EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of August 1, 2000, between Oglethorpe
Power Corporation ("the Company") and Xxxxxxx Xxxx Xxxxxxx ("Employee"). The
Company desires to employ Employee, and Employee desires to accept employment
with the Company, under the following terms and conditions. Therefore, in
consideration of Employee's employment with the Company and the mutual promises
and conditions contained in this Agreement, the adequacy of which the parties
hereby acknowledge, Employee and the Company agree as follows:
1. Term. Subject to the provisions for automatic renewal and termination as
provided herein below, the term of this Agreement shall commence effective as of
August 1, 2000, and shall terminate at 12:00 a.m. on December 31, 2001.
(a) Automatic Renewal. On December 1, 2000, and on December 1 of each
subsequent year, the expiration date of this Agreement shall be automatically
extended for one additional year, unless on or before November 30, 2000 (for the
initial term), or thirteen (13) months before the expiration of any extended
term, either Party provides to the other written notice of its desire not to
automatically renew this Agreement.
2. Employee's Duties. Employee shall serve the Company in the position of Sr.
Vice President of Finance and Administration. Employee shall perform all duties
of this position, as assigned by the CEO, President, or the Board of Directors
of the Company (or other designee).
3. Compensation and Related Matters
(a) Base Salary. For all services rendered by Employee during the term of
this Agreement, the Company shall pay Employee a minimum annual base salary of
$164,000, payable in equal semi-monthly installments, less applicable
withholdings. Employee's base salary will be subject to review and possible
upward adjustment, subject to the sole discretion of the Company.
(b) Bonus Eligibility. Employee will be eligible for consideration for an
annual bonus and other incentive compensation plans generally available to other
similarly situated executive or managerial employees, such as the OPC Variable
Pay Program. Such a bonus, if awarded, will be an amount determined by the
Company in its sole discretion. Employee must be employed by the Company as of
December 31st of the award year in order to receive it; however, in the event
Employee is terminated not for Cause during the last quarter of an award year,
Employee will be eligible to receive a prorated bonus based on attainment of the
applicable goals during Employee's employment. Any prorated bonus will be paid
in accordance with the Company's regular bonus payment schedule.
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4. Termination and Severance.
(a) Termination for Cause. The Company may terminate Employee's employment
with the Company at any time if it believes in good faith that it has Cause to
do so. "Cause" shall be defined as: (a) Employee's failure to perform his duties
that causes or is likely to cause material harm to the Company or material
interference with its operations; (b) Employee's substantial, material failure
to comply with the Company's written directions or policies; or (c) Employee's
engaging in conduct that is unlawful or disreputable, to the possible material
detriment of the Company, its affiliates, its predecessors or successors, or
Employee's own reputation; provided, however, that with respect to (a) and (b)
above, Employee has been given prompt notice of the failure and a reasonable
opportunity to cure it. In the event of a termination for Cause, or in the event
of Employee's death or disability, all salary and other benefits provided to
Employee under this Agreement shall cease as of the date of termination except
for any life and/or disability insurance proceeds that become payable by reason
of employees death or disability.
(b) Termination not for Cause; Resignation with Good Reason. The Company
may terminate Employee's employment at any time upon two weeks notice to the
Employee. In the event the Company terminates Employee's employment not for
Cause or in the event Employee resigns with Good Reason (as defined below),
Employee shall receive as severance pay the equivalent of one year of Employee's
then-current base salary, less applicable withholdings, payable in lump-sum form
(referred to as "Severance Pay"). In addition, the Company will provide the
equivalent of six months (6) medical allowance, and outplacement services to be
determined by the company. However, Employee will only receive Severance Pay if
Employee signs a form releasing all claims against the company which shall be
furnished by the Company, no later than 45 days after the effective termination
date (or within 45 days after an arbitrator determines that Employee is entitled
to such payments), and Employee does not thereafter revoke the release.
(c) Resignation without Good Reason. Employee may resign his employment at
any time upon two weeks notice to the Company. In such event, if requested by
the Company, Employee shall continue to render services and shall be paid his
regular salary and receive normal benefits up to the effective date of
termination. In the event of a resignation without Good Reason, all salary and
other benefits provided to Employee under this Agreement shall cease as of the
date of termination. "Good Reason" shall be defined as: (a) a demotion or
material reduction or alteration of Employee's job title or job duties and
responsibilities inconsistent with Employee's current position; (b) a reduction
of Employee's base salary; or (c) a relocation of Employee's principal office by
more than 50 miles.
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5. This Agreement to be Kept Confidential. As a material condition to this
Agreement, Employee agrees not to disclose the terms of this Agreement, without
the Company's prior written permission, to anyone other than an immediate family
member, or an attorney, accountant, or other professional advisor who agrees in
advance to honor this confidentiality requirement. This provision does not
prohibit Employee from disclosing the terms of this Agreement to the extent
necessary to enforce this Agreement, nor does it prohibit disclosures to the
extent legally required by a subpoena or court order, provided that the Company
is notified in writing of such a disclosure obligation within five (5) days
after it arises. In the event that Employee violates the confidentiality
obligations of this Paragraph, the Company reserves the right to cancel this
Agreement.
6. Governing Law. This Agreement shall be construed under, governed by, and
enforced in accordance with the laws of the State of Georgia.
7. Arbitration of Disputes. Final and binding arbitration shall be the
exclusive remedy for all disputes between the Company and Employee regarding the
validity, interpretation, or effect of this Agreement. Any such arbitration
shall be in accordance with the procedures of the American Arbitration
Association ("AAA"). The arbitration hearing will be held before an experienced
employment arbitrator or panel of arbitrators licensed to practice law in the
state of Georgia and selected in accordance with the rules of the AAA. The forum
for such arbitration shall be Atlanta, Georgia. The party seeking arbitration of
a dispute under this Paragraph must give specific written notice of any claim to
the other party within six (6) months of the date the party seeking arbitration
first has knowledge of the event giving rise to the dispute; otherwise, the
claim shall be void and deemed waived, even if there is a federal or state
statute of limitations which would have given more time to pursue the claim.
8. Notice. Any notice required or desired to be given under this Agreement by
Employee to the Company shall be provided in writing via hand-delivery,
facsimile (with confirmation of delivery), recognized express courier, or
Certified Mail to Director of Human Resources, Oglethorpe Power Corporation,
0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000-0000, fax number: 770-270- 7676.
Any notice required or desired to be given under this Agreement by Company to
the Employee shall be provided in writing via hand-delivery, recognized express
courier, or Certified Mail to Employee at the address listed below Employee's
signature or at Employee's Company office. Notice shall be deemed given upon the
date of delivery. Addresses or facsimile numbers may be changed by providing
notice in accordance with this Paragraph.
9. Assignment and Successorship. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company. This Agreement shall also be binding
upon and shall inure to the benefit of Employee and Employee's estate, but
Employee may not assign any of rights or delegate any duties or obligations
under this Agreement, except to the extent permitted under the Company's benefit
plans.
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10. Complete Agreement. This Agreement shall constitute the entire agreement
between the parties hereto with respect to the subjects addressed herein. Any
subsequent alteration or modification to this Agreement must be made in writing
and signed by both parties.
So agreed, effective as of the date written on page 1 above.
EMPLOYEE: COMPANY:
/s/ Xxxxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
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Date: 8/8/00 Date: 8/7/00
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Printed Name: Xxxxxxx Xxxxxxx Xxxxxxx Printed Name: Xxxxxx X. Xxxxx
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Title: President and CEO
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