief Executive Officer;
(iv) conduct that constitutes fraud, gross negligence of willful misconduct; or (v) the Executive
is convicted of, or enters a plea of guilty or no contest to, any felony or other criminal offense
involving moral turpitude.
(d) By the Company Without Cause. During the term of this Agreement, the Company, by
action of the President and Chief Executive Officer, may terminate the Executive’s employment for
any reason other than for Cause during the Employment Period upon 30 days’ advance written notice.
(e) By the Executive. The Executive may terminate his employment during the Employment
Period, either with Good Reason, or without Good Reason upon 30 days’ advance written notice to the
Board. For purposes of this Agreement, “Good Reason” shall mean:
(i) Without the prior consent of the Executive: any diminution in
title; any material diminution in the Executive’s duties or authority; assignment
of duties materially inconsistent with the Executive’s duties; any change resulting
in Executive’s being required to report internally to a person other than the
President and Chief Executive Officer; any requirement imposed by the Company that
the
Executive relocate his principal residence once the Executive has relocated to the
North Carolina area; or
(ii) Any material breach by the Company of this Agreement not cured within
thirty days after written notice to the Company.
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5. Obligations of the Company Upon Termination.
(a) Obligations Upon Termination for any Reason. If, during the Employment Period, the
Executive’s employment shall terminate for any reason (termination in any such case being referred
to as a “Termination”), the Company shall pay to the Executive a lump sum amount in cash equal to
the sum of (A) the Executive’s salary at the rate of the Annual Base Salary earned through the date
of Termination to the extent not theretofore paid, provided that in the case of termination because
of the Executive’s disability, the Executive shall be entitled only to the amount provided in the
Company’s sick leave policy, (B) accrued but unpaid vacation pay. In addition, the Company shall
provide benefit continuation or conversion rights (including COBRA) as provided under Company
benefit plans and vested benefits under Company benefit plans. The amounts specified in this
Section 5(a)(A) and (B) shall be paid within 30 days after the date of Termination.
(b) Obligations Upon Termination with Good Reason or Without Cause. In the
event of Termination by the Executive with Good Reason or by the Company without Cause, in addition
to the amounts and benefits set out in Section 5(a), the Company shall pay to the Executive as
separation benefits (A) Annual Base Salary payable monthly for twelve months following the date of
Termination, medical benefits at active employee contribution rates for the Executive and his
eligible dependents for twelve months following the Termination Date, and up to $10,000 for
outplacement services by an outplacement firm selected by the Executive and reasonably approved by
the Company, and (B) if the Termination occurs within twenty-four (24) months of the Effective
Date, the Company shall reimburse Executive for his moving expenses actually incurred during the
six (6) month period following the Termination up to a maximum of $20,000. The Executive shall be
required to provide documentation of such moving expenses in a form reasonably satisfactory to the
Company.
The payment of separation benefits under this Agreement is expressly conditioned upon receipt
by the Company of an enforceable waiver and release from the Executive in a form
reasonably satisfactory to the Company.
(c) Stock Incentive Awards. No grants or awards of nonqualified stock options or
restricted stock will be made to the Executive on or after the date the notice of Termination is
given.
(d) Suspension. The Company may, in its sole discretion, suspend the Executive with or
without pay for any act or omission that may otherwise constitute a basis for termination of this
Agreement by the Company, or that is otherwise in violation of the Company’s policies, practices,
procedures, rules or regulations and/or this Agreement. Such suspension may be in lieu of
termination or as an interim action pending a final decision by the Company as to whether
termination of the Executive’s employment is appropriate.
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(e) Payments in the Event of Application of An Excise Tax. In the event that any
payments under this Agreement or any other compensation, benefit or other amount from the Company
for the benefit of the Executive are subject to the tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the “Code”) (including any applicable interest and penalties, the
“Excise Tax”), the payments provided for under this Agreement shall be reduced (except for required
tax withholdings) to an amount that is $1.00 less than the amount that would trigger such Excise
Tax.
(f) Timing of Payments. In the event that at the time that Executive’s date of
termination from Company employment occurs the Company is publicly traded (as defined in Section
409A of the Internal Revenue Code), any amounts payable under Section 5(b) that would otherwise be
considered deferred compensation subject to the additional twenty percent (20%) tax imposed by
Section 409A if paid within six (6) months following the date of termination of Company employment
shall commence being paid at the later of the time otherwise provided in Section 5(b) or the time
period that will prevent such amounts from being considered deferred compensation. Any amounts that
would have otherwise been paid during such time period shall be accumulated and paid in a single
lump sum payment without interest upon the expiration of such time period that will prevent such
amounts from being considered deferred compensation.
6. Nonexclusivity of Rights. Except as provided in Section 5(d) and the last sentence
of this Section 6, nothing in this Agreement shall prevent or limit the Executive’s continuing or
future participation in any benefit, plan, program, policy or practice provided by the Company and
for which the Executive may qualify (except with respect to any benefit to which the Executive has
waived his rights in writing), nor, except as provided in Sections 5(d) and 12(g), shall anything
herein limit or otherwise affect such rights as the Executive may have under any other contract or
agreement entered into after the Effective Date with the Company. Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any benefit, plan, policy, practice
or program of, or any contract or agreement entered into with, the Company shall be payable in
accordance with such benefit, plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement. Notwithstanding the foregoing, the benefits payable upon
Termination hereunder shall be in lieu of any severance pay or separation benefits under any other
severance plan, policy or practice of the Company, including the Company’s Change in Control
Severance Plan.
7. Full Settlement; Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts (including amounts
for damages for breach) payable to the Executive under any of the provisions of this Agreement and,
except as provided in Section 5(a), such amounts shall not be reduced whether or not the Executive
obtains other employment.
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8. Confidential Information. The Executive agrees not to disclose during the
Employment Period or thereafter any of the Company’s confidential or trade secret information,
except as required by law. The Executive recognizes that the Executive shall be employed in a
sensitive position in which, as a result of a relationship of trust and confidence, the Executive
will have access to trade secrets and other highly confidential and sensitive information. The
Executive further recognizes that the knowledge and information acquired by the Executive
concerning the Company’s materials regarding employer/employee contracts, customers, pricing
schedules, advertising and interviewing techniques, manuals, systems, procedures and forms
represent the most vital part of the Company’s business and constitute by their very nature, trade
secrets and confidential knowledge and information. The Executive hereby stipulates and agrees that
all such information and materials shall be considered trade secrets and confidential information.
If it is at any time determined that any of the information or materials identified in this
paragraph 8 are, in whole or in part, not entitled to protection as trade secrets, they shall
nevertheless be considered and treated as confidential information in the same manner as trade
secrets, to the maximum extent permitted by law. The Executive further agrees that all such trade
secrets or other confidential information, and any copy, extract or summary thereof, whether
originated or prepared by or for the Executive or otherwise coming into the Executive’s knowledge,
possession, custody, or control, shall be and remain the exclusive property of the Company.
9. Conflict of Interest. The Executive acknowledges and agrees that he owes a
fiduciary duty of loyalty, fidelity and allegiance to act at all times in the best interests of the
Company and to do no act which would injure the Company’s business, its interests or its
reputation. It is agreed that any direct or indirect interest in, connection with, or benefit from
any outside activities, particularly commercial activities, which interest might in any way
adversely affect the Company or any of its affiliates, involves a possible conflict of interest. In
keeping with the Executive’s fiduciary duty to the Company, the Executive agrees that he shall not
knowingly become involved in a conflict of interest with the Company affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover, the Executive agrees that he shall disclose
to the Board any facts which might involve such a conflict of interest that has not been approved
by the Board. The Executive and the Company recognize that it is impossible to provide an
exhaustive list of actions or interests which constitute a conflict of interest. Moreover, the
Executive and the Company recognize there are many borderline situations. In some instances, full
disclosure of facts by the Executive to the Board may be all that is necessary to enable the
Executive, the Company or its affiliates to protect its interests. In others, if no improper
motivation appears to exist and the interests of the Company or its affiliates have not suffered,
prompt elimination of the outside interest will suffice. In still others, it may be necessary for
the Company to terminate the employment relationship. The Company and the Executive agree that the
Company’s determination as to whether a conflict of interest exists shall be conclusive. The
Company reserves the right to take such action as, in its judgment, will end the conflict.
10. Nonsolicitation. During the period of his business affiliation with, or
employment by, the Company and for a period of two years after the Executive’s termination of
employment for any reason whatsoever, the Executive will not directly or indirectly, individually
or as a consultant to, or as employee, officer, director, stockholder, partner or other owner or
participant in any business entity other than the Company, solicit or endeavor to entice away from
the Company, or otherwise materially interfere with the business relationship of the Company with,
(i) any person who is, or was within the 12-month period immediately prior to the termination of
the Executive’s business affiliation with or employment by the Company, employed by or associated
with the Company or (ii) any person or entity who is, or was within the 12-month period immediately
prior to the termination of the Executive’s business affiliation
with or employment by the Company, a customer or client of the Company.
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11. Successors.
(a) Assignment by Executive. This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the Executive otherwise than by
will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s legal representatives. Without the prior written consent of the
Executive, no assignment of this Agreement by the Company or any successor of the Company shall
relieve the assignor of its financial responsibility for performance of the Company’s obligations
hereunder.
(b) Successors and Assigns of Company. This Agreement shall inure to the benefit
of and be binding upon the Company, its successors and assigns.
12. Miscellaneous.
(a) Remedies. The Company and the Executive agree that if a dispute arises out of or
is related to this Agreement or Executive’s employment by the Company, such dispute shall, if not
earlier resolved by negotiations of the parties, be submitted to binding arbitration by a single
arbitrator under the American Arbitration Association National Rules for Resolution of Employment
Disputes in Great Falls, Montana, or the equivalent. Either party may provide written notice to the
other party that the dispute is not able to be resolved by negotiation and such notifying party
shall then contact the American Arbitration Association for appointment of an arbitrator to resolve
such dispute. Attorneys’ fees and costs shall be awarded to the prevailing party as determined by
the arbitrator.
(b) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Montana, without reference to its principles of conflict of laws. The
captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
This Agreement may not be amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whose enforcement of such amendment, modification,
repeal, waiver, extension or discharge is sought. No person, other than pursuant to a resolution of
the Board or a committee thereof, shall have authority on behalf of the Company to agree to amend,
modify, repeal, waive, extend or discharge any provision of this Agreement or anything in reference
thereto.
(c) Notices. All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified mail,
return-receipt requested, postage prepaid, addressed, in either case, at the Company’s headquarters
or to such other address as either party shall have furnished to the other in writing in
accordance herewith. Notices and communications shall be effective when actually received by the
addressee.
(d) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other provision of
this Agreement.
(e) Withholding. The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
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(f) No Waiver. The Executive’s or the Company’s failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including, without limitation,
the right of the Executive to terminate employment for Good Reason pursuant to Section 4(e) of this
Agreement, or the right of the Company to terminate the Executive’s employment for Cause pursuant
to Section 4(b) of this Agreement shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(g) Entire Agreement. This instrument contains the entire agreement of the Executive,
the Company or any predecessor or subsidiary thereof with respect to the subject matter hereof, and
may be modified only by a writing signed by the parties hereto. All promises, representations,
understandings, arrangements and prior agreements, are merged herein and superseded hereby. Any
agreement with regard to severance benefits entered into after the Effective Date shall be
effective only if it expressly references this Agreement.
In the event of any difference between the terms of this Agreement and the terms of any
Company benefit, option or other plan or policy, the terms of this Agreement shall control, unless
such terms violate applicable law, or would require shareholder approval or would cause the Company
to be in material breach of its obligations under such other benefit, option or other plan or
policy. The Company shall not amend any benefit, option or other plan or policy in a manner that
would cause the agreements set forth herein to be nullified, provided that nothing herein shall
limit the Company’s discretion in establishing, maintaining and amending its generally applicable
welfare benefit programs such as health coverage.
(h) Indemnification. The Company shall indemnify the Executive pursuant to the
Company’s bylaws and the articles of incorporation. In addition, the Company shall maintain
directors and officers liability insurance coverage covering the Executive during the term of
employment and thereafter, so long as the Company elects to continue such coverage for its active
officers and directors.
(i) Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
(j) Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this Agreement is to be
construed by reference to the heading of any section or paragraph.
(k) Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
(l) Construction. The parties acknowledge that this Agreement is the result of
arm’s-length negotiations between sophisticated parties each afforded representation by legal
counsel. Each and every provision of this Agreement shall be construed as though both parties
participated equally in the drafting of same, and any rule of construction that a document shall be
construed against the drafting party shall not be applicable to this Agreement.
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IN WITNESS WHEREOF, the Executive and, pursuant to due authorization from its Board of
Directors, the Company have caused this Agreement to be executed as of the day and year first above
written.
| /s/ Xxxxx X. Xxxxxxx | ||||||
| Xxxxx X. Xxxxxxx | ||||||
| ENERGY WEST, INCORPORATED | ||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||
Title: President and Chief Executive Officer |
||||||
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