Exhibit 10.1
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement (this "Agreement") is entered
into as of the 1st day of June, 2006 (the "Effective Date"), between Priority
Power Management, Ltd., a Texas limited partnership (the "Company"), and XXXX X.
XXXX (the "Employee"), with reference to the following facts:
A. The Employee has substantial management and other skills and experience
in the retail electricity and natural gas aggregation, brokerage and consulting
("ABC") business.
B. Employee and the Employer have previously entered into an Employment and
Non-Competition Agreement which is replaced by the terms of this Employment and
Non-Competition Agreement.
C. It is the desire of the Company to continue to employ the Employee on
the terms herein provided and to induce the Employee to provide his services to
the Company.
D. The Employee is desirous of continuing to commit himself to serve the
Company on the terms and in the capacities herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Employment. Subject to the terms hereof, the Company hereby agrees to
employ the Employee, and the Employee hereby agrees to serve the Company for the
period commencing on the Effective Date and expiring on the third anniversary of
the Effective Date; provided, however, that the term of this Agreement shall
automatically be renewed and extended for successive one (1) year periods unless
at least thirty (30) but not more than ninety (90) days prior to the end of the
term or any renewal term of this Agreement, either party shall have given
written notice that it is terminating this Agreement. Employee acknowledges and
agrees that such employment may be with Priority Power Management, Ltd. or any
of its subsidiaries at the discretion of the Company.
2. Position and Duties. The Employee shall serve in the following manner:
(a) The Employee shall have supervisory responsibility for certain
management and operational functions of Company related to the Company's ABC
business, and shall have such other powers and duties as may from time to time
be prescribed by the Board of Directors of Amen Properties, Inc. (the "Board")
or the President of Amen Properties, Inc. (the "President").
(b) During the term of this Agreement, Employee shall devote his full time,
skill and attention and his best efforts to the businesses and affairs of the
Company to the extent necessary to discharge faithfully and efficiently his
duties and responsibilities described herein, except for usual, ordinary and
customary periods of vacation (as provided in Section 4(e) below) and absence
due to illness or other disability or such periods of leave as are approved in
writing by the Board or the President. The provisions of this clause shall not
be construed to prevent Employee from making investments in other businesses or
enterprises, so long as such investments do not violate the Company's conflict
of interest policies or Section 5 hereof.
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3. Place of Performance. In connection with his employment under this
Agreement, the Employee shall be based in Arlington, Texas. The Company shall
provide without cost to the Employee such office space, secretarial and
administrative services, equipment, furniture and furnishings as are suitable
and appropriate to Employee's position and duties.
4. Compensation and Related Matters.
(a) Base Salary. The Employee shall receive a base salary ("Base Salary")
paid by Company at the annualized rate of $140,000, less appropriate deductions,
during each calendar year of the term hereof, payable in substantially equally
bi-monthly payments, subject to adjustment by the Board on an annual basis.
(b) Bonus. In addition to the Base Salary, the Employee shall be eligible
for an annual bonus for each completed fiscal year of the Company during the
term hereof (the "Bonus"). The amount of each Bonus shall be subject mutual
performance targets and agreed to each year.
(c) Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursement for all reasonable and
necessary expenses incurred by him in performing services hereunder, provided
that the Employee properly accounts therefore in accordance with Company policy.
(d) Other Benefits. During the term of the Employee's employment hereunder
(i) the Employee shall be entitled to participate in or receive benefits under
any employee benefit plan or other arrangement made available by the Company,
now or in the future, to its officers and key management employees or other
employees, and subject to and on a basis consistent with the terms, conditions,
and overall administration of such plan or arrangement; provided, that the
Company shall not be required to make any such benefits available, and (ii) the
Company shall not make any changes in any employee benefit plans or other
arrangements in effect on the date hereof or subsequently in effect in which the
Employee participates that would adversely affect the Employee's rights or
benefits thereunder, unless such change occurs pursuant to a program applicable
to executive officers, key management and other employees of the Company, as
applicable, and does not result in a proportionately greater reduction in the
rights of or benefits to the Employee as compared with any other employee of the
Company.
(e) Insurance. Employee shall be provided, free of cost, medical insurance
consistent with the medical insurance now provided to key employees of Employer,
but in any event, with no decrease in coverage and no increase in deductible as
insurance now provided to Employee by Company.
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(f) Vacations. The Employee shall be entitled to four weeks of paid
vacation in each year hereof. The Employee shall also be entitled to all paid
holidays given by Company to its employees. Vacation time not used during a year
shall not accrue or be useable in any succeeding year and shall not be paid.
(g) Proration. Any payments or benefits to which the Employee may be
entitled under this Section 4 in respect of any year during which the Employee
is employed by Company for less than the entire such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such year during which he is so employed.
5. Non-Compete. During the term of this Agreement and for a period of three
years after the termination of this Agreement, the Employee agrees that he will
not, directly or indirectly,
(a) engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, associated with, or in any manner connected with, lend the
Employee's name or any similar name to, lend Employee's credit to or render
services or advice to, any business or other entity engaging in any ABC or
related business in the states of Texas or New Mexico; provided, that the
Employee shall not be prohibited from the purchase or other acquisition of up to
(but not more than) two percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such enterprise),
other than of the Company, if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b) except on behalf of the Company, solicit business from any person known
by the Employee to be a customer of or supplier to the Company, whether or not
the Employee had personal contact with such person during and by reason of the
Employee's employment with the Company;
(c) solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is or was an employee of the Company at
any time during the term of this Agreement or in any manner induce or attempt to
induce any employee of the Company to terminate his or her employment with the
Company;
(d) interfere with the Company's relationship with any person, including
any person who at any time during the term of this Agreement was an employee,
contractor, supplier, or customer of the Company; or
(e) disparage the Company or any of its shareholders, directors, officers
or other employees.
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This Section 5 shall remain in effect notwithstanding the termination of this
Agreement or of Employee's employment with the Company. The Employee agrees and
stipulates that: (i) the provisions of this Section 5 are ancillary to and a
part of an otherwise enforceable agreement, (ii) the limitations as to time,
geographic area, and scope of activity to be restrained under this Section 5 are
reasonable and do not impose a greater restraint than is necessary to protect
the goodwill or other business interest of the Company; and (iii) this Section 5
is intended to comply in all respects with xx.xx. 15.50 et seq. of the Texas
Business and Commerce Code. If, however, this Section 5 is determined by a court
to competent jurisdiction to contain limitations as to time, geographic area or
scope of activity to be restrained that are not reasonable and impose a greater
restraint than is necessary to protect the goodwill or other business interest
of the Company, or to otherwise be unenforceable to any extent or for any
reason, the Employee consents to the reformation of this Section 5 by such court
to the minimum extent necessary to cause the limitations contained in this
Section 5 to be deemed reasonable and to impose a restraint that is not greater
than necessary to protect the goodwill or other business interest of the
Company, and to otherwise be enforceable, and to the enforcement of this Section
5 as so reformed. For purposes of any such reformation, the provisions of this
Section 5 shall be divisible.
6. Unauthorized Disclosure.
(a) Confidential Information. Employee hereby acknowledges that, in
connection with his employment by Company and his association with the Company,
he will be exposed to and may obtain certain confidential or proprietary
information regarding the business and affairs of the Company ("Confidential
Information"). Employee further acknowledges that such Confidential Information
is valuable and deemed proprietary by the Company. Confidential Information
shall not include information generally available to the public or known to
Employee prior to his employment by the Company.
(b) Non-Disclosure. During the period of his employment hereunder and for
any period mandated by Section 5 hereof, Employee shall not, without the written
consent of the Board or a person authorized thereby, use or disclose to any
person any Confidential Information obtained by him with respect to any matter
concerning the Company's business or operations; except that the Employee shall
not be required to keep confidential any such Confidential Information, and may
disclose such Confidential Information, under the following circumstances:
(i) the Employee may disclose such Confidential Information to another
employee of Company or to representatives or agents of Company (such as
independent accountants and legal counsel) when such disclosure is reasonably
necessary or appropriate in connection with the performance by the Employee of
his duties;
(ii) at the express direction of any authorized governmental entity;
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(iii) pursuant to a subpoena or other court process; or
(iv) as otherwise required by law or the rules, regulations, or orders of
any applicable regulatory body;
provided, that in the instances covered by (ii), (iii) and (iv) above, the
Employee shall promptly notify the Company prior to any disclosure and provide
the Company with an opportunity to defend said disclosure.
(c) Enforcement. The Employee recognizes that his unauthorized disclosure
of Confidential Information may give rise to irreparable injury to the Company,
and acknowledges that remedies other than injunctive relief may not be adequate.
Accordingly, the Company has the right in addition to other remedies (without
the necessity to post bond or other collateral) to equitable and injunctive
relief to prevent the unauthorized use or disclosure of any Confidential
Information, as well as to such damages or other relief as is occasioned by such
unauthorized use or disclosure. The Employee immediately shall notify Company if
he learns of any unauthorized use or disclosure of any Confidential Information.
The Employee also will fully cooperate in any attempt by Company to obtain any
remedy or relief, which cooperation shall be at Company's expense unless such
unauthorized use or disclosure is the result of the Employee's breach of this
Agreement. The Employee's compliance with this Section 6(c) is not a waiver of
Company's right to recover damages or obtain other relief from the Employee as
to the unauthorized use or disclosure of any Confidential Information.
7. Termination.
(a) The Employee's employment hereunder may be terminated by Company or the
Employee, as applicable, without any breach of this Agreement, only under the
following circumstances:
(i) Death. The Employee's employment hereunder shall terminate upon his
death.
(ii) Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
hereunder on a full time basis for 120 consecutive calendar days, or 180 days
during any twelve month period, the Company may terminate the Employee's
employment hereunder immediately.
(iii) Cause. The Company may terminate the Employee's employment hereunder
immediately for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment hereunder only in the event the
Employee has:
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(A) committed an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment with the Company;
(B) engaged in misconduct that is materially injurious to the Company;
(C) been convicted of a felony under the laws of the State of Texas;
(D) violated the provisions of Section 5 or Section 6 hereof, or
(E) intentionally failed or refused to substantially follow the lawful and
proper directives of the Board or the President, or failed to perform his duties
hereunder.
(iv) Termination by Company other than for Cause. The Company may terminate
the Employee's employment hereunder for any reason other than for Cause only
upon giving the Employee thirty (30) days' written notice prior to the date of
termination. In the event of Termination by Company other than for Cause,
Company will either release Employee from provisions defined in Section 5
herein, or continue to compensate employee at his then current level of base
salary.
(v) Termination by the Employee for Good Reason. At his option, the
Employee may terminate his employment hereunder for any of the following reasons
regardless of the then-remaining term of this Agreement upon thirty (30) days'
written notice to the Company: (i) a material change in the nature or scope of
the Employee's functions, duties, or responsibilities, without the consent of
Employee; (ii) any relocation of the Employee without the Employee's consent;
(iii) a reduction in Base Salary of more than ten percent (10%) in any single
year; or (iv) any material breach of this Agreement by the Company.
(vi) Other Termination by the Employee. The Employee may, at his option,
terminate his employment hereunder for any reason other than those specified in
Section 7(a)(v) upon ninety (90) days' written notice to the Company.
(vii) Expiration of Term. Either party may terminate the Employee's
employment by giving notice thereof at the expiration of the initial term or any
renewal term of this Agreement as provided in Section 1.
(b) Compensation Upon Termination. In the event of any termination of this
Agreement, with the exception of special provisions contained in Section 7 (iv)
Termination by Company other than for Cause, the Company shall pay to the
Employee all Base Salary owed hereunder through the date of termination and
Employee shall be entitled to all benefits, rights and privileges of Employee
under any and all employee benefit plans or policies of the Company to which
terminated employees of the Company are entitled.
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8. Inventions. Employee will disclose in writing to Company all inventions,
designs, improvements, processes, formulas, know-how and original works of
authorship which relate to or are in connection with the business of the Company
that (i) he creates while he is an employee of the Company, (ii) he creates
while performing work relating to the business of the Company, or (iii) result
from his use of Company's time, materials or facilities. He further acknowledges
and agrees that all original works of authorship which relate to or are in
connection with the business of the Company made by him while under Company's
employ are works made for hire and that the Company owns all the copyrights and
intellectual property rights to such works. And to the extent any such work is
not a work made for hire, he hereby agrees to assign and does hereby assign to
the Company his entire right, title and interest in the copyright to any such
works.
9. Successors; Binding Agreement. This Agreement shall be binding upon, and
inure to the benefit of the Company, the Employee, and their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable;
provided, that the Employee shall not assign this Agreement or any portion
hereof.
10. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally; (b) sent by
telecopy or similar electronic device and confirmed; (c) delivered by commercial
overnight express; or (d) sent by registered or certified mail, postage prepaid,
addressed as follows:
If to the Employee (marked "Personal and Confidential"):
Xxxx X. Xxxx
If to Company:
Priority Power Management
Attn: Xxx X. Xxxxxx
000 X. Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. Miscellaneous. No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in writing signed by the Employee and Company. No waiver by either
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
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12. Governing Law. THIS AGREEMENT IS BEING MADE AND EXECUTED IN AND IS
INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, AND SHALL BE GOVERNED,
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE STATE OF TEXAS.
13. Attorney Fees. The prevailing party may be awarded legal fees and costs
in connection with resolution of any dispute or controversy under or in
connection with this Agreement.
14. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
PRIORITY POWER MANAGEMENT, LTD.
By: Priority Power Management, L.L.C.
By:
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Xxx X. Xxxxxx, Manager
EMPLOYEE:
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XXXX X. XXXX
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