AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of August 21, 1995, by and
between California Energy Company, a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxx (the "Executive").
RECITALS
The Company desires to employ the Executive as its Chairman and Chief
Executive Officer on the terms set forth in this Agreement, and the Executive
desires to accept such employment.
Accordingly, the Company and the Executive agree as follows:
AGREEMENT
Section 1. Defined Terms. Terms used but not defined in this Agreement
will have the meanings ascribed to them in Exhibit A to this Agreement.
Section 2. Employment.
(a) The Company will employ the Executive as, and the Executive will
act as, the Chairman and Chief Executive Officer of the Company upon the terms
set forth in this Agreement, for the Term of Employment.
(b) The Executive's primary place of employment will be Omaha,
Nebraska.
Section 3. Duties.
(a) The Executive (i) will manage the business of the Company and
supervise and direct the other officers of the Company and its employees,
agents and representatives, and (ii) will perform and discharge such other
duties, and will have such other authority, as are customary to his office.
In performing such duties, the Executive will report directly to the Board of
Directors.
(b) The Board will not reduce the title, office, duties or author-
ity of the Executive in any material respect and will not require the Executive
to relocate his residence from Omaha, Nebraska except pursuant to Section 7.
During the Term of Employment, the Company will use its best efforts to cause
the Executive to be nominated and elected to the Company's Board of Directors.
(c) The Executive will act, without any compensation in addition to
the compensation payable pursuant to this Agreement, as an officer of any
subsidiary of the Company, or as a member of the board of directors of any
subsidiary of the Company, if so appointed or elected.
(d) During the Term of Employment, the Executive (i) will devote his
entire time, attention and energies during normal business hours to the business
of the Company, and (ii) will not, without the Consent of the Board, perform any
services for any other Person or engage in any other business or professional
activity.
(e) Notwithstanding subsection (d), the Executive, without the
consent of the Board, may (i) perform the consulting duties contemplated in
the letter agreement dated October 5, 1990, as it may be amended, by and
among the Executive, Xxxxx Corporation and Xxxxx Projects, Inc., (ii) purchase
securities issued by, or otherwise passively invest his personal or family
assets in, any other company or business, and (iii) engage in governmental,
political, educational or charitable activities, but only to the extent that
those activities (A) are not inconsistent with any direction of the Board or
any duties under this Agreement, and (B) do not interfere with the devotion
by the Executive of his time, attention and energies during normal business
hours to the business of the Company.
Section 4. Compensation.
(a) During the Term of Employment, the Company will pay the Execu-
tive a base salary at a minimum annual rate of $500,000, in substantially equal
periodic payments in accordance with the Company's practices for executive
employees.
(b) The Board will review the salary payable to the Executive at
least annually beginning in the fourth fiscal quarter of 1996. The Board, in
its discretion, may increase the salary of the Executive from time to time, but
may not reduce the salary of the Executive below the amount set forth in
subsection (a) above. The Board may issue the Executive stock options from
time to time at its discretion.
(c) During the Term of Employment, the Company will pay the Execu-
tive an annual bonus, not later than ten calendar days after the end of the
preceding fiscal year of the Company in an amount determined by the Board, by
reference to the accomplishment by the Executive of goals established by the
Board for the related fiscal year. The annual bonus paid to the Executive,
however, will not be less than the Minimum Bonus.
(d) If the Executive suffers a Disability which continues for more
than 60 calendar days, the Company may elect to pay the Executive, for so long
as the Disability continues, fifty (50) percent of the salary otherwise payable
to the Executive under Section 4(a), and fifty (50) percent of the Minimum Bonus
otherwise payable to the Executive pursuant to Section 4(c). Any such election
will not affect the rights of the Company under Section 7(a)(v).
(e) The Company will reimburse the Executive, (i) subject to
compliance by the Executive with the Company's customary reimbursement
practices, for all reasonable and necessary out-of-pocket expenses incurred by
the Executive on behalf of the Company in the course of its business.
(f) The Company may reduce any payments made to the Executive
under this Agreement by any required federal, state or local government with-
holdings or deductions for taxes or similar charges, or otherwise pursuant to
law, regulation or order.
(g) The compensation payable to the Executive pursuant to this
Agreement will be in consideration for all services rendered by the Executive
under this Agreement, and the Executive will receive no other compensation
from the Company unless determined otherwise by the Board of Directors.
(h) Any base salary or Minimum Bonus payable to the Executive for
any period of employment of less than a year during the Term of Employment will
be reduced to reflect the actual number of days of employment during the period
except as provided in Section 8(b).
Section 5. Other Benefits.
(a) During the Term of Employment, the Executive and his family may
participate in and receive benefits under any employee benefit plan which the
Company makes generally available to its employees and their families, including
any pension, life insurance, medical benefits, dental benefits or disability
plan, but only to the extent that the Executive or his family otherwise
satisfies the standards established for participation in the plan.
(b) The Executive may take up to four weeks of vacation during each
full calendar year during the Term of Employment, without loss of compensation
or other benefits under this Agreement.
Section 6. Confidentiality and Post-Employment Restrictions.
(a) The Executive acknowledges that the Company has confidential
information and trade secrets, whether written or unwritten, with respect to
carrying on its business, including sensitive technology and engineering
information and data, names of past, present and prospective customers and
vendors of the Company, methods of pricing contracts and income and expenses
associated therewith, negotiated prices and offers outstanding, credit terms
and status of accounts and the terms or circumstances of any business arrange-
ments between the Company and any third parties ("Confidential Information and
Trade Secrets"). As used in this Agreement, the term Confidential
Information and Trade Secrets does not include (i) information which becomes
generally available to the public other than as a result of a disclosure by the
Executive, (ii) information which becomes available to the Executive on a
noncon-fidential basis from a source other than the Company, or (iii) informa-
tion known to the Executive prior to any disclosure to him by the Company. The
Executive further acknowledges that the Executive possesses a high degree of
knowledge of the geothermal energy industry and, in particular, has committed
to a long-standing relationship with the Company as employee, director and
officer, which has allowed, and will continue to allow, him access to the
Company's Confidential Information and Trade Secrets. Accordingly, any
employment by the Executive with another employer in the geothermal energy
industry or participation by him as a substantial investor in any such industry
may necessarily involve disclosure of the Company's Confidential Information and
Trade Secrets. Consequently, the Executive agrees that, if he voluntarily
resigns his employment with the Company for any reason other than a breach of
this Agreement by the Company, he shall not at any time during the two-year
period after such resignation, directly or indirectly accept employment by or
invest in (except as a passive investor in a public corporation or in a publicly
issued partnership interest which, in either event, would not exceed an
ownership interest of 3% of the outstanding equity or partnership interest) in
any person, firm, corporation, partnership, joint venture or business which is
primarily engaged in the production or marketing of electrical energy from
geothermal resources.
(b) Without the Consent of the Board, the Executive will not, for
two years after the Term of Employment, (i) disclose any Confidential Informa-
tion and Trade Secrets of the Company or any Affiliate of the Company to any
Person (other than the Company, directors, officers or employees of the Company
or representatives thereof), or (ii) otherwise make use of any Confidential
Information and Trade Secrets other than in connection with authorized dealings
with or by the Company.
(c) For a period of two years after the Term of Employment, the
Executive shall neither directly nor indirectly solicit, on behalf of another
employer, the employment of any person who is then currently employed by the
Company, or otherwise induce, on behalf of another employer, such person to
leave the employment of the Company without the Company's prior written
approval.
(d) The Executive will hold, on behalf of the Company and as the
property of the Company, all memoranda, manuals, books, papers, letters,
documents, computer software and other similar property obtained during the
course of his employment by the Company and relating to the Company's business,
and will return such property to the Company at any time upon demand by the
Board and, in any event, within five calendar days after the end of the Term
of Employment.
Section 7. Termination of Employment.
(a) The employment of the Executive under this Agreement will
terminate on the earliest of: (i) written notice by the Executive of his
resignation; (ii) the 30th calendar day after the Company gives to the Executive
written notice of termination without Cause; (iii) the fifth calendar day after
the Company gives to the Executive written notice of the existence of Cause;
(iv) the 30th calendar day after the Executive gives to the Company written
notice of (A) the failure by the Company to pay to the Executive, for a material
period of time and in a material amount, compensation due and payable by the
Company under Section 4(a) or 4(c), or (B) any breach by the Company or the
Board of Section 3(b) or Section 4(b); (v) the Permanent Disability of the
Executive; or (vi) the death of the Executive.
(b) If the employment of the Executive is terminated under this
Agreement, the obligations of the Executive under Section 6 will remain in full
force and effect, and the termination will not abrogate any rights or remedies
of the Company or the Executive with respect to any breach of the Agreement,
except as expressly provided in Sections 8 and 9.
Section 8. Payment Upon Termination.
(a) If the employment of the Executive is terminated pursuant to
subsections (i), (iii), (v), or (vi) of Section 7(a), the Company will pay to
the Executive, within 30 calendar days, (i) any salary pursuant to Section
4(a) which is accrued but unpaid through the Termination Date, and (ii) a
bonus payment, in an amount determined by the Board by reference to the
performance of the Executive for a portion of the fiscal year of the Company
before the Termination Date, which is not less than a pro rata share (determined
by reference to the portion of the fiscal year before the Termination Date) of
the Minimum Bonus.
(b) If the employment of the Executive is terminated pursuant to
subsection (ii) or subsection (iv) of Section 7(a), the Company will pay the
Executive, on or before the related Termination Date, an amount equal to three
times the sum of the annual salary and Minimum Bonus then in effect pursuant to
Section 4. In addition, any portion of the options granted to the Executive
which would become vested within the next 36 months (beginning with the month
following the month in which the Termination Date occurs) will vest immediately
and may be exercised within the remaining term of the options as provided in the
option agreement.
Section 9. Remedies.
(a) The Company will be entitled, if it elects, to enjoin any breach
or threatened breach of, or enforce the specific performance of, the obligations
of the Executive under Sections 3 or 6, without showing any actual damage or
that monetary damages would be inadequate. Any such equitable remedy will not
be the sole and exclusive remedy for any such breach, and the Company may pursue
other remedies for such a breach.
(b) Any court proceeding to enforce this Agreement may be commenced
in federal courts, or in the absence of federal jurisdiction the state courts,
located in Omaha, Nebraska. The parties submit to the jurisdiction of such
courts and waive any objection which they might have to pursuit of any such
proceeding of any such court.
(c) Except to the extent that the Company elects to seek injunctive
relief in accordance with subsection (a), any controversy or claim arising out
of or relating to this Agreement or the validity, interpretation, enforceability
or breach of this Agreement will be submitted to arbitration in Omaha, Nebraska,
in accordance with the then existing rules of the American Arbitration Associa-
tion, and judgement upon the award rendered in any such arbitration may be
entered in any court having jurisdiction.
(d) The Company will pay, promptly upon request, any legal fees or
expenses incurred by the Executive in connection with any legal proceedings
instituted by the Company to enforce the provisions of this Agreement against
the Executive, but such advances will be reimbursable to the Company, but only
to the extent the Company ultimately prevails in the proceeding (after any
applicable appeals have been exhausted).
Section 10.Assignment. Neither the Company nor the Executive may sell,
transfer or otherwise assign their rights, or delegate their obligations,
under this Agreement.
Section 11.Unfunded Benefits. All compensation and other benefits payable
to the Executive under this Agreement will be unfunded, and neither the Company
nor any affiliate of the Company will segregate any assets to satisfy any
obligation of the Company under this Agreement. The obligations of the Company
to the Executive are not the subject of any guarantee or other assurance of any
Person other than the Company.
Section 12.Severability. Should any provision, paragraph, clause or
portion thereof of this Agreement be declared or be determined by any court or
arbitrator of competent jurisdiction to be illegal, unenforceable or invalid,
the validity or enforceability of the remaining parts, terms or provisions shall
not be affected thereby and said illegal or invalid part, term or provision
shall be deemed not to be a part of this Agreement. Alternatively, the court
or arbitrator having jurisdiction shall have the power to modify such illegal,
unenforceable or invalid provision so that it will be valid and enforceable,
and, in any case, the remaining provisions of this Agreement shall remain in
full force and effect.
Section 13.Miscellaneous.
(a) This Agreement may be amended or modified only by a writing
executed by the Executive and the Company.
(b) This Agreement will be governed by and construed in accordance
with the internal laws of the State of Nebraska.
(c) This Agreement constitutes the entire agreement of the Company
and the Executive with respect to the matters set forth in this Agreement and
supersedes any and all other agreements between the Company and the Executive
relating to those matters.
(d) Any notice required to be given pursuant to this Agreement will
be deemed given (i) when delivered in person, or (ii) on the third calendar day
after it is sent by facsimile, express delivery service, or registered or
certified mail, if to the Company or to the Executive, at 000 Xxxxx 00xx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxxx 00000, fax number (000) 000-0000, or to such other
address as may be designated by the Company or the Executive in writing to
the other party.
(e) A waiver by a party of a breach of this Agreement will not
constitute a waiver of any other breach, prior or subsequent, of this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have entered into this
Agreement as of August 21, 1995.
CALIFORNIA ENERGY COMPANY, INC.
BY:
Xxxxxx X. XxXxxxxx
Senior Vice President
EXECUTIVE:
BY:
Xxxxx X. Xxxxx
EXHIBIT A
Defined Terms
"Affiliate" means, with respect to a Person, (a) any Person directly or
indirectly owning, controlling, or holding power to vote 10% or more of the
outstanding voting securities of the Person; (b) any Person 10% or more of whose
outstanding voting securities are directly or indirectly owned, controlled or
held with power to vote by the Person; (c) any Person directly or indirectly
controlling, controlled by or under common control with, the Person and (d)
any officer or director of the Person, or of any Person directly or indirectly
controlling the Person, controlled by the Person or under common control with
the Person. As used in this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person.
"Agreement" means this Employment Agreement dated as of August 21, 1995, by
and between the Company and the Executive, as it may be amended from time to
time in accordance with its terms.
"Board" means the Board of Directors of the Company or, if the context is
appropriate, any duly authorized and appointed committee or member of the Board
of Directors having authority to act on behalf of the Board of Directors with
respect to the matter in question.
"Cause" means any or all of the following:
(a) the willful and continued failure by the Executive to perform
substantially the services contemplated by the Agreement (other than
any such failure resulting from the Executive's incapacity due to
disability) after a written demand for substantial performance is
delivered to the Executive by a member or representative of the
Board which specifically identifies the manner in which it is alleged
that the Executive has not substantially performed such services;
(b) the willful engaging by the Executive in gross misconduct which is
materially and demonstrably injurious to the Company, provided that,
no act, or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be done, in bad
faith and without reasonable belief that such action or omission
was in, or not opposed to, the best interests of the Company; or
(c) the gross negligence of the Executive in performing the services
contemplated by the Agreement which is materially and demonstrably
injurious to the Company.
"Cause" will exist only if the Board has delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of a majority of the entire
membership of the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with his counsel, to be heard before the Board), finding
that, in the good faith judgement of the Board, the Executive was guilty of
the conduct constituting such Cause and specifying the particulars thereof in
detail.
"Company" means California Energy Company, Inc., a Delaware corporation,
and any successor or assign permitted under the Agreement.
"Consent of the Board" means, with respect to an action, the consent of the
Board to the action given prior to the action in a resolution duly adopted by
the Board, appropriate committee of the Board, or by a member of the Board duly
authorized to consent to such action.
"Disability" means, with respect to the Executive, that the Executive has
become physically or mentally incapacitated or disabled so that, in the reason-
able judgement of majority of the members of the Board, he is unable to perform
his duties under this Agreement and such other services as he performed on
behalf of the Company before incurring such incapacity or disability.
"Minimum Bonus" means, with respect to a fiscal year, $400,000.
"Permanent Disability" means a Disability which has continued for at least
six consecutive calendar months.
"Person" means any natural person, general partnership, limited partner-
ship, corporation, joint venture, trust, business trust, or other entity.
"Term of Employment" means the period of time beginning on August 21, 1995,
and ending on the fifth anniversary of such date, unless earlier terminated
pursuant to Section 7(a) or automatically extended pursuant to the following
sentence. The Term of Employment will be automatically extended for one year
on each anniversary of the date of this Agreement beginning on the fifth
anniversary unless the Executive has given the Company a notice declining
automatic extension at least 120 calendar days before the anniversary.
"Termination Date" means the date of termination of employment of the
Executive pursuant to Section 7 of this Agreement.
