THIS AGREEMENT is made and shall be effective as of the 1st day of January,
1999 by and between BONNEVILLE PACIFIC CORPORATION, a Delaware corporation (the
"Employer") and XXXXX X. XXXXX, an individual and resident of the State of Utah
(the "Employee").
RECITALS:
A. The Employer is engaged in the business of developing,
owning and operating independent power facilities, and is also in
the oil and gas business.
B. The Employee has, for some time, served as the
President and Chief Executive Officer (CEO) for the Employer.
C. The Employer desires to employ the Employee to serve as
the President and CEO for the Employer, and the Employee is
willing to serve the Employer in that capacity.
D. The Employer and the Employee have agreed to enter into
this Agreement in order to set forth the terms and conditions
upon which the Employee will serve as the President and CEO for
the Employer.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual
covenants and promises contained herein, together with other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Employment. The Employer hereby employs the Employee and the Employee
hereby accepts employment with the Employer as the President and CEO for
Bonneville Pacific Corporation.
2. Term. (a) The initial Term ("Initial Term") of this Agreement shall be
for a period of two (2) years, commencing January 1, 1999, subject to the
termination provisions contained herein. This Agreement shall automatically
renew for additional one (1) year Terms ("Extended Terms") unless terminated by
either the Employer or the Employee in accordance with this Agreement. (b) It is
specifically agreed that, notwithstanding any provision of this Agreement to the
contrary, the obligations imposed upon the Employee by paragraph 14 hereof shall
survive the termination or expiration of this Agreement, or the termination of
the Employee's employment with the Employer, whether voluntary or otherwise. (c)
It is specifically agreed that notwithstanding any provision of this Agreement
to the contrary, the obligations imposed upon the Employer by paragraph 5 and 10
hereof shall survive the termination of this Agreement, or the termination of
the Employee's employment with the Employer, whether voluntary or otherwise.
3. Compensation. For all services as President which are rendered by the
Employee to the Employer pursuant to this Agreement, the Employer shall pay to
the Employee an annual salary of $174,000.00 payable in accordance with the
normal salary practices of the Employer. The annual salary of the Employee may
be increased and bonuses may be paid, at the discretion of the Board of
Directors of the Employer, or by the action of an appropriate Committee of the
Board of Directors.
4. Duties. The Employee shall have such duties and responsibilities as are
normally associated with his position, together with such specific duties as
shall be determined from time to time by the Board of Directors of the Employer.
5. Indemnification. The Employer hereby agrees to indemnify the Employee to
the maximum extent provided in the currently existing Articles and Bylaws in
effect at the time of the execution of this Agreement.
6. Extent of Services. During the entire term of this Agreement, the
Employee shall devote substantially his entire time, attention and energy to the
business of the Employer during regular business hours; provided, however, that
nothing herein shall prevent Employee from entering into business ventures which
do not interfere with his duties to the Employer and any business venture in
related fields which are not in competition with the Employer, and any business
venture in related fields which are in competition with the Employer, as long as
such competitive business ventures in related fields have been approved by the
Employer, such approval to not be unreasonably withheld. Nothing in this
paragraph shall be construed to limit the Employee's investment in any publicly
traded stock or commonly available investment vehicles including bonds, mutual
funds and other similar investments.
7. Employee Benefits. The Employer shall provide the Employee, during the
entire term of this Agreement, with the opportunity to participate in any health
and medical insurance plans provided by the Employer to other employees.
Additionally, during the term hereof, the Employee shall be entitled to
participate in all other benefit programs, which the Employer may establish and
maintain for the benefit of its employees generally. During the entire term of
this Agreement, the levels and type of benefits provided shall be at least at
the level in existence at the time of the execution of this Agreement.
8. Death During Employment. If the Employee dies during the term of this
Agreement, the Employer shall promptly pay to the estate of the Employee
compensation as described under paragraph 10(d) hereof. Such payment shall be
designated as a "Survivor's Allowance".
9. Termination. (a) Termination for Cause. "Termination for Cause" shall
mean termination by Employer of Employee's employment by the Employer for reason
of willful unlawful or illegal acts by the Employee which has resulted in
material injury to the Employer. The Employer may terminate the Employee's
employment under this Agreement, with good cause, at any time upon written
notice to the Employee. (b) Termination Without Cause. "Termination Without
Cause" shall mean any termination of Employee's employment by Employer other
than For Cause or by reason of death. The Employer, with Board approval, may
terminate the Employee's employment under this Agreement at any time, without
cause, upon sixty (60) days written notice to the Employee of the effective date
of such termination. (c) Voluntary Termination. "Voluntary Termination" shall
mean termination by Employee of Employee's employment by Employer other than (i)
as a result of a "Change in Control" as described in Section 11, (ii) as a
result of a "Deemed Termination of Employment" as described in Section 12, or
(iii) as the result of termination by reason of Employee's death as described in
Section 8. The Employee may terminate his employment under this Agreement, for
any reason upon sixty (60) days written notice to the Employer. (d) Change of
Control or Deemed Termination. In the event of a Change of Control event as
defined in Section 11 of this Agreement or a Deemed Termination as defined in
Section 12 of this Agreement, the Employee may terminate his employment under
this Agreement, for any reason, upon thirty (30) days written notice to the
Employer.
10. Compensation Upon Termination or Death. (a) Termination for Cause. Upon
Termination for Cause, the Employer shall promptly pay Employee all accrued
compensation (including accrued vacation pay) and benefits as of the date of
Termination for Cause and all accrued expenses which are unpaid at the date of
Termination for Cause. (b) Termination Without Cause. Upon Termination Without
Cause, the Employer shall promptly pay Employee all accrued compensation
(including accrued vacation pay) and benefits as of the date of Termination
Without Cause and all accrued expenses which are unpaid at the date of
Termination Without Cause. Additionally, the Employer shall pay to the Employee,
a lump sum on the first regularly scheduled payday of the Employer which follows
the effective date of such termination, an amount equal to two (2) times the
average of the sum of amounts paid to the Employee for salary, bonus, including
any amount received as Plan confirmation bonus, and profit sharing for the five
fiscal years immediately preceding the effective date of the Termination Without
Cause. Any amounts paid to Employee pursuant to this paragraph shall be subject
to any applicable federal, state and local income tax withholding. (c) Deemed
Termination of Employment. In the event there is a "Deemed Termination" of
employment as described in Section 12 of this Agreement, the Employer shall pay
to the Employee the same compensation which Employee would be entitled if the
termination would have been a Termination Without Cause under Section 10(b)
above. (d) Change of Control. In the event there is a "Change of Control Event"
as described in Section 11 of this Agreement, the Employer shall pay to the
Employee, a lump sum on the first regularly scheduled payday of the Employer
which follows the effective date of such termination, an amount equal to three
(3) times the average of the sum of amounts paid to the Employee for salary,
bonus, including any amount received as Plan confirmation bonus, and profit
sharing for the five fiscal years immediately preceding the effective date of
the Termination Without Cause. Any amounts paid to Employee pursuant to this
paragraph shall be subject to any applicable federal, state and local income tax
withholding. (e) Death. In the event of Employee's death during the term of this
Agreement, the Employer shall promptly pay to the Employee's beneficiaries, all
accrued compensation (including accrued vacation pay) and benefits as of the
date of death and all accrued expenses which are unpaid at the date of death,
together with an additional amount equal to one year's salary. (f) Voluntary
Termination. In the event of a Voluntary Termination, Employer shall pay to
Employee all accrued compensation (including accrued vacation pay) and benefits
as of the date of Voluntary Termination and all accrued expenses which are
unpaid at the date of Voluntary Termination.
11. Definition of Change in Control. For purposes of this Agreement, a
"change in control" will be deemed to have occurred on the first to occur of any
of the following events: (a) As a result of a cash tender offer, stock exchange
offer or other takeover device, any person, as that term is used in Section
13(d) and 14(b)(2) of the Securities Exchange Act of 1934, is or becomes a
beneficial owner, directly or indirectly, of stock of Employer representing
thirty percent (30%) or more of the total voting power of Employer's then
outstanding securities; (b) Any material realignment of the Board of Directors
of Employer or change in officers of Employer resulting from a concerted
shareholder action, including without limitation a proxy fight, voting trusts or
pooling arrangements; (c) Any merger, consolidation or other reorganization of
Employer with any entity, other than its affiliates, whereby Employer is not the
surviving entity or the shareholders of Employer otherwise fail to retain
substantially the same direct or indirect ownership in Employer or its
affiliates immediately after any such merger, consolidation or reorganization.
12. Deemed Termination of Employment. Employee shall be entitled to receive
the payment described in paragraph 10 above if any of the following occur during
the term of this Agreement: (a) Employee is removed or released from any of his
material titles, positions or offices under this agreement, or Employee's duties
and responsibilities in such titles, positions or offices are materially
changed; (b) Employee's base salary is reduced; (c) Employee is removed from
participation in any of Employer's bonus or profit sharing programs, or any
bonus or profit sharing programs in which Employee was entitled to participate
immediately prior to the change; or (d) Employee's office is based more than 50
miles from the location of the principal office at which Employee was based
immediately prior to the change.
13. Covenant Not to Compete. During the entire period that the Employee
remains employed by the Employer pursuant to this Agreement, up to the effective
date of termination, the Employee shall not engage either directly or indirectly
in any activity or business, whether as an officer, director, sole proprietor,
employee, partner, majority shareholder, consultant or adviser, which is in
direct competition with any business engaged in by the Employer, except as
otherwise approved by the Employer.
14. Confidentiality. The business plans, marketing plans, development
plans, acquisition plans, construction plans, and financial data (the
"Confidential Information") of the Employer are, and shall remain, the valuable,
special, unique and proprietary assets of the Employer, access to and knowledge
of which are essential to the performance by the Employee of his duties under
this Agreement. The Employee shall not, during the term of this Agreement,
except as is necessary to promote the business of the Employer, or after the
term of his employment hereunder disclose the Confidential Information, in whole
or in part, to any person, firm, corporation, association, or other entity for
any reason or purpose whatsoever, nor shall the Employee make use of the
Confidential Information for the benefit of any person, firm, corporation or
other entity (except the Employer) under any circumstances during or after the
term of his employment. Upon the termination of this employment pursuant to this
Agreement, the Employee shall promptly return to the Employer any originals and
all copies of any Confidential Information which are in his possession. All
information shall cease to be Confidential Information at such time as it enters
the public domain, other than through the breach by the Employee of his
obligations under this paragraph 14.
15. Default. Should default occur in the performance of any of the
obligations set forth in this Agreement, the non- defaulting party shall be
entitled to obtain an injunction compelling the cure of such default and the
specific performance of the obligations of this Agreement in addition to any
action for damage or other relief which may be available to the non- defaulting
party. The defaulting party shall, in addition to any damages which may result
from said default, pay to the non- defaulting party the costs, including
reasonable attorney's fees, incurred by the non-defaulting party in curing such
default or in enforcing the terms and conditions of this Agreement. If a bond is
required by the Court, the parties agree that a bond in the amount of $500.00
shall suffice. The Employee understands and agrees that the Employer shall
suffer irreparable harm in the event that the Employee breaches any of the
Employee's obligations under this Agreement and that monetary damages shall be
inadequate to compensate the Employer for such breach.
16. Entire Agreement. This Agreement supersedes any prior understandings or
agreements, whether written or oral, between the parties hereto in regard to the
subject matter hereof and contains the entire agreement between the parties in
that regard. This Agreement may not be changed or modified orally, but only by
an agreement, in writing, signed by both of the parties.
17. Notices. Any notice which is required or permitted to be given to
either party to this Agreement shall be deemed to have been given only if such
notice is reduced to writing and delivered, by United States mail, with postage
prepaid and return receipt requested, to the appropriate party as set forth
below:
Employer: Bonneville Pacific Corporation
00 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Chairman
Employee: Xxxxx X. Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Either party may change his address by giving notice of the change in the
manner set forth above. Any notice given shall be deemed delivered upon its
receipt in the United States mail.
18. Arbitration of Disputes. Any controversy, dispute or claim arising out
of or relating to this Agreement, or the breach thereof, which cannot be
resolved amicably by the parties shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association, except in cases where
immediate action is required whether or not arbitration has been requested or is
in process, nothing herein shall prevent any party from pursuing equitable
remedies, including interim relief, in any court of competent jurisdiction, and
except as may be unanimously otherwise agreed by the parties. In the event of
arbitration, the cost of arbitration, including all reasonable attorney's fees
and costs, incurred by the successful party shall be borne by the unsuccessful
party unless otherwise ordered by arbitration.
19. Savings Clause. Should any part of a provision of this Agreement be
rendered or declared invalid by reason of any state or federal law, or by decree
of any court of competent jurisdiction, such invalidation of said part or
provision of this Agreement shall not invalidate the remaining portions hereof,
and the remaining parts and provisions of this Agreement shall remain in full
force and effect. 20. Governing Law. The parties specifically agree that this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Utah, without giving effect to the choice of law rules thereof. IN
WITNESS WHEREOF the parties hereto have executed this Employment Agreement as of
the date first herein written.
EMPLOYER
BONNEVILLE PACIFIC CORPORATION
By:
(s)---------------------------
XXXXX X. XXXXXXX
Chairman
EMPLOYEE
(s)---------------------------
XXXXX X. XXXXX
