Exhibit 10-c
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made
effective as of January 17, 2000, by and between KLT Inc., a
Missouri corporation with its principal place of business at 0000
Xxxxxx, Xxxxxx Xxxx, XX 00000 (the "Company"), and Xxxxxxx X.
Xxxxx, an individual residing at 00000 Xxxxx, Xxxxxxx, XX 00000
(the "Employee"). Each of Company and Employee is a "Party", and
collectively they are the "Parties".
RECITALS
The Company desires to employ the Employee, and the Employee
desires to be employed by the Company. In consideration of the
mutual covenants and promises contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties agree
as follows:
1. Term of Employment. The Term (the "Initial Term") of
this Agreement shall commence on the date hereof (the
"Commencement Date") and, subject to the further provisions of
this Agreement, shall end on December 31, 2002; provided,
however, this Agreement shall be automatically renewed for
successive one (1) year periods ("Renewal Term") unless, at least
ninety (90) days prior to the expiration of the Initial Term or
any Renewal Term, either party gives written notice to the other
party specifically electing to terminate this Agreement at the
end of the Initial Term or any such Renewal Term. The Initial
Term and any Renewal Terms are sometimes collectively referred to
herein as the "Employment Period."
2. Title; Capacity. The Employee shall serve as President
and Chief Executive Officer of the Company. The Employee shall
be subject to the supervision of, and shall have such authority
as is delegated to him by, the Company's Board of Directors (the
"Board").
The Employee hereby accepts such employment and agrees to
undertake the duties and responsibilities inherent in such
position and such other duties and responsibilities as the Board
shall from time to time reasonably assign to him in such
position. The Employee shall have such general executive powers
and authority of supervision and management as are usually vested
in the office of the chief executive officer of a corporation.
The Employee agrees to devote such amount of his business time,
attention and energies to the business and interests of the
Company (and its affiliates as required by the Company's
investments and the Employee's positions therein) during the
Employment Period as may be reasonably required to perform his
duties and responsibilities hereunder. The Employee may pursue
personal investments and other business interests so long as such
activity does not materially interfere with his duties hereunder.
The Employee agrees to abide by reasonable rules, regulations,
instructions, personnel practices and policies of the Company,
and any reasonable changes therein which may be adopted from time
to time, to the extent that the foregoing are not inconsistent
with the provisions of this Agreement. The Employee acknowledges
receipt of copies of all such rules and policies committed to
writing as of the date of this Agreement.
In no event shall the Employee be required to perform any
duties or responsibilities, or otherwise take any actions that
would violate any restrictive covenants to which the Employee is
bound under the Agreement and Plan of Merger of Bracknell
Corporation dated as of September 30, 1999, or the Employment
Agreement between Custom Energy LLC and the Employee dated as of
January 1, 1997.
3. Compensation and Benefits.
a. Salary. The Company shall pay the employee, in
semi-monthly installments, an annual base salary of $125,000.00
for the one-year period commencing on the Commencement Date.
Such salary shall be subject to increase thereafter as determined
by the Board, after taking into account the recommendations of
the Compensation Committee of the Board.
b. Fringe Benefits. The Employee shall be entitled
to participate in all bonus and benefit programs that the Company
establishes and makes available to its employees, if any, to the
extent that Employee's position, tenure, salary, age, health and
other qualifications make him eligible to participate, provided,
however, that the Employee shall in any event be entitled to such
fringe benefits as are provided from time to time by the Company
to similarly situated senior executive officers, including health
and welfare benefits, disability insurance benefits, life
insurance benefits, vacation benefits, sick leave, automobile
usage or allowances, and club privileges.
c. Reimbursement of Expenses. The Company shall
reimburse the Employee for all reasonable travel, entertainment
and other expenses incurred or paid by the Employee in connection
with, or related to, the performance of his duties,
responsibilities or services under this Agreement, upon
presentation by the Employee of documentation, expense
statements, vouchers and/or such other supporting information as
the Company may request, provided, however, that the amount
available for such travel, entertainment and other expenses may
be fixed in advance by the Board. Upon prior approval by the
Board, the Company shall reimburse Employee, or directly pay for,
dues and membership fees for industry organizations relevant to
Employee's duties.
d. Incentive Compensation Plan. The Employee shall
be entitled to participate in the Company's Incentive
Compensation Plan (the "Incentive Plan") as the same may be in
effect from time to time. Initially, the Incentive Plan shall be
as set forth in Exhibit A attached hereto. The Employee's
account (the "Incentive Account") under the Incentive Plan shall
equal 30% of the Pool established pursuant to the Incentive Plan
(or such greater percentage of the Pool as may be approved by the
Compensation Committee of the Board). The Employee's rights with
respect to the Incentive Account upon or following any
termination of the Employee's employment shall be governed by
Section 5 hereof. In the event of any conflict between the
provisions of this Agreement and the Incentive Plan, with respect
to the Incentive Account or otherwise, the provisions of this
Agreement shall control. Unless otherwise defined herein or
inconsistent with this Agreement, capitalized terms used herein
with respect to the Incentive Plan shall have the meaning
ascribed to such terms in the Incentive Plan.
4. Employment Termination. The employment of the Employee
by the Company pursuant to this Agreement shall terminate upon
the occurrence of any of the following:
a. Expiration of the Employment Period in accordance
with Section 1.
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b. At the election of the Company, for "Cause", upon
the later of (x) receipt by the Employee of a written Notice of
Termination as contemplated by the last paragraph of this Section
4, or (y) compliance with the requirements of subsection iv of
this Section 4.b. "Cause" for such termination shall include,
and be limited to, the following:
i. Dishonesty of the Employee having the effect
of injuring the Company in a material respect;
ii. Willful misfeasance or nonfeasance of duty
intended to injure in a material respect or having the effect of
injuring in a material respect, the reputation, business or
business relationships of the Company or its respective officers,
directors or employees;
iii. Upon the Employee's conviction in a court of
competent jurisdiction, or the Employee's guilty plea or plea of
nolo contendere of any felony crime involving moral turpitude; or
iv. Upon the reasonable good faith determination
by the Board (after having given the Employee reasonably detailed
written notice of the claimed deficiency, and, in the case of a
deficiency which is susceptible to cure, an opportunity to cure
the deficiency within 30 days, and, in any event, the opportunity
within 15 days following such notice for the Employee (and/or, at
the Employee's option, Employee's counsel or other
representative) to make an oral and/or written presentation to
the Board responding to any such notice) that the Employee has
willfully failed to perform, in a material respect, his duties to
the Company under this Agreement (other than a failure resulting
from the Employee's illness, disability, or other incapacity).
c. Immediately upon the death of the Employee, or on
thirty (30) days notice from the Company following any disability
as a result of which Employee has been unable to regularly
perform a majority of his duties hereunder for a period in excess
of ninety (90) consecutive days ("Disability"). If the Employee
shall disagree with any determination by the Company regarding
Disability, then the question of such Disability shall be
submitted to an impartial and reputable physician for
determination, selected by mutual agreement of Employee and the
Company or, failing such agreement, selected by two physicians
(one of which shall be selected by the Company and the other by
the Employee), and such determination of the question of such
Disability by such physician or physicians shall be final and
binding on the Company and the Employee. The Company shall pay
the reasonable fees and expenses of such physician or physicians.
d. At any time, by written notice from the Employee
to the Company, for good reason. For purposes of this Section
4.d., "good reason" is defined as, and limited to (i) a Change of
Control (as defined below) of the Company or any Affiliate(s) in
direct or indirect control of the Company as of the date hereof
or at any time during the Employment Period; (ii) a failure of
the Company to comply with any material provision of this
Agreement which has not been cured within fifteen (15) days after
notice of such noncompliance has been given by the Employee to
the Company; (iii) a material adverse change by the Company of
any of the Employee's titles, offices, management functions,
duties or responsibilities, compensation or benefits; (iv) any
amendment or termination of the Incentive Plan without the
consent of the Employee that adversely affects, with respect to
the Employee or any other members of the
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Company's senior management team (which is defined to comprise
all officers of the Company), eligibility to participate,
computation of the Pool, baselines, thresholds, Realization Events,
valuation methodologies, allocations, payment provisions, effect of
termination of employment, or other restrictions, terms or
conditions relating to entitlement, measurement, or realization
of benefits under or with respect to the Incentive Plan, except
in connection with the termination of the Employee's employment
pursuant to Sections 4.a, 4.b., or 4.c. of this Agreement; or (v)
without the Employee's prior written consent, the Company
requiring the Employee to be based anywhere other than a major
metropolitan area within the continental United States, except
for required travel on the Company's business to an extent
substantially consistent with the Employee's present travel
obligations. A "Change of Control" for purposes of this
Agreement shall mean a change of control of the Company (for
purposes of this definition, the term "Company" shall be deemed
to include any Affiliate(s) in direct or indirect control of the
Company as of the date hereof or at any time during the
Employment Period) of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A (as in effect on the date hereof) promulgated under the
Securities Exchange Act of 1934, as in effect on the date hereof
(the "Exchange Act") assuming that the Company were then subject
to Regulation 14A; provided, however, that, without limitation,
such a change of control shall be deemed to have occurred if (A)
any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act; other than any underwriter or member of an
underwriting syndicate or group with respect to a public offering
of securities of the Company registered under the Securities Act
of 1933, the Company or any "person" who on the date hereof is a
director or officer of the Company or whose shares of Company
stock are treated as "beneficially owned" (as defined in Rule 13d-
3 under the Exchange Act, as in effect on the date hereof) by any
such director or officer) is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company's then-
outstanding securities, (B) less than a majority of the members
of the Board are persons who were either nominated for election
by the current directors of the Board or successors to such
directors selected by current directors of the Board, (C) the
stockholders of the Company approve a merger or consolidation of
the Company with any other entity, other than a merger or
consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the Company or such surviving entity)
at least 80 percent of the total voting power represented by the
Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or
(D) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets. For purposes hereof, a Change of Control shall
not be deemed to have occurred as a result of the consummation of
any reorganization of Kansas City Power & Light Company ("KCPL")
solely for purposes of establishing a holding company structure
wherein the stockholders of the entity owning all or
substantially all of the assets of KCPL immediately following
such reorganization are predominantly the same as the
stockholders of KCPL immediately prior to such reorganization.
As used in this Agreement, "Voting Securities" shall mean any
securities of the Company which vote generally in the election of
directors.
e. At the election of the Company or the Employee,
with or without cause upon 90 days written notice by one party to
the other.
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Any termination of the Employee's employment by the Company
or by the Employee shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide the basis for
termination under the provision so indicated. A Notice of
Termination shall not be given by the Company during any vacation
periods. Any purported termination of Employee's employment
which is not effected pursuant to a Notice of Termination that
complies with such requirements shall not be effective.
5. Effect of Termination.
a. Termination Arising From Expiration of the
Employment Period. In the event that the Employment Period
expires in accordance with Section 1 due to the giving of notice
by the Company of its election to terminate the Agreement, the
Company shall pay to the Employee the compensation and benefits
otherwise payable to him under Section 3 through the last day of
his actual employment by the Company. In addition, the Employee
shall be paid, within 30 days of such date, cash in an amount
equal to the amount remaining in the Employee's Incentive
Account, net of all applicable withholding taxes, as of the last
day of his actual employment by the Company.
b. Termination for Cause or at Election of Employee.
In the event the Employee's employment is terminated for Cause
pursuant to Section 4.b., or at the election of the Employee
pursuant to Section 4.e., the Company shall pay to the Employee
the compensation and benefits otherwise payable to him under
Section 3 through the last day of his actual employment by the
Company. In the event the Employee's employment is terminated
for Cause pursuant to Section 4.b, the Employee shall forfeit all
amounts remaining in his Incentive Account as of the date of
termination. If the Employee's employment is terminated at the
election of the Employee pursuant to Section 4.e., the Employee
shall be paid, within 30 days of such date, in addition to the
amounts set forth in the first sentence of this Section 5.b.,
cash in an amount equal to 50% of the amount remaining in the
Employee's Incentive Account, net of all applicable withholding
taxes, as of the last day of his actual employment by the
Company.
c. Termination at the Election of Company or for Good
Reason. In the event the Employee's employment is terminated at
the election of the Company pursuant to Section 4.e., or by the
Employee for good reason pursuant to Section 4.d., the Company
shall pay to the Employee the compensation and benefits otherwise
payable to him under Section 3 through the last day of his actual
employment by the Company and, if Employee's employment is
terminated within one year of the Commencement Date, then also
for the remainder of the Employment Period as if the Employee had
continued his employment for the remainder of the Employment
Period. In addition, the Employee shall be paid, within 30 days
of such date, cash in an amount equal to the amount remaining in
the Employee's Incentive Account, net of all applicable
withholding taxes, as of the last day of his actual employment by
the Company; provided, further, that if Employee's employment is
terminated within one year of the Commencement Date, then the
Employee shall be deemed, for purposes only of participation in
the Incentive Plan, to have continued participation in the
Incentive Plan through the last day of the Initial Term and shall
be entitled to all payments as due and payable pursuant to the
terms of the Incentive Plan, with any amount remaining in
Employee's Incentive Plan as of the last day of the Initial
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Term being due and payable within 30 days of such date, net of all
applicable withholding taxes. For purposes of this Agreement and
notwithstanding any contrary provision in the Incentive Plan, in
the event that Employee's employment is terminated at the
election of the Company pursuant to Section 4.e. or by the
Employee for good reason pursuant to Section 4.d. prior to the
expiration of the Employment Period, then the amount remaining in
the Employee's Incentive Account as of the applicable time
prescribed by this Section 5.c., and which has not been the
subject of a Realization Event as of such time, shall be
determined by the appraisal procedure set forth in Section 5.h.
rather than by the methodology listed in Exhibit B to the
Incentive Plan.
d. Termination for Death or Disability. If the
Employee's employment is terminated by death or because of
disability pursuant to Section 4.c., the Company shall pay to the
estate of the Employee or to the Employee, as the case may be,
the compensation which would otherwise be payable to the Employee
up to the end of the month in which the termination of his
employment because of death or disability occurs. In addition,
the Employee shall be paid, within 90 days following such month
end, cash in an amount equal to the amount remaining in the
Employee's Incentive Account, net of all applicable withholding
taxes, as of 60 days following such month end. Further, the
Employee shall be paid, as promptly as practicable, all amounts
payable under the provisions of Section 5.g, below.
e. Survival. The provisions of Sections 6 and 7, and
any rights of the Employee with respect to compensation or
benefits, including the Employee's Incentive Account, as herein
provided, shall survive the termination of this Agreement.
f. No Mitigation. The Employee shall not be required
to mitigate the amount of any payment or benefit provided to the
Employee under this Agreement or the Incentive Plan by seeking
other employment or otherwise, nor shall the amount of any
payment or benefit provided to the Employee under this Agreement
or the Incentive Plan be reduced or offset by any compensation
earned or received by the Employee from another employer after
the termination of the Employee's employment under this
Agreement.
g. Realization Events. For purposes of this
Agreement and notwithstanding any contrary provision in the
Incentive Plan (i) any Realization Event that occurs within 120
days after the Employee's employment is terminated (a) at the
election of the Company pursuant to Section 4.e., or (b) by the
Employee for good reason pursuant to Section 4.d., or (c)
pursuant to Section 4.c., shall be deemed to have occurred as of
the last day of such actual employment and Amounts Realized in
connection with such Realization Event shall be allocated to the
Employee's Incentive Account, and the Employee shall be entitled
to an Award and payment based thereupon pursuant to the terms of
the Incentive Plan as modified by the terms of this Agreement,
and (ii) in the event that the Corporation has, prior to
termination of the Employee's employment under Sections 4.c.,
4.d. or 4.e. this Agreement, entered into a definitive agreement
that contemplates an event that would constitute a Realization
Event under the Incentive Plan and such Realization Event occurs
within one year following any termination of the Employee's
employment under this Agreement, then such Realization Event
shall be deemed to occur during the Employment Period and Amounts
Realized in connection with such Realization Event shall be
allocated to the Employee's Incentive Account, and the Employee
shall be entitled to an Award and payment based thereupon
pursuant to the terms of the Incentive Plan as modified by the
terms of this Agreement.
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h. Appraisal Procedure. The appraisal procedure
contemplated by Sections 5.c. and 5.d. shall consist of the
following: (i) the Employee shall select a nationally recognized
investment banking firm ("Employee Appraiser") to determine the
fair market value of the assets in the Investment Account of the
Employee, as of the applicable time period (the "Initial
Appraisal"), within 30 days of such Employee's termination of
actual employment by the Company, (ii) if the Company does not
object to the Initial Appraisal within 15 days after receipt
thereof, such appraisal shall be final and binding upon the
Employee and the Company, (iii) if the Company objects to the
Initial Appraisal with respect to an amount equal to 10% or more
of the Initial Appraisal, then the Company shall promptly so
notify the Employee and select a different nationally recognized
investment banking firm (the "Company Appraiser") who shall
review the Initial Appraisal and issue its own appraisal of the
fair market value of the assets in the Employee's Investment
Account as of the applicable time period (the "Company
Appraisal"), and shall deliver the Company Appraisal to the
Employee within 30 days of such notification to the Employee,
(iv) within 10 days after the delivery of the Company Appraisal
to the Employee, the Employee Appraiser and the Company Appraiser
shall meet in an effort to resolve any questions or differences
between their respective appraisals, (v) if the Employee
Appraiser and Company Appraiser agree on the fair market value of
the assets in the Employee's Incentive Account as of the
applicable time period, such agreed upon value shall be final and
binding upon the Employee and the Company, (vi) if no agreement
as to such fair market value is reached between the Employee
Appraiser and the Company Appraiser, such appraisers shall select
a mutually acceptable appraiser (the "Third Appraiser") within
ten days after their initial meeting and such fair market value
shall be determined by the Third Appraiser within 30 days of its
selection and such appraisal shall be final and binding upon the
Employee and the Company, and (vii) the appraisal performed by
the Employee Appraiser, the Company Appraiser or the Third
Appraiser shall not take into account discounts arising from the
number of shares or amount of securities of any Affiliate held in
the Employee's Investment Account (sometimes referred to as
minority discounts or illiquidity discounts.).
6. Non-Compete.
a. During the period of the Employee's actual
employment by the Company and for the Applicable Non-Compete
Period (as defined below), the Employee will not directly or
indirectly, in the territory comprised by the continental United
States:
(1) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other than
as the record holder or beneficial owner of not more than five
percent (5%) of the total outstanding stock of, a publicly held
company), engage in the business of developing, producing,
marketing or selling products or services that are of the kind or
type developed, produced, marketed or sold by the Company or its
Affiliates (as defined in the Incentive Plan), while the Employee
was employed by the Company or that are of the kind or type
described in reasonable detail in the written business plan of
the Company for the year during which the Employee's employment
is actually terminated, provided that such products or services
are reasonably expected to be developed, produced, marketed and
sold on a commercially significant basis during that year or the
immediately succeeding year (provided further, however, that the
Employee may hold stock in, and otherwise hold or act in any
capacity with respect to, Bracknell Corporation); or
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(2) recruit, solicit or induce, or attempt to
induce employee or employees of the Company to terminate their
employment with, or otherwise cease their relationship with, the
Company (other than by means of general advertisements); or
(3) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the
clients, customers or accounts of the Company which were
contacted, solicited or served by the Employee while employed by
the Company.
With respect to Section 6.a.(1) above, the Applicable Non-
Compete Period shall be twelve months, provided, however, that
such period shall be reduced to six months in the event that the
Employee's employment is terminated at the election of the
Company pursuant to Section 4.a or 4.e. or if the Employee's
employment is terminated for good reason pursuant to Section 4.d.
With respect to Section 6.a.(2) and (3) above, the Applicable Non-
Compete Period shall be eighteen months, provided, however, that
such period shall be reduced to six months in the event that the
Employee's employment is terminated at the election of the
Company pursuant to Section 4.a. or 4.e. or if the Employee's
employment is terminated for good reason pursuant to Section 4.d.
b. If any restriction set forth in this Section 6 is
found by any court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it
shall be interpreted to extend only over the maximum period of
time, range of activities or geographic area as to which it may
be enforceable.
c. The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the
Company and are considered by the Employee to be reasonable for
such purpose. The Employee agrees that any breach of this
Section 6 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in
addition to such other remedies which may be available, the
Company shall have the right to seek specific performance and
injunctive relief. The prevailing party in a legal proceeding to
remedy a breach under this Agreement shall be entitled to receive
its reasonable attorney's fees, reasonable expert witness fees,
and reasonable out-of-pocket costs incurred in connection with
such proceeding, in addition to any other relief it may be
granted.
d. In the event the Company terminates this Agreement
without cause pursuant to Section 4.c., the restrictions
contained in Section 6.a.(1) shall not apply.
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7. Proprietary Information and Developments
a. Proprietary Information.
i. Employee agrees that all information and know-
how, whether or not in writing, of a private, secret or
confidential nature concerning the Company's business or
financial affairs (collectively, "Proprietary Information") is
and shall be the exclusive property of the Company. By way of
illustration, but not limitation, Proprietary Information may
include inventions, products, processes, methods, techniques,
formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data,
computer programs, and customer and supplier lists, provided that
the foregoing reasonably relate to the Company's business or
financial affairs. Employee will not disclose any Proprietary
Information to others outside the Company or use the same for any
unauthorized purposes without written approval by an officer of
the Company, either during or after his employment, unless and
until such Proprietary Information has become public knowledge
without fault by the Employee.
ii. Employee agrees that all files, letters,
memoranda, reports, records, data, sketches, drawings, laboratory
notebooks, program listings, or other written, photographic, or
other tangible material containing Proprietary Information,
whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive
property of the Company to be used by the Employee only in the
performance of his duties for the Company.
iii. Employee agrees that his obligation not to
disclose or use Proprietary Information of the types set forth in
paragraphs (i) and (ii) above, also extends to such types of
information, know-how, records and tangible property of customers
of the Company or suppliers to the Company or other third parties
who may have disclosed or entrusted the same to the Company or to
the Employee in the course of the Company's business
(collectively, "Third Party Proprietary Information").
iv. The Company agrees that Proprietary
Information and Third Party Proprietary Information does not
include information or know-how which (A) was known to the
Employee prior to the time of disclosure of such Proprietary
Information or Third Party Proprietary Information to the
Employee; (B) is available from a public source through no breach
by the Employee of a confidentiality agreement relating to
Proprietary Information or Third Party Proprietary Information;
(C) is obtained by the Employee lawfully from a third party
through no breach by Employee or such third party of a
confidentiality agreement relating to Proprietary Information or
Third Party Proprietary Information; (D) is independently
developed or derived by the Employee without the necessity of use
of any Proprietary Information or Third Party Proprietary
Information disclosed to the Employee in connection with the
Employee's employment hereunder; or (E) is required to be
disclosed by law, regulation, rule, act, or order of any
governmental or judicial authority or agency.
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b. Developments.
i. Employee will make full and prompt disclosure
to the Company of all inventions, improvements, discoveries,
methods, developments, software, and works of authorship, whether
patentable or not, which are created, made, conceived or reduced
to practice by the Employee or under his direction or jointly
with others and which relate to the present active business,
research, or development of the Company and are made and
conceived by the Employee in the performance of his duties and
responsibilities hereunder or using the Company's tools, devices,
equipment or Proprietary Information (all of which are
collectively referred to in this Agreement as "Developments").
In no event shall Developments be deemed to include inventions,
improvements, discoveries, methods, developments, software, works
of authorship, techniques, tools, know-how, or information which
the Employee had prior to the Commencement Date.
ii. Employee agrees to assign and does hereby
assign to the Company (or any person or entity designated by the
Company) all his right, title and interest in and to all
Developments and all related patents, patent applications,
copyrights and copyright applications.
iii. Employee agrees to cooperate fully with the
Company, both during and after his employment with the Company,
with respect to the procurement, maintenance and enforcement of
copyrights and patents (both in the United States and foreign
countries) relating to Developments. Employee shall sign all
papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments,
assignment of proprietary rights, and powers of attorney, which
the Company may reasonably deem necessary in order to protect its
rights and interests in any Development.
c. Other Agreements. Employee hereby represents that
he is not bound by the terms of any agreement with any previous
employer or other party to refrain from using or disclosing any
trade secret or confidential or proprietary information in the
course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such
previous employer or any other party, except for the Employee's
agreements with Bracknell Corporation and Custom Energy.
Employee further represents that his performance of all the terms
of this Agreement and as an employee of the Company does not and
will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or
in trust prior to his employment with the Company, provided that
the Company agrees that the Employee shall have no obligation to
disclose or utilize any such proprietary information, knowledge
or data in the performance of any terms of this Agreement or
otherwise as an employee of the Company.
d. Company's Right to Notify Subsequent Employers.
The Company may do all permissible things, and take all
permissible action, reasonably necessary to protect its rights
under this Section 7, including without limitation notifying any
subsequent employer of the Employee of the existence of (and
furnishing to any such employer) the provisions of this
Agreement.
8. Indemnification. The Company shall defend and indemnify
Employee from and against, and to exculpate Employee from, any
and all claims, actions, suits, proceedings, fines, damages,
judgments, costs and expenses, or other liabilities arising from
or relating to the
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performance by the Employee of his duties
hereunder, or otherwise with respect to his status, as an
employee, officer, or director of the Company, on a basis that is
at least as favorable to the Employee as the broadest
indemnification available or provided by the Company to any of
its employees, officers, or directors, whether pursuant to
applicable corporate documents or separate written agreement, or
if more extensive, on as broad a scope of indemnification and
exculpation from liability as permitted by law.
9. Legal Expenses. The Company shall promptly pay, or
promptly reimburse the Employee for, all reasonable legal fees
and expenses of Employee's personal legal counsel incurred by the
Employee in connection with the drafting, negotiation and advice
rendered with respect to this Agreement, the Incentive Plan, and
matters reasonably related thereto, in an aggregate amount not to
exceed $15,000. In addition, the Company shall promptly pay, or
promptly reimburse the Employee for all reasonable legal fees and
expenses incurred by the Employee in connection with any
litigation between the Company and the Employee (a) contesting
the validity of this Agreement or the Incentive Plan, or (ii)
enforcing the Employee's rights under this Agreement or the
Incentive Plan, in either case if the Employee prevails on the
merits.
10. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon
personal delivery or upon deposit in the United States Post
Office, by registered or certified mail, postage prepaid,
addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate
to the other in accordance with this Section 10.
11. Pronouns. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural, and vice versa.
12. Entire Agreement. This Agreement constitutes the
entire agreement between the Parties and supersedes all prior
agreements and understandings, whether written or oral, relating
to the subject matter of this Agreement.
13. Amendment. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the
Employee.
14. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State
of Missouri, without giving effect to that State's conflict of
laws provisions.
15. Choice of Venue. All actions or proceedings with
respect to this Agreement shall be instituted only in any state
or federal court sitting in Xxxxxxx County, Missouri, and by
execution and delivery of this Agreement, the parties irrevocably
and unconditionally subject to the jurisdiction (both subject
matter and personal) of each such court and irrevocably and
unconditionally waive: (a) any objection that the parties might
now or hereafter have to the venue of any of such court; and (b)
any claim that any action or proceeding brought in any such court
has been brought in an inconvenient forum.
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16. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of both Parties and their
respective successors and assigns, including any corporation with
which or into which the Company may be merged or consolidated, or
which may succeed to its assets or business, subject to the
Employee's rights under Section 4.d., and provided, however, that
the obligations of the Employee are personal and shall not be
assigned by him.
17. Waiver. No delay or omission by the Company in
exercising any right under this Agreement shall operate as a
waiver of that or any other right. A waiver or consent given by
the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any
right on any other occasion.
18. Captions and Headings. The captions of the sections of
this Agreement are for convenience of reference only and in no
way define, limit or affect the scope or substance of any section
of this Agreement.
19. Severability. In case any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the
validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.
20. Counterparts. This Agreement may be executed in a
number of counterparts and all of such counterparts executed by
the Company or the Employee, shall constitute one and the same
agreement, and it shall not be necessary for all parties to
execute the same counterpart hereof.
21. Facsimile Signatures. The parties hereby agree that,
for purposes of the execution of this Agreement, facsimile
signatures shall constitute original signatures.
22. Incorporation by Reference. The preamble and recitals
to this Agreement are hereby incorporated by reference and made a
part hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year set forth above.
KLT Inc.
/s/X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Chairman of the Board
EMPLOYEE:
/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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