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EXHIBIT 10.30
AGREEMENT
This Agreement (the "Agreement") is made and entered into this 5TH day
of December, 2000, by and between North Coast Energy, Inc., a Delaware
corporation ("the Company"), NCE Securities, Inc., an Ohio corporation ("NCE
Securities"), NUON International Projects by ("NUON"), and Xxxxx Xxxxx ("Xxxxx")
and, for only the express purposes identified herein, Xxxx Xxxxx.
RECITALS
Xxxxx is the President of the Company, a member of the Company's
Operating Committee and its Board of Directors, the President of NCE Securities,
and a stockholder in the Company. NCE Securities is a wholly-owned subsidiary of
the Company. NUON is the majority stockholder of the Company. Effective May 3,
1995, Xxxxx entered into a Restated Employment Agreement with the Company (the
"Employment Agreement") for a term of three years with the option to renew for
an additional three year term. In 1998, Xxxxx exercised this option to renew the
Employment Agreement and the term will expire on May 2, 2001. Xxxxx has been
advised by the Company that it does not intend to renew the Employment Agreement
and that his employment with the Company will terminate on May 2, 2001, in
accordance with the terms of the Employment Agreement.
NUON acquired its initial stock position in the Company pursuant to a
Stock Purchase Agreement between itself and the Company dated August 1, 1997. As
an inducement to NUON's purchase of stock in 1997, Xxxxx entered into a Voting
Agreement dated August 1,1997 with NUON (the "Voting Agreement") pursuant to
which he agreed to vote all of the shares of common stock of the Company which
he owns in accordance with the direction of NUON.
The Company is mindful of the contributions that Xxxxx has made to the
Company since he participated in founding its predecessor in 1981 and of the
assistance that he may be able to provide the Company after his term of
employment is concluded. The parties desire to enter into this Agreement to
resolve their relationship in such a manner as not to disrupt the Company or its
business and operations and to provide for Xxxxx'x continuing services as a
consultant to the Company upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the agreements hereinafter set forth
and other good and valuable consideration, the parties hereby agree as follows:
1. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
only upon the satisfaction of the following conditions: (a) the approval of this
Agreement by the Board of Directors of the Company and (b) the execution and
delivery of this Agreement by all parties hereto.
2. INDEMNITY AGREEMENT. The Indemnity Agreement between the Company and
Xxxxx effective August 30, 1988, shall remain in full force and effect and not
be affected by this Agreement.
3. SEVERANCE FROM THE COMPANY. Effective at the close of business on
May 2, 2001, without further action by any party hereto, Xxxxx will cease to be
an employee and officer of the Company, and will cease to be an employee,
officer and director of NCE Securities, and any of the Company's other
affiliates, but shall be permitted to remain as a director of the Company until
his term expires at the 2001 Annual Meeting of Stockholders.
4. CONSULTING SERVICES. For a period of eighteen (18) months from the
expiration of the Employment Agreement (the "Consulting Term"), Xxxxx agrees to
provide the consulting services requested by the Company on the terms and
conditions set forth herein. Xxxxx shall make himself available to perform and
will perform such consulting services as reasonably may be requested of him from
time to time by the Company's Board of Directors or the Operating Committee.
Consulting services shall be rendered at times that are reasonable and at such
locations as are reasonably accessible.
Xxxxx shall make himself available to the Company and/or its affiliates
or related entities and their respective directors, officers, agents and
employees to provide consulting services and/or testimony in any litigation that
may then be pending or which relates to the period of time during which he was
employed by the Company or is
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a consultant to the Company pursuant hereto. Xxxxx agrees to cooperate with the
Company in connection with any necessary regulatory undertakings regarding NCE
Securities as the Company may reasonably request.
It is further agreed that, unless otherwise mutually agreed, the
Company shall not disclose to Xxxxx any confidential data or other information
nor shall Xxxxx be required to perform consulting services that conflict with
his activities which are not otherwise prohibited pursuant to this Agreement.
5. PAYMENTS. During the Consulting Term, subject to the provisions of
Section 17, the Company will pay Xxxxx Six Thousand Dollars ($6,000) per month,
which amount shall be paid on such dates as the Company makes its customary
payment of salary to employees, or otherwise as Xxxxx and the Company may
mutually agree.
The Company also will reimburse Xxxxx for all reasonable business
expenses actually incurred or paid by him during the Consulting Term in the
performance of any consulting services hereunder, provided, however, that the
Company will be so obligated only to the extent such expenses shall have been
expressly approved in advance in writing by a duly authorized officer of the
Company. Such expenses shall be paid or reimbursed by the Company within fifteen
(15) days of Xxxxx'x submission of (a) invoices evidencing such amounts being
due and payable, (b) an itemization of unreimbursed amounts, or (c) reasonably
satisfactory evidence that Xxxxx paid the sums in question. The Company's
obligations hereunder shall not be affected by Xxxxx'x subsequent employment or
self-employment or commercial activities; provided, however, if Xxxxx breaches
this Agreement, the Company may suspend payments hereunder only if it shall have
first terminated this Agreement pursuant to the provisions of Section 17 hereof.
6. PROFIT SHARING DISTRIBUTION. Xxxxx shall be entitled to all pension
or retirement benefits vested on his behalf in the Company's Profit Sharing
Trust & Plan, as amended from time to time (the "Plan"). At Xxxxx'x request, the
Company shall direct the Administrator of the Plan to provide Xxxxx with a lump
sum payment or appropriate rollover or other distribution of all vested benefits
under the terms of the Plan.
7. PRESS RELEASES; OTHER DISCLOSURES. No party shall issue any press
release with respect to the matters addressed herein until such press release
has been approved by all of the parties hereto; provided, however, neither party
will unreasonably withhold such consent and all the parties hereby acknowledge
their respective obligations to comply with all disclosure obligations under the
rules and regulations of the Securities and Exchange Commission and the NASD.
8. RETURN OF PROPERTY. Upon the termination of the Employment Agreement
on May 2, 2001, Xxxxx agrees to use his best efforts to conduct a diligent
search and return to the Company all Company credit cards, keys, policy manuals,
and Confidential Information. The Company similarly agrees to return to Xxxxx
any property of his which he identifies to the Company's Chief Executive
Officer.
9. NONDISCLOSURE; NONCOMPELITION; AND NONINTERFERENCE. The Company and
Xxxxx expressly acknowledge and agree that the provisions of Section 7 of the
Employment Agreement shall survive the execution and delivery of this Agreement
in accordance with the specific terms and conditions of such Section 7.
10. VOTING AGREEMENT. The parties hereto acknowledge and agree that the
Voting Agreement shall survive the execution and delivery of this Agreement and
remain in full force and effect in accordance with its terms.
11. RELEASES AND COVENANT NOT TO XXX. Each of the parties to this
Agreement (and for purposes of this Section 11 only, any reference to "party" or
"Xxxxx" shall include Xxxxx' s spouse) hereby releases, acquits and discharges
each of the other parties, on behalf of himself or itself, and his or its
respective directors, and former partners, principals, officers, if any, and the
directors, employees, agents, attorneys, insurance carriers, Affiliates,
successors and assigns of each of the other parties, and each of them, (the
"Released Parties") from any and all claims, causes of actions, whether direct
or indirect, known or unknown, demands, liabilities, actions, rights, damages of
any kind or nature, costs, charges, losses or expenses of whatsoever kind,
nature, or description, in law or equity, whether known or unknown, fixed or
contingent, which he or it had or now has, or which could have been asserted,
against any of said persons, growing out of, arising from, or in any way related
to the execution, delivery
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and performance of the Employment Agreement through the date hereof, the Voting
Agreement between Xxxxx and NUON, or arising out of or under, or by reason of,
any matter whatsoever, from the beginning of time to the date of this Agreement
other than acts of fraud and dishonesty against the Company. Notwithstanding the
foregoing, no release given herein shall prevent any party from bringing an
action for breach of this Agreement, any agreement executed contemporaneous with
or subsequent to this Agreement, or for breaches of the Employment Agreement
which may occur between the date hereof and May 2, 2001; provided, however, that
with respect to alleged breaches of the Employment Agreement, Xxxxx and the
Company acknowledge and agree that for purposes of the Company's performance
under the Employment Agreement, Xxxxx' s employment will terminate upon the
expiration of the Employment Agreement and the Company will be entitled to
pursue its business operations in contemplation of Xxxxx'x departure and may
thereby reduce Xxxxx'x responsibilities, authorities and functions without being
in breach of the Employment Agreement; provided further, however, that a Change
in Control (as that term is defined in the Employment Agreement), if any,
between the date hereof and the termination date will not give rise to any
further obligations by the Company to Xxxxx pursuant to Section 9 of the
Employment Agreement unless Xxxxx shall first provide the Company with written
notice on or before May 2, 2001, in accordance with Section 22 hereof advising
the Company of his election to declare a Termination After Change of Control
pursuant to Section 9 (c) of his Employment Agreement and disclaiming any and
all rights under this Agreement and any other agreement between Xxxxx and the
Company executed on the same day as this Agreement. Upon notifying the Company
of his election, which election shall be irrevocable, Xxxxx shall, if and when a
Termination After Change of Control has occurred, be entitled to receive the
benefits provided for in Section 9 (c) of the Employment Agreement, and shall
not be entitled to receive any of the consideration provided for in this
Agreement or any other agreement executed on the same day as this Agreement.
Notwithstanding Xxxxx'x disclaimer, those rights and privileges inuring to the
benefit of the Company hereunder shall nevertheless remain in full force and
effect and Xxxxx agrees to continue to perform and abide by those covenants
contained in this Agreement, including without exclusion those contained in
Sections 11 (Releases and Covenant Not to Xxx) and 15 (Non-Disparagement)
hereof. To the extent that any consideration has been paid to Xxxxx pursuant to
any of the aforementioned contemporaneously executed agreements prior to his
election hereunder, the same amount shall be deducted from any payment to be
made pursuant to Section 9 (c) of his Employment Agreement.
Without in any manner limiting the scope of the general release
contained in the foregoing paragraph, Xxxxx expressly releases the Released
Parties from all claims, causes of actions, and liabilities arising from or
relating to (a) any right which Xxxxx has, had or may have had to receive any
benefits or privileges by virtue of his office as President of the Company
and/or NCE Securities; (b) claims based upon oral contracts; (c) claims arising
under any federal or state statutes, including but not limited to, claims
asserting discrimination on the basis of age, race, color, sex, religion,
national origin, or veteran or handicap status and claims under the Age
Discrimination in Employment Act of 1967 ("ADEA"), as amended, ERISA, Title VII
of the 1964 Civil Rights Act and the Older Worker Benefit Protection Act; (d)
claims based upon personal injury, including without limitation, infliction of
emotional distress; (e) wrongful termination or breach of covenant of good faith
and fair dealing; and (f) claims asserting defamation, interference with
contract or business relationships or promissory estoppel.
Xxxxx covenants and agrees that he will never assert a claim or
institute any cause of action or file a charge based on claims, causes of action
and liabilities of every kind and description whatsoever, known or unknown,
foreseen and unforeseen, suspected and unsuspected, asserted or unasserted,
which Xxxxx has or may have against the Company, or any other Released Party by
reason of any fact, matter, or thing from the beginning of the world to the date
of this Agreement (except for claims arising out of the breach of any of the
Company's or other Released Party's obligations under this Agreement or other
agreements that may be executed contemporaneously, or the Company's breach of
the Employment Agreement following the date of this Agreement) with any court of
law or administrative tribunal, and further agrees that should he violate the
foregoing covenant not to xxx by asserting a claim, instituting an action or
filing a charge against the Company, or any other Released Party, which is
prohibited under this Agreement, Xxxxx will pay all of the Company's costs and
expenses (including, without limitation, attorneys' fees) of defending against
the suit incurred by the Company or any other Released Party. Xxxxx acknowledges
and agrees that the monetary benefits provided in this Agreement constitute
sufficient consideration for the Release and Covenant Not to Xxx contained
herein in that there are substantial benefits to Xxxxx.
Xxxxx acknowledges that the Company has notified him that, under
federal law (i) Xxxxx has twenty-one (21) days from the date of execution by
Xxxxx of this Agreement to consider the release and covenant not to xxx
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solely with respect to claims arising under the ADEA; and (ii) the release of
claims and covenant not to xxx under the ADEA are not enforceable for a period
of seven (7) days following the execution by Xxxxx of this Agreement and may be
revoked by Xxxxx during such time. Revocation of the release of claims under
ADEA and covenant not to xxx under ADEA may be effected by Xxxxx solely by
notifying the Company in writing of his election to revoke and delivering such
notice to the Company within the aforesaid seven (7) day period. Such revocation
shall not affect any of the other terms and provisions of this Agreement.
The Company, NUON and NCE Securities similarly covenant and agree that
they will never assert or institute any cause of action or file a charge arising
from or relating to Xxxxx'x employment or other association with the Company
through the date hereof.
12. REPRESENTATIONS. Each of the parties hereto represents to each of
the others that he or it has not filed any complaint or charges against any
party hereto, and in the case of the Company, against any of its affiliates,
directors, officers, employees and/or agents, with any federal, state, or local
agency or court.
13. NO ADMISSION OF LIABILITY. This Agreement is not, and shall not be
deemed to be, evidence of or an admission of liability on the part of the
parties hereto, but constitutes a compromise and accord in settlement of all
claims.
14. NO TRANSFER OF CLAIMS. The parties represent and warrant to each
other that none of them has heretofore transferred or assigned to any person or
entity, any right to assert any claim against any of the parties to this
Agreement or any person entitled to the benefits of this Agreement.
15. NON-DISPARAGEMENT. The parties covenant and agree that none of them
shall make any statements, written or oral, to any third party which disparages,
criticizes, discredits, or otherwise operates to the detriment of Xxxxx, the
Company, NCE Securities, and/or NUON, or their respective business reputation
and/or good will.
16. ADVICE OF COUNSEL. Each of the parties hereto acknowledges that
he/it has been advised that he/it has the right to consult with and has
consulted with an attorney of his/its choice prior to executing this Agreement
and has a full understanding of its terms and meanings.
17. BREACH OF AGREEMENT; COSTS AND ATTORNEY FEES. If either party,
acting in good faith, determines that the other has materially breached any
provision of this Agreement, the party claiming a breach shall provide prompt
written notice to the other of such breach specifically identifying such breach,
which notice shall be accompanied by evidence (whether written or testimonial)
which the party claiming a breach has relied upon in making its determination.
Thereafter, the other party shall have thirty (30) days to cure such breach or
provide information rebutting the claim of wrongdoing. In the event the breach
is continuing at the end of such period, the party claiming a breach shall be
entitled to declare this Agreement terminated. In the event such breach is
continuing for a period of thirty (30) days from the date of the original
notice, then the party claiming a breach may terminate its obligations hereunder
by notice to the other party of such termination of this Agreement. Each party
shall be responsible for their separate costs, expenses, attorneys' fees or
otherwise; provided, however, that if either party sues to enforce the terms of
this Agreement and prevails on his or its claims at trial, the losing party
shall pay all related costs, expenses and attorneys' fees of the prevailing
party.
18. COMMITMENT OF MAJORITY SHAREHOLDER. NUON covenants and agrees that
it will use its best efforts to assure the Company performs its obligations
under this Agreement.
19. ENTIRE AGREEMENT; GOVERNING LAW. This Agreement represents the
entire agreement of the parties hereto and supersedes all prior agreements and
understandings, whether in the form of past written agreements, drafts of
understanding or oral understandings; provided, however, the Indemnity Agreement
described in Section 2 hereof and the Voting Agreement referenced in Section 10
hereof shall remain in full force and effect, as shall any agreement executed
contemporaneous with this Agreement. This Agreement shall be construed under and
the rights of the parties hereto shall be governed by the laws of the State of
Ohio without regard to the principles of conflict of laws thereof. Any action
brought by any party to this Agreement arising out of or pertaining to the
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subject matter of this Agreement shall be brought in the Court of Common Pleas
of Summit County, Ohio or in the U.S. District Court for the Northern District
of Ohio. All parties consent to and waive any objection to venue and
jurisdiction in any of the foregoing courts, and do further hereby acknowledge
any of the aforementioned courts to be a proper forum.
20. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement. The signature of any party
to any counterpart, including any facsimile thereof, may be appended to any
other counterpart and when so appended shall constitute an original.
21. BINDING EFFECT. This Agreement shall inure to the benefit of not
only the parties, but their respective heirs, successors, assigns, subsidiaries,
affiliates, parents, officers, directors, employees, shareholders, agents,
attorneys, and representatives and shall be binding not only upon the parties
but also the aforesaid respective parties.
22. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, or twenty-four (24)
hours after being sent by confirmed facsimile transmission, with subsequent mail
delivery, or three (3) days after being mailed (by registered or certified mail,
return receipt requested), in each case to the parties at the following
addresses, or such other address for a party as shall be specified by like
notice:
a) If to Xxxxx:
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxx 00000
With a copy to:
Xxxxx X. Xxxxxx, Xx., Esq.
Schneider, Smeltz, Xxxxxx & XxXxxx P.L.L.
Suite 1000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
b) If to the Company or NCE Securities:
North Coast Energy, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: General Counsel
c) If to NUON:
Carel X.X. Xxx
Director of Strategy, Mergers & Acquisitions
Nv NUON
Xxxxxxx 00
0000 XX Xxxxx, Xxx Xxxxxxxxxxx
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In Witness Whereof, the parties have represented to one another that
they have carefully read the foregoing terms of this Agreement, that they know
and understand the contents of this Agreement, that they have authority to
execute this Agreement, that they have undertaken to sign the same as their own
respective free act and deed, having declared their intention to be bound
contractually by all such terms and conditions, and do hereby execute and
deliver this Agreement this 5TH day of December, 2000.
NORTH COAST ENERGY, INC.
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
Chief Executive Officer
NCE Securities, Inc.
/s/ Xxxx Xxxxx
-----------------
Xxxx Xxxxx
Vice-President
NUON International Projects bv
-----------------------
Carel X.X. Xxx
Director
/s/ Xxxxx Xxxxx
----------------
Xxxxx Xxxxx
SIGNATURES CONTINUE ON NEXT PAGE
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In Witness Whereof, the parties have represented to one another that
they have carefully read the foregoing terms of this Agreement, that they know
and understand the contents of this Agreement, that they have authority to
execute this Agreement, that they have undertaken to sign the same as their own
respective free act and deed, having declared their intention to be bound
contractually by all such terms and conditions, and do hereby execute and
deliver this Agreement this 5th day of December, 2000.
NORTH COAST ENERGY, INC.
-----------------------
Xxxx Xxxxx
Chief Executive Officer
NCE Securities, Inc.
-----------------------
Xxxx Xxxxx
Vice-President
NUON International Projects bv
/s/ Carel X.X. Xxx
---------------------
Carel X.X. Xxx
Director
-----------------------
Xxxxx Xxxxx
SIGNATURES CONTINUE ON NEXT PAGE
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The undersigned executes this Agreement for purposes of the matters
identified in Sections 6 and 11 hereof, together with the appropriate
representations also included herein.
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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