Exhibit 10.25
NEW CENTURY ENERGY CORP.
AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made
between New Century Energy Corp., a Colorado corporation (the "Company"), and
Xxxxxx X. XxXxxxxxx ("Executive") (collectively sometimes referred to as the
"Parties" and individually sometimes referred to as "Each Party"). Unless
otherwise indicated, all references to Sections are to Sections in this
Agreement. This Agreement is effective as of the "Effective Date" set forth in
Section 14 below.
W I T N E S S E T H:
WHEREAS, the Company and Executive have previously entered into a three
year Executive Employment Agreement, effective September 1, 2005 (the "2005
Agreement");
WHEREAS, the Company and Executive now desire to amend and replace the
terms and conditions of the 2005 Agreement, with the terms and conditions of
this Agreement, and this Agreement shall replace and supersede the terms and
conditions of the 2005 Agreement from the Effective Date of this Agreement as
written below; and
WHEREAS, the Company desires to obtain the services of Executive, and
Executive desires to be employed by the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Executive, and Executive
hereby agrees to serve the Company, as its Chief Executive Officer and President
("Employment") for a period of three (3) calendar years beginning on September
1, 2005 and ending on December 31, 2008, which Employment shall be renewable for
successive one (1) year terms at 110% of the Yearly Salary then in effect (as
defined under Section 3(a)), unless either the Company or Executive provide
notice of their intent to terminate this Agreement prior to thirty (30) days
before the date this Agreement is to terminate, or such notice is waived by the
other party.
2. Scope of Employment.
(a) During the Employment, Executive will serve as Chief Executive
Officer and President. In that connection, Executive will (i) devote his
full-time, attention, and energies to the business of the Company and will
diligently and to the best of his ability perform all duties incident to
his employment hereunder; (ii) use his best efforts to promote the
interests and goodwill of the Company; and (iii) perform such other duties
commensurate with his office as the Board of Directors of the Company may
from time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Executive from
(i) serving on corporate, civic or charitable boards or committees, or (ii)
making investments in other businesses or enterprises; provided that in no
event shall any such service, business activity or investment require the
provision of substantial services by Executive to the operations or the
affairs of such businesses or enterprises such that the provision thereof
would interfere in any respect with the performance of Executive's duties
hereunder; and subject to Section 6.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Executive as follows.
(a) Executive shall receive a different "Yearly Salary" depending on
the year which Executive is employed under this Agreement, including:
(i) a Yearly Salary of $200,000 for the year ended December 31,
2005, of which approximately $66,667 is payable to Executive under
this Agreement for the four month period beginning on September 1,
2005 and ending on December 31, 2005;
(ii) a Yearly Salary of $225,000 for the five month period
beginning on January 1, 2006 and ending on May 31, 2006 of which
approximately $93,750 is payable to Executive under this Agreement
during such five month period (which period represents the Yearly
Salary Executive was to earn under the 2005 Agreement, from January 1,
2006 until the Effective Date of this Agreement);
(iii) a Yearly Salary of $325,000 for the seven month period
beginning on June 1, 2006, and ending on December 31, 2006, of which
approximately $189,583 is payable to Executive under this Agreement
during such seven month period (which period represents the new Yearly
Salary in effect for Executive as of the Effective Date of this
agreement until December 31, 2006); and
(vi) a Yearly Salary of $350,000 for the twelve month period
beginning January 1, 2007 and ending December 31, 2008.
(b) Executive shall be entitled to a one-time bonus in the amount of
$10,000 payable within ten (10) days of Executive's entry into this
Agreement in consideration for Executive's help and guidance in connection
with the Company's wholly-owned subsidiary, Gulf Coast Oil Corporation
closing the purchase of the $33,000,000 acquisition of certain undivided
interests in producing properties as well as undeveloped oil and gas
mineral leases totaling 9,167 acres and other related assets and contracts
in XxXxxxxx County, Texas.
(c) In addition to Executive's Yearly Salary, Executive may be granted
bonus payments of cash or shares of the Company's common stock from time to
time at the discretion of the Company's Board of Directors.
(d) The Company shall reimburse Executive for business expenses
incurred by Executive in connection with the Employment in accordance with
the Company's then-current policies.
(e) The Company hereby agrees to give Executive a car allowance of
$750.00 per month to be spent on obtaining and maintaining transportation
for Executive.
(f) Executive will be entitled to participate in any health insurance
or other employee benefit plan which the Company may adopt in the future.
(g) Executive will be entitled to fourteen (14) days of paid time off
(PTO) per year. PTO days shall begin on the 1st of January for each
successive year. PTO days shall begin on the 1st of January for each
successive year. Unused PTO days shall roll-over into the next year. Other
than the use of PTO days for illness or personal emergencies, PTO days must
be pre-approved by the Company.
(h) Executive will be entitled to participate in any incentive program
or discretionary bonus program of the Company which may be implemented in
the future by the Board of Directors.
(i) Executive will be entitled to participate in any stock option plan
of the Company which may be approved in the future by the Board of
Directors.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of the Company
and thus shall not be deemed grounds for Termination for Cause.
4. Confidential Information.
(a) Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. Executive
will not disclose, directly or indirectly, any of the Company's
confidential business information or confidential technical information to
anyone without authorization from the Company's management. Executive will
not use any of the Company's confidential business information or
confidential technical information in any way, either during or after the
Employment with the Company, except as required in the course of the
Employment.
(b) Executive will strictly adhere to any obligations that may be owed
to former employers insofar as Executive's use or disclosure of their
confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Executive can show that: (i)
the information was in Executive's possession or within Executive's
knowledge before the Company disclosed it to Executive; (ii) the
information was or became generally known to those who could take economic
advantage of it; (iii) Executive obtained the information from a party
having the right to disclose it to Executive without violation of any
obligation to the Company, or (iv) Executive is required to disclose the
information pursuant to legal process (e.g., a subpoena), provided that
Executive notifies the Company immediately upon receiving or becoming aware
of the legal process in question. No combination of information will be
deemed to be within any of the four exceptions in the previous sentence,
however, whether or not the component parts of the combination are within
one or more exceptions, unless the combination itself and its economic
value and principles of operation are themselves within such an exception
or exceptions.
(d) All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and all
other recorded, written, or printed matter relating to research,
manufacturing operations, or business of the Company made or received by
Executive during the Employment are the property of the Company. Upon
Termination of the Employment, whether or not for Cause, Executive will
immediately deliver to the Company all property of the Company which may
still be in Executive's possession. Executive will not remove or assist in
removing such property from the Company's premises under any circumstances,
either during the Employment or after Termination thereof, except as
authorized by the Company's management.
(e) For a period of one (1) year after the date of Termination of the
Employment, Executive will not, either directly or indirectly, hire or
employ or offer or participate in offering employment to any person who at
the time of such Termination or at any time during such one year period
following the time of such Termination was an employee of the Company
without the prior written consent of the Company.
5. Ownership of Intellectual Property.
(a) The Company will be the sole owner of any and all of Executive's
Trade Secrets all of which enable the Company to compete successfully in
its business. As an express condition of this Agreement, Executive
covenants and agrees: to treat all such matters relating to the Company's
business, including all geological, geophysical, engineering, and land data
relating to Company properties and any of the Company's business
operations, methods, procedures, or activities as trade secrets and
confidential information entrusted to Executive, solely for use in his
capacity as an employee under the terms of this Agreement, and Executive
will not divulge such information in any way to persons outside of the
Company or utilize such information other than in his capacity as an
employee under the terms of this Agreement during or after the expiration
or termination of this Agreement for any reason whatsoever.
(b) For purposes of this Agreement, "Trade Secret" means all
inventions, discoveries, prospects and improvements (including, without
limitation, any information relating to manufacturing techniques,
processes, formulas, developments or experimental work, work in progress,
or business trade secrets), along with any and all other work product
relating thereto.
(c) A Trade Secret is "related to the Company's business"
("Company-Related Trade Secret") if it is made, conceived, or reduced to
practice by Executive (in whole or in part, either alone or jointly with
others, whether or not during regular working hours), whether or not
potentially patentable or copyrightable in the U.S. or elsewhere, and it
either: (i) involves equipment, supplies, facilities, or trade secret
information of the Company; (ii) involves the time for which Executive was
or is to be compensated by the Company; (iii) relates to the business of
the Company or to its actual or demonstrably anticipated research and
development; or (iv) results, in whole or in part, from work performed by
Executive for the Company.
(d) Executive will promptly disclose to the Company, or its
nominee(s), without additional compensation, all Company-Related Trade
Secrets.
(e) Executive will assist the Company, at the Company's expense, in
protecting any intellectual property rights that may be available anywhere
in the world for such Company-Related Trade Secrets, including signing U.S.
or foreign patent applications, oaths or declarations relating to such
patent applications, and similar documents.
(f) To the extent that any Company-Related Trade Secret is eligible
under applicable law to be deemed a "work made for hire," or otherwise to
be owned automatically by the Company, it will be deemed as such, without
additional compensation to Executive. In some jurisdictions, Executive may
have a right, title, or interest ("Right," including without limitation all
right, title, and interest arising under patent law, copyright law,
trade-secret law, or otherwise, anywhere in the world, including the right
to xxx for present or past infringement) in certain Company-Related Trade
Secrets that cannot be automatically owned by the Company. In that case, if
applicable law permits Executive to assign Executive's Right(s) in future
Company-Related Trade Secrets at this time, then Executive hereby assigns
any and all such Right(s) to the Company, without additional compensation
to Executive; if not, then Executive agrees to assign any and all such
Right(s) in any such future Company-Related Trade Secrets to the Company or
its nominee(s) upon request, without additional compensation to Executive.
6. Non-competition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Executive access to certain
confidential and proprietary information, which Executive recognizes is valuable
to the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 6 as
applied to Executive and other employees similarly situated to Executive, and
for ten dollars ($10) and other good and valuable consideration, the receipt and
sufficiency of which Executive hereby acknowledges, Executive acknowledges and
hereby agrees as follows:
(a) that Executive is and will be engaged in the business of the
Company;
(b) that Executive has occupied a position of trust and confidence
with the Company prior to the Effective Date, and that during the period of
Executive's Employment under this Agreement, Executive has, and will,
become familiar with the Company's trade secrets and with other proprietary
and confidential information concerning the Company;
(c) that the obligations of this Agreement are directly related to the
Employment and are necessary to protect the Company's legitimate business
interests; and that the Company's need for the covenants set forth in this
Agreement is based on the following: (i) the substantial time, money and
effort expended and to be expended by the Company in developing oil and gas
investment, acquisition, exploration and drilling opportunities and similar
confidential information; (ii) the fact that Executive will be personally
entrusted with the Company's confidential and proprietary information;
(iii) the fact that, after having access to the Company's data and other
confidential information, Executive could become a competitor of the
Company; and (iv) the highly competitive nature of the Company's industry,
including the premium that competitors of the Company place on acquiring
proprietary and competitive information; and
(d) that for a period commencing on the Effective Date and ending
twelve (12) months following Termination as provided in Section 11,
Executive will not, directly or indirectly, serve as employee, agent,
consultant, stockholder, director, co-partner or in any other individual or
representative capacity, own, operate, manage, control, engage in, invest
in or participate in any manner in, act as consultant or advisor to, render
services for (alone or in association with any person, firm, corporation or
entity), or otherwise assist any person or entity that directly or
indirectly engages or proposes to engage in (i) competing with the Company
on exploration or development of any oil and gas leases within one (1) mile
of any seismic line acquired, purchased or shot for the Company or (ii)
within one (1) mile of any oil and gas property owned and operated by the
Company (iii) Executive further agrees that he will not engage or cause or
assist any third party to engage in the exploration, leasing, development,
or marketing of any Prospects or leasehold interests within one (1) mile of
any Company owned or operated properties; provided, however
(e) that nothing contained herein shall be construed to prevent
Executive from investing in the stock or securities of any competing
corporation listed on any recognized national securities exchange or traded
in the over the counter market in the United States, but only if (i) such
investment is of a totally passive nature and does not involve Executive
devoting time to the management or operations of such corporation and
Executive is not otherwise involved in the business of such corporation;
and if (ii) Executive and his associates (as such term is defined in
Regulation 14(A) promulgated under the Securities Exchange Act of 1934, as
in effect on the Effective Date), collectively, do not own, directly or
indirectly, more than an aggregate of two percent (2%) of the outstanding
stock or securities of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Executive arising
out of or relating to this Agreement, the prevailing party, in the proceeding as
a whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon
(i) the Company and its successors and assigns; (ii) Executive and
Executive's heirs and legal representatives, except that Executive's duties
and responsibilities under this Agreement are of a personal nature and will
not be assignable or delegable in whole or in part; and (iii) Executive
Parties as provided in Section 10.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, Acquisition, acquisition of
the controlling interest of the Company's common stock or otherwise) to all
or substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "the Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to the
extent prohibited by applicable law, any dispute, controversy or claim
arising out of or relating to this Agreement will be submitted to binding
arbitration before a single arbitrator in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association in effect on the date of the demand for arbitration. If a
dispute should arise under this Agreement, either party may, within sixty
(60) days after the dispute arises, make a demand for arbitration by
sending a demand in writing to the other. The question(s) to be decided by
the arbitrators shall be stated in writing in the written request for
arbitration and the jurisdiction of the arbitrators shall be limited to a
decision of the question so stated in writing.
The parties may agree upon one arbitrator, but in the event they
cannot do so within fifteen days, there shall be three arbitrators, one
named in writing by each of the parties within thirty days after the demand
for arbitration is made, and a third to be chosen by the two so named
within the following fifteen days. There shall be no communication between
any party and an arbitrator other than at oral hearings or in documents
that are currently provided to the parties by certified mail or, if the
documents are presented during the hearing, by hand delivery.
Arbitration shall take place before the arbitrator, who will
preferably but not necessarily be a lawyer but who shall have at least
fifteen (15) years' experience in working in or with oil and gas
exploration and production companies. The arbitration may proceed in the
absence of any party that, after due notice, fails to be present. An award
shall not be made solely on the default of a party. The arbitrators shall
require the party who is present to submit such evidence as the arbitrators
may require for the making of an award.
Unless otherwise agreed by the parties, the arbitration shall take
place in Houston, Texas where Executive's principal office space is located
at the time of the dispute or was located at the time of Termination of the
Employment (if applicable). The arbitrator is hereby directed to take all
reasonable measures not inconsistent with the interests of justice to
expedite, and minimize the cost of, the arbitration proceedings. The award
shall be made promptly and, unless otherwise agreed by all the parties, no
later than thirty days from the date of closing of the arbitration hearing.
If there is only one arbitrator, his decision shall be binding and
conclusive on the parties. If there are three arbitrators, the decision of
any two shall be binding and conclusive
(b) To protect inventions, trade secrets, or other confidential
information of Section 4, and/or to enforce the non-competition provisions
of Section 6, the Company may seek temporary, preliminary, and/or permanent
injunctive relief in a court of competent jurisdiction, in each case,
without waiving its right to arbitration.
(c) At the request of either party, the arbitrator may take any
interim measures s/she deems necessary with respect to the subject matter
of the dispute, including measures for the preservation of confidentiality
set forth in this Agreement.
(d) Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless Executive, his
nominees and/or assigns (a reference in this Section 10 to Executive also
includes a reference to Executive's nominees and/or assigns) against any
and all losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements (incurred in any and all
actions, suits, proceedings and investigations in respect thereof and any
and all legal and other costs, expenses and disbursements in giving
testimony or furnishing documents in response to a subpoena or otherwise),
including without limitation, the costs, expenses and disbursements, as and
when incurred, of investigating, preparing or defending any such action,
suit, proceeding or investigation that is in any way related to the
Executive's employment with the Company (whether or not in connection with
any action in which the Executive is a party). Such indemnification does
not apply to acts performed by Executive, which are criminal in nature or a
violation of law. The Company also agrees that Executive shall not have any
liability (whether direct or indirect, in contract or tort, or otherwise)
to the Company, for, or in connection with, the engagement of the Executive
under the Agreement, except to the extent that any such liability resulted
primarily and directly from Executive's gross negligence and willful
misconduct.
(b) These indemnification provisions shall be in addition to any
liability which the Company may otherwise have to Executive or the persons
indemnified below in this sentence and shall extend to the following: the
Executive, his affiliated entities, partners, employees, legal counsel,
agents, and controlling persons (within the meaning of the federal
securities laws), and the officers, directors, employees, legal counsel,
agents, and controlling persons of any of them (collectively, the "the
Executive Parties").
(c) If any action, suit, proceeding or investigation is commenced, as
to which any of the Executive parties propose indemnification under the
Agreement, they shall notify the Company with reasonable promptness;
provided however, that any failure to so notify the Company shall not
relieve the Company from its obligations hereunder. The Executive Parties
shall have the right to retain counsel of their own choice (which shall be
reasonably acceptable by the Company) to represent them, and the Company
shall pay fees, expenses and disbursements of such counsel; and such
counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by
the Company. The Company shall be liable for any settlement of any claim
against the Executive Parties made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not,
without the prior written consent of the party seeking indemnification,
which shall not be reasonably withheld, settle or compromise any claim, or
permit a default or consent to the entry of any judgment in respect
thereof, unless such settlement, compromise or consent includes, as an
unconditional term thereof, the giving by the claimant to the party seeking
indemnification of an unconditional release from all liability in respect
of such claim.
(d) The indemnification provided by this Section 10 shall not be
deemed exclusive of, or to preclude, any other rights to which those
seeking indemnification may at any time be entitled under the Company's
Articles of Incorporation, Bylaws, any law, agreement or vote of
shareholders or disinterested Directors, or otherwise, or under any policy
or policies of insurance purchased and maintained by the Company on behalf
of Executive, both as to action in his Employment and as to action in any
other capacity.
(e) Executive shall be entitled to reasonable expenses (including
court costs and attorneys' fees) incurred by Executive, if Executive serves
as a witness or is threatened to be made a named defendant or respondent in
a threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative or investigative, any appeal
in such an action, suit or proceeding, and any inquiry or investigation
that could lead to such an action, suit or proceeding (each a
"Proceeding"), shall be paid by the Company at reasonable intervals in
advance of the final disposition of such Proceeding after receipt by the
Company of:
(i) a written affirmation by Executive of his good faith belief
that he has met the standard of conduct necessary for indemnification
by the Company; and
(ii) a written undertaking by or on behalf of the Executive to
repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that he is not entitled to be indemnified by
the Company. Such written undertaking shall be an unlimited obligation
of the Executive but need not be secured and it may be accepted
without reference to financial ability to make repayment.
Notwithstanding any other provision of this Section 10, the Company
may pay or reimburse expenses incurred by Executive in connection with his
appearance as a witness or other participation in a Proceeding at a time
when he is not named a defendant or respondent in the Proceeding.
(f) Neither Termination nor completion of the Employment shall effect
these indemnification provisions which shall then remain operative and in
full force and effect.
11. Termination
This Agreement and the employment relationship created hereby will
terminate (i) upon the disability or death of Executive under Section 11 (a) or
11(b); (ii) with cause under Section 11 (c); (iii) for good reason under Section
11 (d); or (iv) without cause under Section 11(e).
(a) Disability. The Company shall have the right to terminate the
employment of Executive under this Agreement for disability in the event
Executive suffers an injury, illness, or incapacity of such character as to
prevent him from performing his duties without reasonable accommodation by
Executive hereunder for a period of more than thirty (30) consecutive days
upon Company giving at least thirty (30) days written notice of
termination.
(b) Death. This Agreement will terminate on the Death of the
Executive.
(c) With Cause. The Company may terminate this Agreement at any time
because of, (i) the conviction of Executive of an act or acts constituting
a felony or other crime involving moral turpitude, dishonesty or theft or
fraud; or (ii) Executive's gross negligence in the performance of his
duties hereunder.
(d) Good Reason. The Executive may terminate his employment for "Good
Reason" by giving Company ten (10) days written notice if:
(i) he is assigned, without his express written consent, any
duties materially inconsistent with his positions, duties,
responsibilities, or status with Company as of the date hereof, or a
change in his reporting responsibilities or titles as in effect as of
the date hereof;
(ii) his compensation is reduced; or
(iii) The Company does not pay any material amount of
compensation due hereunder and then fails either to pay such amount
within the ten (10) day notice period required for termination
hereunder or to contest in good faith such notice. Further, if such
contest is not resolved within thirty (30) days, the Company shall
submit such dispute to arbitration under Section 9.
(e) Without Cause. Company may terminate this Agreement without cause.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Company's Board of Directors or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of the
Company and thus shall not be deemed grounds for Termination for Cause under
Section 10(c) above.
12. Obligations of Company Upon Termination.
(a) In the event of the termination of Executive's employment pursuant
to Section 11 (a), Executive will be entitled to a one time lump sum
payment equal to 50% of the full Yearly Salary then in effect (for example,
if Executive is terminated under Section 12(b) in the third year covered by
this Agreement (during the period from January 1, 2007 and December 31,
2007), Executive shall be entitled to a one time lump sum payment of
$175,000), in addition to all payments of salary earned through the date of
termination, which shall be immediately due and payable (plus life
insurance or disability benefits), which payment shall be payable to
Executive within thirty (30) days of the Company's written notice of
termination to be provided to Executive under Section 11(a), above.
(b) In the event of the termination of Executive's employment pursuant
to Section 11 (b) or (c), Executive will be entitled only to the
compensation earned by him hereunder as of the date of such termination
(plus life insurance or disability benefits).
(c) In the event of the termination of Executive's employment pursuant
to Section 11 (d) or (e), Executive will be entitled to receive as
severance pay, a one time lump sum payment equal to 150% of the full Yearly
Salary then in effect (for example, if Executive is terminated under
Section 12(b) in the third year covered by this Agreement (during the
period from January 1, 2007 and December 31, 2007), Executive shall be
entitled to a one time lump sum payment of $525,000), in addition to all
payments of salary earned through the date of termination, which shall be
immediately due and payable. Provided however that any payment of severance
under this Section 12(b) is contingent upon execution of a Settlement
Agreement and Mutual Release releasing the Company from any and all
obligations under this Agreement.
(d) In the event of termination of Executive's employment, the
indemnification provisions of Section 10. Indemnification, shall survive
the termination of the Executive in respect to ongoing obligations of the
Company to pay legal and other costs in any action, suit, proceeding or
investigation in accordance with Section 10.
13. Other Provisions.
(a) All notices and statements with respect to this Agreement must be
in writing. Notices to the Company shall be delivered to the Chairman of
the Board or any vice president of the Company, if any. Notices to
Executive may be delivered to Executive in person or sent to Executive's
then-current mailing address as indicated in the Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning those
subjects except as expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and signed
by all parties; any attempt to modify this Agreement, orally or in writing,
not executed by all parties will be void.
(d) If any provision of this Agreement, or its application to anyone
or under any circumstances, is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability will not affect
any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
will not invalidate or render unenforceable such provision or application
in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the laws of
the United States of America and the laws of the State of Texas as applied
to contracts made and carried out in Texas by residents of Texas.
(f) No failure on the part of any party to enforce any provisions of
this Agreement will act as a waiver of the right to enforce that provision.
(g) Section headings are for convenience only and shall not define or
limit the provisions of this Agreement.
(h) This Agreement may be executed in several counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the
other counterparts. A copy of this Agreement signed by one party and faxed
to another party shall be deemed to have been executed and delivered by the
signing party as though an original. A photocopy of this Agreement shall be
effective as an original for all purposes.
14. Summary of Terms of Employment
Effective Date June 1, 2006
Term & Commitment Three Years, full-time, renewable
Office / Position Chief Executive Officer and President
Salary As described under Section 3(a) herein
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This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Executive acknowledges that he (i) has read
and understood the entire Agreement; (ii) has received a copy of it (iii) has
had the opportunity to ask questions and consult counsel or other advisors about
its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
NEW CENTURY ENERGY CORP.: EXECUTIVE:
By: /s/ Xxxxxx X. XxXxxxxxx Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. XxXxxxxxx
Its: President
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Printed Name: Xxxxxx X. XxXxxxxxx
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