Exhibit 10.1
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (the "Amendment") is entered
into on this 8th day of December, 2004, by and between Xxxxx Xxxxx (the
"Executive") and Gexa Corp., a Texas corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and the Executive entered into an employment agreement
as of October 28, 2004 ("the Employment Agreement") and wish to amend said
Employment Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants and
obligations herein set forth, and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, accepted and
agreed to, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Employment Agreement is amended by adding the following Section 4(h):
(h) The Company has recently announced that it has filed the necessary
applications to become a qualified Retail Electricity Provider in New York and
Massachusetts (the "New Markets"), in order to provide electricity to the
Company's customers in Texas who also have operations in the New Markets. In
order to further incentivize the Executive regarding the Company's operations in
the New Markets, the Executive will be entitled to receive additional stock
options under the Plan on the terms and conditions provided below (the "New
Options"); provided, that, the Executive will not be entitled to receive any
other compensation, including additional bonuses, commissions or equity
incentives, regarding his performance as it relates to the New Markets other
than the New Options. The terms and amount of the New Options are as follows:
a. Term/Type - 10-year term, nonqualified options.
b. Vesting shall occur as follows:
o Achievement of attached stock option bonus targets, but not
before May 1, 2007 - one third vested
o Achievement of attached stock option bonus targets, but not
before May 1, 2008 - two thirds vested
o Achievement of attached stock option bonus targets, but not
before May 1, 2009 - 100% vested
x. Xxxxx date - effective December 8, 2004
x. Xxxxx Criteria - from the period beginning on May 1, 2005 through April
30, 2006 (the "Period"), the Company will determine during each month of the
Period, the total number of kWh's delivered to customers in the New Markets who
have signed agreements with the Company with a term of at least 1 year, and will
also determine the Profit Margin (defined below) per kWh during the Period.
If the Profit Margin during the Period is at least $.003 per kWh, then the
Employee shall be eligible to vest in the number of Options that corresponds in
the table set forth below to the highest amount of monthly kWh's delivered by
the Company during the Period in the New Markets to customers who have signed
agreements with the Company with a term of at least 1 year. If the Profit Margin
is less than $.003 per kWh during the Period, or if the highest amount of
monthly kWh's in the Period is less than 10,000,000 kWhs, then no options will
be eligible to vest.
highest kWh per month
rounded up to nearest Options Subject to Vesting
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10,000,000 10,000
15,000,000 10,000
20,000,000 10,000
25,000,000 10,000
30,000,000 10,000
40,000,000 10,000
50,000,000 20,000
60,000,000 20,000
60,000,000+ 20,000
120,000
For example, if the highest monthly amount of kWh in the Period (sold to
customers in the New Markets with contracts of at least 1 year) is 20,000,000,
the Executive will eligible to vest in 30,000 shares according to the vesting
schedule detailed in the Non Statutory Stock Option Grant dated December 8,
2004. The employee will forfeit 90,000 options under this scenario. If the
highest monthly amount of kWh in the Period (sold to customers in the New
Markets with contracts of at least 1 year) is 65,000,000, the Executive will be
eligible to vest in 120,000 shares according to the vesting schedule detailed in
the Non Statutory Stock Option Grant dated December 8, 2004. For purposes
hereof, the term "Profit Margin" shall mean the sum of all operating revenues
attributable to sales of kWh's in the New Markets during the Period (sold to
customers in the New Markets with contracts of at least 1 year), before taxes,
less all cost of goods sold (including cost per mWh, ancillaries, balancing, ISO
fees, congestion, transmission and distribution costs, losses of any type and
any brokerage or other fees and anniversaries regarding sales of kWhs), divided
by the total number of kWh's sold in the New Markets in the Period (sold to
customers in the New Markets with contracts of at least 1 year).
2. Except as set forth above, the Employment Agreement remains in full
force and effect without amendment.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
as of the date and year first above written.
COMPANY:
GEXA CORP.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Chairman & CEO
EXECUTIVE:
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
