Exhibit 10.16
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
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May 27, 1999
The parties to this Agreement are DQE Energy Services, Inc. (the
"Company"), a subsidiary of DQE, Inc., and Xxxxxx Xxxxxxxxx, a key management
employee of the Company (the "Employee"). The Company has established the DQE
Energy Services, Inc. Equity Participation Plan (the "EPP"), effective January
1, 1999, under which designated participants are provided a financial interest
in further growth and profitability of the Company and a financial interest to
achieve pre-established minimum individual and Company performance goals. The
Employee has been designated as a participant of the EPP. This Agreement is the
"Non-Compete and Confidentiality Agreement" required under Article IV of the EPP
as a condition of participation.
Accordingly, in consideration of the foregoing, and intending to be
legally bound, the parties to this Agreement agree as follows:
1. Acknowledgments. The Employee acknowledges that: (a) the Company is
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presently engaged in the following businesses: The ownership, operation and
maintenance of energy facilities and independent power projects and the sale and
distribution of outputs from such facilities to customers under long-term
agreements; and construction or operation of facilities for the production of
E-Fuel(R)or similar technologies or the commercialization, distribution or sale
of such products (collectively, the "Present Business of the Company"); (b) as a
key employee of the Company, the Employee has been and will continue to be in a
position of trust and confidence in which the Employee will learn of, have
access to, and develop proprietary, confidential, and trade secret information
related to the business and operation of the Company; (c) the Company would be
seriously and irreparably injured by unauthorized or inappropriate disclosure of
any such information; (d) the documents and information regarding the Company's
customers, suppliers, services, products, techniques, methods of operation,
business plans and forecasts, sales, pricing, and costs are highly confidential
and constitute trade secrets; (e) the Employee has developed and will further
develop relationships of special trust
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and confidence with the Company's customers and its employees, and such
relationships of trust and confidence are of great value and importance to the
Company and are for the Company's exclusive benefit; (f) in exchange for the
covenants and other promises made by the Employee in this Agreement the Employee
has received valuable rights; (g) the Employee has read and understands the
provisions of this Agreement and the Employee has been given an opportunity for
the Employee's legal counsel to review this Agreement; and (h) the provisions of
this Agreement are reasonable.
2. Disclosure of Confidential Information. Confidential Information
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(as defined below) shall at all times remain the property of the Company. The
Employee will safeguard and maintain on the premises of the Company, to the
extent possible in the performance of the Employee's work for the Company, all
documents and things that contain or embody Confidential Information. Except as
required as part of the Employee's duties to the Company, the Employee will not,
during his employment by the Company or thereafter, directly or indirectly use,
divulge, disseminate, disclose, lecture upon, or publish any Confidential
Information without having first obtained written permission from the Company to
do so. Upon termination of employment, or upon request by the Company, the
Employee will deliver to the Company all materials containing Confidential
Information then in the Employee's possession or under the Employee's control.
"Confidential Information" shall mean all information disclosed to the
Employee or known by the Employee as a consequence of or through the Employee's
employment by the Company, which is not generally known in the industry in which
the Company and/or an affiliate (i.e., another company the majority interest of
which is owned by the Company or by a direct or indirect parent or subsidiary of
the Company) is or may become engaged, about the Company's or an affiliates'
business, products, processes, and services, including but not limited to
information relating to research, development, inventions, computer program
designs, flow charts, source and object codes, products and services under
development, pricing and pricing strategies, marketing and selling strategies,
power generating, servicing, purchasing, accounting, engineering, costs and
costing strategies, sources of supply, customer lists, customer requirements,
business methods or practices, training and training programs, and related
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documentation. It includes, but is not limited to, proprietary information and
trade secrets of the Company and its affiliates. It will be presumed that
information supplied to the Company and its affiliates from outside sources is
Confidential Information unless and until it is designated otherwise.
3. Restrictions on Competition. The Employee covenants and agrees that
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while employed by the Company and for a period of one (1) year following the
termination of the Employee's employment for any reason, the Employee shall not
engage, directly or indirectly, whether as principal or as agent, officer,
director, employee, consultant, shareholder, independent contractor, or
otherwise, alone or in association with any other domestic or foreign person,
corporation or other entity, in a Competing Business (as defined below) within
the continental United States of America; provided, however, that the Employee
shall have the right to accept employment with a Competing Business whose
business is diversified (the "Diversified Business"), if the employment is with
a part of the Diversified Business which is not a Competing Business and if,
prior to accepting such employment, the Employee furnishes written assurances
reasonably satisfactory to the Company from the Diversified Business and from
the Employee that the Employee will not render services directly or indirectly
in connection with any Competing Business. The term "Competing Business" shall
mean (a) Acquisition Partners, Inc., and (b) any person, corporation, or other
entity engaged in (i) the Present Business of the Company (as defined in Section
1 of this Agreement), or (ii) any other business in which the Company was
engaged, or with respect to which the Company had taken substantial steps to
engage in, as of the Employee's date of termination of employment. The Employee
acknowledges that the Company conducts or intends to conduct business within the
geographic area specified and, therefore, the Employee acknowledges that this
restriction is reasonable and necessary to protect Company's business and that
it will not prevent the Employee's gainful employment by others.
4. Solicitation of Customers. The Employee covenants and agrees that
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while employed by the Company, and for a two (2) year period following
termination of employment for any reason, the Employee shall not, directly or
indirectly, solicit the business of, or do business with, any Customer, or
otherwise deal in a manner adverse to the Company with respect
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to such Customer. The term "Customer" shall mean any customer, supplier, or
prospective customer or supplier of the Company or an affiliate of the Company
with whom the Employee has or had direct or indirect contact or about whom the
Employee may have acquired any knowledge while employed by the Company.
5. Solicitation of Employees. During the Employee's employment, and
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for a two (2) year period following termination of employment for any reason,
the Employee shall not, directly or indirectly, solicit the services of any
employee of the Company, induce such employees to terminate their employment, or
otherwise deal in a manner adverse to the Company with respect to such
employees. If, during the Employee's employment, the Employee is approached or
contacted by any employee or former employee of the Company suggesting,
proposing, recruiting, or inducing the Employee to terminate employment with the
Company, the Employee shall notify the Company immediately in writing.
6. Ownership of Intellectual Property. The Employee agrees that all
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inventions, improvements, developments and/or discoveries (whether or not
patentable), and all works of authorship (whether or not copyrightable)
(hereinafter collectively "Intellectual Property"), which are conceived of,
created, or made within the scope of the Employee's employment by the Company,
whether solely or jointly with others, shall be the sole and exclusive property
of the Company. The Employee further agrees to promptly and fully disclose all
such Intellectual Property and to execute, acknowledge, and deliver, upon
request of the Owner and without further compensation, either during or
subsequent to employment, all instruments which are desirable or necessary to
prosecute an application for and to acquire, maintain, and enforce all patents,
copyrights or registrations covering such Intellectual Property in all
countries. Moreover, the Employee hereby conveys, assigns, and transfers the
Employee's entire right, title, and interest in and to such Intellectual
Property to the Company and otherwise agrees to cooperate as necessary to
perfect the Company's rights and ownership to such Intellectual Property. Upon
termination of employment, or upon request by the Company, the Employee will
deliver to the Company all materials relating to Intellectual Property then in
the Employee's possession or under the Employee's control.
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7. Rights and Remedies Upon Breach. If the Employee breaches, or
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threatens to breach, any material terms and conditions of this Agreement, then
the Company shall have the following rights and remedies, each of which shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity:
(a) Specific Performance. The right and remedy to have all provisions
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of this Agreement specifically enforced by any court having equity
jurisdiction, including obtaining an injunction to prevent any continuing
violation of this Agreement; the Employee acknowledges that the Employee's
services to the Company are of a unique character and have a special value
to the Company, that any such breach or threatened breach will cause
irreparable injury to the Company, and that money damages will be difficult
to ascertain and will not provide an adequate remedy to the Company.
(b) Accounting. The right and remedy to require the Employee to
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account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by the Employee
as a result of any transactions constituting a breach of any material
provision of this Agreement.
(c) Damages, Costs, and Attorneys Fees. If the Employee is found to
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have breached this Agreement by a court, the Employee shall be liable for
and agree to pay the Company: (i) all damages suffered by the Company as a
result of the breach, and (ii) all costs and reasonable attorneys fees and
costs incurred by the Company to enforce its rights under this Agreement.
(d) Effect Under the EPP. A breach of the Employee's obligations under
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this Agreement shall affect the Employee's rights under the EPP in the
manner set forth in the EPP .
8. Obligations Survive Termination of Employment. The termination of
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the Employee's employment for whatever reason shall not impair or relieve the
Employee of any
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of the Employee's obligations under this Agreement which, by their express terms
or by implication, extend beyond the term of the Employee's employment.
9. Binding Effect and Assignability. This Agreement may not be
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assigned by either party without the prior written consent of the other party,
except that in the event Company should undergo any change in ownership or
change in structure or control, or should Company transfer some or all of its
assets to another entity, this Agreement may be assigned by Company without the
Employee's further consent to any company, business, partnership, individual or
entity , and that the Employee will continue to remain bound by this Agreement.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legatees, devisees, personal
representatives, successors and assigns.
10. Notice to New Employer and Notice to the Company. The Employee
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agrees that, prior to the commencement of any new employment, the Employee will
furnish the new employer with a copy of this Agreement. The Employee also agrees
that the Company may advise any new or prospective employer of the Employee of
the existence and terms of this Agreement and furnish the employer with a copy
of this Agreement. Accordingly, the Employee agrees to notify the Company prior
to the commencement of any new employment of the name of the new employer.
11. Authorization to Modify Restrictions. It is the intention of the
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parties that the provisions of this Agreement shall be enforceable to the
fullest extent permissible by law, and that the unenforceability of any
provision, in whole or in part, shall not render unenforceable, or impair, the
remaining parts and provisions of this Agreement. If any provision of this
Agreement shall be deemed unenforceable, in whole or in part, this Agreement
shall be deemed amended to delete or modify the offending part and to alter the
Agreement to render it valid and enforceable. Should a court determine that the
character, duration, or geographical scope of any covenant of this Agreement is
unreasonable in light of the circumstances as they then exist, then it is the
intention and the agreement of the parties that this Agreement shall be
construed by the court so as to impose only those restrictions on the conduct of
the Employee
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which are reasonable in light of the circumstances as they then exist and as are
necessary to assure the Company of the intended benefit of this Agreement.
12. Tolling. The periods of time set forth in Section 3, 4, and 5 of
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this Agreement shall be extended, at the option of the Company, for a period of
time equal to all periods during which the Employee is or was in violation of
such provision and to extend the restricted period to run from the date of any
injunction which may be issued against the Employee to enable the Company to
receive the full benefit of these provisions.
13. Waiver. Waiver of any term or condition of this Agreement by any
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party shall not be construed as a waiver of a subsequent breach or failure of
the same term or condition, or as a waiver of any other term or condition of
this Agreement.
14. Governing Law. This Agreement and all determinations made and
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actions taken pursuant to this Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania other than the conflict of laws provisions of such
laws, and shall be construed in accordance therewith.
15. Consent to Jurisdiction and Service of Process. The Company and
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the Employee shall be deemed to have expressly agreed and consented to the
personal jurisdiction of the Court of Common Pleas for Allegheny County,
Pennsylvania and/or the United States District Court for the Western District of
Pennsylvania with respect to any dispute or controversy related to, arising
under, or in connection with this Agreement. The Company and the Employee shall
also be deemed to have expressly agreed that such courts are convenient forums
for the parties to any such controversy or dispute and for any potential
witnesses and that process issued out of any such court or in accordance with
the rules of practice of such court may be served by mail or other forms of
substituted service to the Company at the address of its principal executive
office and to the Employee at his or her last known address as reflected in the
Company's records.
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16. Termination of Employment. The Employee's employment may be
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terminated at any time by the Company for any reason, with or without Cause. The
Company shall continue to pay the Employee's base salary and all health and
welfare benefits for 52 weeks to the Employee as severance pay upon any
termination by Company without Cause (as defined in the EPP). Pension benefits
will continue to accrue during the severance period if and to the extent
permitted by the applicable plan or plans and the law. No severance pay will be
due and payable if Employee is terminated for Cause or resigns from employment.
17. Entire Agreement. This Agreement, together with the EPP and the
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ancillary documents referred to in the EPP, embody the entire agreement and
understanding between the parties and supersede all prior agreements and
understandings, including without limitation all prior non-competition and
confidentiality agreements between the parties. Notwithstanding the foregoing,
this Agreement shall have no effect on the Employee' s rights, if any, with
respect to severance pay and benefits under the terms of the Severance
Agreement, dated as of April 4, 1997 (the "Severance Agreement"), it being
understood that this reference to the Severance Agreement shall not be construed
as an admission or representation by any party with respect to the current or
future legal effect of the Severance Agreement.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxxx
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WITNESS EMPLOYEE
DQE ENERGY SERVICES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
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WITNESS
Title: Chairman of the Board
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