EXHIBIT 10.14
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
This Non-Competition and Confidentiality Agreement ("Agreement") is
entered into as of the 3rd day of October, 1996 by and among DQE, Inc.
(hereinafter called "DQE"), a Pennsylvania corporation, Duquesne Light Company
(hereinafter called the "Company" and together with DQE sometimes hereinafter
called the "Employers"), a Pennsylvania corporation and a wholly-owned
subsidiary of DQE, and David D. Marshall, an individual residing in Allegheny
County, Pennsylvania and President and Chief Executive Officer of DQE and the
Company (hereinafter called the "Executive");
W I T N E S S E T H:
WHEREAS, the Employers and the Executive entered into that certain
Employment Agreement, dated as of August 30, 1994 (as amended from time to time,
the "Employment Agreement");
WHEREAS, during the course of the Executive's employment with the
Employers, the Employers will undertake to train and continue to train the
Executive and to impart to the Executive proprietary and/or confidential
information and/or trade secrets of the Employers and their affiliates; and
WHEREAS, in consideration of the issuance to the Executive of 200
restricted shares of DQE Common Stock and the provision for special severance
benefits for the Executive on the terms and conditions hereinafter described,
and in lieu of the covenants and restrictions otherwise applicable to the
Executive under Paragraph 6 of the Employment Agreement, the Executive hereby
agrees to the covenants and restrictions set forth herein;
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
1. Covenants of the Executive. In order to induce DQE and the Company to
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enter into this Agreement, and for other good and valuable consideration the
receipt of which is hereby acknowledged by the Executive, the Executive hereby
agrees as follows:
(a) Non-Disclosure Of Confidential Information. The Executive
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acknowledges that all Confidential Information shall at all times remain
the property of the Employers and their affiliates (i.e., each other
company the majority interest of which is owned by the either of the
Employers or by a parent or subsidiary of either of the Employers) (the
Employers and such affiliates are hereinafter collectively called the
"Affiliated Companies"). "Confidential Information" means all information
disclosed to the Executive or known by the Executive as a consequence of or
through the Executive's employment, which is not generally known in the
industry in which the Affiliated Companies are or may become engaged, about
the business, products, processes, and services of the Affiliated
Companies, 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 the documentation thereof.
It includes, but is not limited to, proprietary information and trade
secrets of the Affiliated Companies. It will be presumed that information
supplied to the Affiliated Companies from outside sources is Confidential
Information unless and until it is designated otherwise.
The Executive will safeguard and maintain on the premises of the
Employers, to the extent possible in the performance of the Executive's
work for the Employers, all documents and things that contain or embody
Confidential Information. Except as required as part of the Executive's
duties to the Employers, the Executive will not, during his employment by
the Employers, or thereafter, directly or indirectly use, divulge,
disseminate, disclose, lecture upon, or publish any Confidential
Information without having first obtained written permission from the
Employers to do so.
(b) Inventions. All Inventions made or conceived by the
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Executive, either solely or jointly with others, (i) during the Executive's
employment by the Employers and (ii) within one (1) year after termination
of such employment, whether or not such Inventions are made or conceived
during the hours of the Executive's employment or with the use of the
Employers' facilities, materials, or personnel, will be the property of the
Employers or their nominees. "Invention" means discoveries, concepts, and
ideas, whether patentable or not, including, but not limited to apparatus,
processes, methods, techniques, and formulae, as well as improvements
thereof or know-how related thereto, relating to any present or prospective
activities of the Affiliated Companies.
The Executive will, without royalty or any other additional
consideration:
(i) inform the Employers promptly and fully of such
Inventions by written reports, setting forth in detail a description,
the operation and the results achieved;
(ii) assign to the Employers all the Executive's right,
title, and interest in and to such Inventions, any applications for
United States and foreign Letters Patent, any continuations,
divisions, continuations-in-part,
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reissues, extensions or additions thereof filed for upon such
Inventions and any United States and foreign Letters Patent;
(iii) assist the Employers or their nominees, at the
expense of the Employers, to obtain, maintain and enforce such United
States and foreign Letters Patent for such Inventions as the Employers
may elect; and
(iv) execute, acknowledge, and deliver to the Employers at
their expense such written documents and instruments, and do such
other acts, such as giving testimony in support of the Executive's
inventorship and invention, as may be necessary in the opinion of the
Employers to obtain, maintain or enforce the United States and foreign
Letters Patent upon such Inventions and to vest the entire right and
title thereto in the Employers and to confirm the complete ownership
by the Employers of such Inventions.
(c) Works. All Works created by the Executive during his
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employment by the Employers will be and remain exclusively the property of
the Employers. "Works" means all material and information created by the
Executive in the course of or as a result of the Executive's employment by
the Employers which is fixed in a tangible medium of expression, including,
but not limited to, notes, drawings, memoranda, correspondence, documents,
records, notebooks, flow charts, computer programs and source and object
codes, regardless of the medium in which they are fixed.
Each such Work is a "work for hire" and the Employers may file
applications to register copyright as author thereof. The Executive will
take whatever steps and do whatever acts the Employers request, including,
but not limited to, placement of the Employers' proper copyright notice on
such Works to secure or aid in securing copyright protection and will
assist the Employers or their nominees in filing applications to register
claims of copyright in such works. The Executive will not reproduce,
distribute, display publicly, or perform publicly, alone or in combination
with any data processing or network system, any Works of the Employers
without the written permission from the Employers.
(d) Restrictions on Competition. The Executive covenants and
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agrees that during the period of the Executive's employment hereunder and
for a period of one (1) year following the termination of the Executive's
employment for any reason, including without limitation termination by the
Employers for cause or without cause, the Executive shall not engage,
directly or indirectly, whether as principal or as agent, officer,
director, employee, consultant, shareholder, or otherwise, alone or in
association with any other person, corporation or other entity, in any
Competing Business located within a 150 mile radius of the principal
places of business of the Employers located in Pittsburgh, Pennsylvania or
in the states of Ohio or West Virginia. For purposes of this Agreement,
the term "Competing Business"
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shall mean any person, corporation or other entity which develops,
produces, markets, sells or services (1) any energy product or service,
including but not limited to gas or electric products or services, and/or
(2) any product or service which is the same as or similar to products or
services which the Affiliated Companies developed, produced, marketed, or
sold, including but not limited to energy products and services, within the
last year prior to termination of the Executive's employment hereunder. The
Executive recognizes that the Affiliated Companies conduct or intend to
conduct business within the geographic area set forth herein, and
therefore, the Executive agrees that this restriction is reasonable and
necessary to protect the Affiliated Companies' business.
(e) Nonsolicitation Of Customers And Suppliers. The Executive
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agrees that for a period of two (2) years following the termination of the
Executive's employment with the Employers for any reason, whether
terminated for cause or without cause, the Executive shall not, directly or
indirectly, solicit the business of, or do business with, any customer,
supplier, or prospective customer or supplier of the Affiliated Companies
with whom the Executive had direct or indirect contact or about whom the
Executive may have acquired any knowledge while employed by the Employers.
(f) Solicitation Of Executives. The Executive agrees that,
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during the Executive's employment with the Employers and for a period of
two (2) years following termination of the Executive's employment with the
Employers, whether terminated with cause or without cause, the Executive
shall not, directly or indirectly, solicit or induce, or attempt to solicit
or induce, any employee of the Affiliated Companies to leave the Affiliated
Companies for any reason whatsoever, or hire or solicit the services of any
employee of the Affiliated Companies.
(g) Enforcement. The Executive understands and agrees that any
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violation of this Agreement shall be deemed material to continuing
employment and could result in disciplinary action up to and including
termination. The Executive acknowledges that the legal remedy available to
the Affiliated Companies for any breach of covenants on the part of the
Executive will be inadequate, and, therefore, in the event of any
threatened or actual breach of this Agreement, the Affiliated Companies
shall be entitled to specific enforcement of this Agreement through
injunctive or other equitable relief in a court with appropriate
jurisdiction. The existence of any claim or cause of action by the
Executive or another against the Affiliated Companies, whether predicated
on this Agreement or otherwise, shall not constitute a defense to
enforcement by the Affiliated Companies of this Agreement.
(h) Obligations Survive Termination Of Employment. Termination
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of the Executive's employment, whether voluntary or involuntary, whether
for cause or without cause, shall not impair or relieve the Executive of
any of the Executive's obligations hereunder. Upon termination of the
Executive's
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employment, for whatever reason, or upon request by the Employers, the
Executive will deliver to the Employers the originals and all copies of
notes, sketches, drawings, specifications, memoranda, correspondence,
documents, records, notebooks, computer disks and computer tapes and other
repositories of Confidential Information and Inventions then in the
Executive's possession or under the Executive's control, whether prepared
by the Executive or by others. Upon termination of the Executive's
employment, for whatever reason, or upon request by the Employers, the
Executive will deliver to the Employers the originals and all copies of
Works, then in the Executive's possession or under the Executive's control.
2. Effect on Employment Agreement. The covenants and restrictions set
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forth in Paragraph 1 of this Agreement shall apply to the Executive in lieu of
the provisions of Paragraph 6 of the Employment Agreement, and otherwise the
Employment Agreement shall remain in full force and effect in accordance with
its terms.
3. Issuance of Restricted Shares. As consideration for agreeing to the
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foregoing covenants and restrictions, promptly following the Executive's
execution and delivery of this Agreement, there shall be registered in the
Executive's name on the books of DQE 200 shares of DQE Common Stock (the
"Shares"), subject to the terms and conditions hereinafter set forth.
(a) The Shares will be subject to the transferability restriction
described in subsection (c) below. The stock certificate representing the
Shares will be delivered to the Executive as soon as practicable following the
date of issuance and will bear the following legend:
The transferability of this certificate and the shares of stock
represented hereby is subject to the terms and conditions of an
Agreement entered into by and among the registered owner and DQE,
Inc. and Duquesne Light Company. Copies of such Agreement are on
file at 411 Seventh Avenue, P. O. Box 1930, Pittsburgh,
Pennsylvania 15230-1930.
(b) As soon as practicable after the expiration of the
transferability restriction set forth in subsection (c) below, the Employers
will deliver to the Executive one or more stock certificates for the appropriate
number of shares of DQE Common Stock, free of all such restrictions, except for
any restrictions that may be imposed by law.
(c) Prior to the first anniversary of the date of this Agreement,
none of the Shares may be assigned, transferred (other than by will or the laws
of descent and distribution), pledged, sold or otherwise disposed of by the
Executive. Any attempt to dispose of Shares or any interest in the Shares in
violation of this restriction will be null, void and ineffective.
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(d) As promptly as practicable after the date hereof, the Employers
shall make a cash payment to the Executive in an amount sufficient such that,
after the application of all federal, state and local taxes to such payment, the
Executive shall retain a sufficient amount to pay the Executive's entire
federal, state and local taxes on the Shares. The Employers shall be entitled
to withhold from such cash payment the amount of all withholding or other taxes
required by law to be withheld or paid by the Employers with respect to the
income recognized by the Executive hereunder.
4. Severance Benefits. As additional consideration for entering into
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this Agreement, the Executive shall be entitled to severance benefits from the
Employers which shall equal one and a half (1 1/2) times the severance benefits,
if any, to which Executive is otherwise entitled; provided, however, that, the
aggregate benefits to which the Executive may be entitled under this sentence
shall include a minimum of six (6) months of severance benefits and a maximum of
one (1) year of severance benefits. (By way of example, if the Executive prior
to executing this Agreement was entitled to six (6) months of severance
benefits, the Executive would be entitled to nine (9) months benefits -- six (6)
months times 1 1/2 -- upon executing this Agreement). Except as expressly
provided in the last sentence of this Paragraph 4, under no circumstances will
the Executive be entitled to more than one (1) year of severance benefits. All
other terms and conditions of the Executive's entitlement to severance benefits
shall remain in full force and effect and shall not otherwise be modified by
this Agreement. Notwithstanding the foregoing, if the Executive shall be
entitled, under an employment agreement, offer letter or other written
undertaking of the Employers directed specifically to the Executive, to
severance benefits more favorable to the Executive than those set forth in this
Paragraph 4, then the Executive shall receive such other severance benefits in
lieu of the benefits set forth in this Paragraph 4.
5. Binding Effect. This Agreement shall bind the Executive, the
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Executive's heirs, and the Executive's assigns, and may be assigned by the
Employers with transfer of assets of the Employers' business to which it
relates. The substantive law of the Commonwealth of Pennsylvania shall apply in
matters relating to this Agreement.
6. Authorization to Modify Restrictions. It is an 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.
7. Executive Acknowledgments. The Executive acknowledges that he or she
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has read and understands the provisions of this Agreement, that he or she has
been given an opportunity for his or her legal counsel to review this Agreement
and that the provisions of this Agreement are reasonable and that he or she has
received a copy of this Agreement.
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8. Headings. The headings of paragraphs herein are included solely for
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convenience of reference and shall not control the meanings or interpretation of
any provisions of this Agreement.
9. Counterparts. This Agreement may be executed in two or more
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counterparts each of which shall be deemed to be an original, but all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Attest: DQE, INC.
/s/ Diane S. Eismont By /s/ Victor A. Roque
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Diane S. Eismont, Secretary
Title: Vice President and General Counsel
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Attest: DUQUESNE LIGHT COMPANY
/s/ Diane E. Eismont By /s/ Victor A. Roque
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Diane S. Eismont, Secretary
Title: Vice President and General Counsel
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DAVID D. MARSHALL
/s/ David D. Marshall
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Schedule to Exhibit 10.14
Non-Competition and Confidentiality Agreements which were substantially
identical to that filed as Exhibit 10.14 were entered into with the following
parties, differing only as to the date executed:
Dianna L. Green DQE, Inc. and
Duquesne Light Company
Victor A. Roque DQE, Inc. and
Duquesne Light Company
James D. Mitchell DQE, Inc.
James E. Cross Duquesne Light Company