PREMIER POWER RENEWABLE ENERGY, INC. a Delaware corporation EMPLOYMENT AGREEMENT
a
Delaware corporation
This
EMPLOYMENT AGREEMENT (this “Agreement”) is
entered into by and between PREMIER POWER RENEWABLE ENERGY, INC., a Delaware
corporation (“Company”) and XXXX X.
XXXXX (“Executive”), and is
effective on the date of the last signature between the Company and Executive on
the signature page hereto (the “Effective
Date”).
RECITALS
WHEREAS,
the Company is a public corporation duly organized and existing under the laws
of the State of Delaware, principally engaged in the business of solar power and
renewable energy solutions.
WHEREAS,
the Executive serves as the Company’s President and Chief Executive
Officer.
WHEREAS,
the Executive entered into an employment agreement on August 22, 2008 with
Premier Power Renewable Energy, Inc., a California corporation and the wholly
owned subsidiary of the Company (“Premier Power
California”), for his services as President and Chief Executive Officer
of Premier Power California (the “Premier Power California
Employment Agreement”).
WHEREAS,
the Company desires to adopt the Premier Power California Employment Agreement
by amending and restating its terms and conditions as more fully set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual premises and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effect of
Agreement. This Agreement supersedes and replaces, in its
entirety, the Premier Power California Employment Agreement. Upon
execution of this Agreement by both the Company and the Executive, the rights of
each of the Company and the Executive with respect to the deemed termination of
the Premier Power California Employment Agreement are hereby waived in all
respects, and the Premier Power California Employment Agreement shall be deemed
of no further force and effect.
2. Executive
Employment.
2.1 The
Company hereby retains the services of the Executive as its President and Chief
Executive Officer. In such capacity, the Executive shall be
responsible for managing and overseeing the day to day operations of the
Company. The Executive’s duties shall include, but not be limited to,
the following (the “Services”):
2.1.1 Maintain
the vision and direction of the Company.
2.1.2 Analyze
the financial budgetary structure of the Company and propose budgetary changes
and modifications.
2.1.3 Analyze
the marketing strategies of the Company.
2.1.4 Propose
any new and/or revised business strategies for the Company.
2.1.5 Manage
and oversee all the employees of the Company.
2.1.6 Assist
in obtaining long term financing and/or seeking potential strategic partners,
merger candidates, and or acquiring entities when it is deemed timely and
necessary by the Company’s Board of Directors.
2.1.7 Personally
maintain a presence and relationships with upper management of the Company’s
major clients and suppliers.
2.1.8 Oversee
the Company’s world wide operations.
2.1.9 Other
executive and managerial powers and duties with respect to the Company as may
reasonably be assigned to the Executive by the Company’s Board of Directors to
the extent consistent with the Executive’s position and status as set forth
above.
2.2 In
pursuit of the Services, the Executive shall report directly to the Company’s
Board of Directors.
2.3 The
Executive shall dedicate his full and exclusive time to the Company to enable
him to faithfully perform the Services. In connection herewith, the Executive
shall be required to travel nationally and internationally to perform the
Services. It is expressly understood, however, that the Company’s
principal offices located in El Dorado Hills, California shall be the
Executive’s base office.
3. Term. The term of this
Agreement shall commence on the Effective Date and shall terminate on August 21,
2013 (“Termination
Date”), subject to earlier termination under Section 6.
4. Compensation. In consideration for the
Services, the Executive shall be entitled to and shall receive the following
compensation:
4.1 Annual
Salary. The Executive’s annual salary shall be One Hundred
Eighty Thousand Dollars ($180,000) payable in bi-weekly payments, which salary
shall be reviewed on an annual basis.
4.2 Bonus.
4.2.1.
The
Executive shall be entitled to a bonus as follows:
4.2.1.1 Bonus
equal to one-half of one percent (0.5%) of the Company’s EBITDA for the fiscal
year for which such bonus, if any, is to be paid in excess of Two Hundred
Thousand Dollars ($200,000), if such fiscal year’s EBlTDA margin is less than
five percent (5%).
4.2.1.2 Bonus
equal to one and one-half percent (1.5%) of the Company’s EBITA for the fiscal
year for which such bonus, if any, is to be paid in excess of Two Hundred
Thousand Dollars ($200,000), if such fiscal year’s EBlTDA margin is equal to or
greater than five percent (5%).
4.2.1.3 For
purposes of this Section 4.2.1, “EBITDA” shall be the
Company’s fiscal year end earnings before interest, taxes, depreciation, and
amortization divided by the Company’s fiscal year end gross revenues utilizing
generally accepted accounting principles of the United States.
4.2.1.4 Any
payments made pursuant to this Section 4.2.1 with respect to a fiscal year shall
be reduced by the amount of any payments made pursuant to Section 4.2.4 to the
extent that a Change of Control (as defined in Section 4.2.4) occurred during
such fiscal year.
4.2.2 If
this Agreement and the services provided for herein are not terminated by either
party prior to:
4.2.2.1 December
31, 2010, then the Executive shall be entitled to a bonus of Fifty Thousand
Dollars ($50,000) in cash or shares of the Company’s common stock, at the sole
election of the Executive.
4.2.2.2 December
31, 2012, then the Executive shall be entitled to a bonus of Fifty Thousand
Dollars ($50,000) in cash or shares of the Company’s common stock, at the sole
election of the Executive.
4.2.3 Bonuses
shall be paid within ninety (90) days of the end of the Company’s fiscal
year.
4.2.4 The
Executive’s right to receive a bonus pursuant to Section 4.2.1 herein shall be
accelerated upon the occurrence of a Change of Control (defined herein) after
the date of this Agreement such that the bonus payable for the fiscal year
during which the Change of Control occurs (the “Event Year”) shall be
immediately due and payable upon the Change of Control event calculated as of
the first day of the Event Year and through the date of such Change of Control
event. A “Change of Control”
shall be deemed to have taken place if (i) a person or a group of persons
becomes the owner or beneficial owner of Company securities having 50% or more
of the combined voting power of the then outstanding securities of the Company,
or (ii) a person or group of persons directly or indirectly acquires all or
substantially all of the assets and business of the Company, or (iii) the
Company consummates a merger, consolidation, reorganization, or business
combination other than a merger, consolidation, reorganization, or business
combination that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or its parent company) more than 50% of the combined voting
power represented by the voting securities of the Company or such
surviving entity, or its parent company, outstanding immediately after such
merger, consolidation, reorganization, or business combination.
4.3 Stock
Options. The Executive shall have the right to participate in
the Company’s 2008 Equity Incentive Plan (the “Plan”) for grants of
stock options under the Plan exercisable for an aggregate 46,312 shares of
common stock of the Company, issuable during the term of this Agreement at the
sole discretion of the Company’s Board of Directors or such other person or
committee who is the administrator of the Plan.
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4.4
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Other
Compensation; Miscellaneous
Provisions.
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4.4.1 The
Executive shall receive a car allowance of up to Seven Hundred Dollars ($700.00)
per month for the lease or purchase of an automobile, plus a charge card for
gasoline expenses for such automobile that is paid for by the
Company.
4.4.2 The
Executive shall be reimbursed for reasonable expenses incurred in the execution
of the Services.
4.4.3 The
Executive shall be entitled to vacation time in accordance with the Company’s
employee handbook. Such vacation time shall not, however, be less
than ten (10) days paid vacation after the first full year of employment
hereunder (together with the Executive’s period of employment under the Premier
Power California Employment Agreement) plus any vacation time that has accrued
as of the Effective Date.
4.4.4 The
Executive shall be entitled to medical and dental benefits for himself and his
immediate family members.
5. Confidential
Information; Non-Disclosure. In connection with performing the
Services, the Executive hereby represents and agrees as follows:
5.1. Definition. For
purposes of this Agreement, the term “Confidential
Information” means:
5.1.1 Any
information that the Company possesses that has been created, discovered, or
developed by or for the Company, and that has or could have commercial value or
utility in the business in which the Company is engaged; or
5.1.2 Any
information that is related to the business of the Company and is generally not
known by non-Company personnel.
5.1.3 By
way of illustration, but not limitation, Confidential Information includes trade
secrets and any information concerning products, processes, formulas, designs,
inventions (whether or not patentable or registrable under copyright or similar
laws, and whether or not reduced to practice), discoveries, concepts, ideas,
improvements, techniques, methods, research, development and test results,
specifications, data, know-how, software, formats, marketing plans, and
analyses, business plans and analyses, strategies, forecasts, customer and
supplier identities, characteristics, and agreements.
5.2 Exclusions. Notwithstanding
the foregoing, the term Confidential Information shall not include:
5.2.1 Any
information that becomes generally available to the public other than as a
result of a breach of the confidentiality portions of this Agreement, or any
other agreement requiring confidentiality between the Company and
you;
5.2.2 Information
received from a third party in rightful possession of such information who is
not restricted from disclosing such information;
5.2.3 Information
known by you prior to receipt of such information from the Company, which prior
knowledge can be documented; or
5.2.4 Information
that is disclosed to an order or requirement of a court, government
administrative agency, or other governmental body.
5.3 Documents. The
Executive agrees that, without the express written consent of the Company, he
will not remove from the Company's premises, any notes, formulas, programs,
data, records, machines, or any other documents or items that in any manner
contain or constitute Confidential Information, nor will the Executive make
reproductions or copies of same. In the event the Executive receives
any such documents or items by personal delivery from any duly designated or
authorized personnel of the Company, the Executive shall be deemed to have
received the express written consent of the Company. In the event
that the Executive receives any such documents or items, other than through
personal delivery as described in the preceding sentence, the Executive agrees
to inform the Company promptly of his possession of such documents or
items. The Executive shall promptly return any such documents or
items, along with any reproductions or copies to the Company upon the Company's
demand, upon termination of this Agreement, or upon his termination or
resignation pursuant to Section 6.
5.4 No
Disclosure. The Executive agrees that he will hold in trust
and confidence all Confidential Information and will not disclose to others,
directly or indirectly, any Confidential Information or anything relating to
such information without the prior written consent of the Company, except as may
be necessary in the course of performing the Services. The Executive
further agrees that he will not use any Confidential Information without the
prior written consent of the Company, except as may be necessary in the course
of performing the Services, and that the provisions of this Section 5.4 shall
survive termination of this Agreement.
6. Termination.
6.1 Termination
by the Company.
6.1.1. Without
Cause. The Company may terminate the Executive “without cause”
at any time by providing two (2) weeks’ written notice to the
Executive. In the event of termination by the Company without cause
prior to December 31, 2010, the Executive shall receive a severance payment
equal to one (1) year of the Executive’s annual salary as set forth in Section
4.1. In the event of termination by the Company without cause on or
after December 31, 2010 but prior to the Termination Date, the Executive shall
receive a severance payment equal to one-half (1/2) of one (1) year of the
Executive’s annual salary as set forth in Section 4.1.
6.1.2. With
Cause. The Company may terminate the Executive “for cause” at
any time without prior written notice. “For Cause” shall be
defined as any of the following acts of the Executive:
6.1.1.1. Conducting
and/or participating in any transaction that is a violation of any governmental
rules, regulation, ordinance, and/or law, (unless specifically instructed to do
so by the Board of Directors).
6.1.1.2. Conducting
any deal and/or transaction that might be deemed a breach of the fiduciary
relationship owed to the Company by the Executive as a result of his employment
hereunder.
6.1.1.3. Any
material breach of the terms and conditions of this Agreement.
6.1.1.4. Any
disability that prevents the Executive from rendering the Services for a period
of 180 consecutive days and/or a total of 60 days over any six (6) month
period.
6.2. Termination
by the Executive. The Executive may terminate this Agreement
at any time. In the event of such termination by the Executive, the
Executive agrees not to enter into any business that competes directly with the
Company for a period of three (3) years from such termination.
7. Miscellaneous
Provisions.
7.1. The
parties hereto agree to execute any and all documents necessary to effectuate
the intent of this Agreement. Furthermore, the parties hereto agree
to comply with all statutory
requirements with respects to the transfer of shares, if any stock options
granted hereunder are exercised.
7.2. This
Agreement shall be the full and final agreement between the parties and shall
constitute the full and final agreement between the parties with respect to the
subject matter of this Agreement. This Agreement shall supersede any prior or
contemporaneous employment agreement, oral or written, between the
parties.
7.3. If
any provision of this Agreement shall be found to be invalid or unenforceable in
any respect, the remainder of the Agreement shall remain in full force and
effect. The Agreement shall be interpreted to provide a full and reasonable
commercial interpretation.
7.4. Any
and all modifications to this Agreement must be in writing and signed by all
parties.
7.5. This
Agreement shall be interpreted according to the laws of the State of
California. If any suit or litigation is instituted, it shall be
brought in Sacramento, California. The prevailing party in any such
litigation shall be entitled to their reasonable attorney's fees and
costs.
7.6. All
parties warrant that they possess the full authority and capacity to enter into
this Agreement and bind their respective associates.
7.7. This
Agreement shall inure to the benefit or burden of any and all assigns, parents,
and/or subsidiaries of the Company and cannot be assigned, other than to any
such entity in which the Company holds at least a 50% interest therein, without
the express written consent of the other party, save any merger or acquisition
approved by the Company’s shareholders.
7.8. This
Agreement may not be assigned by the Executive, and services contracted for
herein are specific to the Executive and may not be delegated and or assigned to
any other person other than the Executive.
[Signature
page follows]
[Signature
Page to Employment Agreement]
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COMPANY:
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EXECUTIVE:
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/s/ Xxxxxx de Anquin
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/s/ Xxxx X. Xxxxx
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Xxxx
X. Xxxxx
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a
Delaware corporation
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Date: | 5/17/10 | ||
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By:
Xxxxxx de Anquin
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Its:
Chief Operating Officer
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Date:
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ACKNOWLEDGED
BY:
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/s/ Xxxxxx de Anquin
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a
California corporation
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By:
Xxxxxx de Anquin
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Its:
Executive Vice President and Treasurer
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Date:
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