Exhibit 10.01
ENSERVCO CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”), effective April 29, 2013, is by and between the following parties:
Company:
Enservco Corporation, a Delaware corporation, and
Executive:
Robert Devers, an individual resident of the state of Colorado.
Background
| A. | In order to induce Executive to serve as the Treasurer and Chief Financial Officer, the Company desires to provide Executive with compensation and other benefits on the terms and conditions contained in this Agreement. |
| B. | Executive is willing to accept such employment and perform services for the Company on the terms and conditions contained in this Agreement. |
Agreement
In consideration of the mutual promises and consideration described below, the parties agree as follows:
| 1. | Employment. Subject to the terms and conditions of this Agreement, the Company and Executive agree to enter into an employment relationship whereby Executive will serve as the Company’s Treasurer and Chief Financial Officer. Executive will report to the Company’s President. Executive will have such responsibilities and authority as are consistent with the offices of Treasurer and Chief Financial Officer and as may be determined from time to time by the Company’s President. |
| 2. | Term of Employment. Executive’s term of employment under this Agreement will commence on April 29, 2013 and continue until May 1, 2014 and on a year-to-year basis thereafter ending each May 1st thereafter (the “Term”), unless: (i) the Company provides the Executive with a notice of non-renewal not less than 60 days before the last day of the then-current Term (as then effective); or (ii) this Agreement is otherwise terminated as described inSection 5 below. |
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| 3. | Compensation. |
| a. | Base Salary. The Company will pay Executive during the Term an annual base salary in the amount of $150,000.00 (“Base Salary”). Base Salary will be payable in accordance with the ordinary payroll practices of the Company. | |
| b. | Bonus. Executive will be eligible each year for a discretionary bonus in addition to Executive’s Base Salary, which will be awarded in such amounts as the Company’s Board of Directors will determine and based upon Executive’s individual performance and the Company’s financial performance as the Board of Directors, in its sole discretion, may determine. | |
| c. | Options. Subject to and in accordance with the Company’s 2010 Stock Incentive Plan (and provided the Executive executes and returns to the Company a stock option agreement in appropriate form on or before May 8, 2013), the Company will grant to Executive an option to acquire 150,000 shares of Company common stock. The option will expire on April 29, 2018. The option to acquire the following number of shares will vest pursuant to the following schedule and will be eligible for a cashless exercise: | |
| (i) | 50,000 shares on April 29, 2014; | ||
| (ii) | 50,000 shares on April 29, 2015; and | ||
| (iii) | 50,000 shares on April 29, 2016 |
| d. | Withholding. All payments to Executive under this Agreement will be subject to withholding as required by law. | |
| 4. | Employee Benefits | |
| a. | Benefit Plans. During the Term, the Company will provide Executive with coverage under all employee benefit plans available to the Company’s senior executives to the extent permitted under any such employee benefit plan and in accordance with the terms thereof. | |
| b. | Vacation. During the term of Executive’s employment under this Agreement, Executive will be entitled to take twenty (20) days of paid vacation per calendar year as well as sick leave consistent with the Company’s policy in effect at the time. Vacation will be taken at times mutually satisfactory to the President and the Executive. Executive will not take vacations at times or in amounts that would materially affect | |
| c. | Expenses. Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement. The Company will reimburse Executive for such expenses upon presentation by Executive from time to time of appropriately itemized and approved accounts of such expenditures consistent with the Company’s policies and practices. These expenses can include up to $5,000 per year of reimbursement for costs related to maintaining Executive’s CPA license on an active basis. In addition, as reimbursement of work related expenses, Executive will receive a monthly auto allowance of $1,000. | |
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| 5. | Termination of Employment. | |
| a. | Termination Without Cause. If Executive’s employment is terminated by the Company (other than for Cause) on or before July 31, 2013, Executive will be entitled to Base Salary for three months as full and complete severance pay. If Executive’s employment is terminated thereafter by the Company (other than for Cause), Executive will be entitled to all accrued and unpaid Base Salary, bonus payments as applicable if agreed to in writing by the Company, and accrued benefits through the date of termination plus he will be entitled to receive the following severance benefits: | |
| (i) | Executive will be entitled to his remaining Base Salary through the Term, and |
| (ii) | Company will provide Executive with the same or similar health care benefits (including life, dental and vision, if any) as provided to Executive at the time of termination, such health care benefits to be provided through the Term. |
Upon termination of Executive’s employment without cause, except for the obligations set forth in thissubsection a., the obligations of the Company to make any further payments or to provide any further benefits to Executive under this Agreement will cease and terminate.
| b. | Termination By Resignation. Except as set forth below, if Executive resigns for any reason, Executive will be entitled to receive only accrued but unpaid Base Salary, bonus payments as applicable if agreed to in writing by the Company, and accrued benefits (including vested options pursuant to subsection 3.c. above) through the effective date Executive’s resignation. | |
| c. | Termination For Cause. The Company will have the right to terminate the employment of Executive for Cause. In the event that Executive’s employment is terminated by the Company for Cause, Executive will be entitled to receive only accrued but unpaid Base Salary and accrued benefits through the date of termination. Executive will not be entitled to any bonus payments or severance payments unless agreed to in writing by the Company. Upon termination of Executive’s employment for Cause, except as set forth in thissubsection c., the obligations of the Company under this Agreement to make any further payments or to provide any further benefits to Executive will cease and terminate. As used in this Agreement, the term “Cause” means as a result of (i) any breach of any written policy of the Company; (ii) conduct involving moral turpitude, including, but not limited to, misappropriation or conversion of assets of the Company (other than immaterial assets); (iii) Executive’s conviction of, or entry of a plea of nolo contendere to, a felony; and (iv) a material breach of this Agreement. |
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| d. | Permanent Disability. If Executive is unable to engage in the activities required by Executive’s job by reason of any medically determined physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than three consecutive months (“Permanent Disability”), the Company or Executive may terminate Executive’s employment on written notice thereof, and Executive will receive accrued but unpaid Base Salary, bonus payments as applicable if agreed to in writing by the Company, and accrued benefits (including vested options pursuant to subsection 3.c. above) through the date of termination and/or any payments under applicable employee benefit plans or programs. Upon termination of Executive’s employment by Permanent Disability, except as set forth in thissubsection d., the obligations of the Company under this Agreement to make any further payments or to provide any further benefits to Executive will cease and terminate. | |
| e. | Death. In the event of Executive’s death during the Term, Executive’s estate or designated beneficiaries will receive or commence receiving, as soon as practicable, accrued but unpaid Base Salary, bonus payments as applicable if agreed to in writing by the Company, through the date of death and any payments under applicable employee benefit plans or programs (including vested options pursuant to subsection 3.c. above). Upon termination of Executive’s employment by death, except as set forth in thissubsection e., the obligations of the Company under this Agreement to make any further payments or to provide any further benefits to Executive will cease and terminate. |
| 6. | Nondisclosure of Confidential Information. During Executive’s employment, and for a period of two years thereafter, Executive will not, directly or indirectly, without the prior written consent of the President, use, divulge, disclose or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information pertaining to the business of the Company or any of its subsidiaries or affiliates, except (a) while employed by the Company, in the business of and for the benefit of the Company, or (b) as required by law. “Confidential Information” includes without limitation non-public information concerning the financial data, business plans, product development (or other proprietary product data), customer and vendor lists, trade secrets, pricing, marketing, acquisition and divestiture plans and other non-public, proprietary and confidential information of the Company. Executive or his legal representatives, heirs or designated beneficiaries must return all Confidential Information within 15 days of the termination of Executive’s employment for any reason. Executive acknowledges that thisSection 6 survives the expiration of the Term or any earlier termination of Executive’s employment and is enforceable by the Company at any time, regardless of whether the Executive continues to be employed by the Company. | |
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| 7. | Non-Competition and Non-Solicitation. | |
| a. | From the date hereof through the expiration of the Term or, in the event Executive’s employment is earlier terminated pursuant toSection 5.band Section 5.c. hereof, from the date hereof through the first anniversary of Executive’s termination of employment with the Company, Executive agrees that, without the prior written consent of the Chief Executive Officer or President, he will not, directly or indirectly, (i) engage in or have any direct interest in, as an employee, officer, director, agent, subcontractor, consultant, security holder, partner, creditor or otherwise, any business in competition with the Company; (ii) cause or attempt to cause any person who is, or was at any time during the six months immediately preceding the time of the solicitation or hiring of Executive, an employee of the Company to leave the employment of the Company; or (iii) solicit, divert or take away, or attempt to take away, the business or patronage of any client, customer or account, or prospective client, customer or account, of the Company | |
| b. | For purposes of thisSection 7, a business will be deemed to be in competition with the Company if it is in the business of providing services to oil and/or gas production companies that are similar to services offered by the Company at the time of termination or other business operations that the Company may at any time engage in during his employment. | |
| c. | Executive acknowledges that thisSection 7 survives the expiration of the Term or earlier termination of Executive’s employment and is enforceable by the Company at any time, regardless of whether the Executive continues to be employed by the Company. Executive further acknowledges that the compensation and benefits to be paid to him under this Agreement shall be deemed additional and adequate consideration for enforcement of thisSection 7. | |
| d. | Executive and the Company agree that this covenant not to compete is a reasonable covenant under the circumstances with respect to both scope and duration, and further agree that if in the opinion of any court of competent jurisdiction such restraint is not reasonable in any respect, such court will have the right, power and authority to excise or modify such provision or provisions of this covenant as to the court will appear not reasonable and to enforce the remainder of the covenant as so amended. | |
| e. | Executive agrees that any breach of the covenants contained in thisSection 7 would irreparably injure the Company. Accordingly, Executive agrees that the Company may, in addition to pursuing any other remedies it may have in equity, obtain an injunction, without the posting of any bond or other security, against Executive from any court having jurisdiction over the matter restraining any further violation of this Agreement by Executive and cease making any payments otherwise required by this Agreement. The prevailing party in any litigation under this Section 7(e) shall recover its attorneys fees and costs from the other party. | |
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| f. | Ownership of Intellectual Property. Executive acknowledges and agrees that all intellectual property created, acquired, adapted, modified or improved, in whole or in part, by or through the efforts of Executive during the course of his employment by the Company, including without limitation all copyrights, patents, trademarks, service marks, trade secrets, know-how or other work product in any way related to the Company’s operations and activities, are works for hire and are owned exclusively by the Company, and Executive hereby disclaims any right or interest in or to any such intellectual property. | |
| 8. | Miscellaneous. | |
| a. | All notices and other communications required or to be given under this Agreement will be in writing and given either (i) by personal delivery (including a reputable courier) against a receipted copy, (ii) by certified or registered United States mail, return receipt requested, postage prepaid, (iii) by facsimile, or (iv) by attachment to electronic mail in PDF or similar file format, at such addresses and numbers as a party hereto may provide in accordance with thissubsection a. Notice will be deemed delivered when received if by personal delivery; three days after placement with the United States Postal Service if mailed; upon receipt of a confirmation that the transmission has been successfully sent if by facsimile; and when sent if sent by electronic mail. | |
| b. | This Agreement, along with any amendments from time to time made hereto, constitutes the full, entire and integrated agreement between the parties hereto with respect to the subject matter hereof. | |
| c. | This Agreement will be binding upon and inure to the benefit of the Executive and the heirs and representatives of Executive and the Company and the legal representatives, assigns and successors of the Company, but neither this Agreement nor any rights or obligations hereunder will be assignable by Executive (except by will or by operation of the laws of intestate succession) or by the Company, except that the Company may assign this Agreement to any successor (whether by merger, purchase or otherwise) to all or substantially all of the stock, assets or businesses of the Company, if such successor expressly agrees to assume the obligations of the Company hereunder. | |
| d. | Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any clause or provision of this Agreement is held illegal, invalid or unenforceable then it is the intention of the parties hereto that the remainder of this Agreement will not be affected thereby. It is also the intention of the parties to this Agreement that in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be legal, valid and enforceable. | |
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| e. | The respective rights and obligations of the parties hereunder will survive the expiration of the Term or any earlier termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations. The provisions of thissubsection e. are in addition to the survivorship provisions of any other section of this Agreement. | |
| f. | No provision of this Agreement may be amended, waived or otherwise modified without the prior written consent of all of the parties hereto. | |
| g. | The waiver by any party hereto of a breach of any provision or condition contained in this Agreement will not operate or be construed as a waiver of any prior or subsequent breach or of any other conditions hereof. | |
| h. | This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument. | |
| i. | This Agreement was made in the state of Colorado, and will be governed by, construed, interpreted and enforced in accordance with the laws of the state of Colorado, without regard to any conflict of law principles. In the event of any dispute arising out of this Agreement, the parties shall attempt to resolve the dispute in good faith within ten days of notice by one party to the other party, otherwise, if the dispute is not so resolved then either party may litigate the dispute and venue shall be the federal or state courts situated in Denver County, Colorado. |
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Signature Page
to Employment Agreement
The parties hereto have executed or caused to be executed this Employment Agreement effective as of the date first above written.
| Company: | |
| Enservco Corporation, a Delaware corporation | |
| By: /s/ Rick D. Kasch | |
| Rick D. Kasch, President | |
| Executive: | |
| /s/ Robert Devers | |
| Robert Devers |