Execution Copy
ENERGY SERVICES ACQUISITION CORP.
EMPLOYMENT AGREEMENT
FOR
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
This employment agreement ("Agreement") by and between Energy Services
Acquisition Corp., a Delaware corporation (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("Employee"), is made to be effective as of the Effective Time (as defined in
the "Merger Agreement," defined below) of the merger ("Merger") of the Company
with S.T. Pipeline, Inc. ("STP"), pursuant to that certain Agreement and Plan of
Merger by and between the Company and STP dated as of January 22, 2008 (the
"Merger Agreement").
WHEREAS, Employee is an employee and a significant shareholder of STP; and
WHEREAS, in connection with the Merger, Energy Services Merger Sub ("Merger
Sub"), a to-be-formed West Virginia corporation and a wholly-owned subsidiary of
the Company, shall merge with and into STP, with STP as the surviving entity;
and
WHEREAS, the Company wishes to retain Employee as an employee of the
Company or an affiliate or subsidiary of the Company following the Merger, and
the Company and Employee desire to enter into this Agreement to reflect the
terms of Employee's employment hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the Term (as herein defined), Employee agrees to serve as President
of STP.
2. TERM AND DUTIES.
(a) The period of Employee's employment under this Agreement shall begin as
of the Effective Date and shall continue thereafter for thirty-six (36) full
calendar months (the "Term").
(b) During the Term, except for periods of absence occasioned by illness,
or vacation periods, Employee shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties.
(c) Employee's principal place of employment shall be Clendenin, West
Virginia.
3. COMPENSATION AND BENEFITS.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The Company
shall pay Employee as compensation a salary of not less than Two Thousand Five
Hundred Dollars ($2,500) per week ("Base Salary") beginning on the Effective
Date. Such Base Salary shall be payable semi-weekly, or with such other
frequency as employees are generally paid in accordance with the Company's
normal payroll practices. In addition to the Base Salary provided in this
Section 3(a), the Company shall provide Employee with all such other benefits as
are provided or made available to Company employees generally, including, but
not limited to, participation in Company health and medical plans or paid
vacation periods at the Company's discretion.
(b) In consideration of Employee's efforts in performing the requirements
of the position set forth in Section 1, and in addition to Base Salary and other
benefits to which Employee may be entitled as set forth in Section 3(a) hereof,
Employee will receive an annual incentive payment ("Incentive Bonus") during the
Term, or until such later period as Employee leaves the employ of the Company or
an affiliate or subsidiary of the Company, in an amount equal to 5% of the
pre-tax earnings generated from STP operations. The annual Incentive Bonus shall
be payable by the Company within ninety days after the end of the twelve month
period following the last day of the month in which occurs the Effective Time of
the Merger, and thereafter on or about each anniversary date of such payment.
Notwithstanding the foregoing, no Incentive Bonus will be payable to Employee at
any time after he leaves the employ of the Company, or any affiliate or
subsidiary of the Company. For the purpose of this Agreement, pre-tax earnings
shall be computed in accordance with the Company's normal accounting practices
in accordance with U.S. Generally Accepted Accounting Principles ("GAAP")
consistently applied.
4. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of
Employee's (i) conviction of, or the entering into a plea of guilty to, a crime
involving a felonious act or acts, including dishonesty, fraud or moral
turpitude, and which is detrimental to the business, reputation, character of
the Company or any of its subsidiaries; (ii) willful misconduct by Employee in
the performance of his duties, any material breach of fiduciary duty involving
personal profit, or the intentional failure to perform his stated duties; or
(iii) a repeated and material breach of any provision of this Agreement. For
purposes of this paragraph, no act or failure to act on the part of Employee
shall be considered "willful" unless done, or omitted to be done, by Employee
not in good faith and without reasonable belief that Employee's action or
omission was in the best interest of the Company. Notwithstanding the foregoing,
Employee shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a letter after not less than ten (10)
business days notice to Employee and a reasonable opportunity for him, together
with counsel, to be heard before a representative of the Company, finding that
in the good faith opinion of management, Employee was guilty of conduct
justifying Termination for Cause and specifying the particulars thereof in
detail. Employee shall not have the right to receive compensation or other
benefits for any period after Termination for Cause.
5. RESIGNATION.
Employee shall provide not less than sixty (60) days' advance written
notice of resignation. In the event of Employee's voluntary resignation from the
Company, Employee shall not be entitled to receive his Base Salary or any other
benefits to which he may be entitled under this Agreement for any period
thereafter.
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6. NOTICE.
(a) Any purported termination by the Company for Cause shall be
communicated by Notice of Termination to Employee. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under the provision so
indicated.
(b) Any other purported termination by the Company or by Employee shall be
communicated by a Notice of Termination to the other party. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in detail the facts and circumstances claimed to provide a basis
for termination of employment under the provision so indicated.
7. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash, check
or direct deposit from the general funds of STP.
8. NON-COMPETE/CONFIDENTIALITY.
(a) For a period of two (2) years from the date the Employee's employment
under this Agreement terminates, Employee, will not, directly or indirectly,
compete in any manner with the Company or STP, including, but not limited to:
(i) soliciting any client of the Company or STP to transact business; (ii)
transacting business with a competitor of the Company or STP; (iii) interfering
or damaging a relationship between the Company or STP and any of their
customers; (iv) soliciting an employee of the Company or STP; or (v) selling
products similar to the products sold by the Company or STP in their market
area. The parties acknowledge that this Agreement shall not preclude the
Employee from entering into an agreement with another company that does not
compete, directly or indirectly with the Company or STP. Moreover, Employee
shall treat as confidential information, all information pertaining to the
Company or STP.
(b) The parties hereto acknowledge that the potential restrictions on
Employee's future activities as set forth at Section 8(a) is reasonable in both
duration and geographic scope and in all other respects. In the event that the
provisions of Section 8(a) should ever be deemed to exceed the duration or
geographic limitations or scope permitted by applicable law, then such
provisions shall be reformed to the maximum time or geographic limitations or
scope, as the case may be, permitted by applicable law, and the parties agree
that the restrictions and prohibitions contained herein shall be effective to
the fullest extent allowed under applicable law in such jurisdiction.
(c) The parties acknowledge that it would be impossible to determine the
amount of damages that would result from any breach of any of the provisions of
Section 8(a) and that the remedy at law for any breach, or threatened breach, of
any of such provisions would likely be inadequate and accordingly, each party
agrees that in addition to any other rights or remedies which it may have at law
or in equity, the non-breaching party would be entitled to seek such equitable
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and injunctive relief as may be available from any court of competent
jurisdiction to restrain a party from violating any of the provisions of this
Agreement. In connection with any action or proceeding for such equitable or
injunctive relief, each party hereby waives any claim or defense that a remedy
at law alone is adequate and agrees, to the maximum extent permitted by law, to
have each such provision of Section 8(a) specifically enforced against a
violating party, without the necessity of posting bond or other security against
the violating party, and consents to the entry of equitable or injunctive relief
against the violating party enjoining or restraining any breach or threatened
breach of Section 8(a).
9. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
with respect to the subject matter hereof and supersedes any prior employment
agreement between the Company or any predecessor of the Company and Employee,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Employee of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Employee is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
10. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Employee and the Company and their respective successors and assigns.
11. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
12. MISCELLANEOUS PROVISIONS.
The Company may terminate Employee's employment at any time, but any
termination, other than Termination for Cause, shall not prejudice Employee's
right to compensation or other benefits under this Agreement.
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13. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
14. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
15. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of West Virginia
but only to the extent not superseded by federal law.
16. NOTICE.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below:
To the Company: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board and Chief Executive Officer
Energy Services Acquisition Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
To Employee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its duly authorized officers, and
Employee has signed this Agreement, on the day and date first above written.
ATTEST: ENERGY SERVICES ACQUISITION CORP.
By:
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Secretary ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
WITNESS: EMPLOYEE:
By:
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Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
