SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.2
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (“Second Amendment”) is entered into as of July 1,
2009, and amends the Employment Agreement dated as of June 30, 2006, by and between Xxxxxx Xxxxx
(the “Executive”) and Xxxxx Acquisition, LLC, a California limited liability company (the
“Company”), as amended by the Amendment to Employment dated as of October 1, 2007 (collectively,
the “Original Agreement” and together with the Second Amendment, the “Agreement”).
RECITALS
A. The Company is a wholly owned subsidiary of Lime Energy Co. (formerly known as Electric City
Co.) (“Lime”).
B. As of June 2006, Executive was appointed President of Lime. Lime is headquartered in Elk Grove
Village, Illinois. Executive serves as a director of Lime and from time to time attends meetings
at Lime’s executive offices or other locations for director and senior management meetings.
C. As of July 1, 2009, Lime increased the annual salary of Executive to $275,000 per year.
D. The Company, Lime and Executive desire to amend the Agreement to conform its terms to those
contained in each of the employment agreements of Lime’s Chief Executive Officer, Chief Operating
Officer and Chief Financial Officer.
E. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms
in the Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, the parties to the Second
Amendment hereby agree to the following amendments to the Agreement:
1. Section 10 of the Original Agreement is hereby deleted in its entirety and replaced as follows:
“10. Covenants of Executive.
10.1 Inventions and Secrecy. Except as otherwise provided in this Section
10.1, Executive (i) shall hold in a fiduciary capacity for the benefit of Lime
and its subsidiaries, all secret and confidential information, knowledge, or data of
Lime and its subsidiaries obtained by Executive during his employment by Lime, which
is not generally know to the public or recognized as standard industry practice
(whether or not developed by Executive) and shall not, during his employment by Lime
and following the termination of such employment for any reason, communicate or
divulge any such information, knowledge or data to any person or entity other than
Lime, its subsidiaries or persons or entities designated by Lime; (ii) shall
promptly disclose to Lime all inventions, ideas, devices and processes made or
conceived by him, alone or jointly with others, from the time of entering Lime’s
employ and until such employment is terminated and for a one
(1) year period
following such termination, which pertain, whether directly or
indirectly, to the business of Lime or its subsidiaries or resulting from or
suggested by any work which he may have done for or at the request of Lime or its
subsidiaries; (iii) shall at all times during his employment with Lime, assist Lime
and its subsidiaries in every proper way (at the expense of Lime) to obtain and
develop for the benefit of Lime patents on such inventions, ideas, devices and
processes; and (iv) shall do all such acts and execute, acknowledge and deliver all
such instruments as may be necessary or desirable to vest in Lime the entire
interest in such inventions, ideas, devices and processes referred to in this
Section 10.1.
10.2 Competition Following Termination. Within the two (2) year period
following termination, for any reason, of Executive’s employment with the
Company or Lime, Executive shall not, without the prior written consent of Lime,
which consent may be withheld at the sole discretion of Lime, (i) engage directly or
indirectly, whether as an officer, director, stockholder (of 5% or more of such
entity), partner, majority owner, managerial employee, creditor, or otherwise, in
the operation, management or conduct of any business that competes with the
businesses of Lime or its subsidiaries being conducted at the time of such
termination; (ii) solicit, contact, interfere with, or divert any customer served by
Lime or its subsidiaries, or any prospective customer identified by or on behalf of
Lime or its subsidiaries as of the date of Executive’s termination to divert
business from or compete with Lime; or (iii) solicit any person employed by Lime or
any of its subsidiaries at the time of such termination to leave such employment.
Notwithstanding the foregoing, a response by a Lime employee (or an employee of a
subsidiary of Lime) to a non-directed general solicitation shall not be deemed a
violation of clause (iii) in this Section 10.2.
10.3 Acknowledgement. Executive acknowledges that the restrictions set
forth in this Section 10 are reasonable in scope and essential to the preservation
of the businesses and proprietary properties of Lime and its subsidiaries at the
time of such termination and that the enforcement thereof will not in any manner
preclude Executive, in the event of termination of his employment with Lime, from
becoming gainfully employed to provide a reasonable standard of living for himself,
the members of his family and those dependent upon him.
10.4 Severability/Covenants. The covenants of Executive contained in this
Section 10 shall each be construed as any agreement independent of any other
provision in this Agreement and the existence of any claim or cause of action of
Executive against Lime or its subsidiaries, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Lime or its
subsidiaries of such covenants. The parties hereto expressly agree and contract
that it is not the intention of any party to violate any public policy, statutory or
common law, and that if any sentence, paragraph, clause or combination of the same
of this Agreement is in violation of the law of any state where applicable, such
sentence, paragraph, clause or combination of the same shall be void in the
jurisdictions where it is unlawful and the remainder of such provision and this
Agreement shall remain binding on the parties to make the covenants of this
Agreement binding only to the extent that it may be lawfully done under existing
applicable laws. In the event that any part of any covenant of this Agreement is
determined by a court of law to be overly broad, thereby making the covenant
unenforceable, the parties hereto agree, and it is their desire, that such court
shall substitute a judicially enforceable limitation in lieu of the overly broad
covenant, and that as so modified the covenant shall be binding upon the parties as
if originally set forth herein.
10.5 Remedies for Breach. Executive acknowledges that his services pursuant
to this Agreement are unique and extraordinary and that irreparable injury will
result to Lime and its subsidiaries, and its businesses and
properties in the event of a material breach of the terms and conditions of this
Section 10 to be performed by him, Lime shall be entitled, if it so elects, to
institute and prosecute proceedings in any court of competent jurisdiction, either
at law or in equity, to enjoin him from performing services for any other person or
entity or otherwise acting in violation of any of the terms of this Section 10, and
to obtain damages for any breach of this Section 10.”
2. Section 11 of the Original Agreement is hereby deleted in its entirety and replaced as follows:
“11. Indemnification. In addition to any rights Executive may have under
Lime’s charter or by-laws, Lime agrees to indemnify Executive and hold Executive
harmless, both during the Term and thereafter, against all costs, expenses
(including, without limitation, attorneys’ and accountants’ fees) and liabilities
(other than settlements to which Lime does not consent, such consent not to be
unreasonably withheld) (collectively, “Losses”) reasonably incurred by Executive in
connection with any claim, action, proceeding or investigation brought against or
involving Executive with respect to, arising out of or in any way relating to
Executive’s employment with Lime. Executive shall promptly notify Lime of any
claim, action, proceeding or investigation under this paragraph and Lime shall be
entitled to participate in the defense of any such claim, action, proceeding or
investigation and, if it so chooses, to assume the defense with counsel selected by
Lime and approved by Executive; provided that Executive shall have the right
to
employ counsel to represent him (at Lime’s expense) if Lime’s counsel would have a
“conflict of interest” in representing both Lime and Executive. Lime shall not
settle or compromise any claim, action, proceeding or investigation without
Executive’s consent, which consent shall not be unreasonably withheld or delayed;
provided, however, that such consent shall not be required if the settlement
entails only the payment of money and Lime fully indemnifies Executive in connection
therewith. To the fullest extent permitted by law and Lime’s certificate of
incorporation and by-laws, Lime further agrees to advance any and all expenses
(including, without limitation, the fees and expenses of counsel) reasonably
incurred by the Executive in connection with any such claim, action, proceeding or
investigation. The provisions of this paragraph shall survive the termination of
this Agreement for any reason.”
3. Section 13(a) of the Original Agreement is hereby deleted in its entirety and replaced as
follows:
”(a) Governing Law. The validity and effect of this Agreement and the
rights and obligations of the parties hereto shall be governed by, and construed in
accordance with, the laws and decisions of the State of Illinois, without giving
effect to the principles of conflicts of laws thereof.”
4. Section 13(g) of the Original Agreement is hereby deleted in its entirety and replaced as
follows:
“(g) Arbitration. The parties hereto agree that in the event of any disagreements
or controversies arising from this Agreement, such disagreements and controversies shall be
subject to binding arbitration as arbitrated in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association (the “AAA”) in Chicago, Illinois
before one neutral arbitrator. Such arbitrator shall be selected by mutual agreement of the
parties within thirty (30) days of written notice of said disagreement or controversy. If
the parties cannot mutually agree to an arbitrator within thirty (30) days, then the AAA
shall designate the arbitrator. Either party may apply to the arbitrator seeking injunctive
relief until the arbitration award is rendered or the controversy is otherwise resolved.
Without waiving any remedy under this Agreement, either party may also seek from any court
having jurisdiction any interim or provisional relief that is necessary to protect the
rights or property of that party, pending the establishment of the arbitral tribunal (or
pending the arbitral tribunal’s determination of the merits of the controversy). In the
event of any such
disagreement or controversy, neither party shall directly or indirectly reveal, report,
publish or disclose any information relating to such disagreement or controversy to any
person, firm or corporation not expressly authorized by the other party to receive such
information or use such information or assist any other person in doing so, except to comply
with actual legal obligations of such party or unless such disclosure is directly related to
an arbitration proceeding as provided herein, including, but not limited to, the prosecution
or defense of any claim in such arbitration. The costs and expenses of the arbitration
(excluding attorneys’ fees) shall be paid as determined by the arbitrator. This paragraph
shall survive the termination of this Agreement.”
5. Section 13(b) of the Original Agreement is hereby amended to correct the reference to “Section
11 above” to read “Section 10.4 above.”
6. Lime is an intended third-party beneficiary of the Agreement and may enforce its terms as if it
were an original party thereto. Lime reaffirms that it pays the salary and other benefits to
Executive pursuant to the Agreement.
7. Executive agrees to perform all his services for the benefit of Lime and the Company, except as
otherwise directed by the Board of Directors of Lime.
8. This Second Amendment may be executed in any number of counterparts, by original signature or
facsimile, each of which so executed shall be deemed to be an original, and such counterparts will
together constitute but one document.
9. Whenever the term “this Agreement” or “Agreement” is used in the Agreement, it shall mean the
Original Agreement as modified by this Second Amendment, subject to any subsequent amendments
agreed upon by the parties in accordance with the Agreement.
10. Except as expressly set forth in this Second Amendment, all other provisions of the Agreement
shall be unchanged and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Employment Agreement
as of July 1, 2009.
| XXXXX ACQUISITION, LLC | LIME ENERGY CO. | ||||||
By:
|
/s/ Xxxxx Xxxxxxx | By: | /s/ Xxxxxxx Xxxxxxx | ||||
| Name: Xxxxx X. Xxxxxxx | Name: Xxxxxxx X. Xxxxxxx | ||||||
| Title: Manager | Title: Executive Vice President and Chief Financial Officer |
||||||
| /s/ Xxxxxx Xxxxx | |||||||
| Xxxxxx X. Xxxxx | |||||||
