Exhibit 10.2
TAMPA ELECTRIC COMPANY
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE (the "Agreement") is made and
entered into this day of March, 1998, by and between XXXXX
X. XXXXXXXX, 00000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Officer")
and TAMPA ELECTRIC COMPANY (the "Company").
WHEREAS, the Officer is currently employed in the position of
President and Chief Operating Officer; and
WHEREAS, the Officer and the Company have agreed that it is in
their mutual best interests that the Officer no longer serve in his
present position or to continue his employment with the Company
commencing April 1, 1998, subject to the terms and conditions of this
Agreement, and;
WHEREAS, in recognition of the Officer's service to the Company,
the Company desires to extend certain benefits and to make certain
payments to the Officer in order to effect a just separation; and
WHEREAS, the parties have mutually agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. RESIGNATION DATE
(a) The Officer hereby resigns his employment with the Company
effective as of April 1, 1998 (the "Resignation Date").
(b) Contemporaneously with the Officer's execution and delivery
of this Agreement, the Officer agrees to deliver the attached letter
of resignation from his position of President and Chief Operating
Officer of Tampa Electric Company.
(c) The Officer and the Company agree to cooperate in the
development of joint internal and external announcements prior to the
Resignation Date in connection with his resignation. Upon issuance
of such announcements, the Officer agrees that he will refer all
inquiries from the news media to the Company for handling. The
Officer and the Company shall approve a statement which sets out the
reason for the Officer's resignation which shall be used in the event
that the Company is contacted by any prospective employer or by any
person or company seeking information about the reason for such
Officer's resignation.
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Exhibit 10.2
2. COMPENSATION AND BENEFITS
(a) From the date of this Agreement up to the Resignation Date,
the Officer shall remain a full-time employee of the Company in the
aforesaid position, shall continue to receive his monthly base salary
of $26,667.00 per month and shall remain eligible for all of the
Company's employee benefit plans in accordance with their terms. From
the date of this Agreement, the Officer shall have no duties and
responsibilities and shall not represent or hold himself out to have
a u thority to represent the Company unless he is specifically
authorized to do so in writing by the Company's Chief Executive
Officer or his designee.
(b) Subject to the issuance of the announcement contemplated by
Section 1(c), the Company shall make payments to the Officer as
follows:
(i) a lump-sum payment for his accrued but unused vacation
allowance for 1998 as specified in Administrative
Policy I.3.1, Paragraph III B;
(ii) a lump-sum payment comprised of the following:
(x) an amount equal to two times the sum of the
Officer's base salary as of the Resignation Date and
the average of his incentive payments for the calendar
years 1996 and 1997; and
(y) an amount equal to the present value of two (2)
additional years of age and service credit under the
Officer's Supplemental Executive Retirement Plan (the
"SERP").
(iii) a payment equal to the present value of the
Officer's SERP as of the Resignation Date, paid as a lump-
sum in accordance with the Officer's election.
(c) All of the restricted stock granted to the Officer under the
TECO Energy, Inc. 1996 Equity Incentive Plan shall vest for the
benefit of the Officer as of the Resignation Date subject to the
provisions of such plan.
(d) All of the Officer's outstanding TECO Energy, Inc. stock
options shall remain exercisable by the Officer for the term of each
applicable stock option grant in accordance with the provisions of
such grant.
(e) All benefits granted or amounts paid by the Company as
provided in Sections 2(a), (b), and (c) above shall be reduced by the
amount of applicable FICA and federal withholding taxes.
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Exhibit 10.2
(f) For a period of six (6) months from the Resignation Date,
the Company agrees to purchase from the Officer his primary residence
located at 15103 Contoy Place in Tampa, Florida for an amount equal to
fair market value based on an appraisal by a qualified appraiser
agreed to by the Officer and the Company. During the twelve (12)
months following the date of this Agreement, the Company will
reimburse the Officer for moving and storage expenses related to his
relocation from Tampa, Florida to another domicile and temporary
living expenses in such domicile, if necessary, for up to six (6)
months during such period which combined expenses for moving, storage
and temporary living, in the aggregate, do not exceed $17,500.00 and
are supported by proper documentation.
(g) For a period of two (2) years from the Resignation Date, the
Company will reimburse the Officer for the amount of the premium for
the Officer's medical insurance which he obtains pursuant to COBRA
upon receipt by the Company of the invoice to be submitted by the
Officer within thirty (30) days of his having paid it.
(h) For a period of two (2) years from the Resignation Date, the
Company shall pay the Officer an amount equal to the premium payable
by the Officer upon exercising his conversion rights under the
Company's life insurance plan to purchase life insurance with coverage
in the current amount benefitting the Officer. Such amount payable by
the Company shall be grossed up to reflect the same tax-favored
treatment to the Officer as if the Company had continued to provide
the coverage under its life insurance plan.
3. CONFIDENTIALITY AND OTHER CONDUCT
(a) The Officer recognizes and acknowledges that during the
course of his employment with the Company, he has developed,
participated in the development of, been exposed to, has had access
to, and has had disclosed to him information and material developed
specifically by and for the benefit of the Company (including its
parent company and other subsidiaries), sensitive and/or proprietary
information, strategic planning and financial information, business
planning, operations and marketing information, and personnel and
plant security information, and, in each case, specific Company
policies, practices and procedures related thereto and other matters,
including without limitation trade secrets, trademarks, service marks,
trademarked and copyrighted material, patents, patents pending,
financial and data processing information, data bases, interfaces,
and/or source codes, Company procedures, specifications, commercial
information or other Company or Customer records as described in
Administrative Policies I.8.7. and I.1.28, including any information
or material, belonging to others which has been provided to the
Company on a confidential basis, all of which are hereinafter referred
to as "Confidential Information."
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Exhibit 10.2
(b) The Officer agrees to maintain, in strict confidence, the
Confidential Information and agrees not to disclose the Confidential
Information or the fact of, the terms of or the amount of the
consideration paid as part of this Agreement to any third party or to
use the Confidential Information to benefit himself or any third
party. The Officer shall be prohibited from using, duplicating,
reproducing, copying, distributing or disclosing the Confidential
I n f ormation regardless of form or purpose, including without
limitation verbal disclosure, data, documents, electronic media or any
other media form. The Officer also agrees to continue to abide by the
non-disclosure and non-use obligations relating to Company records,
information, and property contained in the Company's Standards of
Integrity.
(c) The restrictions on the Officer's disclosure of Confidential
Information set out herein do not apply to such information which (i)
is now, or which hereafter, through no act or failure to act on the
part of the Officer becomes, generally known or available to the
public; or (ii) is required to be disclosed by a court of competent
jurisdiction or by an administrative or quasi-judicial body having
jurisdiction over the subject matter after the Officer has given the
Company reasonable prior notice of such disclosure requirement.
(d) The Officer agrees to conduct himself in all actions or
conduct relating to the Company in a manner consistent with existing
Company policy and to refrain from engaging in any conduct or activity
that in any manner harasses or interferes with the Company, its
employees, officers and/or directors or holds the Company up to
ridicule in the community or which jeopardizes or adversely affects
the business or reputation of the Company.
(e) The Officer hereby waives all rights to employment with the
Company and agrees not to seek employment with the Company at any time
in the future.
4. COMPETITION
(a) C o venant Not to Compete. The Officer, directly or
indirectly, in any capacity, either for himself, or on behalf of any
corporation, partnership, joint venture, business trust, or other
person or entity, shall not:
For a period of two (2) years commencing on the date of this
Agreement ("Prohibited Period"), (i) engage in any business, or
acquire an interest in any business (except as the beneficial owner of
publicly-traded stock), or become affiliated as an agent, consultant,
employee, partner, director, officer, stockholder, or proprietor of or
provide any consulting services to any business that is an electric or
gas utility, a power marketer, a gas marketer, an energy services
company, an independent power producer, cogenerator, electric
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Exhibit 10.2
wholesale generator, municipal electric or gas utility or electric
cooperative having its principal place of business within the State of
Florida or engage in, or provide services with respect to, strategic
planning, marketing and sales in the State of Florida for any of the
foregoing businesses regardless of its principal place of business
("Competitor"); (ii) solicit, divert, do business with, or accept
business from any person who is or has been a customer of the Company
if such solicitation, diversion or business has the effect of or
results in the Company's loss of all or a portion of such customer's
business or potential business; (iii) represent any person in its
dealings with the Company; (iv) influence or attempt to influence any
employee of the Company to terminate his/her employment with the
Company for the purpose of working for a Competitor; or (v) influence
or attempt to influence any agent, customer, supplier, or distributor
who has a business relationship with the Company to cease or adversely
alter its business relations with the Company.
(b) Consideration. In consideration for Officer's agreement to
the preceding covenant not to compete set forth in Section 4(a) above,
the Company agrees to pay the Officer TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($200,000.00) payable quarterly in the amount of TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00). Such payments shall be due
throughout the Prohibited Period so long as the Officer adheres to the
covenant not to compete set forth in Section 4(a) hereof, breach of
which shall entitle the Company to cease making such payments during
the period of such breach in addition to the other remedies set forth
in Section 6 hereof. Such payments shall be made on the first day of
the month immediately following the last day of each calendar quarter.
The first payment hereunder shall be due on July 1, 1998.
The Officer's covenant not to compete pursuant to Section 4(a) is
independent of any obligation of the Company to the Officer, including
any obligation of the Company to the Officer under this Agreement, and
is not subject to any setoff, defense, deduction, or counterclaim
based on any claim that the Officer might have against the Company.
The Officer stipulates that the geographic scope, duration, and the
related restrictions are reasonable limitations necessary to protect
the Company's business interests, and such restrictions do not
unreasonably prevent the Officer from obtaining acceptable
professional or occupational employment opportunities. The Officer
acknowledges that his position with the Company has given him access
to the Confidential Information defined herein, certain specialized
knowledge and training not readily available to him otherwise, and
that he has been directly and indirectly responsible for, participated
in and contributed to the development of and managed certain of the
C o mpany's marketing and competitive business strategies. The
Prohibited Period covering the obligations set forth in Section 4(a)
above shall be extended by any period of time during which the Officer
is in breach of such obligation.
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Exhibit 10.2
(c) Reformation. Each provision of the covenant set forth in
Section 4(a) shall be construed and interpreted so that it is valid
and enforceable under applicable law. However, if a court of
competent jurisdiction determines that the duration, geographical
area, or proscribed activities contained in the restrictions under
this Agreement would cause strict application of those restrictions to
be invalid or unenforceable in a particular jurisdiction, the
restrictions automatically will be reformed to shorten their duration,
x x xxxxxx their geographical area, or confine their proscribed
activities to the extent necessary (but only to such extent) to make
the restrictions valid and enforceable.
5. RELEASE OF CLAIMS AND INDEMNIFICATION
(a) For and in consideration of the payments and increased
benefits made to the Officer pursuant to Section 2 hereof, the
Officer, for himself, his heirs, executors, administrators, successors
and assigns, hereby releases and agrees to hold harmless the Company
(which, for purposes of this section includes the Company and any
agent, officer, director or employee thereof) from all claims, rights,
causes of action or liabilities of whatever nature, whether at law or
in equity, against the Company that the Officer, his heirs, executors,
administrators, successors, and assigns, may now have or hereafter
can, shall or may have for, upon, or by reason of any matter, cause or
thing, whatsoever, which has happened, developed or occurred on or
before the date of this Agreement, arising out of Officer's employment
with or termination of employment from the Company or resignation
hereunder, including, but not limited to, claims for wrongful
termination, discrimination, retaliation, invasion of privacy,
defamation, slander, and/or intentional infliction of emotional
distress and those claims arising under any federal, state, or local
discrimination or civil rights or labor laws and/or rules or
regulations, and/or common law, whether in contract or in tort, as
they relate to the employment relationship of the Employee/Employer
( i n c l xxxxx without limitation claims arising under the Age
D i s crimination in Employment Act, the Older Workers' Benefit
Protection Act (29 USC 626), Title VII of the Civil Rights Act of
1964, or the Employee Retirement Income Security Act, as such laws
have been or may be amended from time to time).
(b) The Officer acknowledges and agrees that this Agreement
shall not be construed as an admission by Company of any improper or
unlawful actions or of any wrongdoing whatsoever against Officer or
any other persons, and Company expressly denies any wrongdoing
whatsoever against Officer or any other employee.
(c) The Officer covenants with and represents to the Company
that he is the sole owner of any and all claims being waived and from
which the Company is being released by the Officer in Section 5(a)
above and hereby covenants with and agrees to indemnify and save and
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Exhibit 10.2
hold harmless the Company against any and all liability, claims,
suits, damages, costs, losses and expenses whatsoever, in any manner
resulting from or arising out of the matters released above. The
Company agrees to indemnify and save and hold harmless the Officer in
accordance with the provisions of the Company's Bylaws, to the extent
permitted by law, against all expenses and liabilities incurred in
connection with any threatened, pending or completed proceeding to
which the Officer is or becomes a party by reason of the fact that he
was an officer or employee of the Company. The Company's obligation
to indemnify the Officer hereunder is subject to the Officer providing
the Company with prompt written notice of any threatened or existing
suit, proceeding or claim.
6. REMEDIES
(a) Remedy at Law Insufficient. The parties acknowledge that
damages at law will be an insufficient remedy if: Officer violates
the terms of Sections 3, 4 and 5 hereof or if the Company or Officer
breach the covenants contained in Section 1(c) hereof, or if the
Company inappropriately fails to make the payments pursuant to Section
2 hereof, and that each would suffer irreparable damage as a result of
such violation. Accordingly, upon a violation of any of the covenants
set out in such Sections applicable to the parties, the affected
party, either Officer or the Company without excluding or limiting any
other available remedy, shall be entitled to the following remedies:
(1) Upon posting bond of $1,000.00 and filing with a court
of competent jurisdiction an appropriate pleading and affidavit
specifying each obligation breached by Officer or the Company,
automatic entry by a court having jurisdiction of an order granting an
injunction or specific performance compelling the defaulting party or
parties to comply with that obligation, without proof of monetary
damage or an inadequate remedy at law; and
(2) Reimbursement of all costs and expenses reasonably
incurred by the non-defaulting party in enforcing those obligations or
otherwise defending or prosecuting any litigation arising out of the
defaulting party's obligations, including premiums for bonds, fees for
experts and investigators, and legal fees, costs, and expenses
incurred before a lawsuit is filed and in trial, appellate, bankruptcy
and judgment execution proceedings.
(b) Cumulative Remedies. The foregoing remedies are cumulative
and in addition to all other remedies afforded or available to the
parties by law or in equity, and the parties may exercise any such
remedy concurrently, independently or successively.
(c) Attorneys' Fees. In the event that either party is required
to institute litigation or some other alternative dispute resolution
process (other than the proceedings contemplated in Section 6(a)
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Exhibit 10.2
above) in order to enforce the terms of this Agreement, the prevailing
party shall be entitled to recover its reasonable attorney's fees and
costs from the other party.
7. SURVIVAL
Neither completion of payments hereunder nor termination of this
Agreement shall be deemed to relieve Officer or Company of any rights
or obligations hereunder which by their very nature survive the
completion of payments by the Company, including without limitation,
paragraphs 1(c), 3, 4, 5 and 6 hereof. For the purpose of Sections 3,
4, 5 and 6 the term "Company" shall mean Tampa Electric Company, TECO
Energy, Inc., and all of its subsidiaries and affiliates.
8. ENTIRE AGREEMENT
The Officer acknowledges and agrees that this Agreement contains
the entire agreement between himself and Company and that no
statements or promises have been made by either party concerning the
subjects of this Agreement other than as expressly contained in this
document.
9. EFFECTIVE DATE
This Agreement shall be governed by the Laws of the State of
Florida and shall become effective at the close of business on the
seventh (7th) day following the date that this Agreement is executed
by the Officer.
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Exhibit 10.2
11. STATEMENT OF UNDERSTANDING
THE OFFICER ACKNOWLEDGES THAT (A) HE HAS CAREFULLY READ THIS
AGREEMENT AND RELEASE, KNOWS AND UNDERSTANDS THE CONTENTS CONTAINED IN
IT AND HAS BEEN GIVEN THE OPPORTUNITY TO CONSIDER THIS AGREEMENT FOR
TWENTY-ONE (21) DAYS AND (B) THE COMPANY HAS ADVISED HIM TO CONSULT AN
ATTORNEY AND HE HAS BEEN GIVEN THE OPPORTUNITY TO DO SO. THE OFFICER
DOES FREELY AND VOLUNTARILY ASSENT TO ALL OF ITS TERMS AND CONDITIONS
AND SIGNS THIS AGREEMENT AS HIS OWN FREE ACT.
If the Officer chooses to waive the 21 day requirement, please
indicate by initialing and dating the following paragraph in the space
provided in the left margin.
THE OFFICER DOES HEREBY WAIVE THE TWENTY-ONE (21) DAY
PERIOD TO CONSIDER THIS AGREEMENT AS REQUIRED
UNDER THE OLDER WORKERS' BENEFIT PROTECTION ACT
Initial (29 USC 626), BUT ACKNOWLEDGES THAT HE HAS
____ REVIEWED AND CONSIDERED THIS AGREEMENT, HAD CONSULTED
WITH HIS ATTORNEY AND FREELY AND VOLUNTARILY
Date ASSENTS TO ALL OF ITS TERMS AND CONDITIONS AND SIGNS
THIS AGREEMENT AS HIS OWN FREE ACT.
IN WITNESS WHEREOF, TAMPA ELECTRIC COMPANY and XXXXX X.
XXXXXXXX, have caused this instrument to be executed in
Tampa, Florida as of the date first written above.
WITNESSES: TAMPA ELECTRIC COMPANY, A
FLORIDA CORPORATION
BY:
Name
Title
CAUTION! READ BEFORE SIGNING
BY:
Name Xxxxx X. Xxxxxxxx
DATE SIGNED:
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