Exhibit 10.94


 


CAP ROCK
ENERGY CORPORATION


RETAINER
AGREEMENT


 


THIS RETAINER AGREEMENT (the
“Agreement”) is entered into as of this 3rd day of November 2005,
effective at such time as David W. Pruitt ceases to serve as Chief Executive
Officer of Cap Rock Energy Corporation, and such Agreement is by and between
Cap Rock Energy Corporation, a corporation organized and existing under the
laws of the State of Texas having its principal place of business at 500 West
Wall, Suite 400, Midland, Texas 79701 (“Company”) and David W. Pruitt, an
individual who resides at 5805 Stonecrest, Midland Texas 79707 (“Pruitt”),
collectively referred to as the “Parties”.


 


WITNESSETH:


 


WHEREAS, the Company is
in the business of electric distribution services; and


 


WHEREAS, under Pruitt’s
direction and leadership, the Company’s corporate structure was reorganized
from a member owned electric cooperative to a shareholder owned corporation;
and


 


WHEREAS, such
reorganization provided tremendous benefits to the former members of the cooperative
and its customers and greatly enhanced the value of the Company for its
shareholders; and


 


WHEREAS, the Company
operates as a public company in a competitive and deregulated environment and
Pruitt’s knowledge and expertise is critical to enable the Company to continue
to survive and prosper; and


 


WHEREAS, Pruitt’s current
plans are to cease to be President and/or CEO or an employee of the Company after
a Special Shareholders meeting to be held in 2006 and to remain as a member of
the Board of Directors and to remain as Co-Chairman of the Board; and


 


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WHEREAS, the Company
desires to retain Pruitt’s services as “Senior Advisor to the Company” so that
the Company will have Pruitt’s knowledge and experience available to assist the
incoming President/CEO; and


 


WHEREAS, the Company
desires to retain Pruitt’s services as “Senior Advisor to the Company” in order
to assist the Company in the future and to prevent competitors from hiring
Pruitt; and


 


WHEREAS, the Company
further desires to retain Pruitt’s services as “Senior Advisor to the Company”
in recognition of Pruitt’s past deeds, achievements and accomplishments; and


 


WHEREAS, it is common
practice for companies to enter into retainer agreements with CEO’s who leave
their employment; and


 


WHEREAS, the Company
feels that it is in the best interest of the Company, its shareholders,
customers and employees to retain Pruitt so that he can provide his advice and
counsel to the Company.


 


NOW, THEREFORE, in consideration
of the premises and mutual covenants hereinafter contained, the parties hereto
agree as follows:


 


1.                                       THE
SERVICES


 


Pruitt agrees to provide
consulting services for the Company as requested by its President/CEO and the
Company from time to time and more particularly described on Exhibit “A”
and made a part hereof. The parties to this Agreement specifically agree that
Pruitt can provide his consulting services at such times and places that are
most convenient to Pruitt, at the Company’s expense. The Company shall pay
Pruitt’s expenses, including airfare and other expenses from wherever Pruitt
may be at such time as the Company may request that he attend a meeting or
other


 


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function in person.


 


2.                                       WORK
FOR HIRE


 


a.                                       It
is the intention of the parties hereto that all rights, including without
limitation copyright, in any written materials, software products, reports,
memoranda or notes prepared by Pruitt pursuant to the terms of this Agreement,
or otherwise for Company (hereinafter the “Work”) vest in Company. The parties
expressly acknowledge that the Work was specially ordered or commissioned by
Company, and further agree that it shall be considered a “Work Made for Hire”
within the meaning of the copyright laws of the United States and that Company
is entitled, as author, to the copyright and all other rights therein,
throughout the world, including, but not limited to, the right to make such
changes therein and such uses thereof, as it may determine in its sole and
absolute discretion.


 


b.                                      If,
for any reason, the Work is not considered a work made for hire under the
copyright law, then Pruitt hereby grants and assigns to Company, its successors
and assigns, all of its rights, title, and interest in and to the Work,
including, but not limited to, the copyright therein throughout the world (and
any renewal, extension or reversion copyright now or hereafter provided), and
all other rights therein of any nature whatsoever, whether now known or
hereafter devised, including, but not limited to the right to make such changes
therein, and such uses thereof, as Company may determine in its sole and
absolute discretion.


 


3.                                       PROPRIETARY
INFORMATION


 


a.                                       For
purposes of this Agreement, “proprietary information” shall mean any
information relating to the business of Company that has not previously been
publicly released by duly authorized representatives of Company and shall
include (but shall not be limited to)


 


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information encompassed
in all proposals, marketing and sales plans, financial information, costs,
pricing information, computer programs (including source code, object code,
algorithms and models), customer information, customer lists, and all methods,
concepts, know-how or ideas in or reasonably related to the business of Company
as well as confidential information belonging to Company’s customers or
clients.


 


b.                                      Pruitt
agrees to regard and preserve as confidential, all proprietary information,
whether Pruitt has such information in memory or in writing or other physical
form. Pruitt shall not, without written authority from Company to do so,
directly or indirectly, use for the benefit or purposes, nor disclose to
others, either during the term of its engagement hereunder of thereafter,
except as required by the conditions of Pruitt’s engagement hereunder, any
proprietary information.


 


c.                                       Pruitt
shall not disclose any reports, recommendations, conclusions or other results
of the Work or the existence or the subject matter of this contract without the
prior written consent of Company. In Pruitt’s performance hereunder, Pruitt
shall comply with all legal obligations he may now or hereafter have respecting
the information or other property of any other person, firm or corporation. Neither
Pruitt nor the Company shall make any disparaging written or oral statements or
comments about the other during and after the term of this Agreement.


 


d.                                      Pruitt
expressly agrees that the covenants set forth in this Paragraph are being given
to Company in connection with the engagement of Pruitt by Company and that such
covenants are intended to protect Company against  competition by Pruitt, within the terms
stated, to the fullest extent deemed reasonable and permitted in law and equity.
In the event that the foregoing limitations upon the conduct of Pruitt are
beyond those permitted by law, such limitations, both as to time and
geographical area, shall be, and be deemed to be, reduced in scope and effect
to the maximum extent


 


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permitted by law.


 


4.                                       INJUNCTIVE
RELIEF


 


Pruitt acknowledges that
the injury to Company resulting from any violation by it of any of the
covenants contained in this Agreement will be of such a character that it
cannot be adequately compensated by money damages, and, accordingly, Company
may, in addition to pursuing its other remedies, obtain an injunction from any
court having jurisdiction over the matter restraining any such violation; and
no bond or other security shall be required in connection with such injunction.


 


5.                                       FEES
AND REIMBURSEMENT OF CERTAIN EXPENSES 


 


a.                                       Company
shall pay Pruitt a retainer fee equal to fourteen thousand dollars ($14,000.00)
per month, plus reasonable and necessary expenses, including but not limited to
travel expenses directly related to the consulting services performed by Pruitt
hereunder for Pruitt and his wife. Pruitt shall furnish to Company, upon
request, suitable evidence regarding all such expenses. Such payments shall be made
monthly during the term of this Agreement by direct deposit into Pruitt’s
designated bank account unless Pruitt shall designate a different method of
payment. Pruitt shall also be paid stock in the same proportion as the officers
of the Company.


 


b.                                      Pruitt
shall retain his Midland Country Club and Petroleum Club memberships and all
incidents of ownership therein, including credit for any assessments or charges
of any kind previously paid by the Company on his behalf. The Company shall pay
all fees and dues associated therewith on the same basis as the Company has
paid such fees and dues in the past through June 2005 and in the future
through the end of this Agreement and any renewals or extensions thereof. After
the end of the term of this Agreement and any renewals or extensions thereof,
Pruitt shall pay


 


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such fees and dues.


 


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c.                                       During
the term of this Agreement, the Company shall continue to pay the premiums on Pruitt’s
Principal Universal Group Life Insurance policy that is currently in effect and
that is to continue in force during the term of this Agreement. At the
termination of this Agreement, Pruitt shall have the option, in accordance with
the terms of such policy, to keep the policy and pay the premiums if he so
desires. Such policy shall remain the property of Pruitt.


 


d.                                      Upon
the effective date of this Agreement, Pruitt shall no longer be an employee of
the Company and shall be a “retiree” of the Company. As a retiree, Pruitt shall
be provided the maximum lump sum amounts available to retirees under all of the
Company’s policies, i.e. sick leave (50% of 100% of all unused), personal leave
and vacation (100% of all unused), health and dental insurance benefits
pursuant to Company policy on the same basis as has been offered to other
retirees with at least twenty years employment (currently $580.00 per month)
and all cash owed to Pruitt by the Company at that time.


 


e.                                       During
the term of this Agreement, Pruitt will continue to serve on the Board of
Directors of the Company, unless his term on the Board expires and he is not
reelected or there is a change of control, in which case the balance of
compensation Pruitt would have received as a director through the term of this
Agreement shall be immediately due and payable to Pruitt, in addition to any
other compensation Pruitt is entitled to receive pursuant to this Agreement. Upon
the effective date of this Agreement, Pruitt shall become an outside director
and he shall be entitled, at that time, to all board fees etc. that all other
outside directors receive (currently $15,000.00 per year retainer, $5,000.00
per meeting attended in person, $2,500.00 for telephone meetings, plus expenses
and bonuses) for so long as he serves as a director. Pruitt shall also be
eligible to continue as Co-Chairman of the Board if so elected and receive the
additional compensation per board policy as


 


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Chairman of the Board (currently
$500.00 per meeting) and he shall be entitled to receive stock bonuses, cash
bonuses and stock awards on the same basis as all other outside directors. Pruitt
shall also continue to be eligible to participate in the Company’s stock for
comp and deferred compensation plans and shall have the same options as
officers and other directors with regard to foregoing the issuance of amounts
of stock to him, including grossing up of the shares of stock issued and cash
payments in order to pay income taxes on such stock when issued or vested.


 


f.                                         Pruitt
and his wife shall be entitled to participate and attend, at the Company’s expense
(which shall include dues and all expenses for attendance), as Co- Chairman and/or
Senior Advisor to the Company, all CEO Club Super Pac and CEO club meetings,
Association of Edison Illuminating Companies (“AEIC”), various conferences
sponsored by law firms and various Funds that relate to the electric utility
industry, merger and acquisition seminars and/or forums, or the equivalent
during the term of this Agreement. Pruitt shall also be entitled to attend, at
the Company’s expense, any seminars or conferences etc. that the CEO requests
Pruitt to attend or that Pruitt deems beneficial to his role as Senior Advisor
to the Company.


 


g.                                      Upon
the effective date of this Agreement, Pruitt shall be a participant, or continue
to be a participant, in the UBS Cap Rock Energy Corporation Supplemental
Executive Deferred Compensation Retirement Plan, or any successor plan, or
equivalent plan, at such time as such plan is established or whatever type of
deferred compensation plan is in effect at the time this Agreement becomes
effective or which becomes effective during the term of this Agreement. If no
such plan is available to Pruitt, then in that event, the Company shall
contribute an amount as set forth below, grossed up by 39.6% for taxes,  into an individual plan designated by Pruitt.
Pruitt’s contribution to such plan as described above will be matched by the
Company based on the Company’s current


 


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401K contribution for
employees hired prior to May 1, 2002 at $168,000.00 per year (Pruitt’s
compensation hereunder). For example, if Pruitt contributes 9%, ($15,120.00)
into the plan, then the Company would contribute 12.5% ($21,000.00) per year
into a Company plan or $34, 768.00 per year if no Company plan is available to
Pruitt.


 


h.                                      Pruitt
shall retain all mileage and points earned in all travel programs such as
American Airlines, American Express, Southwest Airlines, Continental, Starwood
and other hotels etc. earned while an employee of the Company and during the
term of this Agreement.


 


i.                                          During
the term of this Agreement, Pruitt shall be covered by the Company’s director
and officer liability insurance policies for the same amount as officers and
directors of the Company for his services hereunder. Further, during the term
of this Agreement and thereafter, the Company shall indemnify Pruitt and hold
him harmless, and provide for his legal defense, for any and all claims or
causes of action of any kind whatsoever made against Pruitt arising out of
services rendered pursuant to this Agreement or actions taken by Pruitt as
President/CEO of the Company.


 


j.                                          Upon
termination of this Agreement, Pruitt expressly understands and agrees that
Company’s sole obligation hereunder shall be to pay Pruitt in accordance with
this Agreement. However, Pruitt shall still be entitled, after termination of
this Agreement, to receive all amounts to which he is entitled to receive as a
Company retiree and as a member of the Board of Directors.


 


6.                                       BENEFITS


 


Pruitt, as an independent
contractor, shall not be entitled to any compensation, wages, bonuses or
benefits other than those provided for under Paragraph 5 of this Agreement. Pruitt
shall be entitled to such fees and expenses as set forth in Paragraph 5 of this
Agreement through the initial term of this Agreement, regardless of whether or
not this Agreement is terminated earlier. Pruitt


 


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shall not be required to
carry liability insurance or any other type of insurance as an Independent
Contractor.


 


7.                                       DUTY
TO REPORT INCOME


 


Pruitt acknowledges and
agrees that he is an independent contractor under this Agreement and not an
employee of the Company and that it is Pruitt’s sole obligation to report as
income all compensation received from Company pursuant to this Agreement. Pruitt
further agrees that the Company shall not be obligated to pay withholding
taxes, social security, unemployment taxes, disability insurance premiums, or
similar items, in connection with any payments made to Pruitt pursuant to the
terms of this Agreement. Notwithstanding the above, the Company and Pruitt
agree and understand that all stock granted to him under prior and future stock
grants and all stock previously deferred under the Company’s Stock for
Compensation Plan or other deferred compensation plan shall be grossed up in
accordance with the normal Company policy in order to pay all withholding and
taxes such as income tax, social security tax, Medicare tax etc. and Pruitt
shall be paid the gross up amounts in cash.


 


8.                                       TERM


 


This Agreement shall be
effective beginning November 12, 2005, when Pruitt ceases to be an
employee and officer of the Company. This Agreement shall supercede Pruitt’s
current Employment Contract, except that the provisions in Section 4.05
regarding a “Change in Control” shall be incorporated by reference in this
Agreement and shall continue in effect for the term of this Agreement and any
extension thereof. The salary and bonus on which any such Change in Control
payment shall be based is Pruitt’s 2005 salary and 2004 bonus, which amount
equals $436,000.00. This Agreement shall continue for a period of five years
from its effective date; provided, however,


 


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that either Company or Pruitt
may terminate this Agreement in whole or in part at any time upon one year
written notice to the other party. In the event the Company terminates the
Agreement pursuant to this provision, Pruitt shall remain entitled to receive
all compensation and benefits set forth herein, payable in a lump sum within
twenty days from such termination, and he shall not be required to seek other
employment or take any action to mitigate the total amount of payments owed to
him by the Company pursuant to this Agreement. In the event Pruitt terminates
the Agreement pursuant to this provision, he shall be entitled to payment for
all amounts payable under this Agreement up until the date of termination,
including reimbursement for all expenses incurred and Pruitt shall have no
further obligation to the Company pursuant to this Agreement, other than those
that specifically survive the termination of this Agreement.


 


In the event Pruitt
becomes disabled or dies during the term of this Agreement and is therefore
unable to perform the services hereunder, all amounts payable to Pruitt
hereunder for the remaining term of this Agreement shall be paid to him or his
designated beneficiary (currently Patricia Ann Pruitt).


 


Either Party shall be
entitled to terminate this Agreement if the other Party refuses to perform its
duties hereunder. In such case, the performing Party must notify the
non-performing Party of a breach and if such breach is not cured within twenty
days, the performing Party may terminate the Agreement. It shall not be a
breach of this Agreement or non-performance hereunder if Pruitt is unable to
perform requested duties in the time frame requested. Non-performance by Pruitt
shall mean a total failure to perform any duties as set forth in this
Agreement.


 


This Agreement may be
extended by the mutual agreement of the Parties hereto. In the event of
termination or upon expiration of this Agreement, Pruitt shall be permitted to
keep any and all


 


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equipment which Pruitt
received from Company. However, all documents or materials, and all copies made
thereof, which Pruitt received from Company for the purposes of this Agreement
shall be returned to the Company if requested by the Company. Notwithstanding
the foregoing, during the term of this Agreement, Pruitt shall be entitled to
keep all equipment such as cell phones, fax machines, printers, copiers,
personal computers, blackberry etc. in his possession and the Company shall pay
the related expenses of such equipment. Also during the term of this Agreement, the Company shall provide any
additional equipment needed by Pruitt to perform services hereunder at the Company’s
expense and shall provide Pruitt with any clerical or secretarial assistance
needed. The Company may continue to provide such equipment and related expenses
and clerical or secretarial assistance to Pruitt, at the Company’s expense, after
the termination or expiration of this Agreement, if the President/CEO approves such
arrangement.


 


9.                                       NOTICES


 


All notices shall be in
writing and sent via first class mail to Company and Pruitt at their respective
addresses set forth at the beginning of this Agreement, or to such other
address as either party shall notify the other party by notice given hereunder.


 


10.                                 SUCCESSORS/CHANGE
OF CONTROL


 


This Agreement shall
remain binding on any successor of the Company and any such successor, for
whatever reason, change of control etc, shall be obligated to assume and
perform all of the Company’s obligations under this Agreement.


 


In the event Pruitt fails
to serve out the remainder of his term on the Board of Directors for which he
was elected in 2004 or to which he is elected at a future election, for any
reason other than his own choosing (i.e. he is forced out and/or pressured or
encouraged to resign), he shall receive the 


 


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normal outside director
fees, bonuses, stock awards and all benefits he would have received as a member
of the Board of Directors through the end of his current term. For purposes of
this paragraph, in addition to other benefits, Pruitt shall be entitled to
receive the yearly retainer (currently $15,000.00 per year), $5,000.00 per
meeting, pay for telephone board meetings estimated at four per year which
currently pay $2,500.00 per meeting, plus the additional amount (currently $500.00
per meeting) for serving as Co-Chairman, and a yearly bonus based on the
average director bonus for the prior three years.


 


11.                                 COVENANT
NOT TO COMPETE 


 


During the term of this
Agreement, Pruitt shall not engage, except as a passive investor in publicly
held companies, engage in or own or control any interest in, or act as
principal, director, officer or employee of, or consultant to, any firm or
corporation which is in competition with the Company. The Parties specifically
recognize and agree that this covenant not to compete shall not prevent Pruitt
from continuing to serve as a consultant/director for Panda Energy, Delinea or
other Company’s that are not in direct competition with the Company. Further,
Pruitt may consult for and serve as a director of other entities with the
approval of the Company’s General Counsel and CEO.


 


12.                                 CONFIDENTIALITY


 


The terms of this
Agreement and the existence of the Agreement shall be kept confidential except
as required by law to be disclosed such as to the SEC or IRS and except as
disclosure is mandated by court order.


 


13.                                 ARBITRATION


 


Any controversy, claim or
breach arising out of or relating to this Agreement or the breach thereof shall
be settled by arbitration in Midland, Texas or the closest office thereto of
the American


 


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Arbitration Association
in accordance with the rules of the American Arbitration Association and
the judgment or award rendered shall be entered by consent in any court having
jurisdiction thereof.


 


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14.                                 GENERAL


 


a.                                       The
terms and conditions of Paragraphs 2, 3, 4, 5, 6, 8, 10, 14g and 14h hereof
shall survive the termination of this Agreement.


 


b.                                      Pruitt
shall not assign this Agreement or delegate its duties hereunder and shall not subcontract
any of the services to be performed hereunder without the prior written consent
of the Company.


 


c.                                       Pruitt
shall perform the consulting services described herein as an independent
contractor and shall not be considered an employee, partner, or joint venturer
of Company or otherwise related to Company for any purpose. Pruitt shall not be
required to carry liability insurance or any other type of insurance in
performing his services as an independent contractor hereunder.


 


d.                                      This
Agreement shall be governed by the laws of the State of Texas.


 


e.                                       All
rights and obligations of the Parties under this Agreement shall survive the
termination of this Agreement.


 


f.                                         This
Agreement constitutes the entire understanding between Pruitt and Company
respecting the consulting services described herein.


 


g.                                      No
amendment, or alteration of this Agreement, nor any substitution or successor
agreement,  shall be valid unless made in
writing and signed by all Parties hereto or the Company’s successor and Pruitt.


 


h.                                      The
terms of this Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective personal representatives, heirs,
administrators, successors and permitted assigns.


 


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i.                                          The
failure of either party to exercise its rights under this Agreement shall not
be deemed to be a waiver of such rights or a waiver of any subsequent breach.


 


IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the date first above
written.


 


Cap Rock Energy Corporation


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Russell
  E. Jones, Co-Chairman

  	
  David W. Pruitt

  



 


 


	
  STATE OF TEXAS

  	
  )(

  
	
   

  	
  )(

  
	
  COUNTY OF MIDLAND

  	
  )(

  



 


This instrument was
acknowledged before me on this 3rd day of November 2005, by RUSSELL E.
JONES, Co-Chairman of the Board of Cap Rock Energy Corporation, a Texas
corporation, on behalf of said corporation.


 


 


	
   

  	
  Notary Public, State of
  Texas

  



 


(SEAL)


 


	
  STATE OF TEXAS

  	
  )(

  
	
   

  	
  )(

  
	
  COUNTY OF MIDLAND

  	
  )(

  



 


Before me, on this 3rd day
of November 2005, personally appeared DAVID W. PRUITT, known to me to be
the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed.


 


 


	
   

  	
  Notary Public, State of
  Texas

  



 


(SEAL)


 


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Exhibit “A”


 


Description
of Consulting Services


 


Provide advice and
direction to the President/CEO and the Board of Directors of Cap Rock Energy
Corporation as requested. Services under this Agreement are to be performed at
a time and place most convenient to Pruitt and if Pruitt is required to perform
services in person, then and in that event, the Company shall pay for all of
Pruitt’s and his wife’s travel expenses from wherever he is at the time to the
location where the Company requests his presence and all of Pruitt’s and his
wife’s travel expenses to return to the location where he was at the time the
Company requested his presence. As set forth in Paragraph 5 herein, the Company
shall pay all of Pruitt’s expenses, including travel, lodging, and meals etc.,
related to the consulting services performed by Pruitt pursuant to this
Agreement.


 


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