Exhibit 10.8
EMPLOYEE NON-COMPETITION AND
CONFIDENTIALITY AGREEMENT --EXISTING EMPLOYEE
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THIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (this
"Agreement") is made as of this 2/nd/ day of April, 1997, by and between
Duquesne Light Company ("Company") and XXXXXXX X. XXXXX (Employee").
WHEREAS, during the course of Employee's employment with Company,
Company will undertake to train and continue to train Employee and to impart to
Employee proprietary and/or confidential information and/or trade secrets of
Company;
WHEREAS, Company desires to continue to procure the services of
Employee, and Employee is willing to continue to be employed with Company, upon
the terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the continued employment by
Company of Employee, 100 shares of common stock of DQE, Inc. (which is the
subject of a separate Stock Restriction Agreement), a one thousand ($1000)
dollar cash payment, additional severance benefits as set forth below, the
disclosure by Company of its proprietary information and/or trade secrets and
other good and valuable consideration and intending to be legally bound,
Employee hereby agrees to be employed by Company, upon the following terms and
conditions:
1. Severance Benefits. As additional consideration for entering into
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this Agreement, Employee shall be entitled to severance benefits which shall
equal one and a half (1 1/2) times the severance benefits to which Employee is
otherwise entitled to receive immediately prior to executing this Agreement. The
aggregate benefits to which Employee may be entitled shall include a minimum of
six (6) months of severance benefits and a maximum of one (1) year of severance
benefits. (By way of example, if Employee prior to executing this agreement was
entitled to 6 months of severance benefits, Employee would be entitled to 9
months benefits --6 months x 1~ --upon executing this agreement. Under no
circumstances will Employee be entitled to more than one (1) year of severance
benefits. All other terms and conditions of Employee's entitlement to severance
benefits shall remain in full force and effect and shall not otherwise be
modified by this Agreement.
2. Non-Disclosure Of Confidential Information. Employee acknowledges
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that all Confidential Information shall at all times remain the property of the
Company and its affiliates (i.e., another company the majority interest of which
is owned by the Company or by a parent or subsidiary of the Company).
"Confidential Information" means all information disclosed to Employee or known
by Employee as a consequence of or through Employee's employment, which
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is not generally known in the industry in which the Company and/or an affiliate
is or may become engaged, about the Company's or an affiliates' business,
products, processes, and services, including but not limited to information
relating to research, development, inventions, computer program designs, flow
charts, source and object codes, products and services under development,
pricing and pricing strategies, marketing and selling strategies, power
generating, servicing, purchasing, accounting, engineering, costs and costing
strategies, sources of supply, customer lists, customer requirements, business
methods or practices, training and training programs, and the documentation
thereof. It includes, but is not limited to, proprietary information and trade
secrets of the Company and its affiliates. It will be presumed that information
supplied to the Company and its affiliates from outside sources is Confidential
Information unless and until it is designated otherwise.
Employee will safeguard and maintain on the premises of the Company,
to the extent possible in the performance of Employee's work for the Company,
all documents and things that contain or embody Confidential Information. Except
as required as part of Employee's duties to the Company, Employee will not,
during his employment by the Company, or thereafter, directly or indirectly use,
divulge, disseminate, disclose, lecture upon, or publish any Confidential
Information without having first obtained written permission from the Company to
do so.
3. Inventions. All Inventions made or conceived by Employee, either
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solely or jointly with others, (i) during Employee's employment by the Company
and (ii) within one (1) year after termination of such employment, whether or
not such Inventions are made or conceived during the hours of Employee's
employment or with the use of the Company's facilities, materials, or personnel,
will be the property of the Company or its nominees. "Invention" means
discoveries, concepts, and ideas, whether patentable or not, including, but not
limited to apparatus, processes, methods, techniques, and formulae, as well as
improvements thereof or know-how related thereto, relating to any present or
prospective activities of the Company and its affiliates.
Employee will, without royalty or any other additional consideration:
(a) inform the Company promptly and fully of such Inventions by
written reports, setting forth in detail a description, the operation and the
results achieved;
(b) assign to the Company all Employee's right, title, and interest
in and to such Inventions, any applications for United States and foreign
Letters Patent, any continuations, divisions, continuations-in-part, reissues,
extensions or additions thereof filed for upon such Inventions and any United
States and foreign Letters Patent;
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(c) assist the Company or its nominees, at the expense of the
Company, to obtain, maintain and enforce such United States and foreign Letters
Patent for such Inventions as the Company may elect; and
(d) execute, acknowledge, and deliver to the Company at its expense
such written documents and instruments, and do such other acts, such as giving
testimony in support of Employee's inventorship and invention, as may be
necessary in the opinion of the Company to obtain, maintain or enforce the
United States and foreign Letters Patent upon such Inventions and to vest the
entire right and title thereto in the Company and to confirm the complete
ownership by the Company of such Inventions.
4. Works. All Works created by Employee during his employment by the
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Company will be and remain exclusively the property of the Company. "Works"
means all material and information created by Employee in the course of or as a
result of Employee's employment by the Company which is fixed in a tangible
medium of expression, including, but not limited to, notes, drawings, memoranda,
correspondence, documents, records, notebooks, flow charts, computer programs
and source and object codes, regardless of the medium in which they are fixed.
Each such Work is a "work for hire" and the Company may file
applications to register copyright as author thereof. Employee will take
whatever steps and do whatever acts the Company requests, including, but not
limited to, placement of the Company's proper copyright notice on such Works to
secure or aid in securing copyright protection and will assist the Company or
its nominees in filing applications to register claims of copyright in such
works. Employee will not reproduce, distribute, display publicly, or perform
publicly, alone or in combination with any data processing or network system,
any Works of the Company without the written permission from the Company.
5. Restrictions on Competition. Employee covenants and agrees that
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during the period of Employee's employment hereunder and for a period of one (1)
year following the termination of Employee's employment for any reason,
including without limitation termination by Company for cause or without cause,
Employee shall not engage, directly or indirectly, whether as principal or as
agent, officer, director, employee, consultant, shareholder, or otherwise, alone
or in association with any other person, corporation or other entity, in any
Competing Business located within a 150 mile radius of Company's principal place
of business located in Pittsburgh, Pennsylvania or in the states of Ohio or West
Virginia. For purposes of this Agreement, the term "Competing Business" shall
mean any person, corporation or other entity which develops, produces, markets,
sells or services (1) any energy product or service, including but not limited
to gas or electric products or services, and/or (2) any product or service which
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is the same as or similar to products or services which Company developed,
produced, marketed, or sold, including but not limited to energy products and
services, within the last year prior to termination of Employee's employment
hereunder. Employee recognizes that Company conducts or intends to conduct
business within the geographic area set forth herein, and therefore, Employee
agrees that this restriction is reasonable and necessary to protect Company's
business.
6. Nonsolicitation Of Customers And Suppliers. Employee agrees that
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for a period of two (2) years following the termination of Employee's employment
with the Company for any reason, whether terminated for cause or without cause,
Employee shall not, directly or indirectly, solicit the business of, or do
business with, any customer, supplier, or prospective customer or supplier of
the Company or an affiliate of the Company with whom Employee had direct or
indirect contact or about whom Employee may have acquired any knowledge while
employed by the Company.
7. Solicitation Of Employees. Employee agrees that, during
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Employee's employment with the Company and for a period of two (2) years
following termination of the Employee's employment with the Company, whether
terminated with cause or without cause, Employee shall not, directly or
indirectly, solicit or induce, or attempt to solicit or induce, any employee of
the Company or an affiliate of the Company to leave the Company or an affiliate
for any reason whatsoever, or hire or solicit the services of any employee of
the Company or an affiliate.
8. Enforcement. Employee understands and agrees that any violation
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of this Agreement shall be deemed material to continuing employment and could
result in disciplinary action up to and including termination. Employee
acknowledges that the legal remedy available to the Company and its affiliates
for any breach of covenants on the part of Employee will be inadequate, and,
therefore, in the event of any threatened or actual breach of this Agreement,
the Company or an affiliate shall be entitled to specific enforcement of this
Agreement through injunctive or other equitable relief in a court with
appropriate jurisdiction. The existence of any claim or cause of action by
Employee or another against the Company or an affiliate, whether predicated on
this Agreement or otherwise, shall not constitute a defense to enforcement by
the Company or an affiliate of this Agreement.
9. Obligations Survive Termination Of Employment. Termination of
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Employee's employment, whether voluntary or involuntary, whether for cause or
without cause, shall not impair or relieve Employee of any of Employee's
obligations hereunder. Upon termination of Employee's employment, for whatever
reason, or upon request by the Company, Employee will deliver to the Company the
originals and all copies of notes, sketches, drawings, specifications,
memoranda, correspondence, documents, records, notebooks, computer
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disks and computer tapes and other repositories of Confidential Information and
Inventions then in Employee's possession or under Employee's control, whether
prepared by Employee or by others. Upon termination of Employee's employment,
for whatever reason, or upon request by the Company, Employee will deliver to
the Company the originals and all copies of Works, then in Employee's possession
or under Employee's control.
10. At-Will Employment. Employee shall be employed at the pleasure
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of Company, for no definite term, unless otherwise provided by a separate
writing authorized by Employee and the Company. This means that either party may
terminate the employment relationship at any time for any or no reason.
11. Binding Effect. This Agreement shall bind Employee, Employee's
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heirs, and Employee's assigns, and may be assigned by the Company with transfer
of assets of the Company's business to which it relates. The substantive law of
the Commonwealth of Pennsylvania shall apply in matters relating to this
Agreement.
12. Authorization to Modify Restrictions. It is an intention of the
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parties that the provisions of this Agreement shall be enforceable to the
fullest extent permissible by law, and that the unenforceability of any
provision, in whole or in part, shall not render unenforceable, or impair, the
remaining parts and provisions of this Agreement. If any provision of this
Agreement shall be deemed unenforceable, in whole or in part, this Agreement
shall be deemed amended to delete or modify the offending part and to alter the
Agreement to render it valid and enforceable.
13. Employee Acknowledgments. Employee acknowledges that he or she
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has read and understands the provisions of this Agreement, that he or she has
been given an opportunity for his or her legal counsel to review this Agreement
and that the provisions of this Agreement are reasonable and that he or she has
received a copy of this Agreement.
Witness our hands and seal this 2nd day of April, 1997 at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000.
/s/ Xxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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Witness Employee
DUQUESNE LIGHT COMPANY
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Rogue
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Witness
Title: V.P. & General Counsel
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