Exhibit 10.2
AGREEMENT
This Agreement is made and entered into as of the 31st day of January,
1999 between Xx. Xxxxxxx X. Xxxxx and Cogeneration Corporation of America
(CogenAmerica or Corporation), a Delaware corporation.
I. RECITALS
A. Xx. Xxxxx is and has been employed by CogenAmerica as an at-will
employee since September, 1997 and currently holds the position of Vice
President, Business Development. He desires continued employment in this
capacity.
B. The purpose of this Agreement is to set forth certain terms and
conditions under which Xx. Xxxxx and CogenAmerica will continue their
employment relationship, to protect the interests of CogenAmerica in
Confidential Information, and to provide sufficient opportunity for
CogenAmerica to continue its operations without disruption in the event of
the termination or diminishment of salary of Xx. Xxxxx'x employment.
II. AGREEMENT
In consideration of the recitals stated above and the mutual promises
made below, the parties agree as follows:
1. AT-WILL STATUS. Xx. Xxxxx'x employment continues to be at-will.
This means that his employment may be terminated at any time, for any reason,
with or without cause and that Xx. Xxxxx has no obligation to continue as an
employee of CogenAmerica notwithstanding any provision of this Agreement.
2. COMPENSATION AND BENEFITS. CogenAmerica shall pay Xx. Xxxxx such
base salary and incentives as may be separately agreed upon from time to
time, but not less than the rates for salary and incentives in effect on the
date of this Agreement, and shall provide such vacation, holiday,
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medical and other benefits as are provided by CogenAmerica. The benefits
provided by CogenAmerica to its employees are subject to change from time to
time at the discretion of CogenAmerica with or without prior notice.
3. SEVERANCE PAY. CogenAmerica will pay Xx. Xxxxx xxxxxxxxx pay in an
amount equal to six (6) months of his/her current base salary, less
applicable state and federal tax withholdings and other customary payroll
deductions, if CogenAmerica terminates his/her employment or diminishes
his/her salary before January 31, 2000. This payment will be made by mailing
checks in the appropriate amount to Xx. Xxxxx at 0000 Xxxxxx Xxxx Xxxxx,
Xxxxxx, XX 00000 on a monthly basis for six (6) months from the date of
termination. However, CogenAmerica shall have no obligation to provide
severance pay to Xx. Xxxxx (a) in the event that (1) he resigns from
employment at any time, (2) the Corporation terminates his employment for
gross negligence, willful misconduct or failure to perform his duties in a
professional manner after written notice specifying the nature of such
failure and a reasonable period to cure such failure is given, or (3) the
Corporation terminates his employment subsequent to January 31, 2000, or (b)
as provided in paragraph 9 of this Agreement.
4. NON-COMPETE.
(a) So long as severance payments are being made, Xx. Xxxxx agrees not
to accept employment with any competitor of CogenAmerica. For purposes of
this paragraph 4(a), a competitor of CogenAmerica shall mean any person or
entity engaged, wholly or partly, in the business of developing, financing,
owning, operating or maintaining cogeneration or other electric power
generation facilities or projects in the United States of America.
(b) For as long as Xx. Xxxxx is employed by CogenAmerica and for a
period of one (1) year from the date of the termination of his/her employment
with the Corporation, Xx. Xxxxx will
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not, either directly or indirectly, alone or in conjunction with any other
party, divert or appropriate, or attempt to divert or appropriate, any
CogenAmerica Project Opportunity. A CogenAmerica Project Opportunity means
any and all of, but only, the following: a project or opportunity to develop
a project on which CogenAmerica was actively working as of Xx. Xxxxx'x date
of termination and as to which CogenAmerica has not been eliminated from
pursuing.
CogenAmerica will provide Xx. Xxxxx with a list of projects meeting the
above criteria promptly following the date of Xx. Xxxxx'x termination. Xx.
Xxxxx will have 30 days after his receipt of such list to notify CogenAmerica
of any projects or project opportunities included on the list that Xx. Xxxxx
does not believe meet the above criteria for CogenAmerica Project
Opportunity. CogenAmerica will consider his objections in good faith and then
reissue the list of CogenAmerica Project Opportunities, omitting any projects
or project opportunities that CogenAmerica agrees do not meet the above
criteria. The reissued list (or in the case of no objections within the
above 30 day disagreement period, the original list) will be the final list
of CogenAmerica Project Opportunities.
Xx. Xxxxx acknowledges that he has carefully considered the restrictions
set forth in the preceding paragraphs, and that the restrictions are
reasonable and that they will not unduly restrict him from finding other
employment.
5. DUTY OF LOYALTY AND CONFLICT OF INTEREST. By signing this
Agreement Xx. Xxxxx acknowledges and confirms that for the period employed by
the Corporation that he will expend his best efforts, substantially all of
his business time, and his full cooperation to perform and discharge the
duties of his position with CogenAmerica. He will not engage in any business
or professional activities which conflict with his duties on behalf of
CogenAmerica and shall promptly disclose to its President any potential
conflict.
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6. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Xx. Xxxxx
agrees that unless he first obtains the written consent of CogenAmerica's
President, he shall not disclose or use at any time either during or for a
period of two years after his employment by CogenAmerica, any Confidential
Information (as defined below) of which he becomes aware, except to the
extent such disclosure or use is required in the performance of his duties
for CogenAmerica. He shall follow all procedures established by CogenAmerica
to safeguard Confidential Information and to protect it against disclosure or
misuse. Confidential Information is defined as all confidential technical,
financial and other CogenAmerica project related information other than
information that: (a) is in the public domain at the time of disclosure; (b)
is known, or becomes known, to the public from a source other than Xx. Xxxxx;
or (c) is legally required to be disclosed by judicial or other governmental
action.
7. CONFIDENTIALITY OF AGREEMENT. Xx. Xxxxx agrees that unless he
first obtains the written consent of CogenAmerica's President, he will not
disclose the terms and conditions of this Agreement to any individual or
entity, except his spouse, attorneys, accountants, tax consultants, state and
federal tax authorities or as may be required by law.
8. RECORDS, DOCUMENTS, AND PROPERTY. When his employment with
CogenAmerica terminates, Xx. Xxxxx will return to CogenAmerica all records,
correspondence, and documents in his possession at that time, which contain
Confidential Information. Xx. Xxxxx will also return to CogenAmerica all
property of the Corporation, including any corporate credit cards and air
travel cards he may have.
9. REMEDY FOR BREACH. Xx. Xxxxx acknowledges that failure to comply
with paragraphs 4(b), 5, 6, 7 and/or 8 may irreparably harm CogenAmerica and
that, in the event that he violates or threatens to violate any of these
paragraphs, CogenAmerica or its successors or assigns shall be
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entitled to injunctive relief in any court of competent jurisdiction and that
he will be obligated to pay all costs incurred by CogenAmerica in securing
legal or equitable relief, including, but not limited to reasonable
attorneys' fees and court costs if CogenAmerica is successful or prevails in
its legal action. If CogenAmerica is unsuccessful, CogenAmerica will be
responsible for Xx. Xxxxx'x costs, including but not limited to reasonable
attorney's fees and court costs. Xx. Xxxxx also acknowledges that in the
event of a breach of paragraphs 4 (b), 5, 6, 7 and/or 8 he will not receive
any of the severance payments described in paragraph 3 of this Agreement.
10. ENTIRE AGREEMENT. This agreement contains the entire understanding
between the parties with respect to this subject matter and supersedes all
oral agreements and negotiations between the parties on this subject matter.
Any amendments, modifications or waivers of the provisions of this Agreement
shall be valid only when they have been reduced to writing and duly signed by
the parties. The terms of this Agreement shall not be deemed to have been
waived by oral agreement, course of performance or by any other means other
than a written agreement expressly providing for such waiver.
11. VOLUNTARY AND KNOWING ACTION. Xx. Xxxxx acknowledges that he has
read and understands the terms of this Agreement and that he is voluntarily
entering into this Agreement. He acknowledges that this Agreement is
intended to be a legally binding document and that he has had ample
opportunity to consult with a competent attorney before agreeing to its
terms.
12. INVALIDITY. If any one or more of the provisions of this Agreement
should be invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained in this
Agreement will not in any way be affected or impaired.
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13. NO IMPLIED WAIVER. Should CogenAmerica fail to immediately
exercise its right to enforce any provision of this Agreement, such action
shall not be construed as a waiver of its right to enforce any and all of its
rights at a later date.
14. NON-ASSIGNMENT. The Agreement shall not be assigned by Xx. Xxxxx
without the prior written consent of the President of CogenAmerica
15. MODIFICATION BY COURT. If the scope of any provision of this
Agreement is too broad to permit enforcement of the provision to its full
extent, the parties agree that the provision shall be enforced to the maximum
extent allowed by law and modified by a court of competent jurisdiction in
any proceeding to enforce the provision.
16. GOVERNING LAW. This Agreement will be construed and interpreted in
accordance with the laws of the State of Minnesota.
17. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. By signing below
Xx. Xxxxx acknowledges that he has received a copy of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the day and year first above written.
COGENERATION CORPORATION EMPLOYEE
OF AMERICA
By:
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Xxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Its President & CEO
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