▇▇▇▇▇ CFO
PARTNERS, L.L.P.
RETAINER AGREEMENT
This Agreement is entered into on September 23, 1999 by Access Power, Inc. (the
"Company"), ▇▇▇▇▇ CFO Partners, LLP ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("the CFO")
(collectively, the "parties").
WHEREAS, the Company wishes to engage the CFO to provide certain services and
▇▇▇▇▇ wishes that the CFO provide such services in return for certain
consideration; the parties after full and careful negotiation agree as follows:
I. SERVICES; FEES AND PAYMENTS
A. Beginning on September 1, 1999, (the "effective date"), the CFO will
perform, under the title Chief Financial Officer, CFO Services for a total
monthly fee of $10,800 (the "Monthly Fee").
B. The CFO will provide CFO Services for four (4) days per week.
C. The Company will pay the CFO directly according the Company's normal
payroll process a portion of the Monthly Fee equal to $9,000 (the
"Salary"); and will pay ▇▇▇▇▇ the remaining portion of $1,800.00 ("Retainer
Fee").
D. If this Agreement commences or concludes other than at the beginning or end
of a month, each portion of the Monthly Fee shall be prorated for that
month.
E. The Company also will pay ▇▇▇▇▇ the incentive bonus set forth in Schedule
A.
F. The Company will pay all amounts owed ▇▇▇▇▇ no later than the 15th day of
the month for which amounts are invoiced.
G. The Company will promptly reimburse the CFO for travel and out-of-pocket
business expenses.
H. In the case that the CFO provides CFO Services in excess of 4 days per
week, the Company will pay an additional $660 daily fee (the "Additional
Daily Fee").
I. The Company will pay the CFO directly according the Company's normal
payroll process 83.33% of the Additional Daily Fee (the "Additional
Salary"), and will pay ▇▇▇▇▇ the remaining 16.67% portion ("Additional
Retainer Fee").
II. CFO SERVICES
A. CFO Services is defined as those certain services as specified and directed
by the Company from time to time and which the CFO is able to perform
within the time allotted under this agreement.
III. THE RELATIONSHIP OF THE CFO AND THE COMPANY
A. The Company, ▇▇▇▇▇ and the CFO agree that the CFO will be an employee of
the Company.
B. As an employee of the Company, the CFO will work under the exclusive
management and authority of the Company.
C. Unless agreed to in writing by all parties, the CFO is not an officer, an
executive officer, or a director of the Company, and the title CFO or Chief
Financial Officer does not confer that status
D. The CFO will be eligible for vacation and holidays consistent with the
Company's policy as it applies to senior management, except that any
initial delay period will not apply.
E. The CFO elects not to participate in the Company's employment retirement
plan or any other employee benefit plan, and waives any coverage that may
otherwise exist. The Company will not include the CFO as participant in any
such plan, unless required to do so by law for plan qualification. However,
notwithstanding the foregoing, the CFO may participate (without company
matching payments) in the Company's 401(k) plan, if such a plan is
provided. The CFO waives any past or present claim it may have against the
Company for any discrimination.
IV. THE RELATIONSHIP OF ▇▇▇▇▇ AND THE COMPANY
A. The Company, ▇▇▇▇▇ and the CFO agree that for purposes of this Agreement,
▇▇▇▇▇'▇ relationship with the Company is to make the CFO available to the
Company to provide CFO services. However, the Company is solely responsible
for its evaluation, management and use of the CFO and the CFO Services.
V. THE RELATIONSHIP OF ▇▇▇▇▇ AND THE CFO
A. The Company, ▇▇▇▇▇ and the CFO agree that for purposes of this Agreement,
▇▇▇▇▇'▇ relationship with the CFO is to make available to the CFO certain
resources of ▇▇▇▇▇. These resources are not warranted or guaranteed in any
way and the Company is solely responsibility for its evaluation, management
and use of these resources.
VI. STANDARD DISCLAIMERS
A. Neither ▇▇▇▇▇ nor the CFO will be liable for Y2K related losses, costs,
damages or expenses.
▇. ▇▇▇▇▇ will not be liable for any non-compliance with federal, state or
local laws or regulations.
C. The Company agrees that reports, projections and/or forecasts can be
prepared only at the Company's direction and reflect the judgment of the
Company. ▇▇▇▇▇ makes no representation or warranty as to the accuracy or
reliability of reports, projections and/or forecasts; and will not be held
liable for any claims of reliance on such reports, projections and/or
forecasts.
VII. INDEMNITY; JOINT DEFENSE; LIABILITY LIMITATIONS; ARBITRATION; INSURANCE
A. The Company agrees to indemnify ▇▇▇▇▇ to the full extent permitted by law
for any losses, costs, damages and expenses, including attorneys' fees, as
such are incurred, in connection with (1) any cause of action, suit or
other proceeding arising in connection with ▇▇▇▇▇'▇ engagement by the
Company under this Agreement, the CFO's employment with the Company or the
CFO's activities while employed by the Company, and (2) any legal
proceeding in which ▇▇▇▇▇ may be required or agree to participate, but in
which ▇▇▇▇▇ is not a party.
This indemnification does not apply to actions taken by ▇▇▇▇▇ in bad faith.
B. If the Company and ▇▇▇▇▇ are defendants in any action, suit, or other
proceeding, the defense of ▇▇▇▇▇ will be represented by counsel selected by
▇▇▇▇▇.
C. The Company and ▇▇▇▇▇ agree to binding arbitration under the rules of the
American Arbitration Association ("AAA"), to take place in the AAA's
Atlanta office, if any dispute arises between them.
D. The Parties recognize and agree that any breach by ▇▇▇▇▇ of this Agreement
would result in injury that would be impossible to accurately ascertain.
Therefore, ▇▇▇▇▇ shall pay to the Company as liquidated damages, and not as
a penalty, an amount equal to two full months of Retainer Fee. The parties
agree that this amount of liquidated damages represents a reasonable
approximation of the damages that would be incurred as a result of a breach
by ▇▇▇▇▇ of this Agreement.
E. In any event, at any time, ▇▇▇▇▇ may pay a sum equal to the total Retainer
Fee paid under this Agreement for the most recent four months, which
payment the Company agrees shall serve as final satisfaction and accord for
any and all such liabilities of ▇▇▇▇▇ under this Agreement.
F. As a precondition for recovery of any alleged liability, the Company shall
give ▇▇▇▇▇ notice, in writing, the alleged basis for liability within
thirty (30) days of discovering the circumstances giving rise to such
alleged liability, and no legal or other action shall be taken by the
Company against ▇▇▇▇▇ more than (60) days after such notice has been given
or (ii) less than thirty (30) days after such notice has been given, in
order that ▇▇▇▇▇ shall have the opportunity to investigate in a timely
manner and, where possible, correct of rectify the alleged basis for
liability.
▇. ▇▇▇▇▇ will not be liable in any event for incidental or consequential
damages including without limitation any interruption of business or loss
of business, profit, or good will.
H. To the extent the Company has directors' and officers' liability insurance
("including entity coverage") and/or errors and omissions liability
insurance in effect, the Company will provide such insurance coverage for
the CFO.
VIII. GENERAL TERMS AND CONDITIONS
A. This Agreement may be canceled by either party effective on no less than 30
days' advance written notice. However, ▇▇▇▇▇ retains the right to terminate
this agreement immediately if the Company has not remained current with its
obligations to ▇▇▇▇▇ under this Agreement, the Company is not in compliance
with any government regulatory entity, or by death or disability of the
CFO.
B. The provisions on the attached Schedule A are incorporated by reference as
if set forth herein, and the provisions concerning the bonus in Schedule A
will survive any cancellation of this Agreement.
C. Neither the Company, ▇▇▇▇▇ nor the CFO shall be deemed to have waived any
rights or remedies accruing under this Agreement unless such waiver is in
writing and signed by the party electing to waive the right or remedy.
D. This Agreement is governed by Georgia law.
E. The terms of this Agreement are severable, and they may not be amended
except in writing signed by the parties. This Agreement binds and benefits
the successors of the parties.
F. This Agreement contains the entire agreement between the parties,
superseding any prior oral or written statements or agreements.
G. The persons signing below are authorized to sign on behalf of each party,
and their signatures are all necessary signatures.
▇▇▇▇▇ CFO PARTNERS, LLP The COMPANY The CFO
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Signature Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Area Partner CEO
9/23/99 9/23/99 9/23/99
------- ------- -------
Date Date Date
SCHEDULE A TO ▇▇▇▇▇ RETAINER AGREEMENT
The Company will provide to ▇▇▇▇▇ CFO, on an annual basis, during the term of
this Agreement, an amount of stock options commensurate to the number of options
granted to the other executive officers of the Company. Such on-going options
will be issued upon the same terms and at the same time as such grant is made
for said officers of the Company. Seventy-five percent of such options will be
granted to the CFO and twenty-five percent of such options will be granted to
▇▇▇▇▇ CFO.
